Thanks for inviting me here today.  This is a welcome opportunity to make the case for thwarting Peer to Peer Piracy through reasonable, limited copyright owner self-help.

 

A major reason I introduced the P2P Piracy Prevention Act in July - near the end of the 107th Congress - was to stimulate this kind of dialogue.  I anticipated that several months of reasonable discussion would enable the public to evaluate the bill, allow us to correct any unintended consequences, and set the table for moving it in the 108th Congress.

 

Unfortunately, while much has been reported and said about the P2P Piracy bill since July, very little of it has been accurate.  It is not surprising that piracy profiteers instantly attacked the bill, but it is startling how few reporters bother to scrutinize the accuracy of these instant attacks before publishing them.  One reporter approvingly quoted a lobbyist for Morpheus’ trade association as saying the bill allows deletion of files, but never noted or cautioned his readers that the bill clearly and specifically prohibits the deletion of files.  Other reporters have claimed to quote language from the bill that, quite simply, doesn’t exist.

 

Anyway, I thank CATO for this opportunity to set the record straight.

The best place to start is an explanation of why this bill is necessary.  While piracy apologists try to be coy on this point, the truth is that the theft of copyrighted works is the predominant use for public P2P networks today.  This piracy occurs on a massive scale.  At last count, 1.1 billion files were being downloaded monthly through the most popular P2P network, and the vast majority of these downloads are copies of copyrighted works for which the creators and copyright owners receive no compensation.

 

This massive piracy costs real people real money.  Take the example of songwriters.  Songwriters write the music you know and love, but typically are not the actual performer you hear on the radio or see in concert.  Less than 10% of songwriters manage to earn a living by writing music, with the vast majority making less than $20,000 per year in royalties.

 

By statute, a songwriter cannot charge a market rate for copying her creations....a situation that should itself offend libertarians.  Instead, the songwriter is limited to collecting 8 cents for every digital or physical copy of sound recordings that contain her songs.  Each illegal P2P download of a song robs the songwriter of that 8 cents.

 

Those eight cents may not seem like much, but multiply 8 cents by the reported 1.1 billion downloads on one P2P system in one month.  It calculates out to  $88,000,000 dollars...a month.  Divide even 1/10th of that money among the 5,000 members of the Songwriters Guild of America, and you begin to see that P2P piracy robs songwriters on a massive scale.

 

On behalf of songwriters and all other creators, whether needlepoint designers, authors, photographers, graphic artists, or game developers, we must clean up P2P piracy, and clean it up now.  The question is, How?

 

The solution to P2P piracy is multifaceted.  While the P2P Piracy bill is an important part of the solution, it isn’t the whole package.  Other parts of the solution include effective digital rights management technologies, better online access to legal copyrighted works, prosecution of infringers, and increased respect for property rights in the mind of the public.

 

I am committed to implementing all parts of this solution, and welcome the participation of all who want to help.  I do not welcome, however, the participation of those who reject every possible solution, claim that P2P piracy is not a problem, and encourage us to throw property rights out the window.  These folks are generally piracy profiteers who benefit through the theft from creators, and they don’t have a place at the table.

 

Copyright owner self-help is a reasonable avenue to explore in seeking a solution to P2P piracy, and comports with the tradition of vesting copyright owners with the burden of protecting their rights.
The Peer to Peer Piracy Prevention Act is quite simple in concept.  It says that copyright owners should not be liable for thwarting the piracy of their works on P2P networks IF that is all they do.

 

Libertarians might reasonably wonder why we need to pass legislation to give property owners the right to protect their property against theft.  After all, if someone steals your bike and brazenly stores it on their front lawn, you are allowed to trespass on that lawn to take your bike back.  Why wouldn’t a copyright owner be able to do the equivalent online?

 

It’s a reasonable question.  The answer is that a variety of state and federal statutes and common law doctrines can be read to create liability for copyright owners engaging in such harmless self-help. In fact, to extend the bike analogy further, these statutes and doctrines can be read to prohibit copyright owners from even standing on the electronic equivalent of the sidewalk and preventing others from passing their stolen property back and forth.

 

This is not fair.  Copyright owners should have the same right as other property owners to stop the notorious, brazen, and open theft of their property.  The P2P Piracy bill simply ensures that the law will no longer discriminate against copyright owners by creating a safe harbor from liability in appropriate circumstances.

 

Obviously, it is critical that such a liability safe harbor be appropriately limited.  In drafting the P2P Piracy bill, I tried to ensure that only reasonable self-help technologies would be immunized, that the public would be protected from harm, and that over-reaching or abuses by copyright owners would be severely punished.

 

The most important limitation in the bill is the narrow breadth of the safe harbor itself.  The bill says copyright owners get immunity from liability under any theory, but ONLY for impairing the “unauthorized distribution, display, performance, or reproduction” of their own works on public P2P networks.

