FC: Politech members reply to Rep. Berman on anti-P2P piracy bill

[Declan McCullagh <declan () well com>]

Previous Politech message:

"Rep. Berman replies to Politech, defends his anti-P2P piracy bill"
http://www.politechbot.com/p-03949.html

Text of bill:
http://thomas.loc.gov/cgi-bin/bdquery/z?d107:h.r.05211:

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

---

Date: Wed, 4 Sep 2002 18:22:50 -0500
Subject: Re: FC: Rep. Berman replies to Politech, defends his anti-P2P 
piracy bill
From: Aaron Swartz <me () aaronsw com>
To: declan () well com

Mr. French lists many things copyright holders cannot do under the bill, 
but no one has ever explained what they can. The bill requires copyright 
holders do not alter any computer file or data. Thus:

 - They can't crack into your computer, because this will alter the data 
in memory and possibly the virtual memory file.
 - They can't spread a virus, because that will alter files on the disk.

Nor can they cause "economic loss to any person other than affected file 
traders" or "economic loss of more than $50.00 [to] the affected file 
trader". They can't attempt a denial of service attack because:

 - It would cause economic loss to other users of the network or machine.
 - I would lose over $50. (I was going to sell something on eBay.)

I can't think of anything the copyright holder can do with these tight 
restrictions. What do Berman and Coble have in mind?
--
Aaron Swartz [http://www.aaronsw.com] "Curb your consumption," he said.

---

From: "Ken Horowitz" <kenh () polestarpartners com>
Organization: PoleStar Partners
To: declan () well com
Date: Wed, 4 Sep 2002 21:53:53 -0500

Declan -

Neither Mr French's e-mail nor the FAQ mention two critical features
which seem to provide huge loopholes to the copyright owners:

1) The Berman bill allows damage of $50 for EACH INSTANCE of an
allegedly-infringing file. So, if a user has 20 songs on his PC, the
record company can cause $1,000 worth of damage -- equal to the value
of an average PC.

2) Contrary to the FAQ, the bill specifically allows that there may
be unavoidable side-effect to protecting copyrighted materials. I
read this as allowing a P2P network to be brought down as an
"unavoidable" result of trying to protect even a single file from
being "pirated".

So are we suffering tremendous obfuscation here, or what?

- ken

-----
Ken Horowitz
Founding Partner, PoleStar Partners
kenh () polestarpartners com

---

To: "'declan () well com'" <declan () well com>
Subject: RE: Rep. Berman replies to Politech, defends his anti-P2P piracy
        bill
Date: Thu, 5 Sep 2002 15:40:28 -0400

Hi Declan: just an aside... I don't know if I'd feel better of worse if Rep.
Berman's man knew how to SPELL  Gnutella.

---

Subject: Re: FC: Rep. Berman replies to Politech, defends his anti-P2P
        piracy bill
From: Woody Green <woody () linif org>
To: declan () well com
Date: 04 Sep 2002 20:54:40 -0600

On Wed, 2002-09-04 at 16:59, Declan McCullagh wrote:
> 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.

Declan,

Personally, I would like to see Rep. Berman or Mr. French respond to the
following.

The above answer specifically states that this bill is to offset, and I
quote, "overbreadth of many anti-hacking laws".  If Rep. Berman truly
feels this way, why does he not, instead of using tax-payer dollars to
create yet another law, work to repeal or rectify the current
legislation?  It seems a bit silly, no?

Thanks,

--
     Woody

---------------------------------------------------------------
Gatewood Green            Network/System Administrator
Email:                    woody () linif org
http://www.linif.org/ Linux in Idaho Falls Linux User Group
---------------------------------------------------------------

---

From: schew () interzone com (Steve Chew)
Subject: Re: FC: Rep. Berman replies to Politech, defends his anti-P2P piracy
To: declan () well com
Date: Wed, 4 Sep 2002 20:17:22 -0400 (EDT)

>[...]
>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.
>[...]

        I find it interesting that nowhere does Berman give an example of
what kinds of things H.R. 5211 *does* allow the copyright holder to do
(unless its in the bill itself).  They don't mention preventing network
access for a user vis DoS, for instance.  I'd like to know what "limited
actions" are permitted since if they can't touch the computer with the
data then the only thing left is the network which may affect everyone
on it.

                                Steve

---

Date: Wed, 04 Sep 2002 16:43:39 -0700
From: Lizard <lizard () mrlizard com>
To: declan () well com
CC: politech () politechbot com
Subject: Re: FC: Rep. Berman replies to Politech, defends his anti-P2P 
piracy  bill

Declan McCullagh wrote:


> 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.

