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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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June 24, 2004

The Obsessively Annotated Introduction to the INDUCE Act

Posted by Ernest Miller

Yesterday, as C|Net News reported, Senator Orrin Hatch (R-UT) officially introduced the INDUCE Act to the public (Senate bill bans P2P networks). See also, Susan Crawford (INDUCE Act introduced) and Larry Lessig (even I can’t believe this). Read the bill here: Inducing Infringement of Copyrights Act of 2004 [PDF].

In introducing the bill, Hatch provided extensive justifications and arguments on behalf of the bill. Eight pages worth: Before the United States Senate on Introduction of the “Inducing Infringement of Copyrights Act of 2004” S. 2560 [PDF]. Since it looks like this bill will move quickly in Congress, opponents will have to get up to speed quickly. Thankfully, Hatch provided an excellent guide to the talking points proponents will use. Consequently, I've decided to go through Hatch's introduction and extensively annotate it. However, this is just a response piece and many arguments against the bill won't be here. The annotation is long, but I think there are definitely some valuable nuggets of information, such as, towards the end, Hatch makes clear he wants criminal enforcement of the Act.

My comments are in brackets, bold and italics. I've added hyperlinks to Hatch's text as I thought useful. Read on...

UPDATE 23 July 2004
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.

Statement of Senator Orrin [Will someone please think of the children?] Hatch Before the United States Senate on Introduction of the “Inducing Infringement of Copyrights Act of 2004” S. 2560 June 22, 2004


SEN. HATCH [R-UT $157,860]. Mr. President, I rise with my esteemed colleague and friend, Senator Leahy [D-VT $181,000], ranking Democrat Member of the Senate Judiciary Committee, to introduce the “Inducing Infringement of Copyrights Act of 2004 [PDF].” [The Act has changed its name. Before it was introduced it was called the "Inducement Devolves into Unlawful Child Exploitation Act" or INDUCE Act. Presumably, the new title will be subject to less ridicule.] This Act will confirm that creative artists [Note to self: When introducing copyright legislation always refer to "creative artists" and not "large corporate conglomerates, many of which are foreign-owned."] can sue corporations [Hmmm ... my copy of the bill doesn't say "corporations." It says you can sue "whoever."] that profit [Or not. You don't have to profit in order to be sued. Many not-for-profit open source software projects (and their coders) will be targeted for elimination if this bill becomes law.] by encouraging children, teenagers [Will someone please think of the children?] and [millions of] others to commit illegal or criminal acts of copyright infringement [as well as frowned upon use of fair use rights and freedom of expression]. Senator Leahy and I are pleased that Majority Leader Frist [R-TN $58,550] and Minority Leader Daschle [D-SD $318,790] and Senators Graham [R-SC $72,273] and Boxer [D-CA $476,985] are co-sponsoring this important bipartisan legislation.

Mr. President, it is illegal [If it is already illegal, why do we need a statute?] and immoral to induce or encourage children [Will someone please think of the children?] to commit crimes. Artists realize that adults who corrupt or exploit the innocence of children are the worst type of villains. [Well, call me morally challenged, but I consider murderers worse. And I take it these are different artists than the ones that corrupt children through that "rock and roll" or "rap" noise?] In Oliver Twist, Fagin and Bill Sikes profited by inducing children to steal. [Hatch fails to note that Oliver was forced into the streets when the moralistic parish authorities sent him to a workhouse that nearly starved him to death and then sold him to an abusive undertaker as a slave/apprentice when he asked "for more." I think one of the points Dickens was making was that if you treat people better, there will be less cause for them to turn to crime. Sort of like if the RIAA treated people better they might not engage in infringement.] In the film Chitty-Chitty Bang-Bang, the leering “Child-Catcher” lured children into danger with false promises of “free lollipops.” [Actually, the Child-Catcher was acting as an agent of the government because a nonsensical law banning children had been passed by a ruler who feared kids, sort of like other nonsensical laws banning things those in power fear.] Tragically, some corporations now seem to think that they can legally profit by inducing children to steal – that they can legally lure children [Will someone please think of the children?] and [millions of] others with false promises [If the promises are false, then no infringement takes place, right?] of “free music.” [Tragically, some major corporate copyright holders now seem to think that they can legally profit by getting laws passed that inhibit innovation and free speech.]

Such beliefs seem common among distributors of so-called peer-to-peer filesharing (“P2P”) software. ["So-called," indeed. Hatch isn't about define what P2P software is because it would end up including things like e-mail, IM, VoIP, HTTP and plenty of other internet protocols. P2P is how much of the internet works.] These programs are used mostly by children and college students – about half of their users are children. [You can say the same things about videogames, as well as other popular technologies like IM and SMS. It is frequently the case that the younger generation adopts new technologies sooner than older users.] Users of these programs routinely violate criminal laws relating to copyright infringement and pornography distribution. [You can say the same thing about plenty of internet protocols, such as HTTP, FTP, SMTP, and so on.] Criminal law defines “inducement” as “that which leads or tempts to the commission of crime.” [Luckily, not every temptation is a crime or there would be more people in jail than free.] Some P2P software appears to be the definition of criminal inducement captured in computer code. [Software is a tool. This is the same as saying that bolt-cutters and crowbars are inducements to burglary.]

Distributors of some P2P software admit this. The distributors of EarthStation 5 state, “While other peer 2 peer networks like Kazaa or Imesh continue to deny building their programs for illegal file sharing, at ES5 we not only admit why we built ES5, we actually promote P2P, endorse file sharing, and join our users in swapping files!” [Unfortunately for Hatch and copyright holders, EarthStation 5 claims to be located in a Palestinian Refugee Camp and is beyond the reach of US law. Point out problems that your statute will do nothing about. That's persuasive.]

Recently, in the Grokster case, a federal court drew similar conclusions about the intent of other distributors of P2P software. It warned that some P2P distributors “may have intentionally structured their businesses to avoid secondary liability for copyright infringement, while benefiting financially from the illicit draw of their wares.” [Generally, those who structure their companies so that they remain within the bounds of the law are considered admirable. We call these people "businessmen," "entrepreneurs," and "capitalists."] In other words, many P2P distributors may think that they can lawfully profit by inducing children [Will someone please think of the children?] to break the law and commit crimes. [What about those who have no intention of profiting, but merely like to code?]

They are dead wrong. America punishes as criminals those who induce others to commit any criminal act, including copyright infringement. [So we need this statute, why?] The first sentence of our Criminal Code states:

Whoever commits an offense against the United States or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal….

Indeed, it is absurd to think that our law might be otherwise. No civilized country could let sophisticated adults profit by tempting its most vulnerable citizens – its children [Will someone please think of the children?] – to break the law.

I think we must understand how some corporations came to confuse child endangerment with a legal business model. [Again with the corporations. Unfortunately, the law isn't limited to corporations.] Their confusion seems to arise from court cases misinterpreting a well-intended Supreme Court decision that tried to clarify two critical components of federal law: the law of secondary liability and the law of copyright. [Senator Hatch, legal scholar. I like this quote from The Hill, "No Republican senator has sponsored more laws later held unconstitutional than Hatch." That's quite an impressive record and says something about his legal acumen. And what it is saying can't be printed on a family webpage.]

The Supreme Court states that secondary liability is “imposed in virtually all areas of the law.” Secondary liability is universal because its logic is compelling. [Except when it isn't compelling.] It does not absolve lawbreakers of guilt. But it recognizes that we are all human: We are all more likely to break the law if encouraged or ordered to do so. [Encouraging and ordering are far more direct actions than "inducing." Thesaurus.com doesn't show either "encourage" or "order" as being synonymous with "induce."] Secondary liability thus discourages lawlessness by punishing people who manipulate others into doing the “dirty work” of breaking the law. [Nope, "manipulate" isn't a synonym for induce either. "Manipulate" usually indicates some form of control.] Secondary liability usually targets two types of persons: 1) those who induce others to break the law, and 2) those who control others who break the law. [Ok. But let's remember that P2P software also has legitimate uses (dual-use), which Hatch doesn't deny. What does a real legal scholar, like UCLA Law Professor Eugene Volokh, have to say about inducement, particularly in speech cases involving dual-use, in his paper on Crime Facilitating Speech {PDF}?:

First, aiding and abetting laws and crime facilitation laws are almost never applied to dual-use conduct. In the typical aiding case, the aider knows that his services will be used by one particular person, solely to commit a crime. Even when the aider is generally in the business of providing a dual-use product—such as metal-cutting equipment—he is generally prosecuted only when he knows that a particular sale is going to a person who intends to use the product illegally (for instance, to break into a bank).]

