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The Importance of...
Hatch's Hit List


September 10, 2004

Hatch's Hit List #45 - MIT's I/O BrushEmail This EntryPrint This Article

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: MIT's I/O Brush

MIT's infamous Media Lab, from which many inducing technologies have found their way into the world, has produced a device whose sole and only purpose appears to be copyright infringement. Furthermore, it is designed to be used by children, training them from an early age to engage in copyright crimes! Who knows how many innocents will be corrupted by the Fagins and Child Catchers of MIT?

What is this criminal device? The I/O Brush:

I/O Brush is a new drawing tool aimed at young children, ages four and up, to explore colors, textures, and movements found in everyday materials by "picking up" and drawing with them. I/O Brush looks like a regular physical paintbrush but has a small video camera with lights and touch sensors embedded inside. Outside of the drawing canvas, the brush can pick up color, texture, and movement of a brushed surface. On the canvas, children can draw with the special "ink" they just picked up from their immediate environment.
This is explicitly training children to violate the rights of reproduction and derivative works. Unbelievable! Shocking!

And just what does MIT expect the children to do with their infringing works? Undoubtedly, because they are in digital format, share them with people! Perhaps they expect that they will be shared via the internet! Thus, violating the right of public distribution! A few more exclamation points for no apparent reason!!!!!!

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.

September 09, 2004

Hatch's Hit List #44 - BroadcatchingEmail This EntryPrint This Article

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: Broadcatching

Combine RSS (w/enclosures) with BitTorrent and you get what I call "broadcatching." It is, in my view, a revolutionary method for multimedia publishing and distribution without gatekeepers.

Problem is, like email and http and ftp and p2p, anyone can post any sort of content in the enclosures and easily distribute it. In fact, undoubtedly, broadcatching will be used by many for infringement. People will share their favorite (and copyrighted) television programs and movies with others. And, if the RSS is private (aka a "darknet"), how will the RIAA or MPAA be able to find and punish the infringers?

The tools for using broadcatching will undoubtedly encourage people to use them for illicit purposes, such as with instructions that "any large file could be put into an enclosure" or something similar.

Clearly, the whole broadcatching thing is going to have to be strictly regulated. Perhaps we can require that all RSS feeds be registered, so that they can be monitored? Broadcatching software will definitely need dialog boxes that ask if the user is sure they want to add content to an enclosure, as it might be copyrighted. Newsreaders will need dialog boxes that ask subscribers whether they want to download the enclosures (they might be copyrighted).

Because broadcatching is a direct and immediate threat to the business models of Hollywood, it will certainly be a prime target for any lawsuits Hollywood can throw against 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.

September 08, 2004

Hatch's Hit List #43 - Large Portable Hard Drives (and Mark Cuban)Email This EntryPrint This Article

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: Large Portable Hard Drives (and Mark Cuban)

Mark Cuban wrote a very perceptive article on what the ever-increasing capacity of hard drives means for HDTV (HDTV, DVD, Hard Drives and the future). He argues, mostly persuasively, that hard drives, with their tremendous capacity, are a better mean for distributing HDTV signals in all their high-resolution glory compared to DVDs, even the next generation high-capacity DVDs. A highly recommended read.

Of course, one of the benefits of all that read/write storage is making (copyrighted) content portable. After all, why will people need 200G portable drives? Their OpenOffice documents? Please. Clearly, these drives are meant to store and make content mobile, the vast majority of which will be copyrighted. Heck, even the example Cuban provides shows this (luckily Cuban can probably afford to defend a lawsuit):

I had a couple DVDs that I had PURCHASED, that I hadn’t had the chance to watch. I had a couple 512mb Flash Drives that I had bought specifically to test them out for video. I took the first movie, and using an encoder with compression (not going to tell you which one, don’t want to play favorites), I encoded the movies at DVD quality and saved the output onto each of the 512mb Flash Drives. I popped those tiny little puppies into my pockets and off I went to the plane. Keys, some money and my keychain flash drives in one pocket, phone in the other. No hassle, no fuss no muss.

On the plane, I popped the first keychain drive into the USB Port. Got the ready signal, got prompted to open my video player, and watched a nice movie right from the keychain drive. On the way home, did the same thing with the other movie. I loved it. Far less space than DVDs. Could put them in my pocket instead of filling up my briefcase. I immediately went out and bought a 1gb keychain drive so I could hold 2 movies on 1 drive, in addition to my first 2 drives.

Let's tally up the crimes here, shall we? Violation of subsection 1201(a) of the DMCA is clear. Making backups or format shifting is not fair use according to the MPAA. And, if the INDUCE Act were in force, this sounds like inducement to infringement to me. Heck, he calls this illicit conduct a "great experience" - he has to know he was encouraging other people to engage in such conduct also.

Oh, sure, Cuban provides some alternate business models that can take advantage of these larger hard drives. Heck, some of them are probably even very good and profitable ideas. But content providers shouldn't be forced to adopt these new and more profitable business models by technology. The development of technology must be restrained so that older business models will continue to thrive.

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.

