June 23, 2004  ·  Lessig

Senator Hatch (who used to understand stuff) has introduced the INDUCE Act, which will criminalize the act of inducing another to commit a copyright violation. This is a brand new theory of copyright liability, which, as this floor statement makes clear, is directed at overturning Sony with respect to p2p.

The proposal alone is troubling enough. But the outrageous part is that there is talk that this massive new layer of federal regulation of technology will happen without hearings — indeed, that it will be passed in the next weeks.

Whatever the merits of this new regulatory program are (and, imho, there are not many), it should not happen without an opportunity for Congress to consider the full implications of this new regulation. The ramifications of this reach far beyond p2p.

  • http://www.bengarvey.com Ben

    To me it looks like the key line from the INDUCE ACT is this one.

    including whether the
    activity relies on infringement for its commercial viability.

    P2P software could be made illegal if 51% of its transfers are illegal material. As I understand it now, it’s fine as long as it has legal uses even if the majority of people use it illegally.

  • John S.

    “including whether the activity relies on infringement for its commercial viability.”

    Well, P2P software doesn’t need to be commercial. Kazaa may be commercial but there are certainly other programs that are free/open-source.

    How are you supposed to read this (almost) law? When it says “including,” do you read that as “this is one thing you have to look at” or as “this is one thing you may look at, if it is relevant?” If the former, it seems noncommercial P2P software is off the hook, no?

  • Alex

    Lessig can’t understand it because he can’t understand a lot of things. Or more precisely, he understands them perfectly but he doesn’t like them at all. One of the lines from his essay about Hatch’s ‘gone-missing’ ability to ‘understand things’ is this:

    “Obviously, the government has no legitimate role in controlling how our culture should evolve.”

    That is not obvious at all in a democracy where the people elect their representatives based at least partially on the values they wish to see those representatives uphold and perpetuate. It may be an article of faith among the Left, or among anarchists who believe that any form of organized authority is illegitimate, but it is FAR from obvious, or unequivocally true, or incontrovertible. One of the reasons people in San Francisco elect liberal and leftist representatives is because they believe in the values those people promise to uphold through their office, just as people from Utah elect their representatives for similar reasons. Reasonable people may disagree on what those values should include, but it is patently untrue that government has no role in shaping how the culture evolves, unless the real point is that you reject the culture completely. But what if it decided to evolve into an Islamofascist dictatorship?

  • Anonymous

    And thats how much different than the current corpofascist dictatorship now? Next thing you know corporations will be asking to have a vote because they are considered “people”

  • Alex

    If that’s what you fervently believe, that we live in a fascist dictatorship, then by all means work on campaigns to nominate and elect representatives who will express and uphold your point of view, roll back the legal rights of corporations, eliminate “concentrated private power”, curtail private property, and so on. In fact, there are an almost inexhaustible supply of local and global organizations you can become a member of, right here on the grand old Internet, from the comfort of your bed, that actively and passionately support such goals. Or you can vote for Ralph Nader and Peter Miguel Camejo, as Nader has explicitly stated that his goal is to “defeate the giant corporation residing in the White House masquerading as a human being” or something very close to that.

    My point is that Lessig’s assertion that the government has no role in the shaping of culture is just not so. It directly contradicts the preamble to the Constitution:

    “WE THE PEOPLE of the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

    If that isn’t an expression of the intent that the people can and should and did establish a government to shape how the culture evolves, I don’t what is.

  • http://www.spreeblick.de Johnny Haeusler

    (Warning! This is dark irony posted from “the old Europe” here!)

    I wonder what happens if the idea catches on and moves to other fields than copyright violations.

    Manufacturers of guns will be held responsible if someone gets shot.
    Wars will be the fault of those who produced the weapons.

    Fair enough.

  • Alex

    Fair enough indeed, and there is plenty of irony in that statement to go around. :)

  • Alex

    So you are saying that because this has been introduced, most people would be supporting this kind of legislation? Most people wouldn�t even be able to understand what this legislation is about, let alone any kind of consequences.

    I didn’t say that at all, but I do hope that Lessig is reading the comments that appear on his blog, because today especially they’re a very good example of the way many of his supporters actually think. I can also recommend the conspiracy theories sections of the John Kerry fora.

  • Alex

    “And if you think Congress is about representing the folks back home, I have some news for you. “

    Well, that’s certainly true for John Kerry, who has missed 80 percent of the votes this year, and got miffed because the Republicans canceled the “big issue” veterans vote he wanted to show up for. He did, I understand make the group photograph session (he would have been the only missing Senator if he hadn’t.)

    I think the vast majority of our representatives try to do a good job of listening to their consitutents. If you don’t believe me, try as an out-of-state citizen to influence the vote of a rep. from say, Maryland. It usually doesn’t work, and most of the representatives I know about do work hard to hear their constituents’ views and act upon them. Again, I hope Lessig is reading the views of his ‘supporters’ here. It’s a little like reading over some of the dyspeptic and glib faculty evaluations from students at a law school, unfortunately. And I’ve seen plenty of those.

  • Bart Dorsey

    So what about Operating System Developers? Would in essence selling a computer operating system (or for that matter general purpose computer hardware) be inducing copyright infringement because you are commercially gaining from producing a machine whose sole purpose is to copy data from one place to another?

  • Alex

    Well, the most insane thing in the world that Microsoft could do is to listen to Cory Doctorow and abandon its digital rights management research, development and implementation. If you read some of the posts recently, you’ll see that not only will people on the Left say that Microsoft is a monopoly, they’ll also fabricate stories about piracy involving other companies like Autodesk. That story is a piece of unadultareted fiction, and people like Denizo from Mexico want you to believe it.

  • Alex

    Here is the post, in re: “the local ordinance we call the first amendment”

    —————–>
    Many years ago, I had a brief discussion with an official at Autodesk, makers of the Computer Aided Design software Autocad. At that time tehre was a struggle for the CAD market between Intergraph�s MicroStation (now owned by Bentley Systems) and Autodek�s Autocad. MicroStation was (and still is) much powerful and more productive, but the strategy Autodesk implemented helped the grab the XCAD market.

    This person told me that their marketing strategy they were following was to eliminate the copy protection on the software packages sold and/or donated to the universities, so every student that wanted could make a copy of the software. In this way, they will get �hooked� on Autocad, even if it wasn�t the best product, but after a period of time, revert to the copy protection (using a hardware device, which made it harder to twart off).

    This strategy allowed them to gain �addicts� to the software, and was very successful; with time, many buisnesses and users depended on Autocad, so they were forced to buy legal licences when Autodesk no longer �allowed� them to use it for free.

    If somebody was caugth using an illegal licence, all the force of the law rain on him.No wonder Autodesk is one of the driving forces behind BSA, the Business Software Alliance, a private group in charge of prosecuting software piracy.
    So simple. Give them the drug, make them addicts, then start squizing money.

    Here is the post, in re: “the local ordinance we call the first amendment”

    —————–>
    Many years ago, I had a brief discussion with an official at Autodesk, makers of the Computer Aided Design software Autocad. At that time tehre was a struggle for the CAD market between Intergraph�s MicroStation (now owned by Bentley Systems) and Autodek�s Autocad. MicroStation was (and still is) much powerful and more productive, but the strategy Autodesk implemented helped the grab the XCAD market.

