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Senate Takes Aim At P2P Providers

timothy posted more than 10 years ago | from the beware-the-evil-electron dept.

United States 869

thejoelpatrol writes "The Senate Judiciary Committee, led by everybody's favorite senator, Orrin Hatch, is moving to outlaw P2P entirely by making it illegal to produce such applications. Hatch says such firms 'think that they can legally profit by inducing children to steal. Some think they can legally lure children into breaking the law with false promises of "free music."' So, when was the last time that Kazaa told kids to steal music? Shouldn't the parents be the ones looking out for their kids? The RIAA is (surprise!) in favor of this, while P2P groups are (surprise!) opposed."

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Foreign jurisdictions (5, Insightful)

pjt33 (739471) | more than 10 years ago | (#9630503)

So P2P applications will only be written by people outside the US. If he wants to stop P2P, he should try outlawing possession of a P2P app.

Re:Foreign jurisdictions (5, Insightful)

wulfwulf (262315) | more than 10 years ago | (#9630534)

Or maybe we should start early in kindergarten and eliminate the part where we teach children how to share. Timmy might be a bully now, keeping all the juiceboxes for him, but 15 years down the road he'll be a law abiding citizen.

Re:Foreign jurisdictions (3, Funny)

boaworm (180781) | more than 10 years ago | (#9630682)

Or even better, we could start eliminating kids that are likely to code such appliations in the future!

I bet RIAA would be in favor of that as well :-)

Re:Foreign jurisdictions (5, Insightful)

Anonymous Coward | more than 10 years ago | (#9630547)

Remember, how could we defind a P2P app: anything that can transmit data from one person (source) to one or multiple people over a digital source. So if you outlaw P2P apps, wouldn't, say AIM, FTP's and even email be illegal? Wow, there just went the internet, o well, at least the RIAA is happy!!

Next Year... (5, Interesting)

dave1791 (315728) | more than 10 years ago | (#9630555)

Well, if you are not allowed to develop P2P in the US, then only foreign P2P apps will be available. Then we will hear about legislation to ban these evil foreign pirate apps... ...or sever the US from the rest of the internet. After all, the world is full of shady characters just waiting to pollute the minds of the young.

Oh boy, I am on a soapbox today.

Re:Next Year... (3, Insightful)

basingwerk (521105) | more than 10 years ago | (#9630658)

It would be odd if America put up an iron curtain so soon after the one in Europe fell.

Only reinforces an existing trend (3, Insightful)

mangu (126918) | more than 10 years ago | (#9630575)

Don't worry, P2P will not die that easily. Isn't all new software development outsourced to India, anyhow? And, sure, they *can* outlaw possession. It has worked wonders for drugs, hasn't it? Look out for new India-Colombia joint ventures. Both production and distribution taken care of.

Senator Hatch (0, Troll)

LouCifer (771618) | more than 10 years ago | (#9630506)

Should STFU about P2P. He obviously knows dick about it.

Its akin to a movie "star" talking about politics. Leave those discussions to the experts in the field.

Re:Senator Hatch (1, Interesting)

Anonymous Coward | more than 10 years ago | (#9630583)

Its akin to a movie "star" talking about politics. Leave those discussions to the experts in the field.

excuse me? You're saying that unless you're a politician, you shouldn't get involved in politics? Are you some sort of fascist? The basis of a sound democracy is that EVERYONE is welcome to have their opinion and participate.

Re:Senator Hatch (1)

rylin (688457) | more than 10 years ago | (#9630590)

I'll be back.

Re:Senator Hatch (1)

richie2000 (159732) | more than 10 years ago | (#9630615)

He obviously knows dick about it.

Oh, he knows full well which side of his bread has all the butter on it and who does the buttering. Mmmm, butter...

Madness (5, Insightful)

dave420 (699308) | more than 10 years ago | (#9630508)

This is just ridiculous. Compensating failed business models through rigorous legislation. Did anyone ask for more proof the US is run by big business? If so, you've just been served.

Re:Madness (2, Funny)

Threni (635302) | more than 10 years ago | (#9630526)

> This is just ridiculous

Hey - it worked for viruses and drugs...

Re:Madness (0)

NarrMaster (760073) | more than 10 years ago | (#9630563)

If so, you've just been served.
The serving was most serious in the pelvic region.

Re:Madness (1, Interesting)

Anonymous Coward | more than 10 years ago | (#9630588)

Failed business models? If someone is stealing from your store, you don't have a failed business model, you get a guy to stand in front of it with a big fucking bat. I love you way you guys try to justify stealing, it's really getting funny.

Re:Madness (1)

91degrees (207121) | more than 10 years ago | (#9630653)

What's the problem with stealing? Nothing wrong with wanting to get something for the lowest price possible. Our whole society is based on this principle.

Re:Madness (1, Insightful)

Anonymous Coward | more than 10 years ago | (#9630676)

It's not stealing. It's copyright infringement. They are two totally different things.

Re:Madness (5, Insightful)

Kick the Donkey (681009) | more than 10 years ago | (#9630618)

Actually, I think the problem is more that law-makers feel the need to create laws to make it harder to break existing laws. Pure bull shit. The existance of P2P software is not bad. There are some very legitimate uses for it (we use it at work for large document sharing). But its already illegal to trade in copyrighted material without the copyright holders consent (as it should be).

This is just like so-called open container [dot.gov] laws. It is already illegal to drive drunk. But, the very act of having an open bottle of booze in my car is illegal. Why? By itself, there is nothing wrong with it. The only problem is when I, as a drive, start drinking from it. But then I'm breaking an already existing law!!!

How about we just start enforcing the laws we already have before we start writing new ones.

Re:Madness (0)

Anonymous Coward | more than 10 years ago | (#9630688)

You're an idiot. People steal a lot of cars off of dealer lots, is that clearly a failed business model? Maybe we should give them all away for free instead.

The Children (4, Funny)

BSAtHome (455370) | more than 10 years ago | (#9630515)

Yes please, will somebody think of the children. They must be protected.

Re:The Children (3, Interesting)

xyvimur (268026) | more than 10 years ago | (#9630632)

Children are extremely good topic for the `masses' - people who don't know anything about p2p will be against it - if you say them - that banning it will protect children.
Unfortunatelly not many know, who will really benefit from this legislation.

Re:The Children (0)

Anonymous Coward | more than 10 years ago | (#9630683)

user@localhost:/$ su
Password:
root@localhost:/# apt-get libwww-perl-5.800
root@localhost:/# exit
user@localhost:/$ get "http://yro.slashdot.org/comments.pl?x= &sid=113695&cid=9630515" | sed -e s/protected/prosecuted/

Why not outlaw client-server apps too? (5, Funny)

192939495969798999 (58312) | more than 10 years ago | (#9630518)

You know, client/server apps can distribute stuff illegally too! Heck, why not outlaw stores and banks, because people can steal things from them! They're effectively encouraging you to take the money from the vault!

ARGH!

Re:Why not outlaw client-server apps too? (0)

Anonymous Coward | more than 10 years ago | (#9630560)

Interestingly, they should outlaw guns too, because they induce children to kill, with false promises of looking cool.

Better yet, outlaw legislators because they induce the public to go nuts and vote for them, with false promises of actually trying to help them.

Uh Huh... (5, Insightful)

deutschemonte (764566) | more than 10 years ago | (#9630519)

So are they going to pass a law that prevents the labels from illegally enticing people to buy CD's that have built in copyright protection?

Their argument is that DL'ing copyrighted works is violating the rights of the artist and copyright holders.

I say they are violating the rights of the people by placing undue restrictions on our property!

I must be new here... (1, Interesting)

sploo22 (748838) | more than 10 years ago | (#9630521)

So, when was the last time that Kazaa told kids to steal music? Shouldn't the parents be the ones looking out for their kids? The RIAA is (surprise!) in favor of this, while P2P groups are (surprise!) opposed.

