Technology doesn't commit infringement, people do!

Another addition to Hatch's hit list: the pencil. Dave Webb explains in this op-ed piece in IT Business Canada.

Suppose someone in the marketing department at Dixon Ticonderoga slipped off the rails one morning, and thought he might increase sales by adding a flash to the front of the box: "Can be used to copy out Tom Stoppard plays - longhand!" The law drops on the good Ticonderoga people like a ton of Staedtler Mars Plastic erasers (white, product No. 2630), and they're sued out of existence by Tom Stoppard - and, naturally, the Recording Industry Association of America and the Motion Picture Association of America.

Absurd, yes? [it certainly is - meaning both the reality of the situation and this very absurd example, but anyway, moving on] ... The Inducing Infringement of Copyrights Act of 2004 could ban technologies that encourage copyright violation. But of course, as sponsor Orrin Hatch ... would tell you, it's All About The Children.

"It is illegal and immoral to induce or encourage children to commit crimes," Hatch said in a prepared statement, no doubt marked up with cues for weepy violin swells. "Some think they can legally lure children into breaking the law with false promises of 'free music.'"
...
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.

Op-ed here.

I really like this soundbite/theme here: why punish the tech industry, an entire sector of the US economy, and law abiding citizens when it is only certain people who are misusing these technologies to commit crimes?

When convenient, a basic tenet of conservativism in the US is that people should take responsibility for themselves and not rely on the government or business (ex: "guns don't kill people, people do," cutting taxes and social programs, etc.). It seems like in the case of IICA, Orrin Hatch feels like everyone should be punished.

RIAA and MPAA show their true colors in opposing a more narrowly drawn version of IICA

The WIRED article titled Induce Act Draws Support, Venom contains a great quote from Fred von Lohmann of the EFF concerning the newly proposed, and much more narrow, Don't Induce Act:

"The act's proponents [RIAA & MPAA] have emphasized that they only want to target 'rogue' P2P companies while leaving the Sony Betamax decision intact, so the technology associations have drafted a bill that takes them at their word," said von Lohmann. "Of course, the RIAA and MPAA will predictably complain that the language is too narrow, which will then beg the question -- who else did they want to target with this legislation? How many legitimate technology companies do they want swept up in the web of legal uncertainty created by this bill?"

Fred has a good point. The "Don't Induce Act" would kill off the P2P nets and other "bad actors," which is exactly what proponents of IICA said they wanted when they testified at the IICA hearing. [Links to all the testimony here.] They have already reacted negatively to the new proposal according to Ernest:

MPAA vice-president Fritz Attaway says the alternative is much too narrowly drawn, and the proponents are "not being honest here." Of course, the MPAA is scrupulously honest in all its claims.

Mitch Glazier of the RIAA is also critical but surprisingly positive about having an alternative:

"I don't think this as written is a reasonable proposal," he said. "I don't think that as written anyone could be found liable...But I'm glad that people are trying to draw the line between the good guys and the bad guys."

How the supporters of IICA react to the narrowed proposals show their true colors. What they actually seek is the power to veto any technology capable of copying, the broader the Induce Act is written the better from their perspective. They don't actually only care about getting bad actors, they want to stifle/control technological innovation into mixed-use devices capable of copying by all actors. This is pretty short sighted considering how things turned out with the VCR. We're still waiting for a new proposal by IICA supporters, stay tuned.

Strange Bedfellows

Joining groups like the Consumer Electronics Association, the American Library Association, Public Knowledge and DigitalConsumer.org, the Heritage Foundation, a conservative thinktank, is also troubled by the scope of the proposed IICA. Norbert J. Michel discusses Internet File Sharing: The Evidence So Far and What It Means for the Future:

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.

Similarly, regulation of devices and software should also be rejected. While technology mandates could reduce unauthorized copying, such rules would also stifle innovation. Whatever happens in Washington, the ultimate solution may be a private one, with copyright owners using new technologies to make unauthorized copying of works more difficult.

(via Boing Boing)

WIRED is all over the IICA situation, demonstrating that anti-IICA sentiment is now very mainstream

There have been two articles about IICA on WIRED.com these last two days. The anti-IICA feelings are really going mainstream at this point. It would be difficult to find a techie net-head or even a regular old news junkie who hasn't heard about it.

