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Testing Copyright Limits

Grouper's creators say it's not like other file-sharing programs. The entertainment industry isn't so sure.

April 12, 2005|Jon Healey | Times Staff Writer

Jennifer Urban, a law professor at USC, wanted to watch home movies of her 7-month-old nephew Peter in England, but nothing seemed to work. The videotapes and DVDs were in the wrong format, and the digital movie files were too big to e-mail.

Then Urban hit on a software program called Grouper. And in addition to movies of her nephew, Grouper offers Urban, who specializes in copyright law, insight into how technology is testing the boundaries of copyright in a digital age.

Like Kazaa and other popular file-sharing programs, Grouper allows Urban to copy movies and pictures of young Peter directly from her brother and sister-in-law's computer without worrying about formats or oversized e-mail attachments. Unlike those global networks with millions of users, though, Grouper also lets Urban pick and choose with whom she shares online -- and sets a strict limit of 30 people per group.

"I'm very attracted to the privacy afforded by having a private group protected by encryption, particularly for sharing letters, family photos, movies, etc.," Urban said. "This isn't the case with other peer-to-peer networks."

For The Record
Los Angeles Times Thursday April 14, 2005 Home Edition Main News Part A Page 2 National Desk 1 inches; 51 words Type of Material: Correction
Grouper program -- An article in Tuesday's Business section about the Grouper file-sharing software misquoted Jennifer Urban, a law professor at USC. Urban talked about wanting to download a copy of a home video from her in-laws in England and was quoted saying, "That's non-profit-infringing." In fact, she said, "That's non-infringing."

What makes Grouper troubling to some entertainment industry executives are the other things people can do with it. For example, the program lets people copy bootlegged Hollywood movies and listen to songs on one another's computers, all without paying a dime to the studios, artists or songwriters.

Grouper Network Inc.'s founders, Josh Felser and Dave Samuel, say the built-in limits of their peer-to-peer software make it a poor substitute for more controversial file-sharing programs such as Kazaa and Grokster, which are hotbeds for piracy. In addition to limiting the size and accessibility of groups, they say, their program requires songs to be streamed -- that is, played through the Internet -- not downloaded.

Those limits may not add up to a legal service, argues Nicolas Firth, chairman of BMG Music Publishing Worldwide.

"I'm not so sure that I see a big distinction between this and, say, Grokster because you're at 30 people," Firth said. "Where are you going to draw the line at what constitutes unlicensed use of copyrighted music?"

Firth's question has no clear answer yet, copyright experts say. Nor have the courts settled many issues surrounding streaming, such as whether streaming a song to a private group online violates a songwriter's copyright over "public performance."

This murkiness has opened the door for Internet entrepreneurs like Felser and Samuel to test the limits of copyrights.

Their innovation supplies a steady stream of new ways to access, use, store and copy digital goods, raising a succession of unanswered questions about how laws from the era of turntables and tape recorders apply to a digital age when virtually every device can connect to and share with other devices.

The Supreme Court is expected to clear up a few knotty issues later this year when it issues a ruling in the major studios and record companies' lawsuit against Grokster and StreamCast Networks Inc., the company behind the Morpheus file-sharing software. Although that ruling probably will affect a variety of technologies that can be used both for legal copying and piracy, its most direct effect will be on file-sharing programs that enable people to download whatever they please from an unlimited number of anonymous people online.

Grouper, by contrast, is part of an emerging trend in the file-sharing world to let people swap digital goods with a limited audience of invited guests. Even if the justices rule against Grokster and StreamCast, their decision will not necessarily affect these more constrained approaches.

And Mill Valley, Calif.-based Grouper is just one of many new faces in the ever-evolving world of file sharing. Like water behind a dam, technological innovation continually flows through the cracks in the legal shield erected around copyrighted works.

Felser and Samuel's previous effort had been San Francisco-based Spinner.com, a pioneering online radio outlet. The pair sold Spinner to America Online in 1999 for $320 million worth of AOL stock. They continued working for AOL for a year or two before dropping out of the high-tech world -- Felser said he thought about buying a carwash, and Samuel got into the high-end toilet business.

They got back into the software business a few years later, Felser said, because they kept running into problems similar to professor Urban's.

The last straw came in 2003 when Felser returned to the Burning Man festival, an annual party for artists and others in the Nevada desert east of Reno.

"I couldn't share all the video clips I had with my friends," said Felser, an annual Burning Man pilgrim whose festival nickname is "the Frog Prince."

The two set about developing a way to link people's hard drives into private groups. The idea was to let people use the Internet to show off their homemade goods and music collections, just as they might do in their own homes.

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