My gosh! Thanks to the submitter, I know exactly what position to argue! Thanks so much!

Baaaaaa.

Using (Surprise!) is gay. (-1, Offtopic)

Anonymous Coward | more than 10 years ago | (#9630522)

(Surprise!) Bet ya didn't know that!

Oh, the children... (3, Funny)

Dagny Taggert (785517) | more than 10 years ago | (#9630523)

This makes me sick! We better outlaw the production of any software that plays MP3s as well, since they are accessories to the crime of stealing music. Oh, and CD burners, and operating systems, can PCs and phone and cable lines. In fact, someone had just better come over to my house and arrest me right now. Sheesh!

so, what does that mean? (5, Insightful)

dekeji (784080) | more than 10 years ago | (#9630524)

It will be interesting to hear these people come up with a definition of "P2P" or "software that encourages children and teenagers to infringe copyrights". Any definition I can think of would include most Internet software and, for that matter, Microsoft Windows.

Re:so, what does that mean? (4, Interesting)

MoonFog (586818) | more than 10 years ago | (#9630589)

Not only that, P2P is an interesting alternative to the traditional C/S model. This appears to be a move that is not very well thought out, are they going to ban FTP since you can distribute copyrighted material over FTP as well? I don't think these guys know enough about technology to really tell what's going on and what needs to be done. I'm fairly sure they are not even willing to hear expert opinions on this either..

Re:so, what does that mean? (1)

Short Circuit (52384) | more than 10 years ago | (#9630616)

How about word processing software? Or college classes requiring you to write papers? Or every instance of a family singing "Happy Birthday"?

As with Guns. (4, Insightful)

jjholt1213 (784390) | more than 10 years ago | (#9630527)

Guns don't kill people, people kill people. P2 has many legal uses they've been posted here many times before so I won't repeat them now. Maybe we should ban the sale of car's people break the law in them all the time so they must be bad aswell. or ban razor blades and OTC pain killer's 100's if not 1000's of people attempt sucide using them. See It gets alittle out of hand doesn't it.

Re:As with Guns. (2, Funny)

Anonymous Coward | more than 10 years ago | (#9630592)

Guns don't kill people, people kill people.

If the statistics tells us anything it's that: People don't kill people Americans kill people.

Re:As with Guns. (4, Insightful)

MoonFog (586818) | more than 10 years ago | (#9630609)

But a big corporation is "loosing" money on P2P, cars MAKES money for corporations. Unfortunately, it really is that cynical.

Be more specific. (1)

numbski (515011) | more than 10 years ago | (#9630645)

Guns don't kill people, people kill people.

More precisely, kids who play videogames kill people.

Thanks Penny Arcade! :P

I'm confused (5, Insightful)

orin (113079) | more than 10 years ago | (#9630528)

Gun manufacturers are not responsible for the actions of the people that use their products, but P2P vendors are?

Both products, of course, can be used without breaking the law.

Re:I'm confused (5, Funny)

lacrymology.com (583077) | more than 10 years ago | (#9630600)

" Gun manufacturers are not responsible for the actions of the people that use their products, but P2P vendors are?"

Yeah, but what good will P2P do you when the King of England starts pushing you around? Well? That's what I thought.

-m

Re:I'm confused (1, Insightful)

forgotmypassword (602349) | more than 10 years ago | (#9630665)

Handguns have a functional purpose other than to kill human beings?

Re:I'm confused (-1, Offtopic)

Anonymous Coward | more than 10 years ago | (#9630685)

yes, killing animals - for da' eatin'... Also, hammering me some nails.

This'll get shot down quickly as being too vague. (5, Insightful)

gotroot801 (7857) | more than 10 years ago | (#9630529)

Why, Sen. Hatch, I can download illegal MP3s through my web browser! GASP! Better shut down the WWW.

Oh, no! Now there's this FTP program people are using! Better shut that down, too.

Zounds! Someone just e-mailed me a song! Bye-bye, e-mail...

Certainly. (2, Insightful)

Gordonjcp (186804) | more than 10 years ago | (#9630557)

I'll give you my telephone number, and you can ring me and tell me what tunes you want. Then, I'll drive round to your house with a tape. Maybe he should outlaw cars, telephones and tape recorders. Or even ears. Maybe if I drove round and sang the songs, he'd outlaw me singing. Maybe that wouldn't be a bad thing.

Inducing Children to Steal. (2, Interesting)

Anonymous Coward | more than 10 years ago | (#9630536)

Its hard to find sympathy for America and its RIAA, and its so-called 'industries'.

Hatch says such firms 'think that they can legally profit by inducing children to steal..

This, coming from the same government who think its perfectly acceptable to "legally profit by inducing children to kill and steal (oil in Iraq)".

As long as the U.S. falsely believes in its own security above all else, it will continue to be a criminal police state populated by hypocrites and irresponsible drones, run by the insane.

You get what you deserve, America. Restrictions on your right to cultural communication are all the lobbyists truly want.

Re:Inducing Children to Steal. (-1)

Anonymous Coward | more than 10 years ago | (#9630593)

What moron modded this flamebait insifghful?

Re:Inducing Children to Steal. (1)

proj_2501 (78149) | more than 10 years ago | (#9630607)

all nations believe in their own security above all else. that is part of a government's job.

Re:Inducing Children to Steal. (4, Insightful)

PeeAitchPee (712652) | more than 10 years ago | (#9630626)

Guess what, Europe (and Australia . . . and Canada . . .)? You're next. Don't think for a second that storebought government officials are unique to the US.

Gun Control (1, Insightful)

Anonymous Coward | more than 10 years ago | (#9630537)

If only some of this energy could be directed in a more useful direction. How about s/p2p/guns/g:

"The Senate Judiciary Committee is moving to outlaw guns entirely by making it illegal to produce such products. The Senators say such firms "think that they can legally profit by inducing children and adults to kill. Some think they can legally lure children into breaking the law with false promises." ...but only in my dreams, unfortunately.

Outlawing p2p wont be enough... (1)

some_random_person (774906) | more than 10 years ago | (#9630538)

Why stop at outlawing p2p software? The obvious solution here is to just make the internet illegal because you couldn't possibly be able to use either the internet or p2p software for anything legal.

Re:Outlawing p2p wont be enough... (1)

Kick the Donkey (681009) | more than 10 years ago | (#9630675)

You mean porn is illegal?

Land of the Free (1)

cassidyc (167044) | more than 10 years ago | (#9630539)

to do anything except honk off people with more money than you.

Still, glad I live in a more enlightened place

CJC

The Bill Itself (4, Insightful)

Karrde712 (125745) | more than 10 years ago | (#9630541)

Can anyone post a link to the text of the Bill itself? It might be prudent to examine the letter of the law before pre-judging its merits and faults.

Re:The Bill Itself (5, Informative)

Karrde712 (125745) | more than 10 years ago | (#9630581)

Actually, here it is:
http://thomas.loc.gov/cgi-bin/query/z?c108:S. 2560:

Re:The Bill Itself (2, Informative)

Anonymous Coward | more than 10 years ago | (#9630633)

Sibling post doesn't lead right to the bill, but you can find it eventually. It looks like an interesting read. Skip to the bottom for the text of the law.

By Mr. HATCH (for himself, Mr. LEAHY, Mr. FRIST, Mr. DASCHLE, Mr. GRAHAM of South Carolina, and Mrs. BOXER):

S. 2560. A bill to amend chapter 5 of title 17, United States Code, relating to inducement of copyright infringement, and for other purposes; to the Committee on the Judiciary.

Mr. HATCH. Mr. President, I rise with my esteemed colleague and friend, Senator LEAHY, ranking Democrat Member of the Senate Judiciary Committee, to introduce the ``Inducing Infringement of Copyrights Act of 2004.'' This Act will confirm that creative artists can sue corporations that profit by encouraging children, teenagers and others to commit illegal or criminal acts of copyright infringement. Senator LEAHY and I are pleased that Majority Leader FRIST and Minority Leader DASCHLE and Senators GRAHAM and BOXER are co-sponsoring this important bipartisan legislation.

