TechKnowledge No. 40

How Far Can Hollywood Go to Protect Copyrights?

By Clyde Wayne Crews Jr. and Adam D. Thierer
September 23, 2002

The Internet has a way of making what would be straightforward problems extraordinarily difficult. Nowhere is this more the case than the issue of copyright protection.

If I have a computer, you can’t break into my house and log on. Nor can you break into my office and access our office network. But on the Internet, where there’s no single owner, it is less clear what constitutes trespass. Hence the fights over pop-ups, spam, privacy, so-called spyware that watches our online moves, and much more.

Into this muddled legal environment comes H.R. 5211, the “Peer-to-Peer Piracy Prevention Act of 2002,” sponsored by Rep. Howard Berman (D-Calif.). Berman wants to give Hollywood and the record industry immunity from liability when they access peer-to-peer (P2P) networks and attempt to prevent trade in their copyrighted material. In other words, let Hollywood hack.

The pain of copyright holders is understandable. The file-sharing that goes on today wouldn’t be possible without the Internet in the first place, and they have a real problem on their hands regarding compensation for their works. But does that call for giving entertainment industry giants a pass to police our personal computers and future Web devices? The technology community is up in arms and some, like the Computer and Communications Industry Association (CCIA), have gone so far as to label the Berman bill “vigilante legislation.

Of course, limited “vigilantism” can have its place. As Berman pointed out in remarks prepared for a Cato Institute conference, “Libertarians might reasonably wonder why we need to pass legislation to give property owners the right to protect their property against theft. After all, if someone steals your bike and brazenly stores it on their front lawn, you are allowed to trespass on that lawn to take your bike back. Why wouldn’t a copyright owner be able to do the equivalent online?”

In one sense, Berman is correct: Private property owners have the right to defend their possessions. But the problem with his analogy is that intellectual property is a somewhat different beast than tangible property. There are important differences between the two given the more utilitarian construction of intellectual property rights in the Constitution. IP rights are more limited in scope and duration, and the “fair use” rights of users is a part of today’s copyright bargain. Then again, fair use doesn’t necessarily mean free use. Artists deserve compensation.

Under the Berman bill, IP holders (or more likely the large movie studios and recording labels that represent them) would be granted a broad liability safe harbor to police P2P networks like KaZaA, Morpheus and Gnutella. The real question is, exactly what is it that the Berman bill would let them do online. Just monitor activity? Send notice to potential violators? Destroy certain files? Send a virus into the network? Unfortunately, it remains unclear not only what the Berman bill authorizes on P2P networks, but also for the broader Internet, other communications systems (such as P2P on cell phones), or even future private cyber-networks or technologies that have not yet been developed.

While Berman’s effort to empower copyright holders to protect their creations is understandable, it likely tips the balance a bit too far in favor of Charles Bronson-type vigilantism. Technological self-help is legitimate, but breaking and entering is not.

Does this mean there are no legitimate self-help remedies available to content creators? Not necessarily. If copyright owners are simply loading up servers with harmless dummy files posing as the original, no one has any real right to complain when accessing those instead of a real file: We aren’t entitled to someone else’s music in the first place. Such dummy files alone, which entail no intrusive access whatsoever to anyone’s computer, may do the job by making P2P file swapping of copyrighted materials too cumbersome.

James DeLong of the Competitive Enterprise Institute, for example, recommends that copyright owners deploy phony files that begin playing the song or movie-only to then launch into a scolding lecture on the evils of copyright infringement. An interesting recent study by two University of Washington students suggests that this “spoofing” strategy may work if combined with selective litigation against the most egregious file pirates. And, apparently, a company known as Overpeer is already engaged in such spoofing on behalf of industry.

This is the superior self-help approach: Nobody gets hacked and nobody gets hurt. P2P networks that trade in files via owners’ permission would continue unimpeded. Only trade in copyrighted material would be inconvenienced. For this, the Berman bill probably isn’t needed. If any legislation is pursued, it should probably not allow much more than such non-invasive self-help remedies. But it remains unclear why copyright owners would need any new legislative authority to take this path.

More extreme “hacking” authorization would be a mistake. On a public Internet, where government policy is likely to be ham-handed anyway, we cannot have different rules about any alleged right to “hack” apply to different classes of Internet users. It is true that we agree to share the contents of our hard drive when we open it up to a P2P network, but the implied permission we grant stops there. Moreover, does it make sense for policymakers to be authorizing attacks on computer networks after just announcing a new cyber security plan?

Thus there should be no explicit liability protection for copyright owners-especially when they have the dummy files / spoofing alternative. If we allow them special “hacking” rights, it’s too easy to delete files erroneously on the target computer, or cause collateral damage to third parties. If they cause either type of damage, they should be liable. It’s fine to allow record and movie companies to go ahead and self-protect in ways that have no chance of impinging on third parties such as storing bogus files. Berman’s staff has said he’s open to those kinds of changes in the legislation; other stakeholders should take that to heart. Too many critics of the Berman bill base their opposition on an almost fanatical hatred of Hollywood or the recording industry. Such corporate-bashing is silly and unfortunate given that there are other valid reasons to be concerned with the measure.

Efforts to solve the piracy problem have to be tempered by perceptions of fairness on both sides. Bootleggers’ rights aren’t being violated by stopping them. But on the other hand we can’t stop them in such a way that legitimate file-sharing and innocent users are caught in the crossfire.

Clyde Wayne Crews Jr. (wcrews [at] cato [dot] org) is the Director of Technology Studies and Adam Thierer (athierer [at] cato [dot] org) ) is the Director of Telecommunications Studies at the Cato Institute in Washington, D.C. They are the co-editors of Copy Fights: The Future of Intellectual Property in the Information Age, www.cato.org/tech/copyfights/