March 13, 2000
By Denise Caruso, New York Times

Last month, after 62 days in operation, the Canadian Internet company was shut down by a lawsuit filed by the Motion Picture Association of America. Its business, apparently legal in Canada, is to redistribute live broadcast television programming on its Web site.

The Motion Picture Association sued iCraveTV in federal court because it is illegal in the United States to redistribute television without first obtaining permission from the programs' owners. And it claimed that viewers in the United States could circumvent iCraveTV's simple barriers to non-Canadians, such as entering an area code. If the company had not stopped operations immediately, says its president and co-founder, William Craig, it could have been liable for ''hundreds of millions of dollars in damages.''

The most chilling aspect of the case, and there are many, was Mr. Craig's response. That is, he did not argue the legality of the action against him, but instead responded by inventing a technology that could stop the discussion dead in its tracks.

He contends that the Internet's ''haphazard'' design makes it impossible to determine precisely where a user's computer is located, and thus the copyright laws that he or she is subject to. If he wanted to keep his business, he says, ''we had to find another barrier to determine that someone is indeed in Canada.''

So his company promptly developed a technological protection mechanism -- he says patents are already being filed -- that will pinpoint where users of iCraveTV are located geographically, thus barring anyone under the jurisdiction of United States-style copyright restrictions from viewing protected programming outside Canada.

Although he would not provide specifics about the new system, Mr. Craig said he was convinced that this ''enhanced geographic screening technology'' would soon be required to make the Internet attractive enough for rights holders to put their content on the Web.

''Collectively, the Internet has to evolve and adapt,'' Mr. Craig says. To effect that evolution, he says, ''what we're trying to do is create 'country-area networks' where you can have a computer just serve a certain territory.'' This, he says, would enable conventional content providers to ''control their rights within that territory.''

Many people are likely to object strongly to Mr. Craig's balkanized Internet. Privacy and free speech issues aside, they might say -- for good reason -- that such a system would devolve the Internet into a model very much like the restricted, centralized control of cable television.

That is a business model with which the $65 billion media and entertainment industries -- the very ones that nearly sued the pants off Mr. Craig -- are quite familiar.

''In every context that it can, the entertainment industry is trying to force the Internet into its own business model -- the perfect control of content,'' wrote the constitutional scholar Lawrence Lessig, whose column about the iCraveTV case recently appeared in The Industry Standard, the Internet-focused business magazine.

The industry obviously has the influence to do so. ''I think we want to nail them to the wall now,'' said Jack Valenti, the president of the Motion Picture Association, at the time the iCraveTV suit was filed.

Less than a month later, iCraveTV pulled the programming from its Web site.

What is most alarming, however, is that the content industries seem to have successfully secured the legal means by which they will be able to enforce this perfect control.

The Digital Millennium Copyright Act of 1998, which was heavily promoted by the entertainment industries, contains a provision called ''anti-circumvention.''

It imposes ''a new kind of liability even in situations of fair use'' of copyright-protected information, says Peter Jaszi, a law professor at American University in Washington.

In copyright terms, ''fair use'' describes the conditions under which someone can legally use or excerpt a copyrighted work. But under the anti-circumvention provision, it is illegal to crack a copy protection technology for any reason. And anyone who makes, sells or uses a device -- including a computer -- that is capable of circumvention is engaging in a criminal act.

It was the anti-circumvention law, for example, that allowed a DVD industry group to call for the arrest of a 16-year-old Norwegian boy who had deconstructed and published the protection code for a DVD movie, even though his intent was not to make illegal copies. He cracked the code because he wanted to watch the movie, which he legally owned, on his Linux computer, but no DVD decoding software existed for the Linux operating system.

What is worrisome about the DVD story is that in one fell swoop, the content industries completely eliminated fair use -- any situation in which the making of a copy might be considered legal -- from the discussion. If they use technology to lock up their content, the mere unlocking of it is an actionable offense. End of story.

''If this were a copyright case, the Linux people might be able to demonstrate the social utility was high and the commercial harm was low,'' Mr. Jaszi says.

''Because it is so clearly weighted toward proprietary interests, people who want to argue they're making responsible unauthorized use of copyrighted materials have no place to stand,'' Mr. Jaszi says.

Similarly, if Mr. Craig's protection technology makes it to market, anyone who attempts to circumvent his system -- even, for example, for a broadcast that would be perfectly legal to watch free on a television -- could also be subject to criminal prosecution.

Throughout history, innovation has been linked conclusively with the free exchange of information and ideas -- by means of the public library system, in the previous millennium, and certainly via the Internet today. If everyone hermetically seals their content with technology, Mr. Jaszi says, ''we could well end up with a world where we have very strong protection for a rather limited range of ultimately not very interesting content.''

Mr. Lessig wrote: ''We could build a network to give content providers perfect control. We could design a network that would be the envy of the Soviets, encoding content control far more effectively than any possible law. But that is not our tradition.''

Copyright law was never meant to grant owners perfect control, and such control is certainly anathema to the free-flowing Internet and the entrepreneurs who are enthusiastically making it work to their advantage. The content industry's traditional method of dealing with these challenges -- trying to extinguish or suppress new technologies -- did not work with the introduction of video and audio cassettes.

And Mr. Jaszi says it never will. ''There's a tremendous opportunity to cooperate with, and not resist, this technology,'' he says. ''What people want is choice, the ability to control the experience of cultural consumption. You can't force them back into the box that they have now escaped.''