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About this Author
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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September 10, 2004

Hatch's Hit List #45 - MIT's I/O Brush

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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: 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.

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

September 09, 2004

Hatch's Hit List #44 - Broadcatching

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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: 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.

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

September 08, 2004

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

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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: 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.

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

September 07, 2004

Hatch's Hit List #42 - Microsoft Music

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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: 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.

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

September 03, 2004

Hatch's Hit List #41 - iPodder

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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: 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.

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

September 02, 2004

Hatch's Hit List #40 - DEF CON

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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: 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.

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

September 01, 2004

Hatch's Hit List #39 - Peer-to-Peer Software Development Kits

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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: 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.

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

August 31, 2004

Hatch's Hit List #38 - Mediatrips

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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: 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.

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

August 30, 2004

Hatch's Hit List #37 - FeedBurner

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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: 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.

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

August 27, 2004

Hatch's Hit List #36 - JANE Magazine

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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: 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.

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

August 26, 2004

Hatch's Hit List #35 - Email Forward Function

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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: 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.

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

August 25, 2004

Hatch's Hit List #34 - Instapundit

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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: 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.

Comments (8) + TrackBacks (0) | Category: Hatch's Hit List | INDUCE Act

August 24, 2004

Hatch's Hit List #33 - Flickr

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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: 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.

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

August 23, 2004

Hatch's Hit List #32 - Online Ad Publishers

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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: 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.

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

August 20, 2004

Hatch's Hit List #31 - Replica Prop Forums

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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: 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.

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

August 19, 2004

Hatch's Hit List #30 - XM Radio to MP3

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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: 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.

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

August 18, 2004

Hatch's Hit List #29 - SourceForge

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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: 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.

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

August 17, 2004

Hatch's Hit List #28 - Credit Card Companies

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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: 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.

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

August 16, 2004

Hatch's Hit List #27 - DVD Jon's AirPort Express Hack

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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: 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.

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

August 13, 2004

Hatch's Hit List #26 - Player Pianos

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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: 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.

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

August 12, 2004

Hatch's Hit List #25 - EFF's Digital Front of Television Liberation

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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: 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.

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

August 11, 2004

Hatch's Hit List #24 - US Postal Service

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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

August 10, 2004

Hatch's Hit List #23 - Email to RSS

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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: 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.

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

August 09, 2004

Hatch's Hit List #22 - Torrentocracy

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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: 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.

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

August 06, 2004

Hatch's Hit List #21 - TiVo to Go

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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: 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.

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

August 05, 2004

Hatch's Hit List #20 - P2P Congress

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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

August 04, 2004

Hatch's Hit List #19 - Battle Torrent

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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: Battle Torrent

Those anti-copyright activists over at Downhill Battle are at it again. Yesterday, they announced a new software development initiative to make using BitTorrent easier than ever. Check out the goals of the Battle Torrent Project:

  1. To make it completely effortless for complete neophytes to download torrent files.
  2. To make it as easy as possible for people who have websites to set up their own torrent tracker.
  3. To make sharing a torrent as fast and easy as posting a file to a website.
The ostensible purpose of this project is to facilitate legitimate filesharing, but that is what all the "bad actors" say:
If we pull this off--and we can-- we'll have made sharing four-gigabyte files as easy as sending an email to your friend [or a million of your closest friends]. And that will change our culture significantly [by destroying copyright]. If distributing large media files becomes easier, people will create more of their own works and will experience more work created by other individuals [create their own, yeah, sure].
The site all but admits that it is about copyright infringement. Notice how they use an example of an infringing work:
Instead of downloading the torrent file, the user downloads an executable that contains a fully functional bittorrent client and the torrent file (say, "The_Grey_Album.torrent"). When the user runs it, the program begins downloading the Grey Album.
As everyone knows, the Grey Album is an illicit derivative work. The screenshot they use also shows the real, infringing use of the system by showing how the system can be used to share a copyrighted work, in this case the TV pilot Heat Vision and Jack, as well as a derivative work, Michael Jackson's Thriller, as realized in Lego (another questionable technology).

And don't even get me started on all the evidence of intention to induce infringement on the main Downhill Battle website. Sure, Battle Torrent might be a great idea for letting people publish bulky files and engage in free expression, but that is precisely why the INDUCE Act will have to outlaw 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

August 03, 2004

Hatch's Hit List #18 - Universal Turing Machine

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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: Universal Turing Machine

I just read about this new technology, a Universal Turing Machine, and although I'm not well-versed in the complex mathematics of it all, I'm pretty sure that any single Universal Turing Machine can simulate any Turing Machine. According to the Alan Turing Scrapbook:

A Universal machine is a Turing machine with the property of being able to read the description of any other Turing machine, and to carry out what that other Turing machine would have done. It is not at all obvious that such a machine, a machine capable of performing any definite method, could exist. Intuitively one might think that tasks of greater and greater complexity would need machines of greater and greater complexity. They do not: it is sufficient to have a specific, limited, degree of complexity, and then greater amounts of storage capacity for more laborious tasks. Turing gave an exact description of such a Universal machine in his paper (though with a few bugs).
Clearly, these "Universal" Turing Machines need legal controls, such as the INDUCE Act, in order that they not be abused for copyright infringement by those who would simulate copyrighted descriptions of other Turing machines.

