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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 30, 2004

Hatch's Hit List #16 - The New York Times

Posted by Ernest Miller

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

Today on Hatch's Hit List: The New York Times
Tip o' the hat to Fred von Lohmann

You would think that they would know better, given that they make a lot of money from their own copyrights. Apparently not.

Yesterday, the New York Times published an article in their Circuits section that painted a romantic picture of copyright infringers who violate the public perfomance right for films (Now Playing, a Digital Brigadoon). The article was about "guerilla drive-in" theater, in which copyright pirates go to public spaces (sometimes trespassing) and project films so that anyone can watch them. Rather than condemning the copyright thieves for what they were, the article seemed favorably inclined to what they were doing. It called them "hipsters" and "impresarios" and "movie buffs" when, in fact, they are the enemy of legitimate film.

The article touted the fact that the scoundrels used many devices that should be on Hatch's Hit List, including one that has already been covered: Hatch's Hit List #3 - AM/FM Transmitters. The article is practically a "how-to" for piracy.

A reasonable person would realize that reporting about these events will induce some people to participate or even start their own. Heck, the NY Times even admits it:

Even $1,000 [for a digital projector] was too steep for John Young, a technophile in West Chester who became infatuated with guerrilla drive-ins after reading about them in a hobbyist magazine. [emphasis added]
It is almost as if the NY Times is bragging about its ability to induce infringement.

Ignorance is certainly not a defense. The New York Times is quite aware that the whole guerilla drive-in movement infringes copyright:

Michael Bergman, a Los Angeles-based entertainment lawyer, said the fact that Mr. Modes does not charge admission does not diminish his basic violation of copyright law. "The copyright proprietor for the film has the exclusive right to publicly perform the work," he said in a telephone interview. "Projecting a rented DVD onto the side of a building, where anybody who wants to can come and watch it, is certainly a violation of the copyright act."
If the INDUCE Act passes, perhaps Mr. Bergman might have added that publishing an article about the subject might also be a violation of copyright law.

The article also points out that there isn't a lot of enforcement of this violation of copyright law. A reasonable person could easily see how that would induce people to violate copyright.

So for now, Mr. Modes and his friends seem safe. Even the police do not really care; the Santa Cruz deputy police chief, Patty Sapone, said her officers had shut down the previous movie because Mr. Modes was using public property; as far as trespassing at the new site, it is not a matter for the police unless the property owner complains.
Finally, the article has the temerity to offer testimonials on behalf of this blatant copyright infringement:
"They show some awesome movies," Ms. Anderson said. "You don't often see a drive-in with 'Waking Life.' Or 'Dr. Strangelove.' "
The NY Times is lucky that the INDUCE Act has yet to pass.

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

Comments (1) + TrackBacks (0) | Category: Hatch's Hit List | INDUCE Act


COMMENTS

1. Pete on July 30, 2004 10:54 AM writes...

Have you forwarded this to the NYT yet?

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