What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) in the Senate. The bill would make it illegal to "intentionally induce" copyright infringement, but is worded so broadly that it would have all sorts of unintended consequences, one of which is to severely limit, cripple or kill innovation in many different fields. Hatch's Hit List is a daily exploration of some of the technologies and fields that the bill would likely affect. See also, Introducing Hatch's Hit List and the Hatch's Hit List Archives. Send list suggestions to ernest.miller 8T aya.yale.edu.

Today on Hatch's Hit List: US Postal Service
Tip o' the hat to Fred von Lohmann and Jason Schultz

Yesterday, Stamps.com announced that they had gotten permission to begin selling personalized stamps (PhotoStamps). USA Today has a nice article (Stamps of individuality push the envelope). From the company info page (PhotoStamps: Company Info):

PhotoStamps is a new form of postage that allows customers to include their favorite digital photographs, designs or images on valid US Postal Service postage. Customers design state-of-the-art, professional-looking postage from the PhotoStamps web site by simply uploading pictures from existing image files, digital photographs, and original graphics. An intuitive interface allows users of PhotoStamps to flip, rotate, and zoom in and out of their images, as well as add colored borders to create harmonized themes. Users maintain a secure online account that allows for the storage of images for future purchases. Using advanced printing technology, we send customers high-quality, peelable PhotoStamps within a short timeframe, allowing for a wide variety of personal and business-related usage. PhotoStamps is brought to you by Stamps.com Inc., the leading provider of Internet-based postage services.

Of course, there are some pretty heinous terms and conditions. For example here's a list of how you aren't permitted to use the service:

A. For any unlawful purposes;
B. To upload, order for print, or otherwise transmit or communicate any material that is obscene, offensive, blasphemous, pornographic, unlawful, deceptive, threatening, menacing, abusive, harmful, an invasion of privacy or publicity rights, supportive of unlawful action, defamatory, libelous, vulgar, illegal or otherwise objectionable;
C. To upload material that emulates any form of valid indicia or payment for postage;
D. To upload, order for print, or otherwise transmit or communicate any material that you do not have a right to transmit or communicate under any contractual or fiduciary relationship or which infringes any copyright, trade mark, patent or other intellectual property right or any moral right of any party;
E. To harm minors in any way, including, but not limited to, content that violates child pornography laws, child sexual exploitation laws and laws prohibiting the depiction of minors engaged in sexual conduct; and
F. To upload or otherwise transmit any material which is likely to cause harm to PhotoStamps or anyone else's computer systems, including but not limited to that which contains any virus, code, worm, data or other files or programs designed to damage or allow unauthorized access to the PhotoStamps service or which may cause any defect, error, malfunction or corruption to the service.

Disclaimers. Generally worthless under the INDUCE Act. After all most of the P2P programs that are targeted by INDUCE use disclaimers too. In any case, how will Stamps.com make sure that no copyrighted images are used? Sure, they'll be able to pull the obvious ones, but their human editors won't be foolproof. The very existence of the service will certainly encourage people to try to get copyrighted images through their filtering program; some will inevitably succeed.

But Stamps.com is too easy a target. Why not sue the original inducer, the United States Postal Service? After all, the world got along mighty fine without potentially-infringing personalized postage. I'm sure the reason they permitted it was in order to sell more postage and make more money, otherwise, what is the purpose? The very fact that the USPS requires a disclaimer from Stamps.com is because they knew people would use the system to violate copyright.

Does the USPS have a system that can reject postage found to be copyright-infringing after it has been sold to the public? Like bootlegs, will infringing postage still be used? I imagine that cancelled infringing postage will have quite the cachet with philatelists. And, if there is any group the USPS wants to please, it is the philatelists. Could it be that the USPS won't be quite so hard on Stamps.com if a few copyrighted images get through, making them all the more valuable and rare? Won't the possible value or relatively rare copyright-infringing postage encourage people to try to get copyrighted works through the system even more?

Sounds like inducement to me.

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