Though secondary liability is nearly ubiquitous, it has almost always remained as a judgemade, common-law doctrine – and for a good reason. [Judgemade that is, except for that first sentence in the Federal Criminal Code cited above.] Secondary liability prevents the use of indirect means to achieve illegal ends. Consequently, the scope of secondary liability must be flexible – otherwise, it would just instruct wrong-doers on how to legally encourage or manipulate others into breaking the law. [It must also be flexible otherwise you are going to be tossing a lot of people into jail unjustly. You see, the more secondary liability you impose, the more likely you significantly increase the costs of obeying the law. For example, you could hold sellers of bolt-cutters secondarily liable for burglary, unless they proved they did a background check before selling bolt-cutters.] The common-law judicial process is ideally suited to evolve flexible secondary-liability rules from the results of many individual cases. [Indeed. Unfortunately, it isn't providing the answers Hollywood wants.]

As a result, Congress rarely codifies secondary liability. It has codified secondary liability to narrow it, as in the Patent Act. Congress has codified secondary liability in the Criminal Code to ensure that the narrow construction given criminal statutes would not foreclose secondary liability. In the Digital Millennium Copyright Act, Congress codified a complex balance between opposed interests that expanded one type of secondary liability and narrowed another. [If Hatch considers the DMCA balanced, I'm not sure he has any idea what the word actually means.]

Congress has always assumed that infringers could readily induce consumers to accept infringing copies of works. It thus created “a potent arsenal of remedies against an infringer….” But secondary liability often arises if a third party can be ordered or induced to make the infringing copies. [If P2P networks were ordering people to infringe copyright I would be all for prosecuting them.] Consequently, only after copying devices became available to people who might be induced to infringe did questions about secondary liability for infringement become pressing. [Today, we call these copying devices "Personal Computers connected to the internet." Of course, they do a lot more than copy things, but if you talk about them as "copying devices" it sounds better.]

In 1984, these questions reached the Supreme Court in Sony Corp. v. Universal City Studios, Inc. Sony held that the makers of the Betamax VCR could not be held secondarily liable in a civil suit brought by copyright holders – even though some consumers would use VCRs to make infringing copies of copyrighted TV broadcasts.

Sony also created a broader limitation on secondary liability by importing a limitation that that Congress had codified only in the Patent Act; this was the substantial-noninfringing-use rule, also called the “staple article of commerce” doctrine. Sony intended this rule to strike, as between creators of works and copying equipment, the same “balance” that it had struck under the Patent Act between the rights of patent holder and makers of staple products.

Under the Patent Act, the substantial-noninfringing-use rule bars secondary liability for selling a “staple” product that has a “substantial noninfringing use” – even if that staple could also be used as a component in an infringing copy of a patented invention. [Of course, in Sony, the Supreme Court said that a device "need merely be capable of substantial noninfringing uses" in order to avoid copyright liability.] This rule protects makers of staples without changing the nature of secondary liability. In particular, it does not immunize bad actors who intend to distribute “patent-infringement kits.” Even in the rare case of a novel invention that consists only of “staple” components, an “infringement kit” must bundle components and include assembly instructions. [Well, that is one of the problems, isn't it? P2P is a staple component of the internet. If P2P was only useful for infringement it would be easy to pass a law banning P2P, now wouldn't it? And what about those assembly instructions? What P2P network, other than EarthStation 5, is bundling infringement instructions? It doesn't take a genius to figure out that P2P filesharing programs can be used to infringe copyright; no instructions are needed. Of course, I can also say the same thing about email, FTP, HTTP, you get the picture.] Neither the bundle nor the instructions will likely have a “substantial noninfringing use.” [Well, then there isn't a problem is there? The "substantial noninfringing use" test is already part of the legal landscape.]

Sony intended this rule to strike the same admirable “balance” under the Copyright Act. Unfortunately, Sony also proposed that if this rule proved problematic, Congress should alter it on a technology-by-technology basis. [Not quite. The court basically said to Congress, if you don't like our ruling, change the law. I don't recall the Court demanding Congress only change the law on a technology-by-technology basis.] This proposal was flawed: In 1976, Congress redrafted the Copyright Act to avoid the need to re-adjust copyrights on a technology-by-technology basis because legislation could no longer keep pace with technological change. [Which explains why Congress had to pass the No Electronic Theft Act, Digital Audio Home Recording Act and the DMCA. Hatch has been around long enough that he should remember these laws.] Returning to this impractical technology-based approach would create an endless procession of “tech-mandate” laws that discriminate between technologies Congress deems “good” or “bad.” [Instead, Hatch proposes that Hollywood deem what technologies are “good” or “bad” through the courts. And don't think it won't happen. As soon as Hollywood manages to get a judgement against the provider of a particular technology, no one will dare touch it for fear of liability.] But technologies are rarely inherently either “good” or “bad.” [Hollywood thinks that the only good technology is technology that it controls. I can't think of a major advance in consumer electronics that Hollywood hasn't tried to put out of business through lawsuit.] Most can be used for either purpose; the effect depends on details of implementation impossible to capture – or predict – in prospective legislation. [Similar excuses are used whenever a legislature wants to pass the buck on deciding what the law should be to another branch. "Stop the bad uses. Here is a broad, vague mandate of power."]

Of course, the dysfunctional corrective mechanism that Sony proposed would have become problematic only if the Sony limitation was misunderstood or misapplied by lower courts. Unfortunately, that has now happened. ["Lower courts." You know, we already have a correction mechanism for lower courts. They are called "appellate courts." We even have a correction mechanism for appellate courts. It is called the "Supreme Court." You might argue that the system doesn't operate quickly enough. But we do have things like temporary injunctions and what not that are supposed to balance the harms while a decision is being made. Can you imagine if Congress had to jump in to change the law everytime a lower court screwed up? Congressmen would never have any time to raise more election money.]

In cases like Napster and Grokster, lower courts misapplied the substantial-non-infringing-use limitation. [I imagine that Napster would be quite surprised to hear this.] These courts forgot about “balance” and held that this limitation radically alters secondary liability. [Yeah, Napster was a hugely unbalanced loss for the RIAA.] In effect, these cases retained secondary liability’s control prong but collapsed its inducement prong. [Or, one could say that the courts were following the common law and applying the precedents. If "inducement" has been commonly cited in secondary liability copyright cases, I must have missed it.] The results of these cases prove this point: Napster imposed liability upon a distributor of copying devices who controlled infringing users; Grokster did not impose liability upon distributors who appeared to induce and profit from users' infringement. [Funny, there is no "and" in the statute. You don't have to "induce and profit from" users' infringement.]

