July 12, 2014

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My Morning Pick-Me-Up

First thing this morning, I’m sitting in my bathrobe, scanning my inbox, when I’m jolted awake by the headline on a TechDirt story:

California Senator Wants to Throw Ed Felten in Jail

I guess I’ll take the time to read that story!

Kevin Murray, a California legislator, has introduced a bill that would fine, or imprison for up to one year, any person who “sells, offers for sale, advertises, distributes, disseminates, provides, or otherwise makes available” software that allows users to connect to networks that can share files, unless that person takes “reasonable care” to ensure that the software is not used illegally. TechDirt argues that my TinyP2P program would violate the proposed law.

Actually, the bill would appear to apply to a wide range of general-purpose software:

“[P]eer-to-peer file sharing software” means software that once installed and launched, enables the user to connect his or her computer to a network of other computers on which the users of these computers have made available recording or audiovisual works for electronic dissemination to other users who are connected to the network. When a transaction is complete, the user has an identical copy of the file on his or her computer and may also then disseminate the file to other users connected to the network.

That definition clearly includes the web, and the Internet itself, so that any software that enabled a user to connect to the Internet would be covered. And note that it’s not just the author or seller of the software who is at risk, but also any advertiser or distributor. Would TechDirt be committing a crime by linking to my TinyP2P page? Would my ISP be committing a crime by hosting my site?

The bill provides a safe harbor if the person takes “reasonable care” to ensure that the software isn’t used illegally. What does this mean? Standard law dictionaries define “reasonable care” as the level of care that a “reasonable person” would take under the circumstances, which isn’t very helpful. (Larry Solum has a longer discussion, which is interesting but doesn’t help much in this case.) I would argue that trying to build content blocking software into a general-purpose network app is a fruitless exercise which a reasonable person would not attempt. Presumably Mr. Murray’s backers would argue otherwise. This kind of uncertain situation is ripe for intimidation and selective prosecution.

This bill is terrible public policy, especially for the state that leads the world in the creation of innovative network software.

Comments

  1. Boing Boing says:

    California’s state-level INDUCE act unveiled

    Snipped from Red Herring’s coverage today: A bill introduced in the California Legislature last Friday seeks to do what U.S. federal courts have so far refused to do: criminalize selling, advertising, and distributing peer-to-peer (P2P) file-sharing so…

  2. Boing Boing says:

    California INDUCE bill bans the Internet

    An extremist California Senator called Kevin Murray has introduced a Californian version of last year’s Federal INDUCE Act, a law that proposed to make the very Internet itself illegal, for it bans producing, selling, offering, descirbing or building a…

  3. Copyfight says:

    California Senator Wants to Throw Ed Felten in Jail

    Speaking of Cal-Induce, here’s Ed Felten’s coffee-expelling reaction to a story on Techdirt singling out his Tiny P2P program as enough to put him in jail….

  4. Peatey says:

    IIRC, Rep. Pitts sponsored H.R. 2885 (“Protecting Children from Peer-to-Peer Pornography Act of 2003″) that sought to make the FTC define p2p in a very similar fashion. As written, the bill requires FTC to promulgate a definition of p2p that includes:

    “… computer software that enables the transmission of computer files or data over the Internet or any other public network of computers and that has as its primary function the capability to do all of the following–

    (A) enable a computer on which such software is used to transmit files or data to another such computer;
    (B) enable the user of one such computer to request the transmission of files or data from another such computer; and
    (C) enable the user of one such computer to designate files or data available for transmission to another such computer, but which definition excludes, to the extent otherwise included, software products legitimately marketed and distributed primarily for the operation of business and home networks, the networks of Internet access providers, or the Internet itself;”

    Howard Beales from the FTC testified on this in May 2004. Just an FYI.

  5. tom says:

    the user has an identical
    copy of the file on his or her computer

    Simple, develop an audio format where the data can be re-arranged but still produce the same audio output.
    Its not “bit identical” but still “functionally identical”. Does the law distinguish between these?

  6. Anonymous says:

    From the snippet in your article, it sounds like the entire LAN and WAN industry would become illegal.

  7. Mike says:

    Whoops. Sorry… didn’t mean to shock you awake like that. :)

  8. patent person says:

    This bill, on first blush, sounds like it might have a significant “dormant commerce clause” problem. This problem might, depending on the bill’s final language, render parts of any resulting california statute unconstitutional.

    In other words, California, by placing this new restriction on internet applications, is effectively trying to regulate interstate commerce throughout the United States, not just in California. State laws that attempt to have such nationwide (or worldwide, in this case) effect sometimes have difficulty passing constitutional muster.

    That said, just to create a new worry, what’s to stop the FCC from establishing similar language as a regulation?

  9. USACM Tech Policy Weblog says:

    State bill could cripple P2P

    “A bill introduced in California’s Legislature last week has raised the possibility of jail time for developers of file-swapping software who don’t stop trades of copyrighted movies and songs online.

