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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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The Importance Of ... Law and IT.

Feel free to contact me about articles, websites and etc. you think I may find of interest. I'm also available for consulting work and speaking engagements. Email: ernest.miller 8T gmail.com

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Category Archives

June 07, 2005

CDT's 'Balanced Framework' for Copyright Completely Unbalanced

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Posted by Ernest Miller

The Center for Democracy and Technology has released a report today arguing on behalf of a balanced approach to copyright enforcement, a carrot and stick (CDT Proposes Balanced Framework for Online Copyright Protection). via Constitutional Code, which has many worthwhile comments

Read the 14-page report: Protecting Copyright and Internet Values: A Balanced Path Forward: Version 1.0 – Spring 2005 [PDF].

Note: I've long favored the carrot and stick approach. See this interview with GrepLaw in September, 2003 (Ernest Miller on DRM, Privacy and Hemingway). (You know, I think my answers stand up to the test of time pretty well.)

However, I think the CDT report favors the stick a bit much, treats citizen/creators as mere consumers, doesn't consider structural reform of copyright law, and doesn't provide much in the way of a carrot, among other flaws.

Read on for a more detailed take on the report...

...continue reading.

Comments (3) + TrackBacks (0) | Category: Broadcast Flag | Copyright | Digital Millennium Copyright Act | Digital Rights Management | File Sharing | Freedom of Expression | INDUCE Act

May 25, 2005

Senate Judiciary IP Subcommitee Hearing On Int'l Copyright Infringement

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Posted by Ernest Miller

Well, I listened to the nearly two hours of generally dull testimony for today's Senate hearing on intellectual property (Notice of Subcommitee Hearing: Piracy of Intellectual Property). I suffered so that you didn't have to.

The hearing was chaired by Sen. Orrin Hatch (R-UT), who heads the Intellectual Property Subcommitee of the Senate Judiciary Committee. Sen. Patrick Leahy (D-VT) also attended most of the hearing.

The focus of the meeting was on international copyright infringement, particularly in China and Russia. Flash! There is lots of infringement in these two countries and something must be done about it, such as keeping Russia out of the WTO. And we're really going to get upset with China pretty darn soon. Any minute now, in fact. Just you wait, we'll do something major to China, you'll see.

Read on ...

...continue reading.

Comments (7) + TrackBacks (0) | Category: Copyright | INDUCE Act

April 06, 2005

March 15, 2005

Slate Induces Copyright Violations

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Posted by Ernest Miller

Slate has published another good article by tech journalist Paul Boutin, who advocates HTML annotation software for bloggers (Newsmashing: The new technique that will change blogging forever). Basically, you would be able to copy a webpage, then annotate directly on top of it, highlighting passages, writing notes, adding links, etc. Such is possible today, of course, but a software package that made it easy (just as blogging tools made publishing easy), could be a significant change, allowing anyone who can blog to create such annotations.

Being a long time fan of annotation, I think this would be great.

Of course, there is the little issue of copyright violation. Certainly, if I hosted the complete original work with annotations, that could very clearly lead to a copyright claim. Under the INDUCE Act theories, the company that made the software to allow this would also be liable. After all, if you are authorized to annotate, then you can manipulate the underlying file without need for annotation software. Clearly, the intent and purpose of annotation software would be to encourage the creation of derivative works and reproductions that people are unauthorized to make.

One possible solution would be to be able to create the annotations as a separate file and then layer them over the original copyrighted work. If one wanted to see the annotation, they would click a special browser link that would go to the original HTML of the work that is annotated (no copyright violation there) and then display the annotation over it (potential copyright violation). There is a drawback in that the underlying work could easily be changed to throw off the annotation, but that is a problem with linking in general.

Of course, all the people who were upset with Google for changing the presentation of their work would be just as upset with all the annotators. Would this be a copyright violation? Would a software company that provided this service be guilty of inducing infringement?

Currently, it is unclear how such a case would come out. I would like to think that annotation of this sort is clearly not a copyright violation inherently, but my views are not necessary shared by copyright owners and the courts.

UPDATE 1410 PT

Apparently Paul Boutin wanted to have an actual newsmashing contest, but lawyers shut him down! (Newsmashing!):

We were going to have a newsmashing contest, but the lawyers shot it down. Damn you, copyright law!
Heh.

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Copyright | INDUCE Act

October 07, 2004

Final INDUCE Act (IICA) Draft From Copyright Interests - INDUCE Dead for Now

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Posted by Ernest Miller

It would appear that the Inducing Infringement of Copyrights Act of 2004 is dead. Newsday runs an AP wirestory on the death of INDUCE (Senate Talks Fail on File-Sharing Software). via Copyfight

For the record, according to an anonymous source, this draft version of the INDUCE Act from the copyright industries is the one that finally convinced consumer and technology groups that compromise wouldn't be reached: INDUCE Act - Copyright Owners' Tentative Proposal - 05 Oct 2004 [PDF]

This draft is most similar to the one pointed to by Ed Felton here: Recent Induce Act Draft.

Of course, we should all be wary of the mischief Congress accomplishes during lame duck sessions, as well as a revived INDUCE Act next term.

Might I suggest that the copyright industries spend more time and money developing new business plans rather than legislation-drafting lawyers?

Comments (3) + TrackBacks (0) | Category: INDUCE Act

No INDUCE Act (IICA) Markup Tomorrow?

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Posted by Ernest Miller

Good news.

A source familiar with the ongoing Inducing Infringement of Copyrights Act (IICA aka INDUCE Act) drafting process informs me that the Judiciary Committee will not markup the INDUCE Act tomorrow, ostensibly in order to deal with homeland security issues.

Of course, if true, this is only a postponement. Expect the INDUCE Act to rear its ugly head once again, either during the lame duck session or next term.

Comments (1) + TrackBacks (0) | Category: INDUCE Act

October 06, 2004

Sen. Hatch Pushing INDUCE Act (IICA) Forward Despite No Consensus? Plus, CDT Speaks Out

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Posted by Ernest Miller

It is looking more and more likely that Sen. Orrin Hatch (R-UT) is going to try to get something passed tomorrow despite heavy opposition from technology and consumer groups.

Will the Judiciary Committee cravenly accept such an attack on innovation and the future, or will they reject Hollywood's efforts to determine how the internet will develop?

The Center for Democracy and Technology has also sent a letter asking the Senate to not be foolish: CDT, Letter to Sen. Hatch and Leahy, RE: S. 2560, Inducing Infringement of Copyrights Act of 2004, 06 Oct 2004 [PDF]

We understand that S.2560 is still scheduled for markup by the Judiciary Committee this week. Despite the progress being made, current drafts would chill the development of legitimate consumer technologies, and we urge you not to pass S.2560 out of Committee at this time.

CDT remains committed to working with you and with the Committee to craft a bill narrowly targeted at bad behavior by a small set of actors. In the meantime, however, we urge you not to move forward with S.2560 because of the real risks it presents to communication and innovation on the Internet.
See also, Technology and Consumer Groups Oppose INDUCE Act (IICA) Markup and Secret INDUCE Act (IICA) Negotiations Fail!.

Comments (0) + TrackBacks (0) | Category: INDUCE Act

Technology and Consumer Groups Oppose INDUCE Act (IICA) Markup

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Posted by Ernest Miller

As I noted earlier, the Inducing Infringement of Copyrights Act (IICA aka INDUCE Act) negotations have failed (Secret INDUCE Act (IICA) Negotiations Fail!). Now, two letters have been sent to the Senate asking that there be no markup as there was no consenus. Hopefully, the Senate will recognize that marking up a seriously flawed bill is quite a bit worse than utterly foolish.

From a coalition of consumer groups, including American Library Association, EFF, and Public Knowledge: American Association of Law Libraries, et. al., Letter to Sen. Hatch and Leahy, RE: S. 2560, Inducing Infringement of Copyrights Act of 2004, 06 Oct 2004 [PDF]

Moreover, every one of the half-dozen drafts proposed would make fundamental changes to copyright law, with potentially enormous impact on the innovation, creativity, and competition. At this point, we are very concerned that staff may present at tomorrow’s executive business meeting complex legislation: 1) on which there is no consensus; 2) that would do great harm to future technological innovation; and 3) that would not meet the goals that you and Senator Leahy have set out.

Every major change to the Copyright Act in the last century has taken several years to draft and fine tune before it was passed. Even the controversial Digital Millennium Copyright Act (DMCA) resulted from numerous hearings and conference reports over a three-year period. Given the short period over which S. 2560 has been discussed, the absence of hearings on the new language, and the overall lack of opportunity for the public to comment, we believe it would be in the best interests of all parties to allow a more orderly process to go forward, and to have a hearing with expert testimony on whatever draft results from this process. We can see no other way to achieve true consensus and ensure that the public interest and future technological innovations are protected. We hope you will agree.

Technology groups have also sent a letter, including Consumer Electronics Association, IEEE-USA, and NetCoalition: Consumer Electronics Assoc., Letter to Sen. Hatch and Leahy, RE: S. 2560, Inducing Infringement of Copyrights Act of 2004, 06 Oct 2004 [PDF]
At the July 22 hearing, we committed to working with you to craft a legislative alternative to S. 2560. At Chairman Hatch's direction, we have been working virtually around the clock for almost a week in an effort to reach consensus with the copyright community. Notwithstanding everyone's hard work and good intentions, we find ourselves farther apart now than at the outset of this process. Because we are attempting to write legislation dealing with complex and evolving technology, this has proven to be an exceptionally difficult process.

Unfortunately, the recording industry continues to propose language that would not solve the piracy problems in the manner you identified, but instead would effectively put at risk all consumer electronics, information technology products, and Internet products and services that aren't designed to the industry's liking. In fact, the most recent draft put forward by the recording industry at 1:00 am this morning is a large step backwards from previous drafts in that it would jeopardize more legitimate products and would create a flood of litigation, and thus would hurt vital sectors of the U.S. economy. In short, the draft is unacceptable.

Hopefully, the Senate will take these group's advice and forget about INDUCE for now.

Comments (0) + TrackBacks (0) | Category: INDUCE Act

Secret INDUCE Act (IICA) Negotiations Fail!

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Posted by Ernest Miller

Reports are that no final compromise was reached on the Inducing Infringement of Copyrights Act (IICA aka INDUCE Act). Apparently, negotiations broke down on codifying the Betamax decision as well as copyright holders arguing for broader language.

Whether this means that Sen. Orrin Hatch (R - UT) will produce a bill for markup tomorrow is anyone's guess. I'm guessing yes. Why should a little thing like an unbalanced, dangerous bill stop him?

Comments (0) + TrackBacks (0) | Category: INDUCE Act

October 04, 2004

Rumors Continue to Fly Around New INDUCE Act (IICA) Draft

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Posted by Ernest Miller

According to anonymous reports, our betters continue to develop internet innovation policy behind closed doors. Apparently, the open transparent processes that led to the development of the internet are not appropriate to the development of innovation policy.

Supposedly, the revised bill will be completed by close of business today for markup in the Senate tomorrow. No hearings. No public debate. Nada, nothing, zilch.

Also, if what I've been hearing is true, there is a liklihood of some really terrible additional provisions being added to the basic framework of the INDUCE Act (IICA), such as a requirement for file sharing filtering being built into filesharing applications.

Of course, it would be nice not to have to report on rumors. If our elected representatives had any trust in democratic processes, they would make the various language being batted about and the various draft bills public. They certainly wouldn't require a vow of silence from the participants in the process.

Comments (2) + TrackBacks (0) | Category: INDUCE Act

Is There a New INDUCE Act (IICA) Draft?

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Posted by Ernest Miller

Rumor is that there is a new INDUCE Act (IICA) draft available, but the participants have been sworn to keep it quiet while they show it to their clients.

Of course, the clients of the US Senate, aka the people of the United States, get no such courtesy from their elected representatives.

Ain't democracy great?

Comments (0) + TrackBacks (0) | Category: INDUCE Act

October 01, 2004

Burning the Midnight Oil to Create a New INDUCE Act (IICA)

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Posted by Ernest Miller

Well, no version of the INDUCE Act (IICA) has come out of Sen. Orrin Hatch's patent-pending throw some of the interested parties in a room and not let them out until there is a compromise innovation policy development process. The drafting may continue throughout the weekend.

Reports that observers should watch for black or white smoke from Senate offices are mistaken; Sen. Hatch did not insist on following medieval precedents in their entirety.

See also, Ed Felten (Sin in Haste, Repent at Leisure).

Comments (0) + TrackBacks (0) | Category: INDUCE Act

September 30, 2004

"All-Star" Drafting Team to Create New INDUCE Act (IICA) by Close of Business Tomorrow

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Posted by Ernest Miller

According to Public Knowledge:

An all-star game of private sector legislative drafters will start at 10:30 tomorrow. There will be representatives from consumer electronics, Verizon, CDT, and others on our team and from the usual suspects on the other team. They are supposed to produce a draft by 4 p.m. That draft will then be, probably revised, to see if it can be marked up next week.
Why on God's green earth does Sen. Orrin Hatch (R-UT) think this is a reasonable way to set internet innovation policy? There will apparently be no significant reflection or debate, just a rush job at the end of the session.

Unbelievable.

Comments (1) + TrackBacks (0) | Category: INDUCE Act

Report from the INDUCE Act (IICA) "Negotiations"

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Posted by Ernest Miller

Apparently, Sen. Orrin Hatch's staff believes that the Senate Judiciary Committee would be criticized if forwarded a copyright bill and criticized if it didn't. Criticized by who? The citizens of Utah? Are the people of Utah pushing ths bill? Will Sen. Hatch be voted out of office if the INDUCE Act isn't passed?

Sen. Hatch himself was quoted as saying that he wanted the people in the room to write the "doggone" bill and that if they didn't he would. He also was quoted as saying, "if the bill isn’t done this year, it will be done next year."

Great.

Comments (1) + TrackBacks (0) | Category: INDUCE Act

Content Industries Meet with Sen Hatch Prior to INDUCE Act (IICA) "Negotiation"

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Posted by Ernest Miller

Yesterday I noted that instead of a regular bill "markup" there was going to be a massive negotiation among some of the stakeholders regarding the INDUCE Act (IICA) (INDUCE Act (IICA) Massive Negotiation Session Tomorrow).

Today, an anonymous source familiar with the process has told me that before the main meeting, which is taking place as I post, there was a separate meeting between Sen. Orrin Hatch (R - UT) and the content industries alone. Have to put together a united front, I suppose.

Comments (0) + TrackBacks (0) | Category: INDUCE Act

September 29, 2004

INDUCE Act (IICA) Massive Negotiation Session Tomorrow

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Posted by Ernest Miller

Word is that there will be no markup of the INDUCE Act (IICA) tomorrow as had been previously promised. "Instead, the Hatch staff has invited a bunch of people, most of them content people, to a massive negotiation session at 1 p.m. in Dirksen 226. This is not a public meeting, but could be staked out. MPAA, RIAA, BSA, AOL-Time Warner were invited. Consumer Electronics, CDT, Verizon among others."

At what point will our representatives in Washington figure out that this is probably not an intelligent way to determine internet innovation policy for the nation?

Comments (2) + TrackBacks (0) | Category: INDUCE Act

INDUCE Act (IICA) Continues to Threaten

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Posted by Ernest Miller

Concentrate on some other things for a few days and you fall hopelessly behind. I'm also feeling very frustrated that a handful of Senators are still trying to push through the innovation-crippling, free speech-threatening INDUCE Act on behalf of an industry with disproportionate lobbying efforts and profile. It is very sad, especially when I consider the pernicious effect it will have on our political culture for many years to come (the subject of another post). Anyway, simply to catch up, here are some more links:

Copyfight:

INDUCE Act Blog:One final point. Copyfight pointed to an email sent by the group behind the Grammy's encouraging artists to support the INDUCE Act (Induce Boosters Send Email to Grammy Members). If artists think that it is in their interest to significantly increase the power of the publishers as against all others, they are sadly mistaken. When copyright law becomes even further unbalanced, it becomes a burden on artists just as much, if not more than, consumers.

Comments (0) + TrackBacks (0) | Category: INDUCE Act

September 24, 2004

Staff Draft of INDUCE 2.0

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Posted by Ernest Miller

The Senate will likely be doing a markup of the Inducing Infringement of Copyrights Act of 2004 (IICA, née INDUCE Act), next Thursday, September 30th. The draft they will be working off has just been released. It is much closer to the original version of the bill than the version produced by the Copyright Office a couple of weeks ago.

Read the 4-page staff draft of INDUCE 2.0: Staff Draft S. 2560 - Inducing Infringement of Copyrights Act of 2004 [PDF].

The bill is much more narrowly drafted with carve outs for everything that EFF had in their original mock iPod complaint: iPod, the maker of the hard drives and C|Net for reviewing it are also presumably protected (Prelude to a Fake Complaint).

However, the bill retains many of the provisions, including the incredibly vague "reasonable person" standard, as well as other issues.

In any case, this is not the final draft, but only something that will be futher changed at the markup next Thursday and there may be other drafts released between now and then.

More later...

Comments (2) + TrackBacks (0) | Category: INDUCE Act

September 23, 2004

The Importance of ... Law and IT: The INDUCE Act 2.0

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Posted by Ernest Miller

The fourth episode of my audio series, The Importance Of ... Law and IT, is up on IT Conversations.

This show focuses on the Inducing Infringement of Copyrights Act of 2004 (IICA, née INDUCE Act), with some emphasis on the recent draft from the Copyright Office.

Get the show here: The INDUCE Act 2.0.

There was really not too much I had to do in this show except let two excellent experts and advocates explain what is going on with the INDUCE Act:

Many thanks to both of them for an excellent show.

During the show, Greenberg noted that there are also several other alternatives to the INDUCE Act. You can find out more about them here: 'Don't Induce Act' - an Alternative to the INDUCE Act (IICA) and Other News.

Read on for the letter Wattles sent to key Senators regarding the bill just days after the show...

...continue reading.

Comments (0) + TrackBacks (0) | Category: Audio Edition | INDUCE Act

September 17, 2004

Broad Coalition of Organizations Calls for More INDUCE Act (IICA) Hearings

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Posted by Ernest Miller

A broad collection of technology companies, civil liberties groups and other organizations have just released a letter calling for further hearings on the Inducing Infringement of Copyrights Act of 2004 before the bill enters markup. The letter is a response to the new version of the INDUCE Act (IICA) proposed by the Copyright Office (which I haven't yet written about, but is most definitely on my "to do" list). Clearly, Congress should take this letter's advice.

Read the two page letter: Letter to Senators Hatch and Leahy, Re: S. 2560, Inducing Infringement of Copyrights Act of 2004, Sep. 17, 2004 [PDF].

Text of the letter below:

Dear Senators Hatch and Leahy:

The undersigned entities are writing to express their concerns with the Copyright Office's September 9, 2004 recommended statutory language for a new form of secondary liability for copyright infringement. We commend the Copyright Office for its efforts to meet with the many different stakeholders and to fashion a recommendation that attempts to address the competing interests. Notwithstanding the Copyright Office's hard work and creativity, the September 9 draft is not ready for mark-up by the Senate Judiciary Committee. The draft raises a host of new issues and would create an unprecedented new form of liability of uncertain, but potentially unlimited, reach.

The Copyright Office's most recent approach would create a new form of strict copyright liability for a large class of providers of hardware, software and services used in conjunction with the electronic or physical dissemination of goods, services, and information. These companies and institutions could be found liable without regard to their knowledge, intent, or relationship to the infringer, simply for providing a product, service, facility or financing. All it takes to be found liable is to meet one of the three vague criteria proposed by the Copyright Office, which are to be applied to some undefined subset of a defendant's products or services. As a result, anyone involved in the development or operation of electronic, or even physical, communication, distribution, or dissemination technologies could be strictly liable when it unknowingly derives revenue that may be small in relation to its own provision of goods and services. Perhaps most troubling, entities that participate in the Internet and other electronic space would have no way of structuring their activities to anticipate and avoid -- or even minimize -- these risks.