A secondary-liability rule that punishes control and immunizes inducement is a public policy disaster. [This is highly disputable. One could argue that punishing inducement without control of dual-use technology is not a good idea, which explains why courts are reluctant to do it. I highly doubt that the judges in Grokster and Napster stayed away from inducement arguments because they favor copyright infringement. Let's see what Volokh has to say:

I know of no aiding and abetting or criminal facilitation prosecutions where the seller sold a genuinely dual-use product (other than speech), and couldn’t tell which users were going to use it for criminal purposes. If anything, the cases suggest the opposite: Even when a seller of a dual-use good or service knows (but doesn’t intend) that a particular customer will use the product criminally—for example, when an answering service operator knows that particular clients are prostitutes who use the service to arrange assignations—courts often refrain from imposing liability.]
It seems to permit the distribution of “piracy machines” designed to make infringement easy, tempting, and automatic. Even Harvard’s Berkman Center for Internet and Society suggests that this is happening. The Center warns that “it can be extremely difficult for a non-expert computer user to shut down” the viral redistribution that can otherwise automatically make the user an international distributor of infringing works. [Bad interface design - now a violation of copyright. More importantly, Derek Slater, who works for the Berkman Center, says this quote is taken out of context: Things That Bother Me, Vol. 1] The Center notes that the “complexity of KaZaA’s installation and disabling functions” may leave many users unaware that they have become a contributor to global, for-profit copyright piracy. [It is only "for profit" if you already assume liability for the network.] Unfortunately, “piracy machines” designed to mislead their users are just one of the perverse effects of a secondary liability rule that punishes control and immunizes inducement. [And one of the perverse effects of misleading consumers is that consumers stop using your products and software, especially when consumers get sued for using your products. Also, where Hatch has been arguing that the infringers are complicit in violating the law, now he seems to be arguing that they are unwitting dupes. If people are "unaware" that they are violating the law, does it really make sense to talk of "inducement"?]

Perhaps the least perverse of these effects has been years of conflict between the content and technology industries. Content creators sought the tech-mandate “corrections” that Sony proposed. [Now, the content owners are asking Congress to let them decide what the mandates are.] Technology industries opposed such laws because they too easily foreclose innocent or unforeseen applications. P2P software illustrates the problem: Today, most P2P software functions like Earthstation 5’s “piracy machine.” [If a company run out of a Palestinian Refugee Camp bought a bunch of photocopiers and claimed to support all sorts of book piracy, that would be a reason to regulate photocopiers?] Yet all agree that non-piracy-adapted implementations of P2P could have legitimate and beneficial uses. [Unfortunately, and this is what all the disagreement between the content and technology companies is about, is that they don't agree about what a non-piracy-adapated implementation of P2P would be. Democrats and Republicans agree that promoting a strong economy is a good thing. Unfortunately, they disagree what counts as promoting a strong economy.]

A rule that punishes only control also produces absurd results. Secondary liability should focus on intent to use indirect means to achieve illegal ends. [But intention will lead to results even more absurd. The problem, which Hatch ignores, is that intent is normally very difficult to prove. You have to look at all sorts of things outside the technology itself. Basically, it will normally come down to whether a jury likes the defendants or not. With plenty of Hollywood spokespeople willing to talk about "Boston Stranglers" and "hackers" it would be easy to paint any new technology as meant for evil purposes. When the Betamax debuted, Valenti basically painted Sony as the Yellow Peril - bent on destroying Hollywood and apple pie. Hollywood will do it again.] A rule that punishes only control degenerates into inane debate about which indirect means was used. [Well, this wouldn't be the first inane debate copyright has launched. Is a computer program in RAM a "copy" for purposes of copyright law or not, Senator?] Thus Napster and Grokster are regulated differently – though they function similarly from the perspective of the user, the distributor, or the copyright holder. [Strangely, that is how patent law works. I build something that does the exact same thing, but does it in a different manner, I don't get busted for patent infringement. There are other legal examples, but this isn't a terribly unusual thing in law.]

A rule that punishes only control also acts as a “tech-mandate” law: It mandates the use of technologies that avoid “control” – regardless of whether they are suited for a particular task. [Well, any sort of secondary liability rule is going to have tech-mandate qualities. For example, if one is going to design a technology, it had better have the possibility of substantial non-infringing uses. Also, as I noted above, an intention rule will also act as an effective tech-mandate, except that it will be Hollywood who determines what the mandate is.] Napster was punished for processing search requests efficiently on a centralized search index that it controlled. Grokster escaped by processing search requests less efficiently on a decentralized search index that it did not control. Rewarding inefficiency makes little sense. [Tell that to patent law. Seriously, though, what is Hatch arguing here? Does he think we could have Napster as it was under his new law? Since the law purports to leave the current doctrines of contributory and vicarious copyright liability unchanged, the original Napster would still be illegal. If Hatch was proposing to replace contributory and vicarious infringement with intentional inducement, that would be different. So, yes, the current regime supports some forms of inefficiency - though completely decentralized systems may be more robust - which is another type of efficiency. However, Hatch is only adding more potential inefficiencies into the system. Under this statute not only will Napster be illegal, so will Grokster (almost certainly). What is efficient about that? See also, Derek Slater, Things That Bother Me, Vol. 2. Derek's arguments about control are actually very similar to mine, so I won't repeat them here. And, hey, congratulations for reading this far! Thanks!]

A secondary-liability rule that punishes only control also punishes consumers: It encourages designers to avoid “control” by shifting risks onto consumers. [Whereas laws that punish control AND intent punish consumers by eliminating types of software many consumers use quite legitimately. It also punishes consumers by taxing innovation and turning technology development over to Hollywood. Another, less drastic solution would be for the government to sponsor a consumer education program, like those "no smoking" ads. Heck, why should government do it? If Hollywood is so concerned with the consumers, let them pay for an education campaign.] For example, Napster incurred billion-dollar liability because it controlled computers housing a search index that located infringing files. Programs like Kazaa avoid Napster’s “control” by moving their search indices onto computers owned by unsuspecting consumers. [Unsuspecting consumers or willful infringers? Which is it, Senator? If the consumers are unsuspecting, shouldn't we be considering a law absolving them of liability as well?] Consumers were never warned about the risks of housing these indices. [Call me crazy, but I think 3,000+ lawsuits is pretty good warning.] As a result, many consumers, universities, and businesses now control computers that house “mini-Napsters” – parts of a search index much like the one that destroyed Napster. [Remember that DMCA law, Senator? Most of these unsuspecting types will escape liability if they didn't install this software themselves. If they are still liable despite not knowing, shouldn't we be creating a safe harbor for them?] These indices could still impose devastating liability upon anyone who “controls” a computer housing them. A secondary-liability rule that punishes only control thus rewards Kazaa for shifting huge risks onto unsuspecting consumers, universities and businesses. [Of course, suing KaZaA out of business doesn't eliminate the liability for these people. That is the problem with decentralized services, there is no single point of control to eliminate. So, let's assume KaZaA is sued out of existance tomorrow. Does that do anything with regard to all those “mini-Napsters” out there?]

And search indices are just one of the risks that designers of P2P software seem to impose upon their young users to avoid control. For example, the designers of most filesharing software choose to lack the ability to remove or block access to files known to contain viruses, child pornography or pornography mislabeled to be appealing to children. [What does this have to do with copyright infringement? Isn't this a consumer protection issue? Shouldn't we call the FTC? Oh, yeah, the FTC has this to say: "Although the Commission has required warnings with respect to inherently dangerous products in appropriate cases, we are not aware of any basis under the FTC Act for distinguishing P2P from other neutral consumer technologies." And hasn't Congress already passed several laws dealing with pornography on the internet? Oh, yeah, they keep getting struck down by the courts, mostly.] This ability could create “control” and trigger liability. Aiding distributors of viruses and pornography may be just an unfortunate side effect of avoiding control while inducing infringement. [Hatch keeps talking about "avoiding control." Like companies will start creating filesharing programs that can be controlled as long as the Napster decision is still valid law. Hello, 2+2=4, Senator.]

A secondary-liability rule that immunizes inducement also encourages attempts to conceal risks from consumers: It is easier to induce people to take risks if they are unsure whether they are incurring a risk or its severity. The interfaces of most P2P software provide no warnings about the severe consequences of succumbing to the constant temptation of infringement. [Back to the FTC's testimony on this issue:

There is reason to believe that many consumers already are aware of some of these risks. For example, with respect to the concern that consumers may use P2P software illegally to download copyrighted material, the recording industry has brought nearly 2000 copyright infringement actions since July 2003 against consumers who used P2P file-sharing programs to download music. Thus, many consumers likely are aware that they also could be liable for copyright infringement if they engage in similar conduct....The FTC staff’s review revealed that distributors of P2P file-sharing programs use a variety of means to convey risk information to consumers. Distributors disclose risk information on their own Web sites or in their licensing agreements with consumers. Some distributors also provide consumers with a hyperlink to risk information at www.P2PUnited.org, one of the P2P file-sharing software industry’s trade associations. In addition, one of the main portals for downloading such programs, www.Download.com, discloses some risk information on its site.]