Turing machines seem pretty simple, so I can't imagine why someone would need a "universal" one. Why not just build more of the single-purpose Turing machines? The only possible use I can see for a "universal" Turing machine is to copy what another copyrighted Turing machine does. If you give people a Universal Turing Machine, they will inevitably be induced to infringe copyrights with it. Any "reasonable person" can see that UTMs are, in reality, the most perfect copyright infringement devices ever invented.

Clearly, such infringement is what this Alan Turing fellow had in mind. After all, he was a hacker. One of the very first uses of his Turing machines was to circumvent DRM access controls! He, personally, spent many years of his life trying to read copyrighted material that didn't belong to him. Without a doubt, he is one of the "bad actors" that Sen. Hatch has in mind as the target of this bill.

Honestly, if these "Universal Turing Machines" become common, the copyright industry is sure to be destroyed!

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

August 02, 2004

Hatch's Hit List #17 - Cellphones with Hard Drives

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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: Cellphones with Hard Drives

I have to admit, this one is a bit farfetched. However, try to imagine a cellular phone company that isn't evil and actually believes in simply being a conduit for data without trying to control how that data is used or get paid for anything more than providing service. Yes, it might be hard to imagine a cellphone company like this, but give it your best shot.

As hard drives (and digital storage in general) get smaller and cheaper (for example, Toshiba Whips Out Tiny Hard Drive, Smacks Apple), undoubtedly we are going to see cellphone storage increase tremendously. Let's see, a communication device with tons of digital storage? Sounds exactly like something the INDUCE Act would ban. Putting communication and storage together is just asking for trouble if the INDUCE Act passes.

Luckily, however, we probably won't have to worry about it, since cellphone companies are rushing to encrypt and lock down their systems so that only the information and data they want to flow, will. How are they going to charge $2 for a new ringtone if people can download them from the internet? For example, one could provide MP3 capability for cellphones, but Motorola and Apple have signed a deal to provide DRM encrusted music instead (Apple - Moto ‘iPhone’ deal full of promise...).

Indeed, the first cellphone company that decides to offer a phone with MP3 capability and no DRM, because their customers would benefit from an open system, would be targeted. After all, the RIAA would claim that the company was not offering this theoretical open source phone to benefit the customers, but rather, to benefit internet pirates and profit from copyright 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.

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

July 30, 2004

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

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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

July 29, 2004

Hatch's Hit List #15 - Ringtone Remixers

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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: Ringtone Remixers
Tip o' the hat to Alfonso Urdaneta

Custom ringtones are very handy for distinguishing your phone (and yourself) from the crowd, as this (SSEYO Ringtone Remixer with DJ Spuddy) ringtone remixing website notes:

Anyone can create a ringtone remix of a popular track with just a few mouse clicks! Select the ringtone you want, make and preview your remix, and then send your handywork to your mobile phone. Easy, and cool.
Well, that sounds like a derivative work to me. The intent is also extremely clear from the reference to a "popular" track. Clearly, a codeword for a copyrighted track.

Indeed, even Sun isn't afraid to encourage a little copyright infringement (AIR Media Ringtone ReMixer):

This Java technology-enabled Ringtone ReMixer gives you the power to create custom mixes of the hottest hits and send them to your mobile handset. From your PC browser and mobile phone, it is easy to compose your own custom ringtones and caller ID's. Get your handset ringing with style!
The exclamation mark is particularly enticing. I had to hold myself back from engaging in some serious derivative work copyright infringement (plus, the java app doesn't work with the latest version of Mozilla).

Guess if the INDUCE Act becomes law we will all have to deal with a lot more of, "was that your phone or mine?"

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

July 28, 2004

Hatch's Hit List #14 - Deepnet Explorer

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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: Deepnet Explorer
Tip o' the hat to John Parres

From the Deepnet Explorer homepage:

Deepnet Explorer is the world’s first browser to offer fully integrated P2P file sharing capabilities and a built-in RSS/ATOM news reader. With features like tabbed browsing, pop blocking, auto login, form filler and P2P technology, Deepnet Explorer is the quick and easy way to browse the web, share files and read news simultaneously!
Of course, very soon every browser is going to include newsreader capabilities. It only makes sense. And P2P is a no-brainer. Integrating it with the browser is an obvious move to streamline the interface so people can share information easily and quickly.

If enough browsers had built-in P2P, then many websites would be able to effectively offload much of their bandwidth needs. Rather than linking to the file with HTTP, they would link to the file with a bandwidth-sharing P2P protocol. Which protocol? Wouldn't really matter, actually. Heck, maybe the link would be to a hash that the browser would use to launch a search for the appropriate file via several protocols. Makes a lot of sense for certain types of legitimate distribution actually.

