P2P in the Legal Crosshairs

Is California's attorney general preparing a legislative assault on peer-to-peer file sharing?

A draft letter purportedly circulated by Bill Lockyer to fellow state attorneys general characterizes P2P software as a "dangerous product" and describes the failure of technology makers to warn consumers of those dangers as a deceptive trade practice.

The draft document, dated Feb. 26, was obtained by Wired News on March 12. Distribution of a revised version to other attorneys general is said to coincide with the spring meeting in Washington, D.C., March 15 to 17 of the National Association of Attorneys General, of which Lockyer is president. The attorney general's office plans to release a final version publicly within the coming month, after obtaining additional signatories.

"We do not wish to make any comment at this time on any document that the office of the attorney general may or may not be developing," said Tom Dresslar, spokesman for Bill Lockyer in Sacramento. "But we remain concerned about the potential dangers posed to the public by peer-to-peer file-sharing technology."

However, the metadata associated with the Microsoft Word document indicates it was either drafted or reviewed by a senior vice president of the Motion Picture Association of America. According to this metadata (automatically generated by the Word application), the document's author or editor is "stevensonv." (The metadata of a document is viewable through the File menu under Properties.)

Sources tell Wired News that the draft letter's authorship is attributed to Vans Stevenson, the MPAA's senior vice president for state legislative affairs. MPAA representatives have issued similar criticisms of P2P technology in the past. Stevenson could not be reached for comment.

The document proposes an unprecedented legal theory with regard to peer-to-peer file-sharing services. If P2P software can be used to violate law, the argument goes, its makers should be obligated to incorporate a warning on the product or face liability for deceptive trade practices.

Here is an excerpt:

As a P2P software developer and distributor, we believe you have the ability and responsibility to better educate consumers about these known risks, and to design your software in a manner that minimizes the risks. We view with grave concern reports that at least some P2P software developers may be adding features deliberately designed to hinder law enforcement in its prosecution of crimes using P2P software. Companies that engage in such conduct, and fail to meet the important responsibilities referenced above, harm the interests of consumers in our States.

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. Nevertheless, your company still does little to warn consumers about the legal and personal risks they face when they use your software to "share" copyrighted music, movies and computer software. 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.

In the wake of recent efforts by both the RIAA and MPAA to defend copyright concerns through court action, such a statement from the attorney general would seem to herald a new phase of coordinated efforts by government and private industry to prevent crime through peer-to-peer networks -- and crack down on copyright infringement in the process.

Despite pressure from entertainment industry trade groups, the Department of Justice has shown relative restraint with regard to P2P until now.

"It's one thing for the MPAA to come up with a theory like that," said Electronic Frontier Foundation senior intellectual property attorney Fred von Lohmann, "but it would be quite another for a state attorney general to adopt it. The principle has no limit -- you can use Internet Explorer to violate the law or unintentionally access pornography, so does he want to suggest that Microsoft is also breaking the law? Why stop at the Internet -- should Ford be held liable for failing to warn drivers that exceeding the speed limit will expose them to citations?"

"It's deeply troubling that an industry as monopolistic as this can manipulate the public via top law enforcement officials, as evidenced in this letter," said Grokster spokesperson Hal Bringman. "More than 60 million P2P users, many of whom are voters, will not tolerate this kind of behavior."

Grokster is one of the five companies in the Washington, D.C.-based peer-to-peer technology trade association P2P United. Additional members are Bearshare, Blubster, eDonkey and Morpheus.

In listing the numerous potential hazards associated with P2P, the draft echoes claims previously made by critics of the popular software, including the MPAA:

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.

Defenders of file-sharing technology have responded to such allegations in the past with the argument that e-mail clients, Web browsers and instant-message programs can also be ill-used. P2P supporters maintain that the entertainment industry is trying to gain support for its attempt to stamp out unauthorized distribution of copyrighted material by characterizing the technology as disproportionately dangerous.

Adam Eisgrau, Washington, D.C.-based lobbyist for P2P United, says the software group will hand-deliver a letter to the attorney general on March 15 at the NAAG meeting. The association's letter requests factual clarification of whether the leaked letter is a product of Lockyer's office, and if so, the group asks to be included in any process leading to a final version.

"The draft attributed to the attorney general's office contains many significant factual errors, eyebrow-raising metadata, and articulates a very broad expansion in several important respects of product liability and consumer protection law that would have enormous effects," Eisgrau said. "We remain hopeful that the attorney general will say this is not a document of his, or a document in its present form that he intends to send. If any groups are involved in advising him, we should be among them."

But if the conclusion of the leaked draft is an accurate reflection of the attorney general's intent, P2P software makers should brace themselves for what could be a significant legal offensive in the immediate future:

Over the coming months, we will begin focusing more attention on the risks P2P software programs pose to consumers in our States. We hope this inquiry will encourage you to take proactive, concrete and meaningful steps to address the problems we have raised in this letter.... We take seriously our responsibility to protect consumers and ensure that the laws of our States are respected. In the future, we will not hesitate to take whatever actions we deem necessary to ensure that you fulfill your duties as a responsible corporate citizen.

If the MPAA was directly involved in drafting or revising the California attorney general's letter, criticism is likely to come not only from P2P fans. Others might be concerned about the propriety of a commercial organization effectively placing words in the mouth of an elected official.