FC: More on Howard Berman's war on P2P networks

[Declan McCullagh <declan () well com>]

Previous Politech message:

"Rep. Howard Berman declares war on P2P networks, plans new laws"
http://www.politechbot.com/p-03702.html

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From: "Ellen Stroud" <eastroud () earthlink net>
To: "'Declan McCullagh'" <declan () well com>
Subject: FW: Rep. Howard Berman declares war on P2P networks, plans new laws
Date: Sat, 29 Jun 2002 23:04:36 -0700

Declan, Berman does not have a bill just his speech. The word from the
IP subcommittee is that they are going to mark-up his bill once it is
dropped (dropping it possibly the week of July 9) without first holding
a hearing. Not good. Hollywood is trying to sneak this in at the last
min.  Ellen

Ellen A. Stroud
Government Relations
StreamCast Networks, Inc.
650.678.4629

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From Anonymous:

Declan,

	Supposedly the bill is not yet drafted. Berman has successfully requested 
a hearing from the Chairman of House Judiciary's Subcommittee on 
Intellectual Property. (Funny how quickly hearings happen when major 
companies like Disney REALLY want them to occur...)

	The hearing, set for July 11th, is the date that we can expect the bill to 
become available in some form. Hopefully as a discussion draft, but it may
be the day that the Congressman introduces the bill, one never knows.

        (Feel free to use this info, but as always sans attribution.)

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From Anonymous:

** CONFIDENTIAL DON'T USE MY NAME **

Declan,

I don't have a copy of the draft bill, but I've heard some details: it
includes a 'Safe Harbor' provision for good faith interdiction of P2P
activity -- that is, if a studio THINKS that my computer is serving
copyrighted content (theirs or someone else's), they would have the legal
right to HACK MY COMPUTER or my network activity (via DOS or other attacks)
without any fear of legal repercussions.

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From: "Thomas Leavitt" <thomasleavitt () hotmail com>
To: declan () well com
Subject: Re: FC: Rep. Howard Berman declares war on P2P networks, plans new 
laws
Date: Sat, 29 Jun 2002 18:14:15 -0700

Bah! Is Rep. Berman suggesting that we arrest his daughter and the other 
god knows how many million college age "criminal" intellectual property 
theives?

Priracy on this scale only emerges when a vast disjunct between the 
perceived value of what is delivered, and the cost of said good, exists. 
The success of P2P networks, and of Netflix, which is nothing more than a 
subscription movie on demand service (one that just happens to be managed 
via the USPS), suggests the scale of the opportunity being disregarded by 
the entertainment industry and it's various lobbying arms (RIAA, MPAA, etc.).

Regards,
Thomas Leavitt

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Date: Fri, 28 Jun 2002 17:29:59 -0700
To: declan () well com
From: Carl Ellison <cme () acm org>
Subject: Re: FC: Rep. Howard Berman declares war on P2P networks, plans
  new laws
Cc: politech () politechbot com, cme () acm org

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At 07:24 PM 6/28/2002 -0400, Declan McCullagh wrote:
>Berman's contributors -- top industry is tv/movies/music:
>http://www.opensecrets.org/politicians/indus.asp?CID=N00008094&cycle=
>2002

..and his bottom contributing industry was the computer industry.

=============

Meanwhile, his 600,000 pirated movies every day stretches
credibility.  If these aren't DVD quality, then it's not worth my
notice.  At DVD quality, assuming single density, single disk, that's
4.7GB each or 32.6 GB/sec of movie traffic.  Even if everyone had
800Kb/sec cable modems, that's a third of a million people spending
every minute of every day downloading movies.  If they do anything
else with their time, that's that many more people.  Since I have
never met anyone who has downloaded a movie over the Internet, I have
trouble believing that that population is that high.

 - Carl

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Date: Fri, 28 Jun 2002 16:34:20 -0700
From: lizard <lizard () mrlizard com>
To: declan () well com
Subject: Re: FC: Rep. Howard Berman declares war on P2P networks, plans new 
laws

I have an odd thought.

PResumably, to be Constitutional under the 1A, a law may not make 
distinctions between different speakers; that is, a man who runs a small 
press paper has the same rights, under the law, as the publisher of the New 
york Times.

Thus, if the RIAA has the right to hack into my machine just to see if I 
might have a pirate copy of some films (I don't, BTW -- I've never even 
installed P2P software on my system. I get my pr0n the old-fashioned way, 
from Usenet. Good thing no one in the mass media knows it exists anymore) 
then, I, as a publisher of a web site, and, for that matter, as a 
contributer to physical, in-print books and magazines, have a right to hack 
into THEIR systems on the off-chance someone is tealing MY stuff.

No?

