Induce No More
I have tremendous respect for the scholarship of Professor Larry Lessig, and I am honored to be asked to host his blog this week. I hope that over the coming 5 days, we will have a series of thought-provoking conversations. Your views and suggestions will be helpful to me as we consider a variety of matters that Congress is now debating or will take up next year.
Let's begin today with the hottest topic, the so-called Induce Act.
The Senate has under consideration a bill ( S. 2560 , often referred to as the Induce Act) that makes it unlawful for anyone to "intentionally induce" the infringement of a copyrighted work. By creating a new cause of action based on a subjective test, the legislation would overturn, or at least make irrelevant, the Supreme Court's objective test in the Betamax case ("capable of substantial noninfringing use"). The effect on device manufacturers, including computer manufacturers, would appear to be self-evident: They could not bring new multi-purpose devices (including software) to market without facing the threat of crippling litigation. They would either have to withhold from the market useful new technology or agree in advance to restrictions on the functionality of the equipment, perhaps even agreeing to specific technical mandates sought by content owners.
Although I have my doubts that the bill will make its way out of the Senate this year and be considered by the House, we could yet see the bill appear in some form before the House Judiciary Committee (on which I sit) either as freestanding legislation or as an amendment to a pending copyright bill. As we fashion a strategy to address this threat to innovation and technical progress, I would welcome thoughts on whether the Induce Act does in fact gut the Betamax decision, how its effect will be felt beyond devices, and whether it raises any First Amendment issues by potentially chilling speech (e.g., product reviews).
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Comments (84)
"legal hacks" and "half laws" designed to circumvent congressional intent for fair use protection.
"The effect on device manufacturers, including computer manufacturers, would appear to be self-evident: They could not bring new multi-purpose devices (including software) to market without facing the threat of crippling litigation."
While this allows a "direct" regulation of consumer electronics by hollywood, and severely hinders flexible general purpose technology, the DMCA indirectly does the same thing. Any time Hollywood or the RIAA want to prevent technological innovators from adapting their devices to interact with the content they make in a fair non-infringing manner, they can just put any form of DRM on it and sue anyone who makes a program capable of cutting through it for any reason.
These interests have found a new way to trick congress and the american people by splitting the implementation of their unfair agendas between congress and other private or regulatory bodies.
I like to term this tactic "half laws", because they figure out what they want to do, ask congress to get them half way there, then use someone else to fulfill the rest.
EX. first the DMCA to make it illegal to circumvent DRM, then the "Plug and Play" standards to assure the consumer is not given the choice of something without DRM . Presto , instant regulation of consumer electronics !
I'd like to note that before the DMCA there was a tremendous and growing sector of consumer electronics and personal computing speciallizing specifically in improving interoperability through "black boxes" and "decryption software / devices".
If people used these improperly there were already effective laws in place for their punishment, and meanwhile electronics and the computer became much more useful. Now, with this right to improve compatibility gone, the usefulness of the computer is being eroded, and the flurry of lawsuits is likely a cause for a disturbing drop in computer science/IT based majors and jobs.
Note: i posted this comment before and it somehow vanished with no trace, if for some reason it comes back and this is replicated i do apologize.
"More needs to be done to show that P2P software such as BitTorrent has “substantial non-infringing uses” - and not just share recordings of hearings over it (although that’s a good start)."
There is the fact that large companies like APPLE and linux developers use bit torrent to distribute developer betas and finished product to their markets via the internet
There is another significant use which could be argued as "noninfringing". There are many trackers which track works which may be either out of print, or, even though copyrighted, are for some reason not available in the region served by the tracker. Closing down said trackers would be equivalent to "banning" art.
P.S. since the nation seems focused on terrorism... the DMCRA could be argued on the grounds that encouraging consumer friendly innovation by placing hollywood in such positive reulatory control over consumer electronics and I.T. would be like encouraging a peaceful democratic iraq by putting Abu Musab al-Zarqawi in control of the iraqi government.
I would move further than simply saying induce overturns betamax. I believe you may be aware of a set of old bills by Fritz Hollings which called for mandatory drm on all consumer electronics? (the SSSCA and the CBDTA). This bill could be used to leverage the exact same effect as those hollings bills and MORE.
It could be argued that anyone who makes a consumer electronics device capable of playing files WITHOUT drm is somehow inducing people to infringe by refusing to block these restriction free files.
This would be absolutely devastating, considering the continued misuse of drm patents to unfairly limit competition and, restrict drm files to a single device, and prevent fair use with said drm.
Once the reviews and news got out, almost NOBODY would buy new electronics. The enconomy would become majority resale and repair, but then if the repairmen refused to embed drm into repaired products, well.. that constitutes inducement as well.
DRM should be illegal. (not all, just the type that deliberately restricts any possible legitimate use... in other words.. things like registration codes are fine, but things like the ironically named "fairplay" are not).
It equates to someone trespassing on your propterty, entering your house, and replacing the locks on all your doors. Of course, in today's analogy, youre breaking the law by smashing down the doors or calling a locksmith to get back in to sleep at night.
allow me to correct myself, and propse a different wording for my statement with a more "legalese" traslation:
It should be illegal to manufacture any "content protection" other than that required to insure payment has been rendered for said content. (e.g. serial numbers for software, but nothing which governs your propert after you buy it)
I am not being sarcastic. How will this bear on existing copy technologies like pen and paper, photographic film and photocopiers.
Given the fact that p2p is the precipitating dilemma for this bill, i would say those are at the end of a long list of technologies over which to exert control.
I would like to say that 90% of people aged 10-25 enjoy the past-time of downloading all kinds of material,both legal and illegal, and roughly 50% of people age 26 to 35 (from the last survey results i read). My observations confirm this. Banning or passing laws against this is a one sided solution which will result in another "war on drugs".
I call upon rep. Boucher (as the voice of sanity) to push for a privately administered collective license. I am at best a novice programmer, but even I could produce a program which could anonymously track anyone's usage of copyrighted works (to provide fair distribution).
If the underlying problem of p2p is not addressed in an equitable manner soon, draconian and ineffective bills like this will continue to be passed, and content interests will continue to wage war upon technology and the public until the strain on the fabric of society becomes too much.
