[Congressional Record Volume 148, Number 103 (Thursday, July 25, 2002)]
[Extensions of Remarks]
[Pages E1395-E1396]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             INTRODUCTION OF THE P2P PIRACY PREVENTION ACT

                                 ______
                                 

                         HON. HOWARD L. BERMAN

                             of california

                    in the house of representatives

                        Thursday, July 25, 2002

  Mr. BERMAN. Mr. Speaker, I rise today to introduce the P2P Piracy 
Prevention Act--legislation that will help stop peer-to-peer piracy.
  The growth of peer-to-peer (P2P) networks has been staggering, even 
by Internet standards. From non-existence a few years ago, today nearly 
a dozen P2P networks have been deployed, a half-dozen have gained 
widespread acceptance, and one P2P network alone is responsible for 1.8 
billion downloads each month. The steady growth in broadband access, 
which exponentially increases the speed, breadth, and usage of these 
P2P networks, indicates that P2P penetration and related downloading 
will continue to increase at a breakneck pace.
  Unfortunately, the 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 copyrighted software, games, 
photographs, karaoke tapes, and movies. Books, graphic designs, 
newspaper articles, needlepoint designs, and architectural drawings 
cannot be far behind. The owners and creators of these copyrighted 
works have not authorized their distribution through these P2P 
networks, and P2P distribution of this scale does not fit into any 
conception of fair use. Thus, there is no question that the vast 
majority of P2P downloads constitute copyright infringements for which 
the works' creators and owners receive no compensation.
  The massive scale of P2P piracy and its growing breadth represents a 
direct threat to the livelihoods of U.S. copyright creators, including 
songwriters, recording artists, musicians, directors, photographers, 
graphic artists, journalists, novelists, and software programmers. 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. As these creators and their industries contribute 
greatly both to the cultural and economic vitality of the U.S., their 
livelihoods and survival must be protected.
  Simply put, P2P piracy must be cleaned up. The question is how.
  The answer appears to be a holistic approach involving a variety of 
components, none of which constitutes a silver bullet. Wider deployment 
of online services offering copyrighted works in legal, consumer-
friendly ways, digital rights management technologies, lawsuits against 
infringers, prosecutions of egregious infringers, and technological 
self-help measures are all part of the solution to P2P piracy.
  While Pursuit of many of these components to the P2P piracy solution 
requires no new legislation, I believe legislation is necessary to 
promote the usefulness of at least one such component. Specifically, 
enactment of the legislation I introduce today is necessary to enable 
responsible usage of technological self-help measures to stop copyright 
infringements on P2P networks.
  Technology companies, copyright owners, and Congress are all working 
to develop security standards, loosely termed digital rights management 
(DRM) solutions, to protect copyrighted works from unauthorized 
reproduction, performance, and distribution. While the development and 
deployment of DRM solutions should be encouraged, they do not represent 
a complete solution to piracy. DFM solutions will not address the 
copyrighted works already ``in the clear'' on P2P networks. 
Additionally, 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. Similarly, copyrighted 
works cannot always be protected by DRM solutions, as they may be 
stolen prior to protection or when performed in the clear--for 
instance, when a movie is copied from the projection booth.
  Shutting down all P2P systems is not a viable or desirable option for 
dealing with the massive copyright infringement they facilitate. While 
the 9th Circuit could shut Napster down because it utilized a central 
directory and centralized servers, the new P2P networks have 
increasingly engineered around that 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.
  As important, P2P represents an efficient method of information 
transfer and supports a variety of legitimate business models. Removal 
of all P2P networks would stifle innovation. P2P networks must be 
cleaned up, not cleared out.
  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. Copyright owners would incur 
overwhelming litigation expenses, other-wise-innocent P2P users would 
undoubtedly experience privacy violations, internet service providers 
and other intermediaries would experience high compliance costs, and an 
already overcrowded federal court system would face further strain. 
Further, the astounding speed with which copyrighted works are spread 
over P2P networks, and thus their immediate ubiquity on millions of 
computers, renders almost totally ineffective litigation against 
individual P2P users. Certainly, a suit against an individual P2P user 
will almost never result in recovery of sufficient damages to 
compensate for the damage caused.
  In short, 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.
  One approach that has not been adequately explored is to allow 
technological solutions to address technological problems. 
Technological innovation, as represented by the creation of P2P 
networks and their subsequent decentralization, has been harnessed to 
facilitate massive P2P piracy. It is worth exploring, therefore, 
whether other technological innovations could be harnessed to combat 
this massive P2P piracy problem. 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.
  There is nothing revolutionary about property owners using self-
help--technological or otherwise--to secure or repossess their 
property. Satellite companies periodically use electronic 
countermeasures to stop the theft of their signals and programming. Car 
dealers repossess cars when the payments go unpaid. Software companies 
employ a variety of technologies to make software non-functional if 
license terms are violated.
  However, in the context of P2P networks, technological self-help 
measures may not be legal due to a variety of state and federal 
statutes, including the Computer Fraud and Abuse Act of 1986. 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 
to P2P piracy.
  Through the legislation I introduce today, Congress can free 
copyright creators and owners to develop technological tools to protect 
themselves against P2P piracy. The proposed legislation creates a safe 
harbor from liability so that copyright owners may use technological 
means to prevent the unauthorized distribution of that owner's 
copyrighted works via a P2P network.
  This legislation is narrowly crafted, with strict bounds on 
acceptable behavior by the copyright owner. For instance, the 
legislation would not allow a copyright owner to plant a virus on a P2P 
user's computer, or otherwise remove, corrupt, or alter any files or 
data on the P2P user's computer.
  The legislation provides a variety of remedies if the self-help 
measures taken by a copyright owner exceed the limits of the safe 
harbor. If such actions would have been illegal in the absence of the 
safe harbor, the copyright owner remains subject to the full range of 
liability that existed under prior law. If a copyright owner has 
engaged in abusive interdiction activities, an affected P2P user can 
file