Unfortunately, it also makes a lot of sense for certain types of unauthorized distribution as well. That's the real problem with the INDUCE Act. Building a browser with built in capability for P2P makes a lot of sense for many legitimate purposes, just as building a browser in the first place made a lot of sense. Unfortunately, the copyright industry isn't going to like these new purposes since they'll make certain types of infringement easier, just like the original browser made certain types of infringement easier.

In the early days of the internet, people would upload MP3s to their homepages. People would use MP3 search engines to find the links. Turns out it was relatively easy to shut down these early filesharers, although the copyright industry was initially panicked. If the INDUCE Act had been in force back then, would it now be illegal to build homepages without explicit authorization? Or to use a browser that didn't recognize a mandated encrypted handshake for connection to authorized webpages only? After all, if you can connect to any IP address, you might connect to one that ignores copyright law, just as some people might use P2P to download unauthorized copyrighted files.

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

July 27, 2004

Hatch's Hit List #13 - Disaster Relief Communication Systems

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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: Disaster Relief Communication Systems

A couple of months ago, technology columnist Dan Gillmor began writing about a project to establish and test communications in a simulated disaster or war zone called "Strong Angel II" (Communications Experiment's Life-Saving Goals). Communications are critically important for disaster relief. So, it's a very good thing that we have events like Strong Angel II where,

On a remote piece of land in Hawaii, a civilian-military team will install and test a communications system that could make a huge difference in future conflicts and other disasters, human-made or natural.
Good stuff, right? Well, one of the goals of the project is:
Using off-the-shelf hardware and software, including some technology developed in Silicon Valley, the team will install the system under deliberately harsh circumstances. It will be designed to help get crucial information where it's needed, securely and reliably, but not in a way where it's subject to central control....From the standpoint of tomorrow's communications, Strong Angel has enormous potential. If it's possible to create what amounts to a cheap, ad-hoc, reliable and secure information network under difficult circumstances, human freedom itself could get a boost. Such a system could help bring a freer flow of information to places where dictatorships or lack of a standard infrastructure have kept information in the hands of a few.
Again, sounds good. However, any such system will likely have many copyright infringing possibilities, especially if a cheap and reliable version is made readily available to the public. If you can avoid dictators, you can certainly avoid the RIAA.

Although the developers of such systems want them to be open source, that simply may not be acceptable to copyright holders:

A major longer-term goal of Strong Angel is to create a software platform on a laptop computer that contains all open-source -- free for download and modification -- software. This is obviously needed if the experiment works well enough for deployment in many parts of the planet where proprietary software is too costly.
Such robust, resiliant networking software will certainly have to be restricted. Making it available to civilians will only encourage them to use it for copyright infringement in between disasters.

Clearly, access to disaster relief communication systems will have to be restricted. The potential for copyright abuse is simply too high to allow anyone to use such systems. Anyone who says otherwise is clearly in cahoots with copyright pirates.

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

July 26, 2004

Hatch's Hit List #12 - FreeCache

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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: FreeCache
Tip o' the hat to Scott Matthews

FreeCache is (Internet Archive FAQ: FreeCache):

a demand-driven, distributed caching system. Cooperating caches exchange files without burdening the original site too much.
Basically, the system reduces bandwidth by caching large files nearer the users. Unlike other caches, the various "FreeCaches" distribute information among themselves. This means that bandwidth required for the original site is minimized. This is an excellent means for those without lots of spare bandwidth to distribute larger files.

Of course, if the INDUCE Act as currently written becomes law, lawyers are going to start asking some very disturbing questions regarding why the notorious copyright scofflaws at the Internet Archive developed such a system they knew could be easily abused by infringers. Heck, anyone can come along and make infringing material available via FreeCache.

I see no warning about making copyrighted files available through FreeCache. The website talks about moving large files of "free" content. It doesn't say "authorized" content or "public domain" content, it says "free" content. In this context, "free" is the equivalent of "illicit." After all, when people talk about downloading "free" music, they usually mean infringing files. Nor is there a disclaimer or terms of service. Anyone can come along and create a FreeCache link, as long as the file is greater than 5MB (which many illicit files are).

FreeCache is very insidious as well. It works through a plain vanilla browser. Those who click on FreeCache link see no warning message.

You can get files taken down from FreeCache, but they just get put back up again (FreeCache Forums: Illegal Content):

I was perusing the content in my cache and checking the detailed status page and I noticed illegal content containing videos in one of the caches I run. What is freecache.org doing to stop people from mirroring illegal content. I currently run 2 fairly heavily used caches and it looks like only one of them had illegal content. I cleared the cache to purge the problem, but the user just abused the service again by uploading the content again.
Now you're probably thinking, "aren't the people who run FreeCache protected by the DMCA safe harbor provisions codified at 17 USC 512?" And the answer is probably yes (The INDUCE Act (IICA) and the Safe Harbor Provisions of the DMCA). However, while the DMCA safe harbors probably protect servers that run FreeCache, there is no Safe Harbor for distributing the FreeCache CGI, which must be installed in order for there to be local FreeCaches.

