As Piracy Battle Nears Supreme Court, the Messages Grow Manic

R.A. Hettinga rah at
Mon Feb 7 19:10:43 PST 2005


The New York Times

February 7, 2005

As Piracy Battle Nears Supreme Court, the Messages Grow Manic

Garret the Ferret is one hip copyright crusader. The cartoon character
urges young cybercitizens toward ethical downloading and - in baggy jeans
and a gold "G" medallion - reminds them that copying and sharing software
is uncool.

 He is also a byproduct of the long-roiling public relations battle between
copyright owners, who say they are threatened by digital piracy, and
technology advocates opposed to strict controls on the copying of digital
media, and on the kinds of software that make piracy so easy.

 With the Supreme Court scheduled next month to hear a pivotal case pitting
copyright holders (represented by MGM Studios) against the makers of
file-sharing software (Grokster and StreamCast Networks), some participants
are putting their message machines into high gear.

 But winning hearts and minds - of teenagers, consumers and lawmakers - has
never been a simple matter.

 "It's hard for two reasons," said Rick Weingarten, the director of the
Office for Information Technology Policy at the American Library
Association, which has been exploring ways to strike a balance in the
copyright and antipiracy messages being aimed at young people.

"Copyright law is not the easiest thing to explain, and it's hard to put a
bumper sticker on it," Mr. Weingarten said. "But, you're also talking about
the future, and it's hard to explain to a consumer that there could one day
be a lot of restrictions on what you can do with new technology."

 One side must make people care about obscure technological innovations
that they say will be stifled by legislative action or an adverse Supreme
Court ruling. The other side battles the image of greedy corporate
profiteers and the perception that freely downloading copyrighted works is
something other than theft.

 "It was easier before the computer," said Dan Glickman, the president and
chief executive of the Motion Picture Association of America, which has
ramped up its antipiracy efforts in recent weeks with a new round of
lawsuits and a media campaign warning would-be thieves to "think again."
Two weeks ago, the association also began offering a free, downloadable
program that allows parents to scan computers for file-sharing software and
potentially pirated media files.

 "People knew they couldn't steal a video tape out of Blockbuster," Mr.
Glickman said, "but the principles are still the same."

 Not to be outdone, the Electronic Frontier Foundation, the digital rights
advocacy group that is representing StreamCast Networks in the Grokster
case, unveiled its Endangered Gizmos campaign to coincide with the filing
of dozens of MGM-friendly amicus briefs with the Supreme Court late last

The campaign displays cheeky taxonomies of "extinct" or "endangered"
techno-species like the original file-sharing service Napster, which was
sued into submission, and the Streambox VCR, which allowed users to record
streaming media off the Internet and suffered a similar fate. The
foundation hopes to convince consumers and lawmakers that there are
cultural costs to giving copyright holders too much power.

 "So many of the issues that we deal with are really abstruse," said Wendy
Seltzer, an intellectual property attorney with the Electronic Frontier
Foundation and the principal creator of the Endangered Gizmos campaign.
"And yet they touch a whole segment of the public that we want to reach out

Whether any of these messages is getting through is an open question.
Survey data from the Pew Internet and American Life Project, a nonprofit
research group in Washington, show that among those who actively download
music, 58 percent still say they do not care if the material is copyright

 Among the general public, 57 percent say they are unfamiliar with concepts
like "fair use" - the kernel of copyright law that allows people to copy
protected materials under certain conditions, and which digital rights
groups contend has been inappropriately constricted by the recording and
film industries.

 The fight has given rise to grass-roots organizations like Downhill
Battle, a nonprofit group based in Worcester, Mass., that conducts a robust
trade in T-shirts, bumper stickers, posters and other paraphernalia that
chide the music and film industries for what it considers wanton
profiteering at the expense of artists and consumers.

