COPY RITES

As wireless networking technology advances, it seeks to overcome two hurdles: bandwidth and security. And as wireless bandwidth continues to grow, we can expect an increased use of wireless networks for all purposes, including file sharing — and, as a result, increasing attention by the courts to copyright issues.

Historically, security and protection of privacy have lagged behind increased network usage, and the wireless environment is no different. Individuals armed with 802.11b antennas can troll past likely locations for wireless networks, some of which don't even have their relatively primitive native encryption turned on. One can easily imagine a scenario in which a person makes third-party copyrighted material available over a wireless network that uses no encryption for anybody within range to download.

Copyright law, reflecting amendments from the Digital Millennium Copyright Act (DMCA), is fairly well equipped to handle this scenario. One who knowingly and without permission distributes copyrighted material risks being found liable for copyright infringement. Yet there are other instances that do not involve infringement because the copyright owners have given their consent to distribution of the material. (This is already happening with offerings that use WAP and faster 2.5G protocols such as GPRS and cdma2000.)

The greater the bandwidth, the greater the incentive to mobile customers to access material formerly available only over wired Internet connections. Thus, more bandwidth can mean more customers for content providers. On the other hand, content providers do not have an incentive to fill the bandwidth void unless there is security. If content can be passed around willy-nilly, the lack of security will discourage content providers because they lack a mechanism to get paid for their offerings.

It is, in many cases, not enough to say that distributing content without proper consent is a copyright violation — there must be a process in place that provides an obstacle to unauthorized distribution of material. Existing copyright laws (as amended by the DMCA) include prohibitions against circumventing technological measures to protect against unauthorized use of copyrighted material. Although these laws have met their share of criticism, they have broad applicability within a wireless context.

As more content is made available to wireless users, such prohibitions will be a major factor in giving comfort to copyright owners that their creative efforts — an important catalyst to the future success of the mobile Internet — will not go unrewarded.

DOSSIER BRUCE SUNSTEIN

Occupation: Founding partner, intellectual property law firm Bromberg & Sunstein

Place of residence: Boston

Current reading: Mysteries by Maurice Leblanc featuring the hero Arsene Lupin

Favorite Web site: www.nytimes.com

Next project: A presentation on protection of trademark rights for pharmaceutical companies