Save Betamax

Posted on September 15, 2004 by Lessig

The good folks at Downhill Battle have organized a call-in campaign re the Induce Act. Check it out here.

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12 Responses to Save Betamax

  1. Doug Lichtman says:
    September 15, 2004 at 1:00 pm

    Larry –

    Can you say more about what you find troubling about the Copyright Office’s version of the Induce Act? As I read it, their proposal is incredibly balanced and represents the exact kind of thoughtful law-making you and I favor. The remedies section is the heart of the accomplishment, in that the statute as proposed would almost never result in cash damages and would instruct courts to carefully tailor any injunctive relief so as to preserve possible non-infringing uses.

    I understand that this is not the strong, blanket immunity that you and others think Sony stands for. But as Stacey Dogan has pointed out, even Sony emphasizes the need to *balance* copyright concerns with the needs of new technologies and industries. Does not the Copyright Office proposal rise up to that challenge?

    It seems a shame to respond to this attempt at thoughtful legislation with an analysis-free call-in campaign. At a minimum, arm your callers with some substance about what a better compromise would look like. Because from where I sit, it looks like the Copyright Office did a great job.

    Their proposal is here: http://www.copyright.gov/docs/S2560.pdf

  2. Doug Lichtman says:
    September 15, 2004 at 1:21 pm

    APOLOGIES.

    The link was dead when I tried it; I now see that you do point us to a bunch of information about why one might oppose the Copyright Office proposal.

    My error. Sincere apologies.

  3. Doug Lichtman says:
    September 15, 2004 at 1:38 pm

    Ok – I am now having a full conversation with myself; how I miss the days of face-to-face discussions! That said:

    I just followed all the links on that page, and it can’t be that you agree with their analysis. For one thing, almost none of it addresses the actual Copyright Office proposal. The link to Ernie Miller, for instance, goes to town on an old version, which the Copyright Office rightly revised. For another, much of the rest is just plain wrong. The inflamatory stuff about iPods, for example; no way iPods are illegal under the new statute, given that iPods have very real commercial viability for perfectly legitimate uses.

    So I guess I am back where I was at the start: can you explain why you are opposed to the new compromise draft? It is not the full immunity of Grokster, but it seems to be a genuine, thoughtful, balanced attempt to show a little respect for copyright law while still offering flexibility for innovation. Is full immunity really the only acceptable outcome in your view?

  4. Joseph Pietro Riolo says:
    September 15, 2004 at 5:06 pm

    To Doug Lichtman,

    It may be a comfort to see that the new proposal
    is more balanced than the original proposal.

    However, the history of Congress indicates
    that what is balanced at one time can be tilted
    toward the interests of authors, artists and
    copyright holders and away from the interests
    of users in the future. Just look at how
    enthusiastic Marybeth Peters is to get the bill into
    law. Keep in mind that she strongly supported
    copyright term extension.

    In other words, I don’t trust Congress.

    It is the plan of Senator Hatch to get anything,
    even if it is well balanced, to become a law to
    add the another layer of infringement. Once it
    is written into a law, there is no more turning
    point and in the future, Congress will say, “Induce
    law is not enough and we need to strengthen it more”.

    The best prevention to such abuse of the law is
    not to let it become law at the first place.

    Authors and artists have enough legal tools to
    punish the infringers. We should not give them
    any more weapons and we should not let them
    rule our lives.

    Joseph Pietro Riolo
    <[email protected]>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  5. Palooka says:
    September 16, 2004 at 1:38 am

    Lawrence Lessig,

    I started reading your blog when Richard Posner was guest blogging, so I am new and unaware of all the IP latest. Would the Induce Act really ban mp3 players, DVD-RWs, etc?

  6. WJM says:
    September 16, 2004 at 7:07 am

    While they’re at it, they should really rename Carbolic Smoke Ball…

  7. matt perkins says:
    September 17, 2004 at 6:58 am

    no way iPods are illegal under the new statute, given that iPods have very real commercial viability for perfectly legitimate uses.

    OK, so the iPod is permitted under (1)(A). What about (B) and (C)?

    Interesting that the Office’s accompanying memo stated that iPods are not covered by the draft, but for a different reason — the distinction between copying and dissemination. “Liability, if any, for conduct related to such personal reproduction technology remains the province of existing copyright law, and is not affected in any way by this new form of liability.”

    I find deeply troubling the lack of any means to determine what “predominant” means. A binary test of revenue (infringing dissemination-causing revenue, vs. other revenue) is one thing, but it will have to be weighted. What if most users are acting unlawfully, but most uses, bandwidth, or ad revenue, occurs as part of legitimate sharing? Is the product or service spared or banned?

  8. Jardinero1 says:
    September 17, 2004 at 8:38 am

    I have a nutty question about Induce. Please, please, please answer it.

    How will it affect the Recording Companies’ ability to create and use copy technology?

    Won’t they also have to obey the law. If the technology to burn CD’s becomes illegal for me, won’t it be illegal for each and every one of the record companies as well? Do they get an exemption?

  9. Joseph Pietro Riolo says:
    September 18, 2004 at 6:08 am

    To Jarinero1,

    Because the recording companies are themselves
    the copyright holders, they can use any available
    copy technology to sell the copies of their
    copyrighted works. It is the manufacturers that
    are at the risk. If a manufacturer does not
    honor the wishes of the recording companies
    (for example, making a device that refuses
    to recognize the copy protection in the CD’s),
    we can expect that the manufacturer will be sued.

    If there is an analogy to describe the relationship,
    the recording companies want to be like king that
    can subject the manufacturers to his wishes.
    Else, the king can order the manufacturer to be
    executed.

    Joseph Pietro Riolo
    <[email protected]>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  10. Jardinero1 says:
    September 24, 2004 at 8:26 am

    Joseph Pietro Riolo,

    Thanks, but I am still confused. What if I am an inventor/manufacturer of copy technology as well as an owner of copyrighted works like Sony; where does that put me. Can another company, say Microsoft, tell Sony not to use or develop such technology because it can be used to circumvent Microsofts copyrights. Can Sony tell Microsoft not to invent or use any technology which they may use to reproduce their own stuff. Help me with this? It looks like this is as big a quagmire for copyright holders as it is for copy technology makers since they are often the same entity.

  11. Joseph Pietro Riolo says:
    September 24, 2004 at 3:07 pm

    To Jardinero1:

    Very good point.

    The scenario that you described could happen. This
    reminds me of the old saying, “Be careful what you
    wish for”.

    What could probably happen is that Sony and Microsoft
    will work together to develop copy technology that is
    satisfactory to both of them. But then, they will be
    in a catch-22. Who will buy their products if their
    copy technology is too restrictive?

    Joseph Pietro Riolo
    <[email protected]>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  12. Anonymous says:
    September 27, 2004 at 8:23 am

    Joseph,

    “What could probably happen is that Sony and Microsoft
    will work together to develop copy technology that is
    satisfactory to both of them.”–I am thinking now we could get into anti-trust issues.

    The more I think about INDUCE, the more I can hardly wait for it to pass. It seems like such crappy law, I think the best strategy for the anti-INDUCE crowd would be to push hard for an even more restrictive INDUCE act, get it to pass and then watch the sparks fly.

    This strategy is not without precedent. In the sixties, certain southern Congressmen made Civil Rights legislation even more progressive in the hopes that it would not pass. The strategy backfired on them, obviously. A super restrictive INDUCE act would certainly cause enormous friction between the big media companies and be doomed to failure in the courts.

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