Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School.
Ernest Miller's blog postings can also be found @Listen to the weekly audio edition on IT Conversations:
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Feel free to contact me about articles, websites and etc. you think I may find of interest. I'm also available for consulting work and speaking engagements. Email: ernest.miller 8T gmail.com
Balkinization
I've discussed before how Senator Orrin Hatch's (R-UT) legislative proposals seem to strangely benefit pornographers. See, PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry. Why should the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) be any different?
I've already written about how easy it would be under the INDUCE Act for anyone who owns a copyright to haul innovators into court, not because of the merits of their case, but merely because the law basically lets them extort money from the target (INDUCE Act (IICA) = Patent Extortion, but for Copyrights?). A similar argument is made by the organizations and companies that sent a Letter to Senator Hatch, Re: S. 2560, the "Inducing Infringement of Copyrights Act of 2004"):
There are many, many more copyright owners than there are patent owners, and the burden of proof to establish at least a prima facie case of copyright infringement is minimal rather than significant and specific as in patent cases.However, if one wants to show infringement, the copyrighted work would still have to be illicitly distributed or copied somehow. Not all copyrighted works will do the trick. Let's face the facts, most copyrighted works (like this blog), just don't get much attention. Most copyrighted works are not infringed because no one cares to. For example, as I've noted elsewhere, the likelihood of finding a copyrighted work on a filesharing network is determined more by the popularity of the work than just about any other factor.
So, what is an INDUCE Act exploiter to do? They must not simply own any old copyright, they must own a copyright that is reasonably likely to be infringed. Sure, the RIAA, MPAA, BSA and their members are likely to have access to widely infringed works, but what about the group of enterprising lawyers little guy who can't easily pull a popular band or film out of his back pocket? What's easy and cheap to produce, but is also popular to infringe? Pornography, of course.
Moreover, pornography companies have generally been hesistant to sue their customers; they see P2P networks as free advertising (P2P and Pornography: Cheap is More Convenient). Consequently, many filesharers don't hesitate to share pornography as they might lawsuit-inducing music or movie files. Of course, the would be exploiters won't really care about the infringing either, but they will be able to take advantage of it to legally extort money from innovators. Heck, these enterprising pornographers wouldn't even have to bring the lawsuits themselves. They would merely have to seek to join the inevitable lawsuits that the big boys will bring.
Once again, Sen. Hatch has designed a law eminently suited for exploitation by pornographers. I'm starting to think the guy has a secret agenda.
Tracked on July 8, 2004 05:10 PM
Sen. Hatch's Shifting Rhetoric in Favor of the INDUCE Act (IICA) from The Importance of... Last June, Sen. Orrin Hatch (R-UT) put forward the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). He introduced the bill with a long and somewhat strange statement, which I responded to in detail: The Obsessively Annotated Introduction... [Read More]Tracked on July 23, 2004 05:21 PM
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