Copyright Office Jumps Into P2P Fray

Negotiations over Sen. Orrin Hatch’s peer-to-peer (P2P) legislation are
expected to continue this afternoon when the Senate Judiciary Committee
staff holds a private meeting to consider alternatives to the controversial

The bill would allow P2P networks and others to be
sued for encouraging children and teenagers to commit copyright infringement
via their P2P networks. Some interpretations of the legislation claim the
liability portion of the legislation could be extended to hardware
manufacturers and Internet service providers.

One alternative sure to be on the table Tuesday is a “discussion draft” of a
revision prepared by the U.S. Copyright office attempting to more narrowly
define who could get sued under Hatch’s legislation. The Consumer
Electronics Association (CEA) and the Home Recording Rights Coalition (HRRC)
have also proposed alternatives to the bill.

The CEA/HRRC proposal specifically supports Hatch’s original intent to
single out file-sharing networks for liability while rewriting the language
to exempt hardware manufacturers who make MP3 and other music players.

“Although we note that the Copyright Office has attempted in this discussion
draft to address some of the concerns various stakeholders raised about the
original version of S. 2560, we have upon reflection determined that the
CEA/HRRC language more precisely addresses the issues,” Mike Godwin, legal
director of the digital rights group Public Knowledge, wrote to the
Copyright Office Tuesday.

Godwin said the Copyright Office’s version of the bill suffers from vague
language and being too “broad in scope.” He added that the CEA/HRRC version,
which is still being finalized, would make the legislation more technology

“[The CEA/HRRC proposal] focuses … on those who act with the intent to cause
infringement, and who endeavor to profit from the infringement committed by
others,” Godwin wrote. “By contrast, the Copyright Office discussion draft
appears to us to be much less narrowly crafted.”

Public Knowledge thinks the Copyright Office version would “sweep up
virtually all communications — from e-mail to Web browsers to Internet
routers — then appears to exempt from liability some types of ‘good’

Godwin claims the Copyright Office approach seems to be “backwards,” as it
leads to “over breadth of potential liability even as it departs from the
useful notion of focusing on the potential defendants’ intentions.”

Frustrated over the apparent inability of the P2P companies like Morpheus
and Grokster and copyright holders to work out an equitable music
distribution plan through the file-swapping networks, Hatch introduced in
June his Inducing Infringement of Copyrights Act of 2004.

He further inflamed the situation by saying his bill should go directly to the
Senate floor for a vote without the usual hearing process. He later relented
and held a hearing on the controversial measure in July.

Hatch is a longtime critic of the P2P networks. In 2003, he suggested he
might favor technology that can remotely destroy the computers of those who
illegally download music from the Internet. The proposal was never acted

Several weeks after Hatch proposed his bill, the U.S. 9th Circuit Court of
Appeals ruled P2P
technology is legal even if the software itself is used for illegal
purposes. The court decision may prompt Congress into action after several
years of threatening to pass anti-P2P legislation.

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