September 07, 2004

Hatch's Hit List #42 - Microsoft MusicEmail This EntryPrint This Article

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: Microsoft Music

I almost didn't add this to Hatch's Hit List. I thought, "explaining to people how to make legal use of their systems ... that goes a bit far, doesn't it?" Silly me. Of course it doesn't go too far.

Last week, as everyone knows, Microsoft soft launched its entrant into the online music store business, MSN Music Preview. Of great interest for many, were the instructions Microsoft provided for those who wanted the music they purchased from MSN's music store to play on the Apple's iPod.

As EFF's Fred von Lohmann related, Microsoft was recommending that users rip the music to CD, convert it to MP3 and then upload it to their iPod (MSFT Offers Real "Freedom of Music Choice":

Tech support for Microsoft's new MSN Music service is responding to the incompatibility between its downloads and the iPod by advising its customers to burn the downloads to CD, then rip the CD to a compatible format:
Although Apple computers and Apple iPods do not support the PC standard WindowsMedia format for music, it is still possible to transfer MSN Music downloads to an iPod, but it will require some extra effort. To transfer MSN-downloaded music to an iPod, you need to first create a CD with the music, and then you need to import that CD into iTunes. This process will convert the music into a format that can play on the iPod. We're sorry that this isn't easier - unfortunately Apple refuses to allow other companies to integrate with the iPod's proprietary music format. If you are an iPod owner already and unhappy about this policy, you are welcome to send feedback to Apple requesting that they change their interoperability policy.
Now that's what I call freedom of music choice, in contrast to Real Network's misleading campaign of the same name. [links in original]
Well, I should have realized that Microsoft would soon see the error of their ways. According to an article in Salon (annoying reg. and ad required for non-subscribers), Microsoft has changed its tune (One music store to rule them all):
I also contacted a Microsoft representative to ask about the curious advice they were giving to users. And that's when Rob Bennett, the senior director of MSN Entertainment, responded in an e-mail that the whole thing was something of a mistake. "I'm reviewing the language on the preview site now," he wrote. "We absolutely don't want to encourage people to circumvent the usage rights for music downloads. It is unfortunate that Apple still disables Windows Media support in the iPod (the firmware they license from PortalPlayer actually supports WMA but they turn it off), restricting their customers' choice of where they download music. Our approach is very different, encouraging broad choice of many music services and many portable audio devices with the Windows Media format."

When I later checked the MSN Music help site, the advice Microsoft was giving to its iPod customers had been changed. Now, instead of counseling users on how to have MSN's songs play on their iPod, the site simply provides an e-mail address for people to complain to Apple. It also says, "There are more than 70 portable audio devices that support MSN Music today, and we hope that someday Apple decides to join with the industry and support consumer choice." [links omitted]

Hmmm, sounds very close to an admission that telling people what they can legally do with their DRM'd music might encourage them to infringe. If Microsoft is worried, imagine how worried some joe noting this process on their blog should be, under the INDUCE Act.

More coverage of this issue:
Fred von Lohmann on Deeplinks (MSFT About-Face on "Freedom of Music Choice")
Daring Fireball (You Can Choose Any Color You Want, as Long as It’s Black)
Derek Slater (MS: On Second Thought, Put On These Handcuffs)

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.

September 03, 2004

Hatch's Hit List #41 - iPodderEmail This EntryPrint This Article

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: iPodder

I've written in praise of Adam Curry's iPodder as a platform previously (Broadcatching on the iPod Platform). Indeed, the concept excited me so much that I started an online radio show to take advantage of the platform: The Importance Of ... Law and IT.

What iPodder does, is take an RSS feed with enclosures that include audio files, and import them directly into Apple's iTunes. Basically, you can put your iPod in its cradle when you go to sleep and, overnight, it can be populated with all new audio when you wake up in the morning. Ultracoolness.

However, imagine how efficient this tool is for copyright infringement. People can publish RSS feeds with infringing enclosures and the information will automatically be sent to the subscriber's iPods. This is so incredibly convenient, innovative and makes so much sense that it will certainly encourage people to infringe even more.

No more need to laboriously search P2P filesharing networks, or the darker alleys of IRC for infringing files, download them, winnow the bad rips and RIAA files, and then get iTunes to recognize the new music. What a pain! With iPodder, one can simply subscribe to a trusted infringing feed and all the muss and hassle of infringement is taken care of.

That's the problem with these innovative, new software platforms. No one ever thinks to cripple them with DRM and other anti-consumer anti-infringment bugs features before unleashing them on the internet. How is technology supposed to develop properly if people keep innovating so freely?

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.

September 02, 2004

Hatch's Hit List #40 - DEF CONEmail This EntryPrint This Article

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: DEF CON

Aka "the largest underground hacking event in the world." I could probably spend the next few months of Hatch's Hit List (hopefully, that won't be necessary) simply going presentation by presentation through the various speakers and topics on the schedule for DEF CON 12:

  • Advanced Hardware Hacking
  • Tools for Censorship Resistance
  • Weaknesses in Satellite Television Protection Schemes
  • NoSEBrEaK—Defeating Honeynets
  • Down with the RIAA, Musicians Against the Recording Industry
  • Cracking Net2Phone
  • PDTP – The Peer Distributed Transfer Protocol
The list goes on and on and on.

