In other words, they would search other people’s computers without a search warrant looking for files that allegedly infringe on copyrights despite the fact that some of those activities may be illegal under current federal law. Further, they would be free to take “self-help” action to stop the sharing of copyright protected files without court action or independent review.

A visit to the Congressman’s Website carried not only a copy of that speech to the Computer and Communications Industry Association (Berman Announces Legislation to Foil Peer to Peer Piracy but a position paper in which he has these observations: 

It appears that he did say what eWeek had reported and more. He went so far as to say that some federal laws, such as the Computer Fraud and Abuse Act, currently make the activities he proposed illegal. His solution? The copyright holders would enjoy an exemption to authorize them to seek out and destroy the offending files trading. 

What is P2P or peer to peer? In general terms, a P2P system enables multiple computers to share certain files. The owners of the computers must set up a system to identify which files are available. There is no central repository for the files, and each computer as a peer of every other computer in the system makes some of its files available to other users. As pointed out by the Congressman, P2P systems do allow computer owners to use the Internet to share music files and other protected content without paying royalties. What he doesn’t address are the many valuable uses for P2P networks, and I’m concerned that his approach will generate unintended consequences to those legitimate uses.

He does have at least one valid point. Theft is theft and theft is wrong. I agree that copyright infringement can be theft. However, some uses of copyright protected material without permission from the owner is perfectly legal. Education, research and criticisms are examples of “fair use” exceptions to the general copyright protection.

It is just as true that trespass is trespass. (Yes, I know that trespass is commonly an entry upon another’s real property, but there is no legal reason why entry into one’s computer without permission wouldn’t also be a trespass. The USA Patriot Act was passed by Congress in response to the terrorist attacks on the United States and it actually has a definition of a “Computer Trespasser” that seems to protect any computer used in interstate commerce. What computer hooked to the Internet isn’t used in Interstate Commerce?) There is a process under law for dealing with theft. If you think someone has stolen your property you can either report it to police or sue in court. Even the police don’t have the right to go into someone’s house without permission to search for your property unless they obtain a search warrant.

For the Congressman to make the statement that litigation in the courts is no longer a viable option for copyright owners is too much for me. Even under the recently passed Patriot Act the government must make a showing before a federal judge before it intercepts on-line traffic. Is the Congressman implying that any large copyright holder should have more rights to snoop through your computer than the FBI has hunting for terrorists?

As we all know with technology, mistakes happen. Software has bugs. Hardware fails. Congressman Berman, who incidentally represents the Los Angeles area, did indicate that there should be strong remedies for those who are wrongly damaged, 

But, with no burden upon the copyright owner to show an impartial judge that the intrusion is necessary, the only recourse would be for the innocent party to sue the copyright owner. If litigation is too burdensome for the owners, would it be any less burdensome for a truly innocent party seeking redress for the trespass?
Also, would the owners do the deeds themselves or contract it out to investigation companies with no assets to satisfy a judgment? To be truly effective the full resources of the copyright owners must back the remedy for the innocent party.

The technology already exists to do it a different way. The Washington Post reported that the motion picture association had contracted with a company to search for illegal copies of motion pictures on the Internet.  However the motion picture association program doesn’t include the self-help provisions proposed by Rep. Berman. Their efforts rely upon traditional cease and desist letters and contacts with the ISP’s that maintain the servers. According to the Post, the MPAA sent out more than 50,000 letters last year and expects to send out more this year. So long as they are searching public directories and files and then taking the case through the established channels that provide both sides a fair hearing, I have no problem with it.

But, if Congress approves the Berman initiative, what lawyer would ever advise a client to use P2P systems — even in situations that have nothing to do with copyright material? If another entity has legal sanction to enter, search and take self-help action just because the computers are part of a P2P system then it could never be used for sensitive information. In short, the client would be setting its system up as a target for intrusion by copyright owners searching for an illegal copy of some song.

In a perfect world, everyone would respect everyone else and their property. When things don’t go perfectly, the court system is still a better system for handling allegations of copyright infringement than the proposed self-help system.