LOS ANGELES—Companies behind software used by millions to
swap music, movies and other files online could be the target of
warnings or even legal action by U.S. attorneys general, according
to a letter apparently drafted by California Attorney General Bill
Lockyer.
The letter, which was cited in published reports Monday and
circulated by a trade group representing file-sharing software
firms, warns that the states' top law enforcement officers have set
their cross-hairs on the purveyors of so-called peer-to-peer
programs.
The added state scrutiny could spell potential trouble for the
file-sharing firms, who have thus far survived the sort of legal
challenges from the entertainment industry that sank the original
Napster service in 2001.
"Over the coming months, we will begin focusing more attention
on the risks P2P software programs pose to consumers in our
states," the letter said. "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."
Outlined in the letter are concerns that the software companies
have not done enough to curtail the unauthorized distribution of
movies, music, software, video games and pornography. The letter
also questions whether the firms have made it clear to users that
they could be held liable for sharing copyright works, or that they
could contract a computer virus or be susceptible to identity theft
by using their 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," the letter said.
Lockyer spokesman Tom Dresslar did not confirm or deny the draft
of the letter originated in his office. But he acknowledged that
Lockyer, who is the president of the National Association of
Attorneys General, has worked on the issue with his counterparts.
"The attorney general is concerned about several issues related
to P2P file-sharing," Dresslar said. "And he is working with his
colleagues in other states to address those issues."
P2P United, which represents several file-sharing software
distributors, including StreamCast, the firm behind the Morpheus
program, responded to Lockyer's purported draft with an offer to
brief him on the industry.
"Obviously, we are concerned that misinformation and partial
information could rapidly escalate into state-based proceedings or
activities," said Adam Eisgrau, the trade group's executive
director.
In his letter, Eisgrau also pointed out that formatting
information saved in the draft letter suggested that Vans
Stevenson, a senior executive with the Motion Picture Association
of America, had a hand in it.
Stevenson denied writing the letter, but said Lockyer sought
input from the MPAA about a month ago.
"We have been talking to state legislators, attorneys general,
quite frankly anyone who will listen to us about our concerns on
P2P file copying and file stealing," Stevenson said Monday. "If
the letter gets sent, we obviously support it, if it talks about
the stealing of motion pictures."
Dresslar said Lockyer often solicits information from "affected
parties and experts, and it will be no different on this issue."
Fred von Lohmann, a senior intellectual property attorney for
the Electronic Frontier Foundation, took issue with part of the
draft that suggests software firms might be liable for not warning
the public about the risks of using their product illegally.
"That's a pretty remarkable view that has implications for all
kinds of products, not just P2P," von Lohmann said. "The makers
of crowbars better take note."
And when it comes to the spread of pornography or viruses, von
Lohmann said, it can be argued both can be found using Internet
browsers or through e-mail.
"Obviously, you could use Web browsers to break the law by
downloading infringing material," he said. "So, it's hard to
credit the allegations in the letter as a legal matter."
The entertainment and computer industry has tried to stem piracy
by making CDs and DVDs harder to duplicate. But the rise of free
file-sharing networks on the Internet the past five years has made
it easy for millions of individuals to distribute songs, movies and
software worldwide.
The companies have tried civil litigation against firms who
enable online file-sharing, and the recording industry last year
launched an ongoing wave of lawsuits against individual
file-sharers.
Copyright © 2004 Ziff Davis Media Inc. All Rights Reserved. Originally appearing in eWEEK.
