As anticipated almost a week ago, a bill that would all but ban peer-to-peer file swapping services was introduced in the U.S. Senate June 23 – a bill that would make it simpler to sue KaZaA, Grokster, Morpheus, eDonkey, and other P2P for "intentionally inducing" copyright infringement.
Some Washington analysts have suggested already that the bill isn't likely to become law anytime soon, if at all – Congress has just over a month left to work before their recess for fall election campaigning. Among the more potent supporters of the bill on Capitol Hill are Senate Majority Leader Bill Frist (R-Tennessee), Senate Minority Leader Tom Daschle (D-North Dakota), and the Senate Judiciary Committee's ranking Democrat, Sen. Patrick Leahy (D-Vermont).
Among other things, this bill would contravene a federal court ruling last year which held a P2P network could not be held liable for what its users do, including swapping copyrighted music and film files. But Senate Judiciary Committee chairman Orrin Hatch (R-Utah), the new bill's chief sponsor, said encouraging children to commit crimes – as he believes P2P networks do – is illegal and immoral.
Capitol Hill has lately taken up a tougher stance against P2P swappers. In March, the Senate Judiciary Committee approved a bill that would mandate time behind bars for those swapping large amounts of music or film files online.
Titan Media, who are involved themselves in a lower-key manner of stopping P2P swapping of their adult film and video products, is taking a cautious view of the new proposal. "We feel there definitely has to be some change in the law, in the interest of protecting copyright and protecting children from gaining access to adult material," said Titan attorney Gill Sperlein to AVNOnline.com.
"But we continue to believe that peer-to-peer technology, if appropriately used, is good technology," Sperlein continued. "We're not in a camp that says P2P should be done away with altogether. We just think it needs to be controlled, so copyright infringement is curtailed."
Neither P2P United executive director Adam Eisgrau nor Cato Institute telecommunications studies director Adam Thierer were available for comment before this story went to press.
Michael Weiss, the chief executive of StreamCast, the makers of Morpheus, has pressed Capitol Hill not to impose new restrictions on P2P. He told the Senate Commerce Committee P2P networks are already working to educate their users about copyright law and online risks and dangers. But the Recording Industry Association of America has accused Weiss and similar thinkers of throwing up smokescreens to divert attention from copyright infringement.
The Federal Trade Commission is one government agency which thinks the P2P networks could do a better job of disclosing the risks – viruses, spyware, and unwanted adult materials passing through the networks, often unwittingly – far better than they do now.
That's what J. Howard Beales, who heads the FTC's Bureau of Consumer Protection, told the Senate Commerce Subcommittee on Competition, Infrastructure, and Foreign Commerce, also on June 23. "Consumers may receive files with viruses and other programs that could impair the operation of their personal computers," he told the panel.
"Consumers may receive or redistribute files that may subject them to civil or criminal liability under laws governing copyright infringement and pornography," Beales continued. "Because of the way the files are labeled, individuals, including children, may be exposed to unwanted and disturbing images. The Commission is concerned with the exposure of individuals, especially children, to unwanted pornographic materials through deceptive practices."
But Beales also called peer-to-peer a neutral technology which can raise the speeds and cut the cost of file downloads of any kind. Still, he said, there are risks other than viruses or spyware or unwanted adult materials – risks like inadvertent placement of personal information in shared directories. And while P2P programs have generally not misled their users about risks, the information could be better.
"[D]istributors of P2P file-sharing programs do not appear to be providing as much risk information about their products as they could or providing risk information as clearly and conspicuously and they might," he said in his testimony. "A P2P file-sharing software industry trade association recently wrote to the Commission to report that its member companies have a 'desire... to act responsibly, to improve their products and to offer consumers a high-quality experience.' We will encourage industry members to make good on this offer by improving their disclosures of risk information to consumers."