The first, Copyright Bill Needs Big Changes, basically states what we at the Induce Act blog (and other anti-IICA activists) have been saying all along - that IICA is a killer for innovation in the tech industry. The article mentions the newly proposed "Don't Induce Act."

The Consumer Electronics Association, the American Library Association, Public Knowledge and DigitalConsumer.org, along with other technology and consumer groups, recommend amending the legislation so "only someone who distributes a commercial computer program that is 'specifically designed' for wide-scale piracy on digital networks could be held liable for copyright violations," according to a press release. ISPs, venture capitalists, credit card companies, banks, advertising agencies, IT help desks and librarians would be exempt from liability. The proposed alternative would also codify the 1984 Supreme Court Sony Betamax decision, which found that products capable of substantial non-infringing uses, such as home video recorders, are legal.

Even Librarians are against IICA:

"We, along with a number of other consumer groups, are very concerned about Senate bill 2560, which we feel will quash innovation and creativity and the fair use of these technologies," said Emily Sheketoff, executive director of the Washington, D.C., office of the American Library Association. "The answer to protecting copyright is not to stop developing new technologies. The answer is to educate people on how to use these technologies properly and encourage people to use these technologies properly." "There are many legal, legitimate file-sharing activities," Sheketoff said.

The other WIRED article is titled Induce Act Draws Support, Venom.

Put forth by Sens. Orrin Hatch (R-Utah) and Patrick Leahy (D-Vermont), the bill has been ridiculed by techies as so poorly written that it could unintentionally ban an infinite range of everyday tools - iPods, DVD burners, even paper and pencil.

The article notes that time is running out for us to deal with IICA in a reasonable manner. If this congressional session nears it's end without a new version of IICA that everyone can deal with the original version could be passed.

With the present congressional session due to end in October, time for debate is running out. The coming two weeks may be the last chance for both proponents and opponents of the bill to make their voices heard.

In an apparent reaction to widespread criticism of the current draft of the bill, Hatch solicited help in drawing up alternative language. A number of groups have responded: One coalition proposed a counterpoint "Don't Induce Act," and a wide array of technology and free-speech advocates have developed others.

Entertainment industry organizations that back the bill in its present form, including the Recording Industry Association of America and the Motion Picture Association of America, have not submitted alternate proposals. "There's no way this is passing in its current form -- it can't go anywhere if you have everyone but content industries against it," said Public Knowledge President Gigi Sohn, whose group was among those that released alternatives to Induce this week.

"Don't punish technology," said Sohn. "If the intent is to get at bad actors who know their tools are used for copyright infringement and promote it for that purpose, with that as their business model -- the act must be written accordingly."

The article also notes that Marybeth Peters has been put in charge of collecting input the new version of IICA. But of course there is the problem that she fully supports the original version and thinks the Betamax doctrine (what allows us to have VCRs) should be overturned - all of which she stated during her testimony during the IICA hearing. That's not good.

During Senate hearings over the Induce Act in July, the U.S. Register of Copyrights Marybeth Peters -- an Induce supporter -- said she believed new legislation should modernize the precedent set in a 1984 Supreme Court decision addressing the legality of the Sony Betamax. The court ruling, which protected technologies "capable of non-infringing uses," should be "replaced by a more flexible rule that is more meaningful in the technological age," Peters said.

We need to keep the pressure on and keep talking about IICA's many problems. Shout it from you roof top, barstool, or fire escape!

This article ends with a great quote by Fred von Lohman that deserves its own post, see above.

Group offers alternative to P2P bill

Group offers alternative to P2P bill: "SBC Communications, Verizon Communications and the Consumer Electronics Association (CEA), are fighting back with their own proposal that will be sent to Capitol Hill on Tuesday afternoon.

Their proposal, dubbed the "Don't Induce Act," is designed to provide the Senate with an alternative that's less threatening to the industry. It is far narrower, saying that only someone who distributes a commercial computer program that is "specifically designed" for widescale piracy on digital networks could be held liable for copyright violations.