Nobody can know for sure what would have happened in the Sony case under the Induce Act, but we can certainly find glimmers in the court accounts of that record. The Ninth Circuit stated that "there is no doubt that appellees have met the other requirements . . . inducing, causing or materially contibuting to the infringing conduct of another. The corporate appellees are sufficiently engaged in the enterprise to be held accountable."
The ninth circuit plainly stated that, on that record, "Videotape recorders are manufactured, advertised and sold for the primary purpose of reproducing television programming. Virtually all television programming is copyrighted material. Therefore, videotape recorders are not "suitable for substantial noninfringing use." Concerning authorized use: "That some copyright owners choose, for one reason or another, not to enforce their rights does not preclude those who legitimately choose to do so from protecting theirs."
The significant issue, though, is this: assuming that Sony were tried today under the rule of the Betamax case taken together with the Induce legislation as presently drafted. In view of the standards articulated there, it is clear that even if Sony could ultimately prevail, the plaintiff would survive summary judgment and could force a jury trial on its claim for damages. Since a jury can do anything, the risk of a jury verdict measured even by minimum statutory damages times the total number of copyrighted works would ruin the largest of companies.
Who would expose themselves to such risk who did not have to? Who would invest in a company that would?
The costs would literally be unmeasurable, because we would never know what innovation was chilled by the failure to raise capital or commrcial interest.
This is a nicley written analysis, and I agree with your conclusion. The savings clause for Fair Use in the DMCA was not effective because Fair Use is a defense only to allegations of copyright law infringement, not to the seperate crime of circumvetion, as created in the DMCA. Likewise, the savings clause in the Induce Act saying that its provisions do not enlarge the doctrines of contributory and vicarious copyright liability will be equally ineffective because the bill creates the new offense of inducing copyright violation, under which actions under the bill would be brought. Defenses based on contributory or vicarious liability would be meaningless.
Thanks for your helpful contribution to the discussion.
Being somewhat new at this, I see that my foreging response , which is in reply to the first posting by Seth Finklestein , was placed at the end of all posted comments.
Hopefully , my bloging skills will improve as the week progresses :-)
In response the Alexander Wehr's 7:42 am posting, I would offer several thoughts.
First, the DMCA potentially abolishes Fair Use of digital media by enabling a content creator to guard digital content with a DRM and then place the power of federal criminal law behind respect for the DRM. If a person who lawfully purchases media tried to bypass the DRM , even for a lawful purpose, such as backing up the item he has purchased, he is guilty of the crime of circumvention. When all digital media is guarded with DRMs, we will all pay a fee of every use and be barred from uses to which the content creator does not consent. Good-bye Fair Uses.
Second, the DMCA has inhibited the introduction of devices that have many useful applications but which circumvent DRMs in order to facilitate the useful and legal application. ( The software that enables a backup of DVDs comes to mind. Another example is an application that enables skipping of commercias on the leadin to movies on DVDs). With the loss of the legal certainty provided by the Betamax decision ( substantial non-infringing use) under the DMCA the introduction of any technology that circumvents DRMs has been all but halted . Even the ability to publish research results on the sterngth of DRMs has been called into question --a person who publishes such material is arguably "trafficing in a circumvention device" in violation of the DMCA.
I have introduced HR 107 to confirm Fair Use for digital media by permitting circumvention when the purpose of the cirumvention is to exercise a lawful right. The bill would also restore the Betamax standard of sunstantial non-ingringing use for circumvention equipment and enact a broad sccientific research exemption for the DMCA.
While the DMCA has effectively overturned the Betamax standard for circumvention devices, the Induce Act would overturn it for all other recording equipment. Anything that can facilitate the making of a copy could meet the broad definition of "inducing the infringment of copyright." Even general purpose computers with CD burners would be at risk. I honestly don't think the sponsors understoood the damage the bill would wreck on the technology industry when the bill was introduced by an alarming cross section of the Senate leadership both on the Judiciary Committe and in the Senate at large. Perhaps the hearing recently held by the committee has begun to reveal the harm.
Induce is so overly broad i've seen posted arguments stating that it could be used to sue anyone who decided to get a tattoo.
Many tattoos are images which are proprietary to one company or another.
By buying the tattoo, the person induced the artist doing the work to infringe the copyright on the image.
[additional expansion of this argument makes cases against the artist's tools and a rather weak and frivolous case against human skin itself : ) ]
"With the loss of the legal certainty provided by the Betamax decision ( substantial non-infringing use) under the DMCA the introduction of any technology that circumvents DRMs has been all but halted "
To put things more realistically as a techie living under the regime, i would say the jobs pertaining to circumvention have moved overseas, or underground in the US.
I've personally seen little change, save for the fact that everyone seems to feel compelled to break federal law all the time =), and the fact that, because the tools are mostly open (because the source wants anonymity), the income which would have been generated does not contribute to our GDP.
I agree with Steve Mansour that the Induce Act is intended to target P2P file sharing, although its effect would extend to a far broader range of copying technology.
Regarding P2P, I think the challenge for those of us in Congress who advocate the rights of the users of intellectual property and the technology that benefits them is to point out the many excellent legal applications of P2P. It truly harnesses the power of the Internet as the most efficient distribution mechanism devised to date. P2P is decentralized. It breaks away from the old confining client-server design to a far more convenient and rapid means of information disemination. My guess is that, assuming that we can hold off legislative efforts like the Induce Act, P2P will in several years be one of the most widely used means of fully legal information sharing. As obvious as this truth probably is to the participants of the blog, it would come as news to most members of Congress who have only heard the repetitive drumbeat from the entertainment industry of how destructive P2P is to them. Frankly, we could use your help in communicating its lawful uses to Members of Congress.
To dejardino1 and to others who may be asking if the Induce Act could potentially make unlawful pencils and paper, tatooing devices, ect, I believe that a literal reading of the language of the statute would ensnare these "copying " devices. Of course, courts usually apply a common sense standard along with the language of a statute( acknowledging perhaps that lawmakers do not always exihibit the common sense sound public policy making requires :-) . The fact, however, that the language of the statute could capture ordinary writing devices is graphic evedence of the lack of thought that accompanied its drafting.
