The Berman P2P Bill: Vigilantism Unbound

On July 25, 2002, Representative Howard Berman (D-Cal.) introduced a bill, H.R. 5211 in the House of
Representatives that would give copyright owners the right to violate the
law in their efforts to stop the unauthorized circulation of their works on
peer-to-peer networks. EFF opposes the bill as drastically misguided and
overbroad.

The EFF agrees with Rep. Berman that, like the rest of us, copyright
owners are entitled, within the bounds of the law, to use
technological self-help measures to protect their assets. No
legislation is necessary for that. What the Berman P2P Bill does is permit
copyright owners to go further and violate the law. This
unprecedented power has never been granted even to law enforcement, much
less to a single industry.

The proposed law amounts to government-sanctioned vigilantism -- copyright
owners are given the power to ignore the law in pursuit of those that they
decide are guilty. There is no warrant requirement, no trial, no prior
notice to the targets, no due process, and very little recourse for innocent
bystanders caught in the cross-fire.

While the bill attempts to put some limits on this vigilante right, the
limitations are a poor substitute for the thousands of laws that it sweeps
aside. The Berman P2P Bill is not a sensible solution to the digital
copyright dilemma. If passed, it will result in anarchy on the Internet and
will harm innocent bystanders.

The Bill's Provisions

Rep. Berman claims that
his proposal is narrowly tailored and intended to give copyright owners
relief from "anti-hacking" laws as they try to stop copyright infringement
on P2P networks. The actual language of the proposal tells a different
story.

The Berman P2P Bill grants
copyright owners and their agents the right to break any law, state
or federal, civil or criminal, in the course of "disabling, interfering
with, blocking, diverting, or otherwise impairing" the availability of his
or her copyrighted works on a public peer-to-peer (P2P) file trading
network. This power may be used to stop any unauthorized P2P activity,

even if the activity does not violate copyright laws. This
unprecedented power is limited by only 5 conditions:

  • the attacker may not "alter, delete, or otherwise impair the integrity of
    any computer file or data" on the targeted computer (in other words, the
    bill authorizes only "denial of service" (DoS) and other attacks against the
    availability of files, rather than attacks that damage files and data);
  • the attacker must not impair the availability of files on a targeted
    computer other than the works that the attacker owns, except as "reasonably
    necessary";
  • the attacker may not cause "economic loss" (but is free to cause any other
    kind of loss) to any person other than the targeted file trader;
  • the attacker may not cause "economic loss of more than $50 per impairment"
    to the targeted file trader; and
  • the attacker must notify the Attorney General seven days before deploying
    the "impairment technology" for the first time, but need not notify a
    targeted person before launching an attack.

Innocent Bystanders Caught in the Cross-Fire

So long as the copyright owner and its agents stay within these vague
limits, they are completely immune from liability under any and all
laws.

So, for example, if you use a cable modem, you might end up as collateral
damage in the copyright wars. Most cable modem users are on a shared
connection with their neighbors. So if the RIAA launches a denial of service
(DoS) attack on the teenager next door, it may also impair your access to
the Internet. Even the police would be powerless to stop the RIAA's attack,
unless you can show that you suffered "economic loss" or that the RIAA
attack went beyond what was "reasonably necessary."

ISPs, network administrators, and Internet users generally will also suffer
under the Berman P2P Bill, as the Internet is flooded with an ever-changing
hailstorm of legally encouraged "attacks." The vigilante right created by
this
bill would extend to any copyright owner. Accordingly, every hacker
who happened to be an photographer, musician, software vendor or author
would be entitled to deploy his or her own homebrew "impairment technology"
seven days after posting a note to the Attorney General.

As with most efforts to substitute vigilantism for the rule of law, this is
a recipe for anarchy.

Conclusion

EFF opposes the Berman Bill, and encourages all Internet users to contact
their Representatives and Senators to express their own opposition to the
measure.

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