. . .
The Don't Induce Act describes three requirements that would have to be met before a software distributor could be found liable: The "predominant" use of the program would have to be the mass, indiscriminate infringing redistribution of copyrighted works; the "commercial viability of the computer program" would have to be dependent on revenue derived from piracy; and the software distributor would have to have "undertaken conscious, recurring, persistent and deliberate acts" to encourage copyright infringement.

The proposal would also indemnify venture capital firms, payment services, financial services, Internet service providers, librarians and e-mail utilities. If the measure becomes law, anyone filing a "baseless lawsuit" under the Don't Induce Act could be heavily sanctioned with damages that are triple what would normally be levied." [By Declan McCullagh, CNET News.com]

Ernest has the letter.

What's Wrong with the Induce Act

Richard Koman has interviewed Ernest about What's Wrong with the Induce Act.

Will Grokster go to the Supreme Court?

Tim Wu over at Lessig Blog thinks that the Grokster case will go to the Supreme Court. It would certainly be interesting to hear what the Supreme Court would have to say about it, considering that it would be a great oppurtunity to drop hints about it's stance on IICA.

Check out Lessig Blog this week, Superstar Judge Richard Posner has been posting there about fair use issues.

Universities taking more steps to limit student use of P2P nets

Universities are taking more steps to limit student uses of P2P nets by setting up firewalls and using programs that scan traffic and automatically suspend student accounts if they are using P2P.

Universities will have much more to worry about if IICA is passed. So far the RIAA and MPAA have only been able to threaten indivudual students with lawsuits, but if the Induce Act passes the schools themselves may be on the hook for millions of dollars in damages for inducing infringement by providing the means to download music quickly.

SF Gate article here.

Bainwol on Induce

In response to an editorial cautioning against a rush to litigate away new technology, In-House Advice (see NY Op-Ed Praises CBO Report), RIAA Chairman Mitch Bainwol writes a Letter to the Editor in today's NY Times: 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.

See also Bainwol's testimony at IICA hearings.

INDUCErs: Tim Berners-Lee & Al Gore

Damon Lindsay at spectatorconsumer says "P2P networking is the epitome of substantial non-infringing use" and to hold otherwise would be to illegalize the entire internet. (Appeals court upholds legality of P2P software) (ed. I don't think I'm putting words in his mouth, but it is late)

Ya hear that Hatch?!

Legislating from the Bench

Judge Sidney R. Thomas writes:

The Copyright Owners urge a re-examination of the law in the light of what they believe to be proper public policy, expanding exponentially the reach of the doctrines of contributory and vicarious copyright infringement. Not only would such a renovation conflict with binding precedent, it would be unwise. Doubtless, taking that step would satisfy the Copyright Owners’ immediate economic aims. However, it would also alter general copyright law in profound ways with unknown ultimate consequences outside the present context. (emphasis added)

Good argument against IICA as well. See METRO-GOLDWYN-MAYER v. GROKSTER (2004) [html].

See also: Tim Wu -- Sup Ct cert?

INDUCEr: cafepress

Create your own Republican National Convention discount pins using Cafepress.

See NYC Welcomes Peaceful Protesters.

Will victory be bittersweet?

Seth F. thinks so. See MGM v. Grokster appeal victory will bringeth The INDUCE Act: "the Supreme Court has admonished us to leave such matters to Congress..."

Ninth Circuit Affirms Grokster

The Ninth Circuit Court of Appeals affirmed that P2P has substantial noninfringing uses and that Grokster and Morpheus are not contributorily or vicariously liable for copyright violations ocurring by users of their software in Metro-Goldwyn-Mayer v. Grokster (9th Cir. Aug. 19, 2004).

In the opinion, the court finds that P2P is capable of substantial non-infringing uses and so developers of decentralized P2P software are not liable for copyright infringement under current law. The court declines to play a role in regulating new technologies which have substantial non-infringing uses and advises judicial exercise of caution in regulating such technologies.

