RIAA: Licensed to hack?

Last October I chastised the Recording Industry Association of America for trying to get legislation passed that would protect its members against liability for damage to data or services incurred while protecting copyrights through what were essentially hacking techniques.

Well, that attempt died a quiet and unmourned death, and I had hoped that would be that.

But no, the RIAA has recently persuaded California Congressman Howard Berman - whose district includes Hollywood (surprise) - to create a bill that would provide shelter for copyright owners such as record labels and movie studios against liability for action they take to stop peer-to-peer Web sites from enabling illegal file-sharing.

"While P2P technology is free to innovate new, more efficient methods of P2P distribution that further exacerbate the piracy problem, copyright owners are not equally free to craft technological responses," Berman said in a speech last month. "Congress should free copyright creators and owners to develop and deploy technological tools for addressing P2P piracy. We could do this by creating a safe harbor from liability for copyright owners that use technological means to prevent the unauthorized distribution of their copyrighted works via P2P networks."

Copyright holders under Berman's bill would be allowed to undertake various countermeasures, including interdiction - swamping a supposed P2P file server with false requests so that downloads are slowed or stopped; redirection - pointing supposed file swappers at servers that don't contain the files they're looking for; and spoofing - providing corrupt or otherwise undesirable files in place of whatever file is trying to be swapped.

That's all well and good. After all, the copyright holders are protecting their own rights aren't they?

Ah, but notice my use of "supposed" - this was not for mere decoration. Oh no, because if the copyright holders make a mistake under this ill-conceived bill, they won't be held liable, will they? Oh, I know that Berman has said that "such legislation must be narrowly crafted, with strict bounds on acceptable behavior by the copyright owner . . . [and should also] provide for strong penalties against abuse of the authority provided by the safe harbor."

But can't you just see it? You're getting ready for work one morning. The birds are singing, you're on time, the coffee's just finished brewing, and as you step out of the shower your home phone rings, your cell phone rings and your pager goes off. The messages from the office all say the same thing: "We have a fraction of our Internet access bandwidth left, hardly any e-mail is getting in or out, our Web servers have crashed, the FTP server got wiped clean and what are you going to do about it? Now."

Your day has turned into a living inferno. Twenty-four hours later you've got a splitting headache and raging indigestion. You're exhausted, strung out on stale coffee, sweaty and greasy, short-tempered, and talking to some geek from the RIAA's hit squad.

"Sorry" he says, "I guess we got the wrong IP address . . . We took out your servers? Oh. Sorry."

Just try to take 'em to court.

But eventually - and at great cost - enough consumers and businesses will have been erroneously hit. A class-action lawsuit will emerge to waste everyone's time and money, only to wind up at the Supreme Court, which will say the bill was stupid as it contravened this, violated that and rode roughshod over the other. Then it will be back to the drawing board for the RIAA and its band of merry men having made everyone's life just that little bit harder.

This kind of legislation is plain crazy. At best it is ill-conceived and shortsighted. At worst, it is irresponsible and unethical. And it could pass this time. So tell Berman - howard.berman@mail.house.gov - how wrong his thinking is.

Cries of outrage to backspin@gibbs.com.

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