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Anyone who sells, advertises or distributes peer-to-peer (P2P) software without taking "reasonable care" that the software won't be used for an unlawful act would be slapped with a fine up to US$2,500, a year in county jail or both under a bill filed in the California Senate last week.
Although the measure, filed by Sen. Kevin Murray, D-Los Angeles, is aimed at punishing people illegally trafficking in music, movies and child porn on the Internet, critics of the legislation contend it goes far beyond its originator's purported intentions.
Anti-Technology Measure
"The purpose of the law is to reduce illegal activity that is happening on peer-to-peer sites, all the way from kiddie porn to copyright violations," Murray told TechNewsWorld.
"In previous cases," he noted, "judges have held that services are not liable for underlying crimes, which I think is absolutely correct." However, he argued that the P2P industry's feet should be held to the fire when it comes to policing its networks. "If you distribute peer-to-peer software and it's reasonably possible for you to add features that block out illegal activity, then we think you have a responsibility to do so."
Opponents of the bill, however, maintain that it's overly broad and could have a disastrous impact on the Golden State's high-tech industry.
"It's an astonishingly sweeping and antitechnology proposal that doesn't appear to have been well thought out," declared Adam Eisgrau, executive director of P2P United, a peer-to-peer industry group located in Washington, D.C.
Broad Definition
What makes the bill so sweeping is its definition of peer-to-peer software, which reads as follows:
"[S]oftware 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."
Almost any networking software is included in the definition, maintained Jason Schultz, a staff attorney with the Electronic Frontier Foundation in San Francisco. "So it includes Web browsers, instant messaging -- all kinds of Internet software," he told TechNewsWorld.
Unprecedented Law
"It is an unprecedented law," he said. "It is going to affirmatively mandate how tech companies design software. It's going to force them to think of every possible, conceivable illegal use and try to design some way to prevent it. It's going to be madness."
Eisgrau maintained that the bill accomplishes through law what the entertainment industry, which has been gored by file-sharing on P2P networks, has been unable to do in the courts. "It's a transparent way of imposing with criminal law a requirement that the motion picture and recording industries have been clamoring for," he said, "that peer-to-peer software companies redesign their software to make them centralized and make the entertainment interests pre-screeners of any and all peer-to-peer-based communication."
According to Michael Weiss, CEO of StreamCast Networks, the Los Angeles-based maker of the Morpheus P2P program, the legislation "borders on the absurd." He said, "It smacks of an effort to make technology innovators develop only software that's approved by the entertainment industry cartel."
Reversing Court Losses
"This is an attempt by the entertainment industry to reverse their losses to us in the federal courts," he said.
If Murray is advancing the cause of the entertainment industry, the industry
isn't rushing to endorse the solon's efforts just yet. "We're intrigued by
the bill," Vans Stevenson, senior vice president for state legislative
affairs for the Motion Picture Association of America (MPAA) in Washington,
D.C. "We're looking forward to analyzing it and talking to Sen. Murray about
it."
