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:
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.