It is illegal and immoral to induce or encourage children to commit crimes. Artists realize that adults who corrupt or exploit the innocence of children are the worst type of villains. In ``Oliver Twist'', Fagin and Bill Sikes profited by inducing children to steal. In the film ``Chitty-Chitty Bang-Bang'', the leering ``Child-Catcher'' lured children into danger with false promises of ``free lollipops.'' Tragically, some corporations now seem to think that they can legally profit by inducing children to steal--that they can legally lure children and others with false promises of ``free music.''

Such beliefs seem common among distributors of so-called peer-to-peer filesharing (``P2P'') software. These programs are used mostly by children and college students--about half of their users are children. Users of these programs routinely violate criminal laws relating to copyright infringement and pornography distribution. Criminal law defines ``inducement'' as ``that which leads or tempts to the commission of crime.'' Some P2P software appears to be the definition of criminal inducement captured in computer code.

Distributors of some P2P software admit this. The distributors of EarthStation 5 state, ``While other peer 2 peer networks like Kazaa or Imesh continue to deny building their programs for illegal file sharing, at ES5 we not only admit why we built ES5, we actually promote P2P, endorse file sharing, and join our users in swapping files!''

Recently, in the Grokster case, a Federal court drew similar conclusions about the intent of other distributors of P2P software. It warned that some P2P distributors ``may have intentionally structured their businesses to avoid secondary liability for copyright infringement, while benefiting financially from the illicit draw of their wares.'' In other words, many P2P distributors may think that they can lawfully profit by inducing children to break the law and commit crimes.

They are dead wrong. America punishes as criminals those who induce others to commit any criminal act, including copyright infringement. The first sentence of our Criminal Code states:

Whoever commits an offense against the United States or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal .......

Indeed, it is absurd to think that our law might be otherwise. No civilized country could let sophisticated adults profit by tempting its most vulnerable citizens--its children--to break the law.

I think we must understand how some corporations came to confuse child endangerment with a legal business model. Their confusion seems to arise from court cases misinterpreting a well-intended Supreme Court decision that tried to clarify two critical components of federal law: the law of secondary liability and the law of copyright.

The Supreme Court states that secondary liability is ``imposed in virtually all areas of the law.'' Secondary liability is universal because its logic is compelling. It does not absolve lawbreakers of guilt. But it recognizes that we are all human: We are all more likely to break the law if encouraged or ordered to do so. Secondary liability thus discourages lawlessness by punishing people who manipulate others into doing the ``dirty work'' of breaking the law. Secondary liability usually targets two types of persons: 1. those who induce others to break the law, and 2. those who control others who break the law.

Though secondary liability is nearly ubiquitous, it has almost always remained as a judge-made, common-law doctrine--and for a good reason. Secondary liability prevents the use of indirect means to achieve illegal ends. Consequently, the scope of secondary liability must be flexible--otherwise, it would just instruct wrong-doers on how to legally encourage or manipulate others into breaking the law. The common-law judicial process is ideally suited to evolve flexible secondary-liability rules from the results of many individual cases.

As a result, Congress rarely codifies secondary liability. It has codified secondary liability to narrow it, as in the Patent Act. Congress has codified secondary liability in the Criminal Code to ensure that the narrow construction given criminal statutes would not foreclose secondary liability. In the Digital Millennium Copyright Act, Congress codified a complex balance between opposed interests that expanded one type of secondary liability and narrowed another.

Congress has always assumed that infringers could readily induce consumers to accept infringing copies of works. It thus created ``a potent arsenal of remedies against an infringer .......'' But secondary liability often arises if a third party can be ordered or induced to make the infringing copies. Consequently, only after copying devices became available to people who might be induced to infringe did questions about secondary liability for infringement become pressing.

In 1984, these questions reached the Supreme Court in Sony Corp. v. Universal City Studios, Inc. Sony held that the makers of the Betamax VCR could not be held secondarily liable in a civil suit brought by copyright holders--even though some consumers would use VCRs to make infringing copies of copyrighted TV broadcasts.

Sony also created a broader limitation on secondary liability by importing a limitation that that Congress had codified only in the Patent Act; this was the substantial-noninfringing-use rule, also called the ``staple article of commerce'' doctrine. Sony intended this rule to strike, as between creators of works and copying equipment, the same ``balance'' that it had struck under the Patent Act between the

[Page: S7190] GPO's PDF

rights of patent holder and makers of staple products.

Under the Patent Act, the substantial-noninfringing-use rule bars secondary liability for selling a ``staple'' product that has a ``substantial noninfringing use''--even if that staple could also be used as a component in an infringing copy of a patented invention. This rule protects makers of staples without changing the nature of secondary liability. In particular, it does not immunize bad actors who intend to distribute ``patent-infringement kits.'' Even in the rare case of a novel

invention that consists only of ``staple'' components, an ``infringement kit'' must bundle components and include assembly instructions. Neither the bundle nor the instructions will likely have a ``substantial noninfringing use.''

Sony intended this rule to strike the same admirable ``balance'' under the Copyright Act. Unfortunately, Sony also proposed that if this rule proved problematic, Congress should alter it on a technology-by-technology basis. This proposal was flawed: In 1976, Congress redrafted the Copyright Act to avoid the need to re-adjust copyrights on a technology-by-technology basis because legislation could no longer keep pace with technological change. Returning to this impractical technology-based approach would create an endless procession of ``tech-mandate'' laws that discriminate between technologies Congress deems ``good'' or ``bad.'' But technologies are rarely inherently either ``good'' or ``bad.'' Most can be used for either purpose; the effect depends on details of implementation impossible to capture--or predict--in prospective legislation.

Of course, the dysfunctional corrective mechanism that Sony proposed would have become problematic only if the Sony limitation was misunderstood or misapplied by lower courts. Unfortunately, that has now happened.

In cases like Napster and Grokster, lower courts misapplied the substantial-non-infringing-use limitation. These courts forgot about ``balance'' and held that this limitation radically alters secondary liability. In effect, these cases retained secondary liability's control prong but collapsed its inducement prong. The results of these cases prove this point: Napster imposed liability upon a distributor of copying devices who controlled infringing users; Grokster did not impose liability upon distributors who appeared to induce and profit from users' infringement.

A secondary-liability rule that punishes control and immunizes inducement is a public policy disaster. It seems to permit the distribution of ``piracy machines'' designed to make infringement easy, tempting, and automatic. Even Harvard's Berkman Center for Internet and society suggests that this is happening. The Center warns that ``it can be extremely difficult for a non-expert computer user to shut down'' the viral redistribution that can otherwise automatically make the user an international distributor of infringing works. The Center notes that the ``complexity of KaZaA's installation and disabling functions'' may leave many users unaware that they have become a contributor to global, for-profit copyright piracy. Unfortunately, ``piracy machines'' designed to mislead their users are just one of the perverse effects of a secondary liability rule that punishes control and immunizes inducement.

Perhaps the least perverse of these effects has been years of conflict between the content and technology industries. Content creators sought the tech-mandate ``corrections'' that Sony proposed. Technology industries opposed such laws because they too easily foreclose innocent or unforeseen applications. P2P software illustrates the problem: Today, most P2P software functions like Earthstation 5's ``piracy machine.'' Yet all agree that non-piracy-adapted implementations of P2P could have legitimate and beneficial uses.

A rule that punishes only control also produces absurd results. Secondary liability should focus on intent to use indirect means to achieve illegal ends. A rule that punishes only control degenerates into inane debate about which indirect means was used. Thus Napster and Grokster are regulated differently--though they function similarly from the perspective of the user, the distributor, or the copyright holder.

