File-Swappers Give Thanks for a Turkey of a Law

by on October 1, 2004 · 6 comments

On Sept. 21, 2004, California’s Governor Schwarzenegger signed Cal. Penal Code § 653aa [PDF format]. That new law criminalizes the unauthorized electronic distribution of a sound recording or audiovisual work by a sender who fails to disclose his or her valid email address and the title of the work. If laws were meals, this one would rank with Thanksgiving Dinner at the Salvation Army: A largely symbolic gesture, well-intended but poorly executed, to temporarily satiate the beggars at the door. In other words, California lawmakers have given a big fat turkey to the Hollywood lobby.


Section 653aa(a) says:

Any person, except a minor, who is located in California, who, knowing that a particular recording or audiovisual work is commercial, knowingly electronically disseminates all or substantially all of that commercial recording or audiovisual work to more than 10 other people without disclosing his or her e-mail address, and the title of the recording or audiovisual work is punishable by a fine not exceeding two thousand five hundred dollars ($2,500), imprisonment in a county jail for a period not exceeding one year, or by both that find and imprisonment.

Minors get separate and more lenient treatment in § (b) of the statute. Some exceptions and definitions follow thereafter.

What exactly does this law achieve? It certainly allows lawmakers to tell the Hollywood lobby that they have done something to combat peer-to-peer file swapping. Prosecutors may even catch a few defendants under § 653aa. They will not a lot, however, and they will probably never catch any half-way clever ones.

Two problems limit the utility of § 653aa. First, although § (a) requires that a would-be violator fail to disclose the “title” of the work, the act does not define that term. The goal, presumably, is to encourage the use of works’ titles so as to make it easier to police peer-to-peer networks. But as the problems of policing the Napster network demonstrated, most works can be and are described by many different titles. An MP3 of Mark Knofler’s, “Sailing to Philadelphia,” might thus be swapped under the title, “MK’s Sailing,” “Sailing to Philly,” “Saling to Philadelphia,” or so forth. Any of those many permutations would arguably satisfy the title requirement of § 653aa, yet their multiplicity would hardly make it easy to automatically screen a network for the unauthorized dissemination of files.

Second, the act’s definition of “e-mail address,” in § (g)(5), permits the unauthorized dissemination of files from effectively untraceable accounts. Even an address like “1fi7s8@anon.ru” could qualify as “a valid e-mail address, or the valid e-mail address of the holder of the account from which the dissemination took place.” If you used that sort of account to disseminate files, you attach some sort of “title” and escape the reach of § 653aa.

File swapping may or may not pose a dire threat to Hollywood. Section 653aa looks very unlikely to change that. The act does have one saving grace, however. Section (i) stipulates that it “shall become inoperative on January 1, 2010, unless a later enacted statute deletes or extends that date.”

[Cross-posted to Agoraphilia.]

[NB: I substantively edited this post in response to Michael Yuri's correction, which he offered in the comments below. I've updated the Agoraphilila post similarly.]

  • Michael Yuri

    I think you’re misreading the statute:

    “… without disclosing his or her e-mail address, and the title of the recording or audiovisual work …”

    You seem to be reading this as “(without disclosing email address) and (without disclosing title)”, but I think the more natural reading is ” without (disclosing both email address and title)”. In other words, anyone who fails to disclose either is punishable.

    Here’s an analogous example:

    “Any student who doesn’t have his or her homework and the course textbook is unprepared for class.” I think the only reasonable interpretation of this is that forgetting either the homework or the textbook is sufficient to make one unprepared.

    I’m also doubtful about your interpretation of the title requirement. The works in question certainly have official titles — I don’t see why this statute wouldn’t be interpreted as requiring that official title to be listed.

    I would think that “Sailing to Philadelphia”, “(Mark Knopfler) Sailing to Philadelphia”, or “Sailing to Philadelphia – Mark Knopfler” and reasonable misspellings would probably be fine, but “MK’s Sailing” or “Sailing to Philly” might not be.

