Politech: FC: Ass'n for Competitive Technology applauds Berman P2P hacking bill

[Declan McCullagh <declan () well com>]

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" <mblafkin () actonline org>
To: <declan () well com>


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?



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