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[FYI] (Fwd) FC: More on Rep. Berman's bill authorizing anti-P2P hacking

------- Forwarded message follows -------
Date sent:      	Wed, 24 Jul 2002 13:20:25 -0400
To:             	politech@politechbot.com
From:           	Declan McCullagh <declan@well.com>
Subject:        	FC: More on Rep. Berman's bill authorizing anti-P2P hacking
Send reply to:  	declan@well.com

To answer Robin's question below, the bill would transform any
copyright holder into a legally-authorized hacker, provided they tip
off the DOJ about their hacking techniques. That means if you're
trading my copyrighted articles or my copyrighted photographs on
peer-to-peer networks, look out! :)

Heck, even Usenet posts, rants to discussion lists, and instant
messages are automatically copyrighted. And the definition of
peer-to-peer networks is pretty broad.

Excerpt of relevant section:
>"A copyright holder shall not be liable in any criminal or civil
>action for disabling, interfering with, blocking, diverting, or
>otherwise impairing the unauthorized distribution, display,
>performance, or reproduction of his or her copyrighted work on a
>publicly accessible peer-to-peer file trading network."

Previous Politech message:



Date: Tue, 23 Jul 2002 20:54:38 +0000
From: robin <robin@roblimo.com>
To: declan@well.com
Subject: Re: FC: Draft of Rep. Berman's bill authorizes anti-P2P

>    A draft bill seen by CNET News.com marks the boldest political
>    effort to date by record labels and movie studios to disrupt
>    peer-to-peer networks that they view as an increasingly dire
>    threat to their bottom line.

I think this is *great* as long as it extends to creators of written
words, not just to movie and music people. I create hundreds of
thousands of copyrighted words every year, and I think allowing me to
hack any P2P user's computer to see if they have violated my
copyrights is a great idea.

The first computer I think I'll hack is one belonging to a nefarious
character who goes by the name "Declan," who has shared more than a
little of my precious creative output over the years with his peers
via  the infamous "politech" email list, which (as we all know) is
populated by anarchists, Democrats, libertarians, Republicans, Linux
users, and other unsavory characters.

We copyright holders have had our rights violated by you politech
Intellectual Property pirates long enough! It's time for us to FIGHT

- Robin "Roblimo" Miller
    Editor in Chief, OSDN
    (Linux.com, Newsforge.com,
    freshmeat.net, Slashdot.org,
    DaveCentral.com, and other
    popular tech Web sites)


Date: Tue, 23 Jul 2002 17:40:27 -0700
From: tom poe <tompoe@renonevada.net>
Organization: Open Studios
To: declan@well.com
CC: politech@politechbot.com
Subject: Re: FC: Draft of Rep. Berman's bill authorizes anti-P2P

Hi: Could there be anything less expected, especially considering this
quote from the BPDG draft of May, 2002?

Another little gem lies with the following from the BPDG Report:

A proposal was later made by Philips and a small number of consumer
electronics companies that, for a limited number of years (intended to
capture the reasonable life of legacy DVD players), in-the-clear
recordings of Unscreened Content and Marked Content could be made
using standard definition DVD recorders. Motion picture companies
opposed such a "grandfather" provision, inter alia, because tens of
millions of legacy DVD-ROM drives would remain capable of unauthorized
redistribution of such content when played back, including over the

That is scary. These folks have no intention of letting legacy
devices hang around. Now, how do you suppose they'll eliminate all
those "tens of millions" legacy devices in quick fashion? . . . .

Tom Poe
Reno, NV


Date: Wed, 24 Jul 2002 10:58:24 +1000
From: Nathan Cochrane <ncochrane@theage.fairfax.com.au>
Organization: The Age newspaper
To: declan@well.com
Subject: Re: FC: Draft of Rep. Berman's bill authorizes anti-P2P

If ever the open source desktop movement needed a kick along, this is
it. I can see an opening for a Linux-emulator to run on Windows PCs
just so people can continue using the P2P networks.


From: "Geoff Gariepy" <geoff_gariepy@hotmail.com>
To: <declan@well.com>
References: <20020723202935.A3258@cluebot.com>
Subject: Rant: Re: Draft of Rep. Berman's bill authorizes anti-P2P
hacking Date: Wed, 24 Jul 2002 07:58:44 -0400 MIME-Version: 1.0
Content-Type: text/plain;
Content-Transfer-Encoding: 7bit
X-Priority: 3
X-MSMail-Priority: Normal

I'm 100% in support of this as long as we're allowed the same latitude
in hacking them back!

C'mon, now, this is absurd!  Who ever heard of a law that grants you
immunity when you damage someone else's property because, essentially,
'they had it coming!'