Personally, its use to download music could have been lawful if the recording industry would accept a noninvasive licensing plan.
The companies have been continually offering licensing plans since napster. Napster as well offered license fees much like radio stations paid.
I think it is very important to point out the fact that these plans are being refused by the interested content industries, despite the fact that they are worth literally billions a year.
I ran some figures, and a voluntary fee of around $15 a month would generate rougly 10.8 billion dollars a year based on the conservative assertions that there are 60 million filesharers.
The obvious answer to the question of why is that the interested parties see opportunity to make their content "pay per use", which is precisely what is being edged toward by microsoft, with their recent "music rental" drm system.
Bravo, Andrew Greenberg.
If the Induce Act passes, the chilling effect on technology manufacturing and marketing will be enormous. As I suggested previously, in my view it repeals Batamax for recording equipment just as the DMCA did for circumvention devices.
I'm off to make a speech in a far corner of my district. I'll reply to the balance of the postings when I return a bit later today.
As much as I am enjoying the dialog, I'm afraid I don't have the luxury to stay with it all afternoon :-)
"As obvious as this truth probably is to the participants of the blog, it would come as news to most members of Congress who have only heard the repetitive drumbeat from the entertainment industry of how destructive P2P is to them."
If anyone cited their arguments, i would demand hard figures showing precisely how much damage, from what factors, and through which sectors of p2p.
if their assertion were true that every download were a lost sale, then they would have bought back 150% of the cd's they sold to me this year =). (250% of cds made each year are transferred via p2p).
At the risk of drifting off topic:
I personally would gladly debate the issue with Mitch Bainwol, but items i would bring up to defeat their arguments are, in turn:
I. pornography: google exposes the average user to as much pornography as p2p in a given search (and just as easily finds child pornography)
~when i did a project on jupiter a decade ago, i remember sifting through over 100 porn sites before finding relevant data on the planet~
II. viruses: microsoft outlook is widely heralded among IT professionals as "a running bioahzard" (if outlook is running, your computer is infected)
III. identity theft: if one is stupid enough to move vital personal/financial data into a marked shared folder, then he deserves to have his name stolen.
IV. easier hacking: many other programs such as instant messengers do this as well, but this is an operating system and network security issue.
V. military secrets risk: well, prohibit p2p only on military computers, and there should be severe penalties for leaking classified info already if i am not mistaken.
VI. "theft": I would say then that anyone who uses a faucet for water is stealing from bottlers like evian.
It is very important to invite economists and computer experts to debate the bills in question. They will most definitely shed light on any fallacies.
Lessig discussed University of Utah's professor Lee Hollaar's paper Sony Revisited on his July 7 blog entry. Thanks for your insights, Andy Greenberg. Senator Hatch seemingly swallowed whole the assumption that the "inducement" principle in patent law could be cut 'n pasted into copyright legislation. There are many of us who would beg to differ, and we have responded appropriately.
Senator Hatch in his floor statement openly admitted the Induce Act was written by the Business Software Alliance.
Senator Hatch:
In particular, I would like to thank the Business Software Alliance for its invaluable assistance in crafting a bill that protects existing legitimate technologies and future innovation in all technologies – including peer-to-peer networking.
This is a forum for questions, after all. Would you care to comment, Congressman Boucher, on the concept of grafting the "inducement" principle in patent law to copyright?
If I am misreading the issues, I'll stand corrected.
Does anyone worry about the continuing trend toward criminalizing intent. This is a really dangerous slippery slope. What happens when we waste so much time prosecuting intent that we don't have the time or resources to punish more traditional crime like battery, armed robbery, rape etc.
How, as a criminal matter, do you prove, beyond a reasonable shadow of doubt, someone or something's mal-intent; especially, if that someone is a legal fiction like a corporation.
Rep. Boucher...
It is great to see one of our elected leaders actually listening to average people on this issue, not just the K street crowd. If you are looking for an excellent general take on copyright (e.g. what American consumers want, why DRM is a bad idea), then I would highly recommend a speech that author/activist Cory Doctorow gave to a group of Microsoft engineers. His most salient point is that whenever copyright conflicts with technology, it is copyright that changes because copyright is a utilitarian compromise, not a moral law.
Thanks for your time!
A note: if requested, i would gladlly write a testimonial on the subject of p2p incorporating legitimate uses along with economic, tech, and personal perspectives as an informed member of the public. If ignorance is truly the cause, perhaps such a paper from an average person would sway opinion.
Apologies... a tag didn't work. Mr. Doctorow's DRM talk is here.
http://www.dashes.com/anil/stuff/doctorow-drm-ms.html
Thanks again for your time, Rep. Boucher.
Does anybody have the cheat codes for Super Mario Sunshine?
Thanks.
Stop now, Alex. You've exceeded your quota.
Intent of a law is one thing. Once it passes, its open season on whatever lawyers can "interpret" the law to cover (and the EFF already "busted" Apple, Toshiba, and several others as a demonstration). Look at what's happened with the PATRIOT Act. Shortly after it passed the Justice department was giving police lessons on how to apply the PATRIOT Act to everyday common criminals to make them eligible for harsher sentencing.
Existing copyright laws are plenty restrictive, in fact I'd say excessive (70 years after the artists death doesn't do anything for the artist. It only benefits the corporation hoarding their works).
There is no "right to an outmoded business model". Move on.
I no longer use RIAA products. I don't buy their music. I don't download their music. I don't listen to their music. I don't listen to their radio stations. I don't want to support companies that treat their customers as criminals. The Induce Act only serves to treat everyone as a criminal, not just the paying customers.
Thanks for the kind words. I was pleased to have the opportunity to bring this point to the attention of the Senate Judiciary during the hearings on behalf of the IEEE-USA. Our testimony raised several issues, focusing primarily on the importance of maintaining a sound balance. We noted that uncertainty in litigation indroduced by the present draft of IICA would greatly impact the balance: uncertainty as to the scope of liability, in the face of such ruinous damages from being wrong, is the practical equivalent of a rule barring innovation.
