While record companies scramble to find new ways to foil the piracy of copyrighted material, federal legislation is pending that would greatly aid them -- bills that their opponents insist will encourage vigilantism on the Internet.
Last month Rep. Howard Berman (D-Calif.) introduced a bill to address copyright infringement on publicly accessible computer file-sharing networks such as Gnutella, Morpheus and Kazaa.
The bill would allow copyright holders -- anyone from songwriters to photographers to needlepoint designers -- to employ technological tools designed to thwart those who download and distribute creative works through computer file-sharing.
Meanwhile, Sen. Joseph Biden (D-Del.), along with other lawmakers, wrote a letter to Attorney General John Ashcroft urging him to ratchet up criminal penalties for digital piracy. And in April, Biden introduced the Anticounterfeiting Amendments of 2002, which would "prevent and punish counterfeiting and copyright piracy." The bill would make it illegal to "traffic in counterfeit labels, illicit physical authentication features, or counterfeit documentation or packaging."
The Senate Judiciary Committee deleted the word "physical" from the bill, a move that extends criminal penalties to those who alter digital watermarks on software in order to access copyrighted songs or movies.
And in March Sen. Ernest Hollings (D-S.C.) introduced the Consumer Broadband and Digital Television Promotion Act, which would require the manufacturer of "digital media devices" that can reproduce copyrighted works to include "government-approved security standards." The standards have not been agreed upon.
The Hollings bill is currently in the Senate Commerce Committee. No action has been taken on the Berman bill. The Biden legislation is up for consideration by the Senate.
The proposed legislation, and Berman's bill in particular, is adding an even greater rift to an already large digital debate.
On one side are the recording industry and other copyright holders, who say it's high time they were armed against what they see as the wholesale rip-off of their material.
On the other side are technology associations, consumer organizations and civil libertarians, who counter that the bill augurs an invasion of privacy, permitting anyone with a grudge to hack into personal computers and providing little or no redress for those who incur damages as a result. Moreover, they argue, the government should not be charged with striking a balance between consumers and copyright holders.
The privacy argument, not surprisingly, doesn't fly with the recording industry, which says that people who grant other computer users easy access to their files shouldn't expect privacy.
Says Hilary Rosen, chairwoman of the Recording Industry Association of America: "It would be like if I were standing on Connecticut Avenue with a sign and then complaining if someone read it that it was an invasion of my privacy. People are opening up their computers by choice.
"We're not jumping into people's computers. There is nothing in that bill that allows you to go into a person's computer physically. It just allows you to manipulate files that are on the network."
That, according to digital technology experts, amounts to hacking.
Robin Gross, staff attorney for the "cyber-liberties" Electronic Frontier Foundation, says Rosen "is using definitions for hacking loosely. She's not physically breaking into your physical computer, but that does not mean that she can't interfere with your ability to talk to other computers."
According to Gross, Berman's bill in effect would let copyright holders attack computer files, tying up the network by "spoofing" with fake or empty files or crowding the system with multiple requests, disrupting Internet traffic. It is, she says, the equivalent of allowing anyone with a checking account to rob a bank because he feels the bank has overcharged him.
"This is more power than we give to law enforcement to go after terrorists," Gross says. "This bill proposes to give this kind of power to Hollywood. . . . You're not allowed to go and destroy someone's property because you feel they've done harm to you."
It is unclear what will happen if the bill passes. The language of the bill is vague -- purposefully so, according to Berman press secretary Gene Smith. It does not specify what a copyright holder may do to battle piracy.
"Technology is a dynamic thing," Smith said. "Something we might not know about today might be in our hands tomorrow."
What is needed, said Jonathan Potter, executive director of the Digital Media Association, is a middle ground: Consumers need to be educated about intellectual property, that stealing someone's art is the same as stealing someone's jewelry. And copyright holders need to find a way to protect their property without alienating consumers or trampling on civil liberties.
"Should the consumer be nervous about someone sniffing around in your hard drive? Absolutely," Potter said. "If you can't kick down my door to see what's in my living room, can you kick down my door to see what's on my hard drive?"