September 20, 2020

"Peer to Peer" in the Berman-Coble Bill

Yesterday’s defense of the Berman-Coble bill resurrected the argument that the bill only hurts the bad guys, because it authorizes hacking only of peer to peer file trading networks. And we all know that “Decentralized P2P networks were designed specifically (and ingeniously) to thwart suits for copyright infringement by ensuring there is no central service to sue.”

Let’s look at the bill’s definition:

‘peer to peer file trading network’ means two or more computers which are connected by computer software that–
(A) is primarily designed to – (i) enable the connected computers to transmit files or data to other connected computers; (ii) enable the connected computers to request the transmission of files or data from other connected computers; and (iii) enable the designation of files or data on the connected computers as available for transmission; and
(B) does not permanently route all file or data inquiries or searches through a designated, central computer located in the United States;

The definition clearly includes non-controversial technologies, such as the Web itself, that were not designed with copyright infringement in mind.

This is not just an easily-fixed bug in the bill’s definition. Instead, it reflects the fact that the Internet’s design philosophy is based on a peer to peer model in which anyone can send anything to anybody. The big-central-server design of a system like Napster is the historical exception; peer to peer is the rule.

I don’t see an easy way to rewrite the definition to draw a clear technical line between “bad” peer to peer technologies and “good” ones.