That said, it may well be that conduct-based grounds of inducement are not necessarily as problematic as the particular implementation in S.2560. As we noted in the testimony, IEEE-USA is equally concerned with the status of secondary liability after Napster and Aimster, in which the mere allegation of a theoretical capacity for controlling against infringement can be ground for liability, or at least enough to force a trial on the merits.
Control-based liability that is the status quo may well be both too much and not enough. Too much, in that innovation is likely chilled as innovators narrow the scope of networked services they provide in order to avoid a claim of control-based liability. And, not enough, in that it is straightforward to engineer around in some cases, leading to the result in Grokster.
It may well be that revisiting the overall framework for secondary liability in copyright by codifying Sony, significantly pulling back the scope of control-based secondary liability and providing a closely circumscribed conduct-based cause for inducement would be better for society as a whole, even though non-moderate stakeholders might be opposed to some of these ideas. But if we were to adopt a new form of liability for inducement, why would we ever select a standard that is broader or different from the well-tested and far more narrowly circumscribed standard under the Patent Act? To that end, IEEE-USA proposed a substitute to illustrate how such an approach might look.
But it is naive to think, however, that balancing of interests in this arena is anything other than a complex problem. Whatever solutions are proposed, they must be carefully examined, weighed and be made in gentle, baby steps in order to avoid unintended (and perhaps literally unmeasurable) consequences.
Whatever we do on this front, wherever we go from here, the Congress must recognize that they are both the guardians and architects of a balance that is essential for the promotion of progress. If we must rebuild the edifice anew for whatever reason, please, please, please, remember the fundamental principle of carpentry:
Measure twice and cut once.
First off, I have to congratulate Representative Boucher for doing something amazing in this day and age: listening and responding to actual citizens, not just highly paid corporate lobbyists.
I think one of the most important things to keep in mind is that Congress was specifically granted the power to give copy rights for limited times to advance the arts and sciences by the constitution. There is nothing in the constitution that grants individual or corporate ownership of copyrights they way we have come to know them. This doesn’t mean I think we should ignore the rights of copyright holders, only that we should realize that the power of copyrights are granted by the constitution to benefit the community as a whole not individuals and we as a community have the right to enact laws that ensure that fair use will be allowed and kept technologically possible since fair use of copyrights is needed for the advancement of the arts and sciences more than the opposite is true.
The induce act is perhaps the most disingenuous act of hubris I have ever seen. It is an act which seeks to vilify a technology (p2p) by attempting to associate it will material that is already illegal to create, posses or distribute and yet the INDUCE act would have no effect on the said straw argument since the FBI doesn’t need to INDUCE act and its contributory copyright infringement laws to prosecute child pornographers.
Further, as the well-known senator attempts to vilify p2p for destroying an industry which is having an excellent year, he has created a bill proudly touted as being technology neutral. Thus the bill doesn’t even target the technology it pretends to stop. Yet, the technology neutral wording would seek to ban any device that has infringing uses. This would include all musical instruments since they are often used to play copyrighted material without paying royalties to the publishers.
We should stop even discussing p2p in relation to the INDUCE act because the “technology neutral” INDCUE act has nothing to do with 2p2. The INDUCE act is an attack on any and all technology which is capable of copying any potentially copyrighted material. This includes pen, pencils, printing presses, player pianos, all audio recorders, the entire internet, e-mail, all cameral, phones, computers, software (especially software like word processors that have a “cut and paste” feature), and anyone who talks about or reviews any of these technologies. By even mentioning them in the context of potential copyright infringement I may be violating the wording of the INDUCE act right now.
The INDUCE act does nothing less than assume that all technology that can copy is guilty. This act will destroy our ability to innovate not only technology but in the arts and sciences as well, as we lose access to the technology we need to communicate to each other and create new ideas.
This is just probably gonna be a history lesson from a guy sitting out in rural MO but this RIAA/Induce stuff makes me angry. For anyone with half a brain the fight can be seen as by large cash empowered entities that wish to stop themselves from being disintermediated.
The question is always to ask what the industry is adding to the product. In the case of music in the age of the internet the answer is almost nothing if not actually nothing. They know this and we know that they know this...
As was said above, they don't even really want to license p2p because eventually the real producers of art are going to wake up and realize that they don't need folks who's lone necessity was to oversee hardgood production and distribution. The only way to stop that from eventually happening is to cut p2p and anything resembeling it off at the knees.
My point here is that this whole thing is still most often portrayed to the public as an issue of the public stealing from the rightsholders and not about an industry that is increasingly needless but which is throwing lots of money around to keep themselves in the flow of future cash. Or that what makes their whole argument fall apart is to put ones self into the shoes of an artist that lies outside of the industry and couple that with the idea that art has for only the most recent part of history been able to be seen and used as a consumer good.
We know, and we must shout it out as loud and often as we can the the future of art is not as a consumer good to be bought and sold but as an element of any creative society in which artists are going to have to be patronized instead of being bought and sold or thus consumerized.
http://www.livejournal.com/users/force_of_will/85417.html?mode=reply
And every bit of the idea, the direction, of the Induce and similar legislation is in fact, at least in part, of getting in the way of any artists that want not to buy into the corporate art machine but make and deliver their art to their fans using all the technology at their disposal.
Or the future looks like this. A p2p message that says "Here is my bands mp3/video. Enjoy it. And if you want to help us continue to make our art, please drop some credits in our account."
My position is just an echo but I find it necessary that echo it I should...
Carry the message congressman. And thanks for your time.
Will
to scott mattews, please visit www.megatokyo.com =)... this guy is a full time manga artist whose work can simply be pulled right off his site.
I've bought tons of merchandise from the guy, i assure you the american people are honest =)
To Will Rieffer, visit The Susquehanna Hat Company (sadly, the site is down right now), which is the home of former members of the band Too Much Joy. Basically, they give their songs away, but have a "Contribute to the arts" link. In the future, this will be the distribution medium for many artists.
I must echo the sentiment that this is truly an amazing experience, reading these posts. Cool heads, solid ideas. The model for the future.....