If the INDUCE Act passes, they'll have to change the name of the event to "LAWYER CON."

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.

September 01, 2004

Hatch's Hit List #39 - Peer-to-Peer Software Development KitsEmail This EntryPrint This Article

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: Peer-to-Peer Software Development Kits
With at tip o' the virtual hat to John Parres

The ostensible targets of the INDUCE Act are peer-to-peer filesharing systems. But, get rid of one, and another will take its place. Writing software for such networks is not particularly more difficult than other applications. Computer science college students and bright high school students can whip a basic one together over a weekend. Of course, having a peer-to-peer software development kit makes it even easier, such as this one from Microsoft (Windows XP Peer-to-Peer Software Development Kit):

Download the Microsoft Windows XP Peer-to-Peer Software Development Kit (SDK), which contains all software required to create decentralized applications that harness the collective power of edge of the network PCs....

This download includes the Microsoft Windows XP Peer-to-Peer Software Development Kit (SDK), including major components such as: Peer-to-Peer Application Programming Interface (API), Peer-to-Peer headers & libraries, sample applications, source code, and documentation for each of the Peer-to-Peer core areas, e.g., scalable and secure peer-to-peer name resolution, efficient multi-point communications, creation and management of persistent peer-to-peer groups, and distributed data management.

"Decentralized applications"? "Scalable and secure"? "Efficient multi-point communications"? This sounds like the explicit instructions for building copyright infringement machines.

Now, I'm not saying that the INDUCE Act will lead to lawsuits against Microsoft. Heck, even the government is wary of going up against Redmond. However, imagine that some non-billionaire programmers put together the Linux Peer-to-Peer Software Development Kit. How long do you think it would take before lawsuits were filed, once the INDUCE Act goes into force?

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.

August 31, 2004

Hatch's Hit List #38 - MediatripsEmail This EntryPrint This Article

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: Mediatrips

According to Mediatrips, a "mediatrip" is:

an original visual aesthetic/narrative that samples content from film, television and/or other 1st generation sources to create a new media experience. It is a form of artistic, political and personal expression.... Technically, it is very easy to create a mediatrip. Of course, creating something of value is not.
  1. Copy events from TV, Film or other sources
  2. Paste them into a video/media editor
  3. Remix the events to create your own mediatrip
A blatant inducement to creating derivative works if ever I saw one.

Heck, they are even sponsoring contests, which will futher induce people into violating copyright. And the rules are rather confusing when it comes to actually warning people about potential copyright infringements and even permit anonymity, which is a certain sign that illegal activity will be taken place, as we all know anonymity is only used by criminals. Finally, the prize money is to be awarded to EFF in the winner's name. Sheesh. How much more obvious can the intention to induce infringement be?

Well, there is the motto of the site: "sampling popculture is not a crime." Um, much of the time, it is. And if the INDUCE Act passes encouraging sampling will be illegal much of the time too.

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.

August 30, 2004

Hatch's Hit List #37 - FeedBurnerEmail This EntryPrint This Article

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: FeedBurner

Let's face facts: many bloggers infringe copyrights. Often.

Fair use, schmair use. Bloggers copy works that don't belong to them, for example, large swaths of copyrighted newspaper articles with minimal commentary or criticism. Blogs are a veritable Wild Wild West of piracy.

One of the more devious aspects of blogging is the RSS feed that provides notification when new copyright infringements are available. With the use of "news readers" copyright violaters can easily keep track of the latest violations on hundreds of websites.

And now we have a company, FeedBurner, that makes RSS feeds even more efficient and effective at violating copyright (About FeedBurner):

FeedBurner is an RSS/Atom post-processing service that allows publishers to enhance their feeds in a variety of interesting and powerful ways. By republishing their feeds through FeedBurner, publishers gain detailed feed statistics, maximum feed format compatibility, "shockproofing" to absorb bandwidth spikes, and more.
Absorb the bandwidth spikes of new infringement, morelike.

For some reason, perhaps because they actually want to encourage copyright infringement, FeedBurner's terms of service says nothing about users of the service violating copyright law. There is no warning that publishing an RSS feed might be a violation of the exclusive right of distribution. As we all know, there must be warnings about infringement whenever they might occur. Without constant warnings, people are likely to violate copyright by accident, or something.

Heck, anyone can use this service with no real accountability, for free - how much of an inducement is that?

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.

August 27, 2004

Hatch's Hit List #36 - JANE MagazineEmail This EntryPrint This Article

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: JANE Magazine

Japan's copyright industries have been suffering from a rather unique form of infringement according to the BBC (Japan's 'digital shoplifting' plague):

Japanese bookstores are set to launch a national campaign to stop so-called "digital shoplifting" by customers using the lastest camera-equipped mobile phones.

The Japanese Magazine Publishers Association says the practice is "information theft" and it wants it stopped.

It is the kind of thing that most Japanese young women wouldn't think twice about doing.

They might spot a new hairstyle or a new dress in a glossy fashion magazine and they want to know what their friends think - so they take a quick snap with their mobile phone camera and send everybody a picture.

But the publishers of those magazines feel they are being cheated out of valuable sales.

So far, we have been spared this plague in the US.