Let us presume, for a moment, that I am using KaZaa. I place two files in 
my 'sharing' folder:

a)A copyrighted song.
b)A political essay, written by me, entitled "Why I think I have  Right To 
Rip Off Large Corporations Because They Suck"

Please describe the technological measures which would be used to keep 
others on the network from copying 'a', while allowing them to freely 
access 'b'.

It is worth noting, BTW, that I personally feel those who 'share' work 
which belongs to others are, basically, slime, and should be spat on in the 
streets. Unfortunately, the actions of the RIAA, MPAA, and Congress all 
combine to make them out to be even WORSE scum, something which takes some 
doing.

---

Date: Wed, 4 Sep 2002 17:09:26 -0700 (PDT)
From: tack <tack () gaffle com>
To: Declan McCullagh <declan () well com>
Subject: Re: FC: Rep. Berman replies to Politech, defends his anti-P2P 
piracy bill

> 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.

That's a nice dodge there, what he fails to mention is that instead of
being able to file a criminal complaint about a felony (computer fraud
and abuse act), I now have to file a civil suit using my own money.  I am
unlikely to win because I don't have hollywood's army of lawyers behind
me.  Even if I do win, where before they would be facing jail time, they
get a slap on the wrist and I had to go through the trouble of a lawsuit,
instead of letting the DOJ, FBI and Secret Service take care of the
problem.

So yes, the number of remedies might be greater under this p2p bill, but
why would I want to trade my giant boulder for a handful of pebbles?

tack

---

From: "Jeff Dafoe" <jeff () badtz-maru com>
To: <declan () well com>
References: <5.1.1.6.0.20020904185552.0296b828 () mail well com>
Subject: Re: Rep. Berman replies to Politech, defends his anti-P2P piracy  bill
Date: Wed, 4 Sep 2002 20:10:09 -0400

    I don't know if this question is relevant to the list, but after reading
this information, I wonder how a copyright owner could, by accessing P2P
networks,  "prevent piracy of their works through publicly accessible,
peer-to-peer (P2P) networks, like KaZaA, Morpheus, and Gneutella" after the
fact, taking all of the supposed limitations in HR 5211 into account .
Aside from attempting to maliciously affect clients and data, what other
method is there to remedy unlawful P2P distribution of a particular file
after such distribution has already commenced?

Jeff

---

From: "ßobÇat" <bob.cat () snet net>
To: <declan () well com>
References: <5.1.1.6.0.20020904185552.0296b828 () mail well com>
Subject: Re: Rep. Berman replies to Politech, defends his anti-P2P piracy  bill
Date: Wed, 4 Sep 2002 20:52:45 -0400

> 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.

Finally! A law that will let little ol' me file suit against a multi-billion
dollar, multi-national media conglomerate!

Thanks, Congressman Berman!

---

Date: Wed, 04 Sep 2002 17:56:49 -0700
To: declan () well com, politech () politechbot com
Subject: [confidential- no name/contact info please]Re: FC: Rep. Berman
replies to Politech, defends his anti-P2P piracy bill

Declan -

This entire response is frivolous and based on the rhetorical assumption 
that the bill is actually based on a good idea for modifying many 
longstanding existing policies.


>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.

Setting aside Mr. French's creative spelling through the entire message, I 
have long wondered when the actual infringing copy happens under existing 
copyright treaties. Is the mere existence of a copy on a p2p network of a 
copyrighted file evidence of non-fair use? Suppose the files are .cab files 
installed as part of Windows that just happen to be in a p2p shared 
directory, even if a Windows  install placed them there? Do they suddenly 
become infringing because the directory is available via P2P? Why not make 
the case that an infringing copy has to be made by the copy*er*, not the 
copy*ee*, if there is an infringement at that point at all?

Since retrieving a copy of a file one owns the copyright to seems to not be 
a infringement, and it doesn't prove that an infringing copy ever took 
place, I suspect the actual methods to be employed may be more subtle - 
setting up sniffers at key ISP locations to monitor traffic for infringing 
copies before launching a DoS attack.

Scary. Sort of a anything goes private sector Operation TIPS that any 
corporation or individual that owns a copyright (and who doesn't?) can use 
to spy anywhere on the net for anything they suspect might be out there.


>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.

Sounds like an invite to DoS attacks to me. If I am Disney et. al. I just 
find files I don't like and download them continuously with bandwidth that 
dwarfs the P2P server. Does the Representative think the world just fell 
off a turnip truck and can't devise trivial hacks around proposed 
legislation? (See my earlier message about PRI's "pay to spam" proposal and 
more sprinkled through this message)

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

Doing so requires no use of limited resource of the target (e.g. bandwidth)

>Banks face no liability when they repossess
>automobiles for delinquent loan payments.