 

If a copyright owner can find a way to ONLY impair the piracy of her copyrighted work on a P2P network, she won’t have liability under any theory for doing that.  However, if the copyright owner’s impairing activity has some other effect, like knocking a corporate network offline, the copyright owner remains liable under whatever previous theory was available.

 

Some of the piracy profiteers have claimed that the bill is not limited in this way.  First, I want to assure you that this is, in fact, the intent of the bill.  If reasonable arguments can be made to the contrary, I am glad to work with folks on redrafting.

 

At this point I do not buy the logic of the piracy profiteers.  Their claim appears to be that the bill gives a copyright owner immunity for anything she does, as long as it has the effect of stopping piracy on a P2P network.  By their logic, the bill allows a copyright owner to burn down a P2P pirate’s house if the arson stops the pirate’s illegal file trading.  Clearly, the bill says nothing of the sort, and no judge or disinterested party could read it that way.

 

Besides the limitations inherent in the safe harbor itself, the P2P piracy bill contains a variety of other important limitations.

 

The bill specifically states that the safe harbor does not allow a copyright owner to delete or alter ANY file or data on the computer of a file trader.  Thus, a copyright owner can’t send a virus to a P2P pirate, it can’t remove any files on the pirate’s computer, and it can’t even remove files that include the pirated works.

 

The safe harbor does not protect a copyright owner whose anti-piracy actions impair the availability of other files or data within the P2P network,  except in certain necessary circumstances.   Some folks have raised concerns about this provision, and I am thinking about alternative language that could resolve their concerns.

 

The bill denies protection to a copyright owner if her anti-piracy action causes any economic loss to any person other than the P2P pirate.

 

The safe harbor is also lost if the anti-piracy action causes more than de minimis loss to the property of the P2P pirate.

 

Finally, the safe harbor is lost if the copyright owner fails to notify the Attorney General of the anti-piracy technologies she plans to use, or if she fails to identify herself to an inquiring file-trader.
These limitations appropriately restrict the scope of the safe harbor.  However, I don’t claim to have drafted a perfect bill, and welcome any and all suggestions for improvements....as long as those suggestions are consistent with the goal of thwarting P2P piracy.

 

Libertarians should fully embrace the goal and intent of the P2P Piracy bill.  In fact, this bill seems like a poster child for libertarian legislation.

 

Rather than imposing a government mandate on technology, as some other bills would do, the P2P Piracy bill enhances individual and technological liberty by rolling back onerous, over-broad regulations.

 

The purpose for which those regulations are scaled back is itself entirely consistent with libertarian principles.  The P2P Piracy bill ensures that unnecessary government regulations will not limit the ability of intellectual property owners to stop the theft of their property.

 

Opponents of the P2P piracy bill try to claim the libertarian mantle by standing libertarian principles on their heads.  They say individual liberty includes the freedom of P2P users to steal creative works without interference from the property owner.

 

While libertarians hold individual rights dear, they have never included the right to steal among those rights.

 

Libertarians focus on the freedom to exploit natural and constitutional rights, which include the right to intellectual property under the Copyright and Patent Clause.  Thus, true libertarians should prioritize the right of an author to harvest the fruits of her creative labor over any ostensible right of a P2P pirate to copy that book without payment.

 

 

Don’t be fooled by spurious claims that P2P piracy is an exercise of First Amendment rights, and thus should be defended by libertarians.

 

Copyright protects expression, not ideas.  A P2P user is free to globally disseminate his own expression of the ideas contained in Eminem’s latest sound recording, and may even use “fair use” excerpts of that sound recording as part of his expression.  Copyright only prohibits the P2P user from distributing the sound recording itself....an act of outright thievery.

 

IP opponents also try to woo libertarian support by arguing that intellectual and physical property differ fundamentally, and as a result IP deserves lesser protection.  Basically, these arguments assert that physical property is a scarce resource, whereas IP is not.

 

The truth about scarcity is otherwise.  In some senses, IP is as scarce as, and maybe more scarce than, physical property.  An unwritten novel is far more scarce than the land on which this building rests.

 

The scarcity argument of IP opponents rests on the assumption that IP already exists, and we are just arguing about who gets to use it and how.  They totally ignore the real purpose of IP protection, which is to stimulate the creation of the next great movie, novel, or software innovation so the public may benefit from such creativity.  In that sense, IP is far more scarce than some other types of property, such as real property, because it might never come into existence.

 

The scarcity arguments with which IP opponents try to woo libertarians are also intellectually dishonest.  If they believed in their scarcity arguments, IP opponents should also support limitations on real and physical property rights when scarcity is not an issue.  In other words, they should support someone being able to sleep in your apartment when you are not using it, or being able to squat on unused land.  Not surprisingly, they don’t take the scarcity arguments to their logical conclusion when wooing libertarian support.

 

In summary, libertarians should naturally support the purpose and intent of the P2P piracy bill.  I am committed to working with libertarians and all others who can enunciate reasonable concerns about the bill, as long as we start with an agreement that P2P piracy must be thwarted.