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"Peer to Peer" in the Berman-Coble Bill

September 6, 2002 by

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.

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What's That "Followups" Link?

September 5, 2002 by

You may have noticed the small “Followups” link at the bottom of recent entries in this blog. That’s a feature called TrackBack. (The link previously said “TrackBack” but I’ve changed it to “Followups” since that seems a more intuitive name.) Kieran Healy offers a nice explanation of the TrackBack feature.

If you’re a reader, the Followups link lets you read what other people have written (in their own blogs) about an entry.

If you have your own blog, you can use the TrackBack feature to add yourself to that list, so readers of my blog (including me) can find your commentary. If you use Movable Type, just turn on TrackBack and the rest is easy. If you use another blogging tool, ask your tool author to add TrackBack support.

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Preliminary Injunction Against Aimster

September 5, 2002 by

A Federal judge has issued a preliminary injunction against the Aimster file sharing service.

The judge found it likely that Aimster will ultimately (after all the evidence is heard) be found liable for contributory and vicarious copyright infringement. Based on a quick reading, it looks like this is based on Aimster’s involvement in promoting the available files, the use of infringing files as examples in its documentation, and on its failure to enforce its stated policy of kicking off infringers.

The opinion has some commentary on the Supreme Court’s Sony Betamax decision, hinting that Betamax established a standard based on the “primary use” of a product.

The exact terms of the injunction (i.e. what Aimster will be required to do or not do) are yet to be decided.

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Defense of Berman-Coble Bill Offered

September 5, 2002 by

In Politech today, Congressman Berman (through an aide) offers a defense of the proposed Berman-Coble bill. (This bill would legalize certain forms of hacking by copyright owners against users of file-sharing systems.)

The gist of the defense is that the bill would only shelter copyright holders from liability to the extent that they were actually preventing redistribution of their copyrighted works, but that any impairment of unrelated activities or legal file sharing would still be liable as under current law.

If that’s actually a correct reading of the bill, then the bill might not be as bad as people say. But it’s far from clear that that is the correct reading of the bill.

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Adobe Files DMCA Challenge

September 4, 2002 by

Adobe has filed a federal lawsuit seeking a declaratory judgment that its Acrobat product does not violate the DMCA’s anti-circumvention provisions. (Here’s Adobe’s press release. I don’t have a link to the court papers yet.)

Here is the story, as far as I can tell at this point:
Any TrueType-compatible font can be labeled with bits saying whether permission is granted to embed the font into documents. Adobe Acrobat apparently does not always obey the bits’ commands. Adobe says they have good reasons for this, and that in any case Acrobat’s use of fonts does not infringe any copyright. The other party (International Typeface Corporation, or ITC) says that Acrobat is a DMCA-violating circumvention device.

It’s way to early to speculate about the merits of Adobe’s case. But there is some karmic justice in the fact that Adobe, which kicked off the Sklyarov/Elcomsoft DMCA mess, now finds itself on the other end of a DMCA threat.

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