A rule that punishes only control also acts as a ``tech-mandate'' law: It mandates the use of technologies that avoid ``control''--regardless of whether they are suited for a particular task. Napster was punished for processing search requests efficiently on a centralized search index that it controlled. Grokster escaped by processing search requests less efficiently on a decentralized search index that it did not control. Rewarding inefficiency makes little sense.

A secondary-liability rule that punishes only control also punishes consumers: It encourages designers to avoid ``control'' by shifting risks onto consumers. For example, Napster incurred billion-dollar liability because it controlled computers housing a search index that located infringing files. Programs like Kazaa avoid Napster's ``control'' by moving their search indices onto computers owned by unsuspecting consumers. Consumers were never warned about the risks of housing these indices. As a result, many consumers, universities, and businesses now control computers that house ``mini-Napsters''--parts of a search index much like the one that destroyed Napster. These indices could still impose devastating liability upon anyone who ``controls'' a computer housing them. A secondary-liability rule that punishes only control thus rewards Kazaa for shifting huge risks onto unsuspecting consumers, universities and businesses.

And search indices are just one of the risks that designers of P2P software seem to impose upon their young users to avoid control. For example, the designers of most filesharing software choose to lack the ability to remove or block access to files known to contain viruses, child pornography or pornography mislabeled to be appealing to children. This ability could create ``control'' and trigger liability. Aiding distributors of viruses and pornography may be just an unfortunate side effect of avoiding control while inducing infringement.

A secondary-liability rule that immunizes inducement also encourages attempts to conceal risks from consumers: It is easier to induce people to take risks if they are unsure whether they are incurring a risk or its severity. The interfaces of most P2P software provide no warnings about the severe consequences of succumbing to the constant temptation of infringement.

Another risk to users of P2P software arises when pornography combines with the ``viral redistribution'' that thwarts removal of infringing copies of works. Most filesharing networks are awash in pornography, much of it mislabeled, obscene, illegal child pornography, or harmful to minors. Anyone risks criminal prosecution if they distribute pornography accessible to minors over these child-dominated networks. As a result, one P2P distributor who does distribute ``adult'' content demands that it be protected by access controls. But every adult who uses this distributor's software as intended to download one of millions of unprotected pornographic files automatically makes that pornography available for re-distribution to millions of children. This distributor has sat silently--knowing that its software exposes millions of its users to risks of criminal prosecution that the distributor cannot be paid to endure.

Perhaps the worst effect of punishing control and rewarding inducement is that it achieves precisely what Sony sought to avoid: It leaves copyright holders with an enforcement remedy that is ``merely symbolic'': It seems real, but it is illusory.

In theory, a rule that immunizes inducement still permits enforcement against those induced to infringe. At first, this remedy seems viable because copyrights have traditionally been enforced in lawsuits against direct infringers who actually make infringing copies of works.

But a fallacy lurks here: The ``direct infringers'' at issue are not the traditional targets for copyright enforcement. In fact, they are children and consumers: They are the hundreds of millions of Americans--toddlers to seniors--who use and enjoy the creative works that copyrights have helped create.

There is no precedent for shifting copyright enforcement toward the end-

[Page: S7191] GPO's PDF

users of works. For nearly 200 years, copyright law has been nearly invisible to the millions who used and enjoyed creative works. Copyright law was invisible to consumers because the law gave creators and distributors mutual incentives to negotiate the agreements that ensured that works reached consumers in forms that were safe to use in foreseeable ways. Now, those incentives are collapsing. As a result, artists must now waive their rights or sue consumers--their fans.

Worse yet, artists must sue their fans for the sin of misusing devices designed to be easy and tempting to misuse. That is unfair: When inducement is the disease, infringement can be seen as just a symptom. Yet artists must ignore inducers who profit by chanting, ``Hey, kids, infringement is cool, and we will help you get away with it.'' Instead, artists can only sue kids who succumb to this temptation. They must leave Fagin to his work--and sue Oliver Twist.

This sue-Oliver ``remedy'' is a debacle. For example, immunizing inducement ensures that artists will have to sue their fans: Inducers will have both the incentive and the means to thwart less extreme measures, like educational campaigns. For example, RIAA tried to avoid lawsuits against filesharers by sending educational instant messages to infringers. Kazaa, for ``privacy'' reasons, disabled instant messaging by default in the next version of its software. Lawsuits then followed.

And imagine the poor parent who tries to tell a teenager that free downloading of copyrighted music is illegal. The teenager, confused because ``everyone is doing it,'' consults a leading technology-news site promising a ``trusted source of information for millions of technology consumers.'' There, the teenager finds a P2P distributor promoting ``Morpheus 4.0, the only American filesharing software ruled legal by a U.S. federal court.'' This statement is false: Grokster did not rule Morpheus ``legal''; in fact, the case only confirmed that downloading copyrighted works is illegal. Below this misinformation, the teenager will find an independent editorial review rating Morpheus 4.0 as a ``Recommended'' download and ``an excellent choice'' for those seeking ``the latest and greatest.'' Who will the teenager believe?

Worse yet, if artists must sue only the induced, they just feed the contempt for copyrights that inducers breed. Inducers know that people induced to break a law become that law's enemies: Once you break a law, you must either admit wrongdoing or rationalize your conduct. Rationalization is often so easy. You can blame the law: Copyright is a stupid law needlessly enshrined in the Constitution by naives like James Madison. You can blame the victim: Some rock stars still make money; I do not like the ``business model'' of the record labels. You can blame the randomness of enforcement: Everyone else was doing it, so why not me? Anyone who has talked to young people about filesharing has heard such rationalizations time and again.

And forcing artists to ignore inducers and sue the induced locks artists into a war of attrition that they are unlikely to win. If you imagine inducement as a bush, this ``remedy'' forces artists to spend their money to sever each leaf--while the inducer makes money by watering the root. Artists may not be able to sustain this unending battle.

This may let inducers attempt an extortionate form of ``outsourcing.'' Inducers can increase or decrease their devices propensity to encourage piracy. Inducers can thus tell American artists that if the artists pay the inducers to become licensed distributors of their works, perhaps fewer bad things will happen. Implicitly, if artists do not pay, perhaps more bad things will happen. Were artists to succumb to such tactics, jobs and revenues created by the demand for American creative works would go overseas to some unsavory locales.

Worst of all, inducers will inevitably target children. Children would be easily induced to violate complex laws like the Copyright Act. Any child is a terrible enforcement target. And because most adults never induce children to break laws, children induced to infringe copyrights would not even be ``bad kids.'' Indeed, they would probably be smart, mostly law-abiding young people with bright futures. Innocent, mostly law-abiding children make the worst enforcement targets--and thus the best ``human shields'' to protect an inducer's business model.

This threat to children is real. Today, artists are suing high-volume filesharers who cannot be identified until late in the process. One filesharer sued for violating federal law over 800 times turned out to be a 12-year-old female honor student. This otherwise law-abiding young girl and her family then faced ruin by the girl's favorite artists. The public knew that something was wrong, and it was outraged. So the people who gave that girl an easily misused toy--and profited from her misuse of it--exploited public outrage with crocodile tears about the tactics of ``Big Music.'' And then, I imagine, they laughed all the way to the bank.

The Supreme Court could not have intended to force artists to sue children in order to reduce the profits that adults can derive by encouraging children to break the law. No one would intend that. Yet it seems to be happening.

These are the inevitable results of a secondary-liability rule that immunizes inducement. This ``rule'' has created the largest global piracy rings in history. These rings now create billions of infringing copies of works, and reap millions in profits for leaders who insulate themselves from direct involvement in crime by inducing children and students to ``do the dirty work'' of committing illegal or criminal acts. These rings then thwart deterrence and condemn attempts to enforce the law. These rings may now use profits derived from rampant criminality to extort their way into the legal Internet distribution market--a market critical to the future of our artists and children.

