New bill protects P-to-P opponents

Copyright holders may soon get the go-ahead to use a range of new methods for jamming suspected piracy online, thanks to a proposed law.

Rep. Howard Berman (D-California) introduced legislation Thursday that would protect copyright holders from being sued if they disrupt illegal file trading over peer-to-peer networks--provided the disturbance doesn't damage files on users' computers.

The bill would protect the use of technologies that may now be illegal, Berman says.

"The law has long allowed property owners to use self-help to protect their property," says Berman. "However, copyright owners cannot use many promising antipiracy technologies because doing so runs afoul of certain common-law doctrines and state and federal statutes."

Berman's office says it's difficult to state which techniques are currently illegal, because most have not been tested in court. Instead, the bill is deliberately vague about disruption techniques--such as distributing fake files or creating slow download times--to give copyright holders flexibility as new technology develops, aides say.

The entertainment industry supports the bill, saying piracy hurts its sales and prevents it from developing innovative products. "Online piracy undermines the growth of legitimate music sites and hurts all consumers in the long run," says Hilary Rosen, chair of the Recording Industry Association of America Inc.

Unfair to Share

Berman's bill would indemnify copyright holders for actions "disabling, interfering with, blocking, diverting, or otherwise impairing" the illegal distribution of their works on public peer-to-peer networks. The Justice Department would need to be notified of any planned disruptions a week before they occur.

Copyright holders would not be exempt from laws if their actions cause damage of more than US$50 to a file trader, other than any losses incurred from the blocked sharing. The safe haven would not protect copyright owners in blocking files for which they do not have exclusive rights.

If blockers have "no reasonable basis" for believing their work is being shared, they would not be safe from lawsuits, the bill says. In those cases, the victims of blocking would be given the right to sue a copyright holder, so long as they suffered more than $250 in losses.

New Battle, Long War

Announced in June, Berman's bill is certain to further the brouhaha over online privacy and fair-use rights. While the entertainment and software industries say piracy costs them billions of dollars each year, privacy and consumer activists are concerned that attempts to prevent illicit file-sharing may also hamper legal sharing.

Graham Spencer, a cofounder of fair-use advocacy group, calls the bill "vigilante" legislation that would nearly give the entertainment industry carte blanche to infringe on legitimate file sharing.

Spencer says the legislation is loosely worded in parts, potentially allowing easy exploitation. "Regardless of the intentions of the law, the ambiguity is incredibly dangerous," Spencer says. "There has been this long history of unintended consequences with these kinds of copyright laws."

The Electronic Privacy Information Center says the bill would come at a high privacy cost to peer-to-peer users. Copyright holders want "legislation so that they can break into users' computers without being prosecuted," says Staff Counsel Mikal Condon.

IT Companies Unsure

Software and IT trade groups seem uncertain about Berman's legislation.

"I'm concerned about providing a liability shield to a class of technology that no one seems to know anything about," says Brian Adkins, director of government relations for the Information Technology Industry Council.

Adkins's group--which represents major IT players like Apple Computer Inc., Dell Computer Corp., and Microsoft Corp. --is keeping an open mind to the concept, he says.

The Business Software Alliance, which seeks to educate the government and consumers about piracy, took no formal stance. "We're not pushing for any additional legislation this year," says spokesperson Jeri Clausing.

Time Running Out

A House subcommittee headed by Rep. Howard Coble (R-North Carolina) will consider Berman's bill. Coble, a cosponsor of the bill, hopes to schedule a hearing after the Congress's August recess.

Still, with only a handful of weeks remaining in the year's congressional session, the bill faces tall odds of passing into law this term.

Aides to Berman remain "hopeful" the law will get the green light, but say the legislation is as much about introducing the idea as getting a law passed. "What Mr. Berman is doing is putting forth the issue," says Gene Smith, Berman's press secretary.

If the bill doesn't become law by the end of the year, it will need to be reintroduced. But by that time, a number of variables may prevent its passage, not the least of which could be the reorganization of House priorities as new members enter the forum.

One thing is certain: Coble will no longer be the chair of the presiding subcommittee. His term limit at that post runs out this year.

Support From Entertainment

The Recording Industry Association of America, not surprisingly, is praising the new bill.

"We applaud Congressman Berman for introducing bipartisan legislation that takes an innovative approach to combating the serious problem of Internet piracy," says Hilary Rosen, chair and chief executive officer of the RIAA.

The entertainment industry is a major supporter of Berman, whose district includes part of north Hollywood. According to the Center for Responsive Politics, the TV, music and movie industries gave Berman $186,891 during the 2001-2002 election cycle, more than to any other member of the House.

According to an April report by Websense, peer-to-peer file sharing and file transfer Web sites grew by more than 535 percent in the past year. The firm says there are now more than 38,000 Web pages dedicated to file sharing.

Contrary to media reports earlier this week, Berman's office stressed that the legislation is not designed allow hacking into people's computers. "We're not going after people that have files for their own use. It is the distribution we're going after," Smith says.

Stephen Chiger writes for the Medill News Service.