If we want to start legal precedents on 'had it coming' immunities or
defenses, I can think of a few better venues in which to start:

o  So you run down the squeegee man with your 5,600 pound
sport-utility vehicle after he smears the windshield.  Your lawyer
uses the 'Had it coming!' defense.  You get off scot-free. o  So you
refuse to pay your AOL bill and demand that they continue service
anyway because you had four disconnects while downloading your email
last month. Your lawyer uses the 'Had it coming!' defense.  The judge
grants your request that they be forced to continue your service. o 
So you sell your employer's list of prospective new customers to a
competitor after they passed you over for a raise last review.  Your
lawyer uses the 'Had it coming!' defense.  Your employer has to retain
your services, and you're not liable to them for damages

My question is: where does this stop?

My other question is: just how stupid are the record companies?  Do
they really think that they're a match for the collective talents and
skills of all the folks on the Internet?  It seems like they're
universally disliked by everyone they do business with -- their
customers, and the recording artists -- because of their abject greed,
and refusal to evolve their business model along with the changing
times.  Remember, kids, the record companies could be SELLING MP3s,
just as easily as Napster or Gnutella share them for free.  I'd buy
'em!  Tell me where a reliable place is to get EXACTLY the music I
want, when I want it, legally, reliably, for a fair price, and I'll be
a customer for life.  But no, they want to get your entire eighteen
bucks for a disc that's mostly full of music you don't want, instead
of $1.50 for a MP3 of the one good single on it.  And then they want
to embed stuff in the music that f***s up my PC?  Does anybody think
it will take longer than 2 weeks for the same hackers they complain
about to come up with countermeasures to whatever scheme they cook up?
 And then I suppose the Digital Milennium Copyright Act will rear its
ugly head when we write something to protect ourselves, eh?



From: "M. Burnett" <mb@xato.net>
To: <declan@well.com>
Date: Wed, 24 Jul 2002 10:45:46 -0600


Beyond the most obvious privacy, security, ethical, and legal issues
involved, I wanted to add a few comments why this bill is wrong:

1. This bill shifts the burden of proof
 >From what I understand of this draft, it allows for measures to be
taken with only a "reasonable basis" of evidence.  The burden then
shifts to the target to prove, after the fact, that the copyright
holder acted improperly.  The MPAA and RIAA want a free pass to
sidestep our entire legal system.  I'm sure there are many industries
that would like that privilege, including law enforcement who are
investigating actual serious cases such as child abuse and terrorism.
Further, even with the burden of proof put on the accuser, we have
seen much abuse.  Imagine how much worse it would be if that burden
was shifted.

2.  We are letting the plaintiff decide who is guilty
Copyright laws are complex and we have recently seen many court
battles and appeals to clarify the issues.  Even after a court
ruling, many are still in disagreement over the issues.  Further, we
even have judgements in some states that are not consistent with those
in other states.  With all this disagreement, how can we possibly just
let the MPAA and RIAA decide who is infringing their copyrights?

3.  There are too many unseen side-effects and loopholes.
Bills such as this that introduce such a dramatic change in our legal
system open up all kinds of unforeseen loopholes and unintended
side-effects.  Who knows how the definitions can be stretched?  Who is
a copyright holder? Who is violating a copyright?  What is a technical
means?  Does this bill allow for action taken against vicarious and
contributory copyright infringers?  Further, what kind of precedence
does this set for other industries?

4.  Berman's analogies are wrong.
Berman suggests that this bill will allow measures similar to what
cable companies use to disable cable pirates.  The problem with that
analogy is that the cable companies own the wire and the cable system
has no other function but to provide cable services.  That is not the
case with computer systems and the internet.  What if a file-sharing
network also provides a means for one to distribute a weekly news
publication?  Suddenly, the MPAA and RIAA have interfered with the
press, something that even Congress cannot legally do.

5. You don't get to do what criminals do.
Gene Smith, Berman's spokeswoman said "...this bill just puts into the
hands of the copyright owners technologies that are already being used
by the pirates."   The problem is that you have those kinds of rights
in America.  Just because a criminal uses a technique against you, it
does not justify you using that technique--that's what makes a
criminal a criminal.  If you use those techniques then you also become
a criminal.  You don't get to kill murderers.  You don't get to hack
hackers.  You don't get to send suicide bombers to terrorist nations.
You don't get to steal from thieves.

6.  The benefit isn't worth it.
The fact is that their techniques will only have limited
effectiveness.  It doesn't matter if you shut down the Napsters
through legal or technological means, there will still be ten more
services that pop up to take its place.  Its simply not worth
jeopardizing our legal system for something that will not be that
effective anyway.  Ask the cable companies if their techniques stop
really cable piracy.  If it really worked, why do they keep having to
do it?

It is laughable to even suggest allowing one American industry to
bypass our entire legal system and then limit their accountability
when they do act improperly.  Its preposterous to think that one
industry could have rights not even allowed in pursuing legitimate

Americans are wronged all the time.  Businesses are cheated out of
profits every day.  Our recourse is the legal system. Sometimes it is
on our side and sometimes it is not.  And while it is inconvenient to
use our legal system, it is there to protect us.

Mark Burnett

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