COPYCENSE

Once the exclusive domain of federal prosecutors, strategies aimed at shutting down peer-to-peer networks are now being studied by state attorneys general, according to a March 15 story published in News.com.

The states’ possible involvement in the entertainment industries’ fight against the file sharing networks came to light after a Feb. 25 letter drafted for California Attorney General Bill Lockyer was discovered. The letter, which was leaked to peer-to-peer networking companies, "demands that peer-to-peer companies do a better job of protecting customers from numerous ‘known risks’ of their products and warns them against developing features that would hinder police from pursuing criminals such as copyright infringers," according to the News.com report.

By using such language, the states may be trying to portray peer-to-peer networking companies as manufacturers of defective or potentially dangerous products. If classified in such a manner, file sharing products would have to bear extensive warning labels, and aggrieved copyright owners may be able to win damages from the products’ manufacturers under state product liability statutes and federal copyright infringement laws.

In addition to being home to a vast number of entertainment companies whose intellectual property may be illegally traded on peer-to-peer networks such as Kazaa, California also has some of the most stringent product liability laws in the country.

Officials from the Motion Picture Association appear to been involved in drafting a portion of the letter, the News.com report continues. "[It] should ‘come as no surprise to anybody that we talked to attorneys general, particularly the chief law enforcement officer in California, because of the impact that illegal file copying and stealing has on motion pictures and sound-recording industries, the lifeblood of California,’" MPAA Vice President for state legislative affairs Van Stevenson said to News.com.

If the states were to get involved in copyright issues by investigating and bringing legal action against file sharing companies, it would mark the second time over the past decade that the entertainment industries sought to use or affect state law in order to enforce or influence copyright law, an area governed by federal statute. Previously, a coalition led in part by the entertainment industries sought to pass the Uniform Computer Information Transactions Act (UCITA) in all 50 states.

If passed as a uniform law, UCITA would have created new rules for software licensing, online access and other transactions in computer information that would have been detrimental to consumers’ rights. In the end, most states’ attorneys general opposed UCITA, as did a coalition that included library associations, law professors, and consumer advocacy groups.

To date, UCITA has been implemented as law only in Maryland and Virginia.

Declan McCullagh, et al. P2P Faces New Legal Scrutiny from States. News.com. March 15, 2004.