With a few modifications (mandatory DRM, restrictions on who may create FreeCache files, etc.) I'm sure that Hollywood and FreeCache could work out their differences.

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

July 23, 2004

Hatch's Hit List #11 - Virtual Jigsaw Puzzles

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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: Virtual Jigsaw Puzzles

It is Friday, so continuing with the precedent set last week of demonstrating how a maker of children's toys was threatened by the INDUCE Act (Hatch's Hit List #6 - Legos), once again I look at the lighter side of massively expanding copyright liability.

Who hasn't put together a jigsaw puzzle at one point or another? Of course, physical puzzle pieces have a tendency to get bent through enthusiasm, or even lost. So why not a virtual puzzle on your PC, where pieces can't get lost? Alright, so maybe it isn't as fun, but it sure seems popular given the number of virtual puzzle programs out there. Of course, I need only one example, so take a look at: BrainsBreaker 4.2.

The poorly-named BrainsBreaker is a virtual puzzle program ("Look and feel as you would expect from a real cardboard jigsaw puzzle [emphasis in original]"). Sounds innocent, right? Wrong! The program is clearly seducing people (including children, who often play with puzzles) into the crime of copyright infringement:

Create new puzzles with your (or any) photos and share them with anyone [emphasis in original]
Note the "your (or any) photos" language. Clearly, that is meant to entice people to use photos that aren't theirs, that are copyrighted! Thus creating an infringing derivative work. And, my god! The website actually encourages people to share the resulting derivative work. For shame. For shame.

There are even instructions for obtaining copyrighted images: Chasing images for creating new jigsaw puzzles for BrainsBreaker. Although there is a disclaimer ("Please, employ these photos only for personal use, honor each webmaster's Copyright"), they are linking to numerous websites that clearly have not given permission to people to make derivative works and share them with friends. "[T]he Internet is full of wonderful images of all kinds that you can turn into puzzles in a snap." Indeed.

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

July 22, 2004

Hatch's Hit List #10 - 3D Scanners

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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: 3D Scanners

They're getting smaller and they're getting cheaper. That means that they'll be heading into the consumer range soon, if they aren't already there. 3D Scanners, not quite an everyday item yet, which makes them particularly vulnerable to the INDUCE Act.

Of course, that is the problem with new technology, people don't see how, in a few years, they might come to be seen as irreplaceable: how did we ever live without it? Not every technology ends up being useful, of course, but plenty of them went through a stage where their ultimate promise wasn't quite clear.

For example, what might one use a 3D scanner for? According to one manufacturer (Desktop 3D Scanner):

Ideal for scanning sculpted characters and other objects for computer animation, product prototypes, and for research applications.
Sounds pretty good to me. Lots of people are doing animation at home, as well as creating models for 3D game mods. Some of them would likely love to use a consumer 3D scanner to make creating such models easily (think about what you could add to "The Sims"!). And, of course, if you have a 3D Printer as well, watch out - the potential uses are unlimited (Hatch's Hit List #2 - 3D Printers)!

Who knows what other great uses people may come up with for 3D scanners? Sizing for mail order clothes? It doesn't really matter, however, because, if the INDUCE Act passes, many of the initial uses are clearly going to involve copyright infringement. Anyone selling consumer-priced 3D scanners will obviously know that they will be used for copyright infringement, which means they must be intended for copyright infringement, at least as far as the reasonable person may be concerned. Thus, the INDUCE Act-related end of another promising new consumer technology.

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

July 21, 2004

Hatch's Hit List #9 - Darknets

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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: Darknets

I'm using the term "darknets" to refer to closed or private P2P networks, such as WASTE, which is described as:

an anonymous, secure, and encryped collaboration tool which allows users to both share ideas through the chat interface and share data through the download system. WASTE is RSA secured, and has been hearalded as the most secure P2P connection protocol currently in development.
Most P2P systems are open to anyone who joins the network. When you participate in one of the standard P2P services, you are essentially uploading and downloading with everyone else on the system, whoever they might be.

For a number of reasons, some people don't want to share certain files with the world. They would prefer to have private networks that restrict membership and are cryptographically obscured against prying eyes. For example, some may wish to share home videos solely with family and friends. Or perhaps the darknet can be used for ad hoc business collaboration. There are many, many legitimate uses (otherwise known as "substantial non-infringing" uses) for such darknets. Of course, there are just as many illegitimate uses, such as copyright infringement.

Darknets are likely to be particularly disfavored by the copyright industry. Detecting and combatting copyright infringement on well-managed darknets is essentially impossible. Hollywood can't easily go after direct infringers on darknets, so they certainly have quite an incentive to launch INDUCE Act lawsuits against the developers and maintainers of darknets.

