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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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July 23, 2004

Sen. Hatch's Shifting Rhetoric in Favor of the INDUCE Act (IICA)

Posted by Ernest Miller

Last June, Sen. Orrin Hatch (R-UT) put forward the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). He introduced the bill with a long and somewhat strange statement, which I responded to in detail: The Obsessively Annotated Introduction to the INDUCE Act.

Yesterday, the Senator gave another lengthy statement in favor of the INDUCE Act as his introduction to the Senate Judiciary Committee's hearing on the bill (Protecting Innovation and Art while Preventing Piracy). Read Hatch's statement: Judiciary Statement: “Protecting Innovation and Art While Preventing Piracy”.

Don't worry, no annotation this time, just a look at how Sen. Hatch has shifted his rhetoric. Read on...

The first thing that I noticed is that Sen. Hatch has significantly toned down his rhetoric. Whereas his introduction of the bill had a constant refrain of references to protecting the children, this statement mentions "kids" only once. Nor is there a mention of the danger of pornography on P2P nets, which is amazing considering Hatch's seeming obsession with the issue (The INDUCE Act (IICA) - Putting the Pornography Industry in Charge and PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry).

As before, however, Hatch again emphasizes the profit-making filesharing networks. If the real problem is the profit-making filesharing networks, why does the INDUCE Act not exempt non-commercial filesharing networks? Strange omission, that.

Damn the Defaults

Register of Copyrights Marybeth Peters emphasized the role of defaults in P2P filesharing software in her testimony (Copyright Office on INDUCE Act (IICA): It isn't Strong Enough). Perhaps she and Hatch were exchanging notes, because defaults play a major role in Hatch's testimony as well. Apparently, it is the fact that these networks have sharing as the default that is the problem.

First, however, Hatch makes an interesting admission: people will download copyrighted works with little inducement:

[P2P networks] must encourage users to infringe copyrights by downloading infringing copies of works. This is an easy task because downloading users get for free valuable works that they would otherwise have to purchase. Unsurprisingly, the user-interfaces of most filesharing software provide no warnings about the prevalence of infringing files or the severity of the civil and criminal penalties for succumbing to the pervasive temptation to download them.
So, it is the lack of warnings in the user-interface that makes the networks criminal? I can't tell you how many programs I use that enable copyright infringement that don't have warnings in the user-interface. Better start slapping a great big copyright warning onto the user-interface of every program that can be used for copyright infringement.

Hatch then makes some good points about the defaults of these programs. He notes, correctly, that if the defaults are set differently in P2P programs (for example, not to automatically share what is downloaded), then there would likely be fewer files available on the networks. However, he makes this point somewhat strangely:

This makes uploading and redistribution automatic and invisible to the average user. This design ensures that while an infringing download requires a conscious choice, the separate and more dangerous infringing act of uploading usually does not.
Apparently, Hatch is less troubled by infringing downloaders than he is about infringing uploaders. And it is true, except for the wiretapping potential of the PIRATE Act, downloaders are essentially untouchable. Hatch also complain's about BearShare's default of making all media files on one's computer available for upload.

As evidence of this poor interface design, Hatch cites the testimony of a woman who was sued by the RIAA for infringement and "lost her life savings":

I never willingly shared files with other users…. As far as I was concerned, the music I downloaded was for home, personal use.… I downloaded songs I already owned on CD because I didn’t want to mix them manually.… I don’t know how to “upload” songs on the computer either. As far as I was concerned copyright infringement was what the people in Chinatown hawking bootlegged and fake CDs on the street corner were doing.
A terrible, sad story, right? Well, the woman's full testimony can be found here: Statement of Lorriane Sullivan, Senate Committee on Governmental Affairs, September, 30 2003. Her life savings was $1,500, since she was a full-time college student/part-time worker. Losing that much isn't good, certainly, but "life savings" is a bit much. Ultimately, she settled for $2,500, raising $600 in donations via a website she built. In any case, why hasn't Hatch questioned why the RIAA seeks such large settlements in these cases? After all, what does a couple of thousand dollars mean to the RIAA and labels? I'm sure Miss Sullivan, the innocent, would have promised to never do it again. What did taking away her meager "life savings" accomplish?