Will, thanyou. The media companies are basically lazy and don't want to depart from their mid-20th century business model. It's easier to invest your profits in the halls of Congress than to invest in new content and new methods of merchandising.
9th District represent, yo. :)
It's funny that most folks here in the 9th have no idea that you play this role, Congressman Boucher. Having grown up in the 5th District, I know that Congressman Goode is downright proud that he spends very little time in Washington and spends most of his time on bread-and-butter constituent services; good for getting reelected, but not so good for being an effective representative.
In the role that you have adopted, you aren't merely representing your district, but representing the interests of an important segment of the United States (or so we like to think :) that would otherwise go ignored. As one of the people who is represented by you in both regards, I offer double thanks.
Quoting Scott Mathews:
“Congressman Boucher, I’m a self-employed digial author selling my own work for a living. How should people like me feel about the ongoing “sharing” of our work over P2P networks? Do you propose to refine the language of INDUCE to more finely target illegal uses of P2P without causing risk to technological advancement?”
Well, I may not be Rep Boucher, but I have question for you, Scott. What as a “digial author [sic]” (or software developer) do you need in a law? The INDUCE act would outlaw the Andromeda software you developed with the slogan “drag..drop..stream” and any device and any operating system that can run it.
So, far from protecting your rights, the INDUCE act would bankrupt you. This is the problem with the INDUCE act. It is over broad. In fact, this blog that you and I are using to deliberate on violates the INDUCE act since it allows anyone to post copyrighted material, just like I did when I quoted you above. I consider that quote fair use, but you, Scott, might consider it a copyright violation and sue Lawrence Lessig, Stanford Law School, the author of the blogging software, the ISP and me under the INDUCE act. This kind of unprecedented and unreasonable hydrogen bomb level of legal power to control speech is not a benefit to society, or, really you, Scott.
To Andrew Greenberg:
Your quotation of "Measure twice, cut once", although
it sounds a very good advice at first, means nothing
in light of Congress' past dealings with copyright
and intellectual property rights. Unlike the real
construction where houses and buildings have to be
measured twice before they are cut and built because
it takes only few mistakes to turn the buildings into
a heap of waste, the proposal such as Induce Act does
not suffer the same fate. In other words, the act can
be measured and cut again and again. A fine example
is the copyright term extensions. Do you think that
the Copyright Act of 1976 was measured twice and cut
once? No, it was measured and cut again in 1998. Do
you think that it will be measured and cut again soon?
Some think so.
You may think that if Induce Act is carefully measured
down to femtometer twice and carefully cut once, it
will be that way for the next 100 years in the same
way as the very well-built houses that last for several
centuries. Sorry but that is just a fantasy.
I think that the world of carpentry has a better rule:
If a material is unfit for building, discard it. Your
organization IEEE should apply this rule to Induce Act.
Joseph Pietro Riolo
<riolo@voicenet.com>
Public domain notice: I put all of my expressions
in this comment in the public domain.
I'll take this opportunity to respond to several of the postings made during the past 4 hours.
In my view, the Induce Act is unnecessary. I do not think it is repairable or appropriately refineable. There are ample protections in existing law for copyright owners. I do not subscribe to the principle that every new technology that facilitates recording or information sharing must be circumscribed by new laws to prevent its misuse. In that respect, my views are rather libertarian and somewhat apart form the views of most Members of Congress who sit on the committees with intelectual property jurisdiction.
Some may find it unusual that a representative of a rural region in Virginia would specialize in information technology policy. I find that in doing so and in encouraging broader Internet usage and broadband deployment I am helping my district be more a part of the American economic mainstream. I appreciate the comments of Waldo Jaquith concerning my role.
I share Paul Cooper's vision that in future years artists will find P2P to be a major benefit . It will enable new artists to get thewir material before a larger audience more quickly and more economically and with greater returns for many artists than the traditional route of signing with a label.
I also appreciate the comments concerning my participation in Larry's blog. I'm sure I'm learning much more than the other participants . Having the benefit of your views and specific examples of harms the Induce Act can cause will be helpful in my efforts to defeat it as the Congressional debate continues.
Scott Mattews: you cant get higher resolution than a physical volume, but his pictures are very high resolution to begin with.
To gain resolution of the physical volume would require single picture files several hundred meg in size.
Sell some physical merchandise, sell ad space, and offer methods to pay for downloads. you wont be losing money over it =D. As a person with background in computer science, i can honestly say the only way to get rid of filesharing is to pull the plug on the internet. Working with it is the way to go. As long as you dont attack the technology the majority of people will respect you and your work. Notice cd sales didnt dip until the RIAA actually sued napster.
but tomsong was right, i've used up enough space on the response column.. sorry about the space thing rep. Boucher =)
I have a parting question before i *finally* shut up though:
If p2p companies are making so much money that record and movie industries are finding it offensive, why dont the movie and record industries just launch a p2p of their own, out compete them, and "steal" their revenue stream (solve the compensation and inducement issue with one stone)
When I did my law honours thesis on Article 8 WIPO Treaty, I considered whether putting a link on a website asking people to actively download something would be taking the author's exclusive right of "communication to the public".
Being in Australia, I am not very familiar with the Induce Act but it would seem to me that the provision is too broad and would cover linking, etc
Could anyone enlighten me on whether there are WIPO Copyright Treaty considerations in the making of the Induce Act?
Thanks to Congressman Boucher for his efforts here.
If Alexander Wehr is signing off, I guess I will try to take up some of the slack with some less erudite meanderings.
Some of these discussions get lost in the minutiae of the precedents (piano rolls and Betamax). This is clearly an area of law where small fixes by powerful lobbies in the middle of the night will not suffice. We need to go back to basics.
To begin with: intellectual property is not property. Certainly not of the kind referenced in the 7th Commandment's admonition "Thou shalt not steal". A thousand years ago, if I bought a chair you had made, I owned it, you didn't. If I started making copies, they were mine. Now, IP owners "sell" their product and still expect that they own it, having given up absolutely NOTHING (in the case of paid downloads). Understand: this is not some ancient right that is being upheld, but a deviation from how technology and especially art, have progressed in the past. Weak IP laws gave us Shakespeare and Mozart, strong IP laws gave us Jacqueline Susann and Britney Spears. We should act with some humility in altering the playing field of the creative process that, over the millennia, have bequeathed us our treasured art and science.
