The Association for Competitive Technology is a trade association in Washington. At one time it received a substantial percentage of its budget from Microsoft, and was one of Microsoft's most vocal allies in the antitrust wars. It even was the focus of anti-Microsoft espionage conducted by Oracle Corp.: http://www.politechbot.com/p-01230.html Nowadays ACT has veered in a more independent direction, becoming broadly laissez-faire, and Jonathan Zuck points out that ACT has taken public stands opposed to Microsoft. So I'd say that ACT is speaking for nobody but itself when applauding the Berman anti-P2P bill. Unfortunately, being independent does not mean you're right. I think Jonathan underestimates the breadth of powers that copyright holders would enjoy were Berman's bill to become law and overestimates the benefits it would bring. It is certainly possible to be skeptical of the Berman bill without being a copyright abolishinist. Text of Berman-Coble bill: http://thomas.loc.gov/cgi-bin/bdquery/z?d107:h.r.05211: Related Politech message: "Rep. Howard Coble defends peer-to-peer hacking bill" http://www.politechbot.com/p-03918.html Info on hearing on Berman bill, scheduled for Thursday at 9 am: http://www.house.gov/judiciary/schedule.htm -Declan --- Subject: Berman P2P Bill Date: Wed, 25 Sep 2002 13:02:45 -0400 From: "Mark D. Blafkin" <mblafkinat_private> To: <declanat_private> September 25, 2002 Howard Coble Chairman Howard L. Berman Ranking Member Committee on the Judiciary Subcommittee on Courts, Internet, and Intellectual Property VIA ELECTRONIC MAIL The Association for Competitive Technology (ACT) submits the following paper on H.R. 5211 and the subject of protecting digital content on peer to peer (P2P) networks. ACT represents over 3,000 information technology (IT) companies and professionals involved in creating solutions for the transmission of digital content. Like you, we strongly believe that the marketplace, without the assistance government technology mandates, is in the best position to respond to the demands of consumers and copyright holders. ACT has previously stated its general support for H.R. 5211 legislation designed to curtail the spread of illegally acquired copyrighted works. Piracy is a significant challenge for the digital media and IT industry and we applaud your effort to promote technological rather than regulatory solutions. I must qualify this support by pointing out that when crafting copyright legislation, we should maintain a dialogue to avoid untended consequences that could harm small IT companies. There is an estimated $270 billion market opportunity for digital content. The key to this opportunity will be effective, consumer friendly Digital Rights Management (DRM) technologies and solutions. The technology industry is already hard at work to take advantage of an estimated $3.5 billion market for DRM software by 2005. Without a doubt, the emerging and maturing DRM technologies created will enable secure electronic content, in part by providing copyright holders a method to identify and impair the transfer of pirated content via peer to peer networks. Clearly, if legislation to prevent copyright infringement is to work its way through the legislative process, it will have to do so in parts. For example, congress has made the conscious decision to trifurcate the process by addressing the broadcast flag, analog hole and P2P issues separately. This approach demonstrates the vast complexity of crafting a solution while at the same time pointing out the folly of the one size fits all government technology mandates method. We believe your approach focuses on encouraging technological solutions and is far superior to the attempts by some in Congress to who would rather institute government technology mandates. P2P file sharing systems are on the cusp of becoming an important platform for innovation. P2P networks are designed to utilize the storage capacity and power of individual PCs to accomplish tasks once limited to servers and mainframe computers. It is our belief that the deployment of specialized technologies that have the ability to affect the spread of unauthorized content will not have the deleterious effect on P2P networks as claimed by those in opposition. ACT appreciates the Subcommittee's effort to building a strong record of this bill's intent to encourage the use of market based technology, rather than government mandates, to protect the interests of copyright holders. Sincerely, Jonathan Zuck President --- Association for Competitive Technology Briefing Paper: Solving the P2P piracy issue through technology "self help" Over the past year, the collision of copyright law and emerging digital technologies has become one of the most divisive issues in Washington. In today's environment, it is nearly impossible to get beyond the rhetoric and have an intelligent discussion about this extremely important issue. The Berman P2P bill (H.R. 5211) is no exception and this paper is an attempt to "step back from the ledge" and inject a dose of clarity into the debate. 1. Separating the Rhetoric from Reality Despite the red hot rhetoric and creative use of examples from both sides, H.R. 5211 is actually a reasonable piece of legislation. While the legislation is not perfect, it is a noble attempt to fix a very real problem. In this case, it is the rhetoric from the other side of the debate, some from our very own industry that needs to be dispelled. Many opponents of the bill including the trade association representing Morpheus, the Computer and Communications Industry Association (CCIA), have labeled this a "cyber vigilante" bill. Contrary to these brazen claims, H.R. 5211 attempts to strictly limit the use of technological tools by copyright holders to enforce their legal rights. This accusation completely misses the mark. H.R. 5211 is only allowing copyright holders to avail themselves of tools to protect the rights they already have. Indeed, these actions are easily distinguishable from the history of vigilantism. For a bit of historical context, consider the San Francisco vigilantes that sprung up around the time of California statehood. Local citizens had become so impatient with the inability or unwillingness of local officers to enforce the law that they formed a "Vigilance Committee" to administer justice. By the time that the committee disbanded at the end of September, they had hanged four men, handed fifteen over to the police for trials, and whipped or deported twenty-nine more. These actions can be classified as "extrajudicial" at best and in no way analogous to the self help concept behind H.R. 5211. For