INDUCE, Reloaded

What Is Covered Under the Bill

The bill says says “dissemination technology” is covered under the bill. What does that mean? The bill says,

“dissemination technology” means any product,
service, device, component, or part thereof, that enables or facilitates the distribution of copies of
a work to the public, performance of a work publicly, display of a work publicly, or the
performance of a work publicly by means of a digital audio transmission.

In English, that means everything, from an ISP to an MP3 player to copying and P2P software. There is no attempt to exclude
anything that might be used to copy copyrighted work by definition.

This doesn’t mean everything is bad. What it does mean is that any activity or product covered under the bill needs to fall into
one of the “OK” areas.

As we shall see, this is not so easy to do.

What Is Not OK

The bill lists a number of items that are definitely not OK. However, what the bill doesn’t say is “these are all the bad things to do,” but rather “the things that are bad to do include these things.”

A lawyer could reasonably argue that a particular practice not included in the list below is still bad, and should be forbidden. This wouldn’t be so bad if some of the definitions of “bad” were phrased in general terms, but as you’ll see, they’re not. They tend to be specific.

Anyway, the examples of what is definitely bad to do are:

distributing any dissemination technology that, when used as intended, automatically
causes the user of the technology to infringe copyrighted works without the user making a
specific, informed decision, for each copyrighted work at issue, about whether to engage in such
infringement

This is rather oddly worded language. I think it’s trying to say that P2P software can’t automatically put
any downloads into a shared folder, but the language doesn’t necessarily mean just that, and I could very well be wrong about its
intent. The key word here is “causes.” Generally speaking, P2P software may “allow” or “enable” someone to infringe copyright, but it doesn’t “cause” it.
When you look at the rest of the bill, you suspect that the writers are using “causes” as a synonym for “allows” or “enables,” and it isn’t, which a court will readily point out to them in due time.

A secondary issue is the requirement that a user be able to make a “specific, informed decision for each copyrighted work at issue.” It could be
easily argued that a “specific informed decision” would have to include some indication that a file to be copied would need to have accessible copyright information
within it, and that any “dissemination technology” would have to be able to find it. From there, it could be then argued that if a file doesn’t have such information, any “dissemination” technology should not allow
any copying.

This clause definitely needs to go back to the drawing board.

actively interfering with copyright holders’ efforts to detect infringing uses of
dissemination technology and enforce their copyright against those uses

Again, we have a case of “what do they mean” vs. “what does it say.” Those who drafted this seem to mean programs like anonymizers and other software
which technically make it more difficult to identify infringers. However, it can also be read to mean that an ISP that goes to court to quash
a subpoena requiring them to disclose the identities of infringers is committing an “overt act.” I doubt that would hold up in court, but some lawyers would try.

There may come a time when such an interpretation (or specific clause saying just that) would make sense. If turning over subscribers’ names becomes
a well-settled point of law universally upheld by all courts, frivolous attempts to squash subpoenas based on repeated rejected contentions might justly
be “interference” (and there are penalties against frivolous legal actions here and there elsewhere in U.S. law).

However, we are nowhere near that point legally yet, and if the wrong judge reads that as a legal requirement, he might very well toss that section of the law out of the books altogther.

The clause should be amended to restrict “interference” to technical interference, and worry about frivolous legal moves later.

offering an incentive to users of dissemination technology to make infringing use of
the technology, such as providing improved performance of the technology in exchange for
infringing distribution of copyrighted works

This appears to be aimed at applications like BitTorrent, but again, the language is rather loose; the description is used as an illustration, not a restrictive definition.
What an “incentive?” Is seeing MP3s of all your favorite songs available for download an “incentive?” Is being able to copy them to a CD an “incentive?” Certainly some lawyers would argue that.

failing to take reasonably available corrective measures to prevent any continuing
acts of infringement resulting from overt acts described in subparagraphs (A)-(C) of this
subsection (2) that were committed before the effective date of this subsection

This would seem to require that P2P software be revised to stop doing bad things. However, since it’s not clear just what all the bad things are, even if the P2P folks had the best of intentions, it’s hard to see how they could comply with this.

distributing a dissemination technology as part of an enterprise that substantially
relies on the infringing acts of others for its commercial viability or the revenues of which are
predominantly derived from the infringing acts of others.