This is a contractual issue. Get me to agree to a contract for mutual 
consideration when I want a new DVD or CD, and if I don't live up to the 
terms you can gladly have it back. But this is not the same - would the 
Representative do away with the "First Sale Doctrine"?

>However, due to the overbreadth of many anti-hacking laws,

Opinion masquerading as fact. Others have the opinion, which they do not 
use the despicable rhetoric of claiming as "fact" that copyright laws are 
out of whack somehow. The problem that I think everyone can agree on is the 
peg and the hole are no longer the same shape. Let's discuss ways to 
address that issue, but let's not claim facts where there are but opinions.

>copyright owners do not have a corresponding ability to prevent the theft of
>their property through P2P systems.

IANAL, but I am guessing they don't have the ability to take the law into 
their own hands in traditional copyright infringement matters either. I am 
guessing that if Disney becomes aware of a ship container full of Mickey 
Mouse t-shirts and videos coming from China down on the docks unexpectedly, 
they don't have permission to send a couple of guys from IT down to pick 
them up. Why should they in this case?


>H.R. 5211 would correct this
>unintentional inequity.

And create the right, probably even the legal obligation to "blockade" and 
P2P server they deem as infringing without needing additional recourse from 
the civil justice system.


>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.

No, they are a natural application of the lower level TCP/IP protocols 
which allow each machine with an address to communicate with each other as 
a peer. Any protocol operating on top of TCP/IP inherits this 
"non-client-server" property. Of course one could build around it in higher 
level protocols, but you need to do that explicitly. P2P is just a protocol 
that uses less "design arounds" then usual.

In fact, it is other protocols that have been designed ingeniously to work 
around (to some extent) the core property of TCP/IP. If anything, P2P 
protocols are *under-designed* and work closest to the pure way of TCP/IP.

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.

Come on. Many people in each of this group, some with valuable intellectual 
property have publicly said P2P is to their benefit. Let's not say "all" 
when we mean some. I am starting to feel that the Representative's rhetoric 
is as weak as his spelling, although his soapbox seems well positioned to 
spew from.

>H.R. 5211
>restores to these copyright owners the right to decide whether their
>creations are distributed through P2P networks,

If it does that, it does it by inviting DoS attacks, which is theft of a 
different kind.

>and takes that decision out
>of the hands of pirates.  A  photographer - not a pirate - should decide
>whether her photographs are distributed through Gneutella.

I am imagining a new P2P protocol that only sends on request if it can get 
a copy of a blacklisted file first from the requester. If you don't first 
give up something that is verifiably a copy of something else that is 
subject to this bill, you get nothing from me. P2P turns in to "tit for tat 
(T4T)" - I hope that makes it through overeager email filters :)

>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.

Especially if they use Windows :) since I have already labeled weak 
rhetorical devices for what they are a few times, I will do so again. This 
is just unadulterated fear mongering. I think the representative forgot to 
mention that Osama bin Laden communicates solely through p2p servers he 
sets up in little Suzy's computer in Omaha.

>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.

Or maybe they are finding out that the economic value of their works has 
always been in the control of limited distribution channels, and now that 
that control is broken, the true value is not as much as was once believed. 
Horse and buggy operators had the same problem 100 years ago, but we chose 
technology over propping up an industry that had served its purpose.


>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.

Note that the authorization does not need to be explicit, but can fall 
under the Fair Use Doctrine.

Which just leads me to another idea for a new P2P protocol - sharing file 
fragments only, each small enough to be considered "fair use". Ok, so you 
might need to get 6 separate parts from places to reconstruct the whole 
thing, but still....


>There is
>no concept of fair use that encompasses making a copyrighted needlepoint
>design available for downloading by 100 million KaZaA users.

Of course there is, more playing to Pretoria not withstanding. A needlework 
design is copyright by its virtue of having been put in a fixed medium and 
fair use is determined by the law and the user, not the copyright owner.

Maybe I will take a look at how needlepoint is expressed and write a 
program that generates a zillion different combinations of possible 
patterns and puts them up on some server. That way I will have the 
copyright on what are bound to be some new and good ones and I will place 
them in the public domain :) That should take about an afternoon or two.

>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.


So steal resources now with a DoS attack let the chips settle later....

>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.

Who gets to decide and when?

>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.

So Li'l  ol' me is tied up in court with Sony for years while they continue 
their DoS attacks. Gee thanks for the bone.

How about allowing remedies of the sort in the spirit mentioned before - 
whatever it takes in the real world to make it stop...I will let readers 
use imagination as to what that would involve. I wrote it down but deleted 
it because it would turn into an arms war as a logical and swift 
conclusion. The Representative wishes to fire the first shot and then 
declare the game over. But there are no ruby shoes here and that just won't 
happen.

>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.

