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Is Litigation The Best Way To Tame New Technology?

http://www.nytimes.com/library/tech/00/09/biztech/articles/02napster.html

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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