    The proposal, introduced by Los Angeles Sen. K…

  10. Darren Coolidge says:

    This is where our government is failing. It seams our current government is trying to stifle inovation just to keep the money in the hands of the already rich people. You know those rich people are lobbying and getting these kinds of bills out there.

    I don’t have a solution I’m just pointing out the obvious…

  11. SFist says:

    The Battle for the Golden State

    Northern California and Southern California are locked in battle. It’s not over the quality of coffee, the issue of transportation, of taxes or water or real estate or celebrity sightings. It’s a battle for the freedom of information and the tools used…

  12. Privacy Digest: Privacy News (Civil Rights, Encryption, Free says:

    EFF – Ed Felten woke up this morning to a headline he couldn’t to ignore: California Senator Wants to Throw Ed Felten in Jail.

    Cal-Induce Threatens to Jail Ed Felten .

  13. Peter O says:

    As a college graduate with a degree in CS, I find this bill almost offensive. Why on this green* earth would you introduce any bill of any sort that targets peer to peer communication? What possible utility is there for the law one specific technological outcome of the development of the Internet’s protocols? There are a ton of ways of routing data through the internet – here are some biggies:
    Web – hub and spoke, one main source, outbound links
    Peer to peer – mesh, but not completely connected
    Ring – as in Token Ring, a perfectly viable distribution system (that just happens to not be in much use, with some valid but not fatal reasons)

    But there are plenty others, including multicast and some more esoteric (and awesome) routing ideas that I don’t want to bore people with. The all allow piracy! Peer to peer is not a “feature” of the Internet. It’s not like you have to choose to route your data via method A, B, or C. It’s just an emergent property of what the internet can do — it’s so senseless to legislate on this sort of thing. Is this bill seriously just saying “leaves of the Internet may not talk to each other. You may only send content downstream.”?? Why go at the problem this way, and not through better overall anti-piracy law? This is a horrible, horrible idea. If any inforcements get put in place – e.g. at the ISP level, it will cripple the most powerful communications network in history.

    * The earth is mostly blue, from what I hear. It’s kind of a silly expression.

  14. Paul Sadler says:

    “A) enable a computer on which such software is used to transmit files or data to another such computer;”
    Such as an email client like Outlook? Oh, or IM software like, say, MSN Messenger? No mail attachments for anyone, ever. They’re naughty.

    “(B) enable the user of one such computer to request the transmission of files or data from another such computer…”
    Like, for example, any antivirus software? Any other software, like, say, Windows XP that updates itself automatically? Buy your updates from your local software retailer. Every week. $8.95 thanks sir. Oh, you wanted to update more than one program?

    ” enable the user of one such computer to designate files or data available for transmission to another such computer, but which definition excludes, to the extent otherwise included, software products legitimately marketed and distributed primarily for the operation of business and home networks, the networks of Internet access providers, or the Internet itself;” including presumably, any online games that make available textures, config files etc to enable the game to function correctly? Online gaming is clearly the tool of the devil. Electronic communication has been used by TERRORISTS. Go and play outside for a change. No I won’t give up my phone, why do you ask?

    Notice the number of Microsoft products I mentioned. I would suggest waiting for screams of outrage from down Redmond way. Also from companies like Apple, Sun, Redhat, Novell, hell, anyone whose software makes use of an IP address. This bills is going to have to be diluted into nothingness if the US wants to continue to have a software industry, of even an effective communications network.

  15. Cypherpunk says:

    It’s a mistake to focus too closely on the details of how the bill defines P2P software. This part will likely be revised before the bill proceeds. The bottom line is that judges will be called upon to distinguish good from evil software, and they won’t necessarily have a hard time doing it. Judges excel at making such distinctions and they aren’t influenced by pedantic arguments like those being made here. They can tell the difference betwen Kazaa and Outlook, and they won’t have any problem finding ways to distinguish the first from the second in their legal opinions.

    This is how the legal system works. Judges decide who the good guys and bad guys are based on common sense and their ideas about justice, and they bend the law to conform to their decisions. Law is not computer science and trying to analyze a bill as if they are the same is an exercise in futility.

  16. Elastico.net says:

    #De cómo las chavalas salvarán la industria del comic estadounidense #De cómo Stan Lee consiguió que Spiderman y la Marvel se las paguen #De cómo gran parte de la actividad bursátil es realizada por robots #De cómo el libro de…

  17. John Gilmore says:

    Wouldn’t it be better to simply outlaw Ethernet and 802.11? Make it a tort against the record companies and movie companies for citizens to use those technologies. That will accomplish what the companies want, which is to be able to file a lawsuit against anyone at any time. Ethernet is, after all, a peer-to-peer technology.

  18. Loraan says:

    Putting faith in judges is well and good, but judges must work within the framework of the law. I fear for the case of a high-dollar lawyer pushing a case against a poor programmer. At the end of the day, the judge interprets the language of the law. Just because the judicial branch can interpret laws with common sense isn’t an excuse to write sloppy laws.

  19. Nicky the Jazz Cat says:

    Are they going to put the guy who invented the FTP protocol in jail too?

  20. Bunjo says:

    Great, let’s apply the same logic to phones, cars, and cameras.