So if I have lawful files on a p2p server in addition to ones that are 
suspected to not be so by somebody, the very act of their using bandwidth 
for the purposes as describe in the Act would also prevent legal file 
trading too. Perhaps the Representative might want to think about 
describing how much one would be allowed to interfere with lawful file 
trading instead of working in such absolutes. Let's be honest about it, 
rhetorically speaking (again!).


>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.

Oh I am sure that's gonna happen!


>determine "who" a P2P infringer is.  Rather, a copyright owner, like every
>other P2P user, simply knows "where"

"suspects where" - how could they "know where"?


>- at which IP address - their
>copyrighted work is located.


But see the suggestion about splitting apart files above....


>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.

Wow - more doublespeak! "Less invasive" by fiat - just by saying so unseen 
attacks by private unaccountable entities is "less invasive" then using the 
Constitution-established justice system! Which law was it again that 
establishes the right to vigilantism again? Oh yeah, it was *this one*!

>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.

But since they can only go in the shared directories, al that info was 
already public. More empty rhetoric.


>Does the bill outlaw or otherwise "kill" P2P networks?
>
>No.  H.R. 5211 only affects illegal activity on P2P networks,

Presumably in the US only, right? And presumably the fishing expeditions 
will need to take place using only computers in the same sovereign 
jurisdiction right? Or is this whole anti-technology industry going to 
spring up in the same Carribean locations that are havens for phone sex and 
on-line gambling now? Hmm, maybe 2 birds killed with one stone - the online 
gamblers can afford to shut down because they now have this bottomless pit 
to mine...

>but in no way
>affects the networks themselves or the sharing of legal content through
>them.

Except for the use of limited bandwidth on fishing expeditions.

Sounds like P2P protocols need something akin to a Robot Exclusion Protocol 
that web servers have, and then if the bill required the bandwidth thieves 
to correctly identify themselves and risk being banned, then more f it 
might become palatable.

>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.

Maybe the "bill" recognizes it, but agai this is opinion masquerading as 
fact. Even if there is illegal trading of files under current copyright 
laws on a P2P network, there is no logical, physical, or technical reason 
that impacts the sharing of other files at all. It happens independently of 
each other.

It is primarily copyright holders whose entire business model was based on 
a limited distribution channel that they didn't have the business insight 
to notice was about to become unnecessary that is up in arms. Frankly, this 
happens time and time again in just about every industry - sometimes they 
can adapt and sometimes not. It is just economics and progress, and is 
predictable as a trend if not in the details. Sorry Disney.

>H.R. 5211 aims to clean up P2P networks, not clear
>them out.


... and create artificial market conditions to enforce ancient distribution 
channels. This just doesn't work for long. Even the Berlin Wall came down.

>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.


Rhetorical nonsense again - the only people who feel P2P networks are "only 
useful for illegal purposes" are supporters of this bill and no one else. 
Amazingly, there is a high correlation of those "believers" and the only 
people who profit from the material under discussion. Hmmmm. Makes you think!

> 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.

You think it is hard to identify a person behind an IP address? Try to find 
the legal entity that "owns" a copyright sometime....

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.

Another idea for new P2P protocols - each transfer necessarily "destroys" a 
file on the sender's computer.

But it is even simpler than this...by this description merely logging the 
transaction would cause alteration of files, and hence abrogate the ability 
to do anything under the bill at all.


In summary:

Like the encryption wars of the 80s and 90s, this is just going to send 
emerging industries where the US is the leader, outside the US.

To paraphrase from the ongoing pro-choice struggles - "Uncle Sam Out Of My 
Computer!"

---

From: "K S"
To: <declan () well com>, <politech () politechbot com>
Subject: Re: Rep. Berman replies to Politech, defends his anti-P2P piracy bill
Date: Wed, 4 Sep 2002 21:23:03 -0400

I read a lot, and I think this guy is lying. Why exactly would Berman and 
"friends" want to give p2p traders new rights to protect themselves? That 
will deprive them (or so they think) of the almighty dollar they so 
desperately (and greedily) want.
Please change my email to 
<mailto:HAZMAT () fuckmicrosoft com>HAZMAT () fuckmicrosoft com (I'm in the 
process of getting Linux :)) .

---

Date: Wed, 4 Sep 2002 22:56:56 -0700 (PDT)
From: Ben Shreck
Subject: response to R. Berman and Alec French
To: declan () well com

Declan -

I have provided a response (somtimes tongue in cheek) to R. Berman's
FAQs on the proposed H.R. 5211 below.  However, I must respond to Alec
French's assertions, which are unfortunate, first.

