Anti-file trading measures raise high profile policy questions

Any suggestion that file-trading policies are arcane technological disputes was laid to rest recently with a front-page story in the May 4 issue of “The Sunday New York Times.”

Headlined “Software Bullet Is Sought To Kill Musical Piracy,” the article looked at the financing, development and testing of software programs that sabotage the computers and Internet connections of file traders. Users of P2P systems have been alarmed by these actions for some time, but high-profile public scrutiny of these types of cyber-assaults is a most welcome development.

The music companies that are exploring these measures would prefer that this covert campaign take place out of the public eye. The story pointed out that some of the measures considered could be illegal under state and federal wiretap laws. It suggested that the industry would not pursue these measures – which is a debatable notion. But the story noted that many of the criminal and civil liabilities for these countermeasures are new and not easily defined, leaving lots of legal wiggle room for the entertainment industry.

Some of the countermeasures mentioned are Trojan horse programs. Such programs redirect file traders to Web sites where they can purchase the song they are attempting to download. Interdiction software, which could attack and block a person’s Internet connection, was also being tested. Another considered program freezes up the file traders computer system, which may force them to reboot and loose unsaved data. Then there is the software that scans the file trader’s hard drive and deletes files that are deemed to violate copyright.

Record industry executives are quoted in the story as acknowledging that such scanning programs are deleting uncopyrighted music files in test cases.

Marc Morgenstern, CEO of OverPeer, which develops these potential software weapons, refused to identify his clients. He said his company would not deploy software that breaks the law, but said they are among about a dozen business hired by the major music labels to conduct this research.

These companies are aware that they risk alienating the very people that the music industry courts as customers. And they also know that they could be held liable to attacking the computers of P2P users they target. But all of these measures are outside the scope of copyright laws. And they will further alienate ISPs who are already worried about such software disrupting their networks.

Cary Sherman, president of the Recording Industry Association of American candidly acknowledged that some of the so-called “self help” software measures developed by its member organizations will occupy a legal gray area and some will be outright illegal.

If such software weapons are created, they will be used. And once they are used, they will spur a new round of countermeasures and lawsuits that will discourage file traders from using the industry sanctioned music sites. Such stories in such prominent publications put the music industry on notice that at least some consumers are watching for illegal measures, and may be willing to take on an industry that is accustomed to playing legal offense, not defense.