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June 25, 2004
EFF's Mock INDUCE Act Lawsuit
Brilliantly satirizing (is it really satire if its true?) how easily Hollywood (or any copyright holder) could bring a lawsuit under the proposed INDUCE Act, EFF attorneys have drafted a mock lawsuit complaint against Apple (for making the iPod), C|Net (for reviewing the iPod), and Toshiba (for supplying hard drives for iPods).
Read the press release: Will the Inducing Infringement Act Kill the iPod?.
Read the 9-page complaint: Fake Apple Complaint [PDF].
My take on the INDUCE Act here: The Obsessively Annotated Introduction to the INDUCE Act.
The complaint is rock solid and shows how easy it would be for a plaintiff to force an extended court battle:
Because the Induce Act defines "intent" as being "determined by a reasonable person taking into account all relevant facts," it's unlikely that a technology company like Apple would be able to easily dismiss any lawsuit brought against it. It would face the prospect of an expensive trial, with all the attendant legal fees and negative publicity. One such company, SonicBlue, recently fought against a group of copyright holders in court over its ReplayTV and spent close to $1,000,000 per month in legal fees alone. In essence, this means that copyright owners can use the "inducement" theory to inflict an arbitrarily large penalty on any tech company that builds a device they don't like. That's not a pleasant possibility for an innovator to face as he or she tries to launch a new product.
The complaint reads like an RIAA wet dream:
8. Before the introduction of portable digital music players, the value of the music files derived from infringing sources was limited by the fact that computer users generally had to be sitting at their computers in order to play and enjoy them. Defendant Apple knew this and hence made the calculated decision to intentionally induce and enhance the attractiveness of infringement by providing these infringers with a device to enhance the rewards of their illegal labors the iPod.
9. As detailed further in Professor Experts report, the iPod would have been much less attractive to consumers had it been incompatible with the music files downloaded from P2P networks and had it not allowed consumer-to-consumer transfers. Professor Experts report also makes it clear that the iPod, in turn, enhanced the attractiveness of P2P networks by offering iPod owners expansive storage capability and lightning- fast data transfer, allowing them to listen to any number of infringing music files when away from the computer.
10. Surveys conducted by Professor Expert establish that a majority of iPod owners have used at least some significant portion of their iPods to store and play infringing music files, whether derived from P2P networks or promiscuous hand-to-hand copying. Upon information and belief, Apple was certainly aware of this fact from its own internal marketing research.
Apples Rip, Mix, Burn Campaign Demonstrates Its Intent To Induce Infringement
11. Apple has directly encouraged music piracy through its Rip, Mix, and Burn campaign used to sell both its Macintosh computers and iPod player. There can be no better evidence of inducing infringement than to literally spell out the steps to ones customers.[emphasis in original]
Read the whole thing. Laugh. Then cry.
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