P2P MEASURE TO RESURFACE IN 108TH CONGRESS AFTER REVISIONS
Measure that would allow copyright owners to use self- help to stop unlawful peer-to-peer (P2P) file sharing is likely to undergo extensive revisions before being refloated in next Congress, House staffer said Wed. HR-5211, introduced by House Judiciary Subcommittee on Courts, Internet & Intellectual Property ranking Democrat Berman (Cal.), would give content owners immunity from liability under antihacking laws for interfering with transmission of copyrighted material over P2P networks. Measure has generated more than its share of controversy, Subcommittee Minority Counsel Alec French told Heritage Foundation panel discussion on digital copyright. However, he said, despite complaints to contrary, bill envisions only very limited “safe harbor” protection. Any content owner who goes beyond thwarting illegal file transfer -- such as interfering with e-mail or somehow damaging computer -- would face liability, he said.
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Berman had hoped for high level of support from technical, hardware and computer industries, French said. Several companies and associations backed it, he said, but others fault its “pro-technology” approach or were developing business plans that involved P2P systems. At hearing last month, witnesses and Berman’s colleagues showed more agreement on growing threat of online piracy than on provisions of bill itself. Based on public concerns, French said, Berman intends to “significantly redraft” measure and reintroduce it in 108th Congress.
Possible revisions, French told us later, include: (1) Narrowing definition of “P2P network” to ensure bill covers only those systems as they're known today, and not technologies such as instant messaging services. (2) Providing for creation of public database, perhaps maintained online by copyright owners, where user whose P2P file has been wrongfully impaired can find out who did it. HR-5211 now requires affected P2P users to find out who is blocking their files and contact them, which is technologically difficult to do, French said. But reverse -- making content owners responsible for contacting allegedly infringing P2P users -- puts too much burden on ISPs, he said. (3) Adding “belt and suspenders” provisions clarifying that measure doesn’t knock corporate networks offline or cut off e-mail access, as some claim. (4) Clarifying that provision permitting copyright holders to use self-help even if it impairs availability of other files in network as long as what they did was reasonably necessary to stop infringement doesn’t expand safe harbor exception. Anyone with “reasonable concerns” about those and other parts of HR-5211 are welcome to convey them directly to Berman, French said.
In last 20 years, consumers have won only one fight in war between copyright owners and protectors of consumer rights, said CEA Pres. Gary Shapiro. That came in Betamax case, he said, decision now being chipped away by content industry. Lately, however, user community has begun to fight back, he said, pointing to recent U.S. Supreme Court argument in Eldred v. Ashcroft (on copyright term extension) and Rep. Boucher’s (D-Va.) fair use measure.
On Mon., CEA filed amicus brief in MGM Studios v. Grokster Ltd. arguing that careful balance between consumer rights and copyright holders crafted in Betamax case must be protected as new technologies emerged. Technology should be legal if it has “significant noninfringing uses,” CEA said.
“Reports of the death of the movie and music industries at the hands of the Internet are exaggerated,” said Bruce Mehlman, Dept. of Commerce asst. secy.-technology policy. Fight over digital content and rights management has sparked lot of “sound and fury,” he said. Although “intensity is not always constructive,” he said, “attention is warranted” because: (1) Industries involved in issue represent significant number of jobs and revenue with “major league” implications for U.S. economy. (2) Digital content is integral to the takeup of broadband. (3) Issue implicates consumer rights and technological innovation.