November 24, 2004  ·  Lessig

So months ago, I posted this odd post, titled “INDUCING gun control legislation”. I had to pull the blog post because the Washington Post had accepted something close to this op-ed. At the time, of course, INDUCE was looming. Activists, including Public Knowledge, EFF, and industry has now of course succeeded in stalling the legislation for now.

The basic point of the op-ed is obvious: There’s no difference in principle between regulating p2p manufacturers, and regulating gun manufacturers. Both make products that do harm; if you believe PK/EFF w/r/t p2p, and the NRA w/r/t guns, then both make products that do good too. If you want to be principled and distinguish the two, you’d have to say either that the harm caused by one is much greater than the harm caused the other, or that the good produced by the one is much less than the good produced by the other. By my reckoning, such an effort to distinguish would doom gun manufacturers, not p2p manufacturers.

Anyway, there’s a bit more to the argument in the piece itself. But one point I want to make clear: My argument is about what a principled Congress would do. It is not a prediction. It is of course “naive” to believe Congress believes itself constrained by “principle.” But if principle is absent, then please, let these Congressmen drop the self-righteousness as well.

  • http://davefriedman.blogspot.com/ Dave

    Of course expecting Congress to be principled is a way to be continually disappointed.

  • http://www.mutualist.org/ Kevin Carson

    This is an excellent tactic against the IP Nazis.

    But I fail to see how the anti-gun application is a “silver lining.”

    The state’s enforcement of copyright monopolies that limit the free flow of information is evil. Attempts to impose a state monopoly on the individual right to self defense is evil.

  • http://actusre.us cj

    I think the key distinction between p2p regulation and gun regulation is that, if you listen to the content owners, p2p regulation has everything to do with the blessed U.S. economy, while guns only take a human toll. In Congress, money talks, humanity walks. At least that’s how it is these days. People older than me can probably remember a Congress that passed civil rights legislation and sweeping environmental legislation.

  • http://robinjones.us/beyondsalvage robin

    Kevin Carson is right, but he doesn’t go far enough. Guns are good. If everyone carried one at all times, the country would be much, much safer. (Well, not for criminals). If you’re counting on the State to do anything, much less say protect you, you’re either hoplessly naive or willfully ignorant.

  • http://www.lawhacker.com Andrew Greenberg

    The parallel is obvious, and its import on the merits is clear. To that end, I will observe that it is not so obvious which way that parallel cuts. Should a gun company be liable for inducing wrongful and criminal uses of its products, selling it to a criminal after pointing out how it can be wrongfully used and profiting thereby?

    Moreover, while there is not necessarily a civil action for inducement in that case, the United States Code provides for criminal responsibility if the acts and scienter elements were as clear in this case.

    If the standard for S. 2560 were comparable, requiring affirmative acts of inducement of actionable uses by customers, combined with knowledge that the actionable uses would occur and the specific intent that the act constituting an actionable use would occur, I don’t really stand against secondary liability in such a case. Advertising and affirmatively promoting non-dual-use conduct seems like something that could, perhaps even should, be proscribed.

    Indeed, IEEE-USA proposed that a standard, akin to that for patent law, could be reasonably adapted to the Copyright Act without unduly impinging on the policy of the Betamax case. The problem is that the bizarrely broad and ambiguous standards of S. 2560 and the two Copyright Office proposals were nowhere nearly as restrictive.

    RIAA required nothing less than a “no Grokster-or-anything-else-that-Grokster -might-try-to-make” bill — a “Grokster Go to Jail” card, if you will. Nothing less would do, and they would broach no compromise. This bill was never about Oliver and Fagin — it had nothing to do with wrongdoing or bad acting. It has solely to do with whether RIAA could get a second bite at the apple to find liability, where the courts expressly told Grokster what they had to do to comply with the law, and Grokster complied. Unsurprisingly (except for cynics about judicial process), Grokster won that argument on the merits, and happily, they won in court as well.

    Accordingly, it is something of a tactical error to fight these claims on the merits, because Oliver-and-Fagin has nothing to do with why RIAA wanted that legislation. It is more like an anti-gun organization that could not care less whether the gun company actually promoted criminal acts — they just wanted the gun company bankrupt. Both claims are unjust and unrelated to public policy. This is in sharp contrast to the public policies on which proponents of such legislation might hang their hats.