The Copyright Office's new draft fails to codify the Supreme Court's Betamax decision, which, despite having fostered twenty years of explosive growth in technology, is now under unrelenting attack. Moreover, the Betamax doctrine will provide no defense against the Copyright Office's proposed new form of liability. Nor would it be availing to present any defense based on lack of knowledge, intent, or affiliation with any infringer. Thus, legitimate enterprises may have no effective means of preventing the substantial litigation cost of virtually every infringement case going to trial. The September 9 draft also explicitly opens the door to secondary liability -- posing yet another challenge and obstacle -- to those who finance new ventures or "incubate" new technologies. Thus, it may sweep up far more than bad actors who build business models based in infringement.

While the decision to embark on a new approach shows that the Copyright Office has been willing to listen to criticism of previous approaches and to explore new directions, the very novelty of this approach suggests that further analysis and review are in order. Indeed, each major alternative that has been presented to your staff (including those emanating from the private sector) has revealed an attempt to avoid the pitfalls of S. 2560 as introduced, yet has differed dramatically from other serious proposals. No private or public sector consensus has yet formed as to theoretical framework and practical impact.

In the first hearing on S.2560, the Committee called on interested parties to propose legislative alternatives. The resulting process has led to a number of significant alternatives, which differ greatly from the original and from each other. However, each would work a fundamental change in copyright law, with potentially enormous impact on the competitiveness and economic growth of this nation. Before any approach becomes law, it should, at minimum, be subjected to careful scrutiny in a public hearing at which novel elements in these approaches can be compared, and discussed as to their full implications. The process thus far has been constructive, but has not resulted in either the consensus or the confidence in a legislative framework that ought to underlie a major and consequential revision to the Copyright Act.

We continue to appreciate the seriousness and cordiality with which your staffs have approached this issue, and look forward to continuing to work with you and with them.

Sincerely,

[Numerous technology companies, civil liberties groups and other organizations]


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

Comments (0) + TrackBacks (0) | Category: INDUCE Act

September 14, 2004

SAVE BETAMAX

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Posted by Ernest Miller

Let Congress know today, with a phonecall, that you oppose the INDUCE Act.

SaveBetamax.org

Or use EFF's Action Center: Induce Act Update: Turning Up the Heat.

If you don't know why you should care, you can pick a few articles at random from an index of more than 100 of my postings on the INDUCE Act. See, LawMeme (The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act).

For those wondering where I've been ... well, I apologize. I'll be back with a vengeance soon, putting on my pajamas and doing an indepth on INDUCE 2.0 and more. Hatch's Hit List is on a slight hiatus ... but don't worry, it'll be back too.

Comments (0) + TrackBacks (0) | Category: INDUCE Act

September 10, 2004

Copyright Office Report on INDUCE Act (IICA) Complete But Not Yet Public

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Posted by Ernest Miller

Yesterday afternoon, the Copyright Office was to provide a report to the Senate Judiciary Committee on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). See, Senators Put Copyright Office in Charge of Finding INDUCE Act (IICA) "Consensus" by Sep 7 and Copyright Office Produces 'Discussion Draft' Alternative to INDUCE Act (IICA).

Two sources have confirmed that the report has been submitted to the Senate, but the report will not be released publicly until Senate staffers have had a chance to review it.

Of course, I wonder why the delay in making the report public? Is it going to change between now and when the Senate deigns to release it? Why is this an appropriate way of dealing with a public report?

Anyway, I've got some other things to do today. Hopefully, I'll be able to take a look at it as soon as someone decides the report is fit for the people who paid for it.

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

Comments (0) + TrackBacks (0) | Category: INDUCE Act

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

Call Congress on Sep. 14 - SaveBetamax.org

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Posted by Ernest Miller

On September 14th Downhill Battle wants you to call Congress to let your representatives know your views on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act): SaveBetamax.org:

The Betamax ruling is the only thing that protects your right to own a VCR, tape recorder, CD-burner, DVD-burner, iPod, or TiVo. It's that important. But new legislation that's being pushed through the Senate by lobbyists for the music and movie industries would override the Betamax decision and create a huge liability for any business that makes products which can copy sound or video. This legislation (formerly known as the INDUCE Act) would essentially give Hollywood veto power over a huge range of new technologies. And if they get this power, they'll definitely use it: just as they tried to stomp out the VCR in the 70's and 80's, the music and movie industries want to force all content to go through their own restricted channels.
Go ahead, register.

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

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INDUCE Act (IICA) Response to Copyright Office "Discussion Draft" and Other News

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Posted by Ernest Miller

The Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) continues to endanger technology and innovation, as the response to the Copyright Office's "discussion draft" revision of the bill is received poorly by both sides of the debate. Sometimes, when you upset both sides, you've got a good compromise. That is most definitely not the case here.

Citizens, you know, the people who supposedly are sovereign and all, weren't invited to provide any feedback to the Copyright Office. In fact, there was only a 24-hour window for comments ... it is almost as if they really didn't want any real discussion or something. In any case, the lack of openness of the process didn't stop at least one private citizen from providing unsolicited (but extremely worthwhile) advice. Joshua Wattles is past president of the Los Angeles Copyright Society; the former acting general counsel of Paramount Pictures Corporation and it’s then lead intellectual property counsel; former counsel to certain peer-to-peer services and developers appearing as amici in the MGM v. Grokster litigation; a former in-house lawyer for ASCAP; and a co-founder of Bay Area Lawyers For The Arts, the precursor organization to Volunteer Lawyer For The Arts. So, basically, he knows what he is talking about - and he is quite critical, to put it mildly, of this version of the INDUCE Act.

Be sure to read Wattles' 8-page annotation of the "discussion draft": Comments of Joshua S. Wattles as a Private Citizen and Member of the Copyright Bar [PDF]. Just a small taste:

At some point if enough cuts are made around a doctrine, it falls just as dramatically as if it had been stabbed in its core. The draft preserves the Sony-Betamax doctrines in only the most technical sense of failing to state that they are overturned. Congress is free to directly eliminate the Sony-Betamax doctrines from the law but the impression was made by the Senate Committee that it would not do so.
C|Net News has its own report on the "discussion draft" from the Copyright Office (Copyright Office pitches anti-P2P bill). Read my story here: Copyright Office Produces 'Discussion Draft' Alternative to INDUCE Act (IICA).

Prof. Susan Crawford's original response to the INDUCE Act was quite moderate, simply calling for hearings on a flawed bill (Crawford on the INDUCE Act: Not With a Sledgehammer, But a StilettoTaking On Technology):

I'm sure there will be many meetings about this draft, and I'm confident that reason will prevail. I'm sure this redraft isn't the last word. So I'm not jumping up and down. I'm just amazed at this sequence of events.
Me, I'm very concerned. Sen. Orrin Hatch (R-UT) has promised to pass something, flawed or not. In any case, read the whole thing.

Public Knowledge has also written a response (Sept. 3 Letter to Copyright Office Regarding S2560). The letter asks some highly pertinent questions about the langugage of the draft:

By contrast, the Copyright Office discussion draft appears to us to be much less narrowly crafted. In its scope it appears to sweep up virtually all communications technology-- from e-mail to web browsers to Internet routers -- then appears to attempt to exclude from liability some types of “good” technology. This approach strikes us as a backwards one that leads to overbreadth of potential liability even as it departs from the useful notion of focusing on potential defendants’ intentions.

Given how little of the discussion draft actually addresses the precise question of infringement-inducing peer-to-peer companies, we are left with a looming question: What is the real focus of the language of the discussion draft? Chairman Hatch and Senator Leahy were clear which bad actors they intended this bill to target. Is there some other class of actor or behavior that the discussion draft wishes to target other than the ones specifically mentioned in the senators’ statements?

Of course, the letter also pushes the alternative Public Knowledge has signed on to. More on that alternative here: 'Don't Induce Act' - an Alternative to the INDUCE Act (IICA) and Other News.

Techdirt doesn't mince any words (Latest Induce Act Gets See Through Whitewash).

In a more positive take, on Copyfutures, Matthew Caron thinks overbreadth might not be so bad (One Step Closer):

No matter how well drafted the legislation is, it will always require interpretation by the courts. And while much of the criticism is not without merit, a perfect draft that satisfies everyone will never be written. These are extremely complicated matters that the law seeks to correct. Perhaps somewhat broad legislation interpreted with case by case analysis is the way to go. But whatever the correct answer, at least the 09/02/04 draft is a step in the right direction.
On the other hand, another poster to Copyfutures (and Utah native) is more critical (Induce Act "discussion draft" still overly broad).

There has been even more commentary on the INDUCE Act on Copyfutures. Tommy O'Reardon argues that the best way to fight INDUCE is for people to stop committing copyright infringement over filesharing networks (The Irony of the Outcry against INDUCE). He makes some good points, but I don't think INDUCE is simply about stopping piracy. I believe it is about giving copyright holders control over distribution technologies in general.

Michael Loughran asks, What did Sony Induce? He is asking how the copyright industries feel about the Sony-Betamax devision, given that it has brought them tremendous profits. My quick answer? They still hate it.

Dan Gillmor has a wrap-up of several legislative issues, including the INDUCE Act, that we should all care about on the Mercury News (very annoying reg. req.) (Bad legislation threatening privacy, innovation, accounting).

CNN has a fairly lengthy article on INDUCE (iPod in the middle on Capitol Hill).

Finally, on Copyfight, Jason Schultz notes Hollywood spokespersons being somewhat honest about the fact that they expect the INDUCE Act to behave as mandating DRM (RIAA Lobbyist: DRM 'up or INDUCE is gonna getcha). Gee, and I thought that INDUCE was supposed to only target bad actors? Of course, if you define bad actors as those who don't use DRM, that definition still holds.

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

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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

Copyright Office Produces 'Discussion Draft' Alternative to INDUCE Act (IICA)

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Posted by Ernest Miller

As ordered by four Senators a couple of weeks ago, the Copyright Office has begun work on producing a "consensus" version of the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). See, Senators Put Copyright Office in Charge of Finding INDUCE Act (IICA) "Consensus" by Sep 7. As of August 23rd, there was apparently no progress being made (INDUCE Act (IICA) Interview (with me) and Other News), but things have picked up quite a bit since then, though the Copyright Office has had its deadline extended to Thursday, Sep. 9th.

The Copyright Office has released a "discussion draft" of an alternative to the INDUCE Act to be used as the basis of, what else, the discussion that will take place. Read the 4-page draft here: Copyright Office - Discussion Draft - Alternative INDUCE Act [PDF]. HTML version after the break.

Before looking at the alternative, however, be sure to check the email the Copyright Office sent to quite a few people along with the draft proposal. The Copyright Office doesn't endorse the proposal and is seeking comments by this Friday, and another meeting this coming Tuesday:

As was indicated in last Thursday's meeting, attached for your review and comment please find a discussion draft prepared by the Copyright Office. Please keep in mind that this draft is intended to facilitate and promote discussion of the issues in a more concrete way than we discussed last Thursday -- it should not be taken as our recommendations, and nothing in here should be taken as the official position of the Office. We remain open to suggestions and clarifications that will help us develop recommendations that have the best chance at garnering consensus around an effective and appropriate form of liability.

Here is the process we will follow going forward. We ask that you submit written comments on this draft, by e-mail to this e-mail address, by 5 P.M. Friday Sept. 3. On Tuesday afternoon, at 2:00 PM, location to be determined, we will hold a meeting at which we will react to your comments and seek further information for our recommendations. We will then prepare and submit our recommendations to the Judiciary Committee on Thursday, Sept. 9. We greatly appreciate the fact that the cosponsors of the bill and their staffs have given us two extra days to submit our recommendations, which allows us to hold the additional meeting with interested parties.

Thanks again for your constructive participation in this process. We look forward to comments on Friday and the meeting on Tuesday.

My basic take on a first look is that, while this language is significantly better than the ridiculously overbroad language of the INDUCE Act as introduced, this is still a very dangerous bill for technology and innovation. Instead of ludicrously overbroad, this proposal is only excessively overbroad.

Also, be sure to compare and contrast this alternative with:
Ernest Miller's Draft Substitute for the INDUCE Act (IICA) v2.0
Tim Wu's INDUCE Act (IICA) Alternative
Shredding the INDUCE Act (IICA) - CEA, IEEE-USA, NetCoalition (IEEE-USA's alternative language about the middle of the article)
'Don't Induce Act' - an Alternative to the INDUCE Act (IICA) and Other News


Read on for the Copyright Office's discussion draft's alternative language...

...continue reading.

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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.

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September 01, 2004

More on the "Don't" INDUCE Act (IICA) from Some New Suspects

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Posted by Ernest Miller

I've done a couple of posts dedicated to commentary on the "Discouraging Online Networked Trafficking Inducement Act of 2004" or "Don't Induce Act" ('Don't Induce Act' - an Alternative to the INDUCE Act (IICA) and Other News and (Don't) INDUCE Act (IICA) Round-up and Other News). The Don't Induce Act is a response from a number of technology companies and organizations to the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). Discussion about the proposed alternative continues.

ComputerWeekly.com has a decent mainstream media report on the issue (Industry groups propose alternative to copyright bill).

However, of more interest are the commentaries from a new group of law students blogging as part of Prof. Lawrence Solum's IP Seminar at the Univ. of San Diego's School of Law. The seminar blog is called Copyfutures: The Future of Copyright. Good stuff!

The students have already posted some interesting comments concerning the Don't Induce Act.

Jeff King believes that the proposed alternative is only the beginning of finding a resolution (DONT Induce Act Proposes Narrows Liability that Would be Imposed by Induce Act):

Expect a lot more debate on this issue before any sort of final resolution to this issue. The need for digital protection of copyright is not going to go away. The Induce Act and the DONT Induce Act are polar opposites in the burgeoning debate over digital protection of copyright. Neither of the bills is likely to make it into law in its present form. The media industry has too much money at stake, and consumers have too great a thirst for digital content for either of the current drafts to meet with widespread approval by both factions in this debate.
Yip Yu argues that the Don't Induce Act isn't much of an improvement over the INDUCE Act itself (Nobody is Better Off with INDUCE/DON'T INDUCE):
An argument can be made suggesting that DONT Induce is actually worse off than the Induce Act because DONT Induce requires at least two judicial determinations and the Induce Act requires at least one judicial determination. Under DONT Induce, the courts have to decide whether the infringement is the predominant function of the defendant’s software and whether it is the distributor’s predominant source of revenue. The Induce Act only requires a judicial determination whether the defendant intended to induce infringement.
I look forward to reading more from the Copyfutures blog.

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

Comments (1) + TrackBacks (0) | Category: INDUCE Act

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.

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August 31, 2004

The INDUCE Act (IICA) and the Analog Hole

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Posted by Ernest Miller

For very obvious reasons, when one considers the impact that the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) will have on technology, thoughts generally turn to digital technologies first. Digital technology will continue to grow in importance and be the substrate upon which much innovation over the next few years will take place. However, analog isn't going away entirely and will remain important in a variety of applications.

This is why it is important to recall that the MPAA has long had its eye on controlling not only digital technologies but analog as well. In a press release from February 2002, the MPAA made its goals clear, goals that have not changed since then, to my knowledge (If You Cannot Protect What You Own, You Don’t Own Anything!). The press release notes three goals:

  1. To create a "broadcast flag" which would prevent broadcast programs exhibited on over the air TV stations from being re-distributed on the Net, which is a form of thievery.
  2. To "plug" the "analog hole."
  3. To stop the avalanche of movie theft on so-called ‘file-sharing" Web sites, such as Morpheus, Gnutella, etc. (the more accurate name would be ‘file-stealing’ sites).
Well, the MPAA has achieved goal number one, the broadcast flag. The INDUCE Act is ostensibly drafted to take care of goal number three, though whether it would actually accomplish this is highly doubtful. But what of goal number two?

Let's take a closer look at "Goal Two":

This is technical jargon. Let me sort this out in plain English. All digital protection designs can only work in a digital environment, which is the environment of the Internet. When a digital signal comes down to a TV set in the consumer home, that TV set in 95% or more of American homes is an "analog" set. This means the digital signal is immediately transformed into an analog signal in order for the consumer to watch it. If the analog signal is then converted back to digital, it cannot be protected by any known protection device. This is called "the analog hole." One way to ‘plug the hole’ could be through a ‘watermark detector.’ The ‘watermark’ is an ingenious design, which commands the signal converter in the TV set to respond to the instructions on the movie. This can be accomplished through a concord agreed to by the Information Technology, Consumer Electronics and Movie industries.

Action: To reach this goal, Congressional assistance will be necessary. [emphasis in original]

Might the INDUCE Act be used to close the "analog hole" in accordance with the MPAA's desires? I believe the answer is yes.

The INDUCE Act doesn't contain a "no mandate" clause. If content producers and some consumer electronic manufacturer's begin to produce devices that respond to watermarks in new analog outputs, wouldn't the INDUCE Act be used against those manufacturers who design non-watermark responding devices? Wouldn't devices that permit the analog hole to continue be "inducing infringement"?

Looks to me like the MPAA would be getting a two-fer with the INDUCE Act, ostensibly accomplishing two of their goals with one piece of legislation.

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

Comments (0) + TrackBacks (0) | Category: INDUCE Act

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.

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August 30, 2004

INDUCE Act (IICA) Monday Morning Roundup - 30 Aug 2004

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Posted by Ernest Miller

The San Francisco Chronicle has a lengthy article about Hollywood's attacks on various technologies, including a lengthy bit on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act), as a followup to the Grokster decision (Reining in tech: Learning from the Napster case, the entertainment industry is trying to block new technology before it takes off). There is an interesting quote from Fritz Attaway, executive vice president for government relations for the MPAA

"If we can't ban bad behavior and we can't ban bad technology, what is it we're supposed to do, stand back and let people steal our product?'' Attaway said.
I thought Hollywood liked the technology, thought it was good technology that some devious companies abused?

UPDATE 1005 PT - Jason Schultz responds
Jason Schultz on Attaway (Fritz The Hack (political, that is)):

First, I'd hardly call suing over 4,000 individual file-sharers "stand[ing] back and let[ting] people steal our product." At $2,000 to $11,000 a pop, these suits have have a very real impact on the lives of the unlucky defendants.

Second, the quote reveals the MPAA approach to every problem: either pass laws to ban behavior or pass laws to ban technology. Innovation, ingenuity, competition -- those are for suckers. More laws and more lawsuits, that's the Hollywood way. Cut past the consumer and go straight to Congress. Oh well, at least they're finally being honest.

Late last week IT Business Canada published an anti-INDUCE Act op-ed by playwright Dave Webb, who fears pencils being put on Hatch's Hit List (Induce This!):

The pencil I used was a Dixon Ticonderoga 1388-2/HB. (Ah, how I love 2/HBs. All pencils should write so smoothly.) Came with about a dozen friends in a plainish box that in no way indicated this product could be a weapon of copyright infringement.
He also points out the hypocrisy of Sen. Orrin Hatch's protection of gun manufacturers from liability for the uses to which their weapons are put:
It is wrong -- counterproductive, dangerous and assinine -- to punish technology for crimes committed by people. As a Republican, I'm sure Mr. Hatch would agree, having given it a second thought. After all, didn't he introduce legislation in March 2000 to protect firearms manufacturers from lawsuits arising from crimes committed with their guns?

After all, technology doesn't pirate copyright material. People do.

The INDUCE Act Blawg has more (Technology doesn't commit infringement, people do!).

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

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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.