However, JANE Magazine is doing its best to import and induce such copyright infringement with a promotion they are running (JANE Talks Back):

You won't want to flip through the September issue of JANE without your camera phone. There's a ton of freebies, sweepstakes, MP3s and cool stuff in it for you....Want a refresher on how to play with Mobot and JANE? Oh relax, it's easy:

  • Grab your camera phone and the SEPT issue of JANE
  • Take a picture of ANY full page ad and send it to jane@mobot.com
  • Listen up as JANE Talks Back...you could hear good, good things
They are literally training people to use their cameraphones to snap picks of magazines and distribute them via email! Once trained to snap pics of pages in magazines with the increasingly ubiquitous cameraphone, does JANE think these people will stop?

Thanks to JANE, the magazine industry will soon be the smoking ruin that once was the music industry in the US.

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.

August 26, 2004

Hatch's Hit List #35 - Email Forward FunctionEmail This EntryPrint This Article

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: Email Forward Function

So there I was, innocently sending and receiving email back in 1975. Then, one day, there is this program available called "MSG" that has a new function called "forward." Using that function you can take an incoming email message and easily copy the whole thing to send to someone else.

What was John Vittal thinking?

Clearly, the "forward" function he added had virtually no other purpose than copyright infringement. With a single keypress, one can violate both the exclusive right of reproduction and distribution. Some people don't mind this infringement, but many others have been quite upset that "private" (and copyrighted) emails have been indiscriminately forwarded. Without the "forward" function, which makes such infringement so easy, it is likely much of this infringement would not have occurred. If people had to laboriously re-type messages in order to send them to someone else, many people would not do so.

Furthermore, the "forward" function sits there at the top of the email screen begging to be used. I don't see how people can resist its allure. Indeed, my inbox today is full of forwarded emails.

Even worse is that there is no warning. When one chooses to use the "forward" function, there should at least be a copyright infringement warning dialog: "Forwarding email may be an infringement of copyright. Proceed? (Y/N)" Without such a dialog, there will be many innocent infringers, who might not realize that forwarding email can be a violation of copyright. Think of the children turned into criminals by this insidious functionality!

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.

August 25, 2004

Hatch's Hit List #34 - InstapunditEmail This EntryPrint This Article

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: Instapundit

News flash: Sen. John Kerry is running for president. Shortly after he returned from military service in Vietnam he co-authored a book called The New Soldier. However, the book is out of print and, reportedly, Kerry won't allow a new edition to be published to take advantage of all the interest in the book raised by his candidacy.

Nevertheless, someone has put the book online, in clear violation of the copyright: John Kerry's New Soldier

Just after JOHN KERRY came back from Vietnam, he wrote the book THE NEW SOLDIER.

The book is out of print. John Kerry does not allow the publisher to reprint it.

To make a rational decision on November 2, you need to have all available facts.

You can now read John Kerry's THE NEW SOLDIER online for FREE.

Clearly, this website is guilty of direct copyright infringement and (AAARGH) I could not resist the temptation to read portions of the infringing work.

I blame Glenn Reynolds, aka Instapundit. He is the one who induced me to visit the infringing site through a link of his: There Was Lots of Talk. I probably never would have visited and infringed copyright had it not been for Reynolds' link.

He is a law professor familiar with copyright law, so he should know better, but it turns out he is not a fan of current copyright law. Among other actions and writings: he has hosted infamous anti-copyright law professor Larry Lessig as a guest-blogger; he has made outrageous claims that free downloads don't necessarily hurt copyright owners (RIAA Take Note); he has questioned the efforts of universities to protect copyright owners (Some Good Questions); and, he has said he is fine with a ridiculously short copyright term of fourteen years, renewable once (The Economist). Clearly, Reynolds is no fan of copyright.

Furthermore, he doesn't seem very enthusiastic about John Kerry (too many posts to mention).

Clearly, by linking to the infringing site, Reynolds was encouraging more copyright infringement. He knew what would happen when he pointed his massive traffic to the infringing site. His actions are a paradigmatic case of intentional inducement.

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.

August 24, 2004

Hatch's Hit List #33 - FlickrEmail This EntryPrint This Article

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: Flickr

What is Flickr? According to their about page, they are "almost certainly the best online photo management and sharing application in the world." And, honestly, they may not be wrong.

It makes sharing photos online very easy, including publishing them to blogs. More importantly, it allows for collaborative organizing of the masses of photos people now take with digital cameras. The system is really quite something.

Too bad both organizing (hmmm, derivative work?) and sharing (rights of reproduction and distribution) are infringement of copyrights. By creating such a wonderful tool, Flickr is all but begging people to infringe copyright. Oh, sure, they have "terms of use" that tells people not to infringe copyright ... but what does that matter? Especially with phrasing like this:

Ludicorp [the company behind Flickr] undertakes to obey all relevant copyright laws, however misguided we may all judge them to be.
Translation: Don't violate copyright, wink, wink.

You can create public groups for various interests like "Antique Car Buffs or Obscure Rock Band #33," and won't people obviously include copyrighted photos of such topics? You can search metadata to find exactly the infringing work you're looking for, and there are RSS feeds that will let people know when new infringing works are available.

Flickr is clearly designed to induce infringement.

