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Ernest Miller 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 @

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The Importance of...

August 09, 2004
The INDUCE Act (IICA) Harms National SecurityEmail This EntryPrint This Entry
Posted by Ernest Miller

One of the arguments that is increasingly being made is that P2P technlogy is a threat to national security (File Sharing equal threat as terrorism and drugs). The argument is weak (it hurts our economy, so it must hurt our national defense), but it is the rhetorical equivalent of a bomb used to silence opposition. "You're not against NATIONAL SECURITY are you? Then why do you oppose [insert copyright extending bill of the moment]?" One could easily note that most pro-copyright maximalist bills will do more damage to our consumer electronics and computer industries than benefit the copyright industries. However, the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) goes even farther. The INDUCE Act threatens national security by crippling private sector investment in innovation.

The US military's research budget is actually relatively small considering the size of the military and our economy. Except for a few very specialized fields, the military doesn't really make much of a difference when it comes to US R&D. Like everyone else, the US military basically surfs the innovation wave produced by the private sector.

Whether the copyright industries like it or not, P2P is some pretty innovative stuff and will likely prove quite useful to our military. As this interview with Michael Macedonia, the Chief Scientist and Technical Director for the U.S. Army Program Executive Office for Simulation, Training, and Instrumentation Command (PEO STRI), demonstrates, the military is very interested in the communications abilities of peer-to-peer communications capabilities (P2P Goes to War):

Macedonia: ...Once we get into the high-bandwidth wireless issues, whether it's 802.11, or it's 3G or 4G, we can actually have huge, peer-to-peer mobile computing environments, because from a military context, having a centralized server is a point of failure, a critical failure node. You don't want to put all your data on one server because once you take that server out, then you've got a lot of blind people with a lot of useless electronics.

Koman: Right. The theory of the way the Internet itself is built.

Macedonia: Then the issue becomes, I have a lot of devices that in a sense become servers themselves. I mean that's the whole idea behind P2P.

Koman: Right. They're devices and servers at the same time. ....

Koman: Back to peer-to-peer--does it seem ironic at all that you're applying some of the concepts that come from some of these services that are fairly subversive, at least as far as the recording industry is concerned. You know, Napster-style ideas applied to military technology.

Macedonia: I don't think it's subversive. The only interesting thing about Napster was that they came up with a really good scheme for sharing music. I mean this subversive thing is just in terms of the way that the RIAA or the MPAA looks at this technology and sees it as a threat to IP rights. [bold in original]

Communications technology is critically important to the information-rich modern battlefield. Being able to quickly and reliably be able to share that information under adverse conditions is crucial to success in modern war. However, the INDUCE Act will certainly cripple private sector investment in what are potentially very useful technologies for the US military.

One of the reasons I brought this up, however, is in response to the pro-INDUCE Act remarks of attorney Ralph Oman in today's Boston Globe (Curbing the companies that abet online piracy). At first the article confused me. Oman was discussing how people were constantly testifying before Congress about how the sky was falling, but it wasn't. I initially thought that Oman must be referring to Hollywood, which continues to exist (and even thrive) despite talk of how the VCR, Diamond Rio, P2P, etc. would completely destroy them. In actuality, Oman was talking about those who oppose wildly overbroad copyright laws:

One witness predicted that the bill will pull the plug on the VCR, TiVo, and all home taping. Another witness forewarned of a chilling effect on technological innovation. And another stated flatly that the legislation will outlaw recordable DVDs. But, as we also learned at the hearing, the short responses to these dark prognostications are: no, no, and no.
In response, I say, "yes, yes, and yes." That was illuminating, don't you think? One might expect a bit of a longer answer to the many criticisms of the INDUCE Act, but the article is mostly only reptition of the idea that act is narrowly focused without explaining how the broad language is narrow. The closest paragraph to an explanation is here:
It has been said that if this legislation had been law in the early '80s, the courts would have barred Sony's sale of the VCR. Not so. In fact, Hatch-Leahy would have had no effect whatsoever, since Sony has never enjoyed the legal immunity that the file-sharing "facilitators" have today because of a quirk in the law.
Huh? I'm terribly sorry, Mr. Former-Register-of-Copyrights, but I don't see how Sony and the Betamax would have avoided potential liability under INDUCE. I'm not even sure there is a logical claim here.

Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.

Category: INDUCE Act


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