Vol. 12, No. 2,856W - The American Reporter - March 18, 2006


Happy Labor Day, America!

An A.R. Exclusive
BERMAN NOT SOLD ON ALLOWING CORPORATE HACKERS

by Philp E. Daoust
American Reporter Correspondent
San Francisco, Calif.

WASHINGTON, August 30, 2002 -- Democratic Congressman Howard Berman of California, author of a controversial Internet copyright bill that would allow some corporations to hack into private computers and destroy copyrighted materials such as music CDs and movie DVDs, told The American Reporter on Friday that he does not plan to seek passage of the bill in Congress this year.

Rep. Berman said a September 26 subcommittee hearing on Capitol Hill will help "gather opinions and perspective to fine-tune the legislation in order to push it through next year."

Last month, prior to the Congressional recess, Rep. Berman caused a frenzy in the Internet community after introducing legislation that seeks to put an end to peer-to-peer (P2P) file sharing of copyrighted materials on the Internet.

One of the most pervasive uses of the Internet in recent years has been P2P, in which individuals use file-sharing networks to exchange files that are most often located on their home computers. Such file-sharing has at times occupied more than half the resources of vast computer systems such as those at Harvard and other major universities. With free software programs downloaded from the Internet, computer users can trade media files, such as the popular MP3 format, which compresses music files for faster downloading and storage.

Music and movie companies, and some musicians and other artists, want to put an end to the widespread practice of computer users sharing music and movies without paying for them.

Rep. Berman's bill would permit copyright holders to "impair the distribution, display, performance, or reproduction" of copyrighted files hosted on a publicly accessible computer network. Some critics of the legislation claim it allows copyright holders to become 'legal hackers.'

Laws passed by Congress following September 11 define certain hacking of computer networks as a terrorist activity. In order to prevent copyright holders from being deemed terrorists under the new laws, Rep. Berman included clauses in the current bill exempting copyright owners from such liability.

The bill would also makes it easier for copyright holders to launch "denial of service" attacks against computer networks. In such a scenario, a computer network is bombarded with so many file requests that it becomes congested and inaccessible. This approach has been successful before in attacks directed at the now defunct Napster P2P network.

Once a copyright holder has identified a target, they need only inform the attorney general in writing seven days before the planned attack. Follow-up attacks would not have to be reported at all.

Copyright experts and other critics of the bill charge the new laws give copyright holders unfettered powers to determine who violators are, and in some cases, how they are dealt with.

"Never before in the history of this country," said Fred von Lohmann, a senior staff attorney for the Electronic Frontier Foundation, "has there been a bill like this that purports to put one industry above the law."

Consumer organizations, civil libertarians and some lawyers fear the broadened powers the bill affords could be used recklessly by industry and individuals, ultimately opening the way to cases of illegal hacking, and Fourth Amendment violations, such as invasion of privacy.

But an aide to Rep. Berman, who asked to remain anonymous, said the legislation has been largely misreported and misunderstood.

"No one can go in to your hard drive and read your files if this bill is passed. No one can steal your personal information. There are protections from that kind of abuse."

Instead, the aide said, only copyrighted files intentionally placed on a publicly accessible file-sharing network are legitimate attack targets.

According to Rep. Berman, copyright owners will be accountable in some cases, such as in shutting down or disrupting entire P2P networks.

"It is critical to remember that [this bill] does not create some new, affirmative right for copyright owners, but only provides them with a limited safe harbor from potential liability under other laws," he told The American Reporter.

In addition, any "attack" on a computer network cannot result in economic loss to anyone other than the person suspected of committing copyright infringement. Even in that case, economic loss cannot exceed $50.

Attackers cannot plant a virus or bug on a computer or network system, but have near autonomy to determine which files can be altered.

"Several of the so-called restrictions against copyright holders are inadequate," von Lohmann said. He suggested that if the recording industry were to move ahead with plans to target P2P networks, "they would face a large black market backlash."

While it supports the right of artists and companies to receive "fair prices" for copyrighted material, von Lohmann said EFF believes "waging war on consumers is the wrong approach" in dealing with copyright infringement.

"The recording industry needs to develop efficient online music services," von Lohmann said. He provided the Internet music store Emusic.com as a good example of how the recording industry can encourage electronic entrepreneurship, provide cheaper music and still make a healthy profit.

Rep. Berman believes that a legitimate online service could be created that would make all sides happy.

"If we deal with the problem of rampant file sharing of copyright materials that goes on now," he said, "we could see all kinds of commercial ventures that would create an online swapping system that would be legal and authorized and still provide consumers with efficiently and ease that online services provide."

In the future, popular P2P networks like KaZaA, Morpheus, and Gnutella, which currently allow users to share millions of copyrighted music, software and video files for free each day, may become obsolete or turn into online retail ventures.

