Senate Bill Targets File Swapping Networks

Senate Bill Targets File Swapping Networks
Critics Claim Bill Could Outlaw Many Consumer Electronic Products

A Senate bill proposed last Wednesday would, if approved, effectively ban peer-to-peer file-sharing networks in the United States.

Introduced by Sen. Orrin Hatch, R-Utah, the Inducing Infringement of Copyrights Act of 2004 would allow companies to be held liable if they "intentionally induce" copyright infringement. The bill seems to be designed to overturn a recent court ruling that found that peer-to-peer file-sharing software is legal and any copyright infringement liability rested with end-users. That ruling has forced the music and movie industries to file lawsuits against individual users, a move that has proved costly and unpopular with the public.

In remarks made after he unveiled the proposal, Hatch said that one of the primary effects of the act would be to protect children from a dangerous and potentially illegal technology. "This bill remedies a threat to the security of copyrights as well as to our citizens and children," said Hatch, "because about half of the users of this software are children, this for-profit piracy scheme mostly endangers children who are ill-equipped to appreciate the illegality or risks of their acts."

Hatch compared peer-to-peer networks, which allow people to exchange any digital content over their computers, to a character in the movie "Chitty Chitty Bang Bang" who lured youngsters into danger with false promises of free lollipops.

Hatch also noted that a number of other legislators have announced their support of the bill, including Sen. Patrick Leahy, D-Vt., Senate Majority Leader Bill Frist, R-Tenn., Minority Leader Tom Daschle, D-S.D., Sen. Lindsey Graham, R-S.C. and Sen. Barbara Boxer, D-Calif.

This is not the first time Hatch has proposed legislation designed to protect the rights of copyright holders in Hollywood. He co-authored the 1998 Digital Millennium Copyright Act and in March introduced legislation that would enable the Justice Department to file civil suits against file sharers.

But a number of critics have worried this law is so encompassing, and widely targeted, that the end result might be to open up many mainstream technology firms to potential lawsuits from copyright holders.

"There's nothing in this act that limits it to products primarily created for illegal purposes," Fred von Lohmann, senior staff attorney for the Electronic Frontier Foundation, told Wired magazine. "If this were to become law, I could easily envision a complaint filed against Apple Computer the very next day, claiming that the sale of iPods helps to induce copyright infringement."

The EFF, a digital civil liberties organization, has argued that because the act defines intent as being "determined by a reasonable person taking into account all relevant facts," it's unlikely that a technology company would be able to easily dismiss any lawsuit brought against it. In essence, claims the EFF, copyright owners can use the "inducement" theory to inflict a large financial penalty on any technology company that builds a device they don't like.

Some technology companies have already voiced their concerns about the proposed act. Sarah Deutsch, associate general counsel for Verizon Communications, told the Boston Globe on Monday the bill would void the 1984 Supreme Court Betamax decision, which protected Americans' right to own VCRs. She worried that Verizon could be sued because merely providing broadband Internet access might induce customers to download stolen music.

Many makers of consumer electronic products have also weighed in against the proposal. "The VCR would not be a legal product; TiVo would not be a legal product," said Gary Shapiro, president of the Consumer Electronics Association. "I'm surprised the leadership would jump on this bill without hearing from the other side."

But proponents of the bill say it would provide a powerful tool to curb illegal copying of music files and other media and would protect children from the lure of a technology that is designed to help them break the law.

Mitch Bainwol, chief executive of the Recording Industry Association of America, told the New York Times that he did not envision the legislation's enabling lawsuits against "neutral" technologies, like computer makers.

"This is not about going after the device makers," Bailwol said, although, according to the Times, he stopped short of guaranteeing that lawsuits would not be filed in the future.

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