At first glance, this would seem to target P2P and copying software companies. But does it? If Pioneer makes DVD recorders, and if it is determined that DVD recorders are mostly used to copy copyrighted movies, would they be subject to this? The only other reason under the law why they wouldn’t is because Pioneer sells plenty of other things.

But if that’s the case, then why couldn’t Microsoft come out with MSKazaa and be protected for the same reason?

What is “Good”

I put the term “good” in quotation marks because falling into one of the “good” categories doesn’t necessarily save you.

The bill says, “For the purposes of this subsection, and absent any other overt act, an “overt act” does
not include”

In English, that means that it’s not enough to just do something “good” to be protected, you can’t do anything “bad” either.

As we can see, this isn’t so easy to do either:

distributing any dissemination technology capable of substantial noninfringing uses
knowing that it can be used for infringing purposes, so long as that technology is not designed to
be used for infringing purposes

What the hell does that mean? If an ISP transmits a “bad” copy of P2P or copying software, are they liable? It would seem so.
Is a DVD recorder “designed” to be used for infringing purposes? Depends on your definition of “designed.”

Deciding whether or not DVD recorders are “designed” to be infringing would be downright easy compared to deciding the same about P2P software.
Could something like Kazaa ever be “designed” to NOT be meant for infringing purposes?

distributing any dissemination technology that incorporates reasonably effective
measures to prevent or halt dissemination that constitutes infringement within the meaning of
this subsection

This could be interpreted a lot of ways. It could be taken to mean that if a DVD recorder or DVD copying software can’t break CSS-encrypted files,
it’s OK, maybe. Depends on what “reasonably effective measures” gets defined to mean.

On the other hand, it could be argued that this cause would effectively require DRM in devices.

advertising, marketing or promoting a dissemination technology that does not
specifically encourage the use of that technology for infringing purposes

At first glance, this would appear to be clearcut: people making these products can’t say things like “rip, mix and burn.”

However, let’s say I’m Pioneer. I build DVD recorders. I sell them to Best Buy. I don’t give them any ad money. Best Buy then decides to sell them using “rip, mix, burn.”

Who’s then in trouble? Is anybody? That’s very unclear based on this bill.

the providing of information on the use of a dissemination technology by the creator or distributor of that dissemination technology when the information does not specifically encourage the use of that technology for infringing purposes, including through instruction manuals, handbooks, user guides or customer support services

If a P2P manual tells you how to copy a file from someone else, does that “dissemination technology” fail the test? Seems that way to me.

the providing of information on the use of a dissemination technology by a person not affiliated with the creator or distributor of that dissemination technology in the context of commentary, criticism, or reviews of the dissemination technology

Hmmm. If I’m reading this correctly, the Kazaa manual can’t tell you how to copy a file, but a review of Kazaa written by someone working for Kazaa can.

providing products or services to a distributor of dissemination technology in the same manner that such products or services are provided to other members of the public, including but not limited to financial services, delivery services, advertising services, product reviews or evaluations, library services, real estate services, customer-support services for users of computer software or hardware, utilities and telecommunications services.

Maybe I’m bleary-brained by this point, but this seems to say providing instructions on how to copy a file is OK.

The Benefit of the Biased

People like to toss terms like “biased” around, meaning to disqualify anybody calling that from having a valid opinion.

The term is grossly abused these days, but even when it’s true, there is one situation where the opinion of a biased person is worth a lot. That is when the person biased in favor of something says something negative about it.

Let’s take Laura Bush. Now if there’s anybody in the world who is biased in favor of W; it’s her. If Laura ever came out one day and said, “You know, John Kerry is so much smarter than my husband,” you can take that to the bank.

