See correction below
WASHINGTON - The chairman of a U.S. House of Representatives subcommittee focused on the Internet and intellectual property
said he is reluctant to create new laws protecting copyrights online.
But Representative Lamar Smith, chairman of the House Subcommittee on Courts, the Internet and Intellectual Property, also
criticized Internet users who swap music files online and university officials who have been slow, he said, to punish students
who download music from file-sharing services. He suggested music downloaders should be subject to existing laws, instead
of Congress creating new ones.
"I believe existing copyright law is adequate," Smith said. "It simply needs to be enforced."
Smith spoke Tuesday at a day-long conference, "Promoting Markets in Creativity: Copyright in the Internet Age," sponsored
by conservative think tank The Progress and Freedom Foundation. He advocated music downloaders be punished for their actions,
but said he was skeptical of the effect of more laws on curbing file sharing.
"This process begins with education and ends with disciplinary action," said Smith, a Texas Republican. "(New laws) are hard
to write, easy to ignore, and hard to repeal if unintended consequences harm the marketplace."
As recently as late 2002, Congress was considering a bill that would allow groups like the Recording Industry Association
of America (RIAA) to disable PCs used for unauthorized file trading. The RIAA and Motion Picture Association of America applauded
the bill as one way for them to fight unauthorized file trading. That bill stalled in the House, and Smith didn't mention
any legislation by name in his Tuesday speech.
Earlier in the conference, a panel of lawyers and economists debated whether lawmakers should carve out a special place in
copyright law for the Internet. Edmund Kitch, a law professor at the University of Virginia, argued that copyrighted works
should have the same protections on the Internet as they have elsewhere, despite arguments from some Internet users and academics
that copyright shouldn't apply online.
Kitch noted that the 1976 Copyright Act anticipated future technologies that could distribute copyrighted materials and built-in
copyright protections under any new technologies. He argued against file traders and others who would argue that works released
on the Internet are in the public domain.
"Works on the Internet are subject to copyright," Kitch said. "This means that today in America that those who advocate an
absence of copyright ... are the ones who must go to Congress and get a revision of the statute. It's the infringers who need
to get out (of the current copyright law), not the copyright owners who need to get the technology in."
Kitch said current copyright law has problems with being enforced, but he predicted copyright holders would find a way to
control the Internet.
"The idea, articulated in various ways is ... the Internet is this wild zone of freedom and autonomy where anarchy reigns,"
he said. "I have what is perhaps a minority view. The Internet, it seems to me, is one of the most natural environments for
enforcement of law that ever existed. It's a centralized electronic system which has its own systems of keeping a historic
record."
But Michael Einhorn, author of an upcoming book on copyright and senior advisor to intellectual property consultant InteCap,
disagreed with Kitch, saying the Internet should be treated differently in copyright law because it has given rise to new
ways of using copyright, including the open source software approach of sharing computer code.
"The Internet has changed everything," he said. "We have a new way of making contributions, the Internet enables, and copyright
law is part of it."
The Digital Millennium Copyright Act (DMCA), the reigning Internet copyright law in the U.S., went too far, he suggested,
in outlawing all technologies that circumvent copy controls, without also putting in place a mechanism for administrative
review. While Einhorn did not endorse present proposals in the U.S. that would immediately legalize any circumvention devices,
he questioned why the U.S. Copyright Office doesn't have authority from Congress to review the antitrafficking clause through
public hearings, and to recommend possible changes in the law that could subsequently be legislated.
"In the past what we basically did was say, 'Look, there are some technologies that can be used for copying, but we understand
there are some good reasons for it, and we generally will side with the new technology,'" he said. "For the first time, the
DMCA says, 'We understand there are technologies out there that can be used for very good purposes, but we still must keep
them illegal to make sure they're not used for the worse purposes.'"
Einhorn didn't defend online music swapping, saying he supported the courts that shut down Napster in 2000. But after the
DMCA was passed in 1998, "there's no checks and balances on the system," he said.
Society may have to draw new lines, Einhorn said, and decide whether posting one copyrighted newspaper article to a different
Web site so readers can comment on it is a copyright violation. "What are the rules we should put in place properly?" he asked.
"In our appreciation and understanding of the capacity of the Internet ... to increase the possibility of cultural interaction,
we have a whole new way of thinking."
Correction
In this article, it was not originally clarified that author Michael Einhorn is opposed to present proposals in the U.S. that
would immediately legalize any copy circumvention devices.
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