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File-swapping legal fight gathers steam

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P2P,
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File-swapping,
Legal

Declan McCullagh CNET News

Published: 03 Sep 2004 09:35 BST

A hotly contested wrangle in the US Congress over how to outlaw file-swapping networks just took a new twist.

The US Copyright Office has drafted a new version of the Induce Act that it believes will ban networks such as Kazaa and Morpheus while not putting hardware such as portable hard drives and MP3 players on the wrong side of the law.

The original Induce Act has been severely criticised for possibly jeopardising products such Apple Computer's iPod that could "induce" people to commit piracy.

A 19 August decision from a federal appeals court that said the Grokster and Morpheus file-swapping networks were legal to operate has sent shock waves around Capitol Hill. Now groups like the Recording Industry Association of America (RIAA) and their allies in Congress are scrambling for legislation such as the Induce Act that would overturn the 9th Circuit's ruling.

The Copyright Office's four-page "discussion draft," dated Thursday and seen by ZDNet UK sister site CNET News.com, appears to back away from the broad sweep of the original Induce Act by making it more difficult for companies to be found liable for copyright violations. It says anyone who "intentionally induces" copyright violations can be found liable, with "induce" defined as one or more "affirmative, overt acts that are reasonably expected to cause or persuade another person or persons" to violate copyright law.

But the Copyright Office's proposal is raising eyebrows among consumer groups and Internet providers, who fear that it suffers from many of the same defects as the original. One section, for instance, says companies that "actively interfere" with a copyright holder's efforts to identify pirates could be liable.

"Let's say the recording industry wants the names of our subscribers," said Sarah Deutsch, vice president and associate general counsel of Verizon Communications. "Is (objecting to the request) interfering with their efforts to detect infringing uses? It seems to be."

Another section suggests that Internet providers and technology companies must take all "reasonably available corrective measures" to prevent piracy. "Would your failure to take a digital rights management package from a large copyright holder mean you failed to take corrective measures?" Deutsch asked. "Or your failure to take the action they want in a cease-and-desist letter?"

The Copyright Office did not immediately respond on Thursday to a request for comment.

Mike Godwin, legal director of the "fair use" advocacy group Public Knowledge, said: "I think one can read it through pretty carefully and not be sure who will be liable and who isn't. One thing we would like to get out of this process is that if a bill is going to be passed, it's going to be clear."

The Copyright Office, an influential agency organised under the US Congress, prepared the draft legislation after a meeting last Thursday convened by the Senate Committee on the Judiciary, whose chairman, Orrin Hatch, is pushing hard to enact some version of the Induce Act this year. Last week's meeting was attended by representatives from IBM, Apple, Hewlett-Packard, the Business Software Alliance, the RIAA and the Motion Picture Association of America.

An email message that the Copyright Office sent on Thursday to groups participating in the meeting said: "This draft is intended to facilitate and promote discussion of the issues in a more concrete way than we discussed last Thursday -- it should not be taken as our recommendations, and nothing in here should be taken as the official position of the office..."

A follow-up meeting is scheduled for next week.

Verizon, Public Knowledge and a host of other groups -- including librarians and the Consumer Electronics Association -- have thrown their support behind an alternative to the Induce Act that is extremely narrow and limited only to commercial file-swapping networks that could not survive without widespread piracy.

Will Rodger, director of public policy at the Computer and Communications Industry Association, said the Copyright Office's draft was objectionable because it would effectively regulate computer hardware and software.

"First it was the Hollings bill, then Induce, now the Copyright Office's bill. They look different, but they all revolve around the same thing: Giving content (providers) veto power over all new technology," Rodger said. "Who decided that holders of government-granted monopolies should determine the future of high tech? I don't remember reading that memo."