Anti-Piracy File Sharing Bill Goes To The House

A bill sent to congress Thursday morning is expected to send shockwaves through the peer-to-peer file sharing community.

Sponsored by Reps. Howard Berman (D-Calif.), who represents parts of Hollywood, and Howard Coble (R-N.C.), Coble, Lamar Smith (R-TX), and Robert Wexler (D-FL), the bill lets songwriters, photographers, film producers, karaoke tape makers and other copyright owners take the law into their own hands without facing legal repercussions.

The main focus of the bill is a safe harbor from liability under state or federal law when a copyright owner tries to prevent the unauthorized distribution of his or her work when it is publicly available on a P2P network.

The bill allows for the use of interdiction including redirection, decoys, spoofing and file blocking to protect files.

“Billions of P2P downloads every month constitute copyright infringements for which these creators and owners receive no compensation. There is no excuse or justification for this piracy. Theft is theft, whether it is shoplifting a CD in a record store, or illegally downloading a song from Morpheus.”

However, the bill does not allow for the removal of files or data from a P2P user’s computer, nor does it call for the corruption of files or data on a P2P user’s or an Internet service provider’s (ISP) computer, or any other actions that would damage a computer file or data.

The proposal also calls for copyright owners to alert the Justice Department as to their method of fighting back before taking action. In that way, the bill calls for the Justice Department and the Attorney General to become the so-called watchdog over the anti-P2P tactics, allowing agents to keep tabs on illegal P2P activity.

Critics have called the bill nothing short of vigilantism.

“This is not a serviceable solution,” said Fred von Lohmann, a Senior Intellectual Property Attorney for the Electronic Frontier Foundation (EFF). “If this bill passes, we’re going to see lots of mischief gumming up the works and chaos between people who want to share files.

While, civil liberties organization like San Francisco-based EFF, say they applaud Berman’s bill on the basis that it legitimizes P2P as a viable economic force, Lohmann says the bill is too broad when it comes to identifying what constitutes a copyright holder.

“While this of course applies to the larger companies like Disney, the bill’s definition could mean anyone who has posted on a newsgroup,” said Lohmann.

He is also a bit concerned over the usage of the phrase, “does not permanently route all file or data inquiries or searches through a designated, central computer located in the United States,” in the bill’s text.

While the wording addresses overseas pirating, Lohmann says that phrase has AOL and its Instant messaging platform written all over it.

“They are the only Instant Messaging platform that I know that works from servers located in America,” he said.

Lohmann said the bill also gives very little legal recourse for P2P users who may have been wronged. He said the best they can do is to appeal to the Attorney General.

While Berman concedes that no legislation can eradicate the problem of peer-to-peer piracy, removing the unintended legal constraints on technologies might help deal with the problem.

“I am a big fan of P2P networks and the technology behind them,” Berman said “However, it should remain the creator’s choice to distribute their works through a P2P network, not a pirate’s. P2P piracy must be cleaned up, and cleaned up now.”

The bill, which Berman hopes to have sent to the Senate by the end of the year, creates a new Section 514 in Title 17 of the United States Code entitled “Remedies for Infringement: Use of Technologies to Prevent Infringement of Copyrighted Works on Peer to Peer Computer Networks.”

The proposed bill comes on the heels of other copyright protection legislation such as the Consumer Broadband and Digital Television Promotion Act proposed by Sen. Ernest “Fritz” Hollings (D-S.C.)

P2P Clean up

Most people agree that P2P piracy must be cleaned up. The question is how.

Currently, technology companies, copyright owners, and Congress are all working to develop security standards, loosely termed digital rights management (DRM) solutions, to protect copyrighted works from unauthorized reproduction, performance, and distribution.

While the development and deployment of DRM solutions should be encouraged, Berman said they do not represent a complete solution to piracy.

“DRM solutions will never be foolproof, and as each new generation of DRM solutions is cracked, the newly-unprotected copyrighted works will leak onto P2P networks,” said Berman. “Similarly, copyrighted works cannot always be protected by DRM solutions, as they may be stolen prior to protection or when performed in the clear – for instance, when a movie is copied from the projection booth.”

Hence the rash of summer blockbusters like Spiderman or Star Wars: Attack of the Clones that made the file sharing rounds days before their theatrical releases.

Shutting down all P2P systems has been difficult if not impossible. While the 9th Circuit could shut Napster down because it utilized a central directory and centralized servers, the new P2P networks have engineered around that model by incorporating varying levels of decentralization.

As important, P2P represents an efficient method of information transfer and supports a variety of legitimate business models. Removal of all P2P networks would stifle innovation. P2P networks must be cleaned up, not cleared out.

Which is why Berman and the other congressmen worded the bill to take what they call a more “holistic” approach.

“We’ve been extremely careful to ensure that copyright owners have strong incentives to use self-help technologies carefully,” said Berman. “If copyright owners stray outside the cautiously crafted confines of the safe harbor, the full range of current legal remedies are available against them. Further, if the copyright owner egregiously misuses self-help technologies, the bill gives affected file traders a new, additional cause of action, and gives federal prosecutors new ability to seek an injunction.”

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