    This person told me that their marketing strategy they were following was to eliminate the copy protection on the software packages sold and/or donated to the universities, so every student that wanted could make a copy of the software. In this way, they will get �hooked� on Autocad, even if it wasn�t the best product, but after a period of time, revert to the copy protection (using a hardware device, which made it harder to twart off).

    This strategy allowed them to gain �addicts� to the software, and was very successful; with time, many buisnesses and users depended on Autocad, so they were forced to buy legal licences when Autodesk no longer �allowed� them to use it for free.

    If somebody was caugth using an illegal licence, all the force of the law rain on him.No wonder Autodesk is one of the driving forces behind BSA, the Business Software Alliance, a private group in charge of prosecuting software piracy.
    So simple. Give them the drug, make them addicts, then start squizing money.

    This story is completely untrue; it is a mirage, a fabrication of an interpretation.

  • Alex

    And by the way, p2p is a misnomer, another willful deception. The original internet was p2p. Today, it would more truthfully be called a/p2p. Or maybe p2p version 2.0a. In any case, it’s anonymous.

  • Brad

    I noticed in the speech that Sen. Hatch is very passionate about protecting “the children” from those companies that would entice them to committ criminal acts.

    It would seem that the downloading of the latest Britney Spears song will lead to the decline and fall of the American Empire. Perhaps Senator hatch might know just what % of P2P users are minors? Hey, maybe another “Drug Czar” should be set up? Call it the “Office of the Copyright Despot”?

    Perhaps the most noticeable fallacy in his speech occurs in his opening statement – that creative artists can sue corps that encourage copyright violations. It seems that the large pressure against P2P music sharing comes from recording studios, not from the artists themselves (Metallica being a noticeable exception). Quite a few artists have spoken out in support of P2P. If only artists are the ones who can initiate the launching of these lawsuits, I’d probably feel better about it.

  • Alex

    That’s a great point, but p2p isn’t being used by people to create new works. The VAST majority of p2p is theft. Artists are special; Lessig is wrong.

  • Alex

    It’s not just Metallica, by the way. It’s also the Beatles, and Madonna, and anyone else who is smart enough to do the math and realize that p2p is nothing but a theft mechanism for the vast majority of people who use it.

  • Alex

    And I love to hear people complain about how strangled they are by fascism and oppression today. This is going to sound like one of those Dana Carvey “back in MY day skits” but it’s true:

    I first learned to program, my house was wired to the
    proto-internet (actually a network of dial-up bulletin board systems) with four modems, each capable of ending/receiving approximately 120 characters per second. Those modems were expensive – each one cost $500 or so, and I had to
    pay the local and long distance phone charges every time my machine connected to another machine to exchange data.

    Let’s assume a message of 2,500 characters (~2.5k). Assuming all four of my modems could reliably connect at any instant, I could send that 2,500 character
    email once every six seconds on the average. If I ran them 24/7 on four phone lines I could thus send approximately 14,400 messages per day. But I would have to send them all to the same guy, because there were only a few thousand people in the world who owned setups who could receive them. This would probably make him mad.

    Of course, nobody did this. Or at least, very very few people did this, or anything else like it, because they simply couldn’t afford to. Believe me, I was the ONLY kid in my middle school with four modems, and 90% of the time they
    were busy answering inbound calls leading to my bulletin board system (RBBS-PC running in compiled BASIC on an IBM PC/AT).

    It’s also interesting to ask how long it would take me to transfer one of today’s typical 3 megabyte MP3 sound files. Let’s assume that by some sufficiently clever wizardry I was able to split the file into four segments that could be stitched back together on the other end, so that I could use all
    four modems in parallel as my distribution system. Doing the arithmetic means that I’d be able to transfer that single song in a miniscule 1.75 HOURS. I’ll leave out the fact that my computer had a whopping 80 megabytes of storage TOTAL
    (which cost almost $6,000), which means that even if the MP3 algorithm existed at the time to encode the music from somewhere, and I had a analog/digital converer with sufficient speed and resolution to copy the music from an LP or a cassette, my “online jukebox” could have contained, at the most, about 25 songs. I would have to spend all of my time keeping it fresh and rotating the jukebox, assuming I really wanted to be a kick-ass music pirate d00d. Of course, in 1986, I could never have played them back, because my computer wouldn’t have been fast enough to decode the files in real time, sound cards were esoteric, ultra-expensive exotic technology that cost a thousand bucks a pop, etc., etc.

    So there wasn’t much incentive to violate copyright copyright en masse. Instead, I’d occasionally dub a cassette for my walkman on my dual-deck Nakamichi stereo.

    It’s interesting to make these comparisons when you hear people scream and yell about how wide the digital divide is and how evil companies are for wanting to charge you actual money in an age when I can transfer an MP3 from my
    broadband-equipped home PC in about 8 seconds, while simultaneously ripping songs from a stack of 10 CDs and listening to another one IN REAL TIME.

    Lessig’s ideas aren’t a revolution – what they are is pandering. There is nothing stopping artists from placing their works into the public domain under existing copyright law. I’d really like to hear someone explain how that is impossible right now without Lessig’s help. But Lessig isn’t really interested in that, I think. Instead, I think the artists are being co-opted into the Lessig Brigade in order to attack corporations. Nobody is going to tell Cory Doctorow not to publish his book in plaintext if he wants to. The idea that someone might is a fiction that he has invented.

  • antialex

    Alex is a troll. How do you steal something that isn’t property? Information isn’t property, no matter what kind of newspeak or doublethink the copyright industries would have you believe. Call it what it is: copyright infringement.

  • Alex

    Static isn’t property either, although it’s a kind of information. Maybe you should read some Shannon. Intellectual property is the idea that becomes the bits. Unfortunately for Doctorow, only the bits matter. Read his speech.

  • Alex

    And if Lessig is saying what he really believes has purported to be true for the past several years, it’s about time that I saw some numbers instead of his grandiose ideas about Creative Commons. I want to see some figures in terms of global bits/second vs. artists created and things like that. Enough of the hyperbolic BS. I also want to see a real economic analysis and some projections that can be at least plausibly relied upon. I don’t say this for my sake: I say it for the sake of the artists Lessig is trying to rope into his grand plan.

    Let’s see the numbers, Larry. Do you have any?

  • http://www.cs.duke.edu/~justin/ Justin

    Static isn�t property either, although it�s a kind of information. Maybe you should read some Shannon. Intellectual property is the idea that becomes the bits.

    Other than to point out that you’ve read information theory and know who Claude Shannon is, I’m not sure exactly what you’re trying to say here. The previous poster’s point is that theft implies a loss of a physical object. Infringement implies violating someone’s rights; in this case, the right to control the copying and distribution of an original work of authorship. Calling copyright infringment ‘theft’ is inaccurate and misleading. I challenge you to find any provision of copyright law pertaining to unauthorized distribution that uses the word ‘theft’.