Another risk to users of P2P software arises when pornography combines with the “viral redistribution” that thwarts removal of infringing copies of works. Most filesharing networks are awash in pornography, much of it mislabeled, obscene, illegal child pornography, or harmful to minors. [Mislabeled porn. Damn, I hate that.] Anyone risks criminal prosecution if they distribute pornography accessible to minors over these child-dominated networks. [If they know they are children, yes. Otherwise I'm sure Ashcroft would be throwing every XXX webmaster in jail who hides pornographic images behind an "I'm 18" button. In any case, if someone knows for sure they are sharing with a minor and does it anyway, can the technology possibly be at fault?] As a result, one P2P distributor who does distribute “adult” content demands that it be protected by access controls. But every adult who uses this distributor’s software as intended to download one of millions of unprotected pornographic files automatically makes that pornography available for re-distribution to millions of children. [Will someone please think of the children?] This distributor has sat silently – knowing that its software exposes millions of its users to risks of criminal prosecution that the distributor cannot be paid to endure. [Hatch knows these people can't be prosecuted for this, but it turns opponents of this bill into supporters of smut, at least to those who are logically challenged.]

Perhaps the worst effect of punishing control and rewarding inducement is that it achieves precisely what Sony sought to avoid: It leaves copyright holders with an enforcement remedy that is “merely symbolic”: It seems real, but it is illusory. [Hardly. There are plenty of strategies that Hollywood can use to thwart illicit filesharing, but it would require a shift in business model, something they refuse to do. Of course, we could also consider ways to make enforcement against direct infringers more efficient, but that wouldn't give Hollywood the distribution control that is their true aim.]

In theory, a rule that immunizes inducement still permits enforcement against those induced to infringe. [I bet it doesn't seem theoretical to those targeted by the John Doe lawsuits.] At first, this remedy seems viable because copyrights have traditionally been enforced in lawsuits against direct infringers who actually make infringing copies of works.

But a fallacy lurks here: The “direct infringers” at issue are not the traditional targets for copyright enforcement. [Why is "direct infringers" in quotes? Are they direct infringers or not?] In fact, they are children [Will someone please think of the children?] and consumers: They are the hundreds of millions [Hundreds of millions. That is an awful lot of "direct infringers." Certainly a higher estimate of infringers than I have seen before.] of Americans – toddlers to seniors – who use and enjoy the creative works that copyrights have helped create. [Indeed. Perhaps Hatch should pass a law immunizing children and consumers from infringement lawsuits if he is so concerned.]

There is no precedent for shifting copyright enforcement toward the end-users of works. [Now, Hatch has dropped all the infringement talk.] For nearly 200 years, copyright law has been nearly invisible to the millions who used and enjoyed creative works. [Well, that horse is out of the barn and closing the door ain't gonna help. Even if KaZaA goes out of business tomorrow, Gnutella won't. In any case, as the world becomes ever more connected, citizens are going to have to become more familiar with copyright law, whether we have an INDUCE Act or not.] Copyright law was invisible to consumers because the law gave creators and distributors mutual incentives to negotiate the agreements that ensured that works reached consumers in forms that were safe to use in foreseeable ways. [Plus, consumers were unable to be publishers. Now that consumers have these great "copy devices," aka connected PCs, you'll never be able to keep consumers ignorant. Doesn't make sense.] Now, those incentives are collapsing. [And the INDUCE Act brings these incentives back, how?] As a result, artists must now waive their rights or sue consumers – their fans. [Shucky darn. And the INDUCE act will immunize fans threatened by the "artists," how? Is Hatch guaranteeing that the RIAA will drop its consumer lawsuits if they get this law?]

Worse yet, artists must sue their fans for the sin of misusing devices designed to be easy and tempting to misuse. [Yeah, that IM is just totally too tempting. Oh, wait, Hatch is talking about P2P, as he ... well, he actually never defines it.] That is unfair: When inducement is the disease, infringement can be seen as just a symptom. [You're not guilty of infringement - you're just sick. "Hi, I'm Ernest, and I'm an infringer." "Hi, Ernest!"] Yet artists must ignore inducers who profit by chanting, “Hey, kids, infringement is cool, and we will help you get away with it.” [Well, if they are chanting ... oh, wait, the only one chanting is in Palestine, outside of Hatch's reach. The FTC says the ones in the US give adequate warning of the risks.] Instead, artists can only sue kids [Will someone please think of the children?] who succumb to this temptation. They must leave Fagin to his work – and sue Oliver Twist. [The difference being, however, that Fagin has specific knowledge of the specific individuals he is sending out to commit specific crimes. Slightly different case, don't you think?]

This sue-Oliver “remedy” is a debacle. For example, immunizing inducement ensures that artists will have to sue their fans: Inducers will have both the incentive and the means to thwart less extreme measures, like educational campaigns. [Yep, I was in a theater the other day and as soon as the "Don't Pirate" message came on, some dude in a KaZaA jacket distracted me with a bright shiny light.] For example, RIAA tried to avoid lawsuits against filesharers by sending educational instant messages to infringers. Kazaa, for “privacy” reasons, disabled instant messaging by default in the next version of its software. Lawsuits then followed. [Where's the memo in which the RIAA says, "if only we could send instant messages we won't sue direct infringers"?]

And imagine the poor parent who tries to tell a teenager [Will someone please think of the children?] that free downloading of copyrighted music is illegal. The teenager, confused because “everyone is doing it,” consults a leading technology-news site promising a “trusted source of information for millions of technology consumers.” [Yeah, teenagers are confused. I would expect the average teenager is, by this time, more knowledgeable about copyright law than their parents.] There, the teenager finds a P2P distributor promoting “Morpheus 4.0, the only American filesharing software ruled legal by a U.S. federal court.” [That damn C|Net News! When will the free press ever learn?] This statement is false: Grokster did not rule Morpheus “legal”; in fact, the case only confirmed that downloading copyrighted works is illegal. [Umm, if Grokster is not legal, what is the issue again?] Below this misinformation, the teenager will find an independent editorial review rating Morpheus 4.0 as a “Recommended” download and “an excellent choice” for those seeking “the latest and greatest.” Who will the teenager believe? [The Senator who is trying to confuse the issue?]

Worse yet, if artists must sue only the induced, they just feed the contempt for copyrights that inducers breed. [Enforcing the law creates contempt for the law. That is a new one on me. I thought it was the unenforced laws that created contempt. I thought it was the fact that the RIAA didn't sue for direct infringerment for a couple of years of P2P filesharing that increased people's belief that it was okay. See, Why the RIAA Should Continue to Sue Filesharers. Perhaps we should immunize consumers for infringement lawsuits and the artists won't be tempted to create contempt for the law.] Inducers know that people induced to break a law become that law’s enemies: Once you break a law, you must either admit wrongdoing or rationalize your conduct. [You know what else make people become the law's enemies? When the powerful use the law to needlessly ignore consumers desires. Would it have been that difficult to launch something like iTunes shortly after Napster launched?] Rationalization is often so easy. You can blame the law: Copyright is a stupid law needlessly enshrined in the Constitution by naives like James Madison. [That James Madison, I knew there was something wrong with him. Of course, using the law to ignore consumer desires and create demand for infringement is also easily rationalized.] You can blame the victim: Some rock stars still make money; I do not like the “business model” of the record labels. [On the other side, you could blame new technologies that restructure business relationships. "I don't like what the internet does to my business model. I shouldn't have to change."] You can blame the randomness of enforcement: Everyone else was doing it, so why not me? Anyone who has talked to young people about filesharing has heard such rationalizations time and again. [And anyone who has talked to record industry executives has heard rationalizations as to why they shouldn't have to make any changes as technology develops.]

