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Petition signed by several hundred people:

    The Honorable John Ashcroft
    Attorney General of the United States
    Department of Justice
    950 Pennsylvania Avenue, NW
    Washington, DC 20530
    Dear Attorney General Ashcroft:

    We are artists, technologists, scholars and consumers…individuals on the
    Internet, united by the human will and the common bonds of friendship. Through the simplest desire to seek knowledge, to communicate thoughts ranging from humble to grand and from the absurd to the majestic; we unite daily through this remarkable network, Americans joined with people from all over the Earth. Strong in hope, with faith in freedom and democracy, we share a common connection extending far beyond our physical presence.

    We speak as one.

    Today, we write to urge the United States Department of Justice to see through the transparent pleas of multinational entertainment conglomerates that beg the Department to “vigilantly enforce the institution of copyright”. It is our contention that these businesses have re-defined this key clause of the Constitution through passage of questionable law and now are seeking to exert a disproportionate control over global media by that convenient re-wording. We call on you to protect the future of the global Internet; some would say the future of human consciousness that hangs in the balance as you decide to marshal your forces, for or against it.

    To wit, the US Constitution, in Article I, § 8, clause 8, states that:

    “The Congress shall have power… To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries…”

    And the US Constitution, in Article I, § 8, clause 18, states that:

    “The Congress shall have power… To make all laws which shall be necessary and proper for carrying into execution the foregoing….”

    Before there was the option of a global Internet, entertainment businesses controlled the stage for musical, television and cinematic arts. By controlling the movement of cultural products through both creative and distribution gateways, prices could be established and charged to the consumer whose choice was limited to the availability provided through retail mediums. The multinational conglomerates owned the means of duplication, promotion, and distribution. They metered those flows to draw the highest profitability, thus established ownership, for all intents and purposes, of society’s cultural heritage. The formula for maintaining maximum earnings dictates limited availability of product, therefore, consciously or unconsciously, entertainment industries had, in effect, an interest in actually slowing the advance of science and the useful arts.

    Nowhere is this more clearly illustrated than in the case of the Internet.

    With its advent, an entirely new form of thinking came into being. The far-reaching and chaotic network, instantly on and unable to be controlled, has become a bedrock communications foundation that works on principles exactly opposite to traditional market forces, especially with respect to entertainment. In place of exclusivity, the Internet is about including any willing participant. Its media and promotion filters from the downside up, where entertainment’s world works upside down. Traditional entertainment businesses require much more money to control media, whereas on the Internet anybody with a PC has a voice limited only by self-initiative. The natural result has been a watershed of independent thought. People communicate one-to-one, as well as one-to-many and many-to-one. The dialog takes place across borders, up and down society’s ladder and right to left across humanity’s broad horizon. The topics of conversation are widely diverse and far-reaching. The use of media is random and uncontrollable. It is about human communication, emotion expressed through the sharing of words and such artifacts as pictures, movies and music. Thought is shared globally and it is in the sharing that the greatest pleasure is felt.

    Unlike the interaction with culture controlled by traditional entertainment businesses, society’s culture on the Internet is a two way street. More artists find a way to those who appreciate their work than could ever be accommodated through the method of branding elite names as employed by the vastly more expensive promotional machinery of traditional entertainment companies. On the Internet, artist and consumer share a voice in the evolution of art, whether they are active distributors, eager recipients, or both. Thoughts are shared, ideas are born, and it is inevitable that people look to cultural artifacts to establish the basis for commonality.

    Businesses that manufacture traditional entertainment artifacts like CDs and videos are correctly perceived to move more slowly, be more costly, and be less able to meet the needs of diverse audiences and matured by Internet communications. If these entertainment businesses are to survive, they must accommodate the increased speed with which society thinks, communicates, and shares its culture. Traditional entertainment business cannot afford to continue ignoring the future, focused on delivering one-directional products, copy-protected against the consumer’s will to use and re-use it.

    This is especially true because the tools of production, promotion, and distribution have spread everywhere as media of every imaginable kind has been converted to digital formats. If individuals don’t create their own tools, they can find them offered by those who do, throughout the network.