    As for your second challenge — asking for numbers — a recent study by a Harvard economist and a UNC statistician showed that peer-to-peer networks are not killing off CD sales. In fact, widespread distribution in p2p networks correlated with an increase in sales for popular albums; at worst, it took 5000 file-swaps to displace one sale. Assuming ten million people swapping the same song (and only that song), that’s 2000 album sales down the drain; hardly the tens of millions in sales the RIAA claims it’s losing to piracy.

    I’d also challenge you to find a truly independent study (i.e., not one funded by the RIAA or its members) that provides hard numbers to show that p2p networks (and, not, say, a combination of high prices and a poor economy) are a primary factor in the decline of CD sales.

    Oh, and please surrender your dual-deck Nakamichi stereo; one of its primary uses is to make unauthorized copies of copyrighted material. Also, seeing as you’ve already confessed to distributing copies to friends, please surrender yourself.

    Thank you.

    -jdm

  • Nate

    Indeed, p2p increases sales to artists in the whole, anecdotal evidence occasionally showing otherwise. But Congress, who does not understand the technology issues behind p2p other than the propaganda they’ve been fed by industry, will vote in ignorance once again.

    Sorry, folks, but the Net is all about p2p communication in its various forms.

  • Alex

    Ok, we won’t call it ‘theft’

    We’ll call it “sharing” instead, because that makes it so much nicer. And tens of millions of people are not swapping the same song; they’re swapping all of the songs. And Cory’s cute little innocent idea that people who have access to the latest technology are actually the unsophisticated victims is the most laughable thing I’ve ever heard. Even his statements about WMA files are wrong, at least for anyone who’s ever seen SoundForge. In fact, the whole speech is a bloke joke.

    http://www.allofmp3.com

    My Nakamichi deck is, unfortunately, dead beyond belief, along with the rest of the stereo. The last tape I dubbed with it, at the point of it being worn out, was Eddie Murphy’s Delirious, and that tape is gone, too, into the dustbin of history along with my Toshiba walkman. And I NEVER said I was distributing copies to friends, and I didn’t. Scroll up.

    Also spare me the jokes about Harvard economists and UNC statisticans…it’s a little like the “three Jews walk into a bar” jokes that I’ve heard, minus one. I’d really prefer to hear the stats. from Prof. Lessig, since he’s so preoccupied with the Future of Ideas, and not from his “thousands of you did so” self-promotion garbage in his Flash movies.

  • Alex

    And I disagree with you COMPLETELY. A digital object IS a physical object and it IS intellectual property and it should therefore be protected, and people who take it should be prosecuted. Period.

  • http://www.cs.duke.edu/~justin/ Justin

    Ok, we won�t call it �theft�

    We�ll call it �sharing� instead, because that makes it so much nicer.

    Or we could just call it “infringement”, like the law does. Or we could continue to be sarcastic and counter-productive.

    Also spare me the jokes about Harvard economists and UNC statisticans�it�s a little like the �three Jews walk into a bar� jokes that I�ve heard, minus one. I�d really prefer to hear the stats. from Prof. Lessig, since he�s so preoccupied with the Future of Ideas, and not from his �thousands of you did so� self-promotion garbage in his Flash movies.

    Somehow the Washington Post didn’t understand that this study was a joke, and wrote a story about the study. Somehow Yahoo missed the “three jews going into a bar”-style nature of the study. As did a slew of other sites.

    We await your comments on the statistics in the study.

  • http://www.cs.duke.edu/~justin/ Justin

    And I disagree with you COMPLETELY. A digital object IS a physical object and it IS intellectual property and it should therefore be protected, and people who take it should be prosecuted. Period.

    Darl? Is that you?

  • Mike

    Alex, your posts say more about you than about Lessig’s comments, or the topic at hand.

    “In any case, it�s anonymous.”

    explain that comment from above, about p2p.

  • Alex

    Stealing digital objects is as wrong as breaking into someone’s home and taking their curios. It isn’t a matter of intellectual curiosity; it’s a matter of theft. The people who believe that the music industry should cooperate with the file-sharing networks are nuts. I don’t care what the 2002 research from Harvard says, sorry — don’t confuse me with the facts. Nobody I know who can download MP3s and videos ever buys them on CD (at least today, that may have been the case in 2002), and it is only a matter of time before movies are similarly available.

    You know ultimately that the idea is to destroy the physical media. It’s not a matter of just not being able to buy it, it’s a matter of not wanting it any more. I agree that the record companies are going to respond gradually to it, but that is precisely why it is so important to have a highly-developed, workable strategy for DRM implementation.

  • Alex

    Mike,

    I thought it was fairly self-explanatory. The internet wasn’t designed to be an anonymous network, but it is now.

  • Kelly

    Alex says:
    Let?s see the numbers, Larry. Do you have any?

    Well, this isn’t exactly music, but, it is involving free internet distribution of material covered by copyright.

    http://www.baen.com/library/palaver6.htm

    The numbers are there. The only thing missing seems to be the section on how much money is being lost. It seems to have been replaced by a section on additional sales.

    I have yet to see any evidence of lost music sales that couldn’t be easily explained by factors other than P2P filesharing.
    So, no creditable evidence of any sort of injury caused by P2P. Several studies that seem to indicate that P2P filesharing has some benefits for the copyright holders.
    So, where is the justification for removing rights to use an entire field of technology from the general public? Banning something always has a cost, but I don’t see any benefits, to anyone, to justify paying that cost.

  • Nate

    People who download music buy more CDs, not less. It is their interest in music that drives that phenomenon. Thus the studies showing increase in sales during the age of file-sharing.

    Quit using the phrase “intellectual property.” That’s a propaganda phrase and we’re not buying it. Call it “thought” or “ideas” instead.

    And yes, I am an artist, a content producer who makes a living from my creations. I’m 100% in favor of p2p — it leads to increased interest and increased sales.

  • open to discussion

    “So there wasn�t much incentive to violate copyright copyright en masse. Instead, I�d occasionally dub a cassette for my walkman on my dual-deck Nakamichi stereo.”

    I’m not sure I see where you are drawing the line between occasional copying and mass copying and how industry has a role to play. That’s great that you made the occasional copy for your personal use. I’ve got a stack of CD’s in my car that are mixed songs. I burnt the tracks from MP3′s I have made from my CD collection. I guess I’m as guilty as you are in that respect.

    Does that make it okay for MSFT, RIAA, congress, etc to decide that I have a legal right to a maximum of 3 burnt CD’s per song, as long as the song is purchased a second time through an online service?

    Will my CD burner become an inducing device? Should we pay double or triple our broadband connection costs to pay for an internet police coalition, required by corporations for due diligence against inducing infringement? Are there people mass-copying books and saying in court, “I wanted to stop, but the big shiny printing press was too tempting.” Forget conspiracy theories… how do you justify what you are advocating?

    I’m happy I can download ISO’s of latest free Linux distros via file-sharing networks. Just like a bittorrent, I can download from multiple sources while reducing the server load on those people and companies that originally distribute the OSS software I use. I can make decisions for myself whether or not to infringe on the copyrights of content owners. Filesharing does not equal theft. Not all files are restricted from copying by copyright.

    Stay on topic and drop the holier-than-thou pretense if you want to have an honest discussion and debate. I listen to comments like yours with an open mind to understand your point of view. Justin has some good questions, and you’ve become sarcastic and evasive. Nobody cares IF you disagree. We want to know why? You do seem intellegent enought to understand that, so please don’t lose focus.