And forcing artists to ignore inducers and sue the induced locks artists into a war of attrition that they are unlikely to win. [Well, if all they do is launch lawsuits, yes. But there are plenty of other business models they could adopt.] If you imagine inducement as a bush, this “remedy” forces artists to spend their money to sever each leaf – while the inducer makes money by watering the root. [If you were a little more imaginative, you could see content owners placing little ceramic pots for the leaves to voluntary fall into and sprout. It's a messy metaphor, but you get the picture.] Artists may not be able to sustain this unending battle. [What is Hatch talking about? Infringement lawsuits could become a profit center. I'd start by concentrating on the Hollywood, Manhattan and Georgetown neighborhoods.]

This may let inducers attempt an extortionate form of “outsourcing.” Inducers can increase or decrease their devices’ propensity to encourage piracy. [Inducers aren't the only ones with a piracy knob to turn. Content owners can also increase and decrease piracy. If DVDs cost $100, there would be more DVD piracy. Hatch calls this extortion, I call it a market. It may not be a market that Hatch likes, but is isn't going away.] Inducers can thus tell American artists that if the artists pay the inducers to become licensed distributors of their works, perhaps fewer bad things will happen. [American artists, perhaps, but not American content owners.] Implicitly, if artists do not pay, perhaps more bad things will happen. [Alternatively, the non-American content owners can increase the costs of filesharing through a variety of tactics and make licit downloading more attractive. No need to do a deal with the "inducers".] Were artists to succumb to such tactics, jobs and revenues created by the demand for American creative works would go overseas to some unsavory locales. [P2P = Terrorism? What is the argument here? Is Hatch claiming that INDUCE Act will impact piracy overseas? Is so, huh?]

Worst of all, inducers will inevitably target children. [Will someone please think of the children?] Children would be easily induced to violate complex laws like the Copyright Act. [Yeah, the Copyright Act is so complex that explaining the basics of filesharing is beyond children who can download and install a filesharing program.] Any child is a terrible enforcement target. And because most adults never induce children to break laws, children induced to infringe copyrights would not even be “bad kids.” [Don't we already have a government agency to deal with problems like this? Let me think, isn't there some government agency that keeps track of Hollywood advertising, Tobacco advertising, and similar? Oh, yeah, the FTC. The way Hatch is talking, one would think we've never had to deal with similar problems before.] Indeed, they would probably be smart, mostly law-abiding young people with bright futures. Innocent, mostly law-abiding children make the worst enforcement targets – and thus the best “human shields” to protect an inducer’s business model. [Apparently these mostly law-abiding children don't have any adult supervision.]

This threat to children is real. Today, artists are suing high-volume filesharers who cannot be identified until late in the process. One filesharer sued for violating federal law over 800 times turned out to be a 12-year-old female honor student. This otherwise law-abiding young girl and her family then faced ruin by the girl’s favorite artists. The public knew that something was wrong, and it was outraged. [Interestingly, this also served to alert and educate the public to the dangers of filesharing. That is often how these things work. How many times do parents only find out about the illegal actions of their children when one of them has a run in with the law?] So the people who gave that girl an easily misused toy – and profited from her misuse of it – exploited public outrage with crocodile tears about the tactics of “Big Music.” [Problem is, did the software company specifically know it was giving software to a child? Should we require companies to require adult verification before people can download software (although the law won't let us require this for pornography)? What about IM? What about IRC and email? Who knows what sort of mischief a teenager can get into with GMail account? How does Google know how old the people who use its services are?] And then, I imagine, they laughed all the way to the bank. [Actually, I doubt it. The PR backlash hit both the RIAA and the P2P companies.]

The Supreme Court could not have intended to force artists to sue children [Will someone please think of the children?] in order to reduce the profits that adults can derive by encouraging children to break the law. No one would intend that. Yet it seems to be happening. [Yeah, it could be that the courts expect the companies to adapt to the new business environment and provide attractive alternatives. If videotapes were only sold for $100 or more, Betamaxes would have been used for a lot more piracy. But that didn't happen and everyone was happy.]

These are the inevitable results of a secondary-liability rule that immunizes inducement. [Umm, no. It is also a combination of the RIAA not taking the step of providing appropriate alternatives to reduce the incentive to infringe. Actually, about the only thing inevitable here is that innovation will be severely taxed by Hollywood. Piracy won't stop. That is why these programs are called "decentralized P2P."] This “rule” has created the largest global piracy rings in history. [Global, as in this law will not actually accomplish much, except to burden US innovators.] These rings now create billions of infringing copies of works, and reap millions in profits for leaders who insulate themselves from direct involvement in crime by inducing children and students to “do the dirty work” of committing illegal or criminal acts. ["Rip, Mix, Burn" Apple?] These rings then thwart deterrence and condemn attempts to enforce the law. [Correct me if I am wrong, but didn't Hatch just condemn attempts at enforcing the law as creating contempt?] These rings may now use profits derived from rampant criminality to extort their way into the legal Internet distribution market – a market critical to the future of our artists and children. [No industry has ever done that before. Not the piano roll market, not the film market, not the cable market. Oh, wait...]

This must stop – and stop now. Artists have tried: They targeted for-profit inducers. [Yeah, and the case hasn't come out of a single appellate court yet. Let's not rush to fix what might not be broken.] But artists were thwarted by a court ruling that held, in effect, that although artists can sue exploited children and families into bankruptcy, courts need “additional legislative guidance” to decide whether artists can, instead, sue the corporations that profit by inducing children to break the law. I find this assertion wholly inconsistent with the intent of both Congress and the Supreme Court. But until this fundamentally flawed ruling is overruled by legislation or higher courts, artists cannot hold inducers liable for their actions.

Fortunately, Congress has charged the Department of Justice to enforce the Criminal Code. [Phew ... glad to know that they're not ignoring what we pay them to do.] In the Criminal Code, Congress made it a federal crime to willfully infringe copyrights or to distribute obscene pornography or child pornography. [So now, instead of being sued into bankruptcy, those children Hatch is so concerned about will be going to jail?] Congress also made it a crime to induce anyone – child or adult – to commit any federal crime. [So ... the point of this staute is? After all, how hard would it be for the DOJ to toss the executives of these inducing companies into the klink?]

Indeed, Congress codified many forms of criminal secondary liability in the Criminal Code. I have already quoted its first sentence. Here is its second: “Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.” One court has said that this ensures that “[a] crime may be performed through an innocent dupe, with the essential element of criminal intent residing in another person.” [Gee, "one court." That's persuasive argument Senator. It would be nice to know a few of the details of the case. I suspect that the criminal working through a dupe was working through a specific dupe that they knew would be committing a specific crime. Not quite the same thing as P2P.] Not coincidentally, some federal prosecutors worry that P2P software makes infringement so tempting, easy and automatic that many of its users will lack criminal intent. [So, do you want to prosecute them or not, Senator? And do you think they should also be innocent of civil liability for direct infringement? After all, if you can enforce against the inducers, why do you need to enforce against the direct infringers, since they sound like such innocents?] Perhaps – but their relative innocence will not protect their inducers. [Good, no need for this statute then. After all, how hard will it be to find willful infringement with all this inducement going on?]

The Criminal Code also codifies other forms of secondary liability, like this one:

If two or more persons conspire to injure, oppress, threaten any person in any State … in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or the laws of the United States, …. [t]hey shall be fined under this title or imprisoned not more than ten years, or both…. [This is relevant, why?]