    Through their use, all art becomes a form of light. These tools enable “massive thought”, shared by millions, that moves at the speed of light, as if light were thought’s substance… and so it is, light and vibration in myriad rhythms, cadences that rise and fall as the human heartbeat. In the expansively brilliant dialog that ensues, the consumer, is a willing participant in culture’s constant recreation. Ordinary people become the impetus of extraordinary cultural development. Whereas, before, consumers were fed their culture, through the Internet they are one with, and unable to be separated from, the tools of art’s free expression.

    It’s not surprising that entertainment, the shimmering mirror of human existence, changes in this environment and, especially, does the economics of show business change. These formulas are altered, if for no other reason than that show business becomes a smaller part of thinking, because whole artifacts are easily shared, almost as easily as random thought bounces through the ether. Where before it took a trip to a store to get a record or a video, now the pictures and sounds are on the kitchen table, in the study, or anywhere a wireless connection can be made in the wide open spaces of any metropolis. Since the sum of all thought, inseparable from the whole community, is valued more than the value of any one business (including show business or its artifacts), entertainment is challenged as never before to join in the dance or squander the value of its traditions, endangering its future existence.

    Copyright and its attendant fair uses change, too, as the free flow of information and expression expands. For entertainment businesses unable to tolerate a consumer so empowered, the face of freedom becomes a fearful thing. Traditional entertainment businesses who are unable to become a part of human culture moving at the speed of light, feel compelled to implement stultifying “copy protections” in order to slow down and constrain the marketplace of free ideas. Failing in this, they seek to change the law, as quickly as they can… if possible before the future arrives. It is true, however, that law hastily made is bad law and, unfortunately, there is no law against bad law, so long as it is law. This is why it is so important that you hear us, today, and let us be clear:

    No one can hope, seriously, to own the Internet. However, businesses will flourish as they learn to lead by getting out of the way and, for entertainment, the ability to derive income will fall to those who develop compelling tools and methods that guide and assist a global population in accessing its universal heritage of cultural artifacts. Just as surely, traditional entertainment businesses that distance themselves from so participating will hasten their own demise. For these hapless enterprises, the larger the Internet expands in its power to exchange ideas and cultural artifacts, the smaller becomes their thinking. Their seeds of their doom are planted in their desire to control what will not be controlled.

    Yet, we trust that Democracy is a creation of the People, by the People, and for the People; that whosoever justly serves the People shall be fairly rewarded.

    As you are surely aware, there is, today, a bill with an exactly opposite agenda. It is proposed by Representative Howard Berman (D-CA), that would allow copyright owners (anyone so calling themselves) to engage with impunity in otherwise illegal activities that include “disabling, interfering with, blocking, diverting, or otherwise impairing” the “unauthorized” distribution of copyrighted items. This proposed legislation would allow entertainment industry hackers to freely enter the private computers of consumers suspected of “possessing” copyrighted works. There is no penalty for copyright owners who are mistaken in their invasion or if they should harm a consumer’s property in the process, no penalty whatsoever. Copyright owners would be free to hack anyone, anytime of the day or night. They would enjoy the protection of law and freedom from proportional liability.

    Clearly, the Digital Millennium Copyright Act was ill conceived when passed in 1998. The DMCA failed in its grasp of the meaning of that which it proposed to control. It is, after all, what gives the Berman bill its legal basis. In hindsight, the only benefactors of this faulty legislation are the entertainment monopolies that paid for it. And, true to form, with respect to the Berman bill, bad law is begetting worse law.

    We implore you to acknowledge that the Department of Justice cannot reasonably be a party to such tyranny. Please ignore the hollow pleas of selfish money interests in these matters. Turn your important attention, instead, to issues that affect us all. Focus on the security of our homeland and the protection of allies of freedom and democracy everywhere. Endeavor against evil, against greed and the corporate overlords who threaten freedom, indeed our nation’s democracy, by their manipulation of defective law to dominate the People.

    Sincerely,

    Rafael O. Quezada

Letter to Declan McCullach on similar issues from Alec French:

    Declan,

    I am responding on behalf of Representative Berman to the slew of articles
    (including one linked to below and another yesterday) you have forwarded to
    Politech that reference H.R. 5211, the P2P Piracy Prevention Act Rep. Berman
    introduced in late July. Since those articles have likely created many misimpressions about the bill among Politech readers, I ask that you extend me the customary courtesy of sending this response to the Politech group. While you may identify me, and Mr. Berman welcomes a reasonable discourse on
    the issue, I ask that you mask my email address.