    “I don�t care what the 2002 research from Harvard says, sorry � don�t confuse me with the facts. Nobody I know who can download MP3s and videos ever buys them”

    If you don’t care about research, why should your opinion be taken seriously? No one I know listens to Britney Spears, and almost everyone I know buys CD’s of music found through filesharing. If that last sentence didn’t convince you, perhaps it reflects the convincing nature of your arguments.

  • Alex

    Kelly,

    It’s hard for anyone to argue with that example, as much as I would like to. More than anything, that’s the kind of data I’m looking for, and so I’ll think about it and ask some friends what they think also.

  • Alex

    “Are there people mass-copying books and saying in court, �I wanted to stop, but the big shiny printing press was too tempting.� Forget conspiracy theories� how do you justify what you are advocating?”

    Ok, OK, you’ve got on that one because I’m giggling my a** off. When Doctorow says that the RIAA and the MPAA are holding him up as a child who needs to be saved, I don’t believe him either. The most important thing for me is that the producer of the work, the person who originiated the idea, the one who dreamed up the invention, the inspiration that you look at, is the person who gets compensated for it. And there are others who I also want to see compensated: the sound engineers who mix the work, the electronics engineers who manufacture the boards, and even the producers who sit in the back of the studio and push people around.

    What I don’t want to see is the complete destruction of the model, the unrepentant tearing down of it to the point that none of those people can make a living. Yes, the stars make the movie, but so do the grips and the caterers. If we all decide that the finished product is worth next to nothing because we can download it for nothing, those people will eventually go out of business, and the entertainment industry in this country will be unsustainable. I think that’s what the studios are really afraid of — that they’ll have to start offshoring the technology and the production of their products even more than they already have.

    That’s the danger I see.

  • Alex

    You know, people like to hate Jack Valenti and Hilary Rosen. They’re easy targets, and they’ve said a lot of things that piss people off, and suing people is never a nice thing to do. But before you call those people scum, think about what they’re protecting. They’re not just protecting the stars, and they’re not just protecting the rich, or themselves. Nobody talks much about that, and nobody is willing to broach that chasm (well, maybe except Spielberg when he talked about it).

  • Karl

    “Stealing digital objects is as wrong as breaking into someone�s home and taking their curios.”

    With a statement of ‘wrong’ you’re making an ethical judgment, but it lacks the underpinings of any such judgment against traditional ‘stealing’.

    This is because you misunderstand Lessig’s most basic point about intellectual property. When you download an mp3 it is not inherently a loss to anyone. There are millions of people who download who would never had given a cent to the creator, and thus their downloading does no net harm.

    When you steal my curios, I don’t have them anymore. When I download Madonna’s latest track to play as load as possible for the sole purpose of annoying my neighbor, they still exist in all the places they did before, and Madonna is no worse off, because I never would have paid for it…

    -kd

  • Alex

    Horseshit. When I download Madonna’s latest album from a Kazaa sharepoint, that means I don’t have to buy it. If you liked it enough to download it, keep it, and put it on your sharepoint it means that you might otherwise have bought it. If you didn’t like it, why would you keep it?

    I completely understand Lessig’s ideas about what a digital representation is. I just think he’s wrong.

    And don’t talk to me about judgments when The Illustrious Potentate himself decides to tell us what is “good code” “bad code” “good law” “bad law”, etc.

    Piss off.

  • http://www.cs.duke.edu/~justin/ Justin

    don�t care what the 2002 research from Harvard says, sorry � don�t confuse me with the facts. Nobody I know who can download MP3s and videos ever buys them.

    1. It was a 2003-2004 study: very recent. 2. Hi, I’m Justin, I’ve downloaded music of p2p networks and then purchased the CD.

    And there are others who I also want to see compensated: the sound engineers who mix the work, the electronics engineers who manufacture the boards, and even the producers who sit in the back of the studio and push people around.

    What I don�t want to see is the complete destruction of the model, the unrepentant tearing down of it to the point that none of those people can make a living. Yes, the stars make the movie, but so do the grips and the caterers.

    Before the Gutenburg press, books were complex and creative objects that took months or years to create. You had to hand-copy the letters, meaning you had to mix the ink and put it in jars for the authors — oftentimes monks — who would write the text out in elaborate script. The pages were often decorated with gold foil, meaning you had to get the gold, press the foil, and then decorate the pages. Here’s a pretty good description of that process.

    None of those jobs exist anymore, at least not outside of a handful of specialized people. The printing process commoditized book-making and distribution, and cut out the middlemen and some of the supporting cast. The same will happens with music, and possibly even movies. The upside of the press was that it helped spread literacy and knowledge as more people learned how to read and could own books. We’ve seen how the web can empower authors, and I think we’re starting to see how it can empower musicians, too. But the supporting cast will shrink.

    If we all decide that the finished product is worth next to nothing because we can download it for nothing, those people will eventually go out of business, and the entertainment industry in this country will be unsustainable. I think that�s what the studios are really afraid of � that they�ll have to start offshoring the technology and the production of their products even more than they already have.

    The entertainment industry will always be around in some form or another. It might not be the behemoth that it is nowadays, but look at the game industry. They’ve been dealing with software piracy for almost 25 years now, but are a bigger industry than either music or movies. Why? More titles that cover a range of interests, and a medium that stands up pretty well to repeated playing (more like CDs than movies). The entertainment industry has two choices; attempt to stop the progress of technology (or at least regulate it) or learn to go with the flow and take a hit. Right now it’s going with the former and losing badly. Even if it succeeds, the rest of the world won’t necessarily go along (think: China) and we’re just shooting ourselves in the foot long-term.

    It has to adapt. I’ve spoken to a few prominent people in the entertainment industry that agree (whose names aren’t “Jack” or “Hillary”) but they can’t really push it hard publically.

    it is so important to have a highly-developed, workable strategy for DRM implementation.

    Cold fusion. Antigravity. Workable DRM.

    But before you call those people scum, think about what they�re protecting.

    Their own pocketbooks? It’s definitely not the artists, otherwise the artists would have seen some of the money from those settlements. Heck, they don’t even see all the money they’re contractually owed, and they had to sue to get it. And don’t tell me that the RIAA’s members didn’t know where to find Dave Matthews or Bob Dylan to pay them.

  • Alex

    And please, Lessig’s skills as a programmer, as far as I can tell, amount to building a few WordPerfect macros. Which is utterly, utterly predictable, considering that he’s a law professor. But from that very narrow base of expertise, Lessig has nevertheless managed to vault himself into the Van Allen Belt, precisely because he is a law professor and therefore the many of the strictly conservative, technology-phobic, backward law professors in this country worship him as a guru who Really Knows What He Is Talking About. And the best part is that Wired also buys it! Lessig has some good things to say about copyright, but he’s no von Neumann, except to those in legal academia.

    Just my opinion, but it’s not an uninformed one, believe me.

  • Alex

    “Cold fusion. Antigravity. Workable DRM.”

    Nonsequitur. DRM is very workable. Doctorow’s task was to persuade people at Microsoft not to develop it. He also likes Schneier, who is pretty much a bad hack of a cryptographer.

