FC: Rep. Berman replies to Politech, defends his anti-P2P piracy bill

[Declan McCullagh <declan () well com>]

Previous message:

"Weekly column: Congress is back, and we should be worried"
http://www.politechbot.com/p-03941.html

Background:
http://www.politechbot.com/cgi-bin/politech.cgi?name=berman

---

From: "French, Alec" [email address deleted --DBM]
To: "'declan () well com'" <declan () well com>
Subject: RE: Weekly column: Congress is back, and we should be worried
Date: Wed, 4 Sep 2002 18:43:52 -0400

Declan,

I am responding on behalf of Representative Berman to the slew of articles
(including one linked to below and another yesterday) you have forwarded to
Politech that reference H.R. 5211, the P2P Piracy Prevention Act Rep. Berman
introduced in late July. Since those articles have likely created many
misimpressions about the bill among Politech readers, I ask that you extend
me the customary courtesy  of sending this response to the Politech group.
While you may identify me, and Mr. Berman welcomes a reasonable discourse on
the issue, I ask that you mask my email address.

Alec French
Minority Counsel
House Judiciary Subcommittee on Courts, the Internet, and Intellectual
Property

In the article linked to below, in your article today on News.com, and in
several other articles, you have written that H.R. 5211 "would permit
copyright holders to perform nearly unchecked electronic disruptions if they
have a "reasonable basis" to believe that piracy is taking place."  As I
indicated to you during the radio program in which we participated a few
weeks ago, this assertion has no basis. There simply is no "reasonable
basis" language in the safe harbor created by H.R. 5211.

The actual language of H.R. 5211 is clear: new 17 USC 514(a)would only
provide a safe harbor to copyright owners who actually impair the piracy of
their copyrighted works through P2P networks - without regard to whether
they have a reasonable basis to believe piracy is taking place.  To put it
another way: under H.R. 5211, a copyright owner who impairs lawful
file-trading would not get the benefit of the safe harbor EVEN if that
copyright owner had a reasonable basis to believe piracy is taking place.

The ONLY place that the words "reasonable basis" appear in the entirety of
H.R. 5211 is in subsection 514(d), which provides P2P users with a new cause
of action to sue copyright owners who wrongfully impair lawful P2P
file-trading.  There is no possible way to read the cause of action in
514(d), or the use of the words "reasonable basis" therein, as expanding,
modifying, or otherwise affecting the safe harbor provided by 514(a).

On that note, several other articles you have written state that H.R. 5211
limits the remedies available to P2P users or others against whom copyright
owners have acted wrongfully.  For instance, your July 25, 2002 News.com
article entitled "Hollywood hacking bill hits House" states that the bill
"limits the right of anyone subject to an intrusion to sue if files are
accidentally erased."  This assertion is not only wrong, it is directly
contradicted by the clear language of H.R. 5211. In fact, to the contrary,
H.R. 5211 provides P2P users with MORE remedies than current law against
copyright owners who "hack", stop lawful file-trading, delete files, damage
computers, or otherwise wrongfully interfere with file-trading.

Subsection 514(f)(2) of H.R. 5211 specifically preserves all remedies that a
P2P user or any other person, including network operators, may have under
current law to sue copyright owners for such activities.  Further, in
514(d), H.R. 5211 provides affected P2P users with a new, ADDITIONAL cause
of action against copyright owners who wrongfully impair lawful
file-trading.  Lastly, H.R. 5211 creates a new ability for federal
prosecutors to act on behalf of affected file traders and stop copyright
owners from wrongfully interfering with file-trading.

It is almost besides the point to note that, in 514(a), H.R. 5211
SPECIFICALLY states that the safe harbor does not allow the deletion,
alteration, or corruption of computer files or data.

There are other misimpressions created by your articles that necessitate a
response, but I did not intend for this to become a screed against your
writing.  Therefore I will simply paste below the FAQ Mr. Berman has
prepared to correct such misimpressions.  An earlier version of the FAQ may
be found at the following link, and I believe an updated version will be
available tomorrow.  http://www.house.gov/berman/p2p_faq.html

Frequently Asked Questions about the P2P Piracy Prevention Act (H.R. 5211)

What does H.R. 5211  do?

H.R. 5211 allows copyright owners to protect their property.  The bill gives
copyright owners, such as songwriters and photographers, a limited safe
harbor from liability when they prevent piracy of their works through
publicly accessible, peer-to-peer (P2P) networks, like KaZaA, Morpheus, and
Gneutella.

Does H.R. 5211 allow copyright owners to hack into my computer?