At the Induce Act hearings, proponents of the proposed IICA draft noted that the Ninth Circuit might find Grokster and Morpheus to be infringing uses and there would be no need for new legislation to regulate P2P. Register of Copyright Marybeth Peters testified that the District Court's Grokster decision was "wrongly decided" and that court misapplied the Sony and secondary liability doctrines in the peer-to-peer context. The Ninth Circuit not only affirms the District Court and finds that Grokster has substantial non-infringing uses, but argues that the judicial activism is not the proper way to affect significant changes in copyright law. The court cautions Congress to avoid overzealous regulation of new technologies which may impact the rights of copyright owners. Market forces, rather than acts of Congress may lead to the best equilibrium between interests of copyright holders and technology developers.

Further, as we have observed, we live in a quicksilver technological environment with courts ill-suited to fix the flow of internet innovation. AT&T Corp. v. City of Portland, 216 F.3d 871, 876 (9th Cir. 1999). The introduction of new technology is always disruptive to old markets, and particularly to those copyright owners whose works are sold through well established distribution mechanisms. Yet, history has shown that time and market forces often provide equilibrium in balancing interests, whether the new technology be a player piano, a copier, a tape recorder, a video recorder, a personal computer, a karaoke machine, or an MP3 player. Thus, it is prudent for courts to exercise caution before restructuring liability theories for the purpose of addressing specific market abuses, despite their apparent present magnitude.

Indeed, the Supreme Court has admonished us to leave such matters to Congress. In Sony-Betamax, the Court spoke quite clearly about the role of Congress in applying copyright law to new technologies. As the Supreme Court stated in that case, “The direction of Art. I is that Congress shall have the power to promote the progress of science and the useful arts. When, as here, the Constitution is permissive, the sign of how far Congress has chosen to go can come only from Congress.” 464 U.S. at 456 (quoting Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 530 (1972)).

Proponents of the IICA may see this as a call to action for why new legislation is necessary as soon as possible. Opponents of the IICA may see a reason for a slow and deliberate process to determine whether new legislation is necessary and what form of that legislation will provide the most equitable balancing of interests between copyright owners and technological innovators.

The Czech Republic is also concerned about IICA

Here is a great op-ed in the Prague Post concerning the Induce Act. The story even mentions Ernest/Hatch's hit list over at The Importance of. Seeing articles and op-ed's about IICA appearing all over the world demonstrates how important the issue really is, and not just to the US economy and its businesses and citizens.

Because the US is a major producer of pop culture, media content, and technological innovation, a bill such as IICA actually affects people everywhere. IICA will not only limit tech innovation and the spread of content in the US, but also abroad because it will limit what companies in the US can create and export.

A few short years ago, technology enthusiasts used to claim that technology moves too fast for the law to hold it back. Those predictions turn out to be overly optimistic. In fact, U.S. lawmakers trying to put a stop to one evil are likely to create dozens more with legislation about a field they don't fully understand. Vague language designed to catch potential technological workarounds can put a stop to innovation in completely unrelated areas.
...
Companies creating multipurpose technologies would have to be prepared to defend themselves against allegations of copyright infringement. To avoid that scenario, the Business Software Alliance has proposed changes to the bill, including a limit on frivolous lawsuits and a provision for products with legitimate commercial purposes to be exempted from liability. Faced with so many unintended consequences, the U.S. Congress needs to consider whether this solution to copyright infringement is not worse than the original problem. The digital music landscape could change next year, or even next month, in ways that the Induce Act would be unprepared to deal with. The law could undoubtedly cut off some avenues of technological innovation.

Prague Post article here.

Aussies saying no to IICA

The Aussies don't want the Induce Act either.

One of the many unknowns lurking in the depths of the free trade agreement (FTA) forged between Australia and the US is how it may affect our technological and musical freedoms. Those who like to wear braces with their belts seem gloomy about the prospects. They fear that US laws, such as the widely criticised Digital Millennium Copyright Act and an even more draconian piece of legislation called the Inducing Infringement of Copyrights Act (Induce Act), now pending before the US Congress, could be sneaked into Australia through the agreement.

Article here or here.

thanks for the coverage

Christine Boese (An act that induces a lot of reactions) has found plenty of good information on the INDUCE act in "the popular media, the full text of the bill, a demonstration of what a lawsuit filed under the Act would look like at the Electronic Frontier Foundation and even a Web site called savetheipod.com. But [she wants] to consider a larger issue behind the so-called Induce Act: What makes a good law?"

