Reportedly the Induce Act has stalled, after the breakdown of negotiations over statutory language. Ernest Miller has the last draft offered by the entertainment industry.
(Notice how the entertainment industry labels its draft as the “copyright owners’” proposal. It takes some chutzpah to call your side the “copyright owners” when the largest copyright-owning industry – the software industry – is on the other side.)
The draft tries makes yet another attempt to define “peer-to-peer”. While the last draft’s definition was too broad, including, for example, the Web, this one is too narrow. It probably encompasses most or all of the P2P systems currently being used, but its narrowness allows those systems to be redesigned to evade the definition.
Here’s the definition:
The term “covered peer-to-peer product” shall mean a widely available device, or computer program for execution on a large number of devices, communicating over the Internet or any other publicly available network and performing or causing the performance at each such device all of the following functions:
(i) providing search information relating to copies or phonorecords available for transmission to other devices;
(ii) locating other devices that provide information relating to copies or phonorecords available for transmission that is responsive to search requests describing desired copies or phonorecords; and
(iii) transmitting a requested copy or phonorecord to another device that located the copy or phonorecord through such other device’s performance of the function described in clause (ii);
unless the provider of the device or computer program has the right and ability to control the copies or phonorecords that may be located by its use.
It looks like there are several ways to design a P2P system that evades this definition:
The definition requires each device to do all three of the enumerated functions. A system could have some devices do a subset of the functions.
The product must be a device or a program, which would appear to exempt systems that use multiple programs to perform different functions.
Function (iii) requires that the copy be transmitted to another device, and that other device must have located the copy to be transmitted via function (ii). Data could move through intermediaries that don’t use function (ii).
As I’ve written before, it’s awfully hard to come up with a statutory definition of peer-to-peer, because many popular and completely legitimate services on the net are designed in a peer-to-peer style; and because there is nothing special about the particular design strategy used by today’s P2P filesharing systems.