I certainly agree with the Founding Fathers that granting copyrights can promote art and science, if limited. I fear that current stakeholders, hugely powerful because of consolidation in the music and movie industries, are more interested in making money than promoting art and science. (Having three kids in college, I don't sniff at making money either.)
I find it interesting that, in the case of patents on drugs, the terms are severely limited compared to those for art. Is it really necessary for Mickey Mouse to be protected for 100 years, but few pharmceuticals get to be marketed, on patent, for even 10. My interpretation of this is that the Philistines in Congress (the cultured Rick Boucher excluded, of course) understand the intrinsic value of medicine, but can't see the value of art beyond the money to be made.
Commonsense would suggest that if anything, the pharmaceutical industry needs more time to recoup their investment, and Walt Disney less. The relationship between strong intellectual property right law and the promotion of art is much more tenuous than that between IP law and science and technology. If more and better art, like Mickey Mouse, is stimulated by 100 year copyrights, then why not encourage pharmaceutical inventions with the same terms? Because the key phrase in Article I, Section 7 is "limited time". And wringing a few more dollars out of an old creation is not equal to the advantages accruing with the wider dissemination that comes with knocking down IP right barriers after a more reasonable time.
To Mel in Australia:
My recollection is that The WIPO Treaty required signatory nations to pass laws protecting technical measures that guard access to copyrighted works. The DMCA was the US response to the WIPO Treaty.
The Induce Act is reportedly intended to be a response to P2P file sharing, althought its board provisions will capture virtually any recording technology.
I think Will's point suggesting the virtues of any form of widely available mode of content distribution is tremendously well-taken. Yes, no doubt, such flexible modes of accessing content is tremendously threatening to those who conclude that all Americans are potential pirates who would steal at will, given only the chance to do so.
On the other hand, a more optimistic, and certainly an economically consistent model, holds that Americans genuinely love our art and culture, and genuinely wish to support it as much as possible. Note well, Americans tip, always have and often will. Only the snootiest of places these days insiste on a mandatory gratuity, and even then, probably to the detriment of the waitperson (at least for me).
It is quite possible, and from my admittedly anecdotal experience with friends and iTMS, likely, that the attraction of p2p networks was their ease of use and wide access to a broad variety of content on demand. Had content companies provided even a comparable service, even today, it is likely that they might have dramatically owned the marketplace. Gary's remark during the hearing, waving a bottle of water, that you certainly can compete with "free" with an excellent product was very telling to all but the most cynical.
I was enlivened by my Wizardry co-author, Robert Woodhead's story about his website selfpromotion.com, which provides remarkable content and services to whomever asks for it, and for whatever the user cares to pay, including nothing at all. He has earned a wonderful income as a result, and happily touts the business model to anyone who will listen. Indeed, there are those who derisively scorn the idea, but Robert was laughing all the way to the bank.
What is the cost to society, in terms of incentives to future artists and content-makers, of passing laws today that preclude them from having access to mass-markets on whatever terms they desire? Should the legislature, or the marketplace, decide what content and culture we should enjoy? This is the fundamental question raised by these technology mandates.
Scott Matthews: Some techno-anarchist-revolution talk:
When I was young, I built a collection of some 300 vinyl records only to see this collection made obsolete by the record industry the RIAA represents. I rebuilt my collection with over 500 CD's, spending a lot of money on songs I had previously purchased and had a right to listen to without further charge. Then I found out that, contrary to US law, the masters of the RIAA had illegaly overcharged me for my CD's through price fixing. They offered me $20 in compensation for this theft.
Price fixing is stealing!
Fool me once, shame on you, fool me twice, shame on me, but fool me thrice, well, as President Bush noted: won't get fooled again. So now I put my music online so that I can access it even when I travel. I do not encourage nor condone illegal downloading. But if I download a song I have previously paid for, or put my music online for my own convenience, the RIAA claims I am stealing because someone may find it and download it. This is the same as saying, if I watch a DVD on my big screen tv in the porch, and my neighbor looks on from outside, I am stealing by allowing them to avoid paying for their own DVD. This is nonsense.
The RIAA's masters are admitted thieves. And now they threaten to sue me?!
Scott: Maybe that techno-anarchist-revolution talk is warranted.
To Epistomology:
A most thought provoking contribution.
You properly point out that IP laws are not like the laws that confer rights to chattels ( for the non-lawyers, that's physical things). The IP laws are intentionally pourous with limited terms, the immensely valuable Fair Use exception, a variety of complusory liscenses, ect. In that respect US IP law is very different from the more absolute nature of the rights conferred by the IP laws in Europe and Japan. I would suggest that the excellence of the US entertainment industry and its unparrelled success has occurred because of and not in spite of our pourous laws.
There was no justification for the recent copyright term extension. All that it did was serve to protect works like Mickey Mouse that had long been in existence. It's hard to argue that a 70 year term gives rise to any greater incentive to create than a 50 year term. If you produce soemthing that is really good, you're going to get rich either way.
I also agree that if any longer terms are justified it would be in the patent field where clinical trials can reduce the exclusive marketing period for new durgs to less than 10 years in some cases. The Hatch Waxman provisions allow recapture of a portion of the lost time, but some additional time for pharmaceuticcal products that must undergoe a lengthy clinical trial period would have merit.
It's 10 Pm here in the East, and I am signing off for today.
I would like to thank everyone who has participated in the conversation. It's clear to me that the introduction of the Induce Act has generated a level of opposition that exceeds the opposition attending the introduction of the DMCA in the 1990s. I find that fact encouraging. Perhaps it signals a more involved citizenry that will speak up when technology mandates or other technology threatening proposals surface. We could have used your indignation when the DMCA was debated. We can use it now as we seek DMCA amendments, but more on that later this week.
