Seattle Press on Line - Hollywood: Licensed to Hack

Law & Technology

Law and Technology

Hollywood: Licensed to Hack

By Amanda Kern

Aug 15, 2002 -- On July 25th, Representatives Howard Berman, D-Calif., and Howard Coble, R-N.C., introduced a bill which will legalize computer hacking--provided the hacker is a copyright holder, and the victim is a user of a peer-to-peer (P2P) network. Hacking is a crime under a number of federal and state laws, but this bill would create a special exemption from liability for an otherwise illegal act--and allow such actions to be done in secret. Although Mr. Berman has said that the "legislation is narrowly crafted, with strict bounds on acceptable behavior by the copyright owner," the wording of the bill leaves the door open for abuse by copyright holders and limits the redress available to those harmed along the way.

The following scenarios illustrate the kind of harm that is likely to occur:

When Julie turns on her computer, a window pops up with something that looks a lot like an end-user license agreement. The title says "Copyright Protection Monitor," and the first sentence reads: "A Peer-to-Peer (P2P) Network accessed by a user of this computer has been found in violation of United States copyright protection laws." Julie scrolls through several pages of legalese, after which she is fairly sure of only two things: software that monitors her files and internet access has been installed on her computer, and if she uninstalls it, she may be breaking the law.

Pete isn't so lucky. He also uses P2P software to share his indie band's music with their fans (all 20 of them). When he tried to turn his computer on this morning, nothing happened. He isn't a techie, and it will cost him nearly $100 to have it fixed--sometime next week.

Cathy has never installed LimeWire, KaZaa, or any other P2P software. Her Internet access is painfully slow because another cable modem customer is the target of a legal attack. Cathy's ISP is going to limit Internet use to web browsers and email only, so it won't happen again.

All of these users have lost something--a sense of security, convenience, quality of service--yet none has a valid claim against it.

The Fine Print

In order to remain safe from anti-hacking laws, copyright holders must follow a few rules:

* The attacker is only authorized to impair or block the availability of files, not damage or delete them. But even fairly non-destructive hacks like spoofing, decoys and denial-of-service attacks, in which a computer is bombarded with messages that cause it to cease responding, can have destructive side-effects.

* The attacker cannot impair the availability of files that do not infringe copyright, unless it is "reasonably necessary" to do so. Who defines "reasonably necessary?" The copyright holder.

* The attacker may not cause economic loss to any person other than the targeted file traders. "File trader" includes anyone who connects to a P2P network on which copyrighted works are shared, regardless of whether that person actually copied any of them.

* The attacker may not cause more than $50 in economic loss--per

instance of copyright infringement--to a targeted file trader. A brand-new Dell home computer system is worth about 20 copyrighted mp3s.

* The attacker must inform the Attorney General of the specific technology to be used seven days before taking action. Users need not be told how or why they are being hacked.

Nondisclosure Clause

If this license to hack is abused, we are not likely to find out. The bill specifically requires that such claims are kept secret. Even the results of claims investigated by the Attorney General must remain secret.

Sacrificing Your Security?

A copyright holder has the right to exclusive profits from their work, and consumers have fair-use rights, which include making copies for personal use and lending material to others. Digital Rights Management (DRM) and other technological approaches to enforcing copyright often impose more restrictions than the law does; because it is often difficult to determine what constitutes "fair use," the default is to err on the side of the copyright holder.

This bill is intended to supplement DRM and similar measures by letting privately-owned computers be hacked in the name of copyright protection. It is not clear whether the Digital Millennium Copyright Act (prohibiting circumvention of copyright protection technology) would bar a user from attempting to secure their computers against this legalized hacking.

While those concerned with computer security advise people to install firewalls in order to prevent intrusions, supporters of this bill care more about profits for the entertainment industry. Enforcing copyrights is important for all concerned, but that is a job best left to the courts--not Hollywood.

Amanda Kern is a student at the University of Washington School of Law. She is interning at Privacyactivism.org.

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