The Peer-to-Peer Piracy Prevention Act

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Legal Issues

Will the ability to conduct intermediary searching soon be at risk?

A most peculiar and unsettling bill has been introduced in Congress. On July 25, U.S. Rep. Howard L. Berman (D-Calif.), the ranking member of the Subcommittee on Courts, the Internet, and Intellectual Property, proposed an amendment to the U.S. Copyright Law (Title 17 of the United States Code). Called the "P2P (peer-to-peer) Piracy Prevention Act," the legislation would "limit the liability of copyright owners for protecting their works on peer-to-peer networks." The bill is supported by U.S. Reps. Howard Coble (R-N.C.), Lamar Smith (R-Texas), and Robert Wexler (D-Fla.).

If Berman's bill, H.R. 5211 (http://www .house.gov/berman/p2p.pdf), is enacted, a new clause would be added to Chapter 5, Copyright Infringement and Remedies (http://www.copyright.gov/title 17/92chap 5.html). Under the planned Section 514 (Remedies for infringement: use of technologies to prevent infringement of copyright works on peer-to-peer computer networks), a copyright owner would not be held 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, if such impairment does not, without authorization, alter, delete, or otherwise impair the integrity of any computer file or data residing on the computer of a file trader." Before disabling a P2P network, the copyright owner would be required to notify the Department of Justice.

A user-referred to as a "file trader" in the bill-who may be unjustly affected by a copyright owner's decision to disable the infringing work may seek compensation if suffering an "economic loss in excess of $250." The user would file a claim with the Attorney General, who is required to examine the allegation but is not allowed to make the investigation public.

In remarks made while introducing the bill (Congressional Record, July 25, 2002, page El 395), Berman stated:

[T]he primary current application of P2P networks is unbridled copyright piracy. P2P downloads today consist largely of copyrighted music, and as download speeds improve, there has been a marked increase in P2P downloads of copyright software, games, photographs, karaoke tapes, and movies. Books, graphic designs, newspaper articles, needlepoint designs, and architectural drawings cannot be far behind.... P2P distribution of this scale does not fit into any conception of fair use.... The massive scale of P2P piracy and its growing breadth represents a direct threat to the livelihoods of U.S. copyright creators.... It also threatens the survival of the industries in which these creators work, and the seamstresses, actors, Foley artists, carpenters, cameramen, administrative assistants, and sound engineers these industries employ.

Although Berman acknowledges the importance of digital rights management (DRM) technologies and lawsuits against infringers, he dismisses their roles as less than perfect remedies for stopping the growing spread of piracy within the entertainment industries:

While the development and deployment of DRM solutions should be encouraged, they do not represent a complete solution to piracy.... Copyright infringement lawsuits against infringing P2P users have a role to play, but are not viable or socially desirable options for addressing all P2P piracy.... The costs of a litigation approach are likely to far outweigh the potential benefits. While litigation against the more egregious P2P pirates surely has a role, litigation alone should not be relied on to clean up P2P piracy. Copyright owners could, at least conceptually, employ a variety of technological tools to prevent the illegal distribution of copyrighted works over a P2P network. Using interdiction, decoys, redirection, file-blocking, spoofs, or other technological tools, technology can help prevent P2P piracy. …