Mr. French states that "There simply is no 'reasonable basis' language
in the safe harbor created" by the bill.  While this is literally true
as there is no such language in the actual safe harbor, section
514(a), there is, as he admits, such language in 514(d), the remedy
for "wrongful impairment".  According to the language of 514(d), a file
trader can only recover damages (and only if they are in excess of
$250), if the copyright owner has "NO reasonable basis to believe that
such distribution, display, performance, or reproduction" is an
infringement.

Thus, in order to recover damages for harmed files, an affected "file
trader" must show that (1) he has suffered "economic damages" in excess
of $250, and (2) that the copyright owner did NOT have a "reasonable
basis" to believe that his copyright was infringed.  While the safe
harbor, at least technically, is not "expanded" by this language, the
remedy is limited, which amounts to the same thing.

Furthermore, "economic loss" is defined to mean "monetary costs only".
See Section 514(h).  Therefore, a copyright owner who interferes with
your file trading and has a reasonable basis to believe that doing so
would prevent infringement of his copyright, and subsequently deletes
your only copy of a picture of your wife and kids before they died in a
horrible incident, is not liable to you even if you have never traded
copyrighted material, and probably even if he had no "reasonable basis
to believe," as your "monetary cost" from the picture is very likely to
be less then $250 (and even though the value of emotional distress may
be much more).

As far as not limiting other remedies, it purports to not limit
remedies against copyright owners who violate other laws.  However, if
a copyright owner qualifies for the safe harbor in 514(a), he is indeed
immune from remedies in any other law.  See 514(f)(2).  Therefore, as
long as a copyright owner only impairs a P2P network without impairing
any files on a file trader's computer (and the remedy for such action
is further limited by 514(d), mentioned above) he is not liable.  I
submit this is not the case under most other statutes.

Anyway, my response to the FAQs follows....[they are to the version on
Berman's website as I found them at
http://www.house.gov/berman/p2p_faq.html and differ somewhat from Mr.
French's emailed version and should be read in conjunction with such
responses in order to make sense]

"What does H.R. 5211  do?"

It allows owners of copyrighted works to personally and completely
disrupt P2P file trading, as long as they "actually" impair the trading
of their copyrighted work.  In other words, Dreamworks is immune from
liability for shutting down KaZaa as long as they stop some trading of
Saving Private Ryan and don't "impair" the files on any user's
computer.

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

Because the MPAA and RIAA might stop giving Congressmen money.  Also,
because congress drafted previous computer crime laws so broadly that
interfering with your OWN computer might be illegal, an exception is
needed for copyright owners so they can interfere with your computer
(or network).

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

Well, yes, see the answer to the above question.  Also, disregard the
analogies on Berman's website as laughable
(http://www.house.gov/berman/p2p_faq.html).  Satelliete companies
encrypt their content before it is sent out, which cannnot be
reasonably
described as (or analogized to 'self-help') an "electronic
countermeasure."  Banks can only repossess cars if they do not "breach
the peace" which basically means they can only take cars on public
streets without the delinquent owner's knowledge or objection.  You can
only take your bicycle from a thief's yard if he doesn't object.  You
can be sued by the pickpocket, and lose.  In summary, self-help has
been basicaly outlawed except in the case of self-defense.

Doesn’t current law provide copyright owners with sufficient tools to
stop piracy?

Yes, but it is expensive, which is why copyright owners always want the
law changed so they can sue people with money (like ISPs).  This is
also why we need Hollings bill (which requires any digital device to
incorporate anti-copying technology), so we can get Dell and other
technology companies to pay for the cost of policing copyright
infringement.

Who does H.R. 5211 benefit?

Copyright owners.  The ability to shut down file trading systems with
impunity will greatly enhance such owners.

Is P2P file-sharing illegal?

"It depends."  This is the proper response to almost any question
formed as "Is ____ illegal?"  "Is murder illegal?" It depends, was it
self-defense (in which case it was legal) or was is not (illegal).  Is
copyright infringement illegal? It depends.  Its not if it is fair use,
parody, de minimus....it is if it is at a sufficiently complex "level
of abstraction."  Also, see the AHRA.  Also, while the users sharing
files might be doing something illegal, the network across which those
files travel may be doing nothing of the kind, see the safe harbors of
the DMCA and principles of vicarious and contributory infringemtn.
This
bill allows copyright owners to disrupt those networks, even if the
networks are doing nothing illegal, without consequence.

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

Yes, but unfortunately there is almost no such thing as an "overzealous
or unscrupulous copyright owner" according to Congress.  Plus, in order
to sue under the new remedy provision of the law, a file trader must
submit a claim to the Attorney General, and if the attorney general
determines that there is "no[] reasonable cause to believe that the
facts alleged in the claim are true" the file trader cannot sue.