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.

August 23, 2004

Hatch's Hit List #32 - Online Ad PublishersEmail This EntryPrint This Article

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: Online Ad Publishers

Today's edition of the New York Times has an important article about a website that advertises online casinos challenging the Dept. of Justice regarding claims that advertisements for overseas online gambling (where gambling is legal) are illegal in the United States (where online gambling is generally illegal) (Lawsuit Claims Free Speech for Online Casino Ads).

Why are the ads for online casinos illegal?

Prosecutors last year started a grand jury investigation into the efforts of American media companies, including major Web search engines, that publish or broadcast advertisements for offshore casinos. The Justice Department has argued that American media companies, by carrying the ads, are aiding offshore casinos. According to prosecutors, the gambling operations are illegal, and so are the advertisements. [emphasis added]
Aiding the casinos, as in "aiding and abetting," as in, if this were copyright law, those that publish the advertisements would be guilty of "inducing" under the INDUCE Act.

Better be careful about hosting ads for that new-fangled TiVo, the one that will likely be sued under the INDUCE Act.

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.

August 20, 2004

Hatch's Hit List #31 - Replica Prop ForumsEmail This EntryPrint This Article

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: Replica Prop Forums

I like to be a little more whimsical on my Friday Hit List posts, so today we see how a website dedicated to mastering the making of models and replicas of movie props could easily be shut down by the INDUCE Act.

The Replica Prop Forums (you can read without registering) is a community of film fans, modelers and others who painstakingly recreate various props and models from films. The members of this community are, without a doubt, uberfans. Creators whose works are discussed on these forums should be proud that people care that much about their work.

Nevertheless RPF is clearly a haven for copyright infringement, and dedicated to encouraging people to engage in copyright infringement. After all, aren't these props and models copyrighted? Isn't making a model (with rare fair use exceptions) infringement? Even the site recognizes this.

From the Code of Conduct:

The sale/discussion of pirated or copied media is not permitted on the RPF. This means music, movies, software, games, etc. and/or related items like labels or packaging. If it is genuine/original material, it is welcomed, not only for discussion, but also for sale in the JY.

Emulator discussion is permitted, however the discussion or location of ROM's is not.

Remember, media piracy has it's own severe real-world ramifications. Our hobby has enough potential legalities to contend with and adding media piracy to that already clouded mix is a risk we will not take. As always it's better safe than sorry. [emphasis in original]

"Our hobby has enough potential legalities to contend with," indeed.

The site even encourages sale of these replicas:

Selling one of any item from your personal collection is permitted.

Threads used to publicly discuss a run of any unlicensed replica prop, costume item or complete kit are not. Remember these words, "contact me privately for more information".

Threads to jointly research a prop or discuss our work are encouraged, as is the use of private contact to convey interest in a project. [emphasis in original]

Looks like they are trying to avoid some liability, but help people meet up to exchange cash for infringing works anyway. Tsk, tsk.

However, don't you dare infringe the work of an infringer:

Deliberately recasting another member’s work or property without permission is something this community does not support. A member found selling/trading (either in the Junkyard or any other online auction or outlet) items recast from another member without permission will face possible removal from the RPF. Should any member suspect another member of this behavior, please contact a member of the staff.
Too bad they don't say the same for copyright infringement. Speaking of which, they do recognize the importance of the original work and its copyrighted status:
Please show the license and copyright holders the respect their hard work deserves by expressing your opinions about individuals, companies or their products in a civil and constructive manner.

As with the other entries in this code, we ask that the community allow the staff to handle it's application and NOT to engage in "self policing". [emphasis in original]

See, they know that licenses are granted to make replicas and that the original works are copyrighted. This is a blatant attempt to keep the copyright holders from getting mad at them.

The RPF may think it is only running a community-based forum, but they are really inducing people (many of them young, probably) to engage in criminal activities.

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.

August 19, 2004

Hatch's Hit List #30 - XM Radio to MP3Email This EntryPrint This Article

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: XM Radio to MP3

Gizmodo was the first place I saw this device and even they recognize that it will be high on the list of things the RIAA will want to stop (TimeTrax: Convert XM Radio to MP3):

It's sad that so often we have to preface cool and useful software with a sort of 'Get it while you can,' warning, but this looks like just the sort of thing the RIAA is going to come after with crate full of lawyers. TimeTrax is a $20 piece of software that can turn your $50 XM Satellite Radio XM PCR - a PC-based XM radio, if you didn't catch that - into a sort of satellite radio PVR-like-thing-but-no-video. It listens to the radio stream you set (and you can schedule shows in the future), then using XM's song title data converts individual songs into MP3s or WAVs. Now that sounds like Fair Use to me, and fairly useful at that, but we'll see how long it takes before Valenti draws a direct like between TimeTrax and the dissolution of the very fabric of our culture.
Sounds sort of like TiVo for radio, or Betamax. You can check out the system here: NeroSoft TimeTrax 1.1. Indeed, this seems right down Betamax's time-shifting alley:
Using TimeTrax, you can now record directly from your XM PCR radio onto your PC's hard drive in WAV or MP3 format. Using TimeTrax's 10-event scheduler, you can time shift programming. Is there a concert being broadcast at 2:00 am that you really want to hear? No problem, use TimeTrax to record the concert and listen to it at your convenience! Your favorite talk show on during work hours? No problem, using TimeTrax, you can listen to it when you get home!
Sounds like a substantial non-infringing use to me.

