Early Thursday morning, the Senate Judiciary Subcommittee on Courts, the Internet, and Intellectual Property held a meeting on House Resolution 5211. You all know this bill as “the Berman bill”. As you probably also already know, this bill allows media companies to “use limited self-help measures” (read: hack into P2P networks) to prevent unlawful piracy of their works.
This meeting included written testimony from:
– Howard Berman, Republican from the state of California, and puppet of the RIAA Death Star
– Gigi Sohn, chairman of a nonprofit organization called Public Knowledge
– Phil Galdston, songwriter
– Randy Saaf, President of MediaDefender, Inc., creator of anti-P2P piracy software
– Hilary Rosen, Death Star Commander
I took out some interesting excerpts from each member’s testimony for you all to discuss.
Rep. Berman:
“When we first introduced the P2P piracy bill, I never expected that anyone would challenge the basic premise of the bill: namely, that copyright owners should be able to use reasonable, limited self-help measures to thwart rampant P2P piracy. ”
“Incredibly, some folks actually challenge that premise. The head of a big trade association claims it’s legal to make unauthorized distributions of copyrighted works to 100 million P2P users. P2P software companies claim that, even if illegal, P2P piracy causes no harm. Representatives of the computer industry say that only record companies suffer harm, and they deserve it for charging too much. Others vaguely theorize that copyright owner self-help will threaten security or privacy. And still other piracy profiteers attempt to thwart any solution to P2P piracy, then throw their hands up and say it is an insoluble problem. ”
“…a variety of state and federal statutes may create liability for copyright owners engaging in otherwise justifiable self-help.
This is not fair. Copyright owners should have the same right as other property owners to stop the brazen theft of their property. The P2P Piracy bill simply ensures that the law will no longer discriminate against copyright owners.”
Hilary Rosen:
“Unfortunately, there has been a lot of misinformation about this bill. Some have characterized it as allowing copyright vigilantism, or letting record companies and movie studios hack into people’s computers, and crash networks. These irresponsible descriptions at best reveal a misunderstanding of the text and purpose of the bill, and at worst purposely cloud the real issues and problems with unlicensed peer-to-peer networks. It is the use of a peer-to-peer system that opens up a user’s hard drive to the rest of the world, not the Berman bill. It is the current practice of those who have created today’s unlicensed peer-to-peer systems that invade a consumer’s privacy through spyware and the selling of consumer information, not the Berman bill. In fact, the bill prevents these activities, along with hacking, deleting or altering material, and causing damage to a computer. We support these prohibitions and other solutions to assure that all privacy and damage concerns are addressed. But we ask that those who share these concerns with us help us to come up with real solutions that also curtail massive piracy over these networks.”
“The intent of the bill, it seems to us, is simply to allow a copyright owner to prevent the initial downloading on a peer-to-peer system of specifically identified material that it owns. An analogy might be a U.S. Coast Guard boat that is out in the sea preventing unlawful goods from entering the United States. It is not doing damage to the sender or the intended recipient, it is not boarding any other boats, or initiating any harm. It is simply acting in a defensive manner to block admission and to deny an illegal transfer. In our opinion, this preventive activity is warranted and necessary.”
Gigi Sohn:
“Despite its claims that billions of songs have been illegally downloaded, we are not aware of a single case in which the recording industry has taken legal action against an individual downloader. The problem is that the recording industry apparently does not want to enforce the rights it claims when it comes to illegal P2P file trading because it looks bad to sue its own customers. Therefore, the industry has decided instead to shift that burden onto other corporations, and in particular, ISPs. As many of you know, the RIAA is seeking to force Verizon to hand over the names of its customers based solely on the RIAA’s allegations that those customers are engaging in infringing activity. Verizon, backed by civil liberties and other public interest organizations such as my own, has argued, among other things, that forcing ISPs simply to give copyright owners the names of their customers without a judicial determination that they may be engaged in any illegal conduct would violate the constitutionally mandated privacy and anonymity rights of their customers, and put ISPs in the untenable position of having to respond to the numerous identification requests that would inevitably result.”
“Legitimizing and harboring invasive self-help has startling implications. Again, whether the large content companies use techniques that are more accurate and often unrecognized by the computer user is nice, but is largely beside the point. If expressly permitted or protected, self-help of various shapes and sizes will be available to all copyright owners, some of whom may believe that it is perfectly within their rights to launch denial of service attacks. Some of these attacks may affect actual infringers, while some almost certainly will affect innocent parties, who will have no idea why they (or others) cannot access their files or why their Internet service is not working. These attacks will likely provoke retaliatory attacks by some users, and the acquisition of defensive software by others. Soon, the Internet will look like the Wild West, with self help bots and bot blockers replacing guns as the weapon of choice. ”
“The collective impact of all these self help efforts, particularly if they are sanctioned by law, might be to reduce or eliminate the effectiveness of the Internet as a communications medium in a number of ways, from consuming bandwidth to forcing ISPs into imposing crippling terms-of-service agreements. The final victim of this Internet free-for-all, of course, would be rollout of broadband, for which P2P is the “killer app.” ”
Phil Galdston:
“The significance of this is that all the angry talk about the major record companies, and their failings (you know, “Why should I pay $18.00 for a CD with only one good song on it?” and the like), when applied to the debate about unauthorized downloading ignores this essential fact of ownership. So, a person who downloads a record without authorization may be trying to punish what they believe are big, bad record companies and greedy, selfish artists. But they’re punishing songwriters like me, the people in the creative process who can least afford to be punished. ”
“When I license a song to a record company, I receive no fee, no advance, no payment of any kind. I will only receive compensation when, and if, the recording of my song sells. If I am compensated, the rate, which is already quite low, is set by statute. Frequently, as a condition of recording and releasing a song, labels demand that songwriters accept three-quarters of the statutory rate; in other words, six cents per copy sold instead of the current statutory rate of eight cents. (This is another situation I hope Congress will look into). Please note that, while we may be paid less, we are never paid more. And since we’re limited to a maximum of eight cents by statute, we can’t charge more elsewhere to make up for the loss.”
Randy Saaf:
“MediaDefender’s technologies only affect the networks on a macro-scale and not on a micro-scale. MediaDefender only communicates with the P2P networks on a high level and pays no attention to the individual users. We do not identify, nor target individuals. We do not collect information about individuals. All we see or care about are the numbers. The primary aim of the technology is to prevent the person who is seeking pirated material from finding pirated material. People’s computers are not harmed and files are never altered or deleted. There is no excessive drain on bandwidth resources. Legitimate content is still widely available on the networks because its availability is not affected by the technology. Even piracy advocates have no basis for complaint because a wide assortment of pirated material is still available on the P2P networks. Our technology does not affect the scalability or overall integrity of the P2P networks…MediaDefender has been selling its technology for two years and that clearly has not hindered the growth of P2P networking. There are nearly twice as many users today as there were in Napster’s more popular days. The most popular P2P application receives over 2.5 million downloads a week. I would say that our technology has done very little to discourage the use and adoption of P2P networking as a whole. However, the very specific use of the P2P networks for piracy of our clients’ copyrighted materials has been sharply affected. The good news is that P2P networking as a technology can live and thrive even in the presence of piracy control. At the end of the day, this is how it has to be. P2P networking is not going anywhere, and copyright law is not going anywhere. So, they have to learn how to coexist without destroying each other.”