The article she writes might as well be dated July 19, 2004. Ernest, myself and others have been covering the Induce Act (IICA) for almost a month now with daily posts, while considering the larger issues. I mean it's clear that she hasn't even seen the amazing Hatch's Hit list (now serving #29). A simple google search for Induce Act discovers both importance and this site in the first 10.

great job in Anti-Piracy, LA

Sony Pictures Entertainment: Analyst - Anti-Piracy, LA:
The function of the Analyst is to act as the subject matter expert on Internet anti-piracy,including managing technology vendors who monitor piracy networks. The Analyst will determine the sources of piracy, identify infringing activity and automate responses to such infringing activity. The Analyst will also be responsible for monitoring pirate channels to understand emerging trends and reporting findings to management on a regular basis. The Analyst will oversee deployment of anti P2P technologies to minimize the efficacy of pirate channels.

Please reference Digital Media Jobs Blog. [Aug.19: Link]

Senators seek consensus on IICA

Senate Republican leader Sen. Bill Frist, R-Tenn., Democratic leader Sen. Tom Daschle, D-S.D., Judiciary Committee chairman Sen. Orrin Hatch, R-Utah and the committee's senior Democrat Patrick Leahy, D-Vt. have written a letter to Register of Copyrights Mary Beth Peters "to schedule a series of high-level meetings with copyright owners like the record companies and movie studios, people who run peer-to-peer networks and technology companies in an effort to build a consensus for the legislation." [Hollywood Reporter]

We do recognize, however, that some technology companies are concerned that claims for intentional inducement of infringement might be misused frivolously against entities who distribute legitimate copying devices or programs such as computers, CD-burners, personal video recorders, e-mail services, etc. We are open to any constructive input on how Congress can best frame a technology-neutral law directed at a small set of bad actors while protecting our legitimate technology industries from frivolous litigation.

There is little dispute that entities intentionally encouraging and promoting widespread infringement should be held secondarily liable for the infringement they intend to induce. The imposition of such liability is particularly appropriate given that much file-sharing software automates the redistribution of infringing files so effectively that people making hundreds of works available for distribution to millions of persons around the globe can testify that they had no idea that they were engaged in the massive, global redistribution of those protected works.

[W]e remain open to other approaches ... to attempt to achieve consensus proposals [by Sept. 7].

Akonix Blocks BitTorrent File Sharing

businesswire [via]:

Akonix Enforcer protects corporate networks from the business and security risks associated with P2P file sharing. Swapping P2P files drains bandwidth and exposes organizations to risks posed by virus infections and hacker attacks using security loopholes. Employees can also inadvertently share files containing sensitive information, and the P2P application installer may automatically share files or folders -- including password files -- without the user's knowledge.

A July 2003 research report by AssetMetrix on P2P activity found that Web-based file sharing by employees occurs in over 77% of organizations. In an analysis of 175,765 PCs in 560 companies, 6,764 were found to have P2P programs installed.

"In today's corporate environment, there are very few legitimate business uses for consumer P2P file sharing," said Michael Osterman, president of Osterman Research. "Unauthorized activity within an enterprise network creates situations in which companies run the risk of security leaks or illegal activity. Products like Akonix Enforcer allow IT departments to block and monitor all P2P activity, removing another security concern from IT managers and freeing up network bandwidth for legitimate business communications."

NYT op-ed praises CBO report

Jason Schultz says that the NYT "has a wonderful Op-Ed on copyright this morning (In-House Advice) praising the recent Congressional Budget Office report on Digital Copyright for its even-handedness and slamming Congress for kowtowing to the RIAA on the INDUCE Act."

Inducing Unintended Consequences for Libraries

Newton Minow, who drafted an amicus curia brief on behalf of the American Library Association during the Sony Betamax case, has a post (Inducing Unintended Consequences for Libraries) on Mary Minow's LibraryLaw Blog discussing the case as well as why the INDUCE Act is bad for libraries and society at large.

Substantial Non-Infringing Public Knowledge Use of P2P

OutragedModerates.org, which was recently featured in Wired and makes more than 600 government and court documents available for download through P2P networks, is now also hosting a bit torrent of their Download for Democracy project.

