The Berman P2P Bill: Vigilantism Unbound

On July 25, 2002, Representative Howard Berman (D-Cal.) introduced a bill, H.R. 5211 in the House of Representatives that would give copyright owners the right to violate the law in their efforts to stop the unauthorized circulation of their works on peer-to-peer networks. EFF opposes the bill as drastically misguided and overbroad.

The EFF agrees with Rep. Berman that, like the rest of us, copyright owners are entitled, within the bounds of the law, to use technological self-help measures to protect their assets. No legislation is necessary for that. What the Berman P2P Bill does is permit copyright owners to go further and violate the law. This unprecedented power has never been granted even to law enforcement, much less to a single industry.

The proposed law amounts to government-sanctioned vigilantism -- copyright owners are given the power to ignore the law in pursuit of those that they decide are guilty. There is no warrant requirement, no trial, no prior notice to the targets, no due process, and very little recourse for innocent bystanders caught in the cross-fire.

While the bill attempts to put some limits on this vigilante right, the limitations are a poor substitute for the thousands of laws that it sweeps aside. The Berman P2P Bill is not a sensible solution to the digital copyright dilemma. If passed, it will result in anarchy on the Internet and will harm innocent bystanders.

The Bill's Provisions

Rep. Berman claims that his proposal is narrowly tailored and intended to give copyright owners relief from "anti-hacking" laws as they try to stop copyright infringement on P2P networks. The actual language of the proposal tells a different story.

The Berman P2P Bill grants copyright owners and their agents the right to break any law, state or federal, civil or criminal, in the course of "disabling, interfering with, blocking, diverting, or otherwise impairing" the availability of his or her copyrighted works on a public peer-to-peer (P2P) file trading network. This power may be used to stop any unauthorized P2P activity, even if the activity does not violate copyright laws. This unprecedented power is limited by only 5 conditions:

• the attacker may not "alter, delete, or otherwise impair the integrity of any computer file or data" on the targeted computer (in other words, the bill authorizes only "denial of service" (DoS) and other attacks against the availability of files, rather than attacks that damage files and data);
• the attacker must not impair the availability of files on a targeted computer other than the works that the attacker owns, except as "reasonably necessary";
• the attacker may not cause "economic loss" (but is free to cause any other kind of loss) to any person other than the targeted file trader;
• the attacker may not cause "economic loss of more than $50 per impairment" to the targeted file trader; and
• the attacker must notify the Attorney General seven days before deploying the "impairment technology" for the first time, but need not notify a targeted person before launching an attack.

Innocent Bystanders Caught in the Cross-Fire

So long as the copyright owner and its agents stay within these vague limits, they are completely immune from liability under any and all laws.

So, for example, if you use a cable modem, you might end up as collateral damage in the copyright wars. Most cable modem users are on a shared connection with their neighbors. So if the RIAA launches a denial of service (DoS) attack on the teenager next door, it may also impair your access to the Internet. Even the police would be powerless to stop the RIAA's attack, unless you can show that you suffered "economic loss" or that the RIAA attack went beyond what was "reasonably necessary."

ISPs, network administrators, and Internet users generally will also suffer under the Berman P2P Bill, as the Internet is flooded with an ever-changing hailstorm of legally encouraged "attacks." The vigilante right created by this bill would extend to any copyright owner. Accordingly, every hacker who happened to be an photographer, musician, software vendor or author would be entitled to deploy his or her own homebrew "impairment technology" seven days after posting a note to the Attorney General.

As with most efforts to substitute vigilantism for the rule of law, this is a recipe for anarchy.

Conclusion

EFF opposes the Berman Bill, and encourages all Internet users to contact their Representatives and Senators to express their own opposition to the measure.