    Alec French
    Minority Counsel
    House Judiciary Subcommittee on Courts, the Internet, and Intellectual
    Property

    In the article linked to below, in your article today on News.com, and in several other articles, you have written that H.R. 5211 “would permit copyright holders to perform nearly unchecked electronic disruptions if they have a “reasonable basis” to believe that piracy is taking place.” As I indicated to you during the radio program in which we participated a few weeks ago, this assertion has no basis. There simply is no “reasonable basis” language in the safe harbor created by H.R. 5211.

    The actual language of H.R. 5211 is clear: new 17 USC 514(a)would only provide a safe harbor to copyright owners who actually impair the piracy of their copyrighted works through P2P networks – without regard to whether they have a reasonable basis to believe piracy is taking place. To put it another way: under H.R. 5211, a copyright owner who impairs lawful file-trading would not get the benefit of the safe harbor EVEN if that copyright owner had a reasonable basis to believe piracy is taking place.

    The ONLY place that the words “reasonable basis” appear in the entirety of H.R. 5211 is in subsection 514(d), which provides P2P users with a new cause of action to sue copyright owners who wrongfully impair lawful P2P file-trading. There is no possible way to read the cause of action in 514(d), or the use of the words “reasonable basis” therein, as expanding, modifying, or otherwise affecting the safe harbor provided by 514(a).

    On that note, several other articles you have written state that H.R. 5211 limits the remedies available to P2P users or others against whom copyright owners have acted wrongfully. For instance, your July 25, 2002 News.com article entitled “Hollywood hacking bill hits House” states that the bill “limits the right of anyone subject to an intrusion to sue if files are accidentally erased.” This assertion is not only wrong, it is directly contradicted by the clear language of H.R. 5211. In fact, to the contrary, H.R. 5211 provides P2P users with MORE remedies than current law against copyright owners who “hack”, stop lawful file-trading, delete files, damage computers, or otherwise wrongfully interfere with file-trading.

    Subsection 514(f)(2) of H.R. 5211 specifically preserves all remedies that a P2P user or any other person, including network operators, may have under current law to sue copyright owners for such activities. Further, in 514(d), H.R. 5211 provides affected P2P users with a new, ADDITIONAL cause of action against copyright owners who wrongfully impair lawful file-trading. Lastly, H.R. 5211 creates a new ability for federal prosecutors to act on behalf of affected file traders and stop copyright owners from wrongfully interfering with file-trading.

    It is almost besides the point to note that, in 514(a), H.R. 5211 SPECIFICALLY states that the safe harbor does not allow the deletion, alteration, or corruption of computer files or data.

    There are other misimpressions created by your articles that necessitate a response, but I did not intend for this to become a screed against your writing. Therefore I will simply paste below the FAQ Mr. Berman has prepared to correct such misimpressions. An earlier version of the FAQ may be found at the following link, and I believe an updated version will be available tomorrow. http://www.house.gov/berman/p2p_faq.html

    Frequently Asked Questions about the P2P Piracy Prevention Act (H.R. 5211)
    What does H.R. 5211 do?

    H.R. 5211 allows copyright owners to protect their property. The bill gives copyright owners, such as songwriters and photographers, a limited safe harbor from liability when they prevent piracy of their works through publicly accessible, peer-to-peer (P2P) networks, like KaZaA, Morpheus, and Gneutella.

    Does H.R. 5211 allow copyright owners to hack into my computer?

    No. Despite wildly inaccurate press reports, H.R. 5211 in no way allows a copyright owner to “hack” into anyone’s computer. Copyright owners are only allowed to enter or look into a P2P user’s computer to the same extent that any other P2P user is able to do so. In other words, if a KaZaA user has advertised to all 100 million other KaZaA users that he wants to download or distribute a copyrighted song, the songwriter is not “hacking” if she reads the advertisement like everyone else. H.R. 5211 then allows the songwriter to take certain, limited actions to stop the distribution of her copyrighted song between KaZaA users, but in no way allows her to enter or look into a private area of those KaZaA users’ computers.

    Why is a safe harbor from liability for copyright owners necessary?

    Certain laws, while intended to prohibit malicious computer hacking, are so broadly drafted that they may inadvertently create liability for copyright owners who are merely trying to prevent piracy of their creations on P2P networks. Because it is virtually certain that some P2P pirates will attempt to use those laws to prevent copyright owners from stopping piracy, it is necessary to clarify those laws.

