Pamela SamuelsonPosition: Professor of Law and Information Management and Codirector, Berkeley Center for Law and Technology, University of California, Berkeley
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.
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.
Technology Review: Would technological self-help just start an arms race between peer-to-peer programmers and the copyright holders?
Pamela Samuelson: It seems to suggest a kind of escalation, and we’ve already seen some of that because shortly after the Berman Bill was announced there was a hack of the RIAA [Recording Industry Association of America] Web site and then there have been several others since then. Part of what a real unfortunate thing, and the Berman Bill isn’t going to solve this, is that by being so aggressive against the peer-to-peer file-sharing technologies and bringing so many lawsuits and trying to shut the stuff down, the industry hasn’t won the hearts and minds of the individual users of these networks, and they haven’t won the hearts and minds of the technology community that wants to use peer-to-peer technologies.
What it’s done, I think more than anything, is shunt users who want to file share to more distributed, less centralized systems, which are less vulnerable to Napster-like litigation, and has developed the cadre of committed technology sophisticates who consider the recording industry their enemy. These people feel justified in building stronger attacks because the recording industry is doing stronger attacks. So instead of getting everybody to a place where there is more respect for the law, what we’re doing is kind of breeding a lot of disrespect for the law both by the recording industry, frankly, and also by the technology community and by the public at large. And it seems to me that given how widespread the use of these networks is, say 40 million people use peer-to-peer technology to file share, it’s really hard to throw them all in jail.
TR: The recording industry would say that’s why they need the self-help, because they can’t win a lawsuit against these new services.
Samuelson: Yeah, but that’s actually the reason why they ought to be investigating the licensing option. That would at least get them some money and would stop this kind of punitive war, which I think it’s going to be really tough for them to win.
TR: So why do you think the copyright holders have rejected the licensing route?
Samuelson: One of the things to really understand here is that, especially in respect of both the recording industry and the broadcast industry, there have been quite a lot of compulsory licenses. It’s really not as kind of novel and weird an idea as the industry wants to make it seem. The fact that they don’t want it doesn’t mean that it’s not a good idea. One of the things to realize is that when the recording industry first got started, they got sued for copyright infringement too.
TR: Really? When?
Samuelson: This is actually worth knowing. The first sound recordings of music in a mechanical device were actually piano rolls. And there was a lawsuit brought by people who were publishers of music for copyright infringement against makers of piano rolls because the people who were making piano rolls were not paying them any royalties. The case went to the U.S. Supreme Court and the court decided that because the works that were protected were musical compositions-musical notes written on paper-piano rolls were not infringing material. Piano rolls just had punches on paper.
Shortly thereafter, Congress amended the copyright law and gave copyright owners of music the right to control mechanical reproductions of their musical compositions. But that right was subject to a compulsory license, which benefited the sound recording industry. Compulsory licenses in some sense came about because the first sound recording industry was a set of pirates. There was concern about anti-competitive activity, that the copyrighters wouldn’t allow more than one sound recording to be made of a particular piece of music. So the sound recording industry essentially got a compulsory license that benefited them. These licenses are part of what courts do and what legislatures do to deal with complicated market situations.
TR: So why don’t Jack Valente and Hilary Rosen, the faces of RIAA, want it?
Samuelson: Well, because they want complete control over everything. So they benefit from compulsory licenses themselves but they don’t want anybody else to.
TR: They want complete control over their content?
Samuelson: Yep, that’s what they’re going for right now.
TR: Because they make more money that way?
Samuelson: That’s what they think. I actually think they won’t. But it’s very difficult to persuade them. They look around and they see digital technology as something that causes them to lose complete control over their work and that scares them a lot.
So let’s say you wanted access to particular songs and you didn’t want to pay this much money on one of the major labels’ digital download service, well then you could get it from the peer-to-peer, kind of “dark net,” as Peter Biddle calls it. Right now, those digital download services are having to compete with “free.” Even if there’s a compulsory license, they’re still going to be competing with lower-priced stuff, and what they want to be able to do is say, the only way you can get legitimate access is through us, and we’ll charge what we think the market can bear.