And there would be a pretty good case to make. After all, who initially developed WASTE? Why, it was that notorious inducer of infringements himself, Justin Frankel, developer of the initial Gnutella protocol. "WASTE" itself is an acronym that stands for "We Await Silent Tristero's Empire" and is a reference to a subversive, underground mail system in Thomas Pynchon's novel, The Crying of Lot 49. And, of course, there are plenty of articles detailing WASTE's use for copyright infringement (THE ROAD LESS TRAVELED: File Swappers Find Security in Waste; The Invisible Inner Circle: Forget Gnutella. Frankel's Waste is where it's at; and, The Underground Internet).

Darknets are wonderful tools with plenty of legitimate (and necessary) uses. However, that won't keep their developers from getting sued and put out of business if the INDUCE Act passes.

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

July 20, 2004

Hatch's Hit List #8 - Worth1000 Photoshop Contests

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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.

Today on Hatch's Hit List: Worth1000 Photoshop Contests
Tip 'o the hat to Jason Schultz

Worth1000 is "a daily image manipulation contest site." Basically, it is a website for competitive photoshopping. Everyday, there are new photoshopping contests such as Unsung Vending Machines 2 and If Dogs Ruled. The contest entries are frequently hilarious and often brilliant work. Additionally, W1K is not only a contest site, but a community where people share their knowledge and love of this new art form. Too bad that the INDUCE Act will make the site lawsuit-bait.

The briefest search through the site's many, many image galleries will quickly turn up dozens of derivative work copyright infringements. Sure, some of the works might have a fair use defense, but as Larry Lessig has pointed out, fair use is the right to hire a lawyer. And, even if you could afford a lawyer, many of the works would still be infringing.

The website does have a copyright disclaimer and 17 USC 512-like notice and takedown procedure, but warnings will carry very little weight under the INDUCE Act else common P2P systems would not be affected by the law (which is the ostensible goal). In this case having some warnings might be worse than having no warnings at all, since the warnings get copyright law wrong (Worth1000 Guidelines):

There are some exceptions where copyrighted images can be used legally, such as for parody purposes and even then, only in such a way that the image will not compete with the present or future commercial interests of the original image or derivative works of the image. If you change an image substantially enough that it will not in any way be confused with, nor financially compete with the original (and it's derivatives) it may fall into the category of fair use.
I'm not sure where to begin with how wrong this is. For example, just because you wouldn't confuse a derivative work with the original doesn't mean it isn't infringement. Clearly, W1K is misinforming its community in order to encourage infringement.

There is also a funny thing about the notice and takedown procedures in this case: even if W1K is not liable for hosting the images under section 512, they could still be found liable for inducing the creation of a derivative work. Whether W1K hosted the images or not, they induced the creation of derivative works.

W1K had to have known that they induce copyright infringement on a daily basis. A "reasonable person" would know that when you have a contest called Pop Culture Monsters 4, you're bound to get entries that are derivative works. It was nice knowing you W1K.

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

July 19, 2004

Hatch's Hit List #7 - VoIP

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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.

Today on Hatch's Hit List: VoIP

Voice over IP is probably one of the most interesting developing technologies, and perhaps one of the most revolutionary ones. It is fascinating for many reasons. Even as Congress, the FCC, various state utility commissions, the courts and others battle over how VoIP is to be regulated, if at all, entrepreneurs and hackers are developing new ways of utilizing VoIP. These innovators are changing the ways we can interact with the humble telephone and the results will likely reverberate in our society in ways we can hardly imagine.

One trivial example: I've been using Vonage for nearly two years now. One of the nice things it does is provide me an email notification of voicemail. One option for that email notification is that I can have the actual recording sent to my email:

Voicemail Attachments With Email can be a very powerful tool. When you activate Voicemail Attachments With Email, we copy your new phone messages as .wav files. Then we attach these files to your email notification messages. Turn this feature on and you can play back your messages through your PC without even accessing your voicemail system. You also forward your voice messages to anyone else via email or save them to your hard drive. It's another great way that Vonage puts you in control.
Indeed. Such capabilities will soon become common place. There are even interesting variations. Some have reported that Vonage has dropped voice messages into their voicemail box without actually placing a call. This could be very useful. Why not have a "voicemail" list that would allow someone to send one message to multiple phone numbers? Or why have to call, when you can send an audio file straight to someone's voicemail, which they might then download instead of listen to via phone, or both.

Which, of course, brings us back to the INDUCE Act. Inevitably, some of these developing and interesting uses for VoIP are going to lead to copyright infringement. Why is the attached .wav file necessarily a phone call? VoIP is so cheap in many cases, why not use it as a streaming radio station (which might merely be a form of conference call)? All these interesting and innovative uses will likely make our telephones even more useful than before. However, how much innovation will Hollywood permit in the development of unique VoIP applications if the INDUCE Act passes?

VoIP is already facing numerous regulatory challenges. Do we really want to add Hollywood to the regulatory hurdles VoIP must surmount?