    Does the P2P Piracy Prevention Act authorize copyright owners to do illegal things that no one else can do?

    No. H.R. 5211 just ensures that copyright owners are treated like other property owners. Current law allows property owners in many contexts to use “self-help” to protect their property. Satellite companies face no liability when they use electronic countermeasures to stop the pirating of their signals and programming. Banks face no liability when they repossess automobiles for delinquent loan payments. A bicycle owner faces no liability for grabbing his bike from a thief’s yard. A victim of a pickpocket faces no liability for tackling and taking back his wallet from the pickpocket. However, due to the overbreadth of many anti-hacking laws, copyright owners do not have a corresponding ability to prevent the theft of their property through P2P systems. H.R. 5211 would correct this unintentional inequity.

    Doesn’t current law provide copyright owners with sufficient tools to stop piracy?

    The massive copyright piracy occurring on decentralized, P2P networks cannot be adequately addressed through current law. Decentralized P2P networks were designed specifically (and ingeniously) to thwart suits for copyright infringement by ensuring there is no central service to sue. Digital rights management technologies provide no protection to copyrighted works once they are distributed “in the clear” on P2P networks. Lastly, suits against individual infringers on P2P networks are viable, but are unlikely to make a dent in the billions of files traded monthly among over 150 million P2P network users.

    Who does H.R. 5211 benefit?

    H.R. 5211 will help all copyright owners, including songwriters, photographers, musicians, software programmers, needlepoint designers, film producers, journalists, graphic artists, and recording artists. H.R. 5211 restores to these copyright owners the right to decide whether their creations are distributed through P2P networks, and takes that decision out of the hands of pirates. A photographer – not a pirate – should decide whether her photographs are distributed through Gneutella.

    In addition, H.R. 5211 will help consumers by fostering the development of reliable and legal online services for downloading copyrighted works. P2P networks are notoriously unreliable, have bugs that expose personal information to public disclosure, can be used as “tunneling protocols” to breach computer security, and are rife with malicious viruses. However, some copyright owners have been stymied – at least partially – in their efforts to roll out legitimate online services because they cannot compete with the free availability of their works on P2P networks.

    Is P2P file-sharing illegal?

    It depends. P2P file sharing is perfectly legal if the work being shared is not copyrighted or is shared with the authorization of the copyright owner. However, unauthorized distribution of copyrighted works through a publicly accessible, P2P network is copyright infringement pure and simple. There is no concept of fair use that encompasses making a copyrighted needlepoint design available for downloading by 100 million KaZaA users.

    Does the safe harbor created by H.R. 5211 extend to any copyright owner who interferes with file-trading upon a reasonable basis to believe piracy is taking place?

    No. It is an utter fabrication to say that H.R. 5211 provides a safe harbor for copyright owners who have a “reasonable basis” to believe piracy is taking place. There simply is no “reasonable basis” language in the safe harbor created by H.R. 5211. The actual language of H.R. 5211 is clear: it only provides a safe harbor to copyright owners who actually impair the piracy of their copyrighted works through P2P networks – without regard to whether they have a reasonable basis to believe piracy is taking place. To put it another way: under H.R. 5211, a copyright owner who impairs lawful file-trading would not get the benefit of the safe harbor even if that copyright owner had a reasonable basis to believe piracy is taking place.

    Does this bill protect computer users against overzealous or unscrupulous copyright owners that might abuse the safe harbor the bill provides?

    Yes. H.R. 5211 provides strong protections against abuses by overzealous or unscrupulous copyright owners. In fact, H.R. 5211 provides computer users with more protection than current law. If a copyright owner engages in abusive actions, the affected computer user can sue the copyright owner for all remedies available under prior law, and in addition, can bring a new cause of action created by H.R. 5211. Furthermore, H.R. 5211 gives the U.S. Attorney General new power to stop an abusive copyright owner from ever again using self-help measures.

    Does H.R. 5211 limit the ability of P2P users to sue a copyright owner for hacking, wrongfully stopping file-trading, or otherwise damaging their computers?

