Declan on new P2P legislative challenges

jbone at jbone at
Wed Oct 22 09:42:14 PDT 2003

 From the skimming-/.-so-you-don't-have-to dept...  or maybe the 
evil-is-bipartisan dept.:


A new tech battle brews in D.C.

By Declan McCullagh

Story last modified October 20, 2003, 4:00 AM PDT

Even casual observers of the moral swamp called Washington, D.C., may 
remember the notorious Hollings bill, a mandatory copy protection 
proposal last year, which Hollywood's lobbyists loved and Silicon 
Valley hated.

Because Sen. Ernest "Fritz" Hollings, D-S.C. is retiring, the 
entertainment industry has been forced to locate new champions in the 
U.S. Congress. It has found them in three key members of the U.S. House 
of Representatives: Lamar Smith, R-Texas; Howard Berman, D-Calif.; and 
John Conyers, D-Mich.

The like-minded trio has quietly drafted a bill arguably as intrusive 
as Hollings' plan. They seem to be trying to target peer-to-peer 
clients, but you wouldn't know it from their proposal.

The fine print says huge categories of software--including Web 
browsers, instant messaging clients and e-mail utilities--that are 
offered for download must contain a warning that it "could create a 
security and privacy risk."

And the catch? If the companies or individuals who offer the software 
for download don't comply with the requirement, they will face criminal 
penalties such as fines or prison terms of up to six months. Even, that 
is, if the software is actually secure and poses no security risk.


Imagine what that means in practice. Any program that lets someone else 
send data to your computer--such as a remote Web site setting a 
cookie--or use your computer to search other computers' contents over 
the Internet would be covered.

Microsoft, AOL, Yahoo and anyone else that offers such software would 
have to put warnings up, or their executives would face prison time. 
The editors of the popular open-source sites SourceForge and CPAN would 
have to follow suit. So would, which publisher 
CNET Networks owns.

This is not merely a theoretical concern. Because Smith is the chairman 
of the subcommittee that oversees copyright laws, he's in a unique 
position to shepherd this scheme into law, possibly even before 
Congress adjourns this year. A scheduled Oct. 2 vote was postponed, 
because the subcommittee ran out of time, but Smith's aides say he's 
aiming to try again this week or next.

Legislative high jinks
Some background: The same mandatory download warnings existed in 
another bill, H.R. 2752, which Conyers and Berman drafted and then 
introduced in July.

Now, apparently at the behest of the MPAA, Congress may criminalize the 
unrestricted distribution of broad categories of software.
Other sections of the July bill were especially prickly, such as the 
idea that music fans should serve jail time for downloading even one 
illegal MP3 file. It suffered an unlamented, ignominious demise--the 
expected fate, after all, because all its sponsors were Democrats.

In response, Berman and Conyers tried to preserve parts of their 
radioactive bill by injecting them into an otherwise uncontroversial, 
bipartisan proposal, H.R. 2517, which was previously intended to nudge 
the FBI toward more copyright prosecutions and to create an "Internet 
Use Education Program"--basically a propaganda office the U.S. 
Department of Justice would run that would warn everyone not to violate 
copyright laws.

True, these ideas are hardly the best use of taxpayer dollars, but 
they're not likely to cause a firestorm of public outcry, either. 
(Another section that made it in: a sure-to-please-Hollywood penalty 
that says videotaping movies in theaters would be against the law.)

With the support of Smith, an influential House Republican, Berman and 
Conyers are hoping to replace that generally innoucous bill with their 
"amendment in the nature of a substitute." Jeff Lungren, a spokesman 
for Smith, told me on Friday: "We're still working on this legislation 
to reach a consensus--and one that will receive solid support from both 
parties. We are not commenting on what, if any, changes might be made." 
He added that he hopes to "move the bill later this month."

Lungren wouldn't say who's supporting the download notification 
penalties or who's involved in the negotiations.

For its part, the Recording Industry Association of America claims that 
it's not pushing the three politicos in this direction, and I believe 
them. Mitch Glazier, the RIAA's senior vice president and lobbyist, 
says "notice is a good idea, and quite frankly, P2P services ought to 
be doing it voluntarily...So, we support the chairman, we like the 
concept--but agree that it is overly broad in its current form."

For its part, the Recording Industry Association of America claims that 
it's not pushing the three politicos in this direction, and I believe 

The last remaining potential culprit is the Motion Picture Association 
of America and its member companies, which were behind the original 
Hollings bill last year and which other lobbyists tell me are behind 
this one, too. (Walt Disney lobbyist Preston Padden once told me that 
Hollings' Consumer Broadband and Digital Television Promotion Act 
represented "an exceedingly moderate and reasonable approach.")

An MPAA spokesman declined to comment.

Unfortunately, this has become Congress' usual pattern: A knee-jerk 
response that overreacts to a perceived technological problem. Instead 
of taking a thoughtful, careful approach, clue-impaired Congress 
critters do things like enact the Communications Decency Act and the 
Digital Millennium Copyright Act, which SunnComm Technologies used last 
week to threaten a Princeton University student. (Trivia: Did you know 
that on Sept. 11, 1997, a House committee voted to ban all encryption 
products without backdoors for the FBI?)

Now, apparently at the behest of the MPAA, Congress may criminalize the 
unrestricted distribution of broad categories of basic and popular 
software, regardless of whether the programs actually create security 
or privacy vulnerabilities.

Jonathan Potter, head of the Digital Media Association that represents 
companies such as AOL,, Apple Computer, RealNetworks and 
Yahoo, opposes the replacement bill.

"We have communicated to Chairman Smith and representatives Conyers and 
Berman, in writing and in person, our companies' strong concerns that 
the anti-P2P provision seems to penalize a much broader class of 
software applications than was intended," Potters said. "They have 
asked us to work together to bridge our differences, and we have agreed 
to try our best."

We'll see. Berman and Conyers are probably lost causes--after all, 
Berman is the fellow who introduced a bill last year that would give 
copyright holders the right to assail a peer-to-peer node they suspect 
may be distributing their intellectual property without permission. 
Conyers has already chosen which side he'll line up with on this issue.

On the other hand, perhaps there's still time for Smith to realize that 
he may not want to become known as the Fritz Hollings of 2003.

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