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

July 16, 2004

Hatch's Hit List #6 - Legos

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Posted by Ernest Miller

What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringment 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 Hatch's Hit List Archives.

Today on Hatch's Hit List: Legos

It's Friday. So, I thought Hatch's Hit List could be a little more lighthearted. And what is more lighthearted than showing how the INDUCE Act could be used to sue a maker of children's toys?

Legos are a very cool, educational toy. Who doesn't like legos? They rock. And they're not just for kids; plenty of adults use legos to do some pretty amazing things, which Lego sometimes explicitly and sometimes implicitly supports. Unfortunately, many of these amazing things violate copyright, which makes the Lego company an inducer of copyright infringement.

Take for example Lego Mosaics, which would be derivative works of the original image. Lego will let you upload a picture file and then, using their Brick-o-Lizer, let you create a custom Lego mosaic from the photo. The next step is for Lego to ship you the custom kit, after you pay them $29.95 (aka commercial viablity). And this is what Lego has to say about the photos:

You can upload any .jpg or .gif file into the Brick-o-Lizer. You can use a scanner or a digital camera to get a picture into your computer to use with the Brick-o-Lizer..." [emphasis added]
Sure, there is a copyright disclaimer you have to "agree" to before you can use the Brick-o-Lizer but, please. The site is clearly geared towards children. Like kids understand lawyerese. This is just one of those phony warnings like the P2P companies use.

Even worse are the sample photos the Brick-o-Lizer lets you play with. They are all professional photos that no child could take. Clearly, the examples are telling kids that it is okay to use professional photos (aka copyrighted ones) with the Brick-o-Lizer.

And it is not only the Lego company; there are free versions of the Brick-o-Lizer available on the internet, such the Lego Users Group Network's Mosaic Maker. Any copyright warnings there? Nooooo....

And what about all those unauthorized derivative work Lego movies on the net at places like BrickFilms? What inspired induced those do you think? Might they have been inspired induced by Lego Comics and Movies?

Yeah, the Lego company is going to have a lot to answer for if the INDUCE Act becomes law.

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

July 15, 2004

Hatch's Hit List #5 - Automatic Online Translators

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Posted by Ernest Miller

What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringment 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 INDUCE Act Archives.

Today on Hatch's Hit List: Automatic Online Translators with a tip o' the virtual hat to Matt Perkins.

Translations are derivative works. The making of derivative works is one of the exclusive rights in copyright (17 USC 106(2), to be precise). Therefore, making unauthorized translations is an infringement of copyright. Under the INDUCE Act, if you intentionally induce someone to infringe copyright, you are liable.

Ever do a search on Google and some of the results weren't in English? Notice that little "Translate this Page" next to the link? Yeah, that's an inducement. Google is practically begging you to create a derivative work. They do everything for you (aka aid and abet) except click the "Translate this" link. And let us not forget the ease of use of Altavista's Babelfish Translation.

It's crazy, but not only are there no copyright warnings on the translation home pages, but there aren't any copyright warnings on either Google's Translation FAQ or Babelfish's Help Page. But what can you expect from such blatant copyright scofflaws? This is clearly an open and shut INDUCE case. And let us not forget that both Google and Altavista have deep pockets to pay off a juicy lawsuit. (Ooops, I wasn't supposed to write that out loud.)

Seriously, this is actually a very good example of why the INDUCE Act is bad law.

Under existing copyright law doctrine, automatic online translators like Google and Babelfish have some very good defenses. For example, although one could make a prima facie case that both are guilty of direct infringement, the RTC v. Netcom decision would likely protect both. In Netcom, a BBS operator was held not liable for direct infringement basically because their system of uploading files was automatic and directed by third parties. A similar argument would protect automatic online translators as well, I think.

Secondary liability (contributory and vicarious) would also not be an issue here. There is no real way for Google or Babelfish to control how their system is used to translate webpages and text without simply shutting them down, and there is clear evidence of substantial non-infringing uses.

However, the INDUCE Act changes all this. The evidence is blatantly obvious that both Google and Babelfish encourage the creation of translations (aka derivative works). They had to have known that they were encouraging copyright infringement. I don't see how a "reasonable man" could believe otherwise.

I know that I'll be keeping copies of my referrer logs. Sto parlandovi, lettori in Italia!

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

July 14, 2004

Hatch's Hit List #4 - Arcade Emulators

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Posted by Ernest Miller

What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringment 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 INDUCE Act Archives.

Today on Hatch's Hit List: Arcade Emulators

Some of the first examples I've used for Hatch's Hit List may have seemed a little obscure or out of the mainstream. Well, today I offer an obvious example of something certain to draw lawsuit wrath: the Multiple Arcade Machine Emulator (MAME).

For those unfamiliar with MAME (and you should be ashamed of yourselves) the MAME FAQ has this to say:

MAME stands for Multiple Arcade Machine Emulator. When used in conjunction with an arcade game's data files (ROMs), MAME will more or less faithfully reproduce that game on a PC. MAME can currently emulate over 2600 unique (and over 4600 in total) classic arcade video games from the three decades of video games - '70s, '80s and '90s, and some from the current millennium.

