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LOCKDOWN!

THE BALTIMORE SUN

Planning to rip and burn a few tunes from Britney Spears' new CD to back up your favorite tracks?

Hoping to hunt up a recording of that hot polka you heard years ago through the KaZaA network?

Thinking digital television will broadcast episodes of ER that you'll be able to share with friends over the Internet?

Think again.

The entertainment industry is waging an unprecedented legal, political and technical campaign to lock up its music, movies and software in the digital realm.

Congress is already pondering industry legislation that would allow copyright holders to launch computer attacks on peer-to-peer file-sharing networks. Record companies are slipping copy-protected CDs onto retailers' shelves. The music industry is suing Internet service providers, trying to block access to foreign Web sites that have pirated music.

Music and movie fans, scholars and civil libertarians call it a war over intellectual property, an all-out assault on the right of consumers to make personal copies of digital media.

"It's scary," says Larry Feldman, a musician and lawyer who works on the Boycott-RIAA.com Web site, which tracks legal and political campaigns by the Recording Industry Association of America. "The industry is getting increasingly more intrusive with legislation ... and they don't care about privacy or the constitutional implications."

Consider a few of the proposals:

South Carolina Sen. Ernest F. Hollings, a Democrat, has offered a bill that would require manufacturers of PCs, TV recorders and MP3 players to build copy protection technology into their devices.

A bill from Rep. Howard L. Berman, a California Democrat, would allow copyright holders such as movie studios and music labels to launch computer attacks against file-sharing networks such as Gnutella, KaZaA and Morpheus. The bill would protect studios from state or federal action if they disable or block a peer-to-peer network, though such action is a violation of federal computer security law.

The Federal Communications Commission has proposed a rule requiring digital TVs to recognize a "flag" in digital broadcasts that would help prevent copies of programs from being distributed over the Internet. Television and motion picture officials say they won't broadcast movies and other programs if there's no way to prevent such copying.

"They're all pieces of a puzzle and each is very important," says Mitch Glazier, RIAA senior vice president for government relations.

Use vs. piracy

While it's legal to make a copy of a song for personal use, recording executives have long been enraged by the millions of pirated tunes exchanged online illegally every day without compensation to studios, artists or composers. They list the file-trading as the major reason for a downturn in record sales.

"There's a big difference between fair use and infringement of copyright," Glazier said.

Movie studios, meanwhile are upset by the posting of digital versions of entire films such as Spiderman and Star Wars, Episode II: Attack of the Clones, even while they were still playing in theaters.

Fritz Attaway, executive vice president of the Motion Picture Association of America, draws a legal distinction between the two types of media. While unprotected music CDs may be copied for personal use, he said, there is no established right to copy a DVD movie.

In fact, the Digital Millennium Copyright Act of 1998 (DMCA) makes it illegal to circumvent the encryption built into all DVDs. The act - the result of years of industry lobbying - is now the industry's biggest club, making it a federal crime to circumvent copy protection in any digital medium - even if the user has a right to make a personal copy of the material under existing copyright law.

In addition, it forbids public discussion or publication of information that could be used to defeat copyright protection - a provision civil liberties advocates say is a violation of First Amendment rights. The Supreme Court has not yet resolved either conflict.

Digital shift

Until the late 1990s, studios and record producers concentrated anti-piracy efforts on organized rings that sold bootleg disks and tapes. So why the sudden interest in average users?

Josh Bernoff, a principal analyst with Forrester Research, said it's the result of the technological leap from older, analog media (vinyl albums, audio cassettes, and video tapes) to digital media such as CDs and DVDs.

"Analog technology was not that easy to pirate," he said. "You needed expensive and cumbersome machines to make copies. You couldn't crank out, say, 100 cassettes from a record in your home. As a result, people [in the industry] didn't feel any need to enforce their copyright."

Today's software makes it easy for listeners to "rip" a track from a music CD and store it on a computer as a digital MP3 file. Thanks to the Internet, it's simple to send that song to one friend, or to 1,000 "friends" over a peer-to-peer network that allows millions of online users to share their hard drives' content.

As a result, millions of users are now accustomed to online music-sharing - most of which is illegal.

Digital video, which requires far more data, is also more difficult to acquire and transfer. The quality is often marginal, too. But episodes of TV shows and entire movies are becoming more common on peer-to-peer networks.

While it's unclear how the copy-protection technologies in the Berman or Hollings bills would be implemented, civil libertarians fear what's in store for average users.

Fred von Lohmann, senior intellectual property rights attorney for the Electronic Frontier Foundation, says Berman's bill is the most troubling of the proposals because it would allow copyright owners to blockade a computer in a file-sharing network.

"Think about how a cable modem works. You share Internet access with everyone on your block," von Lohmann said. "So if a teen-ager next door is a big pirate and he's blocked, what happens to you? What if things don't work for you the way they're supposed to? ... This is a recipe for total anarchy because it doesn't apply to just big copyright owners, but any copyright owner."

Creating problems

Copy-protected music CDs have already had playability problems. Forrester's Bernoff worries that schemes like the one called for in the Hollings bill to extend copy protection will cause more trouble.

"We may potentially all have to put up with additional bits and pieces of technology that might not work at all," he said.

While Bernoff said he takes no sides in the overall debate, he said the entertainment industry should develop new ways of serving its customers rather than trying to get "the cat back into the bag."

"In the long term," he said, "content companies have to develop business models that deliver so much value that they are competitive."

Likewise, von Lohmann argues that the industry's anti-piracy efforts so far don't address three basic principles: Artists should be paid for their work; consumers should get what they want; and innovation should be encouraged.

"How do any of the proposals put forward move us closer to any of these goals?" von Lohmann asked. "Compromising the privacy of consumers and fair use while blocking overseas sites by suing ISPs are desperate short-term solutions that harm the innocent more than the guilty."

The music industry's initial effort to wean consumers from file-swapping - legal music subscription services - is struggling. One reason is that they often limit where, when and how long their music can be played. The RIAA's Glazier said the industry understands the frustration some consumers feel about this.

"But we see it as an evolving process," he said. "We have seven music services up and running. All have different business models for getting music to people. We want the consumer to decide which one wins."

The movie industry's first official effort to market streaming first-run films online, a deal between Warner Bros. and CinemaNow.com, got under way this week. MovieLink, a more elaborate effort involving five major studios, will debut later this year. In most cases, the pricing will be close to fees for cable systems' video on demand services.

Gatekeeping ally

On the technical side, hardware industry leaders such as Cisco Systems and Intel Corp. have opposed efforts to build copy protection into their network and consumer products.

But the entertainment industry has a better relationship with Microsoft, whose software runs the vast majority of desktop computers. Microsoft has embraced "digital rights management" (the industry's term for copy protection) in its Media Player, which is packaged with the Windows operating systems.

Media Player 9, unveiled last week with great fanfare and the endorsement of the entertainment industry, will enhance the quality of Internet video broadcasts but give studios far more control over what consumers can do with content they've paid for.

Meanwhile, Microsoft seemed to go a step further with fine print in the click-through licensing agreement attached to a recent Media Player security update. It gave the company authority to disable illegal songs and videos on a user's computer, as well as software it didn't like.

When users complained, Microsoft backpedaled. Michael Aldridge, lead product manager for its Windows Digital Media Division, said the agreement mistakenly contained old "imprecise language."

"The implication from the [agreement] was that we were somehow asking people for control of their operating system, which is incorrect," Aldridge said last week. The language no longer appears in the new agreements.

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