    I think the bigger concern is how one can “disclose” an email address when distributing a file over a peer-to-peer network. According to the statute: “(6) Ã?¢â?¬Ã??Disclosing’ means providing information in, attached to, or discernable or available in or through the process of disseminating or obtaining a commercial recording or audiovisual work in a manner that is accessible by any person engaged in disseminating or receiving the commercial recording or audiovisual work.”

    I wonder whether a textfile titled “MyEmail.txt” located in your Upload directory would be sufficient to satisfy this requirement – of course, this would only apply to those networks that allow users to browse other users’ shared files. Otherwise, it seems that the only alternative on most P2P networks would be to rename all of your shared files to include your email address. This is a pretty unworkable solution, especially considering that every person who downloads it would have to rename the file with their own address before resharing it.

    On certain P2P networks (bittorrent, for example) it seems impossible to meet the email address requirement given the way the network functions.

    In short, it seems to me that these penalties would apply to pretty much every person sharing commercial audiovisual works on a peer-to-peer network.

  • Michael Yuri

    I think you’re misreading the statute:

    “… without disclosing his or her e-mail address, and the title of the recording or audiovisual work …”

    You seem to be reading this as “(without disclosing email address) and (without disclosing title)”, but I think the more natural reading is ” without (disclosing both email address and title)”. In other words, anyone who fails to disclose either is punishable.

    Here’s an analogous example:

    “Any student who doesn’t have his or her homework and the course textbook is unprepared for class.” I think the only reasonable interpretation of this is that forgetting either the homework or the textbook is sufficient to make one unprepared.

    I’m also doubtful about your interpretation of the title requirement. The works in question certainly have official titles — I don’t see why this statute wouldn’t be interpreted as requiring that official title to be listed.

    I would think that “Sailing to Philadelphia”, “(Mark Knopfler) Sailing to Philadelphia”, or “Sailing to Philadelphia – Mark Knopfler” and reasonable misspellings would probably be fine, but “MK’s Sailing” or “Sailing to Philly” might not be.

    I think the bigger concern is how one can “disclose” an email address when distributing a file over a peer-to-peer network. According to the statute: “(6) Ã?¢â?¬Ã??Disclosing’ means providing information in, attached to, or discernable or available in or through the process of disseminating or obtaining a commercial recording or audiovisual work in a manner that is accessible by any person engaged in disseminating or receiving the commercial recording or audiovisual work.”

    I wonder whether a textfile titled “MyEmail.txt” located in your Upload directory would be sufficient to satisfy this requirement – of course, this would only apply to those networks that allow users to browse other users’ shared files. Otherwise, it seems that the only alternative on most P2P networks would be to rename all of your shared files to include your email address. This is a pretty unworkable solution, especially considering that every person who downloads it would have to rename the file with their own address before resharing it.

    On certain P2P networks (bittorrent, for example) it seems impossible to meet the email address requirement given the way the network functions.

    In short, it seems to me that these penalties would apply to pretty much every person sharing commercial audiovisual works on a peer-to-peer network.

  • http://www.tomwbell.com Tom W. Bell

    I think you’re right about the “email . . . and . . . title” bit, Michael. Thanks for the correction. You don’t convince me to change my views about the definitions of those two items, however. I still think they can be very easily satisfied, thus leaving the statute largely useless. But I will concede that it all depends on how courts interpret the law.

  • http://www.tomwbell.com Tom W. Bell

    I think you’re right about the “email . . . and . . . title” bit, Michael. Thanks for the correction. You don’t convince me to change my views about the definitions of those two items, however. I still think they can be very easily satisfied, thus leaving the statute largely useless. But I will concede that it all depends on how courts interpret the law.

  • Stephen

    This law strikes me as having the same effect as hate crime legislation (sans the think-crime effect, of course): adding punishment to an already punishable offense. To be charged under this law, you have to be caught trading copywritten material. Anybody punished as a result of this law would presumably have been punished anyway without it. So exactly HOW is this supposed to curb file trading?

  • Stephen

    This law strikes me as having the same effect as hate crime legislation (sans the think-crime effect, of course): adding punishment to an already punishable offense. To be charged under this law, you have to be caught trading copywritten material. Anybody punished as a result of this law would presumably have been punished anyway without it. So exactly HOW is this supposed to curb file trading?

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