See also: Downloading for Democracy and How to use p2p to Share Verifiable Government Documents.

INDUCEr: J.D. Lasika

Mr. Lasica runs a site called darknet:

('därk-net) n. The collection of networks and other technologies that enable people to illegally share copyrighted digital files with little or no fear of detection.

as well as a to be published book Darknet: Remixing the Future of Movies, Music and Television that "details the rise of the personal media revolution and the escalating conflict between entertainment companies and individuals using digital technologies." (btw-I'm just kidding about that k, J.D.)

I imagine it's also possible that J.D.'s other forthcoming project Open Media, a soon to be launched open source media project that will attempt to foster grassroots media and spread users' creations to people's desktops through open standards, may also be a potential INDUCEr.

Substantial Non-Infringing Scientific Use of P2P

Peer-to-Peer Gets Life Science Tryout: IT consulting company that focuses on the life sciences, is tapping the benefits of peer-to-peer technology to make it easier for life scientists to access and share informatics data.

Specifically, the company has combined a peer-to-peer (P2P) information exchange layer with an intelligent user interface to enable researchers to access informatics databases.

Hatch's Hit List #24

Ernest says that USPS is an INDUCER because it has authorized Stamps.com "to let you use your own photos to create stamps."

If you saw my Stamp Art post yesterday, specifically my link to this (which Denise also linked to wihout a NSFW) then you'd know that he's right.

INDUCERS: Federal Prisons

Prison Pete (currently an inmate in a Federal Prison in West Virginia) says

For example, one function of my job is printing the worksheets for our GED program. Several of the workbooks I copied are about 48 pages in length, and using the 11 x 17 paper, it takes twelve sheets of paper.

Each of the books contains the standard copyright notice saying basically, "making any types of copies is forbidden by law".

I might add that the law in this case happens to be a Federal statute. [via Biz Stone]

Clearly the federal prison system is an inducer because they won't buy the prisoners enough books to study for their GEDs which in turn forces Prison Pete (a computer programmer before his "career change") to make copies and thus violate federal copyright laws.

Congressional economists tackle copyright issues

The Congressional Budget Office has released a new study on digital copyright issues outlining a set of principles for lawmakers that's largely focused on avoiding being tied too closely to past practices or to the interests of powerful companies or consumer groups. [News.com]

See: Elizabeth Rader (Copyfight) on the CBO study:

The report is really quite a good overview of the copyright debate, which points out the complexity that many persuasive writings on the subject try to avoid. This certainly shows hill types that there's a lot more to copyright issues than can be captured in 2 page letters ranting about piracy. That said, the report is, intentionally, limited to economic perspectives. There's no discussion of the effects, for example, of labelling millions of children criminals, and very little about upsetting consumers' reasonable expectations about what they can do with media they possess.

See also: CONGRESS SHOULD IGNORE COPYRIGHT'S 'VESTED INTERESTS,' CBO URGES [CONSUMER ELECTRONICS DAILY]

Any revision of copyright law should ignore "the vested interests of particular business and consumer groups," a Congressional Budget Office report recommended, and instead focus on achieving a balance between intellectual property protection and consumer perceptions of fair use."Copyright Issues in Digital Media," released earlier this week (CED Aug 12 p4), made clear it was impartial on proposed legislation, but warned that modifying copyright law could have unintended consequences. Much of the report focuses on the argument that forbearance by Congress might give the affected industries time to craft digital rights management (DRM) solutions offering differentiated pricing models -- solutions CBO said would benefit copyright holders and consumers.Congress is being urged to find that copyright balance, CBO said, "but it cannot provide unambiguous conclusions about the best weighting of the interests of copyright holders and consumers." The reason, the report said, is that to declare a policy the best approach "implies a distribution of returns based as much on what is fair as on what is efficient. Economics does not provide answers to questions of fairness." CBO acknowledges a lot of money is at stake, but says changes should be based not on industry arguments about harm they might suffer, but on creating "efficiency in markets for creative goods and other products."