This must stop--and stop now. Artists have tried: They targeted for-profit inducers. But artists were thwarted by a court ruling that held, in effect, that although artists can sue exploited children and families into bankruptcy, courts need ``additional legislative guidance'' to decide whether artists can, instead, sue the corporations that profit by inducing children to break the law. I find this assertion wholly inconsistent with the intent of both Congress and the Supreme Court. But until this fundamentally flawed ruling is overruled by legislation or higher courts, artists cannot hold inducers liable for their actions.

Fortunately, Congress has charged the Department of Justice to enforce the Criminal Code. In the Criminal Code, Congress made it a Federal crime to willfully infringe copyrights or to distribute obscene pornography or child pornography. Congress also made it a crime to induce anyone--child or adult--to commit any Federal crime.

Indeed, Congress codified many forms of criminal secondary liability in the Criminal Code. I have already quoted its first sentence. Here is its second: ``Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.'' One court has said that this ensures that ``[a] crime may be performed through an innocent dupe, with the essential element of criminal intent residing in another person.'' Not coincidentally, some Federal prosecutors worry that P2P software makes infringement so tempting, easy and automatic that many of its users will lack criminal intent. Perhaps--but their relative innocence will not protect their inducers.

The Criminal Code also codifies other forms of secondary liability, like this one:

If two or more persons conspire to injure, oppress, threaten any person in any State ..... in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or the laws of the United States, ..... [t]hey shall be fined under this title or imprisoned not more than ten years, or both. .....

These examples of laws imposing secondary criminal liability have something in common: Congress codified no exceptions for ``substantial non-criminal uses.'' The message is clear: Those who induce others to commit crimes cannot avoid prison by showing that some of them resisted. I will work with my colleagues in Congress to ensure that the Department of Justice enforces the Federal laws that prevent

[Page: S7192] GPO's PDF

anyone from inducing violations of any Federal law by our citizens, our students, or our children.

Congress, too, must do its part by enacting the Inducing Infringement of Copyrights Act, S. 2560. This bill will protect American artists, children and taxpayers by restoring the privately funded civil remedy crippled by the Grokster ruling. Congress must act: A Federal court has held that artists can only enforce their rights by suing exploited children and students pending ``additional legislative guidance'' about whether artists can, instead, sue the corporations that profit by inducing children to break laws and commit crimes. Silence could be misinterpreted as support for those who profit by corrupting and endangering others. This bill will restore the tried, privately funded civil enforcement actions long used to enforce copyrights.

This bill will also preserve the Sony ruling without reversing, abrogating or limiting it. The Inducement Act will simply import and adapt the Patent Act's concept of ``active inducement'' in order to cover cases of intentional inducement that were explicitly not at issue in Sony. The Inducement Act also preserves the Section 512 safe harbors for Internet service providers.

The bill also contains a savings clause to ensure that it provides the ``guidance'' courts have requested--not an iron-clad rule of decision for all possible future cases. This flexibility is critical because just as infringement cases are fact specific, so should inducement cases center on the facts of a given case, with courts endowed with the flexibility to impose just results. This bill does not purport to resolve or affect existing disagreements about when copies made and used within an individual's home environment are permissible and when they are infringing.

Rather, this bill is about the intentional inducement of global distribution of billions of infringing copies of works at the prodding and instigation of sophisticated corporations that appear to want to profit from piracy, know better than to break the law themselves, and try to shield

themselves from secondary liability by inducing others to infringe and then disclaiming control over those individuals.

I also want to thank everyone who has worked with us to craft a bill that addresses this serious threat to children and copyrights without unduly burdening companies that engage in lawful commerce in the wide range of devices and programs that can copy digital files. As Sony illustrates, clear knowledge that a copying device can be used to infringe does not provide evidence of intent to induce infringement. It was critical to find a way to narrowly identify the rare bad actors without implicating the vast majority of companies that serve both consumers and copyright-holders by providing digital copying devices--even though these devices, like all devices, can be misused for unlawful purposes. In particular, I would like to thank the Business Software Alliance for its invaluable assistance in crafting a bill that protects existing legitimate technologies and future innovation in all technologies--including peer-to-peer networking.

Senator LEAHY and I look forward to working with all affected parties to enact this bill and restore the balance and private enforcement that Sony envisioned. But until Congress can enact the Inducing Infringement of Copyrights Act, the duty and authority to stop inducement that targets children and students resides in the Department of Justice that Congress has charged to protect artists, commerce, citizens and children. The Department must act now to clarify some simple facts: America has never legalized the ``business model'' of Fagin and Bill Sykes. Modern ChildCatchers cannot lawfully profit by luring children into crime with false promises of ``free music.''

Mr. President, I urge all of my colleagues to support S. 2560, the Inducing Infringement of Copyrights Act.

I ask unanimous consent that the text of the bill be printed in the RECORD.

S. 2560

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Inducing Infringement of Copyrights Act of 2004''.

SEC. 2. INTENTIONAL INDUCEMENT OF COPYRIGHT INFRINGEMENT.

Section 501 of title 17, United States Code, is amended by adding at the end the following:

``(g)(1) In this subsection, the term `intentionally induces' means intentionally aids, abets, induces, or procures, and intent may be shown by acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor, including whether the activity relies on infringement for its commercial viability.

``(2) Whoever intentionally induces any violation identified in subsection (a) shall be liable as an infringer.

``(3) Nothing in this subsection shall enlarge or diminish the doctrines of vicarious and contributory liability for copyright infringement or require any court to unjustly withhold or impose any secondary liability for copyright infringement.''.

Mr. LEAHY. Mr. President, nobody can deny that the digital age has brought many benefits and many challenges to all of us.

In my home state of Vermont, the Internet has revolutionized how we work and how we learn: Distance learning brings the best teaching tools right into rural communities, and new business models let Vermont businesses reach new and far-flung customers. As suppliers who use the Internet, we enjoy access to a range of goods and services unimagined when I was growing up, and the vast panoply of information and entertainment offerings on the World Wide Web are at the fingertips of many Vermonters. Of course, we must work to ensure that everyone can reap the benefits of the digital age, and I am striving both here in Washington and in my state to do what is necessary to bring affordable and reliable Internet access to every household.

I am confident that, with continued focus and perseverance, the day of universal access is coming and we will all take part in the many advantages of the digital age. But there are other problems that require immediate attention, because they threaten the development of the web. We will never be able to make the Internet an entirely trouble-free zone, but we will also never be justified in failing to make efforts to defend and improve it.

One important effort to improve it is the bill that I am proud to introduce today--along with Senators HATCH, DASCHLE, FRIST, BOXER, and GRAHAM of South Carolina--the ``Inducing Infringement of Copyright Act of 2004.''

The ``Inducing Infringement of Copyright Act of 2004'' is a straightforward bill. Our legislation treats those who induce others to violate copyrights as infringers themselves. This is not a novel concept; it is the codification of a long-standing principle of intellectual property law: that infringement liability reaches not only direct infringers but also those who intentionally induce illegal infringement. And while the legal principle is an old one, the problems of inducement for copyright are a relatively new byproducts of the digital age--an age in which it is easy, and often profitable, to induce others to violate copyrights through illegal downloading from the Internet.

The principle at the heart of this bill--secondary copyright liability--has long been in the common law. In fact, such secondary liability is provided for by statute in the patent law. The patent code provides liability for inducing infringement and for the sale of material components of patented machines, when the components are not a staple article of commerce suitable for substantial non-infringing use. This is because it has long been relatively simple and economically worthwhile to induce patent infringement. By contrast, until recently the ability to illegally download music, books, software, and films has not existed. Recent developments, however, now make it necessary for Congress to clarify that this principle also applies to copyrights.

What the inducement bill does not do is just as important as what it does: It does not target technology. Useful legislation on this topic must address the copyright issue and not demonize certain software. As a practical matter, if a law is targeted at certain software, the designers will simply design around the law and render it useless. And as a matter of effectiveness, if the law addresses only well-understood present threats, it will necessarily be too narrow to encompass future technologies that may pose the same threat to copyrights. A law that deals simply with

[Page: S7193] GPO's PDF

the copyrights--and their violation--is far less likely to be circumvented or out-dated before it can do any good. It will be both broad enough and sufficiently flexible to accommodate situations we cannot foresee.

