A Bad Bill

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In the United States, Senator Orrin Hatch has introduced what is being called the INDUCE Act.

Basically it says that if you build technology that enables copyright infringing activity, that’s an act of copyright infringement.

It’s a very clever bill with a fatal flaw.

Stripping Away The Hypocrisy

If passed, this bill would make those who enable widespread copyright infringement accountable for their actions.

For instance, it would strip away any possible argument that, say, a P2P software writer would have that it wasn’t their fault 99% of their program’s actual use constituted illegal activity.

It would also negate a false argument often tossed around in P2P land. The argument is that if there is any legitimate activity connected with the device, you cannot ban the activity.

People who make this argument say the Supreme Court said so in the Sony case. Not so.

What the Supreme Court really said in Sony was in essence, “Since Congress has passed no laws prohibiting the use of VCRs, we’re not going to prohibit it, either. If you don’t want people doing this, then pass a law against them.”

After Sony, Congress was perfectly free to pass laws against VCRs, and if they had, the Supreme Court would have almost certainly upheld any such law. Congress didn’t do that (they actually passed a law in 1991 saying VCR taping was OK), but it wasn’t because the Supreme Court gave them no choice in the matter.

So it’s not like Congress couldn’t pass a law against P2P networks. They certainly could, and anyone who tells you otherwise isn’t telling you the truth. This bill is an effort to do just that.

(Whether the Supreme Court would like this bill is another story, which we’ll get to later).

What is most interesting about the bill is the title itself and what its originator has to say about itre some of the comments. From this news article:

In remarks on the Senate floor, Utah Republican Sen. Orrin Hatch said peer-to-peer companies were exposing children to legal risks.

“It is illegal and immoral to induce or encourage children to commit crimes,” said Hatch, who as chairman of the Judiciary Committee oversees copyright matters.

Somebody “gets it.” What I have found most morally reprehensible about this whole copying problem is that in essence some groups have been using children as cannon fodder in this war, either to make more money (the computer hardware manufacturers) or to further their own political agendas.

The very title of this bill rips away the curtain of hypocrisy from these people.

No wonder why some are screaming so loudly about this.

The Fatal Flaw

If passed, this bill would certainly kill the P2P companies for whom it is intended. Rather than try to kill all the users, this bill would allow content providers to focus their attention on the chokepoints in the system; the dealers who make it all possible.

And lots more than maybe was intended.

If you sold computers mentioning the ability to copy music, could you be sued for it? If I were an RIAA/MPAA lawyers, I’d sure try to.

If you made CD or DVD recorders or MP3 players, could you be sued for it? If I were an RIAA/MPAA lawyer, I’d sure try to.

If you were a website or public interest group playing cheerleader to the kiddie cannon fodder, could you be sued for it? If I were an RIAA/MPAA lawyer, I’d sure try to.

The fatal flaw in the bill is that it is so general and potentially all encompassing that it opens the door for all kinds of lawsuits, including those meant solely to intimidate rather than adjudicate.

For instance, if the RIAA sued, say, the EFF, for “inducing” people to copy music, they might not win that case in the long run, but they certainly could tie the EFF up in a very long, expensive court battle.

This is barely scratching the surface. Give this to some inventive lawyers out to stretch the envelope, and we could have some real problems. Just off the top of my head, God help anybody making or even owning a photocopy machine.

Aim Next Time

This proposed law ends up being so vague and prone to abuse that it lets lawyers start shooting at practically anything that moves. In the long term, even if you agree with the intentions of the bill, that’s bad because it opens up the possibility that because it covers so much potential ground, constitutional issues may emerge as a result.

A more specific bill targeting those who ought to be targeted and excluding those who should not be would be a much better law.

This one just doesn’t cut it.

Ed

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