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From: "Amos Satterlee" <amos () satterlee com>
To: declan () well com
Subject: RE: Rep. Howard Berman declares war on P2P networks, plans new laws
Date: Sun, 30 Jun 2002 09:10:41 GMT

Declan:
There are a number of assumptions in Berman's speech that are questionable.
1. Disengagement between the tech sector and government.
For as long as I have been involved in the tech business, the government's 
attitude has been one of hands-off. Government has accepted a reactive 
stance, getting involved to correct perceived abuses. Now Berman says 
governement wants to be a player at the table and take a proactive role. 
This is a substantial change in attitude and should be addressed as such. 
What, for instance, are the rules of engagement?
2. The future and fate of the tech sector is tied to the entertainment 
industry.
I think it goes the other way. The future and fate of the entertainment 
industry is tied to that of the tech sector. Berman is positing that the 
entertainment industry is the horse and tech is the cart. This is contrary 
to reality and to political-economic mandates. We want tech to create the 
tools and to push forward what the existing tools can do and to develop new 
tools for the use by all industries, not just entertainment. To set up a 
priori limitations, which is what Berman suggests, is counter-productive 
and will stifle the curiosity and invention (i.e. true innovation) that 
drives the tech sector.
There is also a scale issue that Berman ignores. The entertainment industry 
is an oligarchy, with power concentrated in the hands of a very few global 
conglomerates. The tech industry, on the other hand, is still primarily a 
collection of smaller, independent players. The one is by nature 
economically conservative and reactionary, trying to maintain and further 
consolidate influence and concentrate power. The other is by nature more 
progressive and proactive, trying to create new sources of influence and to 
decentralize power.
The only way that Berman's position makes sense is if the consolidation of 
the tech sector into an oligarchy is deemed a foregone conclusion and is, 
in fact, considered to be a Good Thing to be supported by government.
3. ...present creators, artists, and media companies with untold new 
opportunities.
It is tiring to constantly read statements like this. Creators and artists 
are one group and media companies are another group. They have different 
requirements, different agendas, different goals and different metrics of 
success. To lump them together does the creators and artists a disservice, 
because it imposes the agendas of the media companies on their actions.
4. Primary among these obstacles is piracy of copyrighted works.
The whole issue of copyright protection is a stalking horse. The real 
issue, as witnessed by numerous testimonies of the RIAA and the MPAA, is 
absolute control. The RIAA and MPAA are not interested in copyright law -- 
they are four-square against the doctrine of fair use (which is the 
essential quid pro quo for getting any protection). Further, the purpose of 
copyright law is to give an inventor or creator time to develop the 
economic benefit of the work before the work is put into the general 
creative pool of possibilities. The extensions that the copyright oligarchs 
have pushed through are only about controlling economic benefit from past 
works. They do not care about expanding the creative possibilities of our 
society.
Clearly, the thinking is that if Disney loses its franchise on Mickey 
Mouse, the company will collapse causing untold economic disaster. I think 
this is an overstatement of the importance of the entertainment industry to 
our economy. It goes against the economic and political underpinnings of 
our country. It is an insult to all creative people, be they in the 
entertainment industry or the tech sector. In short, the entertainment 
industry should get some cahoonas, quit whining and act like the real 
creators they claim to be.
5. Digital Rights Management
If Berman really cares about the consumer, he should be spending his time 
discussing what is the appropriate scope of any DRM solution. A primary 
reason that the tech sector (Palladium notwithstanding) is dithering about 
rights management is to make sure that any DRM solution does not inhibit 
future tech innovation. The solutions suggested by the entertainment 
industry, based on its desire for absolute control of the means of 
delivery, will impede future technological advances.
Berman carefully glosses over the issue of defining unauthorized 
reproduction. He talks about consumer-friendly DRM, but this is a sophistry 
unless there is a real discussion about the limits to be placed on the 
control by the entertainment industry of the creative product.
6. His "solution"
As with all "solutions" existing are proposed by entertainment industry 
voices, Berman's proposal is based on a concept of guilty until proven 
innocent. It abolishes the concept of due process. Industry is given the 
power to judge culpability and then to enforce its judgement without prior 
notice. This is a Bad Thing.
It's also technically clueless. Recent reports show that many P2P 
applications by default open the entire hard drive to the internet, so many 
users are exposing files that they may not have intended to share.
His proposal is also an insult to consumers and creates a bifurcated 
society. Corporate systems are not to be broken into by consumers, but it's 
ok for coporations to invade consumer systems.
7. Conclusion
We are at a point in time when the very unstructured nature of the Internet 
is being called into question. However, if we as a society are going to 
address this issue in a meaningful way, we need to do so in a reasoned, 
balanced way. All parties involved must compromise.
At root is agreeing on what the internet can do for us. The media industry 
seems bent on creating yet another centralized infrastructure that allows 
consumers only a passive role. While the economic incentive seems clear, I 
believe that it is short-sighted and contrary to the best interest of our 
country.
The beauty of the internet is its very peer-to-peer nature. From that 
evolves a whole system of communication and interaction that is 
controllable by the end user. Most current uses are appropriate, some may 
not be, but I believe that the fundamental structure of the internet needs 
to remain sacrosanct as an essential tool in the further development of our 
free and open society.
Berman's proposal is an unbalanced, uncompromising sop to the media 
industry and goes against the best interests of our polity.
Amos Satterlee

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