This legislation is also carefully crafted to preserve the doctrine of ``fair use.'' Indeed by targeting the illegal conduct of those who have hijacked promising technologies, we can hope that consumers in the future have more outlets to purchase creative works in a convenient, portable digital format. Similarly, the bill will continue to promote the development of new technologies as it will not impose liability on the manufacturers of copying technology merely because the possibility exists for abuse. Finally, the bill will not affect Internet service providers who comply with the safe harbor provisions of the Digital Millennium Copyright Act.

Copyright law protecting intellectual property is one of the taproots of our economy and of our creativity as a nation. For copyright law to work as the Founders intended, it needs effective enforcement. That means adapting enforcement tools to meet new challenges, in the digital age or in any age. And that is the straightforward purpose of this bill.

I would like to take a moment also to emphasize another important, if obvious, point about this bill that some detractors have ignored. The law only penalizes those who intentionally induce others to infringe copyrights. Thus, the makers of electronic equipment, the software vendors who sell email and other programs, the Internet service providers who facilitate access to the Web--all of these entities have nothing to fear from this bill. So long as they do not conduct their businesses with the intention of inducing others to break the law--and I certainly have not heard from anyone who makes that claim--they should rest easy. The only actors who have anything to fear are those that are already breaking the law; this bill simply clarifies and codifies that long-standing doctrine of secondary liability.

The ``Inducing Infringement of Copyright Act of 2004'' is a simple fix to a growing problem. The bill protects the rights inherent in creative works, while helping to ensure that those same works can be easily distributed in digital format.

Mr. FRIST. Mr. President, I rise in support of the Inducing Infringement of Copyrights Act of 2004 introduced today by Senators HATCH and LEAHY. I am proud to be an original cosponsor. The Inducement Act addresses the growing problem of online piracy--the illegal downloading of copyrighted music. Piracy is devastating the music community and threatening other forms of copyrighted work. This commonsense, bipartisan legislation takes important steps in protecting our Nation's intellectual property.

When I return home to Nashville and drive down Music Row, my heart sinks as I see the ``For Sale'' and ``For Rent'' signs everywhere. The once vibrant music community is being decimated by online piracy. No one is spared. It is hitting artists, writers, record companies, performing rights organizations, and publishers.

Every month 2.6 billion music files are illegally downloaded using peer-to-peer networks, and it is not unusual for albums to show up on the Internet before they make it to the record store. The effect of this theft of intellectual property is disastrous to the creative industry. In the end, rampant piracy dries up income and drives away professional musicians. We get fewer artists and less music.

Online piracy affects more than just the music industry. It affects a broad swath of the creative field, including the movie and software industries. Music, movies, books, and software contribute well over half a trillion dollars to the U.S. economy each year and support 4.7 million workers. When our copyright laws are blatantly ignored or threatened, an enormous sector of our economy and creative culture is threatened.

The intent of the anti-piracy bill being introduced today is simple. It holds liable those who intentionally induce others to commit illegal acts of copyright infringement. In other words, it targets the bad actors who are encouraging others to steal. In addition, the general cause of action in this bill is not new or revolutionary. It is based on the theory of secondary liability that is found squarely in our Nation's laws.

This bill should not and does not threaten in any manner the further advancement of technology. It is not a technology mandate. Only individuals or organizations which profit from intentionally encouraging others to violate our copyright laws should fear this legislation. It has been carefully crafted and will be thoroughly reviewed to ensure that its language accurately reflects its sound intent.

The future of the music community is with advancing technology, and I encourage those in the music field to continue to offer innovative choices to consumers. It is important to recognize, however, that no one in the music industry or any other intellectual property field can survive when his or her work is being stolen. Those who are intentionally and actively encouraging this theft should be held accountable.

I would like to thank Senator Hatch for his hard work on this bill and his dedication to this issue. I would also like to thank Senator Leahy for his work. This is truly a bipartisan issue, and I look forward to working with Members on both sides of the aisle to ensure that our intellectual property laws are respected and enforced.

Other firms known... (2, Insightful)

thentil (678858) | more than 10 years ago | (#9630543)

Other firms known to 'induce' copyright infringement: Any audio recording device. Any video recording device. Libraries. Any cd, vhs, dvd copier. The Internet. Ban it all, let God sort it out! *sigh*

robbIE takes aim at /. users? (0)

Anonymous Coward | more than 10 years ago | (#9630546)

unfortunately, the fauxking pateNTdead PostBlock censorship devise, is practically as useless as gnu online dating, was.

felonious corepirate nazi billyonerrors' puppets, sheesh!@#$%

take care. lookout bullow.

consult with/trust in yOUR creators.... perfecting the power of sharing, since/until forever.

email (0)

Anonymous Coward | more than 10 years ago | (#9630549)

So much for making email software.

Outlaw everything! (1)

SilentSheep (705509) | more than 10 years ago | (#9630551)

Why not outlaw IRC and web browsers too. There's as much copyrighted material distributed via these forms too!

Re:Outlaw everything! (1)

lacrymology.com (583077) | more than 10 years ago | (#9630660)

" Why not outlaw IRC and web browsers too. There's as much copyrighted material distributed via these forms too!"

Because there are very few (if any) lobby groups whispering into Hatch's ear.

-m

Skip the Middle Man (4, Funny)

bman08 (239376) | more than 10 years ago | (#9630552)

Let's just cut to the fucking chase and outlaw music altogether. That's what my parents always did; if you can't play nice, we're taking the toys.

Obvious attempt at drug dealer comparison (1, Insightful)

Anonymous Coward | more than 10 years ago | (#9630553)

The senator's wording is obviously trying to imply some insidious element corrupting your child s morals with promises of pleasure, read drug dealer. Such alarmist propaganda is only caused by big business influencing a Senator to make such bombastic statements. That's the scary insidious element in our lives, not P2P.

Only way to win (1)

Lord_Dweomer (648696) | more than 10 years ago | (#9630554)

Ok, even if this does go through, there is no chance in hell it will actually stop the creation of P2P, as it only affects the US. Last I checked there were other countries to program things in.

But for any who want to try fighting this on the homefront, I think our best chance is the media. We need to do whatever it takes to get the RIAA, Orrin Hatch, the MPAA, etc, painted in a bad light by the media not just for suing kids, but for pursuing these draconian measures.

Most people have no idea these kind of laws are being proposed, they just hear about the lawsuits.

We need to make them aware. The Daily Show is a good place to start. I'd love to get Hatch on there and have Stewart grill like they did that spammer.

Won't happen (0)

Anonymous Coward | more than 10 years ago | (#9630686)

"But for any who want to try fighting this on the homefront, I think our best chance is the media. We need to do whatever it takes to get the RIAA, Orrin Hatch, the MPAA, etc, painted in a bad light by the media not just for suing kids, but for pursuing these draconian measures."

Most of the media is owned by the same companies that own the record labels. Do you really think that they will do anything that hurts their argument? The only reason the RIAA gets away with its actions is because their side gets media attention, while the other side is barely covered.

Corporations (-1, Troll)

Anonymous Coward | more than 10 years ago | (#9630559)

The Corporations have taken over. You know it, I know it. Why is nothing been done? Up for a little bit of revolution?

Legislation and litigation don't work (1)

91degrees (207121) | more than 10 years ago | (#9630561)

Clearly thesolution is more legislation and litigation.

Clichéd, but... (2, Funny)

Zab UvWxy (694326) | more than 10 years ago | (#9630567)

...when peer-to-peer is outlawed, only outlaws will have peers. At least, non-government-sanctioned peers.

GNU/Linux and P2P are like paedophiles (0)

Anonymous Coward | more than 10 years ago | (#9630569)

GNU/Linux and P2P are like paedophiles, and that's why we are determined to label it as that.

