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Copyright overreach

KAZAA AND other computer file-sharing services that encourage copyright violations ought to be banned or strictly regulated, but their illegalities are no reason to discourage technologies that allow consumers to enjoy material in ways that do not harm copyright holders.A Senate bill that seeks to prohibit any activity that "intentionally induces" violations goes too far.

The bill, cosponsored by Senator Orrin Hatch, chairman of the Judiciary Committee, and Patrick Leahy of Vermont, the panel's senior Democrat, enjoys wide, bipartisan support. But it is written so broadly that any technological breakthrough could be declared illegal as long as the inventor knew that the product was liable to copyright misuse. By that standard, the Sony Corp. could have violated the law when it sold its first Betamax video recorder in the 1970s. Yet under the "fair use" standard, the Supreme Court ruled in 1984 that Sony was blameless because a chief purpose of Betamax was to allow consumers to time-shift television programs for later viewing, an innocuous use that does not infringe on copyrights.

The bill would include a section that reaffirms the "doctrines of vicarious and contributory liability," which is supposed to protect the Betamaxes of the future. The language of the rest of the bill is so broad, however, that it invites litigation that could be debilitating for small companies.

The impetus for this bill is a decision by US District Judge Stephen Wilson in California last year. Relying on the Betamax case, he ruled that the file-sharing services Kazaa and Grokster could not be held liable for copyright violations because their services could be used for legal purposes as well. Movie and record companies have appealed the ruling to the Court of Appeals for the Ninth Circuit, which has upheld another judge's decision against Napster, the first successful file-sharing service. Consideration of the Hatch bill would be premature until the court acts on the Grokster-Kazaa case.

Wilson also ruled in favor of Kazaa because the technology is looser than Napster's, which relied on centralized computers to shift a user's request for a particular song, almost always under copyright. The intent of Kazaa and Grokster is the same as Napster: to make money through the facilitation of illegal file-sharing. The appeals court ought to rule in favor of the plaintiffs.

If the court does not, legislation will be in order to target companies like Kazaa, whose chief reason for existence is to facilitate copyright violations. It should explicitly uphold the Betamax decision. Hatch and Leahy, after hearing critics of the legislation testify last month, suggested that they were amenable to compromise. Whatever they propose should not use copyright law to throttle innovation. 

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