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P2P United Fights New Copyright Bill
July 22, 2004
Thomas Mennecke
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Earlier this year, Senator Orrin Hatch (R-Utah), chairman of the Senate Judiciary Committee, introduced the "Infringement 4 of Copyrights Act of 2004." The bill is an amendment to the current our copyright laws (Section 501 of title 17, United States Code.)

Specifically, the amendment states, "Whoever intentionally induces any violation identified in subsection (a) shall be liable as an infringer." This is a radical departure from current copyright laws because it targets those who intentionally induce copyright infringement.

Ok, what qualifies an individual as an "intentional inducer?" Subsection "a" identifies this with the following: "In this subsection, the term ‘intentionally induces’ means intentionally aids, abets, induces, or procures, and intent may be shown by acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor, including whether the activity relies on infringement for its commercial viability."

This language is extremely wide reaching considering the amount of technology in our daily lives could potentially fit this bill. Items such as VCRs, DVD recorders, iPods, CD-burners, and of course P2P technology. P2P United has been strenuously fighting this cause and today reacted to Senate Judiciary Committee’s review of the bill.

P2P United's task, as it seems to be every time they face the United States government, is to correct the great misunderstanding that has seeped into the minds of our representatives. Perhaps the greatest and most mind-blowing misrepresentation is Orrin Hatch’s belief that P2P United, and the networks it represents, closely resemble Earth Station 5.

During the meeting, Orrin Hatch stated that P2P United's members "functions like Earth Station 5's 'piracy machine'." To say the least they were aghast at this statement and issued the following rebuttal (in writing.)

"P2P United has chosen the preceding words advisedly, Mr. Chairman. Earth Station 5 is not a member of P2P United and, given its clear disdain for the principles set forth in our industry Code of Conduct adopted last September (please see attached) would be denied that status even if requested. “ES5” is a rogue software developer based in Jenin in Palestinian territory. It deliberately flauts American and international copyright law by expressly disclaiming the jurisdiction of all such laws and, most egregiously, proudly supplying downloads of first run motion pictures from its centralized computer servers. We were, therefore, particularly dismayed to note your statement's repeated use of this transparently inapt, misleading and false comparison.

In truth, Mr. Chairman, the 'business models" and actual technologies of the members of P2P United bears absolutely no resemblance whatsoever the illicit infrastructure and practices of ES5."

The second point that P2P United needed to refute was that file-sharing or P2P technology was dangerous to the end users, and "that peer-to-peer technology and the software made available to the public by the members of P2P United are dangerous to the public in general, to children in particular, and that our members adequately fail to warn the public of risks associated with P2P software."

Despite a report by the GAO (Government Accounting Office), which was requested by Senator Hatch, that spelled out that P2P is no more dangerous than the World Wide Web, this point is still being pressed on.

Lastly, Orrin Hatch brought up the point regarding filtering technology, and P2P developers apparent refusal to implement such technology.

P2P United responded to this pervasive misunderstanding, which was also backed up by the GAO.

"With respect, Mr. Chairman, the wholly mistaken suggestions in your June 22 statement to the effect that the decentralized architecture of modern P2P software is inefficient, "makes little sense," and was deliberately chosen by P2P software developers to escape copyright liability are so inaccurate as to argue for an immediate moratorium upon any and all legislation that would have the practical effect of modifying the Supreme Court's ruling in the Betamax case. While we hope to discuss these matters with you and members of the full Committee in greater detail, both privately and in public, we urge you to briefly consider the following:

a) no matter what measure is adopted – total bandwidth use, file transfer time, system stability and robustness, or security - the decentralized nature of modern peer-to-peer software programs renders such programs vastly more efficient than the "hub and spoke" design that characterized early file-sharing architecture. Indeed, such decentralized design precisely parallels computer and military scientists' vision of the original DARPAnet, and the subsequently developed public internet, for all of the reasons stated above;

b) the argument that P2P software companies have deliberately designed their software to evade copyright law (advanced before the Ninth Circuit Court of Appeals by music industry counsel in oral argument in the pending Grokster case) was expressly rejected from the bench. Indeed, counsel was admonished from the bench that the programs seemed to have been designed to comport with all applicable copyright laws and the courts' rulings in Napster;

c) requiring the defining feature of currently decentralized peer-to-peer software to be changed to permit presently impossible forms of centralized content controls would constitute a massive "technology mandate" of precisely the kind that, it is claimed, S. 2056 seeks to avoid. As we have noted many times before, Mr. Chairman, residual distrust of peer-to-peer developer claims that their products cannot centrally filter should be evaluated, once and for all, by a neutral and highly competent scientific body such as the National Academy of Science. It is time to bring the endless rounds of "he said/she said" fulmination and speculation on this account to a responsible end with responsible science."

There is no doubt regarding the far-reaching consequences of this bill. Theoretically, P2P developers would be held responsible as inducers of copyright. From there, it is not known how deep copyright infringement could be pursued. Hopefully, cooler heads will prevail and a reasonable outcome to this potentially draconian situation will be reached.


This story is filed in these Slyck News categories
Authorized P2P :: P2P United

You can read P2P United's response to Orrin Hatch here (PDF format.)

You can read P2P United's statement here (Word document.)

You can discuss this article here - 19 replies

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