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TR: How would they do that?
Samuelson:Well, suppose you’ve got somebody who has a thousand songs on his hard drive and all of them are available to others for downloading. That person makes a tempting target for a recording-industry attack. It may be possible to engage in a kind of denial-of-service attack by bombarding the supernode with messages so that it has to go down. Or it may be possible to tie up the node with slow-motion downloading and block out other users.

My sense is that this bill would not just immunize this kind of interference with downloading; it also would immunize more aggressive acts, including those that would otherwise violate the Computer Fraud and Abuse Act [CFAA] and the Digital Millennium Copyright Act’s anticircumvention provisions. The CFAA has quite a lot of open-ended provisions. For example, if a rights holder accessed a user’s computer and disabled use of files on that computer, that would violate CFAA. As the recording industry was contemplating how to fight back against peer-to-peer file sharing using technology, they correctly reasoned that they might, in fact, be subject to liability under the broad provisions of the CFAA or other federal or state laws that forbid, for example, trespassing on somebody else’s computer system.

TR: The bill’s advocates say it would permit “self-help,” a venerable legal concept. For instance, everyone knows that the repo man can come and repossess your car if you don’t make the payments. Why isn’t this a good tool for combating piracy?
Samuelson: Self-help of the kind we talked about earlier-putting some chaff into the system-seems to me to be perfectly appropriate because it doesn’t otherwise violate the law or public policy. But when somebody wants to repossess a car, he can’t break into your garage in order to get the car. And the analogy holds when you talk about computers. Why should the recording industry be able to hack into a person’s computer? The target of the attack may have a considerable amount of information on his or her computer other than some infringing files. The damage that this bill would allow copyright owners to do to information on a person’s computer may be not only to those files that they, arguably, have a right to do something about; the attack may have spillover effects.

TR: You think the Berman bill overreaches?
Samuelson: Oh, yes. Even if you have a lot of sympathy, which many people do, for the copyright industries, the use of a set of techniques that’s going to have substantial negative spillover effects for the security of computer networks seems to be at odds with other really important public policies that are being developed. One of the really unfortunate consequences is that just as we’ve been trying to increase computer security and to diminish the extent to which networks have been disrupted in the last year or so, you have one industry asking for a grant of immunity to engage in what otherwise look like terrorist acts.

TR: So what alternatives are there if we want to protect both copyrights and individual rights?
Samuelson: If the goal is compensation to artists, then it may be time, especially in view of how widespread file sharing is, to start thinking seriously about some sort of licensing scheme so that noncommercial file sharing, for example, could be made profitable for copyright owners. But it would be necessary to impose some sort of tax. This would get copyright holders some money and would stop the punitive war that has been going on, which is going to be really tough for the industry to win.

TR: How would such a tax work?
Samuelson: People who engage in file sharing usually want broadband Internet access, so Congress could put a tax on the bandwidth access and then distribute that money to copyright owners based on some sampling done about file sharing that estimates how the money should be distributed. Or it could tax hard drives, CD burners, or file-sharing software.

I don’t think that there’s one silver bullet that solves the whole problem. But it’s important to find some solution that is the least socially disruptive-one that also then gets a wide array of wonderful creative works into the hands of lots of different people. Because that’s what ultimately the copyright system is supposed to achieve.

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