Tuesday, October 26, 2004

More on Me2Me and Induce

During the morning panel session at the 2004 Consumer Electronics Association's Industry Forum, CEA President and CEO Gary Shapiro stated:

"We are in danger of slipping into the abyss of a pay-for-play world. In the past 20 years we have seen content companies dramatically shift into more protection battles. We need to continue to advance the understanding that intellectual property and real property are NOT the same thing."

Professor Lessig followed the morning session with the luncheon keynote at which he discussed DRE or 'digital rights expressions'. DRE, as Lessig explained, are copyright rules that are machine-readable but not machine enforceable; Lessig also outlined the four main advantages of DRE: may be used across platforms, allows the user to respect fair-use, encourages an explosion in the market place and allows for unexpected uses. Professor Lessig challenged Industry Forum attendees to think about the extraordinary potential of technology without restrictions.

Monday, October 25, 2004

Wharton on Induce

From a business perspective, Induce-like legislation goes "against logic and common sense." Knowledge@Wharton: The Beat Goes On: This Recording Industry Bill Would Trap More than Just Illegal File-sharers
Stung by court decisions limiting its efforts to curtail file sharing, the recording industry says it needs legislation that would allow it to cast a wider net in its battle against illegal downloading. Proponents of the legislation also say it would protect intellectual property and encourage artists to create new work. Wharton faculty and technology companies, however, argue that it would stifle innovation and investment in technology. "There's no logic to this legislation," says Wharton marketing professor Peter Fader. "It goes against a lot of court decisions and common sense."

EFF's Wendy Seltzer on Induce

Engadget readers interview Wendy Seltzer, an attorney with the Electronic Frontier Foundation and a fellow at the Berkman Center for Internet & Society at Harvard Law School. More here.

Sunday, October 24, 2004

Jason Schultz on Induce and Me2Me

Jason first asks himself: "Why were the RIAA and MPAA so insistent during the negotiations on a broad technological definition?"

Then he offers an answer (note: please read his entire post):
The reason, of course, is that INDUCE is not really just about P2P apps. It's about the future of all distribution technologies and in particular, about what I like to call "Me2Me" apps. As network and distribution technologies evolve, they offer consumers and computer users more and more control over their own media.


This is, of course, the RIAA and MPAA's worst nightmare. Both industries have based their business models on controlling each and every permutation of playback for their content.


Me2Me technology, however, would be much much harder to outlaw. Many Me2Me uses would arguably be fair or non-infringing uses. For instance, they tend to be private uses involving only family or friends. Many would involve use of media legitimately purchased by both the sender and recipient of the content (i.e. oneself). Thus, under current copyright law, it would very difficult to outlaw any of them. It would also be difficult to chastize them politically in front of Congress.

This is why the battle over DRM, the Broadcast flag, and now INDUCE has become so important for them. If the RIAA/MPAA wait too long, more and more platform distribution technologies with primarily legal uses will come to market and undermine their case for outlawing specific architectures. As these technologies take hold, public and political sentiment will continue to grow against harsher restrictions and enforcement and more toward allowing and embracing such technologies. Thus, the window of opportunity for the content industry to pass a restrictive law like INDUCE is very short. They must act now (dare I say pre-emptively strike?) while they can to frame the targets as a bunch of "bad" actors (i.e. the P2P companies) before too many "good" actors (i.e. Me2Me products and services) infiltrate the market and obfuscate the ability to outlaw one architecture without threatening the others.
LawGeek, INDUCE's biggest threat: Me2Me apps (10/24/04)

see also: Copyfight: More on Me2Me - Market No Savior (Donna Wentworth)

Friday, October 22, 2004

Current patent bills and the marketplace

Promote the Progress Blog has a post today on "two bills were introduced that relate to the patent system and its effects on the prices charged for products," namely H.R. 5036 which seeks to extend the term of US RE 38,014 (MagLite flashlight) and H.R. 5155 which seeks to "increase public-sponsored research so that privately-developed drugs would have to compete more with drugs developed with public money." See the PTP post for the complete scoop on these two bills.

Thursday, October 21, 2004

Coverage of Cato Event

Wired News: Toe-to-Toe Over Peer-to-Peer: "At least one record industry representative predicted that [major label-sanctioned] P2P services will start to proliferate in the next several months."

Copyfight: Whatever Happened to the Induce Act?

For info on the event and a link to a video stream, see Kevin's post from yesterday: Cato on the Induce Act.

Wednesday, October 20, 2004

Cato on the Induce Act

If anyone attended "The Next Big Thing in Copyright? The Induce Act and Contributory Liability" policy forum at the Cato Institute today and has a report, please leave a comment.