    The analogy war, accordingly, however apt, has only merit so far as demagogical advantages might permit. It will likely work for certain fora, but not others. While it might appeal to a Senator Hatch or other NRA proponent who can be made to hear the argument, it is more likely to offend and cause them to bristle.

    Best tactics, I think, may be to propose a counterproposal that is reasonable — watch the proponents balk and complain, and use that resistance to prove your point. That approach, which has the great virtue of requiring only that the opponents be reasonable and argue the merits, seems to have worked this time. There were many “opposition” counterproposals, all of which responsibly addressed and proposed alternatives that would not suffer from the parade of horribles. We should consider other ways to use that technique.

    In particular, what can the brilliant minds on our side of the aisle propose to resolve the burning secondary liability issues, technical and/or legal? The more we provide, the better our chances of forcing compromise or shutting down an uncompromising opponent.

  • http://www.robmyers.org/ Rob Myers

    Guns are good. If everyone carried one at all times, the country would be much, much safer. (Well, not for criminals).

    If everyone carried a gun, muggings by snipers would be far more common and ‘Rohypnol’ would see increased use in assaults and robberies.

    Criminals don’t play fair.

  • Max Lybbert

    Rob, how would the sniper then collect the loot? Everybody on the street would be armed. …

    The fact that criminals don’t play fair is exactly why gun control laws don’t have any effect on what criminals choose to arm themselves with. I don’t know current numbers, but I remember when 80% of guns recovered from crime scenes were stolen. Gun control laws can only have any effect on the other 20%.

    I think the Induce act as gun control is an interesting idea. I can’t think of how it coul stick, but the tongue-in-cheek point is that if Induce isn’t good enough for guns, it isn’t good enough for copyright.

  • http://sethf.com/infothought/blog/ Seth Finkelstein

    I think a person who is both pro-gun and pro-tech-mandates believes that:

    1) The vast majority of gun uses are lawful by good citizens, and the comparatively few unlawful uses by criminals shouldn’t ruin it for everyone else, including the innocent manufacturers.

    BUT

    2) The vast majority of file-sharing uses are unlawful by criminals, and the comparatively few lawful uses by good citizens shouldn’t save it for everyone else, including the guilty manufacturers.

    Note people can – and do – argue over whether those two statements are actually true. But honestly, the above isn’t a logically inconsistent position. And it’s over-geeking to impose a rule that they must be treated the same. Maybe it does work rhetorically, I’m not good at politics. But I think intuitively such an abstraction runs up against the conception of a fact-specific situational determination, even if that’s not often articulated so precisely.

  • http://thinkindifferent.org glen

    The parellel is close, but there is one huge difference between the two cases. Congress only wants to extend liability to manufacturers of one type of communications technology. There are plenty of other communications technologies that are entirely unaffected, so this move has only a limited effect on freedom of speech. Gun control activists want to extend libility to the manufacturers of any sort of gun, which would effectively eliminate the right to keep and bear arms.

  • http://www.aaronsw.com/ Aaron Swartz
  • Jardinero1

    I have been entertaining this pet theory that Orrin Hatch supports INDUCE legislation because it could be twisted around to INDUCE”reproduction technology” i.e. abortion services.

  • http://lemi4.blogdrive.com fERDI:)

    This is an excellent tactic against the IP Nazis.

    But I fail to see how the anti-gun application is a “silver lining.”

    I would imagine that somehow Mr. Lessig’s choice of words is intended to attract the attention of conservative right-wing gun lovers; perhaps so that said gun-lovers would feel their gun rights threatened enough to become induced (pun intended) into supporting P2P freedom.

    If it is so then I say excellent, brilliant target-audience psychographic analysis, Mr Lessig:)

  • praetorian

    neither p2p nor firearms are capable of harming anyone… it takes one ingredient that liberals seem to feel does not exist… it takes the act of a human being to use them both in a harmful manner… it takes a belief in law and order to prosecute someone for using either in what society feels is an irresponsible way…

  • praetorian

    it’s called responsibility – showing it earns you the right to use both p2p and firearms, not showing it forfeits that right… just another example of how liberals are attempting to make the world a better place by protecting us from ourselves…