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Napster wildfire

ISPs fight on both sides

At the close of a recent television ad for Qwest Communications, a bored motel clerk captures the dream of the modern communications industry while barely lifting her eyes from the pages of a paperback book: "We have every movie ever made, in every language, any time, night or day," she deadpans to a startled guest.

The hope of delivering on that promise is driving telephone and cable TV companies to invest billions of dollars in fast Internet services for the delivery of music, films and software to homes and businesses. As all of these products turn digital, the communications companies see themselves becoming latter-day video stores and record shops, reaping new profits as gateways to online entertainment.

At the same time, however, these high-speed thoroughfares can carry a I think we're going to be successful. But we've just got to evolve our way into this. less-welcome byproduct: the risk of unprecedented piracy of copyrighted material that had been too large to be spirited away in older, dial-up connections. That could make them unwitting accomplices in the illicit mass distribution of the very products they are planning to sell in their expanded businesses.

So what will these companies do if every movie, song or software title is suddenly available for free, through point-and-click programs like Napster or Gnutella? They're not sure.

"No one would deny (piracy) could be one source of competition," said Mike Luftman, vice president of corporate communications for Time Warner Cable, which already offers some video-on-demand services. "I think we're going to be successful. But we've just got to evolve our way into this."

This is an unfamiliar role for most communications companies, which have long acted as a kind of Switzerland of cyberspace in the fight between online pirates and copyright holders.

Communications companies have staunchly resisted a direct role in blocking piracy, fearful of being held legally responsible for content flowing through their networks. They successfully won a "safe harbor" provision shielding them from liability in 1997's landmark digital copyright law, over the vehement objections of the copyright owners.

But that neutrality is breaking down, as communications companies align themselves more explicitly with movie studios, record labels and other copyright holders.

You've got Time Warner The most dramatic example of that shift is the pending merger of America Online and Time Warner. The joint company will have more Internet subscribers than any other Internet service provider, as well as the ability to offer them all of the content produced by Time Warner's music, film and entertainment divisions.

For this reason, Time Warner's disbelief when it learned that America Online employees had created Gnutella, one of the most potent piracy tools on the Net, was particularly acute.

Such paradoxes are not exclusive to AOL Time Warner. AT&T, too, has had a mixed relationship with the content business.

The communications giant created the a2b digital music division and, in the two years since striking a deal to take over TCI, has refashioned itself as a cable TV conglomerate, with a financial stake in dozens of production studios.

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A giant awakens But the execution of its cable strategy at times seems unclear. For example, as it plans to offer video-on-demand services, AT&T is also pushing its cable Internet affiliate Excite@Home away from content.

Among the Baby Bells, US West is probably the most advanced, offering video on demand and a cable TV-like service on telephone lines as it cuts content deals with entertainment companies. Other local phone companies are also moving along this path, if more slowly.

Yet none of this means that the communications companies will suddenly start rooting out the pirates using their networks. Firms large and small are unanimous in saying they don't want to be in the business of policing customer email, newsgroups or other online communications.

Still, there may be other ways they can diminish the effect of piracy and boost their own role as content players in the process.

"Our content providers are our partners," said Audrey Thomson of US West. "If they were to come to us and ask us to do something, as long as it's legal we obviously would consider it."

What form this "something" would take is still up in the air. Most major These are infrastructure plays. These things give the platform flexibility. studios and record companies have barely made forays into the digital age, much less worked out complicated distribution deals with the communications giants. But some smaller, tech-savvy companies are already serving as middlemen for the studios, and they say that dealing with the network companies can be a critical part of the anti-piracy effort.

"You have to have strong security in place all the way down to the PC or the set-top box," said Taplin of Intertainer, which works with US West and other carriers for video services. "That's a level of security beyond just putting things on the public Internet."

The communications companies also have the ability to place their partners' content in locations that are physically close to individual consumers or even download it in advance to designated TV set-top boxes or PCs. That potentially improves the quality of service and almost certainly the speed of downloads, making pirated alternatives less attractive.

Because these businesses are still in their early stages, the communications companies have barely begun to weigh the issue of piracy as a threat to their own services.

Time Warner may be further along than most since the AOL merger and the wake-up call provided by Gnutella. Companies that don't have a background in content have not yet approached the issue in any concerted way, sources say.

"I don't think it's a topic that has received a good deal of contemplation," said one recently departed Baby Bell senior executive.

Whatever the outcome of the Napster-related controversies, the networks and their high-speed connections will be needed by those on both sides--whether it be copyright-holding content companies or individuals using Gnutella to share their files.

That translates into profits for the AT&Ts and Bell Atlantics of the world, regardless of whether they're making money with their own content services. The unique position in some ways lessens the urgency in addressing piracy issues for the carriers, whose high-speed technologies give them far more business options than other industries--some of which have nothing to do with entertainment.

"These are infrastructure plays. These things give the platform flexibility," said the former Bell executive. "If it's not music videos tomorrow, then maybe it will be video monitoring of the home."

Go to: Games may point to future 

 
Q&A (continued)
If I download unauthorized works and later delete them from my hard drive, can I still be held liable for infringement?
The copying is the act of infringement, so even if the works are later deleted, you could still be liable for copyright infringement. If you are arguing that your use is a "fair use" (e.g., "I only made a copy to write a review of one song") your argument might be strengthened somewhat if the work was promptly deleted after the "fair use."

Does a copyright holder have to provide any warning before seeking damages for infringement in court?
No. The only pre-suit requirement is that the work be registered with the Copyright Office. (It is likely that many, if not most, commercial sound recordings are already registered.) Nevertheless, copyright owners often will send a "cease and desist" letter before suing. It is more cost-effective if the purpose is to stop ongoing infringement, and it allows the copyright holder to allege willful infringement if you disregard the warning.

Can I be singled out for legal action even if I'm just one person among many using the software?
Yes. There is no legal argument that would provide a defense on the basis that other people are also infringing but are not being sued. However, as a practical matter, the odds are in your favor.

Are different file-sharing technologies (IRC, FTP, Napster) treated differently for copyright purposes?
The unauthorized copying or distribution of copyrighted works is an infringement regardless of which technology is used (unless the technology is a "digital audio recording device" under the AHRA).

Note: Jennison and Opsahl warn that anyone seeking legal advice should contact an attorney, and that answers dealing with any specific case could change with the facts of that case.

News.com's John Borland contributed to this report.

Add a Comment (Log in or register)
by ceacabato September 1, 2009 4:18 PM PDT
i'm sorry, i still i don't understand this napster thing. maybe in the future if i'm well informed
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