Profit? Uh...no. (4, Informative)

Famatra (669740) | more than 10 years ago | (#9630573)

"Hatch says such firms 'think that they can legally profit by inducing children to steal."

Thankfully I only use P2P programs that are GPL, and thus free as in beer, so little if any profit motivation there.

The best p2p applications are usually free / open source like eMule [emule-project.net] , Freenet [sourceforge.net] , and how apparently even Shareza [shareaza.com] 2.0 is open sourced [shareaza.com] under the GPL.

We control the horizontal We control the vertical. (5, Informative)

1u3hr (530656) | more than 10 years ago | (#9630574)

For those who didn't read to the end of the article, I think this is the vital bit Mitch Bainwol, RIAA chairman and chief executive officer, said in a statement. "Legitimate uses of peer-to-peer are upheld, while those who intentionally lure consumers into breaking the law are held to account. Under this legislation, the path to legitimacy remains clear: Respect the law and block the exchange of works the copyright owner has not authorized."

So UNLESS a P2P app blocks all not-authorised (by the *IAA) file transfers, it will be considered illegal. The implications are amazing, and could easily be applied to hardware (any file copy, burn to CDR, upload to MP3 player, etc...)

Every day... (4, Interesting)

svg (100938) | more than 10 years ago | (#9630577)

I become more and more amazed at the stupidity of everyone in government, and the music industry. They have clearly lost the ball, and are trying to protect short term profits, while sacrificing, long term market stability, profitability, not to mention a positive public image. I used to be really depressed. Then I realized that all these technical solutions wouldn't work; the techno-neophytes that supported/introduced this legislation would retire, or die. For a short period of time, I was happy. Then I realized that there are still places in the United States where evolution isn't taught in the schools. [And yes, there is a link, stupidity, evil, and fundamentalist religions rear their ugly heads everywhere]. Now I am depressed again. The technologically enlightened should form their own country, and screw the rest of them. Except the telephone sanitizers.

Clearly, there must be a balance to online music sharing, but music companies must recognize that they have to adapt to the changing world like the rest of us, or be left behind.

Wrong direction (-1, Redundant)

Anonymous Coward | more than 10 years ago | (#9630578)

How about we ban all automobiles because murderers are using them as getaway also while they are at it.

We get the government we deserve? (1)

grunt107 (739510) | more than 10 years ago | (#9630582)

More evidence of the US government being completely owned by corporate interests. While P2P systems are being used for some illegal purposes, their intent is to share information (and processing cycles). With grid computing being a "tech du jour", this proposed "law" could (probably would) be enhanced to charge people with negligent virus transmission/hacker activity - if I let others use CPU cycles on my computer and one turns out to breach an FBI firewall, I am therfore responsible for said criminal's actions.
Puh-lease people, take the list of politicians supporting this bill and get them out of office!!!

Re:We get the government we deserve? (1)

torpor (458) | more than 10 years ago | (#9630630)

More evidence of the US government being completely owned by corporate interests.

Thing is though you can't avoid corporate interest. Corporate interest is the fundamental strength of the American economy.

Without corporations creating and defeating and dominating new markets, America goes poor.

Its one thing to resist the New World Order. Its another thing entirely to live in it. It is upon us, there is nothing left to do (armed revolt? no. civil disobedience? no. none of these things work any more) ... but get corporate.

Me, Inc. is the only path to survival in the New Global Order.

Right after.. (1)

Quixote (154172) | more than 10 years ago | (#9630585)

making it illegal to produce such applications.

Worry about that after you make it illegal to produce guns, Senator.

What was that? Guns don't kill people, people do??

How's this any different?

Of course, since Sen. Hatch is supported by the NRA, don't expect him to do anything about guns
(not to threadjack or anything, just drawing parallels).

effects (4, Informative)

dncsky1530 (711564) | more than 10 years ago | (#9630587)

I found this article [ecommercetimes.com] that shows the direct inpact on digital media companies, its details that large fines could mean that a single lawsuit could force companied like Apple out of business

New bill (1, Funny)

Mr_Silver (213637) | more than 10 years ago | (#9630598)

When will a new bill be proposed that prevents Orrin Hatch from proposing dumb bills?

Actually scratch that, how about one that prevents him from proposing any bills whatsoever? The guy certainly seems to need a cooling off period.

Where does it say P2P will be illegal? (1)

Hachima (718971) | more than 10 years ago | (#9630601)

I don't see any place in that entire article that mentions outlawing P2P entirely. It only states that pentalities can be given to creators of software that induce software piracy. It will also allow owners of the distributed material to sue those involved. P2P can still be used for legal purposes. For example the current beta test of World of Warcraft uses bittorrent to distribute the 2 gig installation program. This new bill will not make the legal use of P2P illegal.

Peer to peer is the holy grail of networking (4, Insightful)

Raindeer (104129) | more than 10 years ago | (#9630603)

Could someone please tell those in charge that the basic premise of peer to peer (and modern networking as a whole for that matter) is not to cheat somebody out of his/her rights. Peer to Peer is the holy grail of modern networking. Everybody who has ever thought about networking has been wondering how to build a network in such a way that all nodes can connect with all others, without having the need for a central switch/server controlling all the aspects of the communication.

In the lower network levels you see these kinds of networks in wireless setups. They tend to have problems with scalability. In the higher network layers it has turned out to be possible to create networks that are not in need of a fixed central node that controls communications. However you do see the advent of supernodes to improve communications.

Illegal stuff generally ends up on the most efficient network setup. It used to be BBS, then FTP and now Peer to Peer. However in the end, Kazaa, Gnutella and Bittorrent are all modern answers to the question: How do we build an FTP-system without the need for a central server that will run out of its bandwidth the moment it is announced on Slashdot.

Surprise? (0)

Anonymous Coward | more than 10 years ago | (#9630611)

Those were TWO (2) surprizes in one paragraph. Thatz too much. My affect is now blunted!

Won't happen (5, Insightful)

Pedrito (94783) | more than 10 years ago | (#9630614)

There's no way this will happen. They'd essentially have to make the internet illegal since every application written for the internet is about transferring data in one form or another. This is just stupid. Even if congress passes a law, I have no doubt the Supreme Court would strike it down, even THIS Supreme Court. I doubt Scalia or Thomas would help, but most of the rest have some basic sense of law and the bill of rights.

And as we saw in the Slashdot post yesterday, file sharing is clearly destroying the movie industry. Not! The only thing hurting the music industry is the music industry. They're putting out crap music and they're suing their customers. If they changed these two things, they'd probably be back to record (pun not intended) profits.

Not only am I not buying today's music, I'm not downloading today's music. Because it sucks. Britney, please don't do it again! Quit. Go home. Please!

What about Skype? (2, Insightful)

The Rev (18253) | more than 10 years ago | (#9630625)

Doesn't Skype [skype.com] prove that there are legitimate uses of P2P that aren't even about sharing files?

It's a technology. This is insane!

Does anyone read the articles? (1)

KerosX (69075) | more than 10 years ago | (#9630628)

Where in the article did it say that P2P applications (in general) will be outlawed?

So, what is the solution? (1)

91degrees (207121) | more than 10 years ago | (#9630629)

Should we legalise file sharing? Should we abolish copyright? If we do, what will be the incentive for creators to publish their work? The desire to create?

So, can we make a whole class of software illegal? Well, we can. Considering a substantial part of the population uses it though, it's unlikely that would prove to be too popular.

So, what do we do?

Taylor made arguments (5, Funny)

bman08 (239376) | more than 10 years ago | (#9630631)

This is an awesome argument. We can just use all of the NRA's carefully crafted arguments replacing guns w/ p2p apps.

Kazaa doesn't steal music, people do...
You can take my limewire from my cold dead hands...

Not to mention awesome statistics like... More music gets stolen every day by bootlegging operations than by p2p users.

Fun Stuff!

