Position: Professor of Law and Information Management and Codirector, Berkeley Center for Law and Technology, University of California, Berkeley
Issue: Fighting file sharing. Copyright owners are using technology, as well as the legal system, to combat users who share music and video files over peer-to-peer networks like KaZaA and the defunct Napster.
Personal Point of Impact: Principal organizer, 2003 Law and Technology of Digital Rights Management Conference; board member, Electronic Frontier Foundation
Technology Review: Is sharing music on peer-to-peer networks really piracy?
Pamela Samuelson: Prior to the Napster decision in February 2001, which held that users who swapped music files via peer-to-peer technology were copyright infringers, it was possible to argue that people who were doing file sharing on a noncommercial basis were engaged, at least many of them, in fair uses. If that was true, then one could make the argument that these peer-to-peer file-sharing technologies had substantial noninfringing uses. After the decision, it’s not so easy to argue that the underlying act of file sharing is lawful. So you have to say a lot of people who are doing file sharing are engaged in copyright infringement.
TR: How much damage is this kind of infringement doing?
Samuelson: The question of harm from the kind of file sharing that’s happened so far is widely debated. If you think that every unauthorized copy is a copy that should have a commercial value attached to it and the failure of the copyright owners to get that particular value is a harm to their market, then it’s easy to multiply the number of illicit copies times the value of whatever was shared and say, Oh, a kazillion kazillion kazillion dollars. However, a number of economists have looked at this and said, Gee, you know, it’s not so convincing that that actually is a fair interpretation-that there’s been substantial harm. Even if there’s been some harm, there has been a lot less harm than the copyright industries are claiming.
TR: What kinds of things are copyright owners doing to fight file sharing?
Samuelson: Copyright owners right now are using phony files, decoys, and other chaff to try to frustrate the experience on peer-to-peer networks, where users share files. For instance, it could be a file with the name of the latest Madonna song, but when a person opens it and tries to listen to it, it might contain something that says, You’ve just engaged in copyright infringement; this is illegal; you’re harming the artist; don’t do it anymore. The theory is that if you make peer-to-peer file sharing an unpleasant experience where users can’t always get what they want, then people will stop. However, use of such chaff in the network seems not to be working very well. So the copyright industries want Congress to do something to help them step up the attack on file sharing.
TR: Last July U.S. Congressman Howard L. Berman (D-CA) introduced a bill, the Peer-to-Peer Piracy Prevention Act, to help copyright owners battle illegal file sharing. He hasn’t decided whether to reintroduce the bill, but it’s an interesting example of such legislation. How would it help copyright owners?
Samuelson: The bill would essentially provide immunity to copyright owners who disable, interfere with, block, divert, or otherwise impair some acts of copyright infringement that are happening via publicly accessible peer-to-peer file-trading networks.