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The Best of Me on the INDUCE Act (IICA) and Other News

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Posted by Ernest Miller

Over on LawMeme, James Grimmelmann notes my 100th post on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) and picks five of his favorite pieces (Ernie Miller's 100th INDUCE Post). Grimmelmann has been doing a great job maintaining an index of my posts: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.

The conservative Heritage Foundation has published a short study on the effects of filesharing on music sales and determines that something should be done, but that the INDUCE Act is overbroad (Internet File Sharing: The Evidence So Far and What It Means for the Future, also available as a 6-page PDF)

Policymakers can help to clarify rights by amending the law so that making copyrighted work available to the general public on the Internet is clearly an infringement and by allowing the Department of Justice to bring civil suits. Any changes in the law should be narrowly targeted, however, and should focus only on those who actually misappropriate protected works. Some current proposals, while perhaps well-intended, appear to swing too broadly.

One bill--S. 2560, introduced by Senator Orrin Hatch (R-UT)--would make liable anyone who "intentionally aids, abets, or procures" a copyright violation. This language could cover a huge range of legitimate activities. Intel pioneer Les Vadasz argues that these prohibited "activities" could even cover the production of microprocessors used to power PCs.

You can read Vadasz' op-ed here: Les Vadasz on the INDUCE Act (IICA): A Bill That Chills.

I do take issue with the study's assumption that music producers can't compete with free. Sure they can. They can compete on service. Easy access, open APIs that permit all sorts of functionality, guaranteed good rips, etc., can all make legitimate services more attractive than unreliable free systems.

via The INDUCE Act Blawg (go visit for more good posts)

Finally, InfoWorld has an article on the "Don't Induce Act" (Industry groups propose alternative to copyright bill).

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August 26, 2004

(Don't) INDUCE Act (IICA) Round-up and Other News

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Posted by Ernest Miller

The Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) is getting a lot of attention recently and there are many stories of interest.

There are a passel of stories discussing the Don't Induce Act.

The Register notes the narrowly drafted alternative and then goes after Sen. Orrin Hatch (R-UT) (Major telcos and device makers go after Induce Act):

So what made Hatch turn against the technology crowd?

Well, in 2001, the RIAA managed to convince Natalie Grant to belt out one of his self-penned religious tunes called "I Am Not Alone." A short while later Hatch moved to the music labels' side. (Hatch has since gone on to sell tens of thousands of dollars worth of his songs every year.)

As usual, Techdirt is succinct as well as accurate in description and analysis (Time For The Don't Induce Act).

WIRED gets reaction from a representative of the American Library Assoc. (Copyright Bill Needs Big Changes).

Slashdot has a typical discussion (Alternatives To The INDUCE Act).

USA Today publishes an AP wirestory that quotes Sarah Deutsch, associate general counsel for Verizon a bit (Tech firms craft alternative to anti-piracy bill).

In other news...

Last week, playlist guru Lucas Gonze surprised me by coming out in favor of the INDUCE Act, then I read what he actually wrote (Mainly I like the INDUCE act):

The copyright extremists have made a big mistake in writing down their goals in such clear language. Ordinary people are horrified, as they should be, and as they weren't before. For the first time since the Napster panic mainstream journalists are recognizing that copyright law is not a simple issue of stealing. If the act is passed and goes to court, courts are very likely to further clarify that point, eventually creating a body of law clear enough for technologists to make it through the day without a bail bondsman. INDUCE is extremism in the service of moderation.

In the short term, though, programmers would obviously have to follow the biologists overseas, since our field would be temporarily against the law.

WIRED, discussing the pressure to pass some bill in these final weeks of the Congressional term (Induce Act Draws Support, Venom). Read the whole thing.

TechNewsWorld has somewhat good news, quoting Senate aides as saying the bill is unlikely to pass this year (War Over File-Swapping Continues):

"Senate aides said the letter doesn't mean that the senators have given up on their bill, although final passage this year is unlikely given that it is an election year and Congress has much unfinished work left to do. 'This was a step contemplated from the beginning,' one aide said. 'It's another step toward getting a bill through Congress'."
Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.

Comments (0) + TrackBacks (0) | Category: INDUCE Act

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.

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The INDUCE Act (IICA) - Inducing Foreign Scientists Away From Our Shores

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Posted by Ernest Miller

There has been a great deal of discussion about the Inducing Infringement of Copyrights Act's (IICA, née INDUCE Act) effects on domestic innovation and even the fact that investment will likely move overseas in the face of the INDUCE Act (Go Ahead with the INDUCE Act - A View from Overseas). However, one likely effect of the INDUCE Act has been mostly overlooked: the fact that many researchers and scientists may refrain from visiting these shores in order to avoid INDUCE Act lawsuits.

Imagine that you are a scientist or researcher in some foreign country. Your research deals with computer science, which means that you write programs that frequently copy things. Heck, you might even be directly involved in figuring out more efficient protocols for distributing content, like peer-to-peer filesharing programs. What you are doing is perfectly legal in your country, indeed, they even encourage such research with grants and the like. However, Hollywood is not nearly as happy with you and would love to sue you for your research under the INDUCE Act.

But, what can Hollywood do? What you're doing is perfectly legal in your own country. They can't sue you there. Simply publishing research on the internet will probably not be sufficient "contact" to haul you into a US court, and, as long as you stay home, how are they going to serve you with process?

Then, you get an invitation from colleagues to visit the United States and present your "inducing" research at a conference. What do you do? What do you do?

Well, one thing is, you might turn down the invitation. The reason is that you don't want to be served with process as soon as you pass through customs and be subjected to an INDUCE Act lawsuit. It is quite possible that presenting your research (and distributing proof-of-concept programs) at a conference in the US will be sufficient jurisdiction for a case to be brought. You could blow off the case (leading to a default judgement) or defend it (but that will quickly grow very expensive, especially for someone on an academic's salary).

If a judgement is entered against you, it will probably include both monetary damages and an injunction. Enforcing the judgement will require a foreign court to agree. That may not happen because what you are doing is legal at home, but a foreign court might enforce the judgement; you can't be certain it won't. In any case, you will have to spend money to defend yourself at home, which can be very expensive.

Even if the foreign court doesn't enforce the decision, you may still have an injunction against distributing your proof-of-concept program in the US. So, the next time you visit the US to discuss your research with colleagues, you might be paid a little visit by Federal Marshalls, who will seek to enforce the injunction, violation of which is a criminal offense. Unlikely, but possible.

So, as a foreign researcher in fields Hollywood doesn't like, will you visit the US to discuss your research?

We've seen this sort of chilling effect before with the Digital Millennium Copyright Act, where foreign researchers and developers have gotten in trouble on visits to the US, such as Dmitry Sklyarov. While Skylarov's case was a criminal one, the possibilities of being the target of a civil suit will also be a significant disincentive to visiting for many.

Nor has Hollywood shown itself particularly wary of threatening researchers for presenting at conferences. Ask Ed Felten about the SDMI threat letters.

If the INDUCE Act passes, I can imagine that many foreign scientists will become quite wary of visiting the US to share the fruits of their research. Thanks, Sen. Hatch!

A final note. I would just like to thank James Grimmelmann for maintaining (on LawMeme) an index of my postings on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). According to the index, this is the 100th posting (The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act). Wow, that is a lot of postings on a single topic in such a short period of time.

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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.

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August 24, 2004

'Don't Induce Act' - an Alternative to the INDUCE Act (IICA) and Other News

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Posted by Ernest Miller

C|Net News's Declan McCullagh is reporting that a coalition of technology and public interest groups have come up with an alternative to the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act), which they are calling the "Don't Induce Act" (Group offers alternative to P2P bill). Groups behind the new alternative include the Consumer Electonics Assoc., Public Knowledge, Home Recording Rights Coalition, DigitalConsumer.org, Computers & Communications Industry Assoc., and the American Libray Assoc.. Interestingly, the CCIA doesn't actually endorse the alternative, but calls it a "good framework to approach these issues."

Single-page cover letter here: DONT Induce Act Cover Letter [PDF]:

In your letter to the Register of Copyrights, you expressed interest in a “technology-neutral law directed at a small set of bad actors while protecting our legitimate technology industries from frivolous litigation.” We have developed such an alternative that would address mass, indiscriminate infringing conduct while preserving the Supreme Court’s Betamax decision, the Magna Carta of the technology industry which is in no small measure responsible for our nation’s preeminence in technological innovation and entrepreneurship. We believe that the enclosed draft meets these goals and serves as the best platform for the discussion of the interests of all concerned parties.

Read the 5-page proposed legislation here: Discouraging Online Networked Trafficking Inducement Act of 2004 [PDF]. Read on for the text...

UPDATED 1325 PT

...continue reading.

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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

INDUCE Act (IICA) Interview (with me) and Other News

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Posted by Ernest Miller

Richard Koman of Anywhere Books and O'Reilly interviewed me concerning what is wrong with the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) (Ernest Miller on What's Wrong with the Induce Act). It seems a bit egotistical but, go, read. :-)

About a week ago, the New York Times ran an editorial, In-House Advice, condeming the INDUCE Act (The NY Times Against the INDUCE Act (IICA) and a News-Leader Op-Ed). Today, head of the RIAA Mitch Bainwol responds in a letter to the editor (Music Downloading and Congress):

If there are concerns about the Induce Act's scope, let's work constructively to address them. We, too, want to see technology flourish. But what of the legitimate online entertainment services forced to compete against stolen copies of the same product offered for free? That's a decidedly unbalanced playing field.
Well, some suggestions have already been made ... let's see if the RIAA responds constructively.

Speaking of suggestions, I spoke to a member of the Senate Judiciary Committee staff today and they have yet to schedule any meetings regarding the INDUCE Act despite a report being due from Marybeth Peters, the Register of Copyrights, on September 7th (Senators Put Copyright Office in Charge of Finding INDUCE Act (IICA) "Consensus" by Sep 7). However, they did confirm that all the organizations that were invited to the Senate hearings (Protecting Innovation and Art while Preventing Piracy) would be invited to participate in meetings: Consumer Electronics Assoc., Business Software Alliance, IEEE-USA, NetCoalition and the RIAA. A consumer group will also be invited, but which one has yet to be determined.

Now, I've given Hiawatha Bray a hard time for being one of the most consistently wrong tech reporters out there (in his case, for the Boston Globe). However, recently, he has been writing stuff I actually agree with more or less. In his latest article he acknowledges what the Grokster decision means for the music industry, but opposes the INDUCE Act (A swan song for the music industry and PDF):

But I changed my mind [about the INDUCE Act] when Marybeth Peters, the chief of the US Copyright Office, praised the Hatch bill because it would undermine the Betamax case. If that happened, the next generation of digital marvels would be buried in an avalanche of injunctions, depositions, and discovery motions. No thanks, Marybeth. We'd rather learn to live with digital thievery.
He even endorses an alternative compensation system. Will wonders never cease? via Furdlog

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

Comments (1) + TrackBacks (0) | Category: INDUCE Act

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.

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August 20, 2004

INDUCE Act (IICA) Roundup - Foreign Publications Edition (and CNN)

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Posted by Ernest Miller

The big news yesterday, of course, was the Grokster decision (Grokster Wins Big in 9th Circuit). Much of the commentary and many of the mainstream articles noted that this will probably provide more impetus to the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act), so please read those article if you are interested about the INDUCE Act. However, there has also been some other coverage of the INDUCE Act as well - mostly foreign. People around the world do pay attention to American foolishness. Expect much more press coverage in the coming weeks, particularly after the Register of Copyrights releases her "consensus" on September 7 (Senators Put Copyright Office in Charge of Finding INDUCE Act (IICA) "Consensus" by Sep 7).

CNN uses the INDUCE Act to ask "what makes good law?"(An Act that induces a lot of reactions). Well, nothing in the article really points the way to answering that question. via INDUCE Act Blawg

Australia's The Age (reg. req.) worries that international treaties will export bad US law, such as the INDUCE Act to Australia (Fight for the right to party). They're right to be worried.

Speaking of international opposition, the Prague Post has an article opposing the INDUCE Act (U.S. act threatens high-tech advances). The article mentions Hatch's Hit List and is a short and sweet summary of the issues. via INDUCE Act Blawg

The BBC is running an excellent editorial on the INDUCE Act by technology analyst Bill Thompson (Fight for the right to copy):

The arguments over copyright are the first skirmishes in a serious battle over the shape of our digital world.

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

Comments (0) + TrackBacks (0) | Category: INDUCE Act

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

Grokster Wins Big in 9th Circuit

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Posted by Ernest Miller

The Ninth Circuit has upheld the district court decision in Grokster. Read the 26-page decision: MGM v. Grokster [PDF] . Read it. The decision isn't really all that long, it is single column formatted with 8 pages of administive gobbledygook.

A quick read of opinion leads me to think it a great decision that shows a deep understanding of technology and the public policy behind what the decision calls Sony-Betamax. This decision also demonstrates a better understanding of the Napster decision than the court that wrote it, I think, putting it into better context, certainly.


Other coverage (UPDATED 1120PT, 1150PT, 1220PT, 1245PT, 1255PT, 1340PT, 1400PT, 1525PT, 1800PT):

The man who argued the case, Fred von Lohmann, discusses it - read! (More on MGM v. Grokster Ruling).
EFF's press release (EFF Scores Landmark Win for P2P).
Jason Schultz on Copyfight (Powerful Language from the MGM v. Grokster Decision).
Cory Doctorow on BoingBoing ( EFF wins Grokster! Software doesn't have to be easy for Hollywood to wiretap!).
Techdirt (Appeals Court Rules For Grokster).
Ed Felten (Grokster Wins in Appeals Court).
Joe Gratz discussed the issue over dinner last night with blogger luminaries and they agreed this would increase pressure to pass the INDUCE Act (Dinner). More from Gratz on the recurring trope in the case (Victory).
Eugene Volokh (he disagrees about whether P2P "materially contributes" to infringement (Grokster).
Chris Cohen ( The EFF has won the Grokster case!!!).
Andrew Raff on IPTABlog (Ninth Circuit Affirms Grokster Ruling).
Andrew Raff on the INDUCE Act Blawg (Ninth Circuit Affirms Grokster).
Siva Vaidhyanathan points out the decision's extensive reference to the band (Wilco Saves the Day).
Ars Technica (Appeals court upholds legality of P2P software).
Seth Finkelstein analogizes this decision to the LaMacchia case that resulted in the No Electronic Theft Act (MGM v. Grokster appeal victory, and The INDUCE Act Cometh).
Frank Field notes that everyone seems to agree on the key paragraphs in the decision (9th Circuit Affirms Grokster).
Patent attorney Dennis Crouch thinks the opinion is well-written (Grokster not liable).
Dan Gillmor hopes the logic of this decision spreads (Important Copyright Ruling Favors Freedom).
P2P United's press release after the jump.
Slashdot (Your Rights Online: Grokster Wins Big in Ninth Circuit).
American Constitution Society (9th Circuit Panel Allows Peer to Peer File Swapping).
Scrivener's Error has some good points to make ([Expletive Deleted] Headline Writers).
Tim Wu, Lessig's guest-blogger, promises analysis here (Grokster Wins).
The Trademark Blog has the best headline (Grokster Advances To Finals).
Public Knowledge's press release (Public Knowledge Statement on Ninth Circuit Decision in the Grokster case).
Derek Slater does a little cleanup (Grokster Leftovers).
IP News Blog (The EFF wins Grokster; A good day with possible consequences?).
Tim Wu, again, on the possibilities of Certiorari to the Supreme Court (Cert.?).
Technology Liberation Front (Don't Get Too Excited).
Wendy Seltzer (MGM v. Grokster: 9th Circuit Affirms Software Makers Not Liable).

Mainstream Press Coverage (Added 1130PT, 1145PT, 1245PT, 1400PT, 1525PT, 1800PT) - They finally get in the act:
C|Net News (Judges rule file-sharing software legal).
Reuters (Court Deals Blow to Movie Studios).
AP (Court: Grokster, StreamCast Not Liable).
WIRED (P2P Services in the Clear).
LA Times (reg. req.) (Studios Lose Round in File-Sharing Battle).
The Register (Court tells RIAA and Congress to let P2P software thrive).
Internet News (P2Ps Score Landmark Legal Victory).
PC World (Peer-to-Peer Companies Win in Court).
Mercury News (Federal appeals court rejects attempt to shut down music file-sharing networks).


Below a few highlights and possible impacts regarding the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) ...

...continue reading.

Comments (1) + TrackBacks (0) | Category: Copyright | File Sharing | INDUCE Act

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

The NY Times Against the INDUCE Act (IICA) and a News-Leader Op-Ed

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Posted by Ernest Miller

The New York Times ran an editorial condemning the INDUCE Act and bad copyright law in general (In-house Advice). The editorial references "automatic online translation." I guess they've been reading Hatch's Hit List (Hatch's Hit List #5 - Automatic Online Translators).

The News-Leader of Springfield, MO, has published an op-ed against the INDUCE Act (File-sharing act would steal away freedoms). Not the clearest writing on the Act, but it is good to see the word spreading.

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

Comments (0) + TrackBacks (0) | Category: INDUCE Act

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.

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Senators Put Copyright Office in Charge of Finding INDUCE Act (IICA) "Consensus" by Sep 7

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Posted by Ernest Miller

The Hollywood Reporter has published a story reporting that several of the Senators co-sponsoring the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) have made official what had been discussed during the INDUCE Act hearings (Senators seek consensus from P2P parties on new law). During the hearings, Sen. Orrin Hatch (R-UT) had mentioned putting Marybeth Peters, the Register of Copyrights, in charge of organizing comments and criticism for a consensus bill. A formal request to that effect has now been made. Read the 2-page letter: Letter to Marybeth Peters from Senators, 13 Aug 2004 [PDF].

A brief annotation of the letter follows...

...continue reading.

Comments (5) + TrackBacks (0) | Category: 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

Two Short Editorials on the INDUCE Act (IICA)

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Posted by Ernest Miller

Two short pieces on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) today.

George Pieler, attorney and former Deputy Counsel to Sen. Bob Dole, has a piece in Tech Central Station (INDUCING Bad Law). Previously, Pieler had written a longer paper for the Competitive Enterprise Institute, which I covered here (Fmr Intel VP and CEI Oppose INDUCE Act (IICA)).

Information Week runs a short piece on the INDUCE Act that seems strangely unfocused (On The Horizon: Copyright Bill Needs Narrower Definition).

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

Comments (0) + TrackBacks (0) | Category: INDUCE Act

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

INDUCE Act (IICA) Roundup - Friday the 13th

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Posted by Ernest Miller

Been a little busy, so I apologize for the dearth of Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) coverage.

Perhaps the most interesting conversation takes place on Larry Lessig's blog with copyfighter Rep. Rick Boucher (D-VA) (Induce No More). As of this posting there were 107 comments, many of which are quite interesting. Definitely a must-read on the INDUCE Act.

Speaking of interesting comments on Boucher's posting, JD Lasica has a new blog (Darknet) in support of his forthcoming (May 2005) book Darknet: Remixing the Future of Movies, Music and Television. One of the first posts pulls out a good quote from Boucher in the comments section of Boucher's post on Lessig's blog (Boucher: Induce Act faces 'knockout punch'). Take a look at JD's new blog, read the comment (which includes a shout out for Lasica), and add Darknet to your newsreader.

Over on Copyfight, Donna Wentworth points out what Disney wants the FCC to regulate with regard to the proposed broadcast flag for digital radio, basically, everything (Disney's Not-So-Hidden Agenda). And we're supposed to believe that copyright holders aren't going to abuse the INDUCE Act?

The LibraryLaw Blog has a great post by Newton Minow about the consequences of the INDUCE Act for libraries (Inducing Unintended Consequences for Libraries):

INDUCE could shift the library away from its traditional role as information provider who leaves responsibility for copyright compliance to the library patron. Instead, to cover itself from liability, it may need to audit library patron uses to make sure the library does not intentionally aid, abet, induce, or procure an infringing copy.