The ROM images that MAME utilizes are "dumped" from arcade games' original circuit-board ROM chips. MAME becomes the "hardware" for the games, taking the place of their original CPUs and support chips. Therefore, these games are NOT simulations, but the actual, original games that appeared in arcades.

You see, that is the tricky thing about MAME. The emulator is separate from the ROMS (which are copyrighted). Let's go back to the FAQ:
Emulating another platform, in itself, is NOT illegal. It is NOT illegal to have MAME on your computer, on your website, or to give it to friends.

ROM images are a different matter. Many ROM sites have been politely contacted by ROM copyright-owners and asked to take images offline. At the time of this writing, however, no site has been LEGALLY shut down, or prosecuted. [bold in original]

Sneaky, sneaky. The FAQ even goes on to say that:
"Distribution of MAME on the same physical medium as illegal copies of ROM images is strictly forbidden. You are not allowed to distribute MAME in any form if you sell, advertise, or publicize illegal CD-ROMs or other media containing ROM images. This restriction applies even if you don't make money, directly or indirectly, from those activities. You are allowed to make ROMs and MAME available for download on the same website, but only if you warn users about the ROMs's copyright status, and make it clear that users must not download ROMs unless they are legally entitled to do so." [italics in original]
Thus, MAME is perfectly legal under current copyright secondary liability doctrine.

But, come on, we all know that MAME is really about pirating Arcade games. Don't take my word for it, here's an admission from the videogame blog Joystiq (Emulator scene is our guilty pleasure):

It’s with a great amount of shame that we must admit that the emulator scene is swiftly becoming a guilty pleasure. Just like the music downloads we’ve all enjoyed once, twice or thrice, the old games of yesteryear can find new life on your PC. The rules of the emulator community dictate that you must own a copy of the game before you can download its emulation, but we all know that doesn’t happen. Where the hell would I put the full Star Wars arcade game? I live in a 900 square foot apartment! How dare they demand such a thing from me! As punishment I shall now download Donkey Kong! [emphasis added]
Seriously. Let's compare how many copies of MAME have been downloaded vs. the estimated number of actual arcade games out there. Anyone can see that MAME intends people to download ROMs no matter what their "disclaimer" says. Heck, if a disclaimer was all you needed to avoid liability, the INDUCE Act wouldn't be worth the paper it's written on, would it? And take a look at the FAQ again about getting ROMS:
The illegal option is to search the net with Google, Altavista, Yahoo, Webcrawler or other search engine, for the ROM files. You can also try other methods such as IRC, newsgroups, P2P software etc. Be aware that this is breaking the laws of almost every country. Before you consider doing this, see if the particular arcade games' copyright-owner has the ROMs available (as with Capcom and Atari). That way you will support the companies that support emulation.
Inducement, definitely.

And these old games are still worth money. Go into any videogame store and you'll see collections of classics still available. As this article from the Rocky Mountain News shows, millions of dollars are at stake (Retro's the name of the game for a new generation of videophiles).

If the Hatch Act passes, goodbye MAME, it was wonderful knowing you.

Comments (7) + TrackBacks (0) | Category: Hatch's Hit List | INDUCE Act

July 13, 2004

Hatch's Hit List #3 - AM/FM Transmitters

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Posted by Ernest Miller

What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringment 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.

Today on Hatch's Hit List: AM/FM Transmitters

Another of the points that I want to emphasize with Hatch's Hit List is that inducement is not simply limited to the right of reproduction or making copies, but you can get in trouble for inducing actions that violate any of the the exclusive rights in 17 USC 106. Today's technology is an example of a device that can induce public performance.

Ramsey Electronics is a very cool company that provides all sorts of neat electronics equipment and kits for hobbyists and professionals. This isn't gear that you just order and pull out of the box in operating condition, but a lot of the time you're going to have to spend several hours with a soldering iron and testing rig to put it together.

Some of their most popular kits are AM/FM transmitters that you can use at home. Basically, its like running a very low power radio station. Once built, all you have to do is plug it in and insert a stereo jack connected to an audio source. Bingo! You're broadcasting.

Why would you want to? According to the website:

Unless you have a whole house sound system installed, you listen to your CD’s etc. in the room where your stereo is. If your house is like mine, sometimes “Mom” wants to watch the TV when you want music. An FM broadcaster connects directly to the line output from your CD player/changer, or to one of the tape-out connections on your receiver. It then broadcasts to any FM radio in your house or yard. Depending on the model you choose and your location, range is 1/4 mile or more under optimum conditions.
You know, they actually work pretty good. I built one that my brother uses at his home. It is connected to the stereo out of his PC's soundcard and now he can listen to his MP3s on his shower radio in the morning or from the boombox in his gym/garage. But then again, so can the neighbors, which makes it a public performance.

