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Judiciary Leaders Target Peer-to-Peer

Key members of the Senate Judiciary Committee Wednesday were itching to give the Justice Department more weapons in the fight to protect copyrighted material—movies, TV shows, songs—from digital piracy.

If more help isn't provided, said Senator Diane Feinstein, we "destroy every copyright industry."

Feinstein is a California Democrat whose constituents include the big studios whose business she says would be destroyed. Feinstein suggested Congress needed to step in, that peer-to-peer file trading has not been stemmed by the Supreme Court's decision in Grokster.

During the hearing, on protecting content while preserving innovation post-Grokster, both Feinstein and committee Chairman Arlen Specter (R-Pa.) pushed a Justice Department witness to tell them what tools she needed to more effectively discourage illegal peer-to-peer file swapping.

More lawyers would help, said Debra Wong Yang, U.S. attorney and chair of the Attorney General’s Advisory Committee on Cyber/Intellectual Property Subcommittee. She pointed out that Justice has a lot on its plate, including Homeland Security.

She said the Justice Department was going after major players, not the second=tier of inducers. But Specter asked why she did not do both. Lack of resources was the answer.

Feinstein was the most vocal proponent for tough new laws:

"I have watched for over a half decade since Jack Valenti [then president of the Motion Picture Association of America] urged us to do something. We asked him to negotiate and there were two attempts" to strike a balance between protecting copyrights and fair use copying, she said.

"Now we have a unanimous Supreme Court decision and peer-to-peer nets are increasing. That is a signal. Enact strong law to protect the copyright industry. If negotiations can't produce results, it is up to Congress to act."

In the Grokster case, the Supreme Court ruled in June that companies or individuals that actively induce copyright violations—it suggested a good case could be made that Grokster had—could be liable for prosecution.

Specter suggested that given some conflicting signals from the court in concurring opinions in Grokster and despite the court's unanimous finding, it might be better for Congress to step in and clarify.

Register of Copyrights Mary Beth Peters said she would prefer for the courts to work it out, as did Consumer Electronics Association President Gary Shapiro, who registered his fear that overregulation and over-litigation in the wake of Grokster could stifle creativity. He represents the companies that make recording equipment, some of which have been targets of lawsuits by content providers.

"So, you're saying Congress should not do much of anything?" asked Specter. On this issue, no, replied Shapiro.

"We'll we're good at that," Specter joked.

Shapiro argued that venture capital was being chased away from new technologies by studio lawsuits. That was seconded by Stanford Professor Mark Lemley, who pointed to suits filed against consumer electronics companies that make recording devices; against Google, eBay and; against the telcos; against venture capitalists; and even against the law firms that advise those companies.

Another key issue is licensing. While Snocap COO Ali Aydar said that while there are some 2 million tracks available legally—Snocap was founded by ex-Napster execs Shawn Fanning and Aydar to legally swap files—there are 25 million songs still available for free on peer-to-peer nets.

There needs to be some way to clear up the morass of licenses that need to be obtained so that a public who wants their content when and where the want it can get it legally and artists can be compensated, he said. That would also make his company's life easier, of course, since its function is to obtain those rights and get compensation to artists.