The U.S. Congress is considering a bill that would let music companies and other media entities legally enter file-swapping services to block users from trading copyrighted files.
Claiming to be “a big fan of [peer-to-peer] networks and the technology behind them,” Representative Howard Berman (D-California), along with Lamar Smith (R-Texas), Howard Coble (R-North Carolina) and Robert Wexler (D-Florida), introduced the bill to protect copyright owners from “the mass piracy of their works.”
“Billions of [peer-to-peer] downloads every month constitute copyright infringements for which these creators and owners receive no compensation,” Berman said. “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.”
Record companies, moviemakers and other copyright holders have long argued that Napster and other services, such as Morpheus, represent blatant piracy. The recording industry, in particular, has pursued file-swapping services vigilantly in the courts.
Putting the Pressure On
Record labels, for all intents and purposes, successfully shut down the popular Napster service, only sanctioning its re-emergence in a modified form. Napster’s assets were recently purchased by investor Bertelsmann, which broke ranks with the Big Five recording companies to support peer-to-peer file swapping.
The recording companies also have exerted pressure on other services, either competitively or through threatened legal action. Many companies have started their own similar services that they typically run according to a subscription model, but these services — which are often costly — have met with some resistance and criticism from the public.
Still, the recording industry has held to the notion that swappers are thieves who cost the industry significant money despite evidence to the contrary. According to a Jupiter Media Metrix study, Internet file sharing actually increases music sales.
Thirty-four percent of all peer-to-peer file sharers dole out more money for music than they did before they started swapping tunes online, according to Jupiter, although 15 percent of file swappers admitted to purchasing less music than they previously did.
Berman claimed his bill will “free the marketplace to develop technologies that thwart P2P piracy without impairing P2P networks” and without “fear of liability.”
He noted that while the courts could shut down Napster because it used a central directory and centralized servers, new P2P networks have avoided that sticking point by “incorporating varying levels of decentralization.”
Berman compared the protection offered by the bill to that of laws that allow property owners to “use self-help to protect their property.”
He claimed that under current laws, “P2P technology is free to innovate new and more efficient methods of distribution that further exacerbate the piracy problem [while] copyright owners are not equally free to craft technological responses,” a scenario he referred to as unfair.
Music Industry Cheers
The bill met with approval from Recording Industry Association of America chairman and CEO Hilary Rosen, who applauded the “bipartisan legislation that takes an innovative approach to combating the serious problem of Internet privacy.”
She noted that “the current landscape for online music is seriously one-sided,” giving “unfair advantage” to pirates. “It makes sense to clarify existing laws to ensure that copyright owners — those who actually take the time and effort to create an artistic work — are at least able to defend their works from mass piracy.”
But the bill naturally raises concerns aboutprivacy issues. Even Jack Valenti, chairman of the Motion Picture Association of America, who hailed Berman’s efforts, said in a statement that he expects certain elements of the bill to change over time.
Berman sought to head off privacy concerns, noting that the bill “is narrowly crafted, with strict bounds on acceptable behavior by the copyright owner” and offers owners “a very limited safe harbor from liability when they use technological tools for the narrow purpose of thwarting P2P piracy.”
“It does not allow copyright owners to send viruses through P2P networks, destroy files, hack into the personal files of P2P users or indiscriminately block lawful file trading,” Berman said.
“Further, our legislation does not allow copyright owners to damage the property of any intermediaries, including ISPs, or to do more than [minimal] damage to the actual P2P pirate,” he added.
Is It Constitutional?
But not all industry observers are so sanguine about the bill.
“Ever heard of the Constitution and that little amendment about illegal search and seizure?” Michael Goodman, an analyst with the Yankee Group, said in an interview with the E-Commerce Times.
While Goodman said he “wouldn’t put it past Congress to pass such a bill,” he believes it would be thrown out by the courts. “Lower court, appellate court, Supreme Court –it shouldn’t spend more than half an hour in each,” he noted.