In fact I must say that Ramsey is encouraging public performance. From the description of the FM10C model (the type my brother has):

Here is a great entry-level kit that will teach the basics of FM Broadcast Transmission while finding many uses around the home or dorm room. [Why do you need to broadcast in a dorm room unless you plan to broadcast to the entire dorm?] The FM10C has plenty of power to cover your home, back yard, or city block. [City block ... the copyright lawyers smile.] Our manual goes into great detail outlining all the aspects of antennas, transmitting range and the FCC rules and regulations. [Ah, but the manual doesn't talk about copyright law. Pity that.] You’ll be amazed at the exceptional audio quality of the FM10C...Re-broadcast your favorite music commercial free and with the dynamic range the musician intended, without all that nasty compression the big boys use to make their station sound louder than the competition. ["Favorite music" certainly refers to copyrighted works. This is clearly inducement to public performance.]
Betcha Ramsey Electronics isn't thinking about the secondary copyright liability they may be setting themselves up for here.

Of course, this particular example may seem far removed from your home, but perhaps not for long. How much different is WiFi from FM transmitting? Won't everything have WiFi? Wouldn't it be cool if it did? Well, those sponsoring the INDUCE Act probably don't think so.

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July 12, 2004

Hatch's Hit List #2 - 3D Printers

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Posted by Ernest Miller

What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringment 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.

Today on Hatch's Hit List: 3D Printers

One of the points that I want to emphasize with Hatch's Hit List is the effect it will have on nascent technologies; those technologies that are just around the corner. It is precisely these devices and the innovation they represent that are most vulnerable to Hatch's law. These are new technologies that usually lack significant monetary backing to fight massive copyright lawsuits. They are not yet well-established so that people can immediately see their benefit. For example, anyone who uses a TiVo realizes what a revolutionary device it is. Those who haven't used one often think they are nothing more than a glorified VCR. In other words, nascent technologies are frequently technologies that we don't realize we need yet and would be easily crushed by INDUCE Act lawsuits.

3D printers are a perfect example of this sort of technology. They seem to be making a great deal of progress and there is a good probability that they will eventually reach the consumer market. See, for example, New USC Process Offers Faster, Cheaper 3D Printouts, 'Gadget printer' promises industrial revolution, and Entering the Era of Printable Devices?. 3D printers may revolutionize our lives in ways we can't imagine (or they may not, but that's not the point).

When 3D printers first reach the consumer market, what are they frequently going to be used for? Copyright infringement, of course. Very few people will ever master the skills to create even a basic CAD/CAM design. So the designs for the items their brand-new 3D printer will create will have to come from somewhere. Since the 3D printer market will initially be small, it is unlikely that there will be all that many companies selling designs. Infringement will be the obvious source for 3D printer designs. I mean, really, who wouldn't want to print out a collection of bootleg Garfield figurines if they could? I don't even want to think about the headaches this would cause eBay.

You can justify 2D printers with claims that people will write their own papers or print their own photographs. You can't say the same for consumer-grade 3D printers and, thus, they will surely induce people to infringe copyrighted designs, which means that Hatch's law will make them effectively illegal (at least for consumers).

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July 09, 2004

Introducing Hatch's Hit List

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Posted by Ernest Miller

When the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) first became news it was disparagingly (and rightfully so) compared to an infamous bill from 2002, the Consumer Broadband and Digital Television Protection Act aka CBDTPA aka Hollings Bill (after the Senator who sponsored it) (INDUCE Act = Son of Hollings?). One of the most clever attacks on the CBDTPA was a little thing Ed Felten came up with on Freedom to Tinker: Fritz's Hit List. What was Fritz's Hit List? Well, the name came from Sen. "Fritz" Hollings. More importantly though and in Felten's own words (New Feature: Fritz's Hit List):

Most readers have probably heard me, or someone like me, say that the Hollings CBDTPA has far-reaching effects -- that it would regulate virtually all digital devices, including many that have nothing at all to do with copyright infringement. Though this argument is right, it is too abstract to capture the full absurdity of the CBDTPA's scope.

To foster reasoned debate on this topic, I'm inaugurating a new daily feature here at freedom-to-tinker.com, called "Fritz's Hit List." Each entry will give an actual example of a device that would meet the CBDTPA's definition of "digital media device" and would thereby fall under the heavy hand of CBDTPA regulation.

I'll post a new example every weekday for as long as I can keep it up. Please email me if you want to suggest an example. (I have plenty of good ones in the queue already, but your suggestions may be better than mine.)

Well, I think the far-reaching effects of the INDUCE Act are worthy of similar treatment. So, starting today, I will endeavor to post every weekday an example of a nascent technology that can be quashed by the INDUCE Act. Of course, "Orrin's Hit List" doesn't quite roll off the tongue, thus "Hatch's Hit List." As with Fritz's Hit List, please email me (ernest.miller 8T aya.yale.edu) with suggestions. Read on...

UPDATE
The entire list can be found here: Hatch's Hit List

...continue reading.

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