The recording industry blames a 12 percent slump in this year's record sales partly on the ubiquity of fast Internet connections, P2P networks, encoding technologies and CD recorders. Armed with those tools, industry analysts say, a certain amount of people are going to just download songs and make their own CDs.

Yankee Group, a media research firm, says that by 2005, P2P file-sharers will swap 7.44 billion unlicensed audio files, up from 5.16 billion files in 2001.

But another report by Forrester Research found that the most active file-sharing users are also the industry's most ardent consumers, which translates into revenues from promotions, concerts, merchandise and record sales.

Some critics of Rep. Berman's bill charge that he is merely returning favor to his most generous campaign contributors. The Congressman represents California's 26th Congressional District in northeast San Fernando Valley, including a wide swath of North Hollywood, home to America's $40 billion entertainment industry. The area is also the nation's largest center for production of pornography, which are among the most popular files shared on the P2P networks.

As the single largest political beneficiary of campaign money from the entertainment industry, Rep. Berman has received a total of $191,891 in contributions for this year's reelection campaign. It is not known if any of that originates with the pornography industry, an $11 billion enterprise in the United States.

Seven of Rep. Berman's top 10 campaign contributors are media corporations, including Disney, AOL Time Warner, Vivendi, Viacom, Dreamworks and Sony.

But the recording and entertainment industries are not giving money only to Rep. Berman's campaign. In fact, an analysis of campaign contribution records (available at http://www.opensecrets.org) reveals the entertainment industry has given nearly $4.5 million to Congressional candidates during the 2001 to 2002 election cycle. The contributions are almost evenly dispersed amongst Republicans and Democrats on Capitol Hill.

Prior to the Congressional recess, a group of lawmakers met to devise strategies for combating P2P file sharing.

In a July 25 memo addressed to Attorney General John Ashcroft, a group of 19 Congress members urged the Justice Department to devote more resources to help fight the battle against P2P computer networks.

The bipartisan list of signers included Sen. Dianne Feinstein, D-Calif., Rep. Lamar Smith, R-Texas, and Sen. Joseph Biden, D-Del.

Lawmakers urged Ashcroft to "vigilantly enforce intellectual property laws on the Internet to punish online theft of our copyrighted works."

Apparently the Department of Justice has heard the call. During a technology summit earlier this month in Aspen, Colo., Deputy Assistant Attorney General John Malcolm, said, according to the Associated Press: "Stealing is stealing is stealing, whether it's done with sleight of hand by sticking something in a pocket or it's done with a click of a mouse."

The Justice Department has yet to unveil any new efforts to go after copyright violators.

The Recording Industry Association of America (RIAA) has also made it clear that it believes the Department of Justice has a responsibility under the law to take action against P2P file sharing.

Claiming "mass copying off the Internet is illegal and deserves to be a high priority for the Department of Justice," RIAA CEO Hilary Rosen has made a direct appeal to Ashcroft to for swift action against copyright violators. The recording industry's zeal to stamp out P2P file-sharing has recently evolved into an aggressive, multi-thronged offensive, with pressure on Congress, the Bush administration, courts, software developers, and now ISPs.

The latest example came two weeks ago when the RIAA asked a federal court judge in Washington, D.C., to force Verizon Communications to reveal the name, address and telephone number of a customer who was suspected of sharing more than 600 songs with Internet users. The RIAA describes the user's computer connection as "a hub for significant music piracy."

The RIAA is a Washington-based trade group that represents the world's five biggest record labels.

RIAA lawyers claim that the Digital Millennium Copyright Act of 1998, now one of the most contentious statutes in the U.S. legal code, allows copyright holders, like large record companies, the right to gather information about suspected violators. They insist the law allows such a request without a warrant or supervision of a court or law enforcement agency.

Verizon is contesting the subpoena on the grounds that the industry is misusing the law to obtain unwarranted access. Verizon says the subpoena raises complex privacy issues because the files in question reside on a customer's hard drive.

The company would have complied with RIAA's demand had the lawsuit sought the name of "John Doe," according to Sarah Deutsch, vice president and general counsel for Verizon. That approach, she said, affords legal protections for the customer, a main concern of Verizon's lawyers.

"We have a very long history of working with the copyright community and the RIAA," Deutsch told Hotwired. "The difference is that we have never before received this type of subpoena asking for subscriber information based on an activity that is not residing on our network."

In the past, ISPs have been reluctant to share information about subscribers with law enforcement agencies absent of a motivating factor, such as a murder investigation or a warrant from a judge.

To view the legislation, H.R. 5211, as submitted in the House of Representatives on July 25, 2002, search: http://thomas.loc.gov/ Other links: http://www.house.gov/berman/
The Electronic Frontiers Foundation: http://www.eff.org/

Copyright 2006 Joe Shea The American Reporter. All Rights Reserved.

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