  • http://www.cs.duke.edu/~justin/ Justin

    Nonsequitur. DRM is very workable.

    Utterly unsupported assertion. Prove it.

    And feel free to respond to any of my other (granted) extensive comments while you’re at it. Or are you, as I suspect, merely trolling?

  • Alex

    Yes, you’re right. That’s why our students are stupider than ever and America Online has to advertise its co-opt service by saying that they’ll deliver “smarter kids”. The faith in widespread digital technology shure has made people smarter, by golly! Oh CERN, CERN, what hath you wrought?

    Boffo Crudola, Horatio!

  • Alex

    Well, the first part of the fallacy is that you have to supply all three parts of the equation to the user. That is not true.

  • http://www.cs.duke.edu/~justin/ Justin

    Apparently, despite all my comments about copyright, Alex seems to want to focus on AOL ads and obscure references to “three parts of the equation”. I can’t tell if he’s an artful dodger or simply stone deaf.

  • Alex

    Justin, you can have the last word here, because I’m signing off. If you’d read Doctorow’s paper, you’d understand the reference. He’s wrong, but I’m not going to ‘esplain it to you. You asked the question, and I assumed that you had read the paper. Obviously you haven’t, and even if you had, you might not understand what you were reading, so I don’t think you should do it.

  • http://www.cs.duke.edu/~justin/ Justin

    This isn’t the thread for Doctorow, and 95% of what we’re discussing doesn’t involve DRM, but the effect of copyright infringement on the business models of the entertainment industry. Which, by the way, you brought up.

    Having said that, Doctorow is right about the three parts in that ultimately you have the give (display) the secret (movie) to the user in a form that they can understand. You can run your encrypted movie through a DRM-enabled cable to a DRM-enabled monitor and to DRM-enabled sound cards, but eventually the user has to see and hear it.

    He�s wrong, but I�m not going to �esplain it to you. You asked the question, and I assumed that you had read the paper.

    I challenged you to prove it. You didn’t. We’re still waiting.

    even if you had, you might not understand what you were reading

    Yeah, I saw a few big words there and gave up. Maybe I can find someone in an AOL chatroom to explain it to me. Security has never been my strong point.

    G’night.

  • James Day

    Alex,

    Please don’t feel guilty about making copies. Your action was completely legal if it was after 1992. So was giving away the copies. You could have sold the copies as well if you wanted to, so long as ou didn’t make the copies just so you could sell them.

    17 USC 1008 says that “no action may be brought under this title [17, copyrights] alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings”. So it’s entirely legal to make your copies.

    17 USC 109 says in part that “the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord”. Since your copy was lawfully made, you’re entitled to sell it.

    The new distribution technologies don’t threaten the creators (musicians, composers, recording engineers) so much as they challenge the distribution chain. There’s not so much of a market for pianos today. They were replaced by record players. Not much use for rental film movies. VCRs and now DVDs have eliminated that distribution channel. Today it’s completely legal for people to borrow a recording from a (non-profit) library and make a recording of it. Legal also to make further copies and give them away if they want to. Legal for them to record from TV or a radio. Legal to put Meetup-style gatherings together to facilitate this. Legal to do it when they naturally gather at concerts. Yet people still buy music, even though it’s largely unnecessary to do so. Why?

    Convenience is one reason. A very powerful one, IMO. The file trading networks are not as convenient as a large music vendor making copies available at a reasonable price (no more than the statutory mechanical royalty fee plus bandidth cost and 100% markup, say). That comes to prices in the tens of cents range, or less.

    That has to compete with free. It can’t do it when the product itself is inferior and flawed (has copy protection, so it’s self-destructing after a few computer moves, or is of lower quality).

    I’m not currently aware of any major music company providing fast, full quality downloads of it’s works (meaning full CD quality and no copy protection). I’m aware of at least one group doing it for their live performances, though not at the price level I mention here.

    On the movie side, the official “competition” is frankly laughably poor. 320×240 resolution, low bitrate silliness. Not a hope of that being competitive and only a fool or someone setting up a straw man could reasonably expect it to be competitive. Worse still, the price is greater than DVD rentals. Hopeless.

    It’s unsurprising if player piano vendors, piano vendors, film movie renters and such are unhappy with the technology which eliminated their markets. That doesn’t mean that it’s copyright law’s job to preserve markets which technology has made obsolete. It’s the job of the distribuion channel to adapt, as has happened many times before.

    There’s no need to go offshore to produce these digital works. The networks simply can’t move offshore because they have to connect to the customers. If offshoring worries you, the electronic distribution channels are better protected against it than pressing CDs and importing them, just because of that requirement to connect to the customer.

    Of course, some production will move offshore, just because that’s the way to greater profit margins. But that’s not the fault of the distribution technology. It’s the fault of corporations trying to maximise profit. Which is, of course, one of the responsibilities a corporation has to its shareholders.

  • Rob

    “Alex” seems to be a perfect example of someone who has completely bought into the Big Media theory that p2p is going to destroy their business, therefore the government must outlaw this new technology. The major fallacy (among many) of this position is that it’s not at all clear that p2p is going to destroy the ability of artists to make a living off their art. All we really have is conjecture and bald assertions, there are no objective facts. It’s like in the pre-Civil War era, where the plantation owners asserted all kinds of horrors that would result if they freed their slaves and ended the practice. After the Civil War forcibly ended slavery and Reconstruction broke up most of the large plantations, the lives of the former plantation owners was undoubtedly worse; but agriculture continued. (Meanwhile new and inventive ways were created to keep the former slaves in effectively indentured servitude for another century, practically necessitating a second civil war to finally establish their equality.)

    The RIAA and MPAA are like those plantation owners. They are happy with the way things are, and anything that remotely threatens their happy world must be made illegal. They have evolved a system that creates multi-millionaire megastars like Britney Spears and Madonna, who they can skim commissions off of, and they want to be able to keep slurping at that trough in perpetuity. Maybe in the future we won’t have megastars like Madonna and Michael Jackson. Maybe a career as a rock star won’t hold out the promise of hitting the lottery and living a fantasy life. But you know what, I don’t see that as a reason to ban new technology. I predict that even if ZERO money were able to be made in music, there would still be music; and even if there were no big studios, movies would still get made. They’d be different, sure. But they’d still be there. Saying that they wouldn’t is just alarmist FUD with no basis in fact.

    Change is inevitable in a free society. And a “free society” does NOT mean “free as long as you think and act like I want you to”.

  • Hmmm

    DAMN!!!

    Lots o’trolles on this one.

  • Brad Hutchings

    Hey, funny how nobody in the blogosphere wants to post (or fisk) the act itself other than as a PDF link. So, in a service to everyone, here it is. I’ll keep it short:


    A BILL To amend chapter 5 of title 17, United States Code, relating to inducement of copyright infringement, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
    SECTION 1. SHORT TITLE. This Act may be cited as the ��Inducing Infringement of Copyrights Act of 2004��.
    SEC. 2. INTENTIONAL INDUCEMENT OF COPYRIGHT INFRINGEMENT. Section 501 of title 17, United States Code, is amended by adding at the end the following:
    ��(g)(1) In this subsection, the term �intentionally induces� means intentionally aids, abets, induces, or procures, and intent 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, including whether the activity relies on infringement for its commercial viability. ��
    (2) Whoever intentionally induces any violation identified in subsection (a) shall be liable as an infringer. ��
    (3) Nothing in this subsection shall enlarge or diminish the doctrines of vicarious and contributory liability for copyright infringement or require any court to unjustly withhold or impose any secondary liability for copyright infringement.��.

