Adds provisions relating to computer file-sharing applications.
Ayes (8): Zeldin, Ball, Fuschillo, Little, Marcellino, O'Mara, Hassell-Thompson, Huntley
Ayes W/R (1): Squadron
Excused (1): Adams
Ayes (62): Adams, Addabbo, Alesi, Avella, Ball, Bonacic, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Duane, Espaillat, Farley, Flanagan, Fuschillo, Gallivan, Gianaris, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Huntley, Johnson, Kennedy, Klein, Krueger, Kruger, Lanza, Larkin, LaValle, Libous, Little, Marcellino, Martins, Maziarz, McDonald, Montgomery, Nozzolio, O'Mara, Oppenheimer, Parker, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Saland, Sampson, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Valesky, Young, Zeldin
Ayes (9): Zeldin, Ball, Fuschillo, Little, Marcellino, O'Mara, Hassell-Thompson, Huntley, Squadron
Ayes W/R (1): Adams
Ayes (29): DeFrancisco, Johnson, Alesi, Bonacic, Farley, Flanagan, Fuschillo, Golden, Griffo, Lanza, Larkin, LaValle, Little, Marcellino, Nozzolio, Robach, Saland, Seward, Young, Breslin, Dilan, Gianaris, Montgomery, Oppenheimer, Peralta, Rivera, Stavisky, Stewart-Cousins, Squadron
Ayes W/R (3): Krueger, Duane, Perkins
Nays (1): Parker
Excused (2): Hannon, Diaz
TITLE OF BILL: An act to amend the general business law, in relation to file-sharing applications
PURPOSE: This legislation would strengthen current regulations relating to file-sharing applications.
SUMMARY OF PROVISIONS: This legislation adds a new section to the general business law, strengthening regulations relating to covered file sharing programs, which are defined within.
Under these new regulations, a person or entity that is not an owner or authorized user of a computer is prohibited from installing or causing a covered file-sharing program to be installed onto the computer without first providing clear notice to the owner or authorized user of the computer that their files may be made available to the public. Such non-owners/non-authorized users much also obtain consent from the owner or authorized user to install the program. Further, this bill requires affirmative steps to be taken by the owner/authorized user to activate any feature on the program that will make files on that computer available to the public.
Also, under the provisions of this legislation, non-owners and non-authorized users of a computer may also not directly or indirectly cause files to be stored on that computer, which, in turn, could be searched and copied by third parties unknown to the owner. In instances where the owner does authorize their files to be shared, the consumer must still be given the chance to affirmatively select which particular files would be made available.
Furthermore, this bill prohibits a person or entity that is not an owner or authorized user of a computer from preventing reasonable efforts to disable or remove, or to block the installation of execution of, a covered file-sharing program on the computer.
This legislation also authorized the attorney general to bring civil action against any seller or reseller who violates and provision of this section.
Section 2. Effective date.
JUSTIFICATION: Peer-to-peer file sharing applications (P2P) allow computer users to easily connect to each other to "share" computer files and content.
While P2P can be used for legitimate purposes, it has been predominantly used to illegally infringe millions of copyrighted works. Many of these networks also contain child pornography. While P2P applications allow users to search for content on others' computers, many may not be aware that P2P also may be sharing with
the Public personal and/or confidential files from their own computers. By passing this legislation we will provide our authorities with the power to take the action to protect our citizens that federal authorities are often unable - or unwilling - to take.
LEGISLATIVE HISTORY: A.11252 of 2010: Referred to Consumer Protections
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This act shall take effect on the ninetieth day after it shall become law.