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

Yes, as long as copyright owners don't "impair" any file and prevent it
from infringing on a P2P network.  If a copyright owner hacks
into your computer under the reasonable belief that you have been
violating his copyright, and prevents you from continuing to do so,
they cannot be sued for the hacking as they are protected by the safe
harbor (though this may be debatable).

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

YES!  The following is quoted from the bill "Notwithstanding any State
or Federal statute or other law, and subject to the limitations set
forth in subsections (b) and (c), a copyright owner 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...."  The exception in subsection (b) applies only if the
copyright owner's action is not "reasonably necessary" to stop the
infringement and (c) is a notification requirement (and the owner must
only notify the attorney general, NOT the file trader).

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

Mmmmm...Probably not, but the explanation given in the Representative's
answer is quite wrong, and probably misleading.  Also, if the bill does
not give, as in the "answer" to the FAQ, "copyright owners any ability
to determine 'who' a P2P infringer is," it just shows that copyright
owners want to sue the people with the money.

Does the bill outlaw or otherwise “kill” P2P networks?

No, but it might as well, and once again the answer given, while
technically correct, is practically wrong.  The bill itself does not
"kill" P2P networks, but gives copyright owners the ability to do so.
This bill no more "clean[s] up P2P networks" than a bill allowing
victims of felony-for-hire crimes to shut down phone companies if the
felony-for-hire was done over the phone line and thus "cleans up phone
companies."

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

Only in accordance with the bill.  You can knock a P2P "file sharer"
[note the difference from the statutory language of 'file trader']
offline as long as you actually impair infringement of your copyrighted
work, or reasonably believe that knocking them off would do so.


Please cleanse my email from this response if you happen to publish it.

---

Date: Thu, 5 Sep 2002 09:34:47 +0100
From: Toby Inkster <tobyink () goddamn co uk>
To: declan () well com
Subject: Re: FC: Rep. Berman replies to Politech, defends his anti-P2P 
piracy bill

On Wed, 04 Sep 2002 18:59:02 -0400
Declan McCullagh <declan () well com> wrote:

| 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.

Surely one question to add to the FAQ has to be "Then why not re-write such 
badly written laws?"

--
Toby A Inkster BSc ARCS
PGP:      http://www.goddamn.co.uk/tobyink/node.cgi?id=12
Web Page: http://www.goddamn.co.uk/tobyink/
IM:       AIM:inka80 ICQ:6622880 YIM:tobyink Jabber:tobyink () a-message de

---

From: "Tony Dye" <tony () bluetree ie>
To: <declan () well com>
Subject: RE: Rep. Berman replies to Politech, defends his anti-P2P piracy bill
Date: Thu, 5 Sep 2002 10:21:53 +0100

Declan,
        Rep. Berman's FAQ repeatedly uses the word "distribution" to refer 
to P2P
networks, but this use is a bit deceptive, because a P2P user doesn't
distribute data in the same way that, say, Politech distributes emails.
There are two interesting differences:
        First, having an MP3 collection available for indexing by KaZaa 
doesn't
guarantee that you'll "distribute" anything, ever. Only when someone
specifically chooses a file you possess do you have the possibility of
sending the file to them. Merely having the songs indexed is, IMHO, nothing
more than a very effecient database of people's song lists. "Distribution"
isn't quite what's going on.
        Second, there's no guarantee that a user downloading a file will 
get more
than a few bytes from any given user. KaZaa and other FastTrack clients have
a feature where they can download the same file from multiple sources and
stitch it back together on your PC. A song I download from KaZaa may have as
little as 16K of information in it from any one particular user. Surely
transmitting 16K of music doesn't constitute infringement!

Quoting from the FAQ: "However, unauthorized distribution of copyrighted
works through a publicly
accessible, P2P network is copyright infringement pure and simple."
        I'd love to know if Mr. French or Rep. Berman considers the 
sharing of an
MP3 between two parties, who both have purchased the original song, to be a
copyright violation. If so, why? How can sharing a song I already own be a
violation of copyright, if I already have the right to possess the work in
various different formats simultaneously? If it's not a violation, how in
the world can it be one to share the song over a P2P network? It would seem
to me that while Rep. Berman's bill restricts copyright holders to impairing
violators only, it reframes the idea of a violation to include any work
available on the network, regardless of whether the parties involved in the
sharing are doing so within their rights.
        If you accept that a copyright violation only occurs when a user 
downloads
a work he has never purchased, this bill seems useless. How is it useful
when the copyright holder can only act on violations but cannot find any
personal information about the user to determine if a download is an
infringement? This bill does not accept that idea, though.
        The truth is, this bill has a completely different outlook, one which
discards reason in favor of the idea that placing a work in the KaZaa shared
folder constitutes distribution of the work, when in fact that act
distributes nothing; it only allows for the possibility of a series of
person-to-person transfers of data which may be completely legal because
both parties may already own the work or because the amount of data sent is
too small to constitute infringement. This bill works from the premise that
if a copyright holder sees a work in a list of available downloads, the user
is fair game for Denial of Service attacks (which, you'll remember are again
and again referred to in the media as 'hacking') against that user's ability
to transmit the work. It's a flawed premise which will be difficult to
debunk and practically impossible for individuals to defend against.