Such inquiries would be antithetical to the judicially-recognized role of libraries in Minarcini v. Strongville City School District as "a mighty resource in the free market place of ideas." [italics in original]

[via INDUCE Act Blawg]

A while ago, I posted a pointer to a copyright story by Andrew "Werdna" Greenberg (A Copyright Fable Relevant to the INDUCE Act (IICA) and Other News). There is new version of the story, more directly related to the DMCA, but one can imagine its application to the INDUCE Act (The Luddite's Lawyer and the Circumvention of Progress).

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

Comments (0) + TrackBacks (0) | Category: INDUCE Act

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

The Future of Music Coalition Against the INDUCE Act (IICA)

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Posted by Ernest Miller

Creative Commons reports that the Future of Music Coalition has come out against the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) by means of a letter to members of the Senate Judiciary Committee (Musicians on the INDUCE act).

Read the FMC's letter on the INDUCE Act here: FMC Sends Letter to Senate Judiciary Committee on the INDUCE Act.

We would ask the committee to consider the concerns outlined in this letter before voting on legislation that not only impacts copyright owners, but also creators, technology companies and music fans. We urge the committee to push for solutions that preserve the unique architecture and networking capability of the internet yet allow creators, performers, and copyright owners to be compensated for their work. Finally, we remind the committee that musicians and artists are the engine of creation at the source of this debate and thus deserve to be represented as stakeholders at the policy table.

Read the FMC's analysis of the INDUCE Act here: The Need to Strike a Balance: INDUCE Act Attempts to Protect the Content and Attack the Technology.

If the INDUCE Act does not pass as is, it may hurt the creative industries. However, if the proposed legislation does pass in its current form, it has the potential to hurt not only the technology industries but also the entire U.S. economy, the effects of which could extend to all Americans. Yet the current debate should not be a question of choosing one industry over another. Ideally there should be a way to protect the content without severely compromising the technology, and any legislation passed that does not balance the competing interests will likely have very negative long-term effects. Holleyman’s five key points appear to be a good starting point to address this complicated issue.

Finally, in attempting to protect copyrighted materials, such groups should be mindful of the potential for illegal file sharing networks based outside of the United States. How will any U.S. legislation prevent consumers from accessing overseas sites to download pirated files? Copyright infringement is a global problem and U.S. legislation alone will likely not be the absolute solution. A comprehensive package containing effective legal relief, consumer education, licensing of content to peer-to-peer services, and an affordable, convenient distribution system that makes it easy to legally download files, as well as additional measures, may be necessary.

Comments (2) + TrackBacks (0) | Category: INDUCE Act

The INDUCE Act (IICA) Harms National Security

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Posted by Ernest Miller

One of the arguments that is increasingly being made is that P2P technlogy is a threat to national security (File Sharing equal threat as terrorism and drugs). The argument is weak (it hurts our economy, so it must hurt our national defense), but it is the rhetorical equivalent of a bomb used to silence opposition. "You're not against NATIONAL SECURITY are you? Then why do you oppose [insert copyright extending bill of the moment]?" One could easily note that most pro-copyright maximalist bills will do more damage to our consumer electronics and computer industries than benefit the copyright industries. However, the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) goes even farther. The INDUCE Act threatens national security by crippling private sector investment in innovation.

The US military's research budget is actually relatively small considering the size of the military and our economy. Except for a few very specialized fields, the military doesn't really make much of a difference when it comes to US R&D. Like everyone else, the US military basically surfs the innovation wave produced by the private sector.

Whether the copyright industries like it or not, P2P is some pretty innovative stuff and will likely prove quite useful to our military. As this interview with Michael Macedonia, the Chief Scientist and Technical Director for the U.S. Army Program Executive Office for Simulation, Training, and Instrumentation Command (PEO STRI), demonstrates, the military is very interested in the communications abilities of peer-to-peer communications capabilities (P2P Goes to War):

Macedonia: ...Once we get into the high-bandwidth wireless issues, whether it's 802.11, or it's 3G or 4G, we can actually have huge, peer-to-peer mobile computing environments, because from a military context, having a centralized server is a point of failure, a critical failure node. You don't want to put all your data on one server because once you take that server out, then you've got a lot of blind people with a lot of useless electronics.

Koman: Right. The theory of the way the Internet itself is built.

Macedonia: Then the issue becomes, I have a lot of devices that in a sense become servers themselves. I mean that's the whole idea behind P2P.

Koman: Right. They're devices and servers at the same time. ....

Koman: Back to peer-to-peer--does it seem ironic at all that you're applying some of the concepts that come from some of these services that are fairly subversive, at least as far as the recording industry is concerned. You know, Napster-style ideas applied to military technology.

Macedonia: I don't think it's subversive. The only interesting thing about Napster was that they came up with a really good scheme for sharing music. I mean this subversive thing is just in terms of the way that the RIAA or the MPAA looks at this technology and sees it as a threat to IP rights. [bold in original]

Communications technology is critically important to the information-rich modern battlefield. Being able to quickly and reliably be able to share that information under adverse conditions is crucial to success in modern war. However, the INDUCE Act will certainly cripple private sector investment in what are potentially very useful technologies for the US military.

One of the reasons I brought this up, however, is in response to the pro-INDUCE Act remarks of attorney Ralph Oman in today's Boston Globe (Curbing the companies that abet online piracy). At first the article confused me. Oman was discussing how people were constantly testifying before Congress about how the sky was falling, but it wasn't. I initially thought that Oman must be referring to Hollywood, which continues to exist (and even thrive) despite talk of how the VCR, Diamond Rio, P2P, etc. would completely destroy them. In actuality, Oman was talking about those who oppose wildly overbroad copyright laws:

One witness predicted that the bill will pull the plug on the VCR, TiVo, and all home taping. Another witness forewarned of a chilling effect on technological innovation. And another stated flatly that the legislation will outlaw recordable DVDs. But, as we also learned at the hearing, the short responses to these dark prognostications are: no, no, and no.
In response, I say, "yes, yes, and yes." That was illuminating, don't you think? One might expect a bit of a longer answer to the many criticisms of the INDUCE Act, but the article is mostly only reptition of the idea that act is narrowly focused without explaining how the broad language is narrow. The closest paragraph to an explanation is here:
It has been said that if this legislation had been law in the early '80s, the courts would have barred Sony's sale of the VCR. Not so. In fact, Hatch-Leahy would have had no effect whatsoever, since Sony has never enjoyed the legal immunity that the file-sharing "facilitators" have today because of a quirk in the law.
Huh? I'm terribly sorry, Mr. Former-Register-of-Copyrights, but I don't see how Sony and the Betamax would have avoided potential liability under INDUCE. I'm not even sure there is a logical claim here.

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

Comments (0) + TrackBacks (0) | Category: INDUCE Act

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

Tim Wu's INDUCE Act (IICA) Alternative

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Posted by Ernest Miller

Timothy Wu, professor of law at the Univ. of Virginia's School of Law and prolific guest blogger on Larry Lessig's blog, posts alternative language for the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). Read his post (The Induce Act Revised) for commentary on the revision, and then read the revision: Inducing Innovation Act of 2004 [PDF]. I've pasted the text below. Feel free to compare and contrast with my alternative language for the INDUCE Act: Ernest Miller's Draft Substitute for the INDUCE Act (IICA) v2.0. Read on for the text of Wu's alternative and some brief commentary...

...continue reading.

Comments (1) + TrackBacks (0) | Category: INDUCE Act

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

P2P = Patriot to Patriot

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Posted by Ernest Miller

WIRED's Xeni Jardin reports on P2P Congress, a new project dedicated to making congressional hearings available through P2P filesharing networks in order to reduce bandwidth costs and engage citizens in democracy (Group Wants to Induce Downloads). P2P in this case stands for "Patriot to Patriot."

The government webcasts some of it hearings, but doesn't make them available for later viewing over the internet. Wouldn't want the people to have too much access to information about what the government is doing, I guess. So, the people will make the hearings available, but bandwidth is expensive, so it makes sense to share the bandwidth costs. Enter the latest peer-to-peer filesharing networks, which can effectively share the bandwidth costs of democracy. Frankly, I'm disappointed that the US government isn't using these technologies to reduce bandwidth costs for the taxpayer.

The first hearings available are, of course, the Senate Judiciary Committee hearings on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). Why? Because the INDUCE Act intends to make this democracy-enabling technology illegal.

Join the network, share the load.

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

Comments (0) + TrackBacks (0) | Category: File Sharing | INDUCE Act

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

A Copyright Fable Relevant to the INDUCE Act (IICA) and Other News

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Posted by Ernest Miller

Andrew "Werdna" Greenberg is the Vice-Chairman of the Intellectual Property Committee for the IEEE, and he testified about the Infringement of Copyrights Act (IICA, née INDUCE Act) during the Senate Judiciary Committee hearing (Protecting Innovation and Art while Preventing Piracy). A summary of his testimony here: Shredding the INDUCE Act (IICA) - CEA, IEEE-USA, NetCoalition.

I only recently discovered that Greenberg has a blog, Hacking the Law (motto: The world through the eyes of a technologist turned lawyer). The posts are infrequent, but that is what RSS is for. Anyway, last May, he posted a fable that seems rather prescient now that the INDUCE Act has been introduced (The Luddite's Lawyer and the Perils of Technology Regulation). Here is but a small sampling:

"First, you paint," said the lawyer [to the Luddite], turning a knowing smile. "Then, I write writs."

Confused, but trustful, the Luddite painted. He painted furiously. He painted from his heart and soul. He painted with his all, trying to express how the machines have ruined us. Alas, he was no artist.

The Luddite bowed his head in dismay. Despite his passions, the works were vapid, dull and derivative. He knew this at once. Every theme, every motif, every stroke came from the far more enlightened works of those who have come before him. Every idea embodied in the work was that of another.

"That does not matter," said the Lawyer. "All of that may be true, but these works are original, at least in the technical sense of originating from you. Since you have put them on that canvas yourself, we have done what we set out to do."

A work of original authorship was fixed in tangible media. A copyright was born.

The Luddite's lawyer wrote writs. He sued machines. He sued the makers of the machines, and he sued the sellers of the machines. He sued and served them all.

Read the whole thing.

In other INDUCE Act news...

EFF has written a letter to the Senate that argues in favor of business solutions to the filesharing problem, not new legislation (EFF's Letter to United State Senators). Actually, I think we need both. Not the INDUCE Act, of course, but I don't think we can really solve the filesharing problem without fixing copyright law, which (it is increasingly obvious) is broken.

An eWeek column calls for more lobbying coordination by the tech industry (IT Advocacy Group Still Needed). He has a point. I haven't even found a website for the new Personal Technology Freedom Coalition that was founded last June. Come on guys, you should be doing better than that.

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

Comments (2) + TrackBacks (0) | Category: INDUCE Act

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

The Presidential Election, Copyright, INDUCE Act (IICA) and Tech Policy

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Posted by Ernest Miller

Teleread has been relentlessly requesting information about copyright and tech policy from the Kerry/Edwards campaign for months now (back when it was just Kerry). See, for example, this post from the end of June: Still wanted: Copyright answers from John Kerry's policy people in photo below. Teleread's most recent post on the issue looks at the tiny tidbit of innovation policy in Kerry's acceptance speech (John Kerry's chip against high tech):

Think about the copyright-related implications that Kerry unwittingly raised in his speech:
A young generation of entrepreneurs asked, what if we could take all the information in a library and put it on a little chip the size of a fingernail? We did and that too changed the world forever.
Hmm. Dream on, John. The biggest obstacle isn't the tech; it's campaign contributors. How fascinating that you talked about a library on a chip -- the very stuff gives copyright holders nightmares! And yet your policy advisors blew me off when I tried to educate them about Bono and also interest them in innovative ways of paying content-providers. Of course, the real action isn't in libraries on a chip. It's in networked libraries. [emphasis, links in original]
C|Net News's Declan McCullagh now weighs in on Kerry's tech policy (John Kerry's real tech agenda). McCullagh does a good job summarizing Kerry's position's on tech from his Senate votes and statements. The record is definitely not positive when it comes to copyright:
A careful review of Kerry's history in the Senate shows that his record on technology is mixed. The Massachusetts Democrat frequently sought to levy intrusive new restrictions on technology businesses that could harm the U.S. economy. He was no friend of privacy and sided with Hollywood over Silicon Valley in the copyright wars.
I've blogged about Timothy Wu, professor of law at Univ. of Virginia's School of Law, before (It's All About the Distribution - Free Speech, Telecomm and Copyright). He is one of the most important new voices in information law, but more about that in another post. Anyway, he is guest blogging on Larry Lessig's blog and one of his first posts asks whether a Kerry administration would veto the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) (The Question). There is some good discussion and information in the comments.

My take on this? Well, you're reading aren't you?

First, this is a non-partisan question. We should be asking both the Bush and Kerry people what their position on INDUCE is, especially as Sen. Orrin Hatch (R-UT) wants to pass the bill during the current term. Who really cares whether Kerry would veto it if Bush signs it into law? Indeed, if Bush spoke out against it, I highly doubt it would pass anytime soon.

Second, unfortunately, I doubt we will get much of an answer from either camp. The copyfight movement is simply too small and there are other issues that are much more important. Leftist copyfighters are unlikely to switch votes because Bush promises to stick it to Hollywood, and conservative copyfighters are unlikely to switch if Kerry turns on his Hollywood money donation machine. In such a situation, why should a politician stake out a clear position? Kerry will likely talk about protecting and promoting innovation, while protecting the rights of copyright holders and creative artists.

These are important issues, of course, but that doesn't mean they will be treated as important. Certainly, the copyfight won't be treated as important this election cycle. But that doesn't mean we should stop talking about these issues and pressing the campaigns on them.

However, Dave Winer's idea is probably not the best way to go about it (What the bloggers should have done at the Democratic Convention). Winer proposes that bloggers at the conventions lobby on behalf of the copyfight. However, that mistakes the purpose of conventions. They aren't there for lobbying. Moreover, that would be the fastest way to get disinvited to the next convention. Why would either party invite self-described lobbyists and, if they did, who would choose which lobbyists they should invite?

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Copyright | INDUCE Act

Higher Education Groups Oppose INDUCE Act (IICA)

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Posted by Ernest Miller

The Daily Texan reports that the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) has raised the ire of several higher education organizations (Bill proposed to strengthen copyright laws). The article also has a bizarre quote from one of Sen. Orrin Hatch's spokespeople:

Tapia did not comment on the specific concerns voiced by the higher-education groups, but did say the bill will only target bad behavior that is already illegal.
Ummm, if these acts are already illegal why do we need a new law? And when will the Senator comment on the many and detailed criticisms of his bill?

The main (and more important) point of the article is that the American Council on Education, Association of American Universities and the National Association of State Universities and Land-Grant Colleges sent a letter to Sen. Hatch opposing the INDUCE Act. Read the 2-page letter here: Letter to Sen. Hatch, July 22, 2004 [PDF].

[W]e are concerned that the broad concepts of “aiding,” “abetting,” or “inducing,” and the uncertain standard of imputed intent, will increase the risk that colleges and universities will face claims of infringement when they develop and provide to students and faculties high-speed computer networks and beneficial new applications that will dramatically enrich educational programs, open new possibilities in the conduct of research, facilitate research collaboration, and enhance communication of research results. These new risks threaten to chill educational innovation and the advancement of knowledge. Indeed, some of the opportunities in distance education made possible by the TEACH Act, which owes its existence in large measure to your support, could be constrained by S. 2560 as currently constructed.
The letter acknowledges and supports the ostensible purpose of the bill (reducing copyright infringement), but rightly argues that the current bill is overbroad.

In other INDUCE Act news:

The INDUCE Act Blawg has a couple of interesting posts. The first deals with the meta-free speech issues involved in stifling technology (Free Speech Implications of INDUCE). I discussed some of the direct impacts on free speech here: INDUCE Act is Free Speech Killer. The other article deals with the debate over Chicken Little and the SavetheiPod campaign (In defense of 'Chicken Little'. My previous contributions to this debate here: Are the Opponents of the INDUCE Act (IICA) Claiming that the Sky is Falling? and INDUCE Act (IICA) Press Roundup - 29 July 2004.

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

Comments (1) + TrackBacks (0) | Category: INDUCE Act

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

INDUCE Act (IICA) Press Roundup - 29 July 2004

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Posted by Ernest Miller

I'm not sure what triggered it, but there is a slew of coverage of the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) today.

Sen. Orrin Hatch's hometown newspaper, the Salt Lake Tribune runs an article that looks at the opposition to the INDUCE Act (Does Hatch have iPod, TiVo, Google and Legos in his sights?). The article even mentions Hatch's Hit List specifically.

The Lawrence Journal-World of Kansas has an interesting and wide-ranging column on modern copyright law (Laws regarding copying music need fine tuning). The article deals with INDUCE, click wrap licenses, the DMCA, and whether memorizing a song from the radio violates copyright. It is a fascinating expression of current copynorms.

The Wayne State South End provides a brief overview of the issues, focusing on the arguments made at the Judiciary hearing (Proposed legislation could make iPods illegal).

Ernie the Attorney totally disses the Save the iPod campaign (The INDUCE Act is not going to threaten my iPod)

Having said that [the INDUCE Act is overbroad], I'm also going to say that I'm not a fan of the whole 'chicken little' approach that some opponents of the INDUCE Act are taking. When you try to get people's attention by saying that the INDUCE Act threatens the iPod you just lose credibility. Instinctively, we all know in our gut that Apple's fabulously successful device, which is used by all kinds of celebrities and musicians, is not going to be subjected to restrictions based on the INDUCE Act. Oh, sure, one could argue about the theoretical lawsuit that could be filed to limit use or sale of the iPod, but who is really going to bring that lawsuit? The record companies? After most of them have cut deals to sell music through iTunes Music Store? No, I don't see it.

The reality is that the INDUCE Act, if it is passed, might perhaps threaten some innovation and may even lead to some stupid lawsuits. But it isn't going to threaten the iPod, and people who make that argument are engaging in foolish demagoguery. Which proves that 'foolish demagoguery' isn't the exclusive province of companies that are threatened by new technologies. [italics in original]

I warned that this argument would be made (Are the Opponents of the INDUCE Act (IICA) Claiming that the Sky is Falling?). I do think it is valuable to discuss the theoretical merits of a lawsuit against the iPod, but opponents of the INDUCE Act shouldn't claim that a lawsuit against Apple is likely. However, we should always keep in mind, in regard to proposed legislation, Lyndon B. Johnson's famous aphorism:
You do not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harms it would cause if improperly administered.

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

Comments (3) + TrackBacks (0) | Category: INDUCE Act

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

Fair Use, Normal Use, Competive Use and the INDUCE Act (IICA)

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Posted by Ernest Miller

Kevin Heller makes an interesting argument regarding filesharing that parallels an argument made by Jessica Litman in her book Digital Copyright (P2P File Sharing is Non-Competitive Use of the Work). The argument is that there is a distinction between normal use and competitive use, at least before Congress screwed up copyright law in 1909.

A normal use is the use someone who has acquired a copy of a copyrighted work normally makes of it. Reading a book you got from the library is a "normal use." Watching a DVD movie is a normal use. Ripping a CD so you can play it on your iPod is a normal use. Normal uses are never copyright infringements. This isn't a fair use defense because normal use isn't a copyright infringement in the first place.

A competitive use is a use that "competes" with the rights of a copyright holder. For example, excerpting parts of a book and then selling the excerpts is a competitive use. Competitive uses are either infringement or protected by fair use.

