senate Bill S4435A

Relates to file-sharing applications

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 05 / Apr / 2011
    • REFERRED TO CONSUMER PROTECTION
  • 12 / May / 2011
    • AMEND AND RECOMMIT TO CONSUMER PROTECTION
  • 12 / May / 2011
    • PRINT NUMBER 4435A
  • 01 / Jun / 2011
    • REPORTED AND COMMITTED TO FINANCE
  • 13 / Jun / 2011
    • COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • 14 / Jun / 2011
    • ORDERED TO THIRD READING CAL.1230
  • 15 / Jun / 2011
    • PASSED SENATE
  • 15 / Jun / 2011
    • DELIVERED TO ASSEMBLY
  • 15 / Jun / 2011
    • REFERRED TO CODES
  • 04 / Jan / 2012
    • DIED IN ASSEMBLY
  • 04 / Jan / 2012
    • RETURNED TO SENATE
  • 04 / Jan / 2012
    • REFERRED TO CONSUMER PROTECTION
  • 18 / Jan / 2012
    • REPORTED AND COMMITTED TO FINANCE
  • 25 / Apr / 2012
    • 1ST REPORT CAL.582
  • 26 / Apr / 2012
    • 2ND REPORT CAL.
  • 30 / Apr / 2012
    • ADVANCED TO THIRD READING
  • 21 / Jun / 2012
    • COMMITTED TO RULES

Summary

Adds provisions relating to computer file-sharing applications.

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Bill Details

See Assembly Version of this Bill:
A2916A
Versions:
S4435
S4435A
Legislative Cycle:
2011-2012
Current Committee:
Senate Rules
Law Section:
General Business Law
Laws Affected:
Add ยง349-e, Gen Bus L
Versions Introduced in 2009-2010 Legislative Cycle:
S6930A, A11252

Sponsor Memo

BILL NUMBER:S4435A

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.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 4435--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              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  THAT

 EXPLANATION--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.

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