THE TRUTH ABOUT THE PEER TO PEER PIRACY PREVENTION ACT:
Why Copyright Owner Self-help Must Be Part Of The P2P Piracy Solution

By U.S. REPRESENTATIVE HOWARD L. BERMAN
Tuesday, Oct. 01, 2002

In July, three colleagues and I introduced H.R. 5211, the Peer to Peer Piracy Prevention Act. The bill ensures that copyright owners won't face liability for using reasonable, limited self-help to prevent the theft of their works on peer-to-peer (P2P) networks.

The illegality of unauthorized uploading and downloading on public P2P networks is well-settled. As the Ninth Circuit put it in the Napster case, "Napster users infringe at least two of the plaintiffs' exclusive rights: the rights of reproduction and distribution. Napster users who upload file names to the search index for others to copy violate plaintiffs' distribution rights. Napster users who download files containing copyrighted music violate plaintiffs' reproduction rights."

The question is then: What should be done about the massive piracy occurring on peer-to-peer networks?

I believe that copyright owners must use both carrots and sticks to deal with rampant P2P piracy - as Julie Hilden argued in a column for this site. In terms of carrots, they must offer reasonably-priced, consumer-friendly ways to access legal content online.

But carrots alone won't lure pirates away from the sweet nectar of illegal P2P downloads. No matter what, copyright owners cannot compete with free downloads - especially when the quality, availability, and usability of the free stuff is always improving. That's why I have proposed the Peer to Peer Piracy Prevention Act.

For legitimate online business models to take hold, illegal P2P downloading must be made more difficult, and copyright owners need effective sticks to accomplish that goal. Lawsuits and prosecutions of the most egregious P2P pirates certainly will provide some deterrent, but can't be relied on alone. Most of the 150 million or more P2P software downloaders believe they will never be hauled into court, and they are right.

Accordingly, I believe copyright owners should be free to use reasonable, limited self-help measures to thwart P2P piracy if they can do so without causing harm. The safe harbor from liability contained in the bill gives them this ability - making clear that in certain, carefully described scenarios, they cannot be sued for availing themselves of self-help methods.

In drafting the bill, I have tried to ensure that only reasonable self-help technologies would be immunized, that the public would be protected from harm, and that over-reaching or abuses by copyright owners who avail themselves of self-help would be severely punished.

A Crucial Limitation: The Bill Immunizes Only Targeted, Non-Invasive Self-Help

Obviously, it is critical that a liability safe harbor be appropriately limited. The bill imposes a variety of limitations on the self-help measures it immunizes.

The most important limitation in the bill is the narrow breadth of the safe harbor itself. The bill says copyright owners get immunity from liability under any theory, but only for impairing the "unauthorized distribution, display, performance, or reproduction" of their own works on public P2P networks.

If a copyright owner can find a way to only impair the piracy of her copyrighted work on a P2P network, she will have no liability. A copyright owner who does more will still be liable. For instance, if her actions have some other effect - such as knocking a corporate network offline, or wiping out files - she will remain liable under whatever previous theory was available. So copyright owners must tread very carefully to make sure they can avail themselves of the safe harbor.

Some, in the media and among the piracy profiteers, claim that the bill is not limited in this way. They claim that the bill gives a copyright owner immunity for anything she does, no matter how illegal, as long as one effect is to stop piracy on a P2P network. According to their "logic", the bill would allow a copyright owner to burn down a P2P pirate's house if one effect of the arson is to stop the pirate's illegal file trading. Clearly, the bill says nothing of the sort, and no judge or disinterested party could read it that way.

The bill immunizes one thing, and one thing only: limited self-help the only effect of which is to stop the piracy of the copyright owner's work on a public P2P network.

Besides the limitations inherent in the safe harbor itself, a variety of other important limitations in the bill ensure that the public will not be harmed.

The bill specifically states that the safe harbor does not allow a copyright owner to delete or alter any file or data on the computer of a file trader. Thus, a copyright owner can't send a virus to a P2P pirate. Nor can it remove any files on the pirate's computer. Nor can it even remove files that include the pirated works. All it can do is impair the illegal distribution or reproduction of those works through a public P2P network.

The bill further states that, except in certain necessary circumstances, copyright owners cannot rely on the safe harbor if their anti-piracy actions impair the availability of other files or data within the P2P network. Since a copyright owner will remain fully liable for impairing the availability of other files or data within the public P2P network, the bill will have only a minimal, if not beneficial, effect on legitimate activity on public P2P networks.

The bill denies protection to a copyright owner if her anti-piracy action causes any economic loss to any person other than the P2P pirate. Thus, the bill protects ISPs, P2P network users, and the Internet public at large against any cognizable harm that could result from the use of self-help technologies.

The safe harbor is also lost if the anti-piracy action causes more than de minimis loss to the property of the P2P pirate. This limitation represents a recognition that even pirates should not be seriously harmed by copyright owners.

Finally, the safe harbor is lost if the copyright owner fails to notify the Attorney General of the anti-piracy technologies she plans to use, or if she fails to identify herself to an inquiring file-trader. These notification provisions ensure that copyright owners who choose to employ self-help measures will operate in the light of day.

As these limitations show, the bill is carefully drafted to immunize only copyright owners who use self-help to impair piracy of their own files in a way that does no damage to innocent third parties, and does only minimal damage to the pirates themselves.

The Bill Provides Copyright Owners with Strong Incentives to Tread Carefully

The limitations outlined above appropriately restrict the scope of the safe harbor. However, these limitations would be meaningless if copyright owners did not have adequate incentive to operate within these limitations. The P2P piracy bill provides such incentives by subjecting transgressing copyright owners to more liability than they have under current law.

An aggrieved party - perhaps a P2P user or an ISP - can sue the copyright owner for any remedy available under current law. For instance, the aggrieved party might be able to bring a civil action under the Computer Fraud and Abuse Act or a state denial of service statute.

The P2P piracy bill provides new, additional remedies for the aggrieved party as well. To ensure that aggrieved parties always have at least one remedy available, the bill provides a new civil remedy beyond those authorized by current law. It also gives the U.S. Attorney General new power to seek an injunction against the transgressing copyright owner.

The Bill Ensures Only Carefully-Limited Self-Help Will Be Used

The two aspects of the bill I have described work in tandem. First, the bill carefully limits the self-help copyright owners can use without liability. Second, it subjects them to serious liability - more than what they have under current law - if they go beyond these limits.

Accordingly, it gives copyright owners extremely strong incentives to only use self-help measures that clearly qualify for the bill's safe harbor. If they stay within the limits, they are safe. But if they go further, they face even greater penalties than they would under current law.

I think the P2P piracy bill provides a strong starting point for legislation enabling copyright owners to thwart P2P piracy through reasonable, limited self-help measures. However, I don't claim to have drafted a perfect bill, and I welcome suggestions for improvements.


U.S. Representative Howard L. Berman is serving his 10th term as the Representative of the 26th District in California. He is the Ranking Member of the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property. He is also the 2nd most senior Democrat on the House International Relations Committee, and the 3rd most senior Democrat on the House Judiciary Committee.

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