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Berman Delivers

NMC/Radio and Records eChart main column as published in the 8/2/02 issue of R&R Senator Howard Berman has made good on his pledge to introduce legislation protecting owners of copyrighted works when they attempt to use technology to block the theft of their works online. And, he says, it's nothing revolutionary: those protections have been there all along.

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"The law has long allowed property owners to use self-help to protect their property," Berman said."Satellite companies periodically employ electronic countermeasures to thwart the theft of their signals and programming. Software companies employ technologies that make their software inoperable if license terms are violated. However, copyright owners cannot use many promising, anti-piracy technologies because doing so runs afoul of certain common law doctrines and state and federal statutes, including the federal Computer Fraud and Abuse Act, that were never intended to apply to such self-help activities."

As this war continues to escalate between the technologists who want open access to all content on demand, and artists, labels and studios who want their works protected, Berman's all for fighting fire with fire: "The bill my colleagues and I [have introduced] will free the marketplace to develop technologies that thwart P2P piracy...by allowing copyright owners, in certain limited circumstances, to use technological tools to thwart P2P piracy without fear of liability."

Berman is taking a page out of the Electronic Freedom Frontier playbook, and the legal jiu-jitsu they've attempted to employ in battles like the Dmitri Sklyarov/ElcomSoft case, the Morpheus/MusicCity case and the 2600/DeCSS case. In all cases, the EFF has been unsuccessful. Robin Gross, lead counsel for the EFF, says that P2P, or peer-to-peer, technology is not to blame, and that the labels and studios that hold on to copyrighted works are holding on too tight. "The balance is tipped way too far in favor of the big corporate giants who tell the public what they can and can't have access to," she said. "Technologies like Morpheus and Napster give us all the ability to do legal things as well, and should not be thrown out wholesale."

Except we all know the truth about why these technologies became so wildly successful: because you could steal music and movies with impugnity. Once Napster shut off the free music and only allowed legal use of its file sharing capabilities, the once huge Napster audience went elsewhere.

The RIAA followed, and Howard Berman watched and cheered them on. "It should remain the creator's choice to distribute their works through a P2P network, not a pirate's," Berman declared."P2P piracy must be cleaned up, and cleaned up now."

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