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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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August 05, 2004

Hatch's Hit List #20 - P2P Congress

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: P2P Congress

I discussed the launch of P2P Congress yesterday (P2P = Patriot to Patriot). Basically, P2P Congress uses popular filesharing networks to distribute large public domain media files, such as Congressional hearings. This reduces bandwidth costs and engages sharers in democratic discourse, even it at only a very basic level. P2P Congress uses such popular filesharing networks as Bit Torrent, Limewire, and eDonkey. Good idea, right?

Here's the problem, though. What happens to P2P Congress when the INDUCE Act is used to shut down these various networks? They're decentralized, so putting the company behind them out of business won't shut down the network itself. This may leave organizations like P2P Congress in an awkward position. A court will have declared the company that created and supported the network illegal, but what then of the other organizations that continue to support the network afterwards? Seems to me that would make other supporters inducers as well, especially after a court decision against the technology. How could you not know that supporting a particular network was inducement if a court just declared another company supporting the same network to be guilty? It is not as if the standard is specific intent. (And do I need to mention that the organizations behind P2P Congress are a who's who of copyfighters?)

I suppose it is possible that one could find, for example, eDonkey to be guilty of inducement and P2P Congress innocent, but that would mean that the INDUCE Act would do nothing to stop P2P filesharing. You could shut down the filesharing companies, but the filesharing would continue. That would mean that the INDUCE Act was all but useless, and that couldn't be, right? I mean, Congress would never pass a law with all sorts of clear harms and no clear benefits, would it?

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. Jay Fienberg on August 5, 2004 06:14 PM writes...

Since you've been focusing on compelling examples, I don't know if such a mundane one is worth noting: external hard drives.

I noticed today, in a "Mac Connection" catalog, an ad for the LaCie Bigger Disk promoting how this device was a good thing because one could use it to store "up to one month of non-stop MPEG-2 video", one year of non-stop music (mp3s, presumably), and the contents of hundreds of DVDs.

(The quote above can be seen in the Mac Connection online catalog [ http://tinyurl.com/62van ], but the phrases about non-stop music and hundreds of DVDs can be seen only in the print catalog.)

It seems, in the view of INDUCE, that LaCie and Mac Connection, through creating and promoting a technology that induces illegal copying of copyrighted works, are looking to take millions of dollars directly out of the pockets of artists.

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