FC: More on Rep. Berman's bill authorizing anti-P2P hacking

[Declan McCullagh <declan () well com>]

To answer Robin's question below, the bill would transform any copyright 
holder into a legally-authorized hacker, provided they tip off the DOJ 
about their hacking techniques. That means if you're trading my copyrighted 
articles or my copyrighted photographs on peer-to-peer networks, look out! :)

Heck, even Usenet posts, rants to discussion lists, and instant messages 
are automatically copyrighted. And the definition of peer-to-peer networks 
is pretty broad.

Excerpt of relevant section:
> "A copyright holder shall not be liable in any criminal or civil action 
> for disabling, interfering with, blocking, diverting, or otherwise 
> impairing the unauthorized distribution, display, performance, or 
> reproduction of his or her copyrighted work on a publicly accessible 
> peer-to-peer file trading network."

Previous Politech message:
http://www.politechbot.com/p-03792.html

-Declan

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Date: Tue, 23 Jul 2002 20:54:38 +0000
From: robin <robin () roblimo com>
To: declan () well com
Subject: Re: FC: Draft of Rep. Berman's bill authorizes anti-P2P hacking

>    A draft bill seen by CNET News.com marks the boldest political effort
>    to date by record labels and movie studios to disrupt peer-to-peer
>    networks that they view as an increasingly dire threat to their bottom
>    line.

I think this is *great* as long as it extends to creators of written words, 
not just to movie and music people. I create hundreds of thousands of 
copyrighted words every year, and I think allowing me to hack any P2P 
user's computer to see if they have violated my copyrights is a great idea.

The first computer I think I'll hack is one belonging to a nefarious 
character who goes by the name "Declan," who has shared more than a little 
of my precious creative output over the years with his peers via  the 
infamous "politech" email list, which (as we all know) is populated by 
anarchists, Democrats, libertarians, Republicans, Linux users, and other 
unsavory characters.

We copyright holders have had our rights violated by you politech 
Intellectual Property pirates long enough! It's time for us to FIGHT BACK!!!

- Robin "Roblimo" Miller
   Editor in Chief, OSDN
   (Linux.com, Newsforge.com,
   freshmeat.net, Slashdot.org,
   DaveCentral.com, and other
   popular tech Web sites)

---

Date: Tue, 23 Jul 2002 17:40:27 -0700
From: tom poe <tompoe () renonevada net>
Organization: Open Studios
To: declan () well com
CC: politech () politechbot com
Subject: Re: FC: Draft of Rep. Berman's bill authorizes anti-P2P hacking

Hi: Could there be anything less expected, especially considering this 
quote from the BPDG draft of May, 2002?
http://www.studioforrecording.org/mt/archive/2002_05.html

Another little gem lies with the following from the BPDG Report:

A proposal was later made by Philips and a small number of consumer
electronics companies that, for a limited number of years (intended to
capture the reasonable life of legacy DVD players), in-the-clear
recordings of Unscreened Content and Marked Content could be made
using standard definition DVD recorders. Motion picture companies
opposed such a "grandfather" provision, inter alia, because tens of
millions of legacy DVD-ROM drives would remain capable of unauthorized
redistribution of such content when played back, including over the
Internet.

That is scary. These folks have no intention of letting legacy
devices hang around. Now, how do you suppose they'll eliminate all
those "tens of millions" legacy devices in quick fashion? . . . .

Thanks,
Tom Poe
Reno, NV

---

Date: Wed, 24 Jul 2002 10:58:24 +1000
From: Nathan Cochrane <ncochrane () theage fairfax com au>
Organization: The Age newspaper
To: declan () well com
Subject: Re: FC: Draft of Rep. Berman's bill authorizes anti-P2P hacking

If ever the open source desktop movement needed a kick along, this is it. I 
can see an opening for a Linux-emulator to run on Windows PCs just so 
people can continue using the P2P networks.

---

From: "Geoff Gariepy" <geoff_gariepy () hotmail com>
To: <declan () well com>
References: <20020723202935.A3258 () cluebot com>
Subject: Rant: Re: Draft of Rep. Berman's bill authorizes anti-P2P hacking
Date: Wed, 24 Jul 2002 07:58:44 -0400
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I'm 100% in support of this as long as we're allowed the same latitude in
hacking them back!

C'mon, now, this is absurd!  Who ever heard of a law that grants you
immunity when you damage someone else's property because, essentially, 'they
had it coming!'

If we want to start legal precedents on 'had it coming' immunities or
defenses, I can think of a few better venues in which to start:

o  So you run down the squeegee man with your 5,600 pound sport-utility
vehicle after he smears the windshield.  Your lawyer uses the 'Had it
coming!' defense.  You get off scot-free.
o  So you refuse to pay your AOL bill and demand that they continue service
anyway because you had four disconnects while downloading your email last
month. Your lawyer uses the 'Had it coming!' defense.  The judge grants your
request that they be forced to continue your service.
o  So you sell your employer's list of prospective new customers to a
competitor after they passed you over for a raise last review.  Your lawyer
uses the 'Had it coming!' defense.  Your employer has to retain your
services, and you're not liable to them for damages

My question is: where does this stop?

