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Digital Rights and Wrongs

Spatafore now warns people in newsgroups that they risk a visit from the FBI if they continue to download movies illegally. But few take heed. "I tell them, look, if you keep doing this you could go to jail," he says. "But there's thousands of them, and they hear there's this one guy in Phoenix who got busted. It doesn't mean much to them."

Woiwode and Nadel are working on other cases. But critics say that the deterrence effect of criminal prosecutions will be minimal. Faced with the proliferation of decryption software, the rollout of broadband, and a worldwide army of teenager hackers, the entertainment industry will not be able to solve its problems through law enforcement, they say.

David Anderman puts his faith in digital rights management tools to create a secure environment for the online exhibition of movies. But Bennett Lincoff, senior counsel at New York law firm Darby and Darby, believes that DRM is only half the picture. Companies with business models based entirely on digital media secured through lock-down technology will lose, he argued in a paper for the National Law Journal last October. While the paper addressed the music industry, Lincoff says that the principle will apply equally to the movie industry as bandwidth increases. Entertainment companies should create a collective rights management system, he says, bundling their individual rights together into an online transmission right. "This would free the industry from pursuit of unbreakable encryption," writes Lincoff, "allowing it to focus instead on watermarking and tracking technologies."

One radical view is that the copyright should be abandoned altogether as untenable in the digital age. Songwriter John Perry Barlow and technology pundit Esther Dyson have argued that content producers will ultimately make their money from merchandising and other ancillary services, rather than from the works themselves.

Professor Lawrence Lessig of Stanford Law School does not go quite as far, but argues that a culture of innovation depends on liberal interpretations of copyright law. He worries that the momentum in online copyright law toward greater controls for content owners will restrict legitimate creative work. "Art is always recombination," he says. "I don't think people should be allowed to steal content, but say an artist wanted to use some clips from a Clint Eastwood movie and put them together in a new way, I think she should be allowed to do that on the basis of fair use."

Park Wars

Lucasfilm has trod carefully along the line between tolerating fair use and stamping hard on copyright infringement. In October, filmmaker Ayaz Asif contacted Stephen Sansweet, Lucasfilm director of fan film relations, about "Park Wars" (www.parkwars.com), a non-commercial fan spoof featuring South Park characters and original audio lifted directly from "The Phantom Menace". Sansweet advised against using large amounts of original audio and the film was reduced from 64 minutes to 11. But Lucas himself is reported to have enjoyed the spoof, which comments playfully on the copyright issues resulting from the parody. Lucasfilm endorsed the concept of fan films in the shape of the Official Star Wars Fan Film Network at atomshockwave.com, and turned a blind eye to Troops (theforce.net/troops), Kevin Rubio's 1997 parody of television cop shows featuring Storm Troopers and other copyright-protected elements of the Lucasfilm franchise.

There's a clear difference between creative projects such as Park Wars and the straightforward infringement of Jason Spatafore. The FBI wants other potential copyright infringers to recognize that difference, and the risk of ignoring it. "I hope that what comes of this case is people realize this really is a crime," says the FBI's Chris Pluhar. More prosecutions will happen, and they may have some deterrence effect on large-scale commercial piracy. But the wider debate about digital copyright law has only just begun.

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