    Now, could someone explain to me how this overturns Sony. Thanks!

  • save the obsessed

    “Alex,” get a life.

    You quote Lessig as saying: �Obviously, the government has no legitimate role in controlling how our culture should evolve.�; then you restate it by writing: “it is patently untrue that government has no role in shaping how the culture evolves.” Do you not see the differences between those two statements, or do you think we don’t? Obviously the second does not follow from the first — indeed, Lessig wrote something in the early 1990s about the “Regulation of Social Meaning” or something like that — all about how governments shape culture. The meaning of the first sentence is “control” — do you really think governments have a role “controlling” — as in punishing if you don’t obey — a particular culture?

    And as for the coding — I’ve never seen Lessig claim expertise in coding, and I don’t know what you’re taking about re macros, but I knew him when he was in college. He worked at Wharton Econometric Forecasting, and has just bought one of the first IBM-PCs. On a bet, he ported the forecasting system from Wharton (which at that point ran on an IBM 360) to the PC — a very cool bit of coding for a kid, and made me think he picked the wrong career.

    You’re just an obsessed kid, Alex. Move on. You’re no different from the obsessed fans — just less happy. Get a life, or go back to your porn (and DON’T think I don’t have pictures).

  • JHarris

    James Day,

    A valiant attempt, but I think you have to consider the exact language used (for the precise reason of negating what you argue). How I understand it, Sec 1008 was written to say “no action may be brought”, not “it is not infringement” or “it is lawful.” 1008 is only a bar to bringing an infringement action; it doesn’t legitimize making copies of musical recordings. So Sec. 109 doesn’t apply. Furthermore, the exclusive rights of Sec. 106 that give rise to infringement are only subject to Secs. 107-121. So they only way a noninfringing (lawful) copy can be made for 109 purposes is by way of one of those limitations (but some limitations, like 117, don’t permit distribution in order to qualify for the limitation). So literally, it would seem your argument applies to fair use copies. You make a fair use copy for educational purposes (without intending to sell it, of course), but when you’re done with it you can sell it per 109.

  • Alex

    First lies, now threats?

    “You�re just an obsessed kid, Alex. Move on. You�re no different from the obsessed fans � just less happy. Get a life, or go back to your porn (and DON�T think I don�t have pictures).”

    The reference to Lessig and WordPerfect and macros comes from this article, where you can read all about how he wants to “smash the copyright machine” and also how he did “some programming.” Hey, I did some programming too yesterday. And porting an application from a System/360 to a PC is not exactly rocket science. What language was it written in? COBOL? Assembly? There were cross-compilers available. Not very hard to do at all.

    http://www.wired.com/wired/archive/10.10/lessig_pr.html

  • Alex

    If it was at Wharton, it may very well have been COBOL, that wouldn’t surprise me at all.

    http://www.xs4all.nl/~rvtol/pccob100.html

    http://www.geocities.com/SiliconValley/Heights/6121/cobol.html

  • coderman

    Thanks for all the amusement Alex. It’s fun to see people trying so desperately to cling to flawed ideals. Bits are no more physical than Casper, that friendly ghost. And these attempts to fight decentralized networking technologies are every bit as futile as fighting against death or taxes.

    It’s always fun to see someone rail against inevitability like Alex does with such vigour. Good show.

  • Alex

    So this is what you think of Lessig’s ideas? That they’re like death and taxes? Every adult knows that death is inevitable, but they usually don’t begin their children’s lives by scaring them about it. I don’t know; it’s in the realm of possibility that Doctorow’s did. Actually, the inevitability you suggest sounds an awful lot like the other ‘historical inevitabilities’ I’ve heard of…so why don’t you just say it outright?

  • Alex

    In fact, I’ve been thinking a little more about the thinly-veiled threat (about what I don’t know) by somebody anonymous called ‘save the obsessed’.

    Here: I’ll make it easier for you. Don’t just blather on about the “I have pictures of you” stuff. I’ll give you the damn coordinates for my HOUSE. The email address works, by the way, it’s not redirected, and if you want to submit it to spammers, go right ahead. If you decide to email, I’ll be happy to supply the address. C’mon over. You can look it up on Terraserver print out the picture, plug them into your GPS system and sit outside my door with a rifle and make sure the next time I go outside, I’ll meet a hail of bullets because I dared to post some contrarian responses on Lessig’s blog. Then you can write it up for Lingua Franca and show everyone what an example of freedom you are.

  • Rob

    I for one don’t believe Lessig’s ideas are inevitable. There are powerful interests out there who are pulling out all the stops to see that their business models are protected. I don’t subscribe to the position that we don’t really need to worry because if they shut down Kazaa there will still be Gnutella; what’re you gonna do when they then make Gnutella illegal and Ashcroft’s minions start tracking down all the Gnutella users? Or when our government starts putting pressure on the countries hosting offshore servers to shut them down? Nothing’s inevitable, my friends. Except death and taxes, sure, but we’re working on those as well :) In the meantime, if you’re interested in freedom of expression you better listen to what Prof. Lessig is talking about. Agree or disagree, but he doesn’t make these points lightly.

  • Rob

    Brad asks how just inserting the few lines he quotes would overturn the Betamax decision. IANAL but it seems pretty clear to me. The Betamax decision said that a particular product is legal to produce as long as it has a “substantial non-infringing use” in terms of violating copyrights. This language attempts to insert a clause making a product illegal if it “relies on infringement for its commercial viability”. The logic as I see it would then flow thusly:

    -ripping a track from a CD and distributing it to others is a violation of copyright [just accept for a moment that this is accepted as fact by most of our legislators]

    -if there weren’t some technology out there like Kazaa or Napster that made it easy to distribute and download such violations, there wouldn’t be as much distribution going on (and therefore less violations)

    -conversely, if it weren’t for this need for easy distribution technology, such products like Kazaa and Napster wouldn’t be commercially viable (nobody would pay for them unless they wanted to distribute violations)

    -therefore, the ONLY reason these products are commercially viable is that they enable copyright violations to be easily distributed; and so by their very existence they “induce” copyright violation, and therefore should be banned.

    In the original Betamax case, the commercial viability of the product was not at issue. It was simply a question of whether the product exclusively existed to make or enable copyright violations. Under the new law, the court would have to decide whether products would be commercially viable if they didn’t “induce” people to record songs, movies and TV shows which would (presumably) be distributed later in an infringing manner. VCRs probably wouldn’t be affected, but they’re not the target of this legislation anyway; it’s Kazaa and Gnutella and other p2p file-sharing applications that this legislation wants to make illegal. Under this legislation, even if those applications could conceivably be used to distribute non-infringing content, the mere fact that some majority percentage of their current use is for swapping files that are considered to be infringing would call into question their viability as commercial products if there weren’t such infringing use, and therefore their authors would be liable for prosecution as criminals. Therefore, no commercial (sue-able) entity would write such software, no one would profit from p2p file sharing, and it would all go away or at least drop down to a manageable level. That’s their plan. Go after the distribution channel and make it illegal to write software that “induces infringement” for profit.

