It's All Free!

  • PHOTO-ILLUSTRATION FOR TIME BY MICHAEL ELINS

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    First order of business: evolve some claws. Some labels (they're reluctant to identify themselves) hire professional counterhackers, companies like Overpeer, based in Manhattan, that specialize in electronic countermeasures such as "spoofing" — releasing dummy versions of popular songs onto file-sharing networks. To your average Kazaa user they look like the real thing, but when you download them, they turn out to be unplayable. Movie studios, meanwhile, staff screenings with ushers wearing night-vision goggles to suss out would-be pirates with camcorders. When Epic Records distributed review copies of the new Pearl Jam album last fall, it sent them inside CD players that had been glued shut. The White Stripes went further: review copies of their new album Elephant were sent on good old-fashioned vinyl, which is trickier to copy. In the copy-protection wars, low tech is the new high tech.

    For EMI, the plan is not to prohibit copying, just to keep us from doing it quite so much. In theory, the CD of the future will be smart enough to let its owner make one copy of a song for the computer, one for the iPod, and maybe burn an extra for the car, but that's it. But even that might annoy consumers who are used to making as many copies as they want. Even if the smart CD of the future becomes a reality, to work at all it will have to work absolutely perfectly. If just one copy leaks onto Kazaa, anywhere in the world, millions of people can have all the copies they want.

    Of course, there's an even older-fashioned way to keep people from stealing your stuff. It's called the law. "What we're dealing with is thievery, plain and simple," says the M.P.A.A.'s Valenti. "People try to use a lot of sophistry to get away from that fact." The legal landscape on which the war against piracy will be fought is being defined right now. In January a federal judge ruled that Verizon, a telephone company that is also an Internet service provider (ISP), must honor the R.I.A.A. subpoena to reveal the identity of one of its customers, a Kazaa user whom they suspect of downloading more than 600 songs. Verizon asked for a stay of the decison, and a flurry of briefs from the M.P.A.A. (backing the record companies) and numerous privacy and consumer organizations (on behalf of Verizon) ensued. On Thursday, the judge denied Verizon's request. Unless it can get a reprieve from an appeals court, the company has 14 days (and counting) to come up with the name.

    The message is clear: If you're going to download music, don't expect to hide behind the anonymity of the Internet. On the other hand, if you're in the business of making file-sharing software, you have a lot less to worry about. On Friday a federal judge ruled that two companies — Grokster and StreamCast Networks, which makes a program called Morpheus — were not liable if users of their file-sharing software infringed on someone else's copyright. In his decision Judge Stephen Wilson cited the legal fuss that sprang up in the 1980s over Sony's Betamax technology. Like file sharing, it was a tool that could be used for both legal and illegal copying. Then, as now, the former was deemed to outweigh the latter.

    The ruling is a stinging blow for the R.I.A.A. and the M.P.A.A., which brought the suit (and will appeal it), and it tells us a lot about how the war against piracy will be fought. If file-sharing services won't sit still and be sued, individual users will make easier targets. Case in point: lawsuits filed last month against students at Princeton, Michigan Technological University and Rensselaer Polytechnic Institute that seek billions of dollars in damages — $150,000 for each pirated song. Nobody thinks piracy can be stopped by suing one user at a time, but if companies focus on major uploaders — people who make huge numbers of files available for others to download — a few high-profile busts may scare off some of the rest. "In the Verizon case, we got the judgment that we really needed," says Andrew Lack, chairman and CEO of Sony Music Entertainment, "which is that on an individual basis you are being ripped off, and you have a right to stop that."

    The pace is picking up as Big Media head to court with everybody they can think of. The M.P.A.A. is wrangling with a company called 321 Studios over the legality of one of 321's products, software that enables consumers to make free copies of movies from DVDs. The FBI busted a Los Angeles man last week for camcording movies off the big screen and selling copies — a legal first. Universal Music Group and EMI have even filed suit against venture-capital firm Hummer Winblad just because it invested in Napster back in 2000.

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