example, H.R. 5211 subjects the lawful copyright holder to an additional cause of action if it acts outside the protections of the 514(a) safe harbor. Moreover, the copyright holder must clear the enforcement tool with the Department of Justice before it is deployed. In other words, there is no opportunity for the rights holder to administer "frontier justice" with out incurring considerable legal exposure. Ironically it could be argued that pirates may be the ones that band together to seek out copyright holders who are acting within their rights and bring them up on charges. Another objection that has been raised is that the law will get applied outside of P2P networks and include email and other platforms of potential use in file sharing. First, the bill deals directly with P2P networks and file sharing but once again, any tools need prior approval by the Department of Justice, rendering some of these specious claims moot. Furthermore, there are practical implications to these predictions. Monitoring of email for copyrighted content is problematic at best, given legal restrictions and encryption and other tools, especially when you consider the rather inefficient means of file sharing that email represents. Instead, it is far more likely that content owners will target blatant "low hanging fruit" such as Morpheus whose entire raison d'etre is the illegal distribution of copyrighted material. Another red herring introduced by those who favor undermining copyright protection, is that this legislation will spur intervention on the part of everyone seeking to protect their copyrighted material. Since every work is, by default, copyrighted, the scenario is that we will become a society of people scouring the web for illegal copies of our works. Once again this hyperbole is a clear attempt at misdirection. First of all, everyone has a legitimate interest in protecting their copyrighted material but as a practical matter most of us don't bother if there are no economic implications. The likelihood of everyday citizens contacting the DOJ to gain approval of an interdiction tool to control the distribution of their public postings seems pretty low. The basic premise is that copyright holders will now begin to enforce their copyrights, rights that have been upheld in the courts. The notion that this is somehow bad is hard to stomach. Copyright law and policy involves a relationship between rights holders and consumers. Indeed, consumers, through statute and case law, have come to expect certain fair use rights. However, the entities that are engaged in the activism addressed by this bill are not "consumers" in the sense of copyright policy, nor are their activities the type envisioned by the fair use doctrine. These entities are engaged in the piracy of intellectual property, pure and simple. Copyright confers exclusive rights to the author of the particular work. Two of these exclusive rights are the rights of reproduction and distribution. It is well settled that an entity infringes on the right of reproduction by making a copy without authorization from the copyright holder. The infringer violates the reproduction by copying the work irrespective of whether it's sold or given away. The exclusive right of reproduction is tempered by the fair use doctrine. Notwithstanding the continual and stormy debate surrounding fair use, a strong argument can be made that the unfettered copying of copyrighted works conducted on many of the existing P2P networks falls outside of the fair use concept as elucidated by the Supreme Court in Sony Corporation of America v. Universal City Studios, Inc.. It follows then indeed those who "share" are without question, infringing. The opposition's rhetoric also misses the mark concerning the process by H.R. 5211 will be considered. Indeed, many of the groups and individuals who have registered complaints about H.R. 5211 demonstrate a fundamental misunderstanding of the legislative process. Legislation, especially ones dealing with complex technology issues evolve organically. It is clear the author and co-sponsors of this bill did not intend the bill as introduced to be the final product. Indeed, this hearing is being held to solicit commentary and ideas that will undoubtedly find their way into the bill. It is also inaccurate to suggest that this bill is a legislative "stake in the ground" from which the uber-DRM bill will emerge. 2. Why technology self help is a useful mechanism for enforcement Due in part to the nature of their technology and due in part to the potential for liability exposure, companies that produce anti-piracy technology such as: Overpeer, Vidius, NetPD, Media Defender and MediaForce are reticent to discuss aspects of their products and enrich the innovation of anti-piracy technology. In response, one major file trading network, Morpheus has plans to implement its own countermeasures in an attempt to foil spoofing technology. One major benefit of H.R. 5211 is that it will create an "arms-race" environment whereby any number of companies can seek to provide anti-piracy tools to copyright owners. Another argument in favor of deploying technology to enforce copyright is that it's far more effective than bringing individual lawsuits against infringers. Tools that allow for widespread spoofing and interdiction are in the best position to effectuate the goal reducing copyright infringement by frustrating would be pirates. Limited amounts of spoofing, redirection and decoying of infringing works is already occurring on a number of P2P networks. There is evidence that the result has been some reduction in the amount of sharing as users become discouraged by downloading less than quality content. It stands to reason that the development and extensive implementation of tools could create sufficient doubt as to the quality of content on the current P2P networks as to create a flight to any number of legitimate distribution models. By contrast, a litany of lawsuits would only create user animosity while allowing infringers to continue their illicit behavior while the case is adjudicated. 