-Tony

---

From: "Vincent Penquerc'h" <Vincent.Penquerch () artworks co uk>
To: "'declan () well com'" <declan () well com>
Subject: RE: Rep. Berman replies to Politech, defends his anti-P2P piracy
        bill
Date: Thu, 5 Sep 2002 11:25:32 +0100

> 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.

Greetings,

I'd be curious about what H.R. 5211 says about *reading* of computer
files or data. What Alec says here sounds fine, but I wouldn't like
someone reading my files just to make sure they're not illegal copies
of someone's stuff.

--
Vincent Penquerc'h

---

From: "D McOwen" <dmcowen () bellsouth net>
To: <declan () well com>
Subject: RE: Rep. Berman replies to Politech, defends his anti-P2P piracy  bill
Date: Thu, 5 Sep 2002 08:43:57 -0400

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

>In addition, H.R. 5211 will help consumers by fostering the development of
reliable and legal
>online services for downloading copyrighted works.

Oh I see, only through Government controlled access only (with payments
directly to the RIAA and MPAA I'm sure) through a centralized NOC (Network
Operations Center) that screens all data traffic that President Bush is
proposing. Sounds like China to me turning off access to Google and the
Internet itself over there.

>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.

Excuse me, this is coming from the same Technology challenged politicals
claiming the same P2P technology in screensaver mode costs 59 cents a second
in bandwidth and is Felony crimes worthy of 120 years prison time.

NO, the people of America and the world cannot stand by and let these
Political Technophobes DICTATE what they want or will allow and not allow
the technology course to follow.

In 1993 before the Internet, these very same people under the direction of
Intel and the State of Oregon leveled 3 Felony counts and $267,000 in fines
and restitution to an Intel employee for writing a perl program script so
that he can get his own work mail from home! I just recently met him, Randal
Schwartz. His case was pre-Internet while mine was Post Internet. My life
was saved by the outpouring of support through the Internet by ordinary
people all around the world doing an extraordinary thing, uniting against a
U.S. State Government tyranny on a worldwide scale.
We are but only two small examples of State Government powers run amok
before the U.S. Federal Government legislation they are trying so hard to
push now through. Can you imagine what will happen? You don't want to, no
one should ever have to go through what Randal and I and a growing list of
people have gone through at the hands of technophobic and computer
illiterate politicians. Stand up everyone and stop it before we head towards
another Boston PC Party.

David McOwen
http://www.freemcowen.com

---

Date: Thu, 05 Sep 2002 11:13:39 -0400
From: Jim Rapp <infoseeker () comcast net>
Subject: RE: Rep. Berman replies to Politech, defends his anti-P2P piracy bill
To: declan () well com

Too detailed to comment on (don't have the time), but after reading the
Berman provided FAQ this legislation appears to be a real nightmare.
Without a court issued search warrant, it seems no one should have a right
to rifle around one's computer(e.g., just like a wiretap, the threshold
should be very high, and not easy to do), take it upon themselves to remove/
corrupt digital content on said computer, or instigate a DOS attack.  The
Safe Harbor provision sounds like a 'floodgate' that will encourage such
behavior.  Further, as usual, I think using the protecting the artist
argument is bogus, when everyone knows this sort of legislation is all about
protecting large entertainment ologopolies that dole out generous campaign
contributions 'to the right elected official(s).'

Keep up the good articles that are shining the light on potentially onerous
legislation such as this.

No response needed, just commentary from the proverbial cyber peanut
gallery.

Jim

P.S. Good you are a journalist, as affords you some 1st amendment
protections.  If you were not, I suspect you would have been sued by now in
an attempt to stifle your output.

---


From: Amos Satterlee <asatterlee () inta org>
Reply-To: amos () satterlee com
To: "'declan () well com'" <declan () well com>
Subject: RE: Rep. Berman replies to Politech, defends his anti-P2P piracy bill
Date: Thu, 5 Sep 2002 12:34:26 -0400

Declan:

Mr. French: 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).

Response: Sure there is. If the copyright holder can argue "reasonable
basis", then no action can be brought. There's a great difference between a
requirement to prove the existence of infringing materials and a requirement
to have a reasonable basis.

Mr. French: 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.