Not to beat a dead horse, but I think that most of the problems from new efforts to regulate these new technologies (eg. DMCA, DeCSS) come from a myopic concentration on maximizing the value of current IP holdings, and not on how the cross pollination the Internet provides can enhance science and the useful arts for humanity. I think the free interchange of ideas, art, etc. will, in the long run, far outweigh the loss in value the current stakeholders fear. And I strongly believe new business models will emerge that allow IP right owners to profit. For example, I think it likely that companies, if not ad agencies, will eventually buy hot new bands, allowing them to develop in the idiosyncratic way necessary for credibility among young people, while deploying them strategically to their marketing advantage.
The Internet wires together human minds in an unprecedented way, and I think that the RIAA and others are attempting to cut the connections before we even realize what Al Gore wrought when he invented it (ha ha). And this for narrow business reasons. Unfortunately, most members of Congress are way behind the curve in appreciating the power of the Internet they are so quick to bottle up.
Fear not file sharing.
Quoting Scott Matthews:
“People seem to like to enjoy suggesting that INDUCE would bankrupt me for my software, Andromeda. But I’m just not worried about that. “
I think there we can agree, you just aren’t worried. I personally feel this is because you don’t feel you would be covered by INDUCE because you didn’t set out to make a pirate platform, but you know full well that your product can have infringing uses and that is really all that it takes for you to fall afoul of INDUCE. Actually, I would say this is the heart of INDUCE. You feel that because your Andromeda software has substantial non-infringing uses that you are exempt but your dual use software is exactly the kind of technology that INDUCE targets with its hand grenade-like lack of precision.
What you still haven’t said is what new laws, if any, you feel you need as a software developer to protect your IP in ways that you are currently not protected. Please, as an experienced developer tell us what laws you need to ensure your financial success and how you have been hurt under the current system
Now, you asked me, “Or do you just like to talk the techno-anarchist-revolution talk?” Yet nothing in my posting spoke of anything of the sort. This is the kind of hyperbole that gets us nowhere, suggesting that anyone who thinks the INDUCE act is overbroad must be “techno anarchist” is the kind of overblown rhetoric that avoids the issues at hand.
As has been said on this board, intellectual property is not actual property in the same sense as a house or land are. Those kinds of property can be handed down for generations and owned forever. However the constitution (that document we all know an respect (*cough cough*)) says that you may not own intellectual property indefinitely since the constitution grants congress the power to give copyrights only for a limited time. Pointing this out does not make me “Techno Anarchist,” it makes me slightly the opposite, a strict constitutional constructionist. If republicans and libertarians were really logically consistent they would also support strict constitutional constructionism and would support the repealing of the excessively long copyright extensions and the DMCA restrictions which de facto criminalize any fair use of any DRMd material for even editorial or scholastic purposes.
Thank you all for thought-provoking insights on the Induce Act. This is after all legislation proposed in the Senate (and Boucher has no direct involvement yet.)
As an aside, last year a certain member of the Board of ASCAP called Leahy and Hatch at home on a weekend, and filled their heads with talk of terrorism and security holes leaking from useage of music services. Immediate zap and all music stops in the office spaces.
Nice move, one sure to invoke respect amongst the younger staff.
My own feeling is that the Induce Act will be buried in the Upper House, which in no way obviates our continued response. As Congressman Boucher acknowledges, our numbers are swelling. It would have been cool to have had such impact back in the DMCA discussion—era.
We can turn our attention to Congressman Boucher's RFC (request for comments regarding copyright abuse horror stories and the DMCA chilling effect for small businesses and venture capital. The DMCRA is snowballing support, and we need to put our greatest efforts to that purpose. Call your Congress person now!)
May I suggest a provocative question for tomorrow or some later time.
Comgressman Boucher, my understanding is that the empowering of the Federal Music Judge will give us all a proper forum, one that has industry experience and a continuity with which venture capital may feel secure.
How is it going? May we expect bipartisan consensus to quickly move the HR 1417 legislation through both chambers of Congress?
Thanks guys for letting me help fire up the techno-anarchist-revolution talk such that now I'm sitting around wondering if I am a techno-anarchist-revolutionist. Or perhaps just a guy looking at the future.
Here's the question. Can the RIAA and it's ilk really hold on? I don't think so despite whatever they try and do and if that is true then what IS the future model of a form like music recording? In terms of anarchy and more specifically revolution there isn't a lot of force to the issue besides just some tech that wants to be free. If one is talking about anarchy and revolution then its more about the kinds of pervading anarchy and revolution that we are witness to every day and not some more organized human endeavour.
If my vision, which in fact I begged, borrowed, and stole from guys like Lessig and Doctorow and others, and which I assume to be shared by others, is the truer one they can't cut this off and the world is gonna be up for a major change. When might be the only question and what this - Induce and its ilk - is about is us as a society wasting time.
Thanks Andrew for the Woodhead link because it's ideas like these that seem like they can be the only future and it's a dramatic and possibly drastic shift in our perceptions on the matters at hand. As my point was, in the further past, art most often had to be patronized as it wasn't produced in any sorts of forms that could be mass marketed. Books were scribed by monks over months or years, and many musicians played for a hot meal.
And it all seems to lead back to a future that's going to look back on this sort of escalating "copyright" bollocks and DMR lockbox technology as a childish scuffle and waste of time and energy because the genie is out of the bottle and won't go back in. Now we have to live with it and more importantly make use of it.
At the end I fancy myself an artist and whatever works I create I don't know if I'll get one friggen red cent for them. It may be better that way. Perhaps not. I might like to use that money to go the see the next new movie on the big screen and get in that an experience that I can't have any other way.
But you know, don't take away one single bit of tech that'll make it possible for me to web publish and file transfer whatever doodles, scratchings, and noise that I might come up with to the best of my abilities.
Will
Scott Matthews:
I am not suggesting I have a right to download others' works without paying for it as you can see if you read my post above.
Are you suggesting that, because the RIAA's members are frequently ripped off, that they can bully me into stopping doing what is legal; leaving me to prove I am innocent at great expense? What right have they to haul me into court for putting my CD's where someone can copy them without my permission? Since they have ripped me off at least twice, I'll make a deal with these bandits who have shown less respect for my property than I have shown toward theirs: Let us pay a one time fee for use of copyright books, movies, and recordings, and let it be registered so that I will never get charged again for what I have already paid for. The RIAA will never agree to this because they have made billions off of changing formats, overcharging on the new formats, and producing shoddy, jewel boxes to sell CD's in, to almost guarantee their spoiling. In other word: charging over and over for the same property.
