more on CA State bill could cripple P2P

[David Farber <dave () farber net>]

------ Forwarded Message
From: "James S. Tyre" <jstyre () jstyre com>
Date: Wed, 19 Jan 2005 11:11:35 -0800
To: <dave () farber net>, Ip <ip () v2 listbox com>
Subject: Re: [IP] more on CA State bill could cripple P2P

At 02:02 PM 1/19/2005 -0500, David Farber wrote:

> ------ Forwarded Message
> From: Mike O'Dell <mo () ccr org>
> Date: Wed, 19 Jan 2005 13:58:18 -0500
> To: <dave () farber net>
> Subject: Re: [IP] CA State bill could cripple P2P
>
>
> actually, taken at face value, this outlaws all
> network protocol stacks I know about, even terminal
> emulators with things like x-modem and even file redirection.


[....]

Here's the actual text of the bill:
<http://www.leginfo.ca.gov/pub/bill/sen/sb_0051-0100/sb_96_bill_20050114_int
roduced.html>

BILL NUMBER: SB 96      INTRODUCED
         BILL TEXT


INTRODUCED BY   Senator Murray

                         JANUARY 14, 2005

    An act to add Section 653.15 to the Penal Code, relating to crime.


         LEGISLATIVE COUNSEL'S DIGEST


    SB 96, as introduced, Murray.   Peer-to-peer networks: file
sharing software.
    Existing law provides that it is a crime, punishable by a fine not
exceeding $2,500, imprisonment in a county jail for a period not
exceeding one year, or by both that fine and imprisonment for a
person who is located in California, who knows that a particular
recording or audiovisual work is commercial, to knowingly
electronically disseminate that commercial recording or audiovisual
work to more than 10 other people without disclosing his or her
e-mail address, and the title of the recording or audiovisual work.
Existing federal law, through copyright, provides authors of original
works of authorship, as defined, with certain rights and
protections. Existing federal law generally gives the owner of the
copyright the right to reproduce the work and the right to distribute
copies of the work to the public. Existing federal law limits the
liability of an Internet service provider for copyright infringement
for transmitting material under specified conditions.
    Existing law also provides that any person who accesses and
without permission adds, alters, or damages data or programs that
reside in a computer or computer system is punishable by a fine not
exceeding $10,000, by imprisonment in a county jail, or by
imprisonment in a state prison for 16 months or 2 or 3 years, or by
both fine and imprisonment.
    This bill would provide that any person or entity that sells,
advertises, or distributes peer-to-peer file sharing software, as
defined, that enables the user to electronically disseminate
recordings or audiovisual works over the Internet who fails to
exercise reasonable care in preventing use of the software to commit
an unlawful act with respect to a commercial recording or audiovisual
work, or a violation of provisions related to production,
possession, distribution, or advertisement of obscene matter
depicting a minor under 18 years of age, or tampering with,
interference with, damage to, or unauthorized access to computer data
or systems, is punishable by a fine not exceeding $2,500,
imprisonment in a county jail for a period not to exceed one year, or
by both that fine and imprisonment.
     Because this bill would create a new crime, it would impose a
state-mandated local program.

   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
    This bill would provide that no reimbursement is required by this
act for a specified reason.
    Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


   SECTION 1.  Section 653.15 is added to the  Penal Code , to read:
    653.15.  (a) Any person or entity that sells, offers for sale,
advertises, distributes, disseminates, provides, or otherwise makes
available peer-to-peer file sharing software that enables its user to
electronically disseminate commercial recordings or audiovisual
works via the Internet or any other digital network, and who fails to
exercise reasonable care in preventing use of that software to
commit an unlawful act with respect to a commercial recording or
audiovisual work, or a violation of Section 311.1, subdivisions (b),
(c), or (d) of Section 311.2, Section 311.3, 311.4, 311.10, 311.11,
or 502 is punishable, in addition to any other penalty or fine
imposed, by a fine not exceeding two thousand five hundred dollars
($2,500), imprisonment in a county jail for a period not to exceed
one year, or by both that fine and imprisonment.(b) As used in this
section, "peer-to-peer file sharing software" means software that
once installed and launched, enables the user to connect his or her
computer to a network of other computers on which the users of these
computers have made available recording or audiovisual works for
electronic dissemination to other users who are connected to the
network. When a transaction is complete, the user has an identical
copy of the file on his or her computer and may also then disseminate
the file to other users connected to the network.
    (c) As used in this section "recording" means the electronic or
physical embodiment of any recorded images, sounds, or images and
sounds, but does not include audiovisual works or sounds accompanying
audiovisual works.
    (d) As used in this section "audiovisual work" means the
electronic or physical embodiment of motion pictures, television
programs, video or computer games, or other audiovisual presentations
that consist of related images that are intrinsically intended to be
shown by the use of machines or devices such as projectors, viewers,
or electronic equipment, or a computer program, software, or system,
as defined in Section 502, together with accompanying sounds, if
any.
    (e) As used in this section,"commercial recording or audiovisual
work" means a recording or audiovisual work whose copyright owner, or
assignee, authorized agent, or licensee, has made or intends to make
available for sale, rental, or for performance or exhibition to the
public under license, but does not include an excerpt consisting of
less than substantially all of a recording or audiovisual work. A
recording or audiovisual work may be commercial regardless of whether
the person who electronically disseminates it seeks commercial
advantage or private financial gain from that dissemination.
    (f) As used in this section,"electronic dissemination" means
initiating a transmission of, making available, or otherwise
offering, a commercial recording or audiovisual work for distribution
on the Internet or other digital network, regardless of whether
someone else had previously electronically disseminated the same
commercial recording or audiovisual work.
   SEC. 2.
   The provisions of this act are severable. If any provision of this
act or its application is held invalid, that invalidity shall not
affect other provisions or applications that can be given effect
without the invalid provision or application.
   SEC. 3.
   No reimbursement is required by this act pursuant to Section 6 of
Article XIII B of the California Constitution because the only costs
that may be incurred by a local agency or school district will be
incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIII B of the California Constitution.

--------------------------------------------------------------------
James S. Tyre                               mailto:jstyre () jstyre com
Law Offices of James S. Tyre          310-839-4114/310-839-4602(fax)
10736 Jefferson Blvd., #512               Culver City, CA 90230-4969
Co-founder, The Censorware Project             http://censorware.net


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