    The next step is to make it illegal to write such software under any circumstances, even for free. Make it illegal for an ISP to forward packets that haven’t been “blessed” as not containing non-infringing or at least properly-licensed (e.g. paid for) content. Require ISPs to use hardware that checks everything flowing over the wire to make sure this is the case (think it’s impossible? think again- just require ISPs to reassemble every file that passes through their system and check it; sure it slows the network down, but they don’t care about that, and I’m sure there’s many other ways to go about it). Don’t think “it can’t happen here”, because it most definitely can.

  • http://www.conrad-b.com Conrad B

    “It�s not just Metallica, by the way. It�s also the Beatles, and Madonna, and anyone else who is smart enough to do the math and realize that p2p is nothing but a theft mechanism for the vast majority of people who use it.”

    Is it?

    I’m surprised that these artists dont appreciate the fact that people use p2p to listen to their music. Criticising their fans deos not seem like a good way to encourage people to buy their music does it?
    Besides, i could have 50 people round my house for a party and play their music and thats ok. But you seem to be saying that if i put their music on p2p and 50 people listen to it then that is illegal.

  • http://www.cs.duke.edu/~justin/ Justin

    List of things we’re still waiting to hear from Alex about:

    • Why DRM is feasible. No handwaving or unsupported assertions allowed.
    • Anything proving that copyright infringement is killing CD sales. This includes a rebuttal to the Harvard/UNC paper.
    • Why it’s bad for the media companies to adapt to technology instead of repress it.
    • Why new technology is bad. Using stereotypes of AOL users doesn’t count.
    • Where copyright law (17 USC) refers to infringement as ‘theft’. Congressional testimony from RIAA/MPAA execs (or bought-and-paid-for Senators) doesn’t count.

    Things we don’t care about:

    • Lessig’s programming skills.
    • Your tape deck.
    • Equating transient magnetic charges to durable goods.
    • http://www.angelfire.com/games4/anriak/tutorial/day9/index.html JH

      Anyone know if Orrin’s lobbyist son Scott has a contract with the RIAA, MPAA, Disney, or Sony? That might explain his sudden change of heart.

      Another point to make is that if he really wants to prevent the distribution of pornography he is going about it in the wrong way. All this will do is push people onto FreeNet which will lead to more FreeNet development, more FreeNet nodes, and more FreeNet content. So more stuff will get traded in a way that law enforcement can’t track.

    • Ian

      Alex – your email address is already going to be spammed, as I’m sure the spambots crawl this site, its certainly not an obscure one. No, they’re not targeting you in particular, in case your wondering.

      This INDUCE act and the floor comments does make P2P users out to be pretty stupid. No one I’ve talked to in person thinks P2P is legal in any shape or form. The one benefit of the lawsuits as of late has been to bring this to light. Someone who gets their news via the news breaks on pop radio stations will know its illegal. There’s no ‘inducement’ – its more of an offer.

      Granted, at my job a gal called in who had essentially spent $30 on KaZaA that came with a “certificate of legality”. But you can’t regulate out stupidity. I’m sure there are other laws on the books to prevent that sort of misleading marketing.

      Which reminds me, Orrin’s Utah had the right idea with trying to make spyware illegal. That would be great if government made some legislation about that. I’m no fan of KaZaA; I wouldn’t mind them being put away in some Austrialian prison for crapping up peoples computer.

      If Orrin wanted to stop porn, he could just go after the hotels and cable companies that distribute the porn and the Hollywood porn studios that create it. But wait. That would be going after big corporations. Never mind.

    • thomas

      “Horseshit. When I download Madonna�s latest album from a Kazaa sharepoint, that means I don�t have to buy it.”

      I would never buy a Madonna album. Though I might download a song or two for free. I downloaded some Eminem for my father-in-law to hear because he was wondering what the fuss was about. But neither he, nor I, would ever EVER buy an Eminem disc. So, horseshit yourself.

      “If you liked it enough to download it, keep it, and put it on your sharepoint it means that you might otherwise have bought it. If you didn�t like it, why would you keep it?”

      Because it is not even worth the energy to hit the delete button? Because my niece may come over and I would actually have a track she might be interested in? In the later case, if she hadn’t heard it before, maybe SHE would go buy the disc if it didn’t suck. Or she would decide it sucked, too.

    • Bob S.

      I have a tendency to “troll feed” when it comes to discussions about the entertainment cartel, but after reading Alex’s tired, haggard diatribes against p2p users, all I really feel is pity – for Alex. (Van Halen, maybe?) There are several things about this subject, that are so totally out of alignment with reality, that need to be addressed, and I’ll do me best right now;

      1) I steal, literally, an Eminem CD; actual physical property, and I’ll likely get charged with a misdemeanor; if I “steal” an Eminem mp3, or, worse yet, allow 50 people to “steal” copies of it from me, I could be charged with a felony. How does this punishment fit the “crime”?

      2) As Justin pointed out so eloquently, no amount of mp3 trading removes any physical property from the artist. This can not be emphasized too strongly.

      3) Let us say that Glaxo announced the invention of a miracle drug, that will cure every form of cancer ever discovered. They will have an exclusive patent for it, and will be expected to recover R & D costs, and hopefully profits, too, for 7-12 years, and then it goes generic. On the other hand, let us say that Britney Spears does a remake of her first single, but retitled “Screw Me Baby (One More Time)” on the same day as Glaxo releases their drug. She will make money on every instance of this song being played – on the radio, at an ASCAP-fee-paying night club, even as a cheezy MIDI ringtone – for her entire life, plus SEVENTY FIVE FREAKING YEARS!!! How in God’s green earth did this get so completely screwed up?!?

      4) Alex makes a comment on the poor studio musicians, lighting techs, key grips, set builders, et al., that lose mone when you “steal” music and movies. Hello?!? None of these people get points on this stuff; they get paid union scale, and are paid for the work they do, ONCE. That’s all they are entitled to get, for Cliff’s sake. Sorry, Alex, but Hazel Pethig (Costume Designer) doesn’t get royalty checks every time an episode of “Monty Python and the Holy Grail” is on cable.

      5) If Orrin Hatch (or any other Congressional Asshat) thinks he can destroy my PC, for filesharing, he is sadly mistaken. This is not a threat.

    • DJN

      … it should not happen without an opportunity for Congress to consider the full implications of this new regulation…

      Does this even happen any more? Or rather, does deliberation, discourse, and debate in committees or on the floor any longer affect whether a bill becomes law?

      All these comments about whether or not our elected representatives are doing a good job and/or listening to constituents seem to me to be ignoring the new reality of Congress: today, most of our Congresspersons have little or no power. The “Republican” (I use quotes because most of them seem to be ideology-free; Reagan is already rolling over in his grave) Congress and White House have changed how laws get written. Reason and discourse are not involved, at least not how they used to be. About 5 people now make all the laws, and if their bills get amended at all on the floor, they either kill the bill or just wipe away all those amendments in conference committee. (Amusing how Alex spun the Republicans’ killing of a veterans bill, because some Democrat had the gall to suggest changes, as a negative on Kerry…)

      Check out America as a One-Party State for an interesting read on the ongoing destruction of our government. Personally I think it’s all about Clinton; most right-wing discourse in this country is dominated by hate, and there’s no one they hate more than Clinton. I think the Republicans are still trying to get back at Clinton by “beating” the Democrats at everything. What happens to society, to our culture and economy, appears to be irrelevant to them.