Very bad opinion piece in WSJ.com

WSJ.com (Internet Pirates) says that it's better to continue suing consumer / "pirates" rather than attack the p2p networks:

The better legal tools to stop file traders are hidden in plain sight, in pre-Internet U.S. copyright law. "Willful" infringement -- when the copier knows, or should know, that he's over the line -- carries a statutory penalty of $150,000 per illegal copy. The content industry can also continue to sue individual pirates. With penalties this high, it doesn't take very many suits to substantially increase the expected cost of pirating an album or film.

Umm... No. Consumers using p2p networks are not pirates or competitors. Unless they are mass producing albums and selling them on the street corner they should not be liable for willful infringement. Certainly not for file sharing.

Another Downhill Battle BitTorrent Demonstration

Downhill Battle: Downhill Battle [is a] big fan of BitTorrent-- a filesharing technology that decentralizes the distribution of large files from websites. Last week we launched p2pcongress.org to distribute video from Congress's hearing on the INDUCE Act.

And today, we're announcing:

http://www.sp2torrent.com

It's a site that links to BitTorrent files of the Windows XP Service Pack that Microsoft has announced. Microsoft is limiting their release of this update due to bandwidth concerns, and we're taking this chance to show that p2p technology can get the file out to anyone who wants it, without massive server requirements. We're not doing this to help Microsoft (believe me), but rather as a demonstration of why p2p is valuable.

And if you haven't seen our plans for Battle Torrent, a software program that we're developing which would make BitTorrent as simple as blogging, check it out.

Boucher on IICA

Guest-blogging at Prof. Lessig's, Rep. Rick Boucher (D-VA) seeks feedback about the IICA-- on what effect the bill would have and how to act if a similar bill is introduced into the House: Induce No More:

The Senate has under consideration a bill ( S. 2560 ,, often referred to as the Induce Act) that makes it unlawful for anyone to “intentionally induce” the infringement of a copyrighted work. By creating a new cause of action based on a subjective test, the legislation would overturn, or at least make irrelevant, the Supreme Court’s objective test in the Betamax case (“capable of substantial noninfringing use”). The effect on device manufacturers, including computer manufacturers, would appear to be self-evident: They could not bring new multi-purpose devices (including software) to market without facing the threat of crippling litigation. They would either have to withhold from the market useful new technology or agree in advance to restrictions on the functionality of the equipment, perhaps even agreeing to specific technical mandates sought by content owners.

The Future of Music Coalition Against the INDUCE Act

Future of Music Coalition has come out against the Inducing Infringement of Copyrights Act by means of a letter to members of the Senate Judiciary Committee (The Need to Strike a Balance: INDUCE Act Attempts to Protect the Content and Attack the Technology). [via Ernest Miller & Creative Commons]

The INDUCE Act Harms National Security

Ernest Miller: "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."

Inducing Innovation

Tim Wu has posted a pdf of the Inducing Innovation Act -- the Induce Act if it balanced the interests of copyright owners and technological innovators -- over at Lessig. Comments welcomed.

P2P Congress

P2P Congress seeks to prove that peer-to-peer file-sharing technology can be used for a substantial non-infringing purposes. The project aims to distribute video and audio of recent Senate Judiciary Committee hearings on the Induce Act -- using the very peer-to-peer networks the bill seeks to outlaw. [Wired]

IICA info round up

A round-up of other IICA news today:

In "The Presidential Election, Copyright, INDUCE Act (IICA) and Tech Policy" at The Importance of, Ernest Miller notes that the copyfight movement is not yet strong enough to force presidential candidates to take positions on bills such as IICA. He also discusses Kerry's mixed voting history when it comes to tech issues.


In "Higher Education Groups Oppose INDUCE Act," Ernest points out an interesting article in the Daily Texan. The article notes that three groups representing major U.S. universities have written a letter to Sen. Hatch concerning the proposed INDUCE Act. The universities are concerned that IICA is overbroad and threatens universities that provide students with high speed internet access, something which it could be argued induces copyright infringement. The 2 page letter is available here (PDF).


The EFF has written a letter to Congress about IICA proposing "an industry-led collective licensing solution that would ensure compensation for copyright owners while minimizing the need for governmental intrusion into the digital music marketplace." EFF letter here, via Slashdot.

