How Far Can Hollywood Go to Protect Copyrights?


The Internet has a way of making what would be straightforwardproblems extraordinarily difficult. Nowhere is this more the casethan 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. Buton the Internet, where there's no single owner, it is less clearwhat constitutes trespass. Hence the fights over pop-ups, spam,privacy, so-called spyware that watches our online moves, and muchmore.

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 giveHollywood and the record industry immunity from liability when theyaccess peer-to-peer (P2P) networks and attempt to prevent trade intheir copyrighted material. In other words, let Hollywood hack.

The pain of copyright holders is understandable. Thefile-sharing that goes on today wouldn't be possible without theInternet in the first place, and they have a real problem on theirhands regarding compensation for their works. But does that callfor giving entertainment industry giants a pass to police ourpersonal computers and future Web devices? The technology communityis up in arms and some, like the Computer and CommunicationsIndustry Association (CCIA), have gone so far as to label theBerman bill "vigilantelegislation."

Of course, limited "vigilantism" can have its place. As Bermanpointed out in remarksprepared for a Cato Instituteconference, "Libertarians might reasonably wonder why we needto pass legislation to give property owners the right to protecttheir property against theft. After all, if someone steals yourbike and brazenly stores it on their front lawn, you are allowed totrespass on that lawn to take your bike back. Why wouldn't acopyright owner be able to do the equivalent online?"

In one sense, Berman is correct: Private property owners havethe right to defend their possessions. But the problem with hisanalogy is that intellectual property is a somewhat different beastthan tangible property. There are important differences between thetwo given the more utilitarian construction of intellectualproperty rights in the Constitution. IP rights are more limited inscope and duration, and the "fair use" rights of users is a part oftoday's copyright bargain. Then again, fair use doesn't necessarilymean free use. Artists deserve compensation.

Under the Berman bill, IP holders (or more likely the largemovie studios and recording labels that represent them) would begranted a broad liability safe harbor to police P2P networks likeKaZaA, 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? Destroycertain files? Send a virus into the network? Unfortunately, itremains unclear not only what the Berman bill authorizes on P2Pnetworks, but also for the broader Internet, other communicationssystems (such as P2P on cellphones), or even future private cyber-networks or technologiesthat have not yet been developed.

While Berman's effort to empower copyright holders to protecttheir creations is understandable, it likely tips the balance a bittoo far in favor of Charles Bronson-type vigilantism. Technologicalself-help is legitimate, but breaking and entering is not.

Does this mean there are no legitimate self-help remediesavailable to content creators? Not necessarily. If copyright ownersare simply loading up servers with harmless dummy files posing asthe original, no one has any real right to complain when accessingthose instead of a real file: We aren't entitled to someone else'smusic in the first place. Such dummy files alone, which entail nointrusive access whatsoever to anyone's computer, may do the job bymaking P2P file swapping of copyrighted materials toocumbersome.

James DeLong of the Competitive Enterprise Institute, forexample, recommends thatcopyright owners deploy phony files that begin playing the song ormovie-only to then launch into a scolding lecture on the evils ofcopyright infringement. An interesting recentstudy by two University of Washington students suggests thatthis "spoofing" strategy may work if combined with selectivelitigation against the most egregious file pirates. And,apparently, a company known as Overpeer is alreadyengaged in such spoofing on behalf of industry.

This is the superior self-help approach: Nobody gets hacked andnobody gets hurt. P2P networks that trade in files via owners'permission would continue unimpeded. Only trade in copyrightedmaterial would be inconvenienced. For this, the Berman billprobably isn't needed. If any legislation is pursued, it shouldprobably not allow much more than such non-invasive self-helpremedies. But it remains unclear why copyright owners would needany new legislative authority to take this path.

More extreme "hacking" authorization would be a mistake. On apublic Internet, where government policy is likely to be ham-handedanyway, we cannot have different rules about any alleged right to"hack" apply to different classes of Internet users. It is truethat we agree to share the contents of our hard drive when we openit up to a P2P network, but the implied permission we grant stopsthere. Moreover, does it make sense for policymakers to beauthorizing attacks on computer networks after just announcing anew cybersecurity plan?

Thus there should be no explicit liability protection forcopyright 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 eithertype of damage, they should be liable. It's fine to allowrecord and movie companies to go ahead and self-protect in waysthat have no chance of impinging on third parties such as storingbogus files. Berman's staff has said he's open to those kinds ofchanges in the legislation; other stakeholders should take that toheart. Too many critics of the Berman bill base their opposition onan almost fanatical hatred of Hollywood or the recording industry.Such corporate-bashing is silly and unfortunategiven that there are other valid reasons to be concerned with themeasure.

Efforts to solve the piracy problem have to be tempered byperceptions of fairness on both sides. Bootleggers' rights aren'tbeing violated by stopping them. But on the other hand we can'tstop them in such a way that legitimate file-sharing and innocentusers are caught in the crossfire.