These examples of laws imposing secondary criminal liability have something in common: Congress codified no exceptions for “substantial non-criminal uses.” [Indeed. But, luckily, the courts have generally required something more than essentially knowing that some of your actions will likely assist others in committing crime, as Volokh has shown. Otherwise, gasoline stations in crime-ridden neighborhoods could be held liable for knowing that some of the gas they sell will be used in drive-by shootings.] The message is clear: Those who induce others to commit crimes cannot avoid prison by showing that some of them resisted. [Hatch calls it "resisted." I call it people using P2P for perfectly legitimate reasons. You might as well say, sports car dealers cannot avoid prison by showing that some sports car owners resisted speeding.] I will work with my colleagues in Congress to ensure that the Department of Justice enforces the federal laws that prevent anyone from inducing violations of any federal law by our citizens, our students, or our children. [Will someone please think of the children?]

Congress, too, must do its part by enacting the Inducing Infringement of Copyrights Act, S. 2560. This bill will protect American artists, children [Will someone please think of the children?] and taxpayers by restoring the privately funded civil remedy crippled by the Grokster ruling. Congress must act: A federal court has held [Oh my God! A single federal district court!] that artists can only enforce their rights by suing exploited children and students pending “additional legislative guidance” about whether artists can, instead, sue the corporations that profit by inducing children to break laws and commit crimes. ["instead" or "in addition to." Somehow I doubt all the consumer-targeted lawsuits will stop.] Silence could be misinterpreted as support for those who profit by corrupting and endangering others. [Indeed. It might also be interpreted as support for technological innovation and progress. Or support for a reasonably limited copyright monopoly. Or support for calm, rational thought instead of hysteric demagoguery.] This bill will restore the tried, privately funded civil enforcement actions long used to enforce copyrights. [Funny, I thought Hatch wanted the government to start engaging in civil enforcement. I think he called it the "PIRATE Act": PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry]

This bill will also preserve the Sony ruling without reversing, abrogating or limiting it. [Only in the narrow sense that one will still be able to sell the Betamax videotape system, except that it has been discontinued.] The Inducement Act will simply import and adapt the Patent Act’s concept of “active inducement” in order to cover cases of intentional inducement that were explicitly not at issue in Sony. [They weren't at issue in Sony because there was no doctrine of copyright inducement, otherwise, believe me, Hollywood would have made the argument in court. They certainly made the argument in the court of public opinion and Congress. Let's go back, shall we, to Valenti's infamous testimony:

It is a piece of sardonic irony that this asset [Hollywood], which unlike steel or silicon chips or motor cars or electronics of all kinds -- a piece of sardonic irony that while the Japanese are unable to duplicate the American films by a flank assault, they can destroy it by this video cassette recorder....Now, these machines are advertised for one purpose in life. Their only single mission, their primary mission is to copy coyrighted material that belongs to other people. I don't have to go into it. The ads are here. Here is Sony that tells you that you can record one channel while watching another. You can program to record a variety of shows on four different channels for up to 14 days in advance if you like....Now, Mr. Chairman, how many people would want to buy these machines if you said you couldn't use any copyrighted material on it. The machine would be useless and this is what the Ninth Circuit said. They advertise their machine blatantly and deliberately saying the way to enjoy this machine is to copy somebody else's copyrighted programs.
That certainly sounds like it would meet the "inducement" criteria that Hatch is talking about. So, when Hatch says it wouldn't overturn Sony, he is being disingenuous at best. As an aside, don't you like how charming Jack Valenti slyly insinuates that the insidious Japanese can't win a direct assault on Hollywood and thus must, shall we say, sneak attack with the VCR?] The Inducement Act also preserves the Section 512 safe harbors for Internet service providers. [Wait a minute, I thought Hatch was implying above that colleges, universities and businesses would be liable for the "mini-Napsters" on their servers.]

The bill also contains a savings clause to ensure that it provides the “guidance” courts have requested – not an iron-clad rule of decision for all possible future cases. This flexibility is critical because just as infringement cases are fact specific, so should inducement cases center on the facts of a given case, with courts endowed with the flexibility to impose just results. This bill does not purport to resolve or affect existing disagreements about when copies made and used within an individual’s home environment are permissible and when they are infringing. Rather, this bill is about is the intentional inducement of global distribution of billions of infringing copies of works at the prodding and instigation of sophisticated corporations that appear to want to profit from piracy, know better than to break the law themselves, and try to shield themselves from secondary liability by inducing others to infringe and then disclaiming control over those individuals. [Honestly, I don't know how Hatch makes these claims with a straight face. If someone sells a device that makes it easier to transfer files within the home, the device likely makes it easier to infringe in the home. There is really no limiting clause. Courts will be forced to argue about whether certain copying within the home environment is infringing.]

I also want to thank everyone who has worked with us to craft a bill that addresses this serious threat to children and copyrights without unduly burdening companies that engage in lawful commerce in the wide range of devices and programs that can copy digital files. As Sony illustrates, clear knowledge that a copying device can be used to infringe does not provide evidence of intent to induce infringement. [Ummm ... no. The issue of inducement was not properly addressed by the Sony case. I thought you were supposed to be a legal expert, Senator.] It was critical to find a way to narrowly identify the rare bad actors without implicating the vast majority of companies that serve both consumers and copyright-holders by providing digital copying devices – even though these devices, like all devices, can be misused for unlawful purposes. [Indeed, it is critical, unfortunately this is not a narrow bill.] In particular, I would like to thank the Business Software Alliance for its invaluable assistance in crafting a bill that protects existing legitimate technologies and future innovation in all technologies – including peer-to-peer networking. [Wait a minute ... I thought all the existing technologies were legitimate, but it was the actor's intentions that were the crime, not the technology itself. The cognitive dissonance of this speech is giving me a headache.]

Senator Leahy and I look forward to working with all affected parties to enact this bill and restore the balance and private enforcement that Sony envisioned. [Technically, this isn't a lie. But it is the functional equivalent of one. You see, it is pretty clear to me that Hatch's intent here is to mislead.] But until Congress can enact the Inducing Infringement of Copyrights Act, the duty and authority to stop inducement that targets children [Will someone please think of the children?] and students resides in the Department of Justice that Congress has charged to protect artists, commerce, citizens and children. [Mr. Ashcroft - sic 'em.] The Department must act now to clarify some simple facts: American has never legalized the “business model” of Fagin and Bill Sykes. [Interesting factoid: Some peop

Comments (25) + TrackBacks (0) | Category: INDUCE Act


COMMENTS

1. Crosbie Fitch on June 24, 2004 01:36 PM writes...

"They are the hundreds of millions [Hundreds of millions. That is an awful lot of 'direct infringers.' Certainly a higher estimate of infringers that I have seen before.]"

So, at least 200,000,000 people then?

At what point would lawmakers consider making popular behaviour legal, simply by dint of its popularity? Or are they blind to the people?

Remember, this behaviour has no harmful consequences whatsover, increases the prevalence of art, and only has a commercial consequence for distributors hoping to keep the price of easily reproducible content high by relying upon civil obedience to maintain its scarcity?

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2. Steve on June 24, 2004 03:49 PM writes...


It is *so* crystal clear to me that stomping out P2P is all about governmental control (or the loss thereof). Why? Because it's a simple matter for any government to identify a web site offering "illegal or inappropriate" content. With P2P...it's virtually impossible to control content dissemination.

Here's a case in point: it has become virtually impossible to find web sites that are displaying videos of the unfortunate and tragic beheadings by militant extremists. Being curious, I was easily able to obtain one off of P2P networks (though was sickened and disturbed more than I'd thought I would be). Still...I was glad that I viewed one of them as the impact of the viewing has stayed with me, and an image of some crazies standing behind the victim did not.

To me, it's important that information be free if our incredible American experiment is to continue.

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3. Assemblage on June 24, 2004 04:27 PM writes...

Great job. You do have one mistake though. The Graham you mentioned as (D-FL) is really Senator Lindsey Graham (R-SC). You find him cosponsoring all laws that help the RIAA and MPAA. He unfortunately represents me in South Carolina.

You can probably recognize him as one of the Congressmen (he was a Representative at the time) who grandstanded about the Lewinsky fiasco. He has also stood up and grandstanded about the Abu Grahab prison fiasco. It seems he is also a champion of the RIAA and MPAA.