STATE OF NEW YORK ________________________________________________________________________ 4435--A 2011-2012 Regular Sessions IN SENATE April 5, 2011 ___________Introduced by Sen. ROBACH -- read twice and ordered printed, and when printed to be committed to the Committee on Consumer Protection -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the general business law, in relation to file-sharing applications THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The general business law is amended by adding a new section 349-e to read as follows: S 349-E. FILE-SHARING APPLICATIONS. 1. FOR THE PURPOSE OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS: (A) "COVERED FILE-SHARING PROGRAM" MEANS A COMPUTER PROGRAM, APPLICA- TION, OR SOFTWARE THAT IS MARKETED OR DISTRIBUTED TO THE PUBLIC AND THAT ENABLES: (I) A FILE OR FILES ON THE COMPUTER ON WHICH SUCH PROGRAM, APPLICATION, OR SOFTWARE IS INSTALLED TO BE DESIGNATED AS AVAILABLE FOR SEARCHING BY AND COPYING TO ONE OR MORE OTHER COMPUTERS; (II) THE TRANS- MISSION OF SUCH DESIGNATED FILES DIRECTLY TO ONE OR MORE OTHER COMPUT- ERS; AND (III) A USER TO REQUEST THE TRANSMISSION OF SUCH DESIGNATED FILES DIRECTLY FROM ONE OR MORE OTHER COMPUTERS. COVERED FILE-SHARING PROGRAM DOES NOT MEAN A PROGRAM, APPLICATION OR SOFTWARE DESIGNED PRIMA- RILY TO OPERATE AS A SERVER THAT IS ACCESSIBLE OVER THE INTERNET USING THE INTERNET DOMAIN NAME SYSTEM, TO TRANSMIT OR RECEIVE EMAIL MESSAGES, INSTANT MESSAGING, REAL-TIME AUDIO OR VIDEO COMMUNICATIONS, OR REAL-TIME VOICE COMMUNICATIONS, OR TO PROVIDE NETWORK OR COMPUTER SECURITY, NETWORK MANAGEMENT, HOSTING AND BACKUP SERVICES, MAINTENANCE, DIAGNOS- TICS, TECHNICAL SUPPORT OR REPAIR, OR TO DETECT OR PREVENT FRAUDULENT ACTIVITIES. (B) "COVERED ENTITY" MEANS: (I) A PERSON, PARTNERSHIP, FIRM, ASSOCI- ATION, OR CORPORATION THAT DEVELOPS A COVERED FILE-SHARING PROGRAM; AND (II) A PERSON, PARTNERSHIP, FIRM, ASSOCIATION, OR CORPORATION THATEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD05251-04-1 S. 4435--A 2
DISSEMINATES OR DISTRIBUTES A COVERED FILE-SHARING PROGRAM AND IS OWNED OR OPERATED BY THE PERSON, PARTNERSHIP, FIRM, ASSOCIATION, OR CORPO- RATION THAT DEVELOPED THE COVERED FILE-SHARING PROGRAM. 2. (A) IT SHALL BE UNLAWFUL FOR ANY COVERED ENTITY TO INSTALL ON ANY COMPUTER, OTHER THAN A COMPUTER OWNED BY SUCH ENTITY, OR OFFER OR MAKE AVAILABLE FOR INSTALLATION OR DOWNLOAD ON ANY COMPUTER A COVERED FILE-SHARING PROGRAM UNLESS SUCH PROGRAM: (I) IMMEDIATELY PRIOR TO THE INSTALLATION OR DOWNLOADING OF SUCH PROGRAM: (A) PROVIDES CLEAR AND CONSPICUOUS NOTICE THAT SUCH PROGRAM ALLOWS FILES ON THE COMPUTER TO BE MADE AVAILABLE FOR SEARCHING BY AND COPYING TO ONE OR MORE OTHER COMPUTERS; AND (B) OBTAINS THE INFORMED CONSENT TO THE INSTALLATION OF SUCH PROGRAM FROM AN OWNER OR AUTHORIZED USER OF THE COMPUTER; AND (II) IMMEDIATELY PRIOR TO INITIAL ACTIVATION OF A FILE-SHARING FUNC- TION OF SUCH