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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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« Are the Opponents of the INDUCE Act (IICA) Claiming that the Sky is Falling? | Main | No Guarantees with Content Subscriptions »

July 09, 2004

Introducing Hatch's Hit List

Posted by Ernest Miller

When the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) first became news it was disparagingly (and rightfully so) compared to an infamous bill from 2002, the Consumer Broadband and Digital Television Protection Act aka CBDTPA aka Hollings Bill (after the Senator who sponsored it) (INDUCE Act = Son of Hollings?). One of the most clever attacks on the CBDTPA was a little thing Ed Felten came up with on Freedom to Tinker: Fritz's Hit List. What was Fritz's Hit List? Well, the name came from Sen. "Fritz" Hollings. More importantly though and in Felten's own words (New Feature: Fritz's Hit List):

Most readers have probably heard me, or someone like me, say that the Hollings CBDTPA has far-reaching effects -- that it would regulate virtually all digital devices, including many that have nothing at all to do with copyright infringement. Though this argument is right, it is too abstract to capture the full absurdity of the CBDTPA's scope.

To foster reasoned debate on this topic, I'm inaugurating a new daily feature here at freedom-to-tinker.com, called "Fritz's Hit List." Each entry will give an actual example of a device that would meet the CBDTPA's definition of "digital media device" and would thereby fall under the heavy hand of CBDTPA regulation.

I'll post a new example every weekday for as long as I can keep it up. Please email me if you want to suggest an example. (I have plenty of good ones in the queue already, but your suggestions may be better than mine.)

Well, I think the far-reaching effects of the INDUCE Act are worthy of similar treatment. So, starting today, I will endeavor to post every weekday an example of a nascent technology that can be quashed by the INDUCE Act. Of course, "Orrin's Hit List" doesn't quite roll off the tongue, thus "Hatch's Hit List." As with Fritz's Hit List, please email me (ernest.miller 8T aya.yale.edu) with suggestions. Read on...

UPDATE
The entire list can be found here: Hatch's Hit List

Hatch's Hit List #1: WiFi Car Stereos

Ford has released the first production car with WiFi so that you can transfer MP3s from PC to car wirelessly (SUV's Wi-Fi system lets drivers leave CDs at home). On Copyfight Donna Wentworth notes that this capability is just begging to be sued under the INDUCE Act (Cars + WiFi + Digital Music = Induce Bait). She's right.

After all, you have other automakers, such as BMW, offering digital music for car stereos but through a safe, DRM'd product (You Just Can't Trust BMW Owners). Clearly, offering wireless transfers of non-DRM'd music is begging for piracy. For example, see this article on Ford's newest car accessory (Wi-Fi In Cars -- The More Practical Version):

[S]ometimes the most useful technologies have a way of "sneaking" their way into the market. They're designed for one small thing, but people figure out ways to use them for much, much more.
Isn't that what Ford is trying to do, "sneak" P2P into its cars? Indeed, Ford should know better; check out the first comment on the article (I'm not making this up):
He he, this might be the start of those P2P highway networks we've already mentionned ;)
Or how about this post on Boing Boing by the notorious Cory Doctorow (WiFi car-stereos):
A new generation of WiFi-equipped in-car MP3 players is shipping. The possibilities are endless -- imagine a traffic-jam-area file-sharing/streaming net...

Or how about some of the conversations in the forums of Rockford Omnifi Media (makers of aftermarket MP3 WiFi Car Stereos) (Omnifi™ for the Car: How can I get my MP3's off of my DMP1 drive?):

OK...hear's my deal - I am about 2600 miles from home...on a really long business trip. I happen to have my car (and my Omnifi DMP1) with me, but of course I do not have the computer that holds all of my MP3's. I recently bought an iPod and I am trying to figure out a way to copy the music off of my DMP1 drive and onto my new iBook so I can load all of that music on my iPod. Any ideas? .... There is an app to get content from you Omnifi Hard Drive: http://members.cox.net/omnifiuser/ Don't know if it will run on a Mac, but it's Java & opensource. Might want to e-mail the author.
A business trip, yeah, sure. You don't have your computer that has the MP3s, but you've got a brand new iBook and iPod. Ooookay. Clearly, however, Omnifi Media knows that its consumers are writing apps letting people upload music from its players: Doctorow's Car Audio Paaaartay!