So far, I agree completely. I think we should return to this doctrine. However, where I disagree is in how to distinguish the two types of use. Heller distinguishes the types of use by the characteristics of the user, for the most part. I distinguish them on the type of act. Heller says "consumers are not competitors." I say, in today's world, consumers, competitors, it depends on how they act, not who they are. Sitting in my den, I can manufacturer more albums than an independent label 30 years ago. I'm a publisher, if I want to be.

Heller says it is okay to be a publisher as long as I'm doing it non-commercially. I don't believe that is a sufficient distinction. Soon, everyone will have massive amounts of broadband available in the home and terabytes of storage space. Everyone will be able to "non-commercially" distribute more music than the labels could in their heydays. Copyright as we know it (or should understand it pre-1909) simply won't work under those conditions.

Heller says it is the commercial P2P file sharing networks that are the competitors. But if non-commercial distribution is legal, even if the commercial networks went away would that make any difference? If anything there would be more efficient and effective filesharing than ever.

This is why I don't agree with Heller's conclusion. Heller wants the RIAA to promise not to sue consumers if a narrowly tailored (targeting only commercial P2P networks) INDUCE Act is passed. First, you couldn't have such a promise because you couldn't get every copyright holder to agree. The enacting legislation would have to waive liability by statute. Second, and more importantly, even if the commercial systems went away you'd have just as much filesharing with the non-commercial systems. Indeed, with the liability waiver for users, technical development would be rapid and the copynorms would shift, since filesharing would have been legalized.

Comments (0) + TrackBacks (0) | Category: Copyright | INDUCE Act

July 28, 2004

Are TV Networks "Inducing" Infringement by Promoting JibJab?

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Posted by Ernest Miller

I'm disappointed in myself that I didn't mention this earlier. The JibJab controversy has an obvious nexus with the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). If, as the copyright holders for "This Land is Your Land" claim, the JibJab parody is a violation of copyright then all the newscasts on the major broadcast networks encouraging people to see it are obviously "inducing" people to violate copyright and could be sued for big bucks. Millions of people have dowloaded the flash animation, and the INDUCE Act could make the broadcasters liable for nearly every single download. How will the shareholders like that, assuming there is still a broadcast company left?

The Home Recording Rights Coalition has issued a press release making this very argument. I've posted the press release in its entirety below because it doesn't appear to be on the HRRC website at present. UPDATE 1335 PT - The press release is now on the HRRC website: Are TV Networks "Inducing" Infringement?.

Of course, as the press release notes, this is not a conclusion that JibJab's parody actually does violate copyright. As I've explained, I believe it is a clear case of parody and likely protected under fair use (Parody or Satire? iRaq Posters, JibJab Animation, Fuse's Silhouette Ads). Eugene Volokh disagrees, though his argument is conclusory (JibJab SoSue).

UPDATE 2 1355 PT
Public Knowledge has issued a press release supporting fair use for the JibJab parody. Read the Public Knowledge press release below.

UPDATE 3 31 July 2004
I've added a "JibJab Category" to make following the story easier.

Read on for the press releases ...

...continue reading.

Comments (3) + TrackBacks (0) | Category: Copyright | INDUCE Act | JibJab

P2P Problem or Security Issue?

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Posted by Ernest Miller

C|Net News is running a very interesting story about a new blog that is posting military and military-related information supposedly found on P2P filesharing networks (Are P2P networks leaking military secrets?). The blog is See What You Share on P2P. The purpose of the site is explained here: Why This Site Exists.

A few months ago, I downloaded some military briefings from the Gnutella Network. The briefings were zipped and the file contained 21 documents with classifications ranging from For Official Use Only to Secret/NO FORN. Shocked at my discovery, I notified an agency on a nearby military installation. When nothing happened, I notified another agency. I continued this course because no action was taken and for a nation at war, I was concerned for the safety of our soldiers.

It may appear that I am picking on certain institutions. This is true. I want everyone to know that we can be our own worst enemies when we don’t understand the full power of our technology. I want every military and government agency to see first hand what is being shared with anyone who has a computer. Since a picture is worth a thousand words, I can save myself some talking.

This is not surprising. Nor, I'm sure, is the information inadvertantly shared solely related to military and emergency services. There are probably a number of corporations that would be surprised what files are available for the downloading.

This is a real problem. However, it is properly a computer security issue, not a P2P issue, as the website's owner misleadingly claims, "Technology often outruns legislation. So is the case with Peer 2 Peer networks. Many people obtain P2P software so they can download music or movies. A large number of those people do not have any idea what they are sharing." Note the reference to legislation. Of course, the RIAA, among others, often makes this point and requests more regulation, such as the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). However, is it really the technology so much as unfamiliarity with the security issues involved?

I remember some of the earlier days of email and how people would accidentally "reply all" or forward to mailing lists information they shouldn't. Still happens, actually. Does that mean we need more regulation of email? The default settings for certain operating systems leave plenty of security holes for accessing information on a network-connected computer. Do we need operating system regulation?

See What You Share on P2P is doing a fine service alerting people (and especially gov't officials) to the security problems their networks have. However, to characterize it as a P2P problem, as opposed to a security problem, is incorrect. We all need to be more familiar with the means and necessity of protecting certain types of information on our computers.

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

Comments (1) + TrackBacks (0) | Category: File Sharing | INDUCE Act | Security

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

Brief INDUCE Act (IICA) Roundup - 28 Jul 2004

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Posted by Ernest Miller

Tech/culture Journalist Xeni Jardin of BoingBoing and WIRED fame, had a short (3:42) discussion of the INDUCE Act on NPR (Proposed 'Induce Act' Could Outlaw iPods). Hatch's Hit List was alluded to, I believe, "Some tech pundits have begun creating long lists of devices [the INDUCE Act would make illegal]." See also her BoingBoing INDUCE Act update: Xeni on NPR: INDUCE Act update.

The INDUCE Act Blog had a short piece of interest by Chris Cohen of Parody or Satire? fame (IICA will force P2P nets abroad, let's spare U.S. tech innovation in that process).

Over on Copyfight, Wendy Seltzer brings good news from the Preventing the Internet Meltdown conference (IP and the Internet Meltdown):

It was a happy surprise to share the stage with Thane Tierney, of Universal Music Group, who shared our horror at the Induce Act and joined a genuine dialogue about the collision between the Internet and the recording industry. He was willing to think about a world in which the record industry shifts its role from controller and distributor to that of filter.
UPDATE 2345 PT
I knew there were some other posts I was forgetting.

Groklaw on the damage the INDUCE Act would have done in the hands of SCO (The MP3Blue Jacket and My Copyright Solution).

Seth Finkelstein has two good recent posts on INDUCE (S.2560 (IICA/INDUCE Act) and "substantial noninfringing use" and Copyright Is Broken And Nobody Knows How To Fix It).

Dana Blankenhorn notes that passing INDUCE won't stop development overseas (INDUCE Job Exports).

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

Comments (0) + TrackBacks (0) | Category: INDUCE Act

July 27, 2004

Barbie on the INDUCE Act (IICA): From My Cold, Plastic Hands, Senator Hatch

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Posted by Ernest Miller

Nicholas_Bergson-Shilcock_I.jpgBarbie in a Blender is a wonderful celebration of free speech and fair use:

So when Utah artist Tom Forsythe took this photograph of Barbie in a blender as part of a series of critical fine-art Barbie photos, Mattel got pissed. So what did they do to try stop Tom's message? They decided to sue his ass....Luckily for Tom, he convinced some lawyers from the ACLU to step up to and fight his case, and after a long legal battle he was victorious. The judge in the case ruled that the lawsuit clearly ran counter to the first amendment, calling Mattel's suit "groundless and unreasonable." Not only that, but the Judge's order forces Mattel to pay Tom's $1.8 million in legal fees. National Barbie-in-a-Blender Day, July 27, is a celebration of this important defense of free speech.
Visit the exhibit, but Barbie's commentary on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) is my favorite. Photo by Nicholas Bergson Shilcock, Barbies Endorses SavetheiPod.com.

via Copyfight

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

Comments (0) + TrackBacks (0) | Category: Copyright | Culture | Freedom of Expression | INDUCE Act | Oddities

INDUCE Act (IICA): Every New Feature Could Trigger Lawsuits

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Posted by Ernest Miller

There has been a great deal of discussion regarding the MPAA and NFL seeking to block TiVo's broadcast flag submission. The basic idea is that TiVo wants to give people the ability to share video files among ten registered devices, so that you could record something on your TiVo in the living room and then transfer it to the TiVo in the bedroom or perhaps your car or vacation home. It is a restricted circle of distribution. But this isn't good enough for the MPAA and NFL, because you might share the programming with a friend in a football blackout zone or something. Thus, they are opposing TiVo's request to the FCC to build something that provides consumer value. I'm sure glad that there wasn't a broadcast flag when the TiVo was initially developed. Good coverage and commentary from Wendy Seltzer (TiVo, Whipsawed by the Broadcast Flag) and Donna Wentworth (You Bought It. They Own It and Hollywood (Finally) Turns on TiVo, Part II), among others. Follow the links.

This is, of course, an excellent example of how the broadcast flag is absurd. However, it is also an object lesson on one of the ways that the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) could similarly be abused.

Originally, the only way to transfer files from a TiVo was to make an analog recording. Although it would have been simple to provide a digital transfer output for TiVo, the company didn't do it out of fear of triggering an MPAA lawsuit, as ReplayTV did (EFF Archives: Paramount v. ReplayTV). TiVo was successful, they didn't get sued (probably because their system was too similar to the clearly protected VCR). However, now that TiVo is trying to add additional functionality (even severely restricted functionality), the MPAA and NFL are trying to stop them. In a world without a broadcast flag, but an INDUCE Act, TiVo would get sued.

In fact, even if TiVo survived the original lawsuit, further INDUCE Act lawsuits could be filed every time there is a significant upgrade in capabilities or additional new feature. Under INDUCE, intent is "based upon all relevant information." New features and capabilities would be relevant information that a previous lawsuit didn't consider. If the copyright industry really didn't like a new technology, and it somehow survived the first lawsuit, further lawsuits are merely a question of waiting for v2.0 (or even v1.2, or similar) of the technology.

What small, innovative companies could survive under such conditions?

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

Comments (0) + TrackBacks (0) | Category: Broadcast Flag | INDUCE Act

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

Les Vadasz on the INDUCE Act (IICA): A Bill That Chills

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Posted by Ernest Miller

Last week I noted that former Intel VP Les Vadasz wrote an editorial in the Wall Street Journal opposing the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) (Fmr Intel VP and CEI Oppose INDUCE Act (IICA)). Unfortunately, the op-ed was behind a subscription wall, so not everyone could read the full thing. Fortunately, I've gotten permission to republish the op-ed in full here. Read on...

...continue reading.

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Entertainment Atty Rips INDUCE Act (IICA): Not Good For Artists

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Posted by Ernest Miller

"Fred Wilhelms is an entertainment attorney in Nashville, representing recording artists and songwriters on royalty and benefit issues. His clients include Howard Tate, Bettye LaVette, Sam Moore, Mark Farner, and Paul Revere. He has testified before the California Senate Committee on the Entertainment Industry's royalty accounting practices." He has also just written a lengthy, blistering attack ("this piece of legislation scares the hell out of me") on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) in Streamingmedia.com (Commentary: No Matter What You Call It, the Inducing Infringement of Copyright Act Spells Trouble). This is one artist's lawyer who recognizes that putting so much power into the hands of the labels and movie studios is not a good idea for artists:

The fundamental problem I have with P2P is that the creators don’t get paid for the distribution of their work, and I don’t really buy the arguments that this "free" dissemination encourages people to buy CDs, or that it builds a fan base, or that it promotes their live appearances. The hard numbers really don’t bear these contentions out. INDUCE, however, attacks the wrong part of the problem by attempting to stop technology in its tracks. As the VCR proved, the MPAA’s position in the Betamax case was shortsighted at best, and the current bill proves they and their allies haven’t learned anything in the intervening 20 years.

Rather than figure out how to get paid from the technology, Big Content is supporting INDUCE in order to stop the technology from coming to market. This is just stupid. INDUCE isn’t going to stop hardware and software developers outside the U.S. from working on new technology and bringing it to market. It is going to stop U.S. developers from participating in this growth, just as it will stop U.S. manufacturers, distributors, and retailers from achieving any share of the profits to be made, or employing the people who perform these functions, and no one else is going to be paid, either.

INDUCE gives Big Content a hammer to smash new technology. INDUCE gives Big Content a hammer to smash First Amendment rights to even talk favorably about new technology. If you are as unsettled by this idea as I am, I suggest you at least write someone about it.

Indeed. Try EFF's action alert (The Induce Act: Innovation Under Attack) or Save the iPod (Fax Your Senators).

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

Comments (0) + TrackBacks (0) | Category: INDUCE Act

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

Ernest Miller's Draft Substitute for the INDUCE Act (IICA) v2.0

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Posted by Ernest Miller

Sen. Orrin Hatch (R-UT) has requested assistance in drafting alternative language for the severely flawed Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). Both the Business Software Alliance and NetCoalition have provided guidelines on what the alternative language should include. The IEEE-USA has gone one step further and actually drafted alternative language (Shredding the INDUCE Act (IICA) - CEA, IEEE-USA, NetCoalition and Backing Away from the INDUCE Act (IICA)).

Well, let no one say that I merely criticize and don't work on providing an alternative. Taking into consideration the suggestions of the BSA and NetCoalition, as well as basing the language on the IEEE-USA's, I've begun working on a draft INDUCE Act with alternative language (aka the "Support Technology, Oppose Piracy, Protect Innovation Research And Correct Youth Act of 2004," aka the "STOP PIRACY" Act). I didn't expect to get it right the first time. Version 1.0 is here: Ernest Miller's Draft Substitute for the INDUCE Act (IICA). Below is version 2.0 with differences noted in bold (except the title):

Proposed Substitute to the Inducing Infringement of Copyrights Act

Section 501 of title 17, United States Code, is amended by adding at the end the following:

(g)(1) Inducement of Infringement. Whoever actively and with actual knowledge induces infringement of a copyrighted work by another under Subsections 106(3), 106(4) or 106(6) of this title with the specific and actual intent to cause and to financially benefit from the infringing acts shall be liable as an infringer.

(2) Contribution to an Infringement. Whoever materially and with actual knowledge contributes to the infringement of a copyrighted work by another shall be liable as an infringer.

(3) Vicarious Infringement. Whoever has the right and ability to supervise an activity resulting in a direct infringement and has a direct financial interest in such activity and infringement shall be liable as an infringer.

(4) Limitations on Secondary Liability.

(A) manufacture, distribution, marketing, operation, sale, servicing, support, or other use of embodiments of technology capable of use for infringement, with or without the knowledge that an unaffiliated third party will infringe, cannot constitute inducement of infringement under Subsection g(1) in the absence of any additional active steps taken to encourage direct infringement.
(B) manufacture, distribution, marketing, operation, sale, servicing, support or other use of embodiments of technology capable of a substantial noninfringing use shall not be liable under this title, except for direct infringement and as provided under Subsection g(1).
(5) Damages for violations of section (g)(1) of this section shall be limited to an injunction against inducement, and actual damages for infringement of a work for which the defendant had specific and actual knowledge the work would be infringed.
There are two differences from version 1.0. The first distinction limits inducement to particular types of direct infringement (distribution, public performance and transmission). The reasons for this are several. For example, mucking with the reproduction right could cause headaches with regard to the mechanical license for phonorecords. The derivate work right doesn't seem to be a proper target either. There would seem to be too much danger of collateral damage with regard to creative uses that we would wish to protect (The INDUCE Act and the Right to Prepare Derivative Works).

In any case, the problem cited that the INDUCE Act is meant to solve is not the making of copies, or of derivative works, but of the distribution of these works. If you have 100 copies of a work at home, what is the harm? The real problem is when those copies are distributed. Thus, the first change narrows the INDUCE Act to target the wrong-doers, and not someone who might suggest making mashups at home.

The second change addresses what the proponents of the INDUCE Act claim is the purpose of the Act. They claim that they wish to address the commercial inducers, those who are making "millions of dollars while attempting to avoid any personal risk of the severe civil and criminal penalties for copyright infringement" (Judiciary Statement: “Protecting Innovation and Art While Preventing Piracy”). By including a "financial benefit" clause, only commercial inducers will be targeted.

This is a second draft. It probably still isn't right. If you have any suggested changes, comments, etc., please let me know.

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

Comments (5) + TrackBacks (0) | Category: INDUCE Act

July 24, 2004

Ernest Miller's Draft Substitute for the INDUCE Act (IICA)

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Posted by Ernest Miller

Sen. Orrin Hatch (R-UT) has requested assistance in drafting alternative language for the severely flawed Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). Both the Business Software Alliance and NetCoalition have provided guidelines on what the alternative language should include. The IEEE-USA has gone one step further and actually drafted alternative language (Shredding the INDUCE Act (IICA) - CEA, IEEE-USA, NetCoalition and Backing Away from the INDUCE Act (IICA)).

Well, let no one say that I merely criticize and don't work on providing an alternative. Taking into consideration the suggestions of the BSA and NetCoalition, as well as basing the language on the IEEE-USA's, here is my draft substitute for the INDUCE Act:

Proposed Substitute to the Inducing Infringement of Copyrights Act

Section 501 of title 17, United States Code, is amended by adding at the end the following:

(g)(1) Inducement of Infringement. Whoever actively and with actual knowledge induces infringement of a copyrighted work by another with the specific and actual intent to cause the infringing acts shall be liable as an infringer.

(2) Contribution to an Infringement. Whoever materially and with actual knowledge contributes to the infringement of a copyrighted work by another shall be liable as an infringer.

(3) Vicarious Infringement. Whoever has the right and ability to supervise an activity resulting in a direct infringement and has a direct financial interest in such activity and infringement shall be liable as an infringer.

(4) Limitations on Secondary Liability.

(A) manufacture, distribution, marketing, operation, sale, servicing, support, or other use of embodiments of technology capable of use for infringement, with or without the knowledge that an unaffiliated third party will infringe, cannot constitute inducement of infringement under Subsection g(1) in the absence of any additional active steps taken to encourage direct infringement.
(B) manufacture, distribution, marketing, operation, sale, servicing, support or other use of embodiments of technology capable of a substantial noninfringing use shall not be liable under this title, except for direct infringement and as provided under Subsection g(1).
(5) Damages for violations of section (g)(1) of this section shall be limited to an injunction against inducement, and actual damages for infringement of a work for which the defendant had specific and actual knowledge the work would be infringed.
This is a first draft, of course. If you have any suggested changes, comments, etc., please let me know.

UPDATE 2025 PT 24 July 2004

If this language were to be proposed as a bill, it could be called the "Support Technology, Oppose Piracy, Protect Innovation Research And Correct Youth Act of 2004," aka the "STOP PIRACY Act."

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

Comments (8) + TrackBacks (0) | Category: INDUCE Act

July 23, 2004

Sen. Coleman Opposes INDUCE Act (IICA)

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Posted by Ernest Miller

A few days ago, I noted that the number of co-sponsors for the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) had increased to nine, but that "I've yet to hear of a single senator who opposes or even has serious questions about the bill" (Number of Co-sponsors for INDUCE Act (IICA) Growing).

Well, now I've heard of one.

Sen. Norm Coleman (R-MN) has written Matt Perkins, a constituent, that he is opposed to the INDUCE Act (Coleman on the INDUCE Act):

The debate surrounding the culpability of producers and sellers of “dual-use” technology under copyright law was first brought before U.S. policy makers two decades ago with the introduction of the videocassette recorder (VCR). In Sony Corp. v. Universal City Studios, the U.S. Supreme Court decided that someone selling copying equipment would not be liable if a buyer used it to infringe copyright as long as the equipment was "capable of substantial non-infringing use." The Induce Act readdresses the culpability of producers and sellers of “dual-use” technology under copyright law by making any actor who aids, abets, or induces a copyright violation liable as an infringer.