Response: This is somewhat disingenuous. The proposed legislation originally
limited a complaintant to seeking redress through the Attorney General, who
had the power to act as prosecutor, judge, and jury. There is still the
problem of economic damage being defined as monetary damage.

Mr. French: 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.

Response: This, too, was substantially changed from the original proposal.

What Mr. French is loathe to admit is that because of the outcry from
sources like Politech, we were able to water down the language of this bill
to a point where it might be reasonable to consider supporting it.

Two other points:

1. I don't understand why complaints are not to be published. Like with good
security disclosure, there are plenty of ways of fully describing a proposed
impairment action without disclosing all particular details.

2. It's of interest that in the FAQ Berman states that alot of the
anti-hacking legislation is too broad. Perhaps he will introduce legislation
to curb these legislative excesses.

Amos

---

From: "John F. Nixon" <jfnixon () ieee org>
To: <declan () well com>
Subject: RE: Rep. Berman replies to Politech, defends his anti-P2P piracy  bill
Date: Thu, 5 Sep 2002 12:44:52 -0400
Organization: IEEE

Combine this remarkable admission

"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."

with

"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."

and

"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 isn't hard to imagine several rounds of countermeasures designed to
bait aggressive copyright holders into actions that could result in
prosecution.  Especially since the *AA organizations are likely to use
automated scanning to detect copyright violations, once the behavior of
the scanning software is known it will likely be easy to trigger
impairment of lawful file-trading.  The doctrine of "fair use" is almost
certain to play a central role in these situations.

This bill appears to be deeply flawed.

--
regards, Fred

---

Date: Thu, 5 Sep 2002 10:33:09 -0700 (PDT)
From: Michael Duggan <pandamatic9000 () yahoo com>
Reply-To: panda () bluegrass net
Subject: Re: FC: Rep. Berman replies to Politech, defends his anti-P2P 
piracy  bill
To: declan () well com

Two words sum up my take after reading thisrebuttal:

Bull Sh!t.
Thanks,
Michael Duggan

---

From: "Chad W. Didier"
To: <declan () well com>
Subject: RE: Rep. Berman replies to Politech, defends his anti-P2P piracy  bill
Date: Thu, 5 Sep 2002 13:47:23 -0400

Declan,

I know you get tons of replies but, I just have to point a couple of issues
out. I read the FAQ provided by Mr. French to us on Politech. However, the
FAQ creates more questions than it answers. It fails to state exactly how
copyright owners are protected and what measures they can take to protect
their property.

The FAQ adamently professes the copyright owner may not delete, alter or
corrupt files or data on one's computer, disrupt a P2P or damage a user's
computer. However, as you read it states "it only provides a safe harbor to
copyright owners who actually impair the piracy of their copyrighted works
through P2P networks". How exactly is this to be accomplished "through" a
P2P network if not by the alteration, deletion or corruption of files and
data or the disruption and damage of a P2P or computer, respectively?
"Impair"? How exactly?

The FAQ also states H.R. 5211 doesn't limit legal action by users against
copyright owners who "impair" their data, files or computer. So then, why
the "safe harbor"? Sounds like its limiting someone's right to sue. How are
copyright owner's going to determine if the data or files contained on a
user's computer are legally licensed or not?

And lastly, after reading the FAQ I was left with the impression all the
copyright owner could do is look at files publicly advertised on a P2P
network. So then, why the need for a "safe harbor" for copyright owners? I
haven't read the exact wording of H.R. 5211. Considering I'm not a lawyer my
interpretation of its language would most likely be technically incorrect
anyway. But, the FAQ doesn't address any real issues I have with a bill
providing protections for something it's FAQ states can't legally be done.

Declan, feel free to forward my rantings onward minus my email address.

---

Date: Thu, 5 Sep 2002 17:24:56 -0500
To: Declan McCullagh <declan () well com>
Subject: Re: FC: Rep. Berman replies to Politech, defends his anti-P2P 
piracy bill
From: paul victor novarese <novarese () novarese net>

Hello,

After reading Rep. Berman's response to critizism of his bill, I was
struck by one thought: the entire document, provided by one of Rep.
Berman's flunkies who "welcomes a reasonable discourse" but doesn't
provide any contact information, is fatally flawed. Every argument
begins with the assumption that "copyright owners" actually own the
works covered by copyright, instead of just the copyright itself. I
was going to call this a "mistaken assumption," but it's such a
fundemental error that it had to be calculated. This is not meaningless
semantics; protection of property from theives is completely different
from copyright enforcement.  Edward Felten has recently written on this
fallacy of "content ownership" [1].



[1]: http://www.freedom-to-tinker.com/archives/000034.html

--
Paul Victor Novarese
KF4ZLI
http://gammatron.novarese.net/
find / -user you -name "*base*" -exec chown us {} \;

---




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