In a challenge to fair-use restrictions, the group made digitized,
downloadable copies of "Eyes on the Prize, Part I: Awakenings" - the first
installment of a 1987 documentary on the civil rights movement - and is
encouraging mass, noncommercial screenings of it tomorrow. The film has
largely been absent from television and video rental shelves while the
production company, Blackside Inc., of Boston, works to renew (and pay for)
permissions on the hundreds of copyrighted elements used in the film - from
archival news footage to songs like "Happy Birthday."

 Blackside was not pleased with the copying and distribution of its film,
and persuaded the group to remove it from its Web site last week. But fear
and confusion over the legal issues has led at least one county in Virginia
to stop a teacher from showing the school's legally acquired copy of the
film to students and community members.

 "The school district didn't understand that they have fair-use rights,"
said Tiffiniy Cheng, a director of Downhill Battle, which lists more than
two dozen venues that, it says, have committed to screening the film.

 But the nagging fear of legal action, even among right-minded users of
digital materials, has made it difficult for copyright holders to foster a
positive public image - even though they see lawsuits as critical to
stamping out theft.

 "It would be ideal if our educational efforts got more attention," said
Mitch Bainwol, the chief executive of the Recording Industry Association of
America, which has waged a well-publicized legal campaign against file
sharers. "But the lawsuits get more coverage because of the nature of the

 Those on the digital rights side of the debate recognize the content
industry's image problem - and they are not above exploiting it. But they
know that their own image is troubled, too.

 Indeed, all but the most strident digital anarchists agree that illegal
file sharing is wrong. Yet those who argue for strong fair-use protections
are often portrayed by opponents as supporters of theft.

 "They can so easily be painted as favoring piracy," said Susan Crawford, a
professor of Internet law at the Benjamin N. Cardozo Law School in New York
and a member of the advisory board for Public Knowledge, a Washington group
that has fought legislation that it argues would stifle new technological
advances. "They have to deal with a concept that's even harder to visualize
- innovation - and they have not found a sound bite or a picture that puts
across a message to people."

For groups like Public Knowledge, antipiracy tactics like the entertainment
industry's case against Grokster and StreamCast or legislation like the
Induce Act, which stalled in Congress last year and which opponents argued
would have stifled technological innovation by making developers of
file-sharing software subject to lawsuits, present a morass of legal and
technical nuance that is hard to reduce to sound bites.

That is why the Electronic Frontier Foundation has taken to turning the
gizmos they see threatened by the Grokster lawsuit into pandas and spotted
owls. "That's an image," Ms. Crawford said. "They can play on people's love
for gadgets," although she added that it's not quite the humanizing stroke
one might hope for.

 "It's an uphill battle to visualize innovation," she said.

 The Business Software Alliance, the powerful consortium of software
manufacturers, might well agree with that sentiment.

 The group clearly wants to stamp out the use of pirated software - a
recent study by International Data Corporation estimated that 36 percent of
software installed on computers worldwide was pirated. But it is also
interested in fostering the development of new technologies that, in
addition to having perfectly legal uses, could also be abused by pirates.

 "It's easy for one side to say well, let's just limit the functionality of
technology, because we only care about the pain it's causing our business,"
said Emery Simon, the director for general policy at the alliance. "On the
flip side, you can say, well, technology is the superceding and overarching
good. Both are right, and both are wrong."

In addressing those rights and wrongs, the alliance has mounted some of the
more ambitious public campaigns of any group - including the introduction
of Garret the Ferret into schools. The group has also relicensed its use of
the cartoon character Dilbert, which it has used to reach out to
professional engineers, via Web sites like and through
bulk mailings, to warn them against using pirated software.

 "We hope that the engineers that got the Dilbert flier will take the
message home," said Debbi Mayster, the alliance's communications manager.

 It did not work for everyone.

 Bryan Fields, a partner and chief engineer with, an Internet
service provider to customers in Illinois and Indiana, is one recipient who
did not appreciate the gesture. He said in an e-mail message that he did
not like seeing Dilbert, "who stands for everything that's wrong with
soul-sucking corporations, acting as a mouthpiece for the most evil of them
all - the B.S.A."

R. A. Hettinga <mailto: rah at>
The Internet Bearer Underwriting Corporation <>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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