As I write this in late September, MP3.com has just lost a lawsuit filed against it by Universal Music Group, alleging the Web site operator willfully violated music company copyrights. Similar cases concerning Napster and other audio and video download platforms are ongoing. And all of this is bound to have a huge impact on the development of content and information distribution via wireless phones.

That's because many of the same technologies are being added to the wireless catalog while numerous other technological platforms are jumping right to wireless without taking time to stop in the PC world. In fact, copyright infringement lawsuits are already hitting wireless before that content game has hardly even begun. In August 2000, Santa Monica, Calif.-based Global Music Publishing was on the receiving end of a $45 million copyright infringement suit filed by EMI Music Publishing. The EMI suit concerns Global Music's Web site that allows users to download songs for use as ringing tones on their cell phones. The suit, filed in US District Court for the Southern District of New York, alleges that snippets of more than 300 EMI songs used for ring tones violate EMI's copyrights.

And no wonder EMI is so concerned, for the company recently a pact with Nokia, the world's leading mobile telephone manufacturer, enabling EMI's full catalog to be used for custom downloadable ring tones over the Internet via the Club Nokia Web site. Jonathan Channon, EMI's director of film, TV & media, commented: "This deal marks a further development in our new media activities and is the first global initiative of its kind." He added that the Nokia pact, "continues our strategy to expand our business by embracing new technology through business relationships in the new media arena."

The value of the deal was not disclosed, but EMI will license the use of ring tones to Nokia on a non-exclusive worldwide basis. In addition, the companies' press release noted, "It is anticipated that ring tones can also be provided for promotional purposes and hence be sponsored."

It's pretty obvious that all of this potentially adds up to big, big bucks. And where there's money, there's litigation, at least in the United States. Yet ring tones aren't the only wireless content battleground. There's another notable wireless copyright lawsuit going on as well, though this one concerns reformatting Web pages for delivery to handheld phones. Israel-based GoSMS.com has a technology that takes any HTML information and converts it to text for display on a mobile device. The company's Textual Internet Parsing (TIP) technology is a scripting language that lets the necessary script be written to retrieve specific information from a Web site. GoSMS has marketed its technology for use on GSM networks that are capable of two-way communications so users can pull the information as desired.

To provide proof of concept for the technology, which GoSMS wants to sell to operators and others, the company launched beta tests in which it offered wireless phone users access to a variety of information, including articles from leading publishers' Web sites. The service has been tested in Israel, Dusseldorf, Germany, and San Diego.

GoSMS claims these were merely beta tests and not commercial offerings. However, major media players see things differently. On June 28 The New York Times Co., The Washington Post Co., Gannett and the Cable News Network (CNN) unit of Time Warner filed suit in New York federal court charging GoSMS with copyright and trademark violations for what they allege amounts to stealing news from their Web sites. The interesting thing about this particular suit is that GoSMS appears to have been functioning primarily as a pipe, much like an Internet Service Provider, except that the company reformatted text to suit the receiving device. So, does this mean that any company with a technology for manipulating Web-based information for delivery to a non-PC faces lawsuits? Could be.

More to come

Regardless of which side of the fence one sits, it's obvious that existing copyright laws are not fitting comfortably into the digital age. Such difficulties were predicted by futurists such as Alvin and Heidi Toffler, who years ago forecast arguments between "second wave" Industrial Age companies, such as record manufacturers and publishers, and "third wave" Digital Age companies. Second wave companies, they argued, are likely to make proposals and file lawsuits in support of the factory model of mass production while third wave companies seek "to get rid of the factory model altogether and replace it with individualized, customized" products.

I see the battle between second and third wave companies in many of these new media copyright infringement cases. In the MP3.com case, U.S. District Judge Jed S. Rakoff said his ruling was meant to address a "misconception" by Internet companies "that, because their technology is somewhat novel, they are somehow immune from the ordinary applications of laws of the United States, including copyright law.'' The award against MP3.com amounted to well over $118 million and could cost the defendant $3.6 billion. And this award came even though the plaintiff in the suit never specified how it lost money because of MP3.com's infringements. As such, the ruling reeks of a backlash against technology rather than a real strike against what is being termed copyright infringement.

This spate of copyright lawsuits could certainly threaten the development of new technologies. Napster, which is being sued by the Recording Industry Association of America, has argued that the decision in its case holds major consequences for the development of all emerging communications technologies. "Every new technology used to transmit, route, or exchange data subject to the copyright laws using the Internet - and many existing technologies - will be affected," according to a Napster court brief.

Similarly, if sites using sharing technology are required to scrutinize the legality of every peer computer listed on their search engines, then traditional search engines such as Yahoo! and Lycos should ostensibly have to do the same for the millions of Web sites that they list. If that is so, then mobile portals and mobile search engines will also face the same legal issues when distributing any kind of Web-based information to mobile phones.

The effect of these copyright lawsuits also threatens non-content companies. Love them or hate them, there is no doubt that Napster and related downloading platforms have spurred unprecedented growth in the deployment of cable modems and DSL lines to subscribers who want fast access to such services. Similarly, the popularity of such downloading services could subsequently aid the demand for high-speed wireless access technologies such as EDGE (for TDMA- and GSM-based wireless networks) and 1XRTT (for CDMA-based networks). Network infrastructure vendors are counting on sales of those new platforms, as well as broadband third-generation technologies such as Wideband CDMA. And handset manufacturers have built their future business plans around the idea that people will want compatible handsets for high-speed Internet access.

Meanwhile, the scores of software development kits being issued by vendors in the wireless arena and the growing number of applications developer conferences show how urgently content and applications are needed in order to spur adoption of new wireless data technologies. The search for killer applications is the driving force behind many wireless Internet startups and the varied technology approaches they expound. But no content, no need for high-speed data access. It's as simple as that. And who needs an MP3-downloadable wireless phone, such as the one Samsung showed at Telecom 99 in Geneva last autumn, if the MP3 content available is severely restricted?

There are no easy answers, especially on such a divisive issue as copyright ownership. But cool heads that can devise new business models to suit the emerging digital age are needed a lot more than knee-jerk lawsuits that hinder, rather than help, the spread of new technologies. I'm convinced all of the players can win in this game, but only if they stop going for one another's jugulars.

WAP in the face

This is another tricky intellectual property rights issue where hot tempers are threatening wireless Internet development. And the continued deployment of WAP, which has not exactly caught on in the United States or worldwide despite concerted efforts by operators and vendors, is certainly not being aided by all of this bickering. One can only hope that cooler heads will prevail. -