Unfortunately, of course, such capabilities also enable infringement. NeroSoft is going to have to sell an awful lot of copies of this software to pay the resulting legal fees. Given how many XM radios have been sold I wouldn't be investing any money in NeroSoft anytime soon.

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.

August 18, 2004

Hatch's Hit List #29 - SourceForgeEmail This EntryPrint This Article

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: SourceForge

SourceForge.net is the "world's largest Open Source software development website, with the largest repository of Open Source code and applications available on the Internet. SourceForge.net provides free services to Open Source developers."

SourceForge hosts the code and provides some important tools for maintaining and developing projects ... and all for free! They certainly aid and abet those whose projects they host. I wonder if any of the 85,000+ projects they host would violate the INDUCE Act?

Well, at least five of the top ten downloads as of today are for P2P programs, which the INDUCE Act is allegedly targeted at. I wonder how much advertising revenue the site gets because people are downloading P2P programs? Could it be that hosting P2P programs makes SourceForge "commercially viable"?

The SourceForge people have to know that they are helping those who help infringers. How can they not be aware of what they are doing? And if they know what they are doing, doesn't that also mean they intend to help such infringers? Is not SourceForge inducement to make programs that induce?

And we all know that Open Source == communism, anarchy and disrespect for intellectual property, right? Doesn't SourceForge support and give succor to a philosophy that would result in "open source" music and movies? Isn't that what they really want?

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.

August 17, 2004

Hatch's Hit List #28 - Credit Card CompaniesEmail This EntryPrint This Article

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: Credit Card Companies

Law.com reported yesterday that a federal judge threw out a case involving secondary copyright liability (Federal Judge Finds Internet Porn Suit Is No Perfect 10). One pornographer (Perfect 10) was suing credit card companies who provided credit card services to other pornographers who Perfect 10 claimed infringed Perfect 10's copyrights:

Perfect 10, which had sued under the theories of contributory and vicarious copyright infringement, wanted the credit card companies held liable for facilitating the buying and selling of the stolen images.
According to the article, the judge based the decision on the concept of "control," letting the credit card companies off the hook because they couldn't control the infringing pornographers.
In the Perfect 10 case, Ware said, it comes down to what degree the credit card companies can control the Internet businesses.

It's not enough, the judge wrote, for "the defendants to merely have contributed to the general business of the infringer. To have materially contributed to copyright infringement, 'the ... assistance must bear some direct relationship to the infringing acts.'"

Ware cited the older Napster case, A&M Records v. Napster, 239 F.3d 1004, as an example where there was "substantial contributing conduct" because Napster provided an online index of tradable, copyright-protected songs.

Sounds similar to the reasoning behind the Grokster decision, which the INDUCE Act aims to overturn.

Pornography is a big business. The credit card companies make money handling pornography transactions. Infringement means more transactions and more profits for the credit card companies. Certainly, they are aware of this. They must also be aware that some of their customers are infringers. By making it easy to set up shop, are not the credit card companies inducing potential infringers into the unauthorized copying and distribution of copyrighted works?

I bet Perfect 10 wishes it had the INDUCE Act to wield against the credit card companies.

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.

August 16, 2004

Hatch's Hit List #27 - DVD Jon's AirPort Express HackEmail This EntryPrint This Article

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: DVD Jon's AirPort Express Hack

Jon Johansen, aka "DVD Jon," is most famous for participating in the development of DVD encryption-cracking software. He has also been involved in hacking Apple's FairPlay DRM.

He is back in the news because he has hacked the encryption on Apple's AirPort Express, which is a device that you plug in and stream iTunes music to your stereo, among other things. The connection to the AirPort Express is encrypted so that only Apple's software could stream music. Johansen's hack will allow others to develop software to stream music through the AirPort Express. The software was available on Johansen's site, but the site has been down for a couple of days. Check here periodically until it returns.

In any case, as Ed Felten notes on Freedom to Tinker, traditional copyright law doesn't have much to say about Johansen's hack (DVD Jon Strikes Again). There may or may not be a DMCA violation (I don't know enough about the facts to say), but it would be unlikely that Johansen's hack would lead to secondary liability under traditional theories. After all, there is a clear substantial non-infringing use for the hack.

However, Johansen is a notorious foe of DRM. Could it be that his intention was to induce copyright infringement? An AirPort Express with open APIs would make ownership of pirated material much more desirable. Sure, you can stream MP3s through iTunes to an AirPort Express, but Apple takes some steps against infringement. Johansen lets any old software developer (who might not be as copyright enforcement-friendly as Apple) connect to an AirPort Express. The very fact that the hack is "unauthorized" might encourage others to engage in "unauthorized" acts as well.

A valid INDUCE Act case? Maybe not, but Johansen would make an ideal defendant (from the plaintiff's point of view). What exactly did he intend his hack for? You certainly could tie him and his device up in court.

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.

