WASHINGTON -- A letter from six U.S. senators urging peer-to-peer technology vendors to take "common sense" steps to deter the downloading of copyrighted content and pornography is drawing mixed reactions.
Critics claim that the fingerprints of copyright-holders--the recording industry in particular--are all over the letter. The letter's backers don't deny the charge.
The letter, dated November 12, 2003, bears the signatures of three Democratic and three Republican senators. It asks seven peer-to-peer vendors to post warnings alerting users that downloading unauthorized copyrighted content is illegal. It also suggests the vendors use filters to block unauthorized copyrighted content and pornography, and asks them to change their software's settings so that users don't automatically share their files with others on a peer-to-peer network.
Who Wrote It?
The senators' message bears an uncanny resemblance to a September 30 news release issued by the Recording Industry Association of America, according to Wayne Rosso, president of peer-to-peer company Blubster. The RIAA's release calls on the peer-to-peer industry to "finally act like responsible corporate citizens," and requests many of the same actions.
"We have been in discussion with the RIAA," says Kevin Bishop, a spokesperson for Senator Lindsey Graham (R-South Carolina), who spearheaded the letter-writing initiative. Graham is a member of the Senate Judiciary Committee, which has held numerous hearings on piracy and copyright issues this year.
The RIAA supports the senators, says Mitch Bainwol, RIAA chair and CEO. The senators "are placing the onus squarely where it should be--on the P2P networks and their role in inducing computers users to break the law," Bainwol says.
The industry already is taking some steps urged by the senators, says Adam Eisgrau, executive director of P2P United, a trade group representing five companies that received the letter. When the group formed about three months ago, the organization immediately established a code of conduct that addresses the issues raised in the senators' letter, he says.
Still, despite their best efforts, vendors can't control what users do with their software, Eisgrau says.
"There is no magic switch for vendors to stop users from downloading copyrighted content," Eisgrau says. "The Internet can be used and misused for hundreds if not thousands of purposes that are outside the control of software developers--or for that matter, ISPs. We don't hold the Post Office responsible for blackmailers and no ink producers have been accused of extortion."
Mixed Response
Even though peer-to-peer networks can be used for piracy, the law allows companies to manufacture and distribute technologies that have "substantial noninfringing uses," Eisgrau says. This point was highlighted nearly 20 years ago in the legal squabble between the movie industry and Betamax, which manufactured video recorders. According to Eisgrau, similarities between that case and the current controversy over peer-to-peer systems could help establish that peer-to-peer vendors are on solid legal ground, he says.
Eisgrau also notes that peer-to-peer technology is still young and has potential use in a wide array of disciplines, from scientific research to education. The U.S. Army is distributing its videogame recruiting tool on Gnutella's file-sharing network, LimeWire, as Forbes magazine recently reported, he says. Other government agencies, including NASA, the Department of Defense, and the Naval Research Library, have used peer-to-peer computing software.
Eisgrau says that he welcomes the senators' letter "as a great opportunity to correct the record." But in his view the officials are "laboring under significant misunderstandings."
Alan Davidson of the Center for Democracy and Technology agrees with Eisgrau's assessment, calling the letter a mixed bag.
Davidson welcomes the call for self-regulation, saying that demands for government oversight, if heeded, could stifle the technology's development. He also says that the proposal requiring users to opt in before they share their files could benefit peer-to-peer companies, by shifting copyright infringement liability away from them and onto users, he says.
Davidson does, however, object to one proposal in the letter: the bid for filtering. Adding a filtering mechanism would require companies to differentiate between what is and is not legal, he says.
"We're concerned about service providers' monitoring our networks," Davidson says. "We don't ask phone companies to monitor phone conversations to see if people are doing bad things."
The Porn Card
Davidson also criticizes the senators' preoccupation with pornography on peer-to-peer networks. "Conflating child pornography with adult pornography raises question marks," Davidson says, given that great majority of adult pornography is legal.
But raising the porn issue will get attention, notes one Capitol Hill copyright lawyer who declines to be identified. "The RIAA is using P2P as its political football, linking it to child porn as a way to get things passed," the attorney says.
Any link between peer-to-peer technology and pornography remains hotly contested. Earlier this year, in testimony at a Senate Judiciary Committee hearing, the General Accounting Office provided damning testimony on how peer-to-peer networks make pornography more accessible, particularly to young users.
More recently, however, in a November 13 letter to Senator Orrin Hatch (R-Utah), who chairs that committee, the GAO stated that of the 62,000 tips received by the National Center for Missing and Exploited Children, only 1.4 percent are related to the Internet or to peer-to-peer networks. The agency notes that it does not know whether the center's reports accurately reflects the volume of child pornography on peer-to-peer networks or on the Internet.
Pornography on peer-to-peer networks is "not necessarily more dangerous" than pornography available through other online sources, the letter also noted.
Reply Pending
Ultimately, the battleground may be in the courts. The Ninth Circuit Court of Appeals ruled in April that Grokster, a decentralized, file-sharing program, is not liable for copyright infringement, but the case is being appealed. Some observers expect the Supreme Court to review it.
Senators who joined Graham in signing the letter to peer-to-peer networks include Barbara Boxer (D-California), John Cornyn (R-Texas), Dick Durbin (D-Illinois), Diane Feinstein (D-California), and Gordon Smith (R-Oregon). The letter requests a written response from the industry by December 15, 2003. P2P United declines to share its likely response before that deadline.
