[FYI] Is Litigation The Best Way To Tame New Technology?

["Axel H Horns" <horns@ipjur.com>]

http://www.nytimes.com/library/tech/00/09/biztech/articles/02napster.h
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Is Litigation The Best Way To Tame New Technology?  

By ADAM LIPTAK  

"The growing and dangerous intrusion of this new technology," Jack 
Valenti said, threatens an entire industry's "economic vitality and 
future security." Mr. Valenti, the president of the Motion Picture 
Association of America, was testifying before the House Judiciary 
Committee, and he was ready for a rhetorical rumble. The new 
technology, he said, "is to the American film producer and the 
American public as the Boston Strangler is to the woman alone."  

It was 1982, and he was talking about videocassette recorders.  

But the woman in this instance survived, and even flourished. "It is 
fair to say," declared Charles S. Sims, a lawyer at Proskauer Rose 
who represents the industry in Internet-related litigations, "that as 
things worked out, the studios did not lose control of their 
products" through home taping on VCR's.  

Indeed, video rental income now rivals box-office receipts.  

Still, adaptation was not the industry's first response to the new 
technology. Its first response was to sue.  

[...]

Lawrence Lessig, a law professor at Stanford and the author of "Code 
and Other Laws of Cyberspace," also questioned the wisdom of a rush 
to judicial judgment. He told Judge Patel in a report filed at 
Napster's request that the record companies' "apparent aim is to use 
the law to fit the Internet into their traditional business model." 
Mr. Lessig urged the court to act cautiously before attempting 
"judicial regulation on net architecture."  

There are other problems as well. Napster, like the VCR manufacturers 
before it, is accused of "contributory infringement," a concept 
invented by judges as a sort of short cut. It allows a single suit 
against a central facilitator rather than thousands of suits against 
individual infringers.  

"It's almost like a class action," Mr. Post said.  

And as in class actions, he went on, courts should be concerned about 
the interests of those not before the court. In the Napster case 
these absent voices include people who merely retrieve from remote 
locations music they already own, musicians who welcome the 
opportunity to distribute their work and even copyright holders who 
think that sampling will encourage buying.  

"The other thing about litigation is that the future is not present 
either," he said. "The courts are inherently retrospective 
institutions."  

If nothing else, he continued, this much is clear about the future: 
"The people who will make money are not those saying, 'You're 
infringing my technology.' The people making money here are those 
thinking, 'This is a really neat idea.' "  

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