Thursday, July 29, 2004

In defense of 'Chicken Little'

Some commentators have raised accusations of 'foolish demagoguery' on the part of those who suggest the iPod is at risk due to the proposed INDUCE Act (IICA). 

The accusation is hardly an exposure of some overblown or empty argument.  That argument has always been a very solid and moving metaphor.  It is absolutely true that the iPod itself will not be threatened by IICA, but not because IICA is well written or not threatening to technological innovation.  The iPod will only be off limits to lawsuits because of what lawmakers have said on the record during the IICA hearings, where they specifically stated that the iPod was not a target.  Congress would not attempt to remove from the market a device that has been available to consumers for several years.  Orrin Hatch stated as much himself here:

For example, there is a mock complaint circulating that alleges that the Apple iPod violates S. 2560 because mp3 players would never have been commercially viable but for the preceding, massive wave of for-profit filesharing piracy that was defended by groups like the Electronic Frontier Foundation. A real court would respond to that mock complaint in two words: Complaint dismissed. The caselaw states that no one can 'induce' unlawful acts that have already occurred.

Consider this - IICA passes and several months later the iPod is released.  Do you think that Apple would not be the defendant in a lawsuit considering the current language of IICA?  It is clear that they would not only be targeted, but that their "Rip, Mix, Burn" campaign may well have been enough evidence to meet the general intent level necessary for a finding of inducement to infringe.  Hatch's position, as quoted above, does not defend a product that induces more infringement than has already occurred. 

So in one or two years when the iPod becomes available with a 200 gig harddrive, much more music than the average person owns, is that going to induce more infringement?  Maybe we'd learn the answer to that in court thanks to IICA.

No, there has been no exposure of a bunch of 'Chicken Littles' that has damaged credibility. When one must, one fights fire with fire. While IICA's authors were fully prepared to launch their campaign for support of the bill based on accusations that the P2P nets were to blame for child porn and other criminality (IICA  was originally to be called the "Inducement Devolves into Unlawful Child Exploitation Act"), the opponents of the bill had to figure out how to draw the public's (and the media's) attention to IICA's problems.

The answer for anti-IICA activists to draw attention to their comments was to use the image of Congress taking your iPod away. Was this whole campaign some big lie? No way, any product similar to the iPod that is developed after the passage of the INDUCE Act will be at risk of a suit because of the current broad language IICA.

The language of IICA is now being rewritten because of the great opposition to the bill, but that opposition didn't materialize out of thin air. It was created based on the work of activists who researched the issues and spread the truth about IICA - that it threatens to stifle technological innovation in devices capable of copying content.  That some of those activists sought to illustrate the threat to technological innovation via a metaphor people could relate to is no crime, it is in fact a testament to the resolve, creativity, and intelligence of those activists.

In fact, the only reason the 'Chicken Little' accusations can even be made is because activists worked so hard to bring IICA to everyone's attention, including those who now accuse them of overstating their case.

There is more on this issue at Ernie the Attorney and at The Importance of, here and here.  There is also more at the newly renamed Invent Blog.

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