The panel featured: David Green, MPAA; Markham Erickson, NetCoalition; Gigi Sohn, Public Knowledge; Mitch Glazier, RIAA; and Adam Thierer, Cato Institute.

update -- Here's a link to the archived video from yesterday's event at the Cato Institute: http://www.cato.org/event.php?eventid=1670 [via politech]

Tivo CEO on the Induce Act

Lasica Interviews TiVo CEO for Engadget Interview Series

Lasica: "Should the FCC be in the business of regulating new technologies like this one?"

Mike Ramsay: "Definitely not. It’s scary when you feel that you have to go to the FCC for permission to do something. So we’re not very comfortable with that. I think the broadcast flag stuff is less onerous than some other things, like the INDUCE Act. That we’re much more concerned with because that could lead to prosecution of individuals who induce copyright infringement. That just opens up a whole can of worms. If you upset consumers enough, they’ll become pirates, and that law has the potential to do that.

You’ll notice that everything on the table in Washington being pushed by the media companies doesn’t target regular television. It’s targeted at things like ripping DVDs, how long you can keep movies pay-per-view movies, and so on."

Tuesday, October 19, 2004

Bush Talks Tech with PC World

PCW: Do you support Senator Orrin Hatch's Induce Act?

Bush: My Administration has not endorsed the Induce Act, however, we strongly support efforts to protect intellectual property and will continue to work with Congress to ensure intellectual property is properly protected.

More here.

related: Furdlog points to Declan who stretches to say that Kerry might defang the DMCA.

Friday, October 15, 2004

Glickman to Film Industry: Nurture New Technology

"Dan Glickman, the new head of the Motion Picture Association of America, gave his first major speech after taking office -- he said the industry must embrace new digital and Internet technologies while continuing to battle copyright pirates.

Early next year, he intends to travel to Silicon Valley in northern California and other technology centers to hear the concerns of hardware and software makers... Glickman said the MPAA would continue pursuing lawsuits and criminal complaints when necessary, but added he would also listen to technology leaders and "try to find common ground."

[reuters via Paid Content]

Tuesday, October 12, 2004

2560 and 2391/4077 dead ... for now

2560 Induce is dead for this session of congress which adjourned last night, while Intellectual Property Omnibus (HR 2391), which includes HR 4077, is on hold thanks mostly to Senator McCain. See his floor statement.

Lawrence Lessig sends us to timeout

Lawrence Lessig has chastised all of us for paying too much attention to fighting the Induce Act while plenty of other bad news copyright bills have been passed this year. Ever the cynic (aren't we all), Lessig suggests that perhaps the Induce Act is a "weapon of mass distraction" meant to preoccupy copyfighters while the real action is moving through Congress one small change at a time. He specifically points to HR 4077, which includes the PIRATE Act, the ART Act, and the Family Movie Act among other laws, none of which are public domain friendly.

Luckily, as another recent post here points out, McCain has stalled out HR 4077 as well.

Mark Cuban donates 100K to help the EFF fight IICA

Mark Cuban always matches his NBA fines with donations to charity. He's recently given $100,000 to the EFF in order to aid them in the fight against the Induce Act. What a great guy! Almost makes me want to root for the Mavs...nah.

Via Jason Calacanis & Boing Boing.

Mark Cuban's blog can be found here.

Thursday, October 07, 2004

Dead, for now...

The AP reports: Senate Talks Fail on File-Sharing Software
Sensing an impasse after weeks of acrimonious debate, Hatch invited lawyers and lobbyists representing the sides to propose their own compromise in the waning days of this congressional session. But the sides agreed overnight that a compromise was increasingly unlikely given the tight deadline, according to participants in the talks who spoke on condition of anonymity.

Wired News: Induce Act Talks Sputter 
After four days of painstaking negotiations, technology and consumer groups said they have failed to reach a consensus with the entertainment industry on the language of the Induce Act, a proposed bill making it illegal to encourage copyright infringement.


Art Brodsky of Public Knowledge writes: "We’re pretty sure that Induce is dead for now. It died last night after a five-hour negotiating session between RIAA, MPAA and BSA presided over, at first, by Chairman Hatch himself. About 8 p.m., there was no agreement on a bill, and they folded up the process for now. There are no new talks scheduled."

Ernest Miller: "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]"

Tuesday, October 05, 2004

Latest Draft

Via Ed Felten, the latest IICA staff discussion draft: 10/1 Draft.

Among the highlights in this latest draft:
  • The bill directly addresses P2P, requires "conscious, affirmative acts to encourage infringement" and only imposes liability if "the majority of the revenues of the product or service result from covered infringement" and infringing copyrights is "the principal reason" for using the product or service
  • The act covers "widespread infringement of §106(3) by means of digital transmissions."
  • Prior to discovery, a court "shall determine, on an expedited basis whether the plaintiff has presented a prima facie case that the product or service is a peer-to-peer product or service and that the product or service results in covered infringement.

