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Congress should clarify
rules for Net usage

THE ISSUE The U.S. Supreme Court has issued two controversial rulings on use of the Internet.

TWO decisions at the close of the U.S. Supreme Court's most recent session are causing concern that the Internet is losing some of its freedom. One of the rulings gives needed protection against the theft of copyrighted movies and music, but the other decision threatens to reduce competition among companies providing high-speed Internet access. Both rulings arose from fuzzy laws that Congress needs to clarify.

Senate Commerce Committee Chairman Ted Stevens, R-Alaska, and Senator Inouye, the committee's ranking Democrat, promptly issued a joint statement promising to review the high court's decisions. The statement rightly focuses on the ruling that could stifle competition in providing Internet access.

By a 6-3 vote on Monday, the Supreme Court ruled that cable television operators are not required to allow rivals to offer high-speed Internet access over their systems. The Federal Communications Commission has forced telephone companies to share their pipes for broadband service called DSL, for digital subscriber lines, but the court suggested the FCC could reconsider that policy.

Providers of dial-up Internet service, such as America Online and Earthlink, have been denied entry into cable systems, the most widespread broadband service. Maintaining that roadblock and extending it to telephone companies could be devastating.

Stevens and Inouye said they will review the court decision's effect on a variety of aspects of the nation's communications system. The review will be aimed at considering changes to "preserve competition and protect the interests of consumers."

The two senators said they also would look at the ruling, issued the same day, reinstating a copyright-infringement lawsuit against two file-sharing services, Grokster and StreamCast Networks. Two lower courts in California had dismissed a lawsuit brought against the companies by MGM Studios, the Recording Industry Association of America, a class of music publishers and songwriters, and others.

Justice David H. Souter wrote in the high court's unanimous decision that the record showed "infringement on a gigantic scale." The two companies had blithely relied on the court's 1984 ruling that shielded Sony from copyright liability for its 1970s Betamax video cassette recorder.

Souter pointed out that the VCR was "capable of substantial noninfringing uses," such as a home user recording a program for later viewing, and Sony never suggested its improper use. In contrast, Grokster and StreamCast "acted with a purpose to cause copyright violations" by instructing users how to download copyrighted music or movies.

The ruling leaves the question of what level of a wink and a nudge can be considered to constitute what Souter called "affirmative steps taken to foster infringement" of copyrights by savvy computer users. That law might need congressional refinement.

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