Heck, check out this review that Omnifi Media touts: Driving Beats [PDF]. The magazine is the hardcopy edition of WIRED - the infamous Feb 2003 edition - the one with the Hindenberg on the cover under the title "Rip. Mix. Burn" and the subtitle "The Fall of the Music Industry."


And don't even go to the forums over on Rockford Fosgate (another audio electronics company owned by the same people who own Omnifi - originally Omnifi was part of Rockford Fosgate) (The Lounge: Music Tracks: Downloading):

anyone else been having trouble with kazaa? it seems most of the songs i dload go haywire after the first 15 seconds or so. is there any other software ya'll use to dload besides overnet? i couldnt get overnet to dload anything.
The forums might not be moderated, but that doesn't mean that the people at Rockford don't read them. After all, why have forums at all if you aren't going to read them for feedback from your customers?

Clearly, copyright will be much more secure when the INDUCE Act is used to ensure that car stereos are required to incorporate DRM. Of course, that will probably mean that your Ford might not be able to downloads WMA files from your Wintel box, and your Chevy won't accept iTunes from your G5. But, hey, copyright is more important that compatibility, convenience and ease-of-use, right?

Bonus LawMeme Poll

LawMeme is running a new poll which asks:

What Will Be Banned First If the INDUCE Act Passes?

  • iPods
  • VCRs
  • KaZaA
  • FTP
  • PCs
  • Paper
  • Senator Hatch
  • Fred von Lohmann
  • TCP/IP
  • Common Sense
Go. Vote.

Comments (18) + TrackBacks (0) | Category: Hatch's Hit List | INDUCE Act


COMMENTS

1. David Mohring on July 9, 2004 06:30 PM writes...

The recording industry want you to break the law...
Format shifting insanity from New Zealand
http://www.aardvark.co.nz/daily/2004/0709.shtml

Permalink to Comment

2. Ernest Miller on July 9, 2004 06:37 PM writes...

Heh. Excellent article!

Permalink to Comment

3. Ryan Tanner on July 9, 2004 07:23 PM writes...

In some ways, I want them to come after the iPod, only because its a legal battle that they would lose in a heartbeat. There are already hundreds of thousands of iPods out there, and more are sold ever day. Maybe if we're lucky the judge that gets the case owns an iPod.

Permalink to Comment

4. Erik Forbes on July 9, 2004 07:51 PM writes...

Heh, wouldn't that be a conflict of interest? ;)

Permalink to Comment

5. Kevin on July 9, 2004 08:37 PM writes...

Silly putty, ebay, ftp, blogger, digital cameras. I can make near perfect copies of Dilbert comic strips from the newspaper, then take a digital photo and republish them on my blog and resell the silly putty on ebay.

Permalink to Comment

6. illovich on July 9, 2004 08:59 PM writes...

Hell, why stop at "nascent" technologies? If a technology such as an mp3 player "induces" copyright infringement simply because it allows the infringement of copyrighted material, then not only are scanners, printers and cameras targetable, but indeed photocopiers, mimeographs, typewriters (after all, you have been warned about properly citing your sources)... even the printing press could be a target.

Actually, it's really easy to make a copy of a book by simply writing it down on another piece of paper... so perhaps I could sue the Cross Pen company because their ink delivery technology makes it easy for anyone to make a copy of my website...all they need is a piece of paper, which can be bought relatively cheaply.

To be perfectly fair, I'm not sure my case could prevail in asserting that pens "[rely] on infringement for [their] commercial viability," but I could give it a shot.

It would be a very costly battle for the fledgling Cross company to fight.

Permalink to Comment

7. Jay Fienberg on July 9, 2004 09:32 PM writes...

I don't know if this is too far fetched, but if you have a copyrighted website, and you offer an RSS/ATOM feed, then aren't you inducing others to violate your copyright (because people use RSS/ATOM to make and distribute copies of your site)?

If such "inducement" could be liable under INDUCE, I would think any website for which multiple parties hold copyrights could be in trouble, as one party could sue the others for inducing the piracy of anothers work. Ernest could sue Corante?

Permalink to Comment

8. Ernest Miller on July 9, 2004 09:41 PM writes...

Jay,

The RSS feed situation would be an authorized copy, so there would be no infringement upon which to rest secondary liability. On the other hand, a feed scraper that makes feeds from sites that don't offer them is probably vulnerable.