On the other hand, if someone is innately biased against something, having them say “I’m against this” isn’t worth much because that’s what they’re going to say regardless of the situation. If Teresa Heinz Kerry says, “My husband is so much smarter than W,” what else do you expect her to say?

It’s just like that here. If the EFF or P2P advocacy groups say, “This bill sucks,” that means nothing because they’re going to say that about any bill that might restrict copying or P2P use.

On the other hand, if you think copying and P2Ping is the most wonderful thing in the world and should be left completely alone, well, I am not on your side. I think it is necessary that some sort of bill like this needs to be passed, because the Internet should not shelter a culture of theft, a thieves’ den.

So what do I think of this bill?

I Think It Sucks, Too

This bill is awful. In many ways, it’s even worse than the original INDUCE Act. There’s more legal nooks and crannies from which lawsuits can be launched. If you like P2Ping and digital copying, this bill definitely has hostile intent.

However, this bill sucks just as much even if you’re on the other side of the issue. Even if you want to kill P2Ping and digital copying, this is a bad bill, because it doesn’t do that for sure or even probably.

This bill doesn’t make any hard decisions. It whacks a few items pretty well, but implies that a lot more needs whacking too. Maybe. However, it essentially passes the buck of legislation to the courts to decide who else ought to get whacked.

This bill is a lawyer’s paradise because it doesn’t adequately define even the most basic terms as to who should get whacked, and more importantly, who shouldn’t.

No law can define each and every situation. Often, when Congress doesn’t or can’t fill in the details, they often pass the buck to the administrative agency responsible for the area. So Congress will include a clause saying something like, “This act will take effect after the U.S. Copyright Office issues regulations.” The Copyright Office has the right to issue regulations anyway, but when Congress tells them to do so, that carries a lot more weight in court.

There’s nothing like that in this bill.

This leaves interpretation up to the courts.

A good law at least provides clear guidance to the readily foreseeable situations. This does not, at all. If I made anything that could make copies, one way or the other, I would be afraid to keep making whatever that is if this bill passed, because nothing is clearly OK here.

If this bill were passed, we’d have litigation for years and years over what this bill meant. Not just little tidbits here and there, just about anything covered under the bill.

Just for an example, if, say, Pioneer, wrote to a good competent lawyer and asked, “What do we have to do to our DVD recorders to not get sued over them?” he’d have to say, “Stop making them.” If they kept making them, no lawyer can find a safe harbor where there wouldn’t be at least some reasonable doubt as to whether or not they’d win in any court case.

Perhaps even worse than the objective suckiness of the bill is the impression it leaves. It leaves a bad taste in your mouth, even if you’re in favor of its general intentions. It comes across as a sneaky bill. I suspect this is more due to the people writing this not knowing what the hell they’re writing legislation about than any secret conspiracy, simply because it’s so badly and clumsily done.

However, I can’t preclude the latter, and if I can’t, certainly no paranoid pro-P2Per is going to.

Badly written bills don’t do well in court. You get the impression from this bill that different people with different, or even contradictory intentions drafted it. Some apparently just wanted to take out the P2Pers; others seem to want to make DRM the standard without quite saying so. There might even be a few who want to get rid of copying technology altogether, again, without quite saying so.

When you write a law, you want it to tell a judge, clearly, what to do most of the time: what’s OK, what isn’t, and give him some general guidance and principles to follow when a situation fall inbetween the cracks. This should be clear enough so that just about all judges will come to the same decision most of the time for most of the cases.

This bill doesn’t do that. This bill doesn’t have cracks, all this bill is is cracks. I can see judges going all over the place on this, and I wouldn’t blame them.

You know a bill is bad when you ought to be against it whether you’re for or against P2Ping and digital copying, simply because it is truly a loose cannon. It could and probably will blow up in anybody’s and everybody’s face.

Take it back and try again, and this time, get somebody who understands what is going on in this field?

Ed