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Just Desserts for Scofflaws
By Congressman Howard L. Berman
July 9, 2002, 4:00 AM PT

Songwriters are the creators of the music we know and love. They pour their
hearts and souls into their songs, knowing that often the voices and
instruments of others end up better known to the listener. They write
because they love music.
And some also dare to dream that their work will pay their bills.

A few particularly gifted, diligent--and more than a little lucky--ones
achieve this dream. For those few, one of the ways they get paid for their
work is through the "mechanical" statutory license, which requires that
those who make a physical or electronic copy of a copyrighted musical
composition pay the songwriter 8 cents.

Each illegal peer-to-peer (P2P) download of a song robs the songwriters of
the 8 cents they are due under the mechanical license. That may not seem
like much, but when you multiply 8 cents by the reported 1.1 billion
downloads on one P2P system in one month, it calculates out to $88,000,000
dollars...a month. Divide even 1/10th of that money among the 5,000 members
of the Songwriters Guild of America, and you begin to see that P2P piracy
robs songwriters on a massive scale.

Of course, songwriters aren't the only folks that P2P piracy robs.

P2P piracy robs all the creators--the recording artists, the photographers,
the film producers, the software developers, as well as the authors,
journalists and needlepoint artists--whose copyrighted works are
increasingly downloaded over P2P systems without their authorization or
compensation. P2P piracy robs all the businesses that invest in creation of
copyrighted works and the carpenters, sound engineers, administrative
assistants, programmers, seamstresses, copy editors and session musicians
they employ. Lastly, P2P piracy robs the down loaders themselves and their
fellow consumers, who will see the quality and diversity of future creations
decrease as piracy increases. In short, P2P piracy has a myriad of victims.

There is no excuse or justification for P2P piracy. Of course consumers
would like free music at the click of a mouse. They would also like gasoline
for less than $1 dollar a gallon. But we don't confiscate people's property
and pass it out because people want it for free.

Each illegal peer-to-peer download of a song robs the songwriters of the 8
cents they are due under the mechanical license.
P2P piracy is clearly illegal. It is not simply copyright infringement, it
is infringement on a massive, breathtaking scale. There is simply no concept
of fair use that encompasses the distribution of countless copies of a
copyrighted work to millions of people.

P2P piracy does not promote legitimate sales, it replaces them. How do I
know? I have some common sense, a grasp of fundamental economics, and a
college-age daughter with lots of friends. Frankly, it is galling that
creators must even respond to such laughable sophistry.

Creators must have the choice about how to promote their work. This is not
the right of an infringe. If there is promotional value in P2P distribution,
creators have every incentive to use it--but they also have the right to
refuse to use it.

Something must be done about P2P piracy, but what? I don't place much faith
in those who, wishing to profit from it, say nothing can be done. There are
solutions, and Congress has a constitutional obligation to create or
facilitate them.

Part of the solution involves freeing copyright owners to use technology to
combat this piracy. There is nothing revolutionary about property owners
using self-help--technological or otherwise--to secure or repossess their
property. Satellite companies periodically use electronic countermeasures to
stop the theft of their signals and programming. Car dealers repossess cars
when the payments go unpaid. Software companies employ a variety of
technologies to make software nonfunctional if license terms are violated.
Our society normally views such actions as just desserts for scofflaws
rather than warfare on consumers.

Currently, copyright owners are unable to use some useful technological
tools to deal with P2P piracy because they face potential, if unintended,
liability under a variety of state and federal laws.

Something must be done about P2P piracy, but what? I don't place much faith
in those who, wishing to profit from it, say nothing can be done.
I plan to introduce legislation that would give copyright owners a limited
"safe harbor" from such potential liability. Under my bill, copyright owners
would be freed to use technology to impair P2P piracy, but only on networks
that are decentralized, and thus not readily subject to suit for copyright
infringement.

Copyright owners could technologically impair the distribution of
copyrighted works, but could not actually hack into a P2P user's computer or
otherwise remove files therein. If copyright owners abuse the authority
provided in the bill, an aggrieved P2P user would have remedies for such
abusive behavior.

I expect that such legislation, if appropriately limited, will gather
substantial support in the Congress. The only folks I expect to defend P2P
piracy are those who profit from it.

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