Sorry Scott, you are on the side of bandits, and you lecture me about theft? But these Philistines are worse than that. They would carve up our intellectual and cultural heritage for a bag of gold. No copyright laws at all would be better for society than the narrowminded regime envisioned by those who support the Induce Act, DMCA, Sony Bono Act, etc. When the Internet promises to unleash a torrent of creativity, the lawyers and businessmen would throttle the infant in its crib to steal its juice. They know not what they do. The inducement of money means a lot less to the creative spirit than they imagine.
I grew up in the academic community (my brother and father are widely published in chemistry and medical journals respectively) and I have enormous respect for the academicians' understandable desire for provenance in intellectual creations. However, I think the academic community, whose goal is integrity and understanding of our creative heritage, have been mimicked in their methods by the legal and business community, where money, not intellectual honesty nor even creativity, is valued most. Copyright laws are to increase science and art, not to make a moral statement about provenance. Consider how changing a line in a book is considered a desecration. Why? Some great books could use improving on. This is the legacy of the academic community on the artistic one. Innapropriate in my mind. Should modern orchestras only play music in the style in which it was written? Or should they let modern tastes color the performance? The slavish respect we have for original creations is appropriate in the academic community (even essential!) but is misplaced in the artistic world, where the audience matters. And I think it is a new phenomenon.
I find it the height of arrogance when I hear people speak of their creations as if they took place in a vacuum. The most talented artist is a drop of water in a cultural stream not of their making. Their forefathers bequeathed them the idiom and themes they use. If some useful or enchanting variation on your cultures' heritage is invented by you, then let's reward you. But let's be honest: 99% of what you invented was provide you at no charge. Try your invention without the language and culture you grew up in: your invention would make no sense (like Japanese Noh theater to a naive American audience) without the myriad touchstones we share. And the magic of new creation isn't so magical. I don't know the software you wrote Scott, but if there were no financial reward for its creation, do you think that the world would be bereft of its advance on its progenitors? I find it interesting that (without strong copyright laws to protect them) Newton and Leibniz came up with calculus contemporaneously, as Darwin and Wallace thought up the theory of evolution by natural selection at the same time. There is more in the zeitgeist than is dreamed of in your intellectual property right regimes.
I remember the early days of rap music. It's immediacy and vigor. I think that when Biz Markie was sued for sampling Gilbert O'Sullivan on "Just a Friend" we veered off from the kind of charming eccentricity he represented, or the politicized content of Public Enemy, into the more commercially viable, execrable gangsta rap and its heirs that we now have. Art in the modern age can't be held up while lawyers vet it. An art form is being lost. We will never know where sampling would have taken us if copyrights were more limited. Few of Shakespeare's plays would be likely to survive intact if our modern copyright regime and lawyers were sent back to vet his sources.
And in the business world: do you think it would be a good thing for SCO to prevail in their battle against Linux? And it is just not true that bits of politicized humor like Jib-Jabs "This Land Is Your Land" would all get made anyway if copyrights were as forcefully protected as the businessmen would have us do. Our cultural heritage is being bargained away in a way unprecedented in human history. We are told we will richer for it. I doubt it.
As Shakespeare said in Henry VI, Part 2:
The first thing we do, let's kill all the copyright lawyers.
Excluding our indulgent host, Larry Lessig, of course.
And thanks again for Congressman Boucher's time.
End rant.
Someone will get richer, it's just not likely to be us!
An irrelevant question, but one that needs to be asked...is downloading theft, or promotion? When I was younger and much poorer, I would borrow records from friends and record them onto tape, simply because I could not afford to pay for the record and also pay rent. Even if I had not made that tape, I would still have not bought that music. So the record label was out the money either way. Now, most of the downloading being done today is by young people, most likely under the age of 22, students, people who, by definition, don't have the kind of disposable income necessary to purchase music in large quantities. So this music would never have been purchased by these downloaders, it's "false sales". However, the more popular the download, the more that music is discussed, and the more likely others with more disposable income would buy it. The hip-hop industry figured this concept out years ago. Prerelease recordings of new tracks would be "released" onto the street, for free, to get a buzz going about a new artist or release. By the time the recording was actually available, the demand for it was already high. So, in reality, is the RIAA cutting off their nose to spite their face?
Personally, I use P2P as an auditioning tool. I can't find music I like on the radio, the radio is owned by Clear Channel. So I download music I've read about, heard about from friends, or just randomly pick bands or songs because something about the name of the band or song appeals to me. I listen to those downloads for a while, what I like, I buy, what I don't like, I delete. If I hadn't downloaded those songs, I would never have bought the CD later. Those are "real" sales!
Will Riefer, dear, we are NOT exposed to anarchy and revolution every day. You are thinking of images you see on TV, not in your community. Nor mine, thank god. My children are growing up lucky in a peaceful, prosperous US.
If you try scaring them often enough, you might start believing it. Booh. DUCKANDCOVER*
*Go to the mortality tables.
Look for "terrorist attack".
You'll find it under murder.
Notice the 19% blip in 2001?
Scared yet?
American girl that year? Average life 80 years. Relax, sweetie, you'll scare the children. Or worse, yourself.
Scot Matthews:
Bands owned by corporations must have been tried (at least unsuccessfully) already. This is no dysptopian vision. If some good music is made by an owned band (the Monkees? De gustibus, non est disputandum) who am I to say nay? It won't be the only game in town, as usual.
Concerning Will Rieffer's post: the thought about disintermediation of the involved industries is keen. Here's what I want to address:
"We know, and we must shout it out as loud and often as we can the the future of art is not as a consumer good to be
bought and sold but as an element of any creative society in which artists are going to have to be patronized instead of being bought and sold or thus consumerized."
The patronage is just another form of business deal, albeit much more egalitarian than what RIAA offers artists today. I doubt we shall ever see the day when excellent art is abundant, without a strong monetary incentive present. Many great artists have shown themselves to be extraordinarily productive when paid, and t