The Intellectual Property Issue

Up on Downloading

HLS professors propose solutions to music industry crisis

Its revenues devastated by illegal music downloading and copying, the music industry is struggling with a full-blown crisis. On that, a trio of colleagues at HLS's Berkman Center for Internet & Society agree.

But what to do? That's where the three HLS professors--William "Terry" Fisher III '82, Charles Nesson '63 and Jonathan Zittrain '95--part ways. And, as they debate and challenge proposed solutions, the increasingly beleaguered entertainment industry is watching them closely.

William Fisher
Professor William Fisher III '82 writes about solutions to the music downloading crisis in his forthcoming book, "Promises to Keep: Technology, Law, and the Future of Entertainment."

"People are desperate for answers and thinking on this," says Zittrain. Adds Fisher, "Almost all of the players in the recorded music industry sense their business is coming apart at the seams. The film industry--a much larger industry--wants to avoid the same fate." Consumers, artists and technology manufacturers also have much to lose. "There are a lot of people with something at stake in figuring out a solution," Fisher says.

For that reason, the proposals emerging from the Berkman Center are attracting enormous interest. A conference in September sponsored by the center drew representatives from Microsoft and Intel, among others. In November, Nesson and Fisher met in Los Angeles with executives from a number of movie studios as well as the head of the Recording Industry Association of America. In April, Nesson hosted a conference at HLS, which included a select group of scholars, artists, engineers, lawyers and businesspeople. And the proposals in Fisher's forthcoming book, "Promises to Keep: Technology, Law, and the Future of Entertainment," which is excerpted on his Web site and slated for publication in August, have already received significant notice in The Wall Street Journal, The New York Times, Los Angeles Times and The Economist, as well as various online journals.

"It's gotten a lot more attention than anything [else] I've written," he says.

So what exactly are their suggestions for solving the piracy problem? Fisher offers a radical plan that would replace the copyright system with a government-administered compensation plan, funded by a tax on hardware and other systems used to play digital music. Downloading and copying would be legal, but artists and producers would still make money. Nesson's model, which he calls "Speed Bumps," tries to improve the legal commercial market by making downloading cheap and attractive while diminishing the quality of illegal downloading. Zittrain isn't proposing a solution of his own but has worked with the other two to hone their proposals.

"At the core," Zittrain says, "Terry's and Charlie's ideas meet--both anticipate a situation where people are paying money on a bulk subscription model." While Fisher's model embeds these fees within Internet service provider subscriptions, blank CD sales and other existing digital expenses, Nesson's would push people into a fee-based system like iTunes by making it more difficult to use peer-to-peer networks. "For straight music consumption, they're really arriving at the same thing," Zittrain says, "though Fisher's plan anticipates that consumers can create their own new works using others' old ones." For his part, Zittrain isn't convinced the status quo is untenable. For one thing, he says, the liability of ISPs for facilitating peer-to-peer transfers is "surprisingly unclear," despite broad statutory immunities, and has yet to be battled out in the courts--something the recording lobby is likely to start pushing soon.

All three agree on this, though: The entertainment industry's favored approach, called "Total Control," should be avoided. At its extremes, Total Control wants to build encryption into hardware that would refuse to run unrecognized or illegal programs. (Indeed, the entertainment industry has even considered such extreme measures as creating viruses that would erase the hard drive of any computer that attempted illegal downloading.)

Not only is there serious skepticism about whether it's technologically possible to prevent piracy, but the approach raises concerns about destroying the openness and flexibility of the Internet. Yet Nesson predicts that Microsoft, for one, will make a huge push for it; moreover, he believes Total Control has a greater likelihood of success than Fisher's tax scheme. In the gap between those two extremes stands Speed Bumps.

"It's actually going to be interesting if the Total Control model looms in a realistic way in the future," Nesson says. "Then I think we may see a lot of movement on the side of those who, at the moment, turn up their noses at Speed Bumps. Suddenly, reforms of the existing system won't seem as bad, I think."

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