US Goverment (-1, Redundant)

Anonymous Coward | more than 10 years ago | (#9630634)

The US goverment is OWNED by big bussiness plain and simply!

No more Bittorrent? (1)

hexxeh (790587) | more than 10 years ago | (#9630636)

Hear that? That's the cries of anguish from Linux distributors who won't be allowed to use Bittorrent to send out ISO's anymore.

Does this mean that Windows... (1)

dhandler (577511) | more than 10 years ago | (#9630639)

would essentialy become an illegal tool, since P2P once was (and in some ways still is) a key underpinning of its networking functionality?

What exactly is P2P? (2, Insightful)

RC_Car (778076) | more than 10 years ago | (#9630642)

Would this stop the development of BitTorrent? I was never sure if BitTorrent was really a P2P program or just a new way to transfer files that shares bandwidth and helps out sites that have high bandwidth consumption when they release new products (didn't Mozilla offer a BitTorrent download once?)

How is a P2P program classified? Couldn't just about any data sent from one computer to another computer be considered P2P?

A non-lawyer's interpretation (4, Interesting)

Karrde712 (125745) | more than 10 years ago | (#9630647)

Basically, it seems that they're trying to restrict the law in a very reasonable way. The law states that in order to be in violation, it has to be proven that the P2P application's only method of commercially viability is by inducing copyright violations.

Sounds reasonably fair to me. It's not an end-all "P2P is evil and must be stopped" bill. It's a method to keep out the more dangerous offenders. For example, BitTorrent should be immune to prosecution under this law because its main intended purpose is to lighten the hit on the download of new versions of legal software, specifically Linux distributions.

Kazaa, on the other hand, really doesn't have a legal leg to stand on. Perhaps if they didn't have a built-in MP3/Video player in the client, they might have gotten away with it, but they specifically built the GUI so as to make it easy and convenient to download illegal songs and movies.

And yes, I acknowledge that there are legal downloads that can be made through Kazaa, but most of those were added as an afterthought in order to try and delay/counter litigation.

Section 501 of title 17, United States Code, is amended by adding at the end the following:
`(g)(1) In this subsection, the term `intentionally induces' means intentionally aids, abets, induces, or procures, and intent may be shown by acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor, including whether the activity relies on infringement for its commercial viability.
`(2) Whoever intentionally induces any violation identified in subsection (a) shall be liable as an infringer.
`(3) Nothing in this subsection shall enlarge or diminish the doctrines of vicarious and contributory liability for copyright infringement or require any court to unjustly withhold or impose any secondary liability for copyright infringement.'.

If this law passes... (1, Insightful)

Anonymous Coward | more than 10 years ago | (#9630648)

Short list of things that can "induce children to commit copyright infringement" that this law will make illegal:

- personal computers
- operating systems
- almost all software
- printers
- xerox copy machines
- cameras
- VCRs
- blank videotape
- CD/DVD burners
- blank CDs/DVDs
- DVD players
- camcorders
- cassette tapes and players
- protocols such as FTP, HTTP, SSH, TCP/IP
- iPods and any other HDD-based mp3 player
- libraries
- all musical instruments
- pens
- ink
- pencils
- paper
- paint brushes and paint
- rusty nails (a child could scratch text from a copyrighted book onto a table surface or wall)
- human vocal cords (a child could sing the lyrics of a copyrighted song)

What about the candy manufacturers? (2, Funny)

hal2814 (725639) | more than 10 years ago | (#9630649)

They are out there every day making deliciously evil candy that entices kids to get in the car with strangers. This must be stopped!

He is my favourite senator now (1)

Timesprout (579035) | more than 10 years ago | (#9630652)

For being able to look past my greying hair and see the vunerable inner child within me. I feel so young and alive now.

hey Hatch... WHERE IS THE MONEY??? (0)

Anonymous Coward | more than 10 years ago | (#9630662)

If Hatch really wants to keep the children from being induced to steal, he and those other "caring" politicians should introduce a bill that outlaws the US government.

The money being "lost" due to P2P is chump change compared to the trillions of dollars [whereisthemoney.org] that the US government cannot account for.

We can measure Hatch's sincerity by how quickly he moves to protect the millions of US children that are learning bad habits from the US government. Please tell him it is an important issue that needs his full attention until the matter of the missing trillions is resolved.

Superfluous where it's already illegal (2, Insightful)

eofpi (743493) | more than 10 years ago | (#9630666)

...and outrageous where it's not.

Luring people with false promises of legally free music is false advertising. Last I checked, this was already illegal.

They might have had a leg to stand on about easy access to pr0n, if it wasn't for the equally easy access to it on the rest of the internet. And besides, there are already plenty of (iirc, mainly state and local) laws regarding the accessibility of pornography. Last I knew, those laws were still in effect.

Which brings us to the part that's outrageous. Based on the premises behind the previous two paragraphs, they aim to make p2p software illegal, because it PERMITS these activities.

This is akin to making it illegal to make cars capable of exceeding the speed limit, on the off chance that someone speeds. But that would never fly. It's called personal responsibility. If I speed, I get a ticket (or have at least earned one, whether or not a policeman was around to give me one). I know this. You know this. Lots of people do it anyways, but they know they're taking a chance. P2Ping is no different (the rare instance of legal usage excepted).

What about FLOSS P2P? (1)

manabadman (589984) | more than 10 years ago | (#9630667)

"Senate Judiciary Committee chairman Orrin Hatch, clearly targeting P-to-P vendors, claimed his bill focuses on companies that profit by encouraging children and teenagers to infringe copyrights."

But what does that mean for the organizations that develop P2P applications, but do not profit from thier development. For example gnutella, giFT, and OpenFT [sourceforge.net] ?

Would bittorrent fall in this category? It is certainly used to distribute pirated material, but its intended purpose (and popular use) is to distribute legal (FLOSS, demo) items.

The Yahoo! article wasn't clear. It says the bill attacks P2P developers, but all the direct quotes by Hatch say that he is after companies that develop software anticipating that software to be used for piracy.

"it creates a new class of people who can be sued or prosecuted for copyright infringement -- those who a "reasonable person" would believe "intentionally aids, abets, induces or procures" copyright violations"

"Tragically, some corporations now seem to think that they can legally profit by inducing children to steal. Some think they can legally lure children into breaking the law with false promises of 'free music.'"

I don't know if you can fault the intent, but my guess is that poor legal implementation will again be our undoing.

Misuse of "steal" again, sigh (5, Insightful)

dunstan (97493) | more than 10 years ago | (#9630670)

Repeat after me: "Illegal copying is not theft, it is illegal copying".

The equating of illegal copying with property theft is now so widespread that it doesn't attract comment: this is bad. Those who misuse the language in this way should always be corrected.

Dunstan

The obvious counter-statement (5, Informative)

rhadamanthus (200665) | more than 10 years ago | (#9630677)

Hatch, a Utah Republican, said in a statement. "Tragically, some corporations now seem to think that they can legally profit by inducing children to steal. Some think they can legally lure children into breaking the law with false promises of 'free music.'"


While it is not at all clear that Kazaa has ever told people to use it's software to steal, it is clear that some corporations now seem to think that they can legally profit by bribing senators with campaign donations.


Open Secrets [opensecrets.org]



Note that he recieves a generous bonus from "lobbyists" and "TV/Movie/Music".

This is good because (2, Insightful)

Peaker (72084) | more than 10 years ago | (#9630678)

One step further in the actual enforcement of copyright is one step further in its abolishment.

People will not stand for copyright when it actually enforced.

Taking aim... (1)

bgarcia (33222) | more than 10 years ago | (#9630681)

Senate Takes Aim At P2P Providers
Apparently, they are also taking aim at John Kerry: link [yimg.com]

inducing to start smoking is no problem (2, Insightful)

Anonymous Coward | more than 10 years ago | (#9630687)

Inducing children to start smoking is not a big concern to senators, it seems. This music thing is what kills the nation.
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