August 13, 2004

Hatch's Hit List #26 - Player PianosEmail This EntryPrint This Article

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: Player Pianos

We have a problem. A series of court decisions have made it clear that the copyright pirates who get rich stealing the food out of songwriters' mouths will not have to answer for their crimes. Even the Supreme Court has agreed with this travesty of justice, White-Smith Music Pub. Co. v. Apollo Co..

The technology that makes such piracy possible is the "piano roll," a preforated roll of paper that, when used with a player piano, will reproduce whatever music has been encoded on the sheet. You can take any popular song, such as Little Cotton Dolly, and convert the sheet music into a series of preforations that will faithfully reproduce a performance of the song on a pianola. The existance of this technology is to Tin Pan Alley as Jack the Ripper is to a Whitechapel prostitute.

Thankfully, the INDUCE Act (with a codicil making clear piano rolls are a derivative work) will stop this threat by permitting songwriters to bring suit against the makers of player pianos. While there are millions of piano rolls in the marketplace, there are only tens of thousands of pianolas. Clearly, it makes sense to go after the phonola manufacturers. After all, the value of these player pianos is due to the existence of the bootleg piano rolls of popular music.

Of course the pianola manufacturers will say they intend that purchasers play only authorized piano rolls. However, it is clear that the vast majority of piano rolls are of popular music such as Little Tommy Went a Fishin' and not these "authorized" piano rolls. Clearly, the intention of player pianos is to induce the average citizen into brazen acts of piracy (once piano rolls are legally recognized as the piracy they are).

Thank goodness for this forward-thinking law. Current player pianos require an operator to maneuver the footpump for the operation of the bellows. Imagine how much more widespread these devices will become if they can be operated through electrical power (which my technologist friends tell me will be soon)! One of the advantages of the INDUCE Act is that it is technologically neutral, so these futuristic electrically powered piracy devices will be covered by law as well.

[Editor: Apparently, the author is unaware that the "piano roll problem" was solved by means of a Congressionally-mandated compulsory license (aka "mechanical license") and the INDUCE Act will not be needed to sue the manufacturers of player pianos, though they certainly might have been sued if the INDUCE Act had been in force during the late 1800s.]

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.

August 12, 2004

Hatch's Hit List #25 - EFF's Digital Front of Television LiberationEmail This EntryPrint This Article

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: EFF's Digital Front of Television Liberation

The FCC's broadcast flag mandate doesn't go into effect for another 10.5 months or so. Until then, one is permitted to distribute non-broadcast flag compliant devices. Such non-broadcast flag-compliant devices will clearly be capable of aiding and abetting copyright infringement to a very high degree. And what organization is promoting the use of such devices? Why, the EFF, of course.

EFF is busy promoting the development and distribution of non-broadcast flag-compliant devices until the FCC makes it illegal through the Digital Front of Television Liberation, which is not to be confused with Television Liberation's Digital Front (splitters!):

Since machines you've already built will still work in high-def next year, we'd like to make HDTV tuner cards easy to use now, while they can still be manufactured. We want to help the MythTV project work seamlessly with the pcHDTV card so less technical users can beat the broadcast flag. We'll also use these systems as benchmarks against which to compare the capabilities of post-flag HDTV devices. We also want to hear about Windows and Macintosh HDTV tuner cards, with an eye toward helping people make the most of existing pre-flag products.
Once again, EFF claims that they only want to preserve existing fair use rights. Yet their program would preserve the right to infringe as well! You can't protect fair use without also protecting the crime of infringement.

EFF knows that if you preserve fair use rights some people will inevitably abuse those rights to infringe. The worst part is, some people will infringe accidentally if the tools are available. For example, some people might record a show for a friend who is going to be out of town and then give them a copy. Without a broadcast flag to prevent such "friendliness," some people will innocently be seduced into depraved lives of indifference to copyright. Clearly, the EFF's entire digital television project is a not-so-subtle inducement to infringement.

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.

August 11, 2004

Hatch's Hit List #24 - US Postal ServiceEmail This EntryPrint This Article

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.

August 10, 2004

Hatch's Hit List #23 - Email to RSSEmail This EntryPrint This Article

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: Email to RSS

A number of people have been arguing that RSS may soon replace email for many functions (Email v RSS, let us move on...). However, many people haven't made the switch or don't offer an RSS feed as an alternative to email newsletters, for example.

Enter the companies that will take emails and turn them into RSS feeds for you, such as iUpload Mailby RSS:

Using MailbyRSS is simple. Organizations need only to sign up to the service to receive a special e-mail address and password from iUpload and can immediately begin to author content for their RSS channel by sending it as an email. When MailbyRSS receives an authorized e-mail message, it automatically creates or updates an RSS channel and generates any supporting web pages required.
Anyone can use this service, which means that anyone could subscribe an email newsletter and an RSS feed would then be created.

The problem is that an RSS feed is a derivative work of the original email. Moreover, on the free version of the Mailby RSS service, the RSS feed includes advertising for the service itself. In this case, the Mailby RSS service might be guilty of direct infringement, but what of a program that will do a similar conversion that you can download for personal use?

The purpose of such a program would clearly be to induce the creation of derivative works. After all, if the provider of an email newsletter wanted to provide an RSS feed, they certainly could have.