      Am I saying we shouldn’t fight this garbage? No; but personally I can no longer see any effective way of fighting it except in the courts, and even that’s a serious crapshoot. Our federal legislative process is basically broken. Or at least missing its essential element (as the founders saw it) – reason has left the building.

    • jerry lobdill

      Why stop with secondary liability? That only makes you swat at flies, as W says. Hell, lets have tertiary, quaternary and even centenary liability to kill off inducement at the root. So… why not ban broadband connectivity. That does more to enable p2p crime than anything that’s been discussed here.

    • Edward Bryant

      Will someone think of the children!
      They are our future!

      No … wait robots are our future.
      Will someone think of the robots!

    • Jake Brodsky

      Folks, what has happened here is that the business models have changed from a one to many distribution paradigm to a many to many distribution paradigm. In other words, when copying is so easy and cheap, how are we to reward and encourage creativity?

      This is fundamental technological change which our society has never dealt with before. Clearly the old models are breaking down; however nobody has new business models to replace the old ones.

      If I understand Alex’s argument, I think he says that the old ways still apply. The point the rest of us should make is that they don’t make sense given today’s technology. The laws have to be pragmatic and reasonable to most people, or they’ll be ignored. The INDUCE act would be tantamount to recognizing what the Wright Brothers had done as dangerous and then assigning the entire airspace in the US to the Federal Government and banning all aviation except for that which has been carefully certified by large rail road companies.

      The answer to defuse Alex’s argument is to show a functional alternative. Our society can’t afford to simply throw away centuries of practices and laws designed to encourage intellectual development and honesty. Neither can it afford to ignore new technolgies which enable much less expensive and wider distribution.

      Alex is right in one major respect. We all need a clue. We need to think very carefully about how to use the new many to many distribution system we call the Internet, to reward creative efforts in our socieity. The INDUCE act is the symptom of this problem, not the solution.

    • -j-

      Misappropriation is closer, but still not quite right; it still involves physical matter being taken and later restored. The concept is more similar to the man who sells fake rolex watches in the city than any form of theft.

    • Alexander Wehr

      To put it succinctly, a democracy is SUPPOSED to reflect the values of its people.

      Obviously this is no longer the case though, because despite majority opposition to taking legal action against swappers in even conservative polls, our congress continues to try to manipulate the population against its wishes to conform to the long deceased business models of hollywood and foreign record companies.

    • Alexander Wehr

      “what�re you gonna do when they then make Gnutella illegal and Ashcroft�s minions start tracking down all the Gnutella users? “

      I did some calculations on the time required to catch all the gnutella users if a concerted effort were made.

      with arrests at the rate of 10,000 people a month, and a conservative estimate of 60 million sharers, it would take roughly 500 years.

      If people become cowards, and 9/10 of all filesharers abandon the technology, that still leaves 6 million.

      it would take 50 years to arrest 6 million people.

      I certainly wish our government luck.. of course arresting 10,000 people a month for exchanging their cultural heritage is just asking for armed revolt.. but who knows.. maybe people will tolerate it for 50-500 years.

    • Alexander Wehr

      I have one model to counter said argument.

      In this model:

      1. Everyone pays a fee with their internet.
      2. Every operating system has a built in anonymous “tracker” that will keep a log of works accessed and report weekly to a central server designed to count uses of all works.
      (no information on identity at all would be needed, so no privacy concerns)
      3. Said system can distribute the funds.. and the level of use can be assessed to determine if the fees charged represent the value gained.

      This system could work, and even as a novice programmer I could design the basic technical framework for such a system.

    • Alexander Wehr

      I just wanted to ask the other Alex…

      if bits are matter, and cars are matter.. then why would it be legal to build a replica of a car but not to replicate bits?

      and also, intellectual property is an idea… you said bits are matter, and therefore intellectual property.

      Since intellectual property governs the idea and not the matter, than i would have to say that, since bits are matter, they are my property, and i have a right to replicate them

      The current perverted concept of “intellectual property” violates and disregards an individual’s right to personal property.
      There are two economic structures which come to mind immediately which are typpified by a lack of personal property.
      one is SERFDOM.
      another is COMMUNISM.

      both are considered unconstitutional, and yet by perverting the definition of copyright these large corporations and their owners are becomming the new “noble class” of the 21′st centry.

    • http://www.cs.duke.edu/~justin/ Justin

      Alexander:

      I don’t think the other Alex is going to hang around this thread. He never really answered any of my questions, and hasn’t been heard from in this thread for two weeks.

      Every operating system has a built in anonymous �tracker� that will keep a log of works accessed and report weekly to a central server designed to count uses of all works.

      No one in their right mind would use that. The reasons are extensive and will not fit in the margin of this webpage. :)

    • http://www.mrxsss.com/blog/ Mr. X

      Damn! I think that Alex dude should get his own blog… How many freaking comments did he leave on this post alone? I got tired counting…

    • http://www.mrxsss.com/blog/ Mr. X

      “when copying is so easy and cheap, how are we to reward and encourage creativity?”

      Real creativity is not motivated by rewards – creating is a reward in itself.

      Technology is governed creativity, just like art or music, they evolve hand in hand, and are beneficial to each other. They can pass as many stupid laws as they want, they won’t stop this evolution. And the reach fat people who pass those laws will disappear, just like dinosaurs…

    • Dan Lockton

      “Inducing another to commit copyright violation”. Who can really define to what extent someone is induced to do anything? If someone leaves the window open and I lean in and steal something, I can’t make the excuse that that person induced me to do it by making it easy to do so. Or can I?

      I might as well argue that the record companies are inducing me to download copied music by paying radio stations to make sure that I hear the same tunes every five minutes.

      It reminds me of a case here (a long time ago) in England where the Automobile Association used to warn motorists of police speed traps ahead. That was ruled to be assisting a crime. So the AA men started saluting every car that passed, _unless_ there was a speed trap. That way, they weren’t ‘doing’ anything in assisting the crime.

      Maybe if p2p software produced, on searching for a particular file, a list of addresses where you _can’t_ download the file you want, but somehow implied fairly simply how to form the addresses to get the files, then that wouldn’t be inducement?

    • Kim

      This whole induce issue is a symptom of a larger problem.

      The US government is simply too big, and too willing to create laws when there’s no real need. Most people in government now believe that the solution to any problem is to create another law, another bureaucracy, or both. Many new laws are created to satisfy corporate interests, and nothing more.

      Soon, everyone will be a criminal, because it will be effectively impossible to live without breaking laws.

      Then, the government can pick and choose who it arrests at will.

      Land of the free… what a joke.

    • http://www.homechoice.com John Slimak

      Doing some research does anyone have any updates on this issue? By the way Kim I use to line in NH and our Plate has the slogan “Live Free or Die”.