    No. To the contrary, H.R. 5211 provides P2P users with More remedies against copyright owners who “hack”, stop lawful file-trading, damage computers, or otherwise wrongfully interfere with file-trading. Subsection 514(f)(2) of H.R. 5211 specifically preserves all remedies that a P2P user or any other person, including network operators, may have under current law to sue copyright owners for such activities. In fact, H.R. 5211 provides affected P2P users with a new, additional cause of action against copyright owners who wrongfully impair lawful file-trading. Further, H.R. 5211 creates a new ability for federal prosecutors to act on behalf of affected file traders and stop copyright owners from wrongfully interfering with file-trading.

    Does H.R. 5211 require P2P users to suffer more than $250 in damages before they can sue a copyright owner for hacking, wrongfully stopping file-trading, or otherwise damaging their computers?

    No. An affected P2P user can sue a copyright owner in such circumstances under a wide variety of statutes and legal theories which have different monetary thresholds. H.R. 5211 does not alter these remedies or create a $250 threshold for using them. H.R. 5211 does create a brand-new cause of action, in addition to all previous causes of action, that contains a $250 threshold, but the creation of this new cause of action does not affect a P2P user’s ability to also access other, pre-existing remedies.

    Will H.R. 5211 allow copyright owners to “bring down” P2P networks?

    No. H.R. 5211 is quite clear that it only immunizes the blocking of copyright infringement on P2P networks. A copyright owner would remain fully liable for any action that “brings down” or otherwise disrupts P2P networks, even though such disruptions were the unintended consequence of stopping infringements. It is critical to remember that H.R. 5211 does not create some new, affirmative right for copyright owners, but only provides them with a limited safe harbor from potential liability under other laws. As such, H.R. 5211 only limits a copyright owner’s liability for the activities specified in the legislation, and cannot be read to limit liability for activities not specified therein. Attempts by piracy profiteers to read the bill more broadly are akin to saying that H.R. 5211
    would allow a copyright owner to burn down a P2P user’s house if such arson had the effect of disrupting file trading.

    Will H.R. 5211 allow copyright owners to violate the privacy of P2P users?

    No. Nothing in the bill implicates the privacy of P2P users, and in fact, the bill may enhance privacy. A P2P user has no expectation of privacy in computer files that he has chosen to publicly download from, or distribute to, 100 million other P2P users. H.R. 5211 only allows copyright owners to view these files to the same extent as all other 150 million P2P users have such an ability, thus, the bill does not violate a P2P user’s privacy. Furthermore, H.R. 5211 does not give copyright owners any ability to determine “who” a P2P infringer is. Rather, a copyright owner, like every other P2P user, simply knows “where” – at which IP address – their copyrighted work is located.

    In fact, the types of technological self-help measures encouraged by H.R. 5211 will prove less invasive of privacy than the other option – lawsuits against individual infringers. The use of technological self-help measures only reveals the IP address of a file on a P2P network, but does not reveal the identity of the distributor or downloader of that file. Lawsuits, on the other hand, necessitate the public identification of a P2P infringer, and will usually involve the entry into public court documents of many private files, data, photographs, and other correspondence found on the infringer’s computer.

    Does the bill outlaw or otherwise “kill” P2P networks?

    No. H.R. 5211 only affects illegal activity on P2P networks, but in no way affects the networks themselves or the sharing of legal content through them. Further, the bill recognizes that P2P networks are tremendous technological innovations that could be used for many beneficial purposes, but that they will not reach their potential until their use for illegal purposes is curtailed. H.R. 5211 aims to clean up P2P networks, not clear them out. Those who claim that the bill will kill P2P networks are short-sighted piracy profiteers who believe P2P networks are only useful for illegal purposes.

    Will the bill allow copyright owners to knock P2P file sharers offline?

    No. As noted above, H.R. 5211 only immunizes the blocking of copyright infringement on P2P networks. A copyright owner would remain fully liable for any action that knocks a P2P user offline, even if such disruptions were the unintended consequence of stopping infringements. It is critical to remember that H.R. 5211 does not create some new, affirmative right for copyright owners, but only provides them with a limited safe harbor from potential liability under other laws. As such, H.R. 5211 only limits a copyright owner’s liability for the activities specified in the legislation, and cannot be read to limit liability for activities not specified therein.

    Does H.R. 5211 allow copyright owners to destroy files on my computer?

    No. H.R. 5211 explicitly states that it does not allow copyright owners to destroy, corrupt, or otherwise alter files or data on a P2P user’s computer.

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Declan McCullagh’s photographs are at http://www.mccullagh.org/

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