No.  Despite wildly inaccurate press reports, H.R. 5211 in no way allows a
copyright owner to "hack" into anyone's computer.  Copyright owners are only
allowed to enter or look into a P2P user's computer to the same extent that
any other P2P user is able to do so.  In other words, if a KaZaA user has
advertized to all 100 million other KaZaA users that he wants to download or
distribute a copyrighted song, the songwriter is not "hacking" if she reads
the advertisement like everyone else.  H.R. 5211 then allows the songwriter
to take certain, limited actions to stop the distribution of her copyrighted
song between KaZaA users, but in no way allows her to enter or look into a
private area of those KaZaA users' computers.

Why is a safe harbor from liability for copyright owners necessary?

Certain laws, while intended to prohibit malicious computer hacking, are so
broadly drafted that they may inadvertently create liability for copyright
owners who are merely trying to prevent piracy of their creations on P2P
networks.  Because it is virtually certain that some P2P pirates will
attempt to use those laws to prevent copyright owners from stopping piracy,
it is necessary to clarify those laws.

Does the P2P Piracy Prevention Act authorize copyright owners to do illegal
things that no one else can do?

No.  H.R. 5211 just ensures that copyright owners are treated like other
property owners.  Current law allows property owners in many contexts to use
"self-help" to protect their property.  Satellite companies face no
liability when they use electronic countermeasures to stop the pirating of
their signals and programming.  Banks face no liability when they repossess
automobiles for delinquent loan payments.  A bicycle owner faces no
liability for grabbing his bike from a thief's yard.  A victim of a
pickpocket faces no liability for tackling and taking back his wallet from
the pickpocket.  However, due to the overbreadth of many anti-hacking laws,
copyright owners do not have a corresponding ability to prevent the theft of
their property through P2P systems.  H.R. 5211 would correct this
unintentional inequity.

Doesn't current law provide copyright owners with sufficient tools to stop
piracy?
                                        
The massive copyright piracy occurring on decentralized, P2P networks cannot
be adequately addressed through current law.  Decentralized P2P networks
were designed specifically (and ingeniously) to thwart suits for copyright
infringement by ensuring there is no central service to sue.  Digital rights
management technologies provide no protection to copyrighted works once they
are distributed "in the clear" on P2P networks.  Lastly, suits against
individual infringers on P2P networks are viable, but are unlikely to make a
dent in the billions of files traded monthly among over 150 million P2P
network users.

Who does H.R. 5211 benefit?

H.R. 5211 will help all copyright owners, including songwriters,
photographers, musicians, software programmers, needlepoint designers, film
producers, journalists, graphic artists, and recording artists.  H.R. 5211
restores to these copyright owners the right to decide whether their
creations are distributed through P2P networks, and takes that decision out
of the hands of pirates.  A  photographer - not a pirate - should decide
whether her photographs are distributed through Gneutella.

In addition, H.R. 5211 will help consumers by fostering the development of
reliable and legal online services for downloading copyrighted works.  P2P
networks are notoriously unreliable, have bugs that expose personal
information to public disclosure, can be used as "tunneling protocols" to
breach computer security, and are rife with malicious viruses.  However,
some copyright owners have been stymied - at least partially - in their
efforts to roll out legitimate online services because they cannot compete
with  the free availability of their works on P2P networks.

Is P2P file-sharing illegal?

It depends.  P2P file sharing is perfectly legal if the work being shared is
not copyrighted or is shared with the authorization of the copyright owner.
However, unauthorized distribution of copyrighted works through a publicly
accessible, P2P network is copyright infringement pure and simple.  There is
no concept of fair use that encompasses making a copyrighted needlepoint
design available for downloading by 100 million KaZaA users.

Does the safe harbor created by H.R. 5211 extend to any copyright owner who
interferes with file-trading upon a reasonable basis to believe piracy is
taking place?

No.  It is an utter fabrication to say that H.R. 5211 provides a safe harbor
for copyright owners who have a "reasonable basis" to believe piracy is
taking place.  There simply is no "reasonable basis" language in the safe
harbor created by H.R. 5211.  The actual language of H.R. 5211 is clear: it
only provides a safe harbor to copyright owners who actually impair the
piracy of their copyrighted works through P2P networks - without regard to
whether they have a reasonable basis to believe piracy is taking place.  To
put it another way: under H.R. 5211, a copyright owner who impairs lawful
file-trading would not get the benefit of the safe harbor even if that
copyright owner had a reasonable basis to believe piracy is taking place.

Does this bill protect computer users against overzealous or unscrupulous
copyright owners that might abuse the safe harbor the bill provides?

Yes.  H.R. 5211 provides strong protections against abuses by overzealous or
unscrupulous copyright owners.  In fact, H.R. 5211 provides computer users
with more protection than current law.  If a copyright owner engages in
abusive actions, the affected computer user can sue the copyright owner for
all remedies available under prior law, and in addition, can bring a new
cause of action created by H.R. 5211.  Furthermore, H.R. 5211 gives the U.S.
Attorney General new power to stop an abusive copyright owner from ever
again using self-help measures.

