Government should watch out for digital-rights issue
Shawn P. McCarthy
Late last month, the White House appointed E. Floyd Kvamme, a venture capitalist at Kleiner Perkins Caufield & Byers, to co-chair the president's Council of Advisers on Science and Technology.
Let's hope one of the first things Kvamme tackles is the controversy over digital rights and the growing influence of file-sharing systems such as Gnutella and Scour, which are more powerful and harder to regulate than Napster.
Kvamme ought to act as a referee rather than as an advocate for an official solution. Many people are urging the government to step in with a digital rights management standard for data sharing. That's wrong. The matter must be resolved through industry cooperation in reaction to the marketplace.
Congress and the National Institute of Standards and Technology should not set standards to guide the digital economy. Yes, they should help. No, they should not set the terms, despite pressure from the recording industry and software publishers.
To copyright holders, it's important to have some type of digital rights standard so that violations become easier to detect and enforce. Our multiple standards for everything from encryption to secure transactions make it too difficult to detect violations. For example, are digitally protected files set for read-once? For copy-once? For internal distribution only? How would the FBI, or any other agency, know the rules for a specific file?
Even federal offices that strictly follow software licensing agreements can by accident violate the terms by improperly sharing or downloading software.
Setting digital-rights standards to prevent piracy throws a technology solution at a legal matter. In some ways, the very presence of standards has enhanced users' ability to pirate software and data. Napster works because its users share information in a standard way. The same standards could apply to monitoring the traffic. But rights management standards should be set by industries reacting to market needs, not simply imposed by government.
What works best is standard-setting by an industry consortium with government support. Such groups have an interest in adapting to new technologies as they appear, which a regulatory entity finds hard to do.
The real problem remains enforcement. Even if an industry standard existed, how could the government ever dictate that only properly encrypted and licensed files could be shared on Gnutella? And would that make it illegal to share untagged, public-domain files?
The dilemma facing Kvamme is what the government's involvement should be, and what value it can add to the debate, outside an enforcement role. The debate extends to financing the enforcement.
Will a prolonged debate jeopardize the economy? If so, government should accelerate the debate and the decisions. If not, let the market decide while the government works on ways to monitor illegal traffic. Industry buy-in is important.
If enforcement is needed, what should the government do? It's easy enough to find pirated software and files on Gnutella. I recently watched a librarian snag the full text of a Harry Potter book just to show it was available. The government already deals with complex traffic in illegal goods, so it should be able to monitor file-sharing systems to see where files came from, and then to trace the owners of those IP addresses.
Yes, there is a risk of accusing some people of illegal trafficking when they only served as pass-through points. But a few properly conducted prosecutions could slow the illegal part of the data traffic to a trickle.
Most important, the government must make sure it isn't violating individual rights. A standard for licensing traffic in shared files could make it very difficult for people to share public-domain data. The time and expense of setting up files to adhere to a specific standard would restrict availability of information.
The Clinton administration undertook no efforts to set standards for the digital economy. It's likely that the Bush administration will follow the same approach, but there's plenty of pressure to do something quickly.
A wise policy adviser will tell the president that technology is one thing, but a matter of law and policy is another. Using one to control the other is a bad precedent, unless there's an urgent public-safety issue at stake.Shawn P. McCarthy designs products for a Web search engine provider. E-mail him at [email protected].