So just where does Senate Judiciary Committee chairman Orrin Hatch (R-Utah) really stand regarding an allowance to destroy computers involved in peer-to-peer file swapping? Well, Hatch has been trying to back away from outright advocacy of the tactic, somewhat, since his asking if new technology could make it happen jolted a June 17 committee hearing, when he asked the question seemingly out of nowhere.
On the other hand, Hatch has proposed a law to let it happen and the bill remains on the table for the time being, though the Utah Republican makes a point of saying he doesn't favor it as a first remedy.
“I am very concerned about Internet piracy of personal and copyrighted materials, and I want to find effective solutions to these problems," Hatch said in a brief statement June 18. “I made my comments at yesterday’s hearing because I think that industry is not doing enough to help us find effective ways to stop people from using computers to steal copyrighted, personal or sensitive materials. I do not favor extreme remedies – unless no moderate remedies can be found. I asked the interested industries to help us find those moderate remedies.”
That won't necessarily stop the criticism Hatch has received since he asked the question. The Electronic Frontier Foundation calls his idea entirely unreasonable. It is "tantamount to a debt collector sending you two warnings that your car payment is late and then claiming that he is entitled to burn down your garage," said staff attorney Gwen Hinze in a formal comment.
Lost in the mild but active hoopla over Hatch's remarks is this point: Hatch isn't exactly proposing something that hasn't been proposed before, in one way or the other. Rep. Howard Berman (D-California) had proposed what was known as the Peer-to-Peer Piracy Prevention Act of 2002 last year, a bill that would have given the film and music industries immunity from prosecution if they found ways to break into the P2P swappers' computers and block their swapping, a bill the libertarian Cato Institute described as "let(ting) Hollywood hack."
The pain of copyright holders is understandable," said Cato analysts Clyde Wayne Crews and Adam Thierer of the Berman bill. "The file-sharing that goes on today wouldn't be possible without the Internet in the first place, and they have a real problem on their hands regarding compensation for their works. But does that call for giving entertainment industry giants a pass to police our personal computers and future Web devices?"
In fact, Berman himself discussed that proposal at a Cato Institute gathering last September. "(I)f someone steals your bike and brazenly stores it on their front lawn, you are allowed to trespass on that lawn to take your bike back," he said. "Why wouldn’t a copyright owner be able to do the equivalent online? It’s a reasonable question. The answer is that a variety of state and federal statutes and common law doctrines can be read to create liability for copyright owners engaging in such harmless self-help. In fact, to extend the bike analogy further, these statutes and doctrines can be read to prohibit copyright owners from even standing on the electronic equivalent of the sidewalk and preventing others from passing their stolen property back and forth."
Crews and Thierer rejoined that Berman had a point, up to a point. "Private property owners have the right to defend their possessions," the pair wrote. "But the problem with his analogy is that intellectual property is a somewhat different beast than tangible property. There are important differences between the two given the more utilitarian construction of intellectual property rights in the Constitution. IP rights are more limited in scope and duration, and the "fair use" rights of users is a part of today's copyright bargain. Then again, fair use doesn't necessarily mean free use. Artists deserve compensation."
The Berman bill at last report was still sitting in the House Subcommittee on the Courts, the Internet, and Intellectual Property, according to various Congressional Web pages.
Among the ironies is that Hatch himself may be a copyright pirate. CNET.com has revealed his Senate Website uses a JavaScript code created by Milonic Solutions, which charges between $35 and $900 to license its Java menu. Hatch's site, CNET.com said, doesn't include a license number, but does use this comment in the site's HTML code: "I am the license for the menu (duh)."
