The state of California has long been known for innovative public policies
and laws. Sometimes, the state can be truly visionary in its policies,
Senator Kevin Murray, from Los Angeles, has put forward a
proposed law which would attack the dreaded scourge of peer-to-peer
file sharing networks. In particular, the proposed law reads:
Any person or entity that sells, offers for sale, advertises,
distributes, disseminates, provides, or otherwise makes available
peer-to-peer file sharing software that enables its user to
electronically disseminate commercial recordings or audiovisual
works via the Internet or any other digital network, and who fails
to exercise reasonable care in preventing use of that software to
commit an unlawful act with respect to a commercial recording or
audiovisual work... is punishable, in addition to any other penalty or
fine imposed, by a fine not exceeding two thousand five hundred
dollars ($2,500), imprisonment in a county jail for a period not to
exceed one year, or by both that fine and imprisonment.
Of course, "peer-to-peer file sharing software" is a vague term, so
Sen. Murray makes it even more so:
As used in this section, "peer-to-peer file sharing software" means
software that once installed and launched, enables the user to
connect his or her computer to a network of other computers on
which the users of these computers have made available recording or
audiovisual works for electronic dissemination to other users who
are connected to the network.
It does not require a particularly expansive reading of that language to
conclude that, say, a Linux distribution with an FTP client or web browser
meets that definition. The law does not address what "reasonable care"
means, but, presumably, "no attempt whatsoever to prevent the distribution
of proprietary materials" would not make the grade. The paranoid among us
might well see an attempt to outlaw free software here....except for the
little problem that this law would be equally applicable
to any general-purpose, proprietary operating system.
This bill will most probably encounter a rough road, and, with luck, will
not be passed. It is, however, another result of a view which is being
encouraged by the entertainment industry (and others): software is an inherently
dangerous tool which must be heavily regulated. Manufacturers and
distributors of cooking knives, hand guns, gasoline, automobiles, etc. are
not required to design their products in such a way as to prevent the
commission of the obvious crimes which those products enable. But software
is a riskier item, and cannot be trusted.
The free software community values the freedom it has: if we have a
particular need, the only thing that stands between us and satisfying that
need is the requisite hacking time. Increasingly, however, we are hearing
that our code is illegal in some part of the world or other, regardless of
its intent or legitimate uses. This problem is only likely to get worse as
the Powers That Be try to get a handle on the strong, but relatively
uncontrolled free software world.
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