Debating the Proposed Peer-to-Peer Piracy Prevention Act: Should Copyright Owners be Permitted to Disrupt Illegal File Trading Over Peer-to-Peer Networks?

June 16, 2012

On July 25, 2002, Representative Howard Berman (DCalif.) introduced a bill that would protect copyright owners from legal action stemming from “blocking, diverting or otherwise impairing the unauthorized distribution, display, performance, or reproduction of his or her copyrighted work on a publicly accessible peer-to-peer (“P2P”) file trading network.”2 The bill, known as H.R. 5211, has been greeted by a swirl of controversy in the Internet community.3 This article explores the potential pitfalls of enacting H.R. 5211, and discusses possible alternatives to the bill.
Part I of this article examines the technology of P2P networks and the copyright infringement problems they present for copyright owners. Part II is a thorough explanation of H.R. 5211, with a focus on the heart of the bill—the safe harbor provision and its exceptions. Part III examines the many ambiguities and possible difficulties presented by H.R. 5211, and argues that its enforcement may go beyond the scope that Representative Berman intended. Part IV provides three feasible alternatives to H.R. 5211 for copyright owners that could be combined to protect their works. Finally, Part V concludes that although Representative Berman’s motivations in proposing the bill may have been sound, it is necessary to explore these alternatives before considering enacting H.R. 5211.