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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 11, 2004

Hatch's Hit List #24 - US Postal Service

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: US Postal Service
Tip o' the hat to Fred von Lohmann and Jason Schultz

Yesterday, Stamps.com announced that they had gotten permission to begin selling personalized stamps (PhotoStamps). USA Today has a nice article (Stamps of individuality push the envelope). From the company info page (PhotoStamps: Company Info):

PhotoStamps is a new form of postage that allows customers to include their favorite digital photographs, designs or images on valid US Postal Service postage. Customers design state-of-the-art, professional-looking postage from the PhotoStamps web site by simply uploading pictures from existing image files, digital photographs, and original graphics. An intuitive interface allows users of PhotoStamps to flip, rotate, and zoom in and out of their images, as well as add colored borders to create harmonized themes. Users maintain a secure online account that allows for the storage of images for future purchases. Using advanced printing technology, we send customers high-quality, peelable PhotoStamps within a short timeframe, allowing for a wide variety of personal and business-related usage. PhotoStamps is brought to you by Stamps.com Inc., the leading provider of Internet-based postage services.
Of course, there are some pretty heinous terms and conditions. For example here's a list of how you aren't permitted to use the service:
A. For any unlawful purposes;
B. To upload, order for print, or otherwise transmit or communicate any material that is obscene, offensive, blasphemous, pornographic, unlawful, deceptive, threatening, menacing, abusive, harmful, an invasion of privacy or publicity rights, supportive of unlawful action, defamatory, libelous, vulgar, illegal or otherwise objectionable;
C. To upload material that emulates any form of valid indicia or payment for postage;
D. To upload, order for print, or otherwise transmit or communicate any material that you do not have a right to transmit or communicate under any contractual or fiduciary relationship or which infringes any copyright, trade mark, patent or other intellectual property right or any moral right of any party;
E. To harm minors in any way, including, but not limited to, content that violates child pornography laws, child sexual exploitation laws and laws prohibiting the depiction of minors engaged in sexual conduct; and
F. To upload or otherwise transmit any material which is likely to cause harm to PhotoStamps or anyone else's computer systems, including but not limited to that which contains any virus, code, worm, data or other files or programs designed to damage or allow unauthorized access to the PhotoStamps service or which may cause any defect, error, malfunction or corruption to the service.
Disclaimers. Generally worthless under the INDUCE Act. After all most of the P2P programs that are targeted by INDUCE use disclaimers too. In any case, how will Stamps.com make sure that no copyrighted images are used? Sure, they'll be able to pull the obvious ones, but their human editors won't be foolproof. The very existence of the service will certainly encourage people to try to get copyrighted images through their filtering program; some will inevitably succeed.

But Stamps.com is too easy a target. Why not sue the original inducer, the United States Postal Service? After all, the world got along mighty fine without potentially-infringing personalized postage. I'm sure the reason they permitted it was in order to sell more postage and make more money, otherwise, what is the purpose? The very fact that the USPS requires a disclaimer from Stamps.com is because they knew people would use the system to violate copyright.

Does the USPS have a system that can reject postage found to be copyright-infringing after it has been sold to the public? Like bootlegs, will infringing postage still be used? I imagine that cancelled infringing postage will have quite the cachet with philatelists. And, if there is any group the USPS wants to please, it is the philatelists. Could it be that the USPS won't be quite so hard on Stamps.com if a few copyrighted images get through, making them all the more valuable and rare? Won't the possible value or relatively rare copyright-infringing postage encourage people to try to get copyrighted works through the system even more?

Sounds like inducement to me.

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


COMMENTS

1. Jay Fienberg on August 11, 2004 10:52 PM writes...

Excellent example!!

Permalink to Comment

2. PrivacyHound on August 12, 2004 12:52 AM writes...

Actually, I think the case of the Stamps.com custom stamps isn't such a great anti INDUCE case. It is a better case for how the government can use private companies to censor free speech. The USPS has no right to censor what you write on your envelope nor should it have the right to censor the photos you put on legal stamps it offers via a 3d party by such standards as "blasphemous" or "otherwise objectionable" but does so through an intermediate by authorizing Stamps.com. One person's blasphemous "Jesus is not the son of G-d" is another man's religion "Judaism." The government and its licensees have no right to decide what is blasphemous.

Permalink to Comment

3. Andrew on August 12, 2004 02:51 PM writes...

Acctually I was hoping that you were going to go one step further. It is conceivable that the USPS's very existance as well as UPS and FedEx and all other shipping companies could fit under this bill. The distribution chain in itself can be seen as inducing infringment because it has given me the means to go beyond fair use by distributing copyrighted material. For Example i make a photo dvd and send it via USPS to my aunt jane. I have just distributed copyrighted material without permission without even charging for that material. I dont have the time to look through this doc http://www.usps.com/cpim/ftp/pubs/pub52.htm but i bet there might be something in there about shipping copyrighted material. Even if something is in the by-laws the shear vastness of the market in shipping, means that some packages can and will get through no matter how hard the shipping company tries to stop it. that sounds like a better anti INDUCE case than just stamps.com.

Permalink to Comment

4. Aldrich Stevens on August 17, 2004 11:54 AM writes...

Let us not exagerate the power and influence
of the images on stamps, though we have all been
conditioned to do just that for well over a century. They are not billboards, WMD's, magical
talisman's, or the foundation of the republic,
but merely decorations that adorn the shipment
of hardcopy intended to beguile one to open the envelope- a minor entertainment and nothing more: prima facie trivial.
Is it possible that there are substantial issues
of copyright law and civil liberties involved in the use or rejection of benign images subjected
with due diligence to the scrutiny of the censor?
Consider the case of an altered photo of Madonna
that went unrecognized at first, was accepted for a stamp, and then was used to hawk insurance.
Consider also the case of a Madonna look-alike
holding a sign that said Peace Now in tiny letters
that was refused a stamp. Should either be able to
sue someone? I find the idea ridiculous.
In the first case virtually no one, possibly
not even the recipient, can be expected to actually notice the image, and the envelope will most likely go straight to the trash.
In the second case the model should comb her hair,
save the message for the letter, and resubmit it,
and the envelope will most likely go straight to the trash.


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