No music harmony on ‘Safe Harbor’

Bill gets mixed reception in D.C.

If record execs are hoping for a silver bullet from Washington to save the industry from its peer-to-peer piracy woes, they might not want to hold their breaths.

A congressional hearing convened Thursday to hash out ways to stanch the free flow of copyrighted files on the Internet threw a spotlight on deep divisions among lawmakers. Some applauded a bill that would clear the way for media giants to address the problem via technological means, while others fretted that such an approach amounts to vigilante justice and endangers consumer privacy.

Those divisions are likely to keep the bill in committee until next year. Even then, the bill’s opponents may insist on substantial changes to balance the rights of consumers and content rights holders.

The House Subcommittee on Courts, the Internet & Intellectual Property met Thursday, ostensibly to discuss the Peer-to-Peer Privacy Prevention Act, a bill introduced late this summer by Rep. Howard Berman (D-Calif.).

Allows ‘safe harbor’

Berman’s bill would give entertainment congloms a legal “safe harbor” when they use technology to hinder the digital swapping of their copyrighted material over peer-to-peer networks such as Kazaa and Morpheus. Some of the techniques being experimented with include “spoofing” — planting fake files in the system — or the still more controversial “interdiction” — swamping a heavy peer-to-peer user’s hard drive with file requests to block out others.

Advocates of the measure said it’s absolutely necessary to fight the growing threat of piracy on peer-to-peer networks, especially since some of the most popular have headquartered themselves abroad to escape prosecution.

But Berman’s bill has drawn heavy fire from colleagues and consumer groups who worry it will give movie and music companies free rein to invade consumers’ hard drives without consent and potentially even slow down computer networks for all users.

In the hearing, subcommittee member Rep. Rick Boucher (D-Va.) cited an example wherein a tech firm hired by Warner Bros. to hunt down illicit movie titles found a file on a peer-to-peer user’s hard drive with the title “Harry Potter.” The file turned out to be a student’s book report, rather than the WB feature, but that didn’t stop the company from seeking to have the user’s Net account pulled.

(A Warner spokesman said the company it hires to monitor movie downloads merely refers its findings to the Internet service provider; the ISP then decides what action to take.)

Plan raises questions

Still, Berman’s proposals “raise a lot of questions for me,” Boucher said. “Would any of these intended self-help measures harm legitimate users? Would any of these measures allow intrusion into a user’s computer? If a user is damaged, how does he know whom to recover from?”

Gigi Sohn, executive director of consumer group Public Knowledge, said by giving media companies more freedom to act on their own, the bill would shift the consequences of using self-help away from content industries and “place them squarely on the backs of consumers.”

Berman defended his bill, noting it has consumer safeguards built in that are actually stronger than those already on the books. Peer-to-peer users, he adds, willfully expose their private information to the world simply by logging on to a file-swapping network.

“A variety of state and federal statutes may create liability for what would otherwise be categorized as self-help, and that’s not fair,” he said.

Keeping up with technology

Recording Industry Assn. of America topper Hilary Rosen, who testified at Thursday’s hearing, said labels and studios already are subjected to a far higher standard of oversight than peer-to-peer users themselves. She adds that, while many anti-piracy measures are permitted under current law, the Berman bill would free the industry’s hand to adapt its techniques to evolving technology.

“The issue is what do you do about the fact that for every measure you come up with, there’s a countermeasure,” she said.

Immediately after the hearing, Morpheus topper Steve Griffin convened a conference of his own, decrying the fact that peer-to-peer networks weren’t invited to present their point of view and refuting the industry’s claim that the networks should be held accountable for infringement.

“Peer-to-peer technologies that are decentralized, like Morpheus, are about connecting people and that’s all,” he said. “We make a great software product, but the people themselves form the network.”

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