I wanted to share with you a letter I received from the Senator.

I wrote Lindsey Graham (R-SC) last month about the Artists' Rights and Theft Act (ART Act) S. 1932. I found out that he is a cosponsor of this bill. I wrote to tell him:

1)I'm really against this bill.

2)I think that copyright laws are getting more absurd. In this bill it becomes a felony to copy a movie with a camcorder. The 8th Amendment must not be a consideration in this bill. This is just not a felonious crime.

3)I also thought the "facts" presented by one of the bill's sponsor, John Coryn (R-TX) at his website (http://www.cornyn.senate.gov/record.cfm?id=220874) to be purposely misleading. The facts it uses, are according to him all caused by piracy (aka P2P), which just isn't true. Also since they are used this way and not sourced, I have to question their accuracy.

This is his response about 3-4 weeks later:

"Thank you for contacting me with your thoughts on S. 1932, the Artists' Rights and Theft Prevention Act (ART Act). I appreciate the opportunity to hear from you on this issue.

I am an original sponsor of the ART Act. Peer to Peer file sharing is no different from stealing a movie off the shelf at the video store. The fact that it is more difficult to detect and prevent the stealing of copyrighted material does not make it any less wrong. The true test of a person's character is what they do when no one is looking.

I will continue to support efforts to protect copyrighted material without interrupting the free flow of ideas and uncopyrighted material that has made the internet such a useful tool. The ART Act is designed to enhance criminal penalties for the unauthorized recording of motion pictures in movie facilities. I supported this legislation in the Senate Committee on the Judiciary, and I look forward to continuing my support of this worthwhile proposal on the Senate floor.

Thank you again for sharing your thoughts. While I regret we disagree on this issue, I hope you will feel free to contact me on any matter of concern to you, or if I may be of further assistance to you and your family.

Sincerely,
Lindsey O. Graham
United States Senator"

I sure didn't vote for the guy. I found his grandstanding about the Lewinksy/Clinton fiasco to be hypocritical as well as disgraceful to people in South Carolina and the South. But what's worse he just got elected to the Senate to replace Strom Thurmond and you can look forward to him doing this for at least 4 more years. Since he’s a Republican in an Republican state, you can look forward to his “leadership” for probably a very long time.

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4. Ernest Miller on June 24, 2004 04:41 PM writes...

Assemblage, thank you, the text has been corrected.

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5. Brad Hutchings on June 24, 2004 05:18 PM writes...

One nit to pick with you Ernest. The Berkman quote may have been picked out of a different context than anyone remembers. I remember a very similar (if not the same) quote from an amicus brief that was filed in one of the downloading cases and linked from the Copyfight blog. The essence of that brief seemed to read "Yeah, if you can prove these are the perps, they are probably guilty as hell, but there are all these small mitigating factors that could make them innocent or not the perps". One of these scenarios, BTW, was the idiot Dad who left an open WiFi connection and managed to configure it with the port forwarding needed to enable the kid next door to file share. (Please note the sarcasm.) But I digress.

I have seen a little software developer discussion of this act on various developer darknets (where customers don't get to see that we get pissed off about people warezing our products). There is speculation that the INDUCE Act could help us get rid of the serial number sharing sites. All good in my book.

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6. Ernest Miller on June 24, 2004 05:51 PM writes...

Brad,

Unfortunately, getting rid of the serial number sharing sites using this law would come at a huge cost to many legitimate developers. All sorts of laws aimed at harms look good, as long as you don't take into account the costs and burdens on legitimate activities. I rather expect that many small software engineers, such as yourself, have more to fear from this law than benefit.

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7. Brad Hutchings on June 24, 2004 07:09 PM writes...

It seems that nobody in blogorrhea, er the blogosphere, has bothered to de-pdf the INDUCE act. While this wasn't nearly the effort that fisking Hatch was, I do think it is germane to the debate:


A BILL To amend chapter 5 of title 17, United States Code, relating to inducement of copyright infringement, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE. This Act may be cited as the ‘‘Inducing Infringement of Copyrights Act of 2004’’.
SEC. 2. INTENTIONAL INDUCEMENT OF COPYRIGHT INFRINGEMENT. Section 501 of title 17, United States Code, is amended by adding at the end the following:
‘‘(g)(1) In this subsection, the term ‘intentionally induces’ means intentionally aids, abets, induces, or procures, and intent may be shown by acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor, including whether the activity relies on infringement for its commercial viability. ‘‘
(2) Whoever intentionally induces any violation identified in subsection (a) shall be liable as an infringer. ‘‘
(3) Nothing in this subsection shall enlarge or diminish the doctrines of vicarious and contributory liability for copyright infringement or require any court to unjustly withhold or impose any secondary liability for copyright infringement.’’.

I wish that Orrin Hatch knew he was a lightning rod and would let Barbara Boxer get on her high chair in this debate. The only beef I have with the text of this thing is the word "commercial". I fail to see how this overturns Sony given subsection (3).

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8. Ernest Miller on June 24, 2004 07:21 PM writes...

All subsection 3 means is that selling Betamaxes would still not make Sony liable for contributory or vicarious infringement. So, to that extent, it doesn't overturn Sony. However, the question of inducement was never raised during the Sony case because copyright inducement was not a doctrine at the time. So, under this new law (should it pass), Sony could be sued for copyright inducement (but not contributory or vicarious infringement).

Today, of course, no judge would outlaw videotape players as there is plenty of evidence of their lawful use (and the judge would most likely get lots of death threats). However, had this law been in effect back in 1976 when the Betamax was introduced and the Sony lawsuit was launched, there is a very good chance that Sony would have lost. Jack Valenti was quite adamant in his claims that the only use for VCRs was infringement, that Sony knew this, and that Sony induced the public to infringe. Read his statements and testimony at the time, part of which I quote above.

PS Thanks for transcription. I've already transcribed it once and was too tired to do it again.

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9. Brian Dear on June 24, 2004 07:36 PM writes...

I would love to know if the color photography that graces the home page of http://hatch.senate.gov was properly licensed and paid for?

At the top and bottom of Hatch's home page are collages of pretty, outdoor Utah pictures. Where did they come from? Are they taken by Hatch? Were they properly licensed? Can Hatch's staff provide evidence that they were?

What could we conclude if it turns out that even one of the images used in the collage was not legally obtained? Would that not be . . . infringement!?

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10. Brad Hutchings on June 24, 2004 08:09 PM writes...

Ernest,

You make a fair point about Valenti's testimony at the time. But if the INDUCE Act had been law at the time, the same basic question is at issue: whether time shifting is copyright infringement, not whether a Betamax machine enabled it. No question that Betamax machines enabled people to make copies of copyrighted works broadcast over the air. As Valenti said, that's what the thing does.

In today's technological context, we pretty much all understand that copying is not the problem -- in the digital world, copying is necessary and inevitable at many levels. The problem is unauthorized widescale distribution. Do have a solution to this that doesn't involve copyright owners "adjusting their business models"?

As to Brian's comment.... If you think there are questions about it, you can read the Senate's Privacy Policy and even send an inquiry to the Senate's Webmaster. Why not do some investigation before going Eugene McCarthy on us? Since I doubt you don't have the cajones to follow through, I've taken the liberty of inquiring myself. I'll report my findings back to the blog.

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11. Branko Collin on June 24, 2004 10:08 PM writes...

Hatch starts with: "Mr. President, I rise". Doesn't he think of the children!?

(OK, that wasn't funny. I'll shut up now.)

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12. cypherpunk on June 24, 2004 10:30 PM writes...

I have to say that I don't think this was a very effective effort. It's repetitive and mind-numbing, not to mention hard on the eyes (especially once bold face got stuck "on" after the FTP quote). This kind of nit-picking detracts from the big issues and sheds heat rather than light.

I'd like to hear substantive comment on a couple of issues. First, is this bill in fact redundant? Does the existing prohibition of "inducing" already cover inducement to infringe? If so, why is the industry pushing this so hard? And also, why are the opponents pushing back so hard? Your carping gave no insight into this matter, which seems very relevant to me.

