A recently introduced California bill would criminalize and impose fines and jail time for developers and distributors of file-sharing software who do not exercise "reasonable care" in preventing use of that software in an unlawful manner. On January 14, California State Senator Kevin Murray introduced Senate Bill 96. Senate Bill 96 seeks to add Section 653.15 to the California Penal Code.
Section 653.15(a) would provide: "Any person or entity that sells, offers for sale, advertises, distributes, disseminates, provides, or otherwise makes available peer-to-peer file sharing software that enables its user to electronically disseminate commercial recordings or audiovisual works via the Internet or any other digital network, and who fails to exercise reasonable care in preventing use of that software to commit an unlawful act with respect to a commercial recording or audiovisual work. .. is punishable, in addition to any other penalty or fine imposed, by a fine not exceeding two thousand five hundred dollars ($2,500), imprisonment in a county jail for a period of not to exceed one year, or by both that fine and imprisonment." (Emphasis added).
It appears that, if multiple commercial recordings or audioworks are involved, monetary penalties and jail time could add up. And yet it is not clear what conduct would or would not constitute the "exercise of reasonable care" in preventing the illegal use of software.
Not surprisingly, peer-to-peer software companies aren't happy with the introduction of this bill. They believe that they should not be responsible for the potentially illegal conduct of others, and they are concerned that this bill, if enacted as law, would stifle technological innovation.
One must wonder whether this law, if enacted, would stand up in court. The "fails to exercise reasonable care" language is tremendously vague in attempting to define criminal conduct.
Moreover, peer-to-peer file sharing certainly is not just a state issue, but instead involves sharing over the Net across state lines. Thus, the legal regulation of peer-to-peer file sharing might be more appropriately addressed at the federal level.
We will watch to see how this bill progresses in the California legislature.
Eric Sinrod is a partner in the San Francisco office of Duane Morris (www.duanemorris.com), where he focuses on litigation matters of various types, including information technology disputes. His column appears Wednesdays at USATODAY.com. His Web site is www.sinrodlaw.com, and he can be reached at . To receive a weekly e-mail link to Mr. Sinrod's columns, please send an e-mail with the word Subscribe in the Subject line to .
Reprinted here with permission from USAToday.com.