3. Specific technology related issues a. Denial of Service (DoS) Attacks Many commentators have suggested that the only practical remedy available to copyright holders will be DoS attacks. These DoS will take the form of repeated downloads of a file from the PCs where the file is resident. The result would be a significant impediment of the file's availability for download. Arguably, one ancillary effect would be the slowdown of the entire P2P network, including the distribution of authorized content. However, pursuant to 514(c), the copyright holder must notify the Department of Justice the "specific technologies" they intend to use. This provision also requires the Attorney General to specify what shall be in the notice. It seems only logical that the Attorney General would require that the copyright holder explain what, if any, collateral damage would follow from any tool and seek to encourage use of technologies that would effectuate the goal of the bill with less "blunt force trauma." Moreover, arguments against the use of DoS based upon the burden it would place on the exchange of legitimate content are not persuasive. While there may be some slowdown in the ability to exchange all types of content, as the number of unauthorized content traders dwindles, it follows that the DoS incidents will decrease and traffic speed will increase. b. Destruction of peer to peer networks. Some have raised the notion that the actions taken to 512(a) will mean the end of P2P networks. Indeed, the deployment of anti-infringement technologies may destroy P2P networks that are designed primarily to share unauthorized content. Then again, isn't that the point? It is no secret that P2P networks are undergoing a migration away from the Napster model to a legitimate distributed enterprise computing model. Indeed some commentators have noted that the P2P architecture will play a significant role in the emergence of Web services. A key component of this "renaissance" will be the quality of service of the P2P networks. Therefore, efforts to identify and eradicate elements that degrade this quality should be promoted. c. Instant messaging One unintended consequence that was addressed in the language of the bill, but that may still arise is the disruption of an application not designed to share files but that has the potential to do so. For example, there are a number of collaboration and messaging applications, including some server-less versions, which can be used to share files. If a significant number of users start using the collaboration or messaging software for the purpose of illegal file sharing, it is conceivable that the content owner would act to disable the collaboration or messaging software entirely. Though not consistent with the intent of the legislation, the content owner's action could have a negative effect on the development of this platform. Again, because this bill is being vetted publicly, it is likely that subsequent interpretation of the bill language may address this scenario. 4. Enhancements to H.R. 5211 H.R. 5211 is a solid attempt to address a serious problem. To move all parties towards the goals of curtailing piracy while stimulating the growth of the P2P platform as a distribution model, it is critical that this bill accurately balance the rights of copyright holders and the interest of users. To that end we recommend the following enhancements to H.R. 5211. A large percentage of those who trade infringing content on P2P networks are teenagers, college students and others who are trading a small number of unauthorized works. It is logical to assume that many of these users could be persuaded to voluntarily abandon the network if given a notification of the potential consequences posed under this bill and the Digital Millennium Copyright Act (DMCA). This notification could take the form of a small data file explaining that illegal content was found in a public accessible P2P folder and that it should be removed. This would not only further the goal of reducing the amount illegal content trading, but also minimize the need for interdiction of or other impairment. This notice should be integrated into section 514(a). One of the significant concerns raised by the opponents of H.R. 5211 is that those persons whose computers have been the subject of the self-help measures will not know it. In scenarios where the computer has been wrongly targeted or the effects of the content owner' self-help technologies are beyond those allowed by this bill, the computer owner may not know the cause of his or her computer problems. To remedy this concern, content owners should notify all users on which these technologies have been implemented either electronically or by mail via through their ISP. Copyright holders should give notification of the specific IP addresses to the Department of Justice in addition to the notification of technologies they must give under section 514(c)(1)(A). The notification could take the form of a report of IP addresses and the illegal content found. This practice of compiling lists of IP address currently conducted pursuant to the DMCA notice requirement. This notification, also protected under the FOIA exemption under 512(g), would provide a record that could not be altered by copyright holder. This would be particularly important in the event of a failure of impairment technology that removes the rights holder from the 514(a) safe harbor. The phrase "unauthorized distribution" should be changed to "illegal distribution." The term "unauthorized" is confusing given the ongoing debate surrounding fair use. It seems obvious that if material is placed into a public folder which carries a name specific to a P2P network, it is there to be shared with all users as part of the network's commercial nature and is therefore an infringement. Thus, the law will allow content owners to prevent distribution that is "illegal" under copyright law, but the safe harbor will not extend to actions taken against distribution that falls within the legally gray area between the illegal and authorized. Conclusion Once the rhetorical dust clears, we can see that copyright holders have a legitimate interest in protecting their content and one which is not adequately served in the current environment. The specious apocalyptic predictions of the CCIA on behalf of Morpheus, a business built on illegal file trading, need to be set aside in favor of a more balanced view. There are significant ways to improve this legislation to ensure compliance by copyright holders but it is clear that H.R. 5211 is on the right track. Why else would Morpheus be barking so loudly? ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ Declan McCullagh's photographs are at http://www.mccullagh.org/ ------------------------------------------------------------------------- Like Politech? Make a donation here: http://www.politechbot.com/donate/ Recent CNET News.com articles: http://news.search.com/search?q=declan CNET Radio 9:40 am ET weekdays: http://cnet.com/broadband/0-7227152.html -------------------------------------------------------------------------
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