File-Swappers Give Thanks for a Turkey of a Law

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.]

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