BSA lays out vision for rewritten IICA

Robert Holleyman, the head of the Business Software Alliance (BSA) and one of the witnesses at the recent IICA hearing, has issued a policy statement urging Congress to take a close look at IICA. The BSA press release can be obtained here. In the BSA press release Holleyman lays out a vision of the IICA they'd like to see:

In its policy statement, the BSA says the bill should:

1) Clarify that multipurpose technology products that can be used for commercially significant, legitimate purposes are not subject to liability. BSA suggested that the bill clearly state that the Supreme Court's decision in the Betamax case is unaffected.

2) Clarify that to meet the intent standard of the bill, an actor must be shown to have engaged in conscious, recurring, persistent and deliberate acts demonstrating that the acts
caused another person to commit infringement.

3) State specifically that mere knowledge by a developer of technology, or knowledge by a provider of a service, of the infringing acts of another person using that technology or
service is not sufficient to demonstrate the requisite specific intent.

4) Clarify that the bill does not create liability based on advertising or on providing support to users, including instructions for using the technology provided through manuals or handbooks, nor by providing assistance for using a product through a company's online help system or telephone help services.

5) Develop a mechanism to ensure that weak, harassing or frivolous lawsuits are not heard by the courts, by establishing a way to ensure such cases are not brought without some prior review for its merits.

These suggestions sound fantastic, but the truth is that the INDUCE Act will not be very useful to content providers if all of these common sense provisions are provided for in it. One of the main problems with IICA is that without a general intent standard it really will not change the copyright law much. Congress needs to find a way to write IICA so that it kills off the P2P nets while utilizing a specific intent standard, that will be difficult. If IICA is written with a general intent standard and without the BSA suggestions it will be overbroad and threatens to stifle innovation in the tech sector.

Article: Industry Alliance Takes Stance on Induce Act, in TechNewsWorld.

New IT industry lobbying organization needed?

Jim Rapoza writes in "IT Advocacy Group Still Needed", in eWeek, that the IT industry completely lacks the sort of lobbying organization necessary to fight off dangerous proposed laws such as IICA. He envisions:

...an organization with the same clout in Washington that groups like the American Association of Retired Persons or the National Rifle Association have. There are lots of small groups that speak for different segments of IT and IT causes, but none that has gained any great measure of influence.
...
Industry titans could subtly remind legislators of the economic might of the technology sector, which dwarfs what the movie and music industry add to the U.S. economy. Major employers could let lawmakers know about the potential negative fallout some of these laws could have on their ability to be productive contributors and employers in their respective districts.

The sheer size of such an IT advocacy group, which would easily dwarf groups like the NRA, could be persuasive in Washington. It could have the resources to tap powerful lobbyists and representatives.

If in fact the IT industry does not have a major lobbying group, then this sounds like an idea that is long overdue despite slightly differing interests of actors in the tech sector on certain issues. An law like IICA is one that is bad for the IT industry as a whole and is best fought by a single strong voice.

Rapoza wants to help in the formation of such a group and asks IT workers and managers to contact him with info for a future article.

Article here.

The File Sharing Database

The File Sharing Database [via] is an attempt to catalog financial figures with regard to how much revenue the RIAA, MPAA, and SPA have gained via file sharing.

The file sharing database consists of a list of items and prices which contributing users would not have otherwise purchased if they had not first downloaded/shared identical or related files.

The ultimate goal is to show what, if any, revenue these industries should credit to file sharing

The purpose is to also convince these organizations that their money would be better spent taking advantage of this market rather than trying to exterminate it.

We would never say no to you

According to the comments to this post on bIPlog (INDUCE Hearing in MP3, OGG) the following line by Marybeth Peters, Register of Copyrights, "We would never say no to you", was edited dropped out during the stream capture of the from the induce.wmv. [via]

When I first watched the movie, I just thought whatever was spoken by her that had the Committe in an uproar was just inaudible, but apparently no matter how many times I listened to it I wasn't going to hear it since it had not been captured been edited out.

Peter Lopez has the missing chat here and Tom Barger explains the technical problems here.

Listen to the mp3 if you'd like to indulge in Hatch and Peters flirtations.