My other question is: just how stupid are the record companies?  Do they
really think that they're a match for the collective talents and skills of
all the folks on the Internet?  It seems like they're universally disliked
by everyone they do business with -- their customers, and the recording
artists -- because of their abject greed, and refusal to evolve their
business model along with the changing times.  Remember, kids, the record
companies could be SELLING MP3s, just as easily as Napster or Gnutella share
them for free.  I'd buy 'em!  Tell me where a reliable place is to get
EXACTLY the music I want, when I want it, legally, reliably, for a fair
price, and I'll be a customer for life.  But no, they want to get your
entire eighteen bucks for a disc that's mostly full of music you don't want,
instead of $1.50 for a MP3 of the one good single on it.  And then they want
to embed stuff in the music that f***s up my PC?  Does anybody think it will
take longer than 2 weeks for the same hackers they complain about to come up
with countermeasures to whatever scheme they cook up?  And then I suppose
the Digital Milennium Copyright Act will rear its ugly head when we write
something to protect ourselves, eh?

--Geoff

---

From: "M. Burnett" <mb () xato net>
To: <declan () well com>
Date: Wed, 24 Jul 2002 10:45:46 -0600

Declan,

Beyond the most obvious privacy, security, ethical, and legal issues
involved, I wanted to add a few comments why this bill is wrong:

1. This bill shifts the burden of proof
>From what I understand of this draft, it allows for measures to be
taken with only a "reasonable basis" of evidence.  The burden then
shifts to the target to prove, after the fact, that the copyright
holder acted improperly.  The MPAA and RIAA want a free pass to
sidestep our entire legal system.  I'm sure there are many industries
that would like that privilege, including law enforcement who are
investigating actual serious cases such as child abuse and terrorism.
Further, even with the burden of proof put on the accuser, we have
seen much abuse.  Imagine how much worse it would be if that burden
was shifted.

2.  We are letting the plaintiff decide who is guilty
Copyright laws are complex and we have recently seen many court
battles and appeals to clarify the issues.  Even after a court
ruling, many are still in disagreement over the issues.  Further, we
even have judgements in some states that are not consistent with
those in other states.  With all this disagreement, how can we
possibly just let the MPAA and RIAA decide who is infringing their
copyrights?

3.  There are too many unseen side-effects and loopholes.
Bills such as this that introduce such a dramatic change in our legal
system open up all kinds of unforeseen loopholes and unintended
side-effects.  Who knows how the definitions can be stretched?  Who
is a copyright holder? Who is violating a copyright?  What is a
technical means?  Does this bill allow for action taken against
vicarious and contributory copyright infringers?  Further, what kind
of precedence does this set for other industries?

4.  Berman's analogies are wrong.
Berman suggests that this bill will allow measures similar to what
cable companies use to disable cable pirates.  The problem with that
analogy is that the cable companies own the wire and the cable system
has no other function but to provide cable services.  That is not the
case with computer systems and the internet.  What if a file-sharing
network also provides a means for one to distribute a weekly news
publication?  Suddenly, the MPAA and RIAA have interfered with the
press, something that even Congress cannot legally do.

5. You don't get to do what criminals do.
Gene Smith, Berman's spokeswoman said "...this bill just puts into
the hands of the copyright owners technologies that are already being
used by the pirates."   The problem is that you have those kinds of
rights in America.  Just because a criminal uses a technique against
you, it does not justify you using that technique--that's what makes
a criminal a criminal.  If you use those techniques then you also
become a criminal.  You don't get to kill murderers.  You don't get
to hack hackers.  You don't get to send suicide bombers to terrorist
nations. You don't get to steal from thieves.

6.  The benefit isn't worth it.
The fact is that their techniques will only have limited
effectiveness.  It doesn't matter if you shut down the Napsters
through legal or technological means, there will still be ten more
services that pop up to take its place.  Its simply not worth
jeopardizing our legal system for something that will not be that
effective anyway.  Ask the cable companies if their techniques stop
really cable piracy.  If it really worked, why do they keep having to
do it?

It is laughable to even suggest allowing one American industry to
bypass our entire legal system and then limit their accountability
when they do act improperly.  Its preposterous to think that one
industry could have rights not even allowed in pursuing legitimate
criminals.

Americans are wronged all the time.  Businesses are cheated out of
profits every day.  Our recourse is the legal system. Sometimes it is
on our side and sometimes it is not.  And while it is inconvenient to
use our legal system, it is there to protect us.

Mark Burnett




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