While, I believe that an individual who has a copyright should be able to protect it, I do not believe that the Induce Act is the right answer to piracy. Rather than effectively prevent piracy, S. 2560 would expose makers and sellers of dual-use technology to charges of copyright infringement simply because one buyer committed a copyright violation.

As Perkins notes, this appears to be a well-crafted reply, which suggests it is a form response. Perkins is a bit disappointed in himself for not writing to his representatives right away, but he is to be commended: every communication is valuable. In any case, the fact that it is a form response is a good thing. It means that the Senator has gotten many communications from his constituents on this issue. EFF's action alert (The Induce Act: Innovation Under Attack) and Save the iPod (Fax Your Senators) must be having an effect.

A bit of good news to start the weekend with (and if you've gotten a similar letter from a Senator, please let me know - ernest.miller 8T aya.yale.edu).

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

Comments (0) + TrackBacks (0) | Category: INDUCE Act

Sen. Hatch's Shifting Rhetoric in Favor of the INDUCE Act (IICA)

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Posted by Ernest Miller

Last June, Sen. Orrin Hatch (R-UT) put forward the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). He introduced the bill with a long and somewhat strange statement, which I responded to in detail: The Obsessively Annotated Introduction to the INDUCE Act.

Yesterday, the Senator gave another lengthy statement in favor of the INDUCE Act as his introduction to the Senate Judiciary Committee's hearing on the bill (Protecting Innovation and Art while Preventing Piracy). Read Hatch's statement: Judiciary Statement: “Protecting Innovation and Art While Preventing Piracy”.

Don't worry, no annotation this time, just a look at how Sen. Hatch has shifted his rhetoric. Read on...

...continue reading.

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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

Shredding the INDUCE Act (IICA) - CEA, IEEE-USA, NetCoalition

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Posted by Ernest Miller

Three high tech organizations came out swinging against the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) during the Senate Judiciary Committee hearing (Protecting Innovation and Art while Preventing Piracy). Read on...

...continue reading.

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Backing Away from the INDUCE Act (IICA)

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Posted by Ernest Miller

Retrograde motion has been spotted among some of the early adherents of the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). Two significant supporters of the bill are having second thoughts: the Business Software Alliance and Hiawatha Bray. Read on...

...continue reading.

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July 22, 2004

Felten's INDUCE Act Hearings Blog Party

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Posted by Ernest Miller

Ed Felten invited everyone over to his blog, Freedom to Tinker, to participate in a contemporaneous discussion of the Senate Judiciary Committee hearing today (Protecting Innovation and Art while Preventing Piracy) on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) (Induce Act Hearing Webcast, Live Discussion). Lots of good play-by-play discussion by such people as: Ed Felten, Wendy Seltzer, Seth Finkelstein. Matt Perkins, Drew Vogel, Chris Cohen, and yours truly.

Chris Cohen also plugs his new INDUCE Act blog (motto: "All INDUCE Act News, All the Time"): Inducing Infringement of Copyrights Act of 2004 Blog.

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

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Copyright Office on INDUCE Act (IICA): It isn't Strong Enough

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Posted by Ernest Miller

Today, the Senate Judiciary Committee is holding a hearing concerning the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) (Protecting Innovation and Art while Preventing Piracy). The first witness is Marybeth Peters, Register of Copyrights, US Copyright Office. As I expected, she has come out as a strong proponent of the INDUCE Act, outdoing even such stalwart proponents of copyright maximalism as the RIAA. Read her 22-page statement and be amazed as she calls for Congress to overturn the Betamax decision: Statement of Marybeth Peters on S. 2560 [PDF].

Both C|Net News (Antipiracy bill gains new ally) and Techdirt (Copyright Office Endorses INDUCE Act) have more.

For my analysis of important parts of the statement, read on...

...continue reading.

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Hackers, Lawyers, Society and the INDUCE Act (IICA)

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Posted by Ernest Miller

Jeff Jarvis has a very good post this morning about shifting cultural mores (and/or memes?) (A programmer's society replaces a lawyer's society). As he drops his son off at programming camp, he postulates that we are shifting from a lawyer-centric society to a programmer-centric society. I would use the term "hacker" myself, but I think he has a very good point.

Lawyers are necessarily a suspicious breed. They live by rules. They think in terms of us vs. them. They think contention. They argue for sport. They always think they can appeal to a higher authority. They aim for victory. They are patient.

All those traits have an impact on American society -- many or most of them not good. The fact that lawyers run government is at the root of many of government's problems: Government has become all about arguing, little about serving.

But now imagine if former programmers start rising to the heights of American business and government and cultural life.

Programmers are logical. They believe in cause and effect. They believe any problem can be solved if you just find the cause. When they do battle, it's with a mistake, not a person. They live in the details. They believe in openness and transparency. They also believe in following rules but the rules of reality -- what a machine can and can't do -- over the rules man made up. They believe in planning. They, too, are patient. What else?

It's a brief post and written in generalities, but there is definitely something to the distinction between a lawyer's ethos and a hacker's ethos. I agree with Jarvis that this is mostly a good thing.

However, will the lawyers let it happen? Case in point: the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). When innovation has to be vetted by lawyers first, can the hackers' ethos thrive? I'm very worried that it cannot.

UPDATE 0910 PT
Rick Klau has some excellent comments on Jarvis' post (What if lawyers became programmers?).

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

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Consumer Groups Issue Statement Against INDUCE Act (IICA)

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Posted by Ernest Miller

In response to the Senate Judiciary Committee hearing today (Protecting Innovation and Art while Preventing Piracy) three consumer groups (Public Knowledge, Consumers Union, and Consumer Federation of America) have issued a joint statement opposing the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). Read the 8-page joint statement: Written Statement of Consumer Groups to Senate Judiciary Committee [PDF].

Our substantive testimony consists of two main arguments:

First, S. 2560 assumes that those who provide technologies and tools that can be used for infringement ought to face liability for the technology regardless of their non-infringing uses, and that our copyright law must be amended to protect the content industry from technology that “induces” unlawful conduct. We believe this approach is misconceived.

Second, we believe the legislation as introduced is seriously flawed and sweeps too far in ways that puts reasonable consumer expectations of new consumer-electronics products, new digital-technology products, and innovative products and services in general, at risk. [emphasis in original]

Read the whole thing.

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

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INDUCE Act (IICA) Press Roundup - Pre-Senate Hearing

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Posted by Ernest Miller

Due to the Senate Judiciary Committee hearing today (Protecting Innovation and Art while Preventing Piracy) there has been a minor flurry of press concerning the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act).

WIRED has a brief overview of some of the hearing witnesses and their likely positions (Copyright Bill to Kill Tech?).

Salon (sub. or 1-day pass) publishes an op-ed by Siva Vaidhyanathan (Is your computer a loaded gun?). In a surprising twist, Vaidhyanathan comes out in favor of the INDUCE Act ... Not. The piece is an excellent example of how to make a short and eloquent case against the bill:

The torrent of unauthorized file sharing through peer-to-peer Internet services has generated a barrage of panic, overreaction and reckless attempts to change the cultural and technological behavior of some 60 million Americans.

C|Net News has the worst news: the Copyright Office is going to be one of the main supporters of the INDUCE Act (Antipiracy bill gains new ally):

Peters [Register of Copyrights] goes even further than the politicians supporting the Induce Act, saying a 1984 Supreme Court decision "should be replaced by a more flexible rule that is more meaningful in the technological age." That 5-4 ruling said that VCRs were legal to sell because they were "capable of substantial noninfringing uses"--a legal shield that one federal court has extended to cover the Grokster and Morpheus file-swapping networks. [links omitted]
I've got a copy of Peters' written statement. I'll be going through in detail later, but let me just note that it is pretty darn bad. See also, Techdirt (Copyright Office Endorses INDUCE Act).

UPDATE 0915 PT
Read Marybeth Peter's 22-page statement for yourself: Statement of Marybeth Peters on S. 2560 [PDF]. [I'm still working on a longer post on it.]

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

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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.

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July 21, 2004

Fmr Intel VP and CEI Oppose INDUCE Act (IICA)

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Posted by Ernest Miller

Two significant editorials against the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) were published today. Ed Felten points to a Wall Street Journal op-ed (alas, behind a subscription wall) by former Intel VP Les Vadasz (Vadasz Attacks INDUCE Act):

Sen. Hatch and others argue that the bill will protect kids from porn and punish those who "intentionally induce" piracy. In reality it will do neither. But it will do serious harm to innovation.
Arnold Kling also points to this op-ed and asks, "What would be the social costs and benefits of Microsoft, Intel, or Google taking over one or more of the large music publishers (Technology Innovation vs. Government, July 21, 2004)?" He also provides the following quote from Vadasz' essay:
The more we attempt to provide government protection to the old ways of doing business, the less motivation we provide to the entertainment industry to adapt and benefit from new technology. ...

Most importantly, what we need are legislators who can curb their urge to legislate in areas where their actions are likely to do more harm than good.

The other piece comes from the Competitive Enterprise Institute. George Pieler, attorney and former Deputy Counsel to Sen. Bob Dole, has penned a 4-page attack on the bill (Send Me No Files: Senate INDUCEs a Threat to the Future of Information Technology [PDF]):
The INDUCE Act’s supporters claim they are just aiming at “bad actors”—flagrant facilitators of copyright offenses, mainly in the area of P2P sharing of music and video files. If so, they went to the wrong lawyer to draft the bill. This bill may be directed at infringement P2P file downloads, but it is far more sweeping. S. 2560 creates a new cause of action that would strike at any technology—new or old— that might be used in a manner unapproved by the copyright holder....

Indeed, the sweeping new legal concept behind INDUCE would establish a de facto permitting process for any business or technology that enables transmission or copying of copyrightable material. The potential for inducement would have to be weighed before the introduction of a new technology or device. Government standards would likely define “inducement” and require a sort of “inducement impact statement.” In essence this constitutes a “precautionary principle” for technology, such that no new technology or product can be marketed until it can be proven, in advance, that it will never do harm to anyone anywhere (a virtual impossibility since one cannot prove a negative). The chilling effect on the American economy would be substantial. [italics in original]

Indeed. Read the whole thing.

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

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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.

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Number of Co-sponsors for INDUCE Act (IICA) Growing

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Posted by Ernest Miller

During the past couple of weeks, the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) has picked up several more co-sponsors, bringing the current total to nine. Apparently, the copyright industries are doing an excellent bipartisan lobbying job. I've yet to hear of a single senator who opposes or even has serious questions about the bill. The three new co-sponsors are:

Sigh.

UPDATE 20 JUL 2004 - 0550 PT
Missed one more:

  • Sen. Paul Sarbanes (D-MD) [Currently, Hollywood does not appear to be a significant contributor to Sarbane's campaign funds]

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

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July 20, 2004

Witness List for INDUCE Act (IICA) Senate Hearing Now Available

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Posted by Ernest Miller

Last week it was announced that there would be hearings held by the Senate Judiciary Committee on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act), however, no witness list had been provided (Hearings to be Held on INDUCE Act (IICA)). The witness list is now available and the name of the hearing has been changed ("Protecting Innovation and Art while Preventing Piracy"). The witnesses are:

Looks like a pretty good panel to me, but I wonder where they plan on going with it given the name change. I suspect that they intend to burden shift the search for a solution onto pro-innovation forces and have the INDUCE Act as a default, but we shall see (On the Burden of Persuasion for the INDUCE Act (IICA)).

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

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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.

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July 19, 2004

Some of the Background of the INDUCE Act (IICA)

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Posted by Ernest Miller

It has barely been a month since the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) came out of nowhere to threaten technological innovation. Now, some of the brief history of the bill is coming to light.

Dan Gillmor has published an email from Gary Shapiro, president and CEO of the Consumer Electronics Association, detailing how the bill's supporters tried to sneak through the Senate (Difference of Opinion):

The RIAA tried a sneak attack. Their new head Bainwold and others convinced Hatch, Leahy and the Senate leadership to support this legislation -- I think they told them the high tech community supported it as the Business Software Alliance supported the bill. All of this happened before any tech company had even seen it.

I think I was the first to see it when I met with Hatch's guy on June 15. He showed it to me and told me it would be introduced the next day and voted on in the Senate in days. Immediately with him there reading the draft I told him we would oppose it. I said I was shocked the BSA could support it. He then delayed the bill a few days and it was only introduced the third week in June.

The whole email is highly recommended. One point to highlight is that the missive has even more information about the shameful behavior of the Business Software Alliance, which "had not polled their members" about the legislation.

In light of the BSA's support of the legislation, the New York Times questions the BSA's latest software "piracy" study (Software Group Enters Fray Over Proposed Piracy Law). The article also addresses many of the concerns regarding the INDUCE Act:

"I think the senators were totally misled about what this legislation is about," Lawrence Lessig, a professor at Stanford Law School, said. "This would not be a tiny, targeted change. It would be a massive change that would totally sidestep the Betamax ruling."

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

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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.

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July 18, 2004

P2P Company Interviewed Re: INDUCE Act (IICA) -- More on RIAA Letter

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Posted by Ernest Miller

There've been two significant news stories regarding the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) in the past couple of days.

WIRED interviews the principles of growing New York-based P2P company eDonkey (P2P Company Not Going Anywhere). Although the INDUCE Act would certainly affect his business, Sam Yagan, president of the company, believes that legislation won't stop P2P:

"I don't know of a single precedent in which legislation or litigation stopped technological development," said Yagan. "Let's say, though, that the labels shut down the major peer-to-peer networks. Would P2P go away? Not at all. The networks would continue to operate even if the companies themselves go out of business. It's like if you put Xerox out of business, its copy machines will still work.

"Then what will happen is networks will spring up in jurisdictions that don't recognize U.S. laws or judgments."

The Register's Andrew Orlowski takes the RIAA's letter to the Senate supporting the IICA to task (RIAA praises 'magnificent' P2P):
The industry's logic is based on it being a hit machine, then subsidizing other acts on this using these proceeds. But a critic might point out that if the fortune generated by hits is down so significantly - and sales are holding up - then what Bainwol claims to be his industry's basic business model is flawed. Either that, or else he doesn't know how the business he represents really works, which is unlikely. Or that he knows and isn't telling the truth.
Ouch.

Additional RIAA Letter Coverage:
The actual RIAA letter: Letter to Senators from Mitch Bainwol, Re: INDUCE Act
The Abridged RIAA Letter on the INDUCE Act (IICA)
The Excessively Annotated RIAA Letter on the INDUCE Act (IICA)

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

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July 17, 2004

Hearings to be Held on INDUCE Act (IICA)

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Posted by Ernest Miller

The original plan was to hurry the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) through Congress without hearings and before anyone paid any attention. As late as ten days ago, a spokesperson for the bill's leading sponsor, Sen. Orrin Hatch (R-UT), said that the Senator would only "schedule a meeting if the chairman [Hatch, chrm of the Senate Judiciary Committee] thinks it's necessary" (Opposition to INDUCE Act (IICA) Getting Mainstream Press - Bill Still Moving Through Senate Quickly). Apparently Sen. Hatch now thinks a meeting is necessary. Perhaps the request of numerous tech companies, civil liberties groups and consumer organizations convinced him (Many Organizations Sign on to Letter Requesting INDUCE Act Hearings).

In any case, hearings have been scheduled on IICA (aka INDUCE Act) for next Thursday, July 22 ("An Examination of S. 2560, The Inducing Infringement of Copyrights Act of 2004 "):

July 15, 2004
 
NOTICE OF HEARING
 
The Senate Committee on the Judiciary will hold a hearing on Thursday, July 22, 2004, at 2:00 p.m. in Room 226 of the Senate Dirksen Office Building on "An Examination of S. 2560, the Inducing Infringement of Copyrights Act of 2004."
 
Chairman Hatch will preside.
 
By order of the Chairman
Note that there is no witness list yet. Updates with details when they become known.

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

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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.

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The INDUCE Act (IICA) and Tertiary Liability

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Posted by Ernest Miller

During the original Napster's heyday, Bertlesmann, through a venture capital firm (Hummer Winblad), invested in the upstart filesharing company. After the original Napster was shut down by legal maneuvers, two record companies (UMG and Capital) decided to sue Bertlesmann (which owns a major record label itself: BMG) and Hummer Winblad in order to hold the two investors liable for supporting Napster and recoup some deep pocket damages. C|Net News reports that the lawsuit has survived a motion to dismiss (Case against Napster backers gets green light). Read the 14-page decision: UMG Recordings v. Bertlesmann AG [PDF].

The defendants had claimed that the lawsuit was one for "tertiary" copyright infringement, that is, contributory infringement of a contributory infringement (or inducing an inducement). "Tertiary" infringement is generally not accepted as a proper cause of action. Why? Because liability becomes too far removed from the actual criminal activity. Causality branches and diffuses. So, generally, there has to be something more than "but for" causality in order to hold someone liable.

This principle still stands. In UMG v. Bertlesmann the judge has held that the plaintiffs have made more than conclusory allegations that Bertlesmann and Hummer Winblad actually controlled the original Napster and directed operations, which would make then contributory infringers, not tertiary ones. This decision is a somewhat troubling. Personally, I'm not so sure that the allegations aren't conclusory, but the judge has ruled that the case can move at least to summary judgement motions.

The INDUCE Act Part

Which brings me to the concept of tertiary liability under the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act). Sometimes things are so obvious that they go without saying. However, as Derek Slater has pointed out to me, sometimes those are the most important points to talk about (Don't Innovate, Don't Even Invest).

One of the most devastatingly bad things that the INDUCE Act does is that it blows up the relatively clear lines of contributory and vicarious copyright infringment to extend liability into an ever more diffuse cloud of causality. As the EFF's mock INDUCE Act complaint shows, not only would the INDUCE Act permit lawsuits against Apple for the iPod, but plaintiffs could go after Toshiba for supplying Apple with the hard drives used in the device and C|Net for reviewing it (Prelude to a Fake Complaint). If contributory liability is similar to charging the promoter of illegal street races for reckless driving, the INDUCE Act is similar to charging automakers with reckless driving for making fast cars that can be used in street races. Under the INDUCE Act's doctrine of liability, if the Nile were guilty of flooding Cairo, lawsuits could be filed against every tributary.

According to the INDUCE Act, "intent [to induce] may be shown by acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor." This is an incredibly low standard. Anyone in the vicinity of infringement can get sued and it isn't clear what one can do to remain safe, except be nowhere in the vicinity of infringement. Even worse is that the proposed statute is designed to allow plaintiffs to take their cases all the way through to trial, surviving all attempts at dismissal for even weak cases (and costing the defendants plenty even if they prevail).

The practical consequence of this is to chill innovation to subzero temperatures. Investors, suppliers, and potential business partners (among others) will all be potentially liable under the INDUCE Act. They'll all have to ask themselves whether doing business with a company that Hollywood might not like is worth the risk of being hit with a meritless lawsuit. The likely result? No one is going to go anywhere near innovative new internet and consumer electronics companies unless they already have Hollywood's blessing.

If innovation is Superman, the INDUCE Act is green kryptonite.

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

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July 15, 2004

On the Burden of Persuasion for the INDUCE Act (IICA)

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Posted by Ernest Miller

Press coverage of the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) continues to be light. However, the San Jose Mercury News (annoying reg. req.) published an editorial that is sharply critical of the legislation (Piracy bill threatens Valley firms):

The Betamax decision has made possible an explosion of inventions, from MP3 players to CD burners. By undermining the Betamax decision, the Hatch bill could threaten current and future technologies. That's too much collateral damage in pursuit of Kazaa.
That's a very important point actually. The supporters of the INDUCE Act are going to strive to make passing the bill the default. They are going to make claims that "something has to be done" and if the opposition doesn't want this bill, then the burden is on them to provide an alternative. We cannot let that happen.