Of course, Miss Sullivan doesn't simply blame filesharing networks either. As INDUCE Act critics point out, the bill could make makers of CD-Rs liable. Miss Sullivan is case in point:

I feel that I have been misled as a consumer of music. I do not burn CDs and yet when I go to the store I see Sony sells “writable” discs. I wondered what I was supposed to put on these discs since downloading is supposedly akin to shoplifting music. Also as equaling misleading is the advertising that Sony has on television for their mini-discs. In the commercial you see a blue-headed alien encouraging a couple hundred friends to copy the play list he has created. Is it any wonder why other consumers such as me found, and still continue to find, it all so confusing?
That darn Sony, inducing infringement and confusing consumers like that. If Miss Sullivan is to be our guide to misled consumers, we obviously need a crackdown on CD-Rs.

Ultimately, the default issue, the way Hatch seems to explain it, seems to be more a problem of consumer protection than copyright infringement. His statement begs the question: Should we be passing copyright laws against this, or leave regulation up to the FTC?

When Should Congress Act?

Hatch is also upset because some people are saying that the lower courts should follow precedent until and unless Congress acts to change the law. Shocking! Some of these people are also saying that Congress should refrain from acting until the courts have worked through these problems under existing precedent. Unbelievable!

Why, I believe that federal district courts should decide what the law should be, regardless of Supreme Court precedent. And, everytime a single federal district court makes a possibly wrong decision, the Congress should immediately leap into action and legislate to correct that decision before the case makes it through a single appellate court.

The Intentions of the INDUCE Act

Hatch next goes on to explain what the "intentions" of the INDUCE Act are. "Intentions" are strange things. Some people think you should judge intentions by circumstantial evidence and what a reasonable person would think. By that rule, a short look at the INDUCE Act would lead one to believe that its supporters "intended" to give copyright owners dominion over technological innovation. But Hatch says that is not the case. Who are you going to believe, Hatch, or your lying eyes?

The three intentions of INDUCE that Hatch points out are:

  • It is technologically neutral. Yep. It can be used to go after everything from Legos to VoIP.
  • The Act uses a proven model of secondary liability taken from patent law. Well, no, it doesn't. See the testimony from three high-tech organizations who are very familiar with patent law (Shredding the INDUCE Act (IICA) - CEA, IEEE-USA, NetCoalition).
  • The INDUCE Act is aimed at only a narrow class of defendants. Well, if that is the case, I suggest Hatch send the aides who drafted the Act back to law school for some remedial classes. Hatch claims that the Act preserves the protections of Sony, though I'm not really clear how he can claim this. Although, this a good point when a re-drafted version of the Act is made available that codifies Sony. More on this point in a later post.

Finally, Hatch shows that he misses the point regarding EFF's mock iPod complaint. His response is disturbingly literal:

A real court would respond to that mock complaint in two words: Complaint dismissed. The caselaw states that no one can “induce” unlawful acts that have already occurred. Neither Apple nor the iPod violate S.2560 – even if portable mp3 players became commercially viable only because filesharing piracy created mp3 collections too large to be explained by legal purchase.
Swish! That one went over his head.

Hatch is still going to push this bill, but he has certainly moderated his rhetoric in favor of it. This will make drafting a much better bill easier.

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.

Comments (1) + TrackBacks (0) | Category: INDUCE Act


COMMENTS

1. Crosbie Fitch on July 23, 2004 06:44 PM writes...

LEGO.

Don't fight to make INDUCE a little less unpalatable.

Fight either to make it more draconian, OR propose an act that makes p2p immune from copyright infringement.

I doubt anyone's got the clout to do the latter, but the former, now that's possible. Ask for Hatch's original draft to be reinstated as a far more preferable option - indeed, combine it with Marybeth's. Don't let him get off his stalking horse as his prey gets closer to being within his grasp.

It would be better for the industry to be rapidly strangled to death to warrant its resurrection, than to suffer a drawn out stagnation into a lifeless limbo from which resurrection is not possible.

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