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.

August 09, 2004

Hatch's Hit List #22 - TorrentocracyEmail This EntryPrint This Article

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: Torrentocracy

What is Torrentocracy?

Torrentocracy (pronounced like the word democracy) is the combination of RSS, bit torrent, your television and your remote control. In effect, it is what gives any properly motivated person or entity the ability to have their own TV station. By running torrentocracy on a computer connected to your television, you not only become a viewer of any available content from the internet, but you also become a part of a vast grass roots media distribution network. This is not about the illegal distribution of media, but rather it's about enabling an entirely new way to receive the video which you watch on your TV. If you ever wondered how and when your computer, the internet and your television would merge into one seemless device with access to anything and everything, then at this very moment the theme song from 2001: A Space Odyssey ("Also Sprach Zarathustra") should be resounding through your head. [links in original]
I think that Torrentocracy is one of the most exciting projects extant. It is one of the tools that will allow video content producers to route around the broadcast/cable/satellite gatekeepers. Anyone with a video story that strikes a chord with those producing popular RSS feeds (trusted filters) will be able to get their work onto television screens fairly easily and without the bandwidth costs.

However, that is exactly the problem from the point of view of the INDUCE Act. Despite the disclaimers provided for the description of Torrentocracy, it is clearly going to seduce people (especially children!) into engaging in copyright infringement. Oh, sure, Torrentocracy won't host or link to infringing torrents, but that is what you would expect of a "bad actor" trying to avoid secondary liability. After all, the purpose of the INDUCE Act is to go after those who are trying to avoid secondary liability. In the logic of the INDUCE Act, trying to avoid liability is a sign that you're guilty. However, anyone with an RSS feed can point to an infringing torrent and Torrentocracy will dutifully help that continue the infringement.

Moreover, the very words of the author of Torrentocracy condemn the project as having it purpose to destroy standard broadcast through copyright infringement. For example, one post compares the content industries to the doomed Iraqi Bathist regime (The Recording Industry is as Doomed as Saddam)

The technological prowess of U.S. forces is the equivalent to the unstoppable nature of peer to peer file sharing. If history does repeat itself, then the music industry should be very worried. P2P is destroying the recording industries ability to profit from the artists they control and at the same time the internet is the oil which might give the artists the resources they need to determine their own fate.

I guess ironically in both cases the American people are just the consumers-- consumers of oil and consumers of music. Rights? Tyranny? What's that all about? Fatten us up, lower our gas prices and drop the price of CDs and we'll be happy.

This clearly demonstrates that the author knows P2P leads to infringement. The fact that he's made a great P2P system means that he must have intended to destroy Hollywood.

Furthermore, the author of Torrentocracy condemns DRM and talks about skipping commercials, share recorded programs with friends, and that the content industry needs to be taught a lesson: My tivo thinks I'm stupid:

I saw this article on NYTimes this morning about Time Warner/AOL's new tivo like device. I've got to say, I completely agree with BoingBoing. Dubbed "MystroTV", this thing is just horrible. It attempts to be a Digital Video Recorder (DVR) but is laden with DRM to manage your rights (DRM having about as much to do with helping you manage your rights as a ticketmaster convenience charge is about being convenient to you). Unlike tivo, one could not skip through certain commercials with a fast forward button, share recorded programs with friends, and not have full access to record all programs.

This concept product is just yet another example of the failure of old-economy content distribution companies in understanding that the avalanche of technological adoption both current and coming has completely destroyed tradional methods for deriving income. Though I do have strong faith that we'll soon see the tide turning away from such feature crippled products for the sake of "licensing," it does seem for now that these media giants have still not learned their lesson from the music swapping that has already turned the corner and moved straight on to video and whatever else you can imagine sharing. The bubble may have burst, but the chewing gum hasn't lost its flavor. They're screwed, and making crappy products surely won't help them. [links in original]

Torrentocracy is a tremendous idea. However, it is a prime INDUCE Act target. And, under INDUCE, dissing the current copyright regime will probably not be helpful in court...who cares about free speech when copyright is threatened?

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.

August 06, 2004

Hatch's Hit List #21 - TiVo to GoEmail This EntryPrint This Article

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: TiVo to Go

Lo, and the multitudes were amazed that the high priests of innovation, the FCC, did anoint TiVo to Go with the permission of the broadcast flag (FCC Bestows Its Blessing on Technological Innovation). And thus, did bureaucratic blessings bestow upon the people the ability to copy a television program on up to 10 separate devices that shall have a reverent (and registered) dongle.

But the FCC was not reading from the book of INDUCE, whereupon the NFL trembled with a mighty wrath, and spoke thus: "TiVo to Go is the whore of copying devices, for it doth seduce the consumer into making copies for friends in the blackout zones without our express written consent." And the MPAA said "Cursed be TiVo to Go, for their monetary success is based upon offering infringing functionality that other companies do not. Let their executives crawl upon their bellies and eat dust all the days of their lives." And the other copyright industries saw that the wickedness of TiVo was great, for it encouraged consumers to think of content as theirs (sort of). And the copyright cartels vowed to blot out unauthorized copying, and distribution and fair use, for they were sorry that they had been permitted.

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.