Permalink to Comment

9. Jay Fienberg on July 9, 2004 11:27 PM writes...

Thanks Ernest. I think another example, then, would be a site scraper that extracts info out of a web page and republishes it. Ben Hammersley's recent FedEx Package Tracking in RSS being an example ( http://www.benhammersley.com/tools/fedex_package_tracking_in_rss.html ).

Also, under INDUCE, I don't think I'll be able to safely continue development on my own tech project, the iCite net, which originally was created to facilitate sharing digital catalog annotations between libraries, and between library patrons. Some of those annotations might be infringing.

Permalink to Comment

10. Trousle Undrhil on July 10, 2004 12:49 AM writes...

Heck, for that matter, they could go after the internet in general. All ISPs would be viable targets for this case, especially if it can be proven that a subscriber of their service was infringing on someone's copyright. So, now, we can sue not only the person who actually copied my website, but their ISP and *their* parent companies as well. Granted, I doubt those companies thrive by people stealing copyrighted information but there are some companies out there that allow anonymity when surfing and emailing.

Symantec would be liable for a lawsuit since their software Ghost can be used to make a complete copy of a hard drive onto a CD. Anything on that hard drive which is copyrighted was just copied illegally unless you specifically asked that copyright owner if you could ghost your hard drive to another one. Wow. I think that's going to be the killer right there. :)

Trousle

Permalink to Comment

11. johnj on July 10, 2004 03:34 AM writes...

INDUCE origin exposed
Sen Hatch is a Mormon.
The mormon church owns the patent and all rights to the Dolby system. They get a piece of every penny spent on anthing produced with Dolby on it including cd's and dvd's.
The church decided every file shared or ripped was stealing from them.
Hatch was called on the carpet and told to do something about it NOW and was handed a draft bill written by the church lawyers.

Permalink to Comment

12. Bill Wilson on July 10, 2004 03:54 PM writes...

Not having read the proposed legislation yet, I wonder what this will do to photocopier and document imaging manufacturers.

Permalink to Comment

13. Bill Wilson on July 10, 2004 03:56 PM writes...

Now having read the proposed legislation, sure looks to me like Xerox might object to the bill.

It's also an excellent example of horrible legislative drafting.

Permalink to Comment

14. bibliophile on July 10, 2004 06:42 PM writes...

Electric Frontiers Foundation wrote a fake complaint against Apple using the terms of INDUCE.

Permalink to Comment

15. David Carroll on July 11, 2004 07:18 PM writes...

There's nothing in the INDUCE act that limits liability to inducement of violations of §106(1) - making simple copies - only. The bill says you can be held liable for inducing any §501(a) violation, and §501(a) sets penalties for violating anything from §106 through §122. That would seem to include inducing violations of §106(2) - making derivative works.

Thus, creators of tools for modifying copyrighted content would appear to be liable inder the INDUCE Act. For example -

1) Software that blocks ads & popups from copyrighted web pages.
2) Software for automatically translating content - PDF files or Flash content, for instance.

Permalink to Comment

16. Ernest Miller on July 11, 2004 07:38 PM writes...

Absolutely. I've already written about the INDUCE Act and Derivative Works and will certainly be using lots of examples on Hatch's Hit List. I've even got some examples of things that induce public performance and/or distribution. :-) So keep those examples coming!

Permalink to Comment

17. David Carroll on July 11, 2004 10:35 PM writes...

Will do. I'll note that Mozilla already has image-blocking features, so presumably they could be liable for inducing creation of derivitive works.

Permalink to Comment

18. John David Galt on July 12, 2004 11:29 PM writes...

INDUCE, like the similar bills that preceded it
(not just the NET Act and DMCA, but also the Sonny
Bono copyright extension act and even UCITA) is a
panic reaction to the fact that the modern,
general purpose computer has brought freedom of
speech into conflict with copyright.

Inevitably, one of the three -- freedom of speech,
or copyright, or the computer -- will soon cease to
exist. And woe to us all if copyright isn't the
one that falls.

Naturally, the media side with copyright owners
because they are copyright owners. So let's make
a conscious effort not to let them redefine the
whole debate by redefining the English language.
Infringing copyright may be a crime, but it is
still just "infringement", NOT "piracy" or even
"theft".

I think it's time to extend the present boycott of
Hollywood music to its movies and TV, and to the
products of members of the Software Publishers
Association, until they stop trying to take away
our rights to make reasonable use of what we've
bought and paid for from them. There are plenty
of alternative products already available, if you
look for them.

Permalink to Comment


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