Susan Crawford on "bad" P2P

Susan Crawford makes an interesting point about IICA. The statute will attempt to create a twisted definition of what sort of P2P is illegal, this will almost certainly be over (or under) inclusive. As usual there will be other programs that fit the description but perform a function we would consider benign, or accomplish what the Induce Act hopes to end, but does not fall under the bill. Although this bill is already well on its way to passage, Crawford suggests a different approach for the future:

As the negotiations on the Induce Act continue, it's likely that there are people sitting in a room on Capitol Hill debating how to define "bad" P2P applications...It may be that we're taking the wrong approach to these questions. How do you describe code you don't like without sweeping in untold numbers of existing (and yet-to-be-created) innovations? Answer: You try really really hard and create tortured definitions, then hope for the best...
Maybe, instead of defining what code we don't like, we should define what relationships we don't approve of...
[S]omeone who wants to make money from
massive uploading of copyrighted works, but tries to avoid liability under standard copyright law, is creating a relationship with the marketplace that we may want to condemn.

Go, read the rest: Susan Crawford blog :: "Bad" P2P and Spyware

Friday, October 01, 2004

This Week in IICA News

Catching up on some developments from this week in the long schlep towards a resolution of the IICA efforts:

The New York Times reports: Panel Considers Copyright Bill
The Senate Judiciary Committee is now considering a bill that stands at the center of the file-sharing debate - the Induce Act, or the Inducing Infringement of Copyrights Act of 2004. It joins a torrent of other bills introduced in Congress and in state legislatures to address piracy of copyrighted materials. Negotiations on the bill's language are expected to continue today. A vote could come as early as next week.

Reuters reports: Controversy Delays Net Song-Swap Bill in Senate: "'If I have to, I will lock all of the key parties in a room until they come out with an acceptable bill that stops the bad actors and preserves technological innovation,' Hatch said at a meeting of the Senate Judiciary Committee."

The latest draft act has attracted many detractors and few supporters.

The EFF's Fred von Lohmann calls the current bill A Tax on Innovators:
Technology companies would find themselves under constant pressure from entertainment industry lawyers waving their newly-minted "inducement" law. This means many great products would be hobbled, and many others would never be built. Less flexible, less useful products means fewer sales, lower revenues. That's a tax on our nation's technology companies, a damper on earnings, a drag on competitiveness.

The Business Software Alliance, typically an advocate for strong enforcement of copyright law, joined with the Computer Systems Policy Project and Information Technology Industry Council to find flaws in the latest draft of the IICA. In a letter to Senators Hatch and Leahy, these groups support including the "Betamax doctrine" in the bill:
We believe that to implement your goal that legitimate products and technologies not be threatened, it should be made clear that technology products that can be used for significant legitimate purposes – in the copyright vernacular, substantial non-infringing uses – are not subject to copyright infringement liability. To this end, the bill should state clearly that the Supreme Court’s decision in the Sony Corp. v. Universal City Studios, Inc case is unaffected and the defenses to infringement in that decision are preserved. That decision has stood for 20 years, and technology companies and the marketplace have come to rely on it.

EFF's Jason Schultz reports that Technology and telecommunications companies and organizations uniformly oppose the current version of Induce: "Hatch has emphasized over and over that he wants consensus on Induce. I would say that now he has it: Don't Induce; Save Betamax."

Opposition to the IICA goes beyond the technology industry and activists to include conservatives. In a Washington Times op-ed, American Conservative Union executive director Richard Lessner opposes the IICA, calling it an Invitation to litigation. The American Conservatives Union is subtle in its criticism of the bill, concluding: "Compromising property rights and encouraging predatory, costly litigation is not a conservative position."

Law student John Lotfi is uncomfortable with the current wording of the legislation: BSA sides with the copyfighters. "Even I, a lowly 2L, can see that this devilish piece of legislation needs to be reined in or legitimate companies would go under and quite honestly, the advent of new technology would be handicapped."

Via Ernest Miller, Public Knowledge reports that an "All-Star" Drafting Team to Create New INDUCE Act (IICA) by Close of Business Friday (today).

The Computer & Communications Industry Association is not an "all-star," since it was one of the Major industry groups barred from meeting on INDUCE: "The Computer & Communications Industry Association, along with dozens of other commercial, consumer and non-profit interests, will not be participating. CCIA, which represent companies with more than $200 billion, in sales and 1 million employees worldwide, was specifically told not to appear last night by Senator Hatch's Office."