PROGRAM: (A) PROVIDES CLEAR AND CONSPICUOUS NOTICE OF WHICH FILES ON THE COMPUTER ARE TO BE MADE AVAILABLE FOR SEARCHING BY AND COPYING TO ANOTH- ER COMPUTER; AND (B) OBTAINS THE INFORMED CONSENT FROM AN OWNER OR AUTHORIZED USER OF THE COMPUTER FOR SUCH FILES TO BE MADE AVAILABLE FOR SEARCHING AND COPY- ING TO ANOTHER COMPUTER. (B) NOTHING IN SUBPARAGRAPH (I) OF PARAGRAPH (A) OF THIS SUBDIVISION SHALL APPLY TO THE INSTALLATION OF A COVERED FILE-SHARING PROGRAM ON A COMPUTER PRIOR TO THE FIRST SALE OF SUCH COMPUTER TO AN END USER, PROVIDED THAT NOTICE IS PROVIDED TO THE END USER WHO FIRST PURCHASES THE COMPUTER THAT SUCH A PROGRAM HAS BEEN INSTALLED ON THE COMPUTER. (C) ONCE THE NOTICE AND CONSENT REQUIREMENTS OF SUBPARAGRAPHS (I) AND (II) OF PARAGRAPH (A) OF THIS SUBDIVISION HAVE BEEN SATISFIED WITH RESPECT TO THE INSTALLATION OR INITIAL ACTIVATION OF A COVERED FILE-SHARING PROGRAM ON A COMPUTER AFTER THE EFFECTIVE DATE OF THIS SECTION, THE NOTICE AND CONSENT REQUIREMENTS OF SUBPARAGRAPHS (I) AND (II) OF PARAGRAPH (A) OF THIS SUBDIVISION SHALL NOT APPLY TO THE INSTAL- LATION OR INITIAL ACTIVATION OF SOFTWARE MODIFICATIONS OR UPGRADES TO A COVERED FILE-SHARING PROGRAM INSTALLED ON THAT PROTECTED COMPUTER AT THE TIME OF THE SOFTWARE MODIFICATIONS OR UPGRADES SO LONG AS THOSE SOFTWARE MODIFICATIONS OR UPGRADES DO NOT: (I) MAKE FILES ON THE COMPUTER AVAILABLE FOR SEARCHING BY AND COPYING TO ONE OR MORE OTHER COMPUTERS THAT WERE NOT ALREADY MADE AVAILABLE BY THE COVERED FILE-SHARING PROGRAM FOR SEARCHING BY AND COPYING TO ONE OR MORE OTHER COMPUTERS; OR (II) ADD TO THE TYPES OR LOCATIONS OF FILES THAT CAN BE MADE AVAILABLE BY THE COVERED FILE-SHARING PROGRAM FOR SEARCHING BY AND COPYING TO ONE OR MORE OTHER COMPUTERS. 3. IT SHALL BE UNLAWFUL FOR ANY COVERED ENTITY TO PREVENT REASONABLE EFFORTS TO DISABLE OR REMOVE, OR TO BLOCK THE INSTALLATION OR EXECUTION OF, A COVERED FILE-SHARING PROGRAM ON ANY COMPUTER. 4. THE PROVISIONS OF SUBDIVISIONS TWO AND THREE OF THIS SECTION SHALL NOT APPLY TO THE STATE OR ITS POLITICAL SUBDIVISIONS. 5. NOTHING IN THIS SECTION SHALL IN ANY WAY LIMIT THE RIGHTS OR REME- DIES THAT ARE OTHERWISE AVAILABLE TO THE CONSUMER OR PURCHASER UNDER ANY OTHER LAW. 6. (A) THE ATTORNEY GENERAL MAY BRING A CIVIL ACTION AGAINST ANY COVERED ENTITY THAT VIOLATES ANY PROVISION OF THIS SECTION TO ENFORCE THE PROVISIONS OF THIS SECTION AND MAY RECOVER ANY OR ALL OF THE FOLLOW- ING:S. 4435--A 3
(I) UP TO ONE HUNDRED THOUSAND DOLLARS FOR A KNOWING PATTERN OR PRAC- TICE OF SUCH VIOLATIONS; AND (II) COSTS AND REASONABLE ATTORNEY'S FEES. (B) WHENEVER THE ATTORNEY GENERAL BELIEVES FROM EVIDENCE SATISFACTORY TO HIM OR HER THAT A KNOWING VIOLATION OF THIS SECTION OR A PATTERN OR PRACTICE OF VIOLATING THIS SECTION HAS OCCURRED OR IS ABOUT TO OCCUR HE OR SHE MAY SEEK AN ORDER TO ENJOIN SUCH VIOLATION. S 2. This act shall take effect on the ninetieth day after it shall have become a law.