The legislation the copyright industry proposes is rash, precipitous and reckless. It risks great collateral damage for illusory benefits. We should not allow ourselves to be goaded into actions we will only regret later by the mere desire "to do something." Often, the best thing that one can do is to do nothing. The burden must be on the supporters of the INDUCE Act to propose a bill whose harmful effects do not outweigh the benefits.

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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!

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July 14, 2004

The Abridged RIAA Letter on the INDUCE Act (IICA)

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Posted by Ernest Miller

Sometimes, you just don't have time to read a lengthy annotation (The Excessively Annotated RIAA Letter on the INDUCE Act (IICA)). In such cases, an abriged version is much better. Brad Hill of the Digital Music Weblog has done us all a favor and condensed the RIAA's letter to the Senate. Read the original letter: Letter to Senators from Mitch Bainwol, Re: INDUCE Act.

Read on for Brad Hills' abriged version:

...continue reading.

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The Excessively Annotated RIAA Letter on the INDUCE Act (IICA)

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Posted by Ernest Miller

Just about a week ago, a number of technology companies, civil liberties groups and consumer rights organizations sent a letter to Senators requesting hearings on the fast-tracked Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) (Many Organizations Sign on to Letter Requesting INDUCE Act Hearings). Read the letter at EFF (one of the signatories): Letter to Senator Hatch, Re: S. 2560, the "Inducing Infringement of Copyrights Act of 2004".

Today, Techdirt noted (RIAA Defends INDUCE Act; Explains Why It's No Betamax) a brief report in the Hollywood Reporter that the RIAA had responded with a letter defending the INDUCE Act to all 100 Senators (RIAA chief to senators: OK copyright bill). Read the RIAA's letter here: Letter to Senators from Mitch Bainwol, Re: INDUCE Act.

Read on for the annotated version ...

...continue reading.

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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.

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July 13, 2004

Not Much INDUCE Act (IICA) News

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Posted by Ernest Miller

Only one new article (that I could find) published yesterday on the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act). Slyck has a (very) brief overview of the issues (US Congress Wrestling Copyright Law).

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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

The INDUCE Act (IICA) and the Safe Harbor Provisions of the DMCA

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Posted by Ernest Miller

This may be the last post in my series exploring how the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) will interact with various elements of copyright law and related statutes. From now on I'll be concentrating on specific examples of how the INDUCE Act can be abused: Hatch's Hit List.

I've already discussed how the INDUCE Act will substantially broaden the materials that ISPs must take down in response to a request by copyright holders (The INDUCE Act (IICA) and the Notice and Takedown Provisions of the DMCA). Today, I'm going to look at the other half of those provisions and see whether or not ISPs will still be protected by the safe harbor provisions of the Digital Millennium Copyright Act ("DMCA"), codified at 17 USC 512. Read on...

...continue reading.

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A Few Columns on the INDUCE Act (IICA)

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Posted by Ernest Miller

For those paying attention (i.e., not most of the mainstream press) the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) continues to garner criticism.

Dan Gillmor's weekly column in the San Jose Mercury News is devoted to the INDUCE Act as well as the progress Rep. Rick Boucher's (D-VA) consumer rights bill is making (Glimmer of hope in copyright measures):

The tech industry and many other defenders of consumer rights weren't paying close enough attention when the senators, including the majority and minority leaders, introduced the legislation. But when it looked as though the lawmakers were preparing to whisk the bill to the Senate floor without bothering even to hold committee hearings, the threat galvanized opposition.

John Ginn of the Corvallis Gazette-Times is a tad upset with the RIAA (RIAA: You need to get a life!):

And as to all the little Oliver Twists out there, I don't want to induce you to anything — stealing music is bad — however, given no other choice, by legislation that continues relentlessly to constrict your options, you need to fight like hell, fight ferociously like spitting-mad cornered wolverines, against corporate bodies like the RIAA who see you as nothing but soulless obeying consumerbots, and would have you defined as such in the law of the land.

Fight them, fight them!

Dr. David P. Reed (co-inventor of the end-to-end argument [PDF]) has some analysis of the INDUCE Act from a technical point of view that is must reading (The INDUCE Act is utterly flawed):

I'm not any kind of expert on construction of legislation, but the proposed INDUCE Act (S 2560) seems to be rationalized on the most ignorant and stupid intellectual basis I have ever encountered since the Tennessee legislature attempted to declare by law that pi was equal to 3....It's time that the owners of intellectual property begin to recognize that their proper sphere of influence consists solely of the space around the specific fixed expressions that make up the boundaries of their synthetic rights. The bits are merely zeros and ones, and belong no more to the expression than do the particular particles of ink in a particular book. The systems that transport bits are indeed becoming more efficient, but that efficiency does not and cannot determine which bits are intellectual property and which are not. No bit transport technology is specific to intellectual property alone. Hijacking the bit transport industry by the intellectual property owners is an egregious expansion of their power, and government should be ashamed to even try to do this. [link and emphasis in original]

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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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Are the Opponents of the INDUCE Act (IICA) Claiming that the Sky is Falling?

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Posted by Ernest Miller

The Motley Fool calls opponents of the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) the "Chicken Little crowd" (Will Congress Kill the iPod?):

What the bill would do is amend existing copyright law to allow lawsuits against those who "intentionally induce" copyright infringement. It would be nearly impossible for a reasonable person -- and that is the standard used in the bill -- to decide that an iPod is a tool for intentional violation of copyright. Ditto a pay-per-download service with copy-protection schemes. [italics in original]
Well, I'm so relieved. After spending millions to get through a jury trial, established technologies would likely survive. We can be sure that the reasonable person would have voted to save the VCR (in the early years when they were expensive and not widely used), what with Valenti (a reasonable guy himself) telling the reasonable man that the VCR was a vicious serial killer designed by the Japanese to assault Hollywood. Oh, and systems with copy-protection schemes would be allowed to thrive. Why, that is just dandy.

Actually, however, this column does make a very good point, one I've made on the Pho List. If the INDUCE Act actually becomes law, it is highly improbable that Apple would be sued over the iPod. Yes, a plausible case could be made against Apple: EFF's Mock INDUCE Act Lawsuit. However, realistically, the RIAA has made its peace with Apple and would not sue them. That's a bit of the problem with the Save the iPod campaign. The website asks "Is the iPod Really at Risk?" and answers "Yes!" Well, no. It isn't the iPod that is at risk, it is the small company's non-DRM'd wireless iPod clone that is at risk. The biggest threat is to the innovative next-generation iPod from some company that no one has heard of yet that the RIAA will quash long before it can sell millions of units and make us all wonder how we survived without one.

That's a harder story to sell and make bumper stickers for. On the other hand, by claiming a need to "Save the iPod," you run into a problem when people say, "don't be ridiculous, Apple isn't going to be sued," because they're right. Your "Save the iPod" campaign will certainly not look credible if Apple is supporting the other side (they certainly haven't come out against the INDUCE Act yet). As a consequence, it is going to be a little harder, now, to convince the readers of the Motley Fool that they should oppose the INDUCE Act.

In other INDUCE Act news, Digital-Lifestyles.info, has a brief piece on the IICA (Senate Moves to Outlaw P2P Applications):

The sponsors of this bill are being blinkered into a view that is entirely concerned with the profits of one group – the music industry. The backers of the Induce act are rallying towards just one group at the moment, because that's where the money is.
I have to disagree. The IICA backers are also rallying for the MPAA and BSA.

UPDATE

Audio/Video Revolution does a short straight-up story on the issue (New Bill Suggests Apple Could Get Sued For What People Do With Their iPods).

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July 08, 2004

INDUCE Act (IICA) Press Roundup - July 8, 2004

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Posted by Ernest Miller

The Inducing Infringment of Copyrights Act (IICA, née INDUCE Act), is starting to get a little more press, though most of it remains ghettoized in the technology sector. Here are a few notable articles:

Number one is the transcript of USA Today's talk with EFF's Ren Bucholz' about the INDUCE Act (File sharing and the law: Ren Bucholz). Unfortunately, there were more questions than time. Hopefully, USA Today will invite Ren back to keep the public informed about this issue.

PC World senior editor Anush Yegyazarian does a very good job providing the big picture about the pro-copyright industry legislation that we're facing. (Copy Crime and Punishment). Definitely recommended.

Internet News focuses on the fast-track process Sen. Orrin Hatch (R-UT) is using to sneak the INDUCE Act through Congress (P2P Bill Induces Tech Group to Action).

The Philadelphia Daily News (annoying reg. req.) has a very interesting column that is fairly supportive of many of the recent copyright-related bills (PIRATE Act, Camcorder Use in Theaters, etc.), but really goes after the INDUCE Act with a vengeance (High-tech products taking a licking):

But a third measure (S. 2560), promoted by Hatch, is really scary in a "Big Brother" kind of way. Called the Inducing Infringements of Copyright Act, it could put the kibosh on all sorts of technological advancements by making "criminally liable" any equipment or service provider whose product has the potential to "aid, abet, induce or procure" copyright infringement.

Hopefully, we will see more mainstream press coverage of the INDUCE Act.

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The INDUCE Act (IICA) - Putting the Pornography Industry in Charge

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Posted by Ernest Miller

I've discussed before how Senator Orrin Hatch's (R-UT) legislative proposals seem to strangely benefit pornographers. See, PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry. Why should the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) be any different?

I've already written about how easy it would be under the INDUCE Act for anyone who owns a copyright to haul innovators into court, not because of the merits of their case, but merely because the law basically lets them extort money from the target (INDUCE Act (IICA) = Patent Extortion, but for Copyrights?). A similar argument is made by the organizations and companies that sent a Letter to Senator Hatch, Re: S. 2560, the "Inducing Infringement of Copyrights Act of 2004"):

There are many, many more copyright owners than there are patent owners, and the burden of proof to establish at least a prima facie case of copyright infringement is minimal rather than significant and specific as in patent cases.
However, if one wants to show infringement, the copyrighted work would still have to be illicitly distributed or copied somehow. Not all copyrighted works will do the trick. Let's face the facts, most copyrighted works (like this blog), just don't get much attention. Most copyrighted works are not infringed because no one cares to. For example, as I've noted elsewhere, the likelihood of finding a copyrighted work on a filesharing network is determined more by the popularity of the work than just about any other factor.

So, what is an INDUCE Act exploiter to do? They must not simply own any old copyright, they must own a copyright that is reasonably likely to be infringed. Sure, the RIAA, MPAA, BSA and their members are likely to have access to widely infringed works, but what about the group of enterprising lawyers little guy who can't easily pull a popular band or film out of his back pocket? What's easy and cheap to produce, but is also popular to infringe? Pornography, of course.

Moreover, pornography companies have generally been hesistant to sue their customers; they see P2P networks as free advertising (P2P and Pornography: Cheap is More Convenient). Consequently, many filesharers don't hesitate to share pornography as they might lawsuit-inducing music or movie files. Of course, the would be exploiters won't really care about the infringing either, but they will be able to take advantage of it to legally extort money from innovators. Heck, these enterprising pornographers wouldn't even have to bring the lawsuits themselves. They would merely have to seek to join the inevitable lawsuits that the big boys will bring.

Once again, Sen. Hatch has designed a law eminently suited for exploitation by pornographers. I'm starting to think the guy has a secret agenda.

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July 07, 2004

Lessig on Hollaar's "Sony Revisited" and the INDUCE Act (IICA)

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Posted by Ernest Miller

Cyberlaw Prof Larry Lessig takes a look at some of the reasoning that seems to have informed those behind the Inducing Infringments of Copyright Act (IICA, née INDUCE Act) (continuing congressional confusion on copyrights (ie, not just (c), or (cc), or even (ccc) but (cccc))). He points to a recent paper (Sony Revisited [PDF]) from Lee Hollaar, Computer Science Professor with the Univ. of Utah. From the introduction of the paper:

Today, tens of millions of people participate in peer-to-peer systems like Kazaa, with most users “sharing” not their own material, but more likely music whose copyrights are owned by others. Whether such activities hurt the copyright owners by being a substitute for legitimate sales and license fees, or help by sparking interest in a new work, is not the question here. The Constitution and the copyright statutes give a copyright owner the exclusive right to the protected work during the limited duration of the copyright, and therefore the right to determine the business model for its distribution to the public. [footnotes omitted]
Lessig briefly addresses Hollaar's arguments, but really pushes the point that Sony enshrines the separation of powers, that,
This is not an opinion about copyright law alone. It is an opinion about separation of powers — about which branch is best able to do the necessary balancing that copyright law demands, “within the limits of the constitutional grant.” Sony says, in effect, when a technology is not simply a technology for violating the law, then it is left to Congress to decide whether and how that technology is to be regulated. Congress, not the courts. [link in original]
My perspective on Hollaar's paper when I've had a chance to go through it.

Comments (1) + TrackBacks (0) | Category: Copyright | File Sharing | INDUCE Act

TiVo vs. Media Center Edition vs. INDUCE Act (IICA) vs. Broadcast Flag

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Posted by Ernest Miller

A couple of weeks ago Eric Harrison wrote a head-to-head comparison of Windows Media Center Edition and TiVo. (TiVo versus Media Center Edition PC's - finally!). TiVo won, partly because the original Windows machine had all sorts of defects, but mostly because TiVo is a more solid performer. Paul Robichaux's comparison goes into more depth about the MCE (Media Center Eye for the TiVo Guy).

Jupiter Research analyst Michael Gartenberg looks at Harrison's comparison and adds some thoughts of his own, as JR is working on a report on standalone DVRs (Tivo comparison to Windows Media Center):

First, the PC is more flexible. If I want to store and view my pictures, music and other video content, burn to DVD, copy to a portable media player and stream that content to other devices in my home, I can do that with the PC and not with the TiVo. The MCE EPG is also more flexible. Try and record the West Wing on TiVO, just the 7pm episodes shown on channel 44, not the other boradcasts. You can't do it. It's a snap on MCE. (why would you want to? to record a series according to airdates so you can watch the episodes in order). On the other hand, my TiVO never crashed, locked up, missed a scheduled record or any other annoying issue. Clearly the dedicated funcitonality makes for a more stable platform. Part of the MCE experience issue is that it's still a PC. You still need to exit to the shell to get some things done. You need to re-boot from time to time. If MCE is going to make inroads in the next year it needs to be able to shed the PC experience and live 24/7 as a consume electronics device.
Here are my thoughts. I already have a TiVo. I already have a PC. Most of the people who are considering buying a TiVo already have a PC as well. If the TiVo could simply talk to the PC, then they (and I) could get the benefits of consumer electronics reliability and the flexibility of a PC without having to buy a whole new, rather expensive PC.

So why don't DVRs offer this flexibility? They get sued into oblivion: EFF Archives: Newmark v. Turner Broadcasting System. Need I mention that the IICA (née INDUCE Act) will make bringing such company-resource-draining lawsuits easier? Or that, in a little less than a year, the government will burden such capability with mandatory DRM: Digital Television Liberation Front?

Comments (4) + TrackBacks (0) | Category: Broadcast Flag | Broadcatching/Podcasting | Copyright | Digital Rights Management | INDUCE Act

July 06, 2004

Many Organizations Sign on to Letter Requesting INDUCE Act Hearings

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Posted by Ernest Miller

A plethora of technology companies and civil liberties organizations have sent a letter to Senator Orrin Hatch (R-UT) requesting that he hold hearings on the IICA (née INDUCE Act). Read the letter at EFF (one of the signatories): Letter to Senator Hatch, Re: S. 2560, the "Inducing Infringement of Copyrights Act of 2004". The letter argues among other things that,

This new threat would chill innovation and drive investment in technology (and accompanying jobs) overseas. By combining (1) a new and separate cause of action for "intentional inducement," (2) a lower civil, rather than higher criminal, standard of liability, and (3) a circumstantially "reasonable" test, S. 2650 would seem to ensure that massive and intrusive discovery proceedings, and a jury trial, would await any innovator or investor who introduces to the market a product that some copyright owner, someplace, believes will "induce" infringement. (There are many, many more copyright owners than there are patent owners, and the burden of proof to establish at least a prima facie case of copyright infringement is minimal rather than significant and specific as in patent cases.)
I've written (with more to come) about various specific possibilities of abuse of the proposed Act here: INDUCE Act Archives.

via Copyfight

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Opposition to INDUCE Act (IICA) Getting Mainstream Press - Bill Still Moving Through Senate Quickly

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Posted by Ernest Miller

Despite a plethora of online reporting and opposition to the IICA (née INDUCE Act) from the usual suspects in the tech community (such as WIRED, C|Net, Slashdot and The Register), the mainstream press has been remarkably silent. However, two articles this morning indicate that that may be changing. USA Today has a good article summarizing the bill and the views of its opponents (Copyright bill poses threat to iPod's future). Scarily, however, the bill continues to move forward quickly:

Hatch can decide to schedule the bill for a committee vote as early as Tuesday, or at the end of the current congressional session. Hatch spokesman Margarita Tapia says there's no timetable. As for hearings, she says, "We may schedule a meeting if the chairman thinks it's necessary."
Translation: "Hearin's? Hearin's? We don't need no stinkin' hearin's. And if we tells you the schedule, how we goin' to sneak the bill through?"

The Register brings welcome news that free expression hero Rep. Rick Boucher (D-VA) will be a vigorous opponent of the Act (Hatch's Induce Act comes under fire):

"Anyone making ANY kind of recording device, even an innocent recorder that has many other fair uses, could be in breach of this law just for making that technology available. Frankly there is no need for the statute at all."
UPDATE 0830 PT

Homestate newspaper castigates Hatch on INDUCE Act. The Provo Daily Herald has the following, less than flattering words for their senator (Beehives & Buffalo Chips):

Buffalo Chip to Utah Sen. Orrin G. Hatch, who's taking his hatred for people downloading music to new depths. Hatch, who previously suggested frying the computers of those who download MP3 files through filesharing software, now wants to make the software illegal, on the grounds that Gnutella, KaZaA and others "induce" people to flout copyright laws. That's like arguing that bolt cutters should be illegal because they may induce someone to commit burglary. Maybe Hatch is upset because few people, if any, are downloading his schmaltzy music.[emphasis in original]

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The INDUCE Act (IICA) and the Broadcast Flag

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Posted by Ernest Miller

A little over a week ago, I discussed how the IICA (née INDUCE Act) might end up extending the already overbroad Broadcast Flag Treaty (INDUCE Act + Broadcast Flag Treaty = ???). Today I continue my series on how various aspects of the copyright law may interact with the INDUCE Act by discussing the FCC's domestic broadcast flag regulation. Read on...

...continue reading.

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July 02, 2004

The INDUCE Act (IICA) and the Notice and Takedown Provisions of the DMCA

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Posted by Ernest Miller

Continuing my series on how various aspects of the copyright law may interact with the INDUCE Act (née IICA), this post will address the "notice and takedown" provisions of the Digital Millennium Copyright Act ("DMCA"), codified at 17 USC 512. Now the notice and takedown provisions of the DMCA have already had more than their fair share of controversy, including some rather clear cases of abuse. See, EFF's Unsafe Harbors: Abusive DMCA Subpoenas and Takedown Demands and Chilling Effects's DMCA Safe Harbor Provisions. Guess what. If the INDUCE Act passes, things may get a whole lot worse. Read on...

...continue reading.

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June 30, 2004

INDUCE Act (IICA) = Patent Extortion, but for Copyrights?