[[Page E1396]]

suit for economic costs and attorney's fees under a new cause of 
action. Finally, the U.S. Attorney General can seek an injunction 
prohibiting a copyright owner from utilizing the safe harbor if there 
is a pattern of abusive interdiction activities.
  This legislation does not impact in any way a person who is making a 
fair use of a copyrighted work, or who is otherwise using, storing, and 
copying copyrighted works in a lawful fashion. Because its scope is 
limited to unauthorized distribution, display, performance or 
reproduction of copyrighted works on publicly accessible P2P systems, 
the legislation only authorizes self-help measures taken to deal with 
clear copyright infringements. Thus, the legislation does not authorize 
any interdiction actions to stop fair or authorized uses of copyrighted 
works on decentralized, peer-to-peer systems, or any interdiction of 
public domain works. Further, the legislation doesn't even authorize 
self-help measures taken to address copyright infringements outside of 
the decentralized, P2P environment.
  This proposed legislation has a neutral, if not positive, net effect 
on privacy rights. First, a P2P user does not have an expectation of 
privacy in computer files that she makes publicly accessible through a 
P2P file-sharing network--just as a person who places an advertisement 
in a newspaper cannot expect to keep that information confidential. It 
is important to emphasize that a P2P user must first actively decide to 
make a copyrighted work available to the world, or to send a worldwide 
request for a file, before any P2P interdiction would be countenanced 
by the legislation. Most importantly, unlike in a copyright 
infringement lawsuit, interdiction technologies do not require the 
copyright owner to know who is infringing the copyright. Interdiction 
technologies only require that the copyright owner know where the file 
is located or between which computers a transmission is occurring.
  No legislation can eradicate the problem of peer-to-peer piracy. 
However, enabling copyright creators to take action to prevent an 
infringing file from being shared via P2P is an important first step 
toward a solution. Through this legislation, Congress can help the 
marketplace more effectively manage the problems associated with P2P 
file trading without interfering with the system itself.

                          ____________________