Second, when you read Hatch's commentary straight through without interruptions, he does make some valid points. It seems illogical to have Napster illegal and Grokster legal just because of minor details of how the information flows and where it is stored. Hatch is trying to make both be illegal. Most online groups would like both to be legal. But you both have some common ground here, that the existing situation is untenable. Again, your intermixed commentary obscures this relationship.

It also seems to me that there is a legitimate problem when a company profits by selling a product which puts its users at risk when they use the product in the usual way (the same way that 99.9% of other users are using it). I don't think this is the right way to solve the problem, but Hatch is right to point it out. (Maybe Kazaa users who get sued by the RIAA could form a class action lawsuit against Kazaa for selling them a program that got them in such expensive trouble?)

The real issue is lost in the back-and-forth: the difficulty of drawing a line between good and bad technologies. The problem with this bill is not that it criminalizes Kazaa, it's that it might criminalize a lot of other things as well. It's badly drafted and over-broad. That's enough to reject it.

I'm sure it was satisfying to take apart Hatch's speech that way, but ultimately I think it was a counter-productive effort that's likely to obscure the more important issues.

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13. Ernest Miller on June 24, 2004 10:49 PM writes...

I'm sorry you're disappointed in my writing. Feel free not to read it.

The bill is redundant with regard to criminal charges. It extends liability with regard to civil cases. There is nothing stopping the DOJ from bringing criminal infringement inducement charges today, except for the difficulty of proving it under standard legal doctrine. The industry is pushing hard because they want to bring the cases in civil court.

That "minor detail" is called "control." If a Ford automobile crashes into me, do I sue Ford or the person driving? It depends on what caused the accident. If the accident was something Ford had control over, like a faulty accelerator, the I sue Ford. If the accident was something that Ford had no control over, like the other driver was drunk, then I sue the other driver. While the concept of "control" might seem like a "minor detail" to Hatch I assure you it is an important legal concept. Frankly, I think the Napster court was more or less right (some quibbles) in focusing on the issue of control.

There may indeed be a legitimate problem, but the question is, what theory of liability do you propose? Manufacturers of sports cars know that many, if not all, of the drivers of such cars will exceed the speed limit. They also know that in some percentage of those cases, the speeding will lead to death. However, do we generally hold the manufacturers of sports cars liable for speeding deaths featuring their cars? No. Would doing so decrease the number of deaths? Yes. Yet, we don't do it. Perhaps KaZaA users will go to court. I doubt they'd win, but who knows, it might be like the tobacco cases.

Personally, I think it was fairly productive in showing the muddled logic and rhetoric of Hatch's position. Your satisfaction may vary.

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14. Derek Slater on June 24, 2004 11:03 PM writes...

Cypherpunk, if you're interested, see my argument on how one could make Napster liable, Morpheus not, and have a consistent, logical doctrine - one that's even consistent with Sony:

http://blogs.law.harvard.edu/cmusings/2004/06/23#a705

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15. Jay Fienberg on June 25, 2004 01:42 AM writes...

I read the whole thing--found it positively educational. Thanks!

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16. anonymous on June 25, 2004 11:27 PM writes...

I'm not really a huge Michael Moore fan, but the method he uses of walking in places with a video camera and showing people what happens is a great idea. What say we get Dr. Lessig an appointment with this Hollywood tool to discuss this matter, and film it? We can a) get the issues cleared up on video, b) add to the public domain with a Creative Commons license, c) reconnect us peasants with public policy, and d) put Hatch's face on a piece of media illustrating legitmate uses of p2p software since that's how it gets distributed

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17. Harry on June 26, 2004 07:46 AM writes...

I am truly sorry Ernest but I just cannot read through an entire Hatch blathering. I, as I reach middle age, find my self lodged in a political ideology that enjoins the most appealing aspects of conservatism and libertarianism a rejecting the absurdly stupid stuff. I find Hatch to be an insufferable and unprincipled political opportunist and insider. The man has devoured loyal progeny and scapegoated staff in an effort to appear collegial, magninamous, and better than Democrats. Someone needs to tell Hatch loyalty is a two-way street.

This bill seems to be a deep pocket effort to prevent the way intellectual material has been distributed in this country from evolving in the digital age. Hooey. Peer-to-peer exchanges harm the artist way less than the distribution industry. As a matter of fact production savvy artists no longer need production or distribution companies to bring their products to market, because other than storage, cd's and dvd's are sooner or later going to go the way of the 8-track tape. Because the record and movie industries know that when fans and/or customers can do business directly with the artists or producers that their stranglehold is over and the artist, who is the true intellectual here, and the free market will be the true force in the industry as it should be. It's just that the deep pockets ain't going to go without a fight.

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18. M. Simon on June 26, 2004 07:08 PM writes...

What happens in these cases after much wailing and gnashing of teeth is that the law eventually conforms to reality and not the other way around.

DeSoto's book on capitalism explains it.

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19. Kris Holland on June 27, 2004 12:54 AM writes...

Could you release this rebuttal under the GFDL or creative commons license so I can forward it and post it to other places? The word needs to get out.

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20. Ernest Miller on June 27, 2004 01:06 AM writes...

Everything I write on this blog is under the following creative commons license:
http://creativecommons.org/licenses/by-nc/1.0/

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21. Miguel Nunes on June 29, 2004 02:28 PM writes...

The INDUCE act and how it's saw by an european:

The Induce act that this Senator is trying to pass in the Congress is comparable to somebody trying to stop a river with a dam. If in the beggining they will get some water stopped, the fact is that at the end, the same amount of water will pass.
The real problem of Piracy is not the children (or whoever he's trying to save) but the advance of technology that made it possible at the touch of a click with a very low cost. So the question is: will we stay in the dark ages in terms of piracy control, or will we change to more simple ways of people to legally get what they want. If you ask me, It's a lot easier to get a movie on internet that to buy it in a local store or to go see it in a cinema. It's just a click away. So why doesn't Hollywood follow their pornographie palls and make a movie available also to download, like a "iMovies". Unless they change their "It's our way or the highway (or jail)" people will always go to the easy way.
I believe that something like this would never pass in the EU Comission because the text is so confusing that allows misunderstanding and, possibly, misuse (but maybe that's what Hollywood want's).
I also believe that unless things start to change alot, there's will be even more piracy in the next years, because the media technology is getiing more concentrated in what people need (because they're the ones that pay) that in what Hollywood wants.

This is my humble opinion.

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22. Brent Royal-Gordon on July 8, 2004 05:58 AM writes...

Senator Hatch speaks repeatedly and at length about the vast distribution of pornography on the same P2P networks used for copyright infringement. So isn't downloading pornography a substantial non-infringing use of those networks?

Just a thought...

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23. G.Johnson on July 8, 2004 07:40 AM writes...

My first thought is how in hell did a nut-balls like Hatch ever get elected in the first place??

Secondly how about the illegal price fixing/extortion taking place by the RIAA/MPAA and their affiliates (Movie studios etc) that has yet to be prosecuted??

Nice rebuttal imho! :)

I'm glad I'm not an American though to be honest.. Seems so far our Canadian courts have more common sense than the US counterparts.

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24. glisher on August 3, 2004 02:28 PM writes...

yow, I read it all the way through! I really must not like my job.

pretty good rebuttle I thought. though taking them out blow-by-blow like that means you lose any consistent argument theme. and there is a lack of a potential solution in your argument.

Free legal downloads for $6 a month. DRM free. The artists get paid.
http://www.theregister.co.uk/2004/02/01/free_legal_downloads/

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25. Josh on September 14, 2004 07:01 PM writes...

"You can blame the law: Copyright is a stupid law needlessly enshrined in the Constitution by naives like James Madison."

Interesting thought, so you are saying that our Constitution is original and not copied from other sources? James Madison did not ignore intellectual property of.. um... say England. (You should read their core constitution, it should look familiar.)

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