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Posted by Ernest Miller

WIRED reports on the launch of EFF's Patent Busting Project (EFF Publishes Patent Hit List). Slashdot discussion here: EFF, PubPat Each Seeking Some Patent Sanity. This is a much needed project, as patent abuse has become a rampant problem. EFF explains it this way:

Unlike most technologies, software and the Internet have attracted a vast number of small business, non-profit, and individual users – each of whom has adopted and built upon these resources as part of their daily interaction with computers and the online world. From open source programming to online journaling to political campaigning, the average citizen is using new technology online and on her desktop as often as any traditional company.

With this increased visibility, however, comes increased vulnerability. Previously, patent holders had only targeted competing companies. These companies have established legal departments and outside counsel and are thus able to defend against illegitimate patent threats. Now some patent holders have begun to set their sights on the new class of technology users–small organizations and individuals who cannot afford to retain lawyers. Faced with million-dollar legal demands, they have no choice but to capitulate and pay license fees – fees that often fund more threat letters and lawsuits. And because these patents have become cheaper and easier to obtain, the patentee’s costs can be spread out quickly amongst the many new defendants. Our patent system has historically relied on the resources of major corporate players to defeat bad patents; now it leaves these new defendants with few if any options to defend themselves.

Illegitimate patents can also threaten free expression. More and more people are using software and Internet technology to express themselves online. Website and blogging tools are increasingly popular. Video and audio streaming technology is ubiquitous. E-mail and Instant Messaging have reached users of all ages. Yet because patents can be anywhere and everywhere in these technologies, the average user has no way of knowing whether his or her tools are subject to legal threats. Patent owners who claim control over these means of community discourse can threaten anyone who uses them, even for personal non-commercial purposes. We lose much if we allow overreaching patent claims to reduce the tremendous benefits that software and technology bring to freedom of expression.

Hmmm...I wonder what would happen if you put a law similar to the patent law (only more flawed) into the hands of just about anyone who wants to abuse it (copyrights being even easier to obtain than patents)? Imagine a small team of lawyers company that put together a portfolio of copyrighted works that are shared (at least somewhat) via various networks and then start going after individuals and companies who didn't infringe the works, but "induced" infringement by numerous, unknown others. Even if the case is winnable, defending it will be very costly. Small organizations and individuals who cannot afford to retain lawyers will have no choice but to capitulate and pay license fees – fees that often fund more threat letters and lawsuits.

Yes, the INDUCE Act (née IICA) would have yet another unintended consequence.

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Quote of the Day - CD Burner INDUCE Act (IICA) Edition

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Posted by Ernest Miller

What if CD burners had to be removed from the shelves until a license from ALL rights holders could be obtained. Would eight years have passed until the shelves were re-stocked?
- David Touve

The INDUCE Act (née IICA) would definitely have made this a possibility if it had been in force when CD burners were introduced. It is unlikely the RIAA would go after them today (but who knows? Maybe they've been saving boxes of "evidence" just in case.) After all, why would burner companies need to sell so many CD burners that could burn Red Book Audio? The burner manufacturers must certainly have known there aren't that many musicians and that the biggest use for the drives (at least the Red Book Audio capabilities) would be nothing less than piracy.

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Study Finds Americans Opposed to RIAA Suing Direct Infringers - INDUCE Act (IICA) Supporters Cheer

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Posted by Ernest Miller

Legal website Findlaw has released the results of a study about Americans' attitudes toward the RIAA lawsuits against filesharers. Read the press release: FindLaw Survey Reveals RIAA Lawsuits Unpopular with Americans. The survey found that:

According to the national survey by FindLaw, 56 percent of American adults oppose the lawsuits. Thirty-seven percent support the industry's legal actions. Seven percent of those surveyed had no opinion. One thousand adults were surveyed, with results accurate plus or minus three percent.
Problem. The questions were apparently regarding the RIAA suing downloaders. Downloaders. Even survey firms are still so clueless they can't distinguish between downloaders and uploaders. I imagine the percentages would be somewhat different if the questions were framed regarding uploaders, though I'm sure the lawsuits will still be unpopular.

That's not the important point, however. In the near term, this survey will lend support to those trying to get the INDUCE Act (née IICA) passed. One of the major reasons that the RIAA, MPAA and BSA ostensibly support the INDUCE Act is because they claim to not want to sue end-users but only the P2P companies. This survey will lend their argument support. For example, let's see what Sen. Orrin Hatch (R-UT) had to say about this issue when he introduced the Act:

In theory, a rule that immunizes inducement still permits enforcement against those induced to infringe. At first, this remedy seems viable because copyrights have traditionally been enforced in lawsuits against direct infringers who actually make infringing copies of works.

But a fallacy lurks here: The “direct infringers” at issue are not the traditional targets for copyright enforcement. In fact, they are children and consumers: They are the hundreds of millions of Americans – toddlers to seniors – who use and enjoy the creative works that copyrights have helped create.

There is no precedent for shifting copyright enforcement toward the end-users of works. For nearly 200 years, copyright law has been nearly invisible to the millions who used and enjoyed creative works. Copyright law was invisible to consumers because the law gave creators and distributors mutual incentives to negotiate the agreements that ensured that works reached consumers in forms that were safe to use in foreseeable ways. Now, those incentives are collapsing. As a result, artists must now waive their rights or sue consumers – their fans.

Worse yet, artists must sue their fans for the sin of misusing devices designed to be easy and tempting to misuse. That is unfair: When inducement is the disease, infringement can be seen as just a symptom. Yet artists must ignore inducers who profit by chanting, “Hey, kids, infringement is cool, and we will help you get away with it.” Instead, artists can only sue kids who succumb to this temptation. They must leave Fagin to his work – and sue Oliver Twist....

Today, artists are suing high-volume filesharers who cannot be identified until late in the process. One filesharer sued for violating federal law over 800 times turned out to be a 12-year-old female honor student. This otherwise law-abiding young girl and her family then faced ruin by the girl’s favorite artists. The public knew that something was wrong, and it was outraged. So the people who gave that girl an easily misused toy – and profited from her misuse of it – exploited public outrage with crocodile tears about the tactics of “Big Music.” And then, I imagine, they laughed all the way to the bank.

With regard to this study, Hatch will be laughing all the way to a vote on the Senate floor.

via Tech Law Advisor

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The INDUCE Act (IICA) and the Anti-Circumvention Provisions of the DMCA

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Posted by Ernest Miller

Continuing my series on how various aspects of the copyright law may interact with the INDUCE Act (née IICA), today let us discuss the anti-circumvention provisions of the Digital Millennium Copyright Act ("DMCA"), codified at 17 USC 1201. For those of you who have been travelling with the Mars Rover for the past few years, the relevant portions of the DMCA make it illegal to distribute devices that circumvent access controls and copy controls, basically, DRM cracks. The DMCA is a bad law, but I'm not going to go into details here.

Now the thing with many anti-circumvention devices is that they are "capable of substantial noninfringing uses" and thus avoid secondary copyright liability under the Sony (Betamax) doctrine. Backups, fair use, playback on alternative devices; all are common examples of noninfringing uses that circumvention devices enable. DMCA plaintiffs could fight this in court, but it would be tough and probably not worth it. So, while a company may get busted for violating § 1201, which is bad enough, they will generally have a pretty good defense against claims of secondary copyright liability.

But how hard would it be to prove secondary liability under the INDUCE Act? Once you've shown that a company has violated the DMCA, it isn't much farther to push a jury to find that they "induced" copyright infringement as well, thus bringing all the secondary liability down like a ton of bricks without all the hassle associated with proving contributory or vicarious liability. Indeed, merely advertising a circumvention device or providing instructions on how to use it will probably be enough to trigger inducement liability.

Now, think about how the DMCA has been abused to do things like control markets in ink cartridges. Now, imagine that plaintiffs get to slap a secondary copyright liability suit on top of that. Bonus!

The INDUCE Act will make the unbalanced anti-circumvention provisions of the DMCA even more unbalanced.

Comments (0) + TrackBacks (0) | Category: Digital Millennium Copyright Act | INDUCE Act

June 29, 2004

The INDUCE Act and the Right to Prepare Derivative Works

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Posted by Ernest Miller

The INDUCE Act makes it a crime to induce copyright infringement in very broad terms. Most of the commentary on the Act and what technologies, creativity and innovation it threatens have focused on two types of infringement, those of the right of reproduction (the right to make copies) and the right of public distribution. We should remember, however, that there are other exclusive rights that can be infringed. The intersection of the INDUCE Act with these other exclusive rights will create an even broader swath of technology and acts that Hollywood will have an effective veto over. Let's consider one of these other rights and the technologies that might be affected.

According to 17 USC 106, the second exclusive right is the right "to prepare derivative works based upon the copyrighted work."

Hmmm, I would imagine that it will be much easier for Hollywood to go after websites that promote fan fiction. Computer game companies that do not like modding can go after websites that teach people how to mod computer games. Websites that encourage or promote Machinima are in deep trouble. Things like remix "construction sets" would probably also be under legal threat, even if they didn't contain any unauthorized material. Certain editing technologies like the ClearPlay DVD player, which allows parents to skip offensive portions of a DVD, would certainly be more threatened than they are now. See, Liberals, Conservatives Favor Different Kinds of Censorship. Third-party annotations? Well, those are right out. Heck, it might be that a parody would be illegal because it encourages the creation of derivative satires. Anything that encourages you to change, edit, or manipulate copyrighted content would likely be forced to incorporate DRM else the technology provider be sued.

Just imagine if SCO, the company that wants to stop open source, had INDUCE in its arsenal. Linux, which never had much of a process (until recently) to ensure that submitted code was clean of adverse copyrights, would be toast. And how long before SourceForge and O'Reilly get C&D letters?

Now Hollywood might not win all these potential lawsuits, assuming the defense can afford to go all the way through trial and risk having a jury look askance at what they're doing, but how heavy will the threat of litigation weigh on those who encourage creation?

Comments (0) + TrackBacks (0) | Category: Copyright | Culture | INDUCE Act | Machinima

Supporting the INDUCE Act

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Posted by Ernest Miller

Not too long ago, I explained why I believed Microsoft was a supporter of DRM (Metaphors Gone Wild: On Pies, Ships, Regressive Taxes, DRM and Microsoft). Basically, my argument was that DRM acted as a barrier to entry and slowed innovation so that Microsoft could remain at the top of the mountain. Today, Ed Felten makes a similar argument with regard to the INDUCE Act and why tech companies can't seem to get their act together with regard to combatting Hollywood's lobbyists ("Tech" Lobbyists Slow to Respond to Dangerous Bills). Says Felten:

Giving the entertainment industry a veto over new technologies would have two main effects: it would slow the pace of technical innovation, and it would create barriers to entry in the tech markets. Incumbent companies may be perfectly happy to see slower innovation and higher barriers to entry, especially if the entertainment-industry veto contained some kind of grandfather clause, either implicit or explicit, that allowed incumbent products to stay in the market -- as seems likely should such a veto be imposed.

Just to be clear, an entertainment-industry veto would surely hurt the tech incumbents. It's just that it would hurt their upstart competitors more. So it's not entirely surprising that the incumbents would have some mixed feelings about veto proposals, though it is disappointing that the incumbents aren't standing up for the industry as a whole.

Absolutely, and Felten's argument is yet another facet of the technology industries that the Boston Globe's Hiawatha Bray doesn't get (For geeks, it's a big misunderstanding).

The question is, how do we convince the incumbent industries to defend the industry as a whole? With regard to Microsoft, I'm not sure that we can. I don't think it is anymore possible to convince Microsoft to support open innovation and markets than it would have been to convince AT&T to open up the telephone markets to competition in the late '70s.

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June 28, 2004

Go Ahead with the INDUCE Act - A View from Overseas

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Posted by Ernest Miller

Dr. Karl-Friedrich Lenz, a professor at Aoyama Gakuin University in Japan, has a different perspective on the INDUCE Act (A Balanced View of the INSANE Act Proposal). Of course, there must be something wrong with the translation, Dr. Lenz has the Act as named, "Intentionally Stopping Advances of the Nation's Economy," or INSANE Act. Anyway, he is not nearly as opposed to it as many commentators here in the US:

First of all, while it might be true that this legislation will help to make America a technological backwater, with iPods and the Internet being illegal under this legislation, depending on your perspective, that is actually a good thing. It helps Europe and Japan in the global competition with America to have strange American laws strangling research and development there, so from an international point of view, I can only say "go ahead".
Lenz notes that the law could use some improvements, and if they were made, then, "it might be better than the Japanese approach of just arresting creators and sort out later if it was actually illegal what they did."

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INDUCE Act + Broadcast Flag Treaty = ???

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Posted by Ernest Miller

The WIPO Treaty for the Protection of Broadcasting Organizations would basically give copyright protections (fixation, reproduction, distribution, DMCA) to broadcasters, cablecasters and, if the US gets it way, webcasters (whatever that means). Read more about this dangerous draft treaty here: The Broadcast Flag Treaty - Draft Available.

The WIPO treaty doesn't call for anything like the INDUCE Act, but to implement it, the US would basically have to extend most basic copyright law (and the DMCA) to cover broadcasts. What do you think? Will Congress revisit and change copyright law to apply it to broadcasters, or will Congress basically port over everything in copyright law to the new broadcast rights law? If the US signs the Broadcast Flag treaty, you don't think that broadcasters would get less protection do you?

Yep, yet another reason to make sure the INDUCE Act doesn't pass.

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June 27, 2004

Crawford on the INDUCE Act: Not With a Sledgehammer, But a Stiletto

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Posted by Ernest Miller

Prof. Susan Crawford, who was the first to post the text of the INDUCE Act (aka IICA), writes that (Overstatement and IICA):

There are reasonable people walking on this earth who will say that the IICA is not a big deal. Rather than jump down their throats, I'm going to suggest that we slow things down, have some hearings, and try to get to the bottom of what's going on.
Crawford's arguments are meant to be the reasonable, low-key responses to proponents of the Act. They may be that, but they conclusively show how overbroad the Act is:
Let's assume, for the sake of this argument, that both sides have good points. But there is a great deal of fear on the IT sector side, and there's no limiting language in the bill that focuses on "illegal file sharing."
Well, that's the problem, isn't it? There is no limiting language. What some say with a sledgehammer, Crawford says with a stiletto.

On the question of whether the INDUCE Act overrules Sony, Crawford notes:

Similarly, so the argument goes, the IICA's creation of a new kind of secondary liability, triggered by "acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor, including whether the activity relies on infringement for its commercial viability," would leave judge-made theories of contributory liability in place -- but no one would ever use them again.
Indeed. Although I think people would still use Sony, just because you almost always bring every charge you can.

Crawford's conclusion?:

So where are we? We're worried enough to hold a hearing. We don't need to scream or claim that the other side is witless or evil. We just need to think this through.
Indeed we don't have to call the other side witless or evil. Even if they were, this is a very politic and reasonable argument to make. More hearings needed. Of course.

Spokespeople need to make these arguments. However, my cynical self believes that the drafters of this law know full well what they were doing. The Business Software Alliance pays good money for their lawyers; they best not be witless. Neither are they evil; they're simply self-interested. In dealing with public policy issues, such as this one, we call this behaviour "rent-seeking." Rent-seeking isn't necessarily evil, but we don't generally like it. I'm going to call "rent-seeking" when I see it.

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Quote of the Day: Legal Programming Edition

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Posted by Ernest Miller

From News You Can Bruise regarding the INDUCE Act (And Another Thing):

Also, all laws should be written in my Leibnitzian Python wonder-language that contains no ambiguity.

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PIRATE Act + INDUCE Act = ???

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Posted by Ernest Miller

On Friday, C|Net News reported that the Senate had passed the PIRATE Act (S.2237 Status) "overwhelmingly" (Senate OKs antipiracy plan). The Act would permit government to bring civil enforcement lawsuits against willful infringers. As Frank Field said on Furdlog, "So much for all the whistling past the graveyard, claiming that Congress had too much real work (like passing a budget) to mess with the copyright fights" (PIRATE Act Passes Senate). Indeed. Previous coverage here: PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry and PIRATE Act - Wiretaps for Civil Copyright Infringement?.

Of course, attention-wise, the PIRATE Act has taken a backseat to the INDUCE Act this past week. The INDUCE Act claims that "Whoever intentionally induces any" copyright infringement "shall be liable as an infringer." How does this interact with the PIRATE Act? Could the government start suing P2P companies and putting them out of business? Possibly. I'd like to say, unlikely, but I'm not sure.

Under the PIRATE Act, for the government to go after someone, they have to meet the requirements of 17 USC 506:

(a) Criminal Infringement. - Any person who infringes a copyright willfully either -
(1) for purposes of commercial advantage or private financial gain, or
(2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000,
shall be punished as provided under section 2319 of title 18, United States Code. For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement.
Proving "for purposes of commercial advantage or private financial gain" would definitely be pretty easy in the case of most commercial entities sued under the INDUCE Act. The question is whether being "liable as an infringer" is the same thing as one who "infringes a copyright willfully." Although a plain reading of the statute would seem to indicate it isn't, I believe there are some plausible arguments that it is. If someone who "infringes a copyright" is the same as someone "liable for infringement," then the government would be able to bring civil law enforcement suits under the INDUCE Act. Certainly an agressive DOJ might try to push this issue. And how many juries would fail to convict with the government telling people what rotten dirty inducers the defendants are?

Hmmm...

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June 25, 2004

EFF's Mock INDUCE Act Lawsuit

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Posted by Ernest Miller

Brilliantly satirizing (is it really satire if its true?) how easily Hollywood (or any copyright holder) could bring a lawsuit under the proposed INDUCE Act, EFF attorneys have drafted a mock lawsuit complaint against Apple (for making the iPod), C|Net (for reviewing the iPod), and Toshiba (for supplying hard drives for iPods).

Read the press release: Will the Inducing Infringement Act Kill the iPod?.
Read the 9-page complaint: Fake Apple Complaint [PDF].
My take on the INDUCE Act here: The Obsessively Annotated Introduction to the INDUCE Act.

The complaint is rock solid and shows how easy it would be for a plaintiff to force an extended court battle:

Because the Induce Act defines "intent" as being "determined by a reasonable person taking into account all relevant facts," it's unlikely that a technology company like Apple would be able to easily dismiss any lawsuit brought against it. It would face the prospect of an expensive trial, with all the attendant legal fees and negative publicity. One such company, SonicBlue, recently fought against a group of copyright holders in court over its ReplayTV and spent close to $1,000,000 per month in legal fees alone. In essence, this means that copyright owners can use the "inducement" theory to inflict an arbitrarily large penalty on any tech company that builds a device they don't like. That's not a pleasant possibility for an innovator to face as he or she tries to launch a new product.
Read on...

...continue reading.

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June 24, 2004

The Obsessively Annotated Introduction to the INDUCE Act

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Posted by Ernest Miller

Yesterday, as C|Net News reported, Senator Orrin Hatch (R-UT) officially introduced the INDUCE Act to the public (Senate bill bans P2P networks). See also, Susan Crawford (INDUCE Act introduced) and Larry Lessig (even I can’t believe this). Read the bill here: Inducing Infringement of Copyrights Act of 2004 [PDF].

In introducing the bill, Hatch provided extensive justifications and arguments on behalf of the bill. Eight pages worth: Before the United States Senate on Introduction of the “Inducing Infringement of Copyrights Act of 2004” S. 2560 [PDF]. Since it looks like this bill will move quickly in Congress, opponents will have to get up to speed quickly. Thankfully, Hatch provided an excellent guide to the talking points proponents will use. Consequently, I've decided to go through Hatch's introduction and extensively annotate it. However, this is just a response piece and many arguments against the bill won't be here. The annotation is long, but I think there are definitely some valuable nuggets of information, such as, towards the end, Hatch makes clear he wants criminal enforcement of the Act.

My comments are in brackets, bold and italics. I've added hyperlinks to Hatch's text as I thought useful. Read on...

UPDATE 23 July 2004
Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.

...continue reading.

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