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Senator OK with zapping pirates' PCs

Sen. Orrin Hatch retreats a bit from his suggestion that copyright holders should be able to remotely destroy the PCs of music pirates, but he says the proposal is still alive.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
3 min read
Sen. Orrin Hatch on Wednesday backpedaled slightly from his suggestion a day earlier that copyright holders should be allowed to remotely destroy the computers of music pirates.

In a brief press release, Hatch, R-Utah, chairman of the Senate Judiciary Committee, said that he suggested the idea at Tuesday's hearing

"I think that industry is not doing enough to help us find effective ways to stop people from using computers to steal copyrighted, personal or sensitive materials," he said.

But Hatch noted that his proposed law, which would permit wide-scale destruction of computers used to download illicit music and other files from peer-to-peer networks, was still on the table. "I do not favor extreme remedies--unless no moderate remedies can be found," Hatch said in the statement.

Because Hatch oversees the Senate committee responsible for writing criminal laws, and because he has taken a personal interest in copyright legislation--he is himself an amateur songwriter--his suggestion raised eyebrows and some alarm in Washington. It represents the most radical proposal to date in Congress, going even further than a bill introduced last year by Rep. Howard Berman, D-Calif., that would have permitted copyright holders to disable or block a P2P node that they suspected of distributing their intellectual property without permission.

During a hearing that Hatch convened Tuesday on the "national security risks" of P2P networks, he asked a witness, "Can you destroy their set in their home?" referring to a home PC.

Randy Saaf of MediaDefender, a secretive Los Angeles company that works with the recording industry to disrupt P2P networks, replied by saying "nobody" is interested in that approach.

"I am," Hatch said. "I'm interested in doing that. That may be the only way you can teach someone about copyright...That would be the ultimate way of making sure" no more copyright is infringed.

Hatch suggested that Congress would have to amend laws restricting computer intrusions. "If it's the only way you can do it," Hatch said, "then I'm all for destroying their machines...but you'd have to pass legislation permitting that, it seems to me, before someone could really do that with any degree of assurance that they're doing something that might be proper."

Orin Kerr, a former Justice Department prosecutor who is an associate professor at George Washington University law school, says Hatch's idea "would not only be a bad idea, but an extremely bad idea. The cure would be worse than the disease."

If Hatch's proposal were to be written into law, Kerr said, it would have to amend the Computer Fraud and Abuse Act, a federal computer crime statute. "It would give an exception to copyright owners who are taking reasonable steps to disable acts of copyright infringement," Kerr said. "The trick is that all of these (disruption or disabling) offenses are crimes under the Computer Fraud and Abuse Act."

In the past, Hatch has chosen sides carefully in copyright tussles. He commended the Justice Department for arresting Dmitri Sklyarov, a Russian programmer charged with criminal violations of the Digital Millennium Copyright Act, and he claimed in 1999 that the controversial law "laid the cornerstone for a rich and more vibrant Internet." But a year later, Hatch split with the Clinton administration when it sided with the record labels against Napster, and a former top Hatch aide, Manus Cooney, left to become Napster's chief lobbyist.

Hatch's proposal for legislation left public interest groups puzzled and alarmed. Mike Godwin, an attorney at Public Knowledge, said, "Much as I respect Sen. Hatch, he is virtually alone in believing that the destruction of computers could even be a last-ditch remedy for copyright infringement."

"I wish he hadn't said that," Godwin said. "And over time I suspect he'll wish he hadn't said that either."

On Wednesday, Hatch came under attack for allegedly being a copyright pirate himself. His hatch.senate.gov Web site's menus use JavaScript code created by the U.K. company Milonic Solutions. Milonic Solutions charges between $35 and $900 for the right to obtain a license number for its JavaScript menu, but Hatch's site does not include a license number. Instead, this comment appears in the site's HTML code: "i am the license for the menu (duh)."

A Hatch representative did not immediately respond to a request for comment.