Does H.R. 5211 limit the ability of P2P users to sue a copyright owner for
hacking, wrongfully stopping file-trading, or otherwise damaging their
computers?

No.  To the contrary, H.R. 5211 provides P2P users with More remedies
against copyright owners who "hack", stop lawful file-trading, damage
computers, or otherwise wrongfully interfere with file-trading.  Subsection
514(f)(2) of H.R. 5211 specifically preserves all remedies that a P2P user
or any other person, including network operators, may have under current law
to sue copyright owners for such activities.  In fact, H.R. 5211 provides
affected P2P users with a new, additional cause of action against copyright
owners who wrongfully impair lawful file-trading.  Further, H.R. 5211
creates a new ability for federal prosecutors to act on behalf of affected
file traders and stop copyright owners from wrongfully interfering with
file-trading.

Does H.R. 5211 require P2P users to suffer more than $250 in damages before
they can sue a copyright owner for hacking, wrongfully stopping
file-trading, or otherwise damaging their computers?

No.  An affected P2P user can sue a copyright owner in such circumstances
under a wide variety of statutes and legal theories which have different
monetary thresholds.  H.R. 5211 does not alter these remedies or create a
$250 threshold for using them.  H.R. 5211 does create a brand-new cause of
action, in addition to all previous causes of action, that contains a $250
threshold, but the creation of this new cause of action does not affect a
P2P user's ability to also access other, pre-existing remedies.

Will H.R. 5211 allow copyright owners to "bring down" P2P networks?

No.  H.R. 5211 is quite clear that it only immunizes the blocking of
copyright infringement on P2P networks.  A copyright owner would remain
fully liable for any action that "brings down" or otherwise disrupts P2P
networks, even though such disruptions were the unintended consequence of
stopping infringements.  It is critical to remember that H.R. 5211 does not
create some new, affirmative right for copyright owners, but only provides
them with a limited safe harbor from potential liability under other laws.
As such, H.R. 5211 only limits a copyright owner's liability for the
activities specified in the legislation, and cannot be read to limit
liability for activities not specified therein.  Attempts by piracy
profiteers to read the bill more broadly are akin to saying that H.R. 5211
would allow a copyright owner to burn down a P2P user's house if such arson
had the effect of disrupting file trading.

Will H.R. 5211 allow copyright owners to violate the privacy of P2P users?

No.  Nothing in the bill implicates the privacy of P2P users, and in fact,
the bill may enhance privacy.  A P2P user has no expectation of privacy in
computer files that he has chosen to publicly download from, or distribute
to, 100 million other P2P users.  H.R. 5211 only allows copyright owners to
view these files to the same extent as all other 150 million P2P users have
such an ability, thus, the bill does not violate a P2P user's privacy.
Furthermore, H.R. 5211 does not give copyright owners any ability to
determine "who" a P2P infringer is.  Rather, a copyright owner, like every
other P2P user, simply knows "where" - at which IP address - their
copyrighted work is located.

In fact, the types of technological self-help measures encouraged by H.R.
5211 will prove less invasive of privacy than the other option - lawsuits
against individual infringers.  The use of technological self-help measures
only reveals the IP address of a file on a P2P network, but does not reveal
the identity of the distributor or downloader of that file.  Lawsuits, on
the other hand, necessitate the public identification of a P2P infringer,
and will usually involve the entry into public court documents of many
private files, data, photographs, and other correspondence found on the
infringer's computer.

Does the bill outlaw or otherwise "kill" P2P networks?

No.  H.R. 5211 only affects illegal activity on P2P networks, but in no way
affects the networks themselves or the sharing of legal content through
them.  Further, the bill recognizes that P2P networks are tremendous
technological innovations that could be used for many beneficial purposes,
but that they will not reach their potential until their use for illegal
purposes is curtailed.  H.R. 5211 aims to clean up P2P networks, not clear
them out.  Those who claim that the bill will kill P2P networks are
short-sighted piracy profiteers who believe P2P networks are only useful for
illegal purposes.

Will the bill allow copyright owners to knock P2P file sharers offline?

No.  As noted above, H.R. 5211 only immunizes the blocking of copyright
infringement on P2P networks.  A copyright owner would remain fully liable
for any action that knocks a P2P user offline, even if such disruptions were
the unintended consequence of stopping infringements.  It is critical to
remember that H.R. 5211 does not create some new, affirmative right for
copyright owners, but only provides them with a limited safe harbor from
potential liability under other laws.  As such, H.R. 5211 only limits a
copyright owner's liability for the activities specified in the legislation,
and cannot be read to limit liability for activities not specified therein.

Does H.R. 5211 allow copyright owners to destroy files on my computer?

No.  H.R. 5211 explicitly states that it does not allow copyright owners to
destroy, corrupt, or otherwise alter files or data on a P2P user's computer.
 




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