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Berman on p2p
By Jon Newton,
(more articles from this author)
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Music Industry News - as it happens
Source: Mi2N - July 3, 2002

"When industry fails to create adequate technologies to serve a government need, the government must sometimes commission creation of such technologies," Congressman Howard L. Berman (D-CA) told a recent meeting of the Computer and Communications Industry Association (CCIA).

He went on, "Similarly, when technologies obstruct a policy objective, the government must sometimes outlaw or limit such technologies.

"My impression is that there is a growing frustration in Congress with the apparent lack of progress in creating adequate and interoperable DRM (digital rights management) standards. This frustration does not bode well for those who oppose government mandates on DRM standards."

Moreover, warned Berman, if the "marketplace" fails to create "adequate solutions", "more and more Members of Congress [will be convinced] that government intervention is necessary".

Congressman Berman is the ranking member of the House Judiciary Subcommittee on Courts, the Internet and Intellectual Property, and one of the latest US politicians to jump the Net piracy bandwagon. Earlier in his speech, Berman said he thought "Interdiction, decoy, redirection, file-blocking, and spoofing technologies" are solutions to "Peer To Peer Piracy" and, accordingly, "In order to stimulate dialogue on this issue, I intend to introduce legislation creating such a safe harbor for technological self-help measures. I will, of course, be happy to work to address any reasonable concerns expressed about such legislation. I am hopeful that the Subcommittee on Courts, the Internet, and Intellectual Property will mark up this legislation in the remainder of the 107th Congress."

In the meanwhile, "Internet piracy is not promotional," he told the CCIA. "This argument is laughable sophistry. There may be some who just want to try before they buy, - I dont [sic] question that - but the vast majority of illegal downloaders just want free stuff, and dont [sic] intend to purchase legitimate copies. Do I have proof? Yes, I have both common sense, a rudimentary grasp of economics... and a college-age daughter."

He didn't say if by that he meant his daughter downloads free stuff without intending to purchase legitimate copies.

Be that as it may, Berman thinks there's a symbiotic rather than adversarial relationship between "Hollywood" and "High-Tech" which needs to be nourished. But, "There are many obstacles to technology and media reaching their full symbiotic potential. Primary among these obstacles, I believe, is piracy of copyrighted works," he said, going on:

"Internet piracy threatens to undermine the symbiosis between the technology and media industries. The widespread availability of pirate works online makes it difficult for copyright owners to develop viable Internet business models. No matter what bells and whistles they add, copyright owners cannot compete with unauthorized Internet services that make their works available for free.

"There is no justification for Internet piracy. There is no difference between pocketing a CD in a Tower Records and downloading copyrighted songs from Morpheus. Theft is theft.

And among Net piracy problems, the most vexing is that presented by peer-to-peer, or P2P networks, said Berman, continuing that the primary current application of P2P networks is, "unbridled copyright piracy" which "must be cleaned up".

Berman's solution is, "most likely a holistic approach relying on a variety of solutions, none of which constitutes a silver bullet. At least one of these solutions may require congressional action to make it effective".

Many believe that an important part of the solution to piracy involves digital rights management, or DRM, technologies which protect copyrighted works from unauthorized reproduction, performance, and distribution, he stated.

"I support the use of strong DRM technologies. Such technologies not only help deter piracy, but are pro-consumer and pro-technology." However, Berman suggested, the development of strong, effective, consumer-friendly DRM technologies is not a foregone conclusion and, "Significant debate swirls around the appropriateness of such technologies, the appropriate role of government in their creation, and the state of industry development efforts."

While the development and deployment of DRM technologies should be encouraged, they don't represent a complete solution to p2p piracy and won't address copyrighted works already in the clear on p2p networks. Moreover, "DRM solutions will never be foolproof, and as each new generation of DRM solutions is cracked, the newly-unprotected copyrighted works will leak onto P2P networks," he said.

"Shutting down all P2P systems is not a viable or desirable option. P2P systems have many positive uses and could actually benefit those copyright creators who choose to utilize them. Shutting down all P2P networks would stifle innovation. P2P networks must be cleaned up, not cleared out."

Berman didn't say how shutting down all p2p systems would be achieved if it were an option, and admitted, "The day for cleaning up P2P networks through court action may now be past. While the 9th Circuit could shut Napster down because it utilized a central directory and centralized servers, the new P2P networks have engineered around that court decision by incorporating varying levels of decentralization. It may be that truly decentralized P2P systems cannot be shut down, either by a court or technologically, unless the client P2P software is removed from each and every file trader's computer.

"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 an all-out litigation approach would be staggering for all parties. Litigation alone cannot be relied on to clean up P2P piracy.

"One approach for dealing with P2P piracy that has not been adequately explored is whether it could be addressed, at least partially, through technological self-help measures.

"Copyright owners could employ a variety of technological tools to prevent the distribution of copyrighted works over a P2P network. Interdiction, decoy, redirection, file-blocking, and spoofing technologies can help prevent unauthorized P2P distribution.

"Technological self-help measures are not particularly revolutionary. Satellite and cable companies periodically employ electronic countermeasures to thwart the theft of their signals and programming. Software companies have experimented for decades with a variety of technologies that disable software being used in violation of a license.

"When deployed to thwart P2P piracy, however, such technological self-help may run afoul of common law doctrines and state and federal statutes, including the federal Computer Fraud and Abuse Act. In other words, while P2P technology is free to innovate new, more efficient methods of P2P distribution that further exacerbate the piracy problem, copyright owners are not equally free to craft technological responses."

Berman proposed measures by Congress to, "free copyright creators and owners to develop and deploy technological tools for addressing P2P piracy. We could do this by creating a safe harbor from liability for copyright owners that use technological means to prevent the unauthorized distribution of their copyrighted works via P2P networks.

"Obviously, such legislation must be narrowly crafted, with strict bounds on acceptable behavior by the copyright owner.

"Such legislation should not allow a copyright owner to damage the property of a P2P file trader or any intermediaries, including ISPs. For instance, a copyright owner shouldn't be allowed to introduce a virus that disables the computer from which infringing works are being made available to a decentralized, P2P network."

He added that such legislation should also provide for strong penalties against abuse of the authority provided by the safe harbor and that it, "should ensure that a P2P file-trader who has been subjected to technological self-help measures has effective remedies if he believes a copyright owner has acted improperly."

Related News from Mi2N:
» Speech By The Honorable Howard L. Berman To The Computer And Communications Industry Association Regarding Solutions To Peer To Peer Piracy

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