A draft letter posted to P2P Web sites and purportedly written by california Attorney General Bill Lockyer and circulated to other state attorneys general demands P2P software companies do a better job of protecting consumers from the dangers of file sharing or face legal action. In listing the numerous potential hazards associated with P2P, the draft echoes claims previously made by critics of the popular software: "Whether it is the widespread availability of pornography, including child pornography, the disclosure of sensitive personal information to millions of people, the exposure to pernicious computer worms and viruses or the threat of legal liability for copyright infringement, P2P file-sharing software has proven costly and dangerous for many consumers."
In light of recent efforts by the Recording Industry Association of America and the Motion Picture Association of America to defend copyright privileges through court action, such a statement from industry players might be expected. The fact, however, that such a statement could come from state prosecutors is deeply troubling, as it might signal attempts to control content on the World Wide Web and eventually extend that control to the Net itself.
Technology creates more opportunities than it destroys. The private sector should determine how to turn those opportunities into profits. It is wrong for the public sector to cripple innovations because they cause short-term disruptions.
The letter goes on to say: "It is widely recognized that P2P file-sharing software currently is used almost exclusively to disseminate pornography and to illegally trade copyrighted music, movies, software and video games. File-sharing software also is increasingly becoming a means to disseminate computer worms and viruses. ... A failure to prominently and adequately warn consumers, particularly when you advertise and sell paid versions of your software, could constitute, at the very least, a deceptive trade practice."
Government prosecutors have largely kept to the sidelines as entertainment-industry groups have sued the networks and individual users for copyright infringement. They should remain on the sidelines. The argument outlined above could be used against Web browsers and servers, instant messaging, security applications, e-mail and, finally, the Net. Such a premise is as potentially damaging as the Digital Millennium Copyright Act, state Super-DMCA legislation and the old proposed Hollings bill.
The principles discussed in the Lockyer letter could also be interpreted as an application of product liability and consumer protection law similar to that applied against the tobacco industry. But there is such a vast difference between tobacco products and file-sharing software that its beyond serious discussion. If the doctrine of the letter is accepted, almost anything could be declared illegal. Lockyer and others should pull back before proceeding down a path thats paved with unworkable laws and costly lawsuits.
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