Word has it that the regulators in Washington are enamored of Professor (in the School of Computing) Hollaar’s recent paper, Sony Revisited, and that it is in part responsible for Congress’ current infatuation with the Induce Act. Professor Hollaar is a smart guy, and his paper is an interesting and well-researched examination of secondary liability in the context of copyright law. But if Congress thinks this justifies the Induce Act, then there is some deep confusion somewhere. I suspect there are two possible sources for this confusion.
(1) Hollaar discusses the scope of “inducement” liability in the context of patent law. There are some in Congress who seem to think that the Induce Act “merely” carries the same idea to copyright law. This is just a mistake. The scope of the Induce Act as written is far broader than the scope of inducing patent infringement as interpreted. And if “all” Congress wants to do is extend patent inducement to copyright law, then it should amendment the Induce Act to state precisely that. That would be a vast improvement over the existing proposal — not enough to justify it in my mind, but it would make the harm it will cause much much less significant.
(2) Hollaar discusses the purpose and meaning of the Sony case. While his discussion is technically correct enough (though the idea that copyright is the right to protect a “business model” is really not right at all), imho, the Professor, and in turn, the supporters of the Induce Act, are really missing the point of Sony.
As everybody knows, Sony set the rule that when a new technology has the “potential” to support “substantial noninfringing use” of copyrighted material, the maker of the technology would not face secondary liability for copyright infringement.
But what no one (in Washington, at least) seems to understand is why Sony set that standard. It was not because the Supreme Court is filled with copyright infringers who wanted to encourage copyright infringement. It was instead because the Supreme Court was filled with judges not eager to engage in the complex balancing required to judge whether a technology creates more benefit than harm. As the Court stated:
Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials. Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology.
This is not an opinion about copyright law alone. It is an opinion about separation of powers — about which branch is best able to do the necessary balancing that copyright law demands, “within the limits of the constitutional grant.” Sony says, in effect, when a technology is not simply a technology for violating the law, then it is left to Congress to decide whether and how that technology is to be regulated. Congress, not the courts.
Why is that a great idea? Because (isn’t this obvious to Republicans?) courts are awful, expensive, and slow institutions for judging the economic effect of new technology. Soviet planners with better lighting. And rather than bury innovators in years of litigation before their innovation gets to market, the Sony rule says: let the innovation go, if there is a potential for a substantial noninfringing use, and if Congress wants to regulate it more, then let Congress weigh the benefits of the technology against its costs.
Ignoring this extremely sensible separation of powers principle has already cost Silicon Valley dearly. See, e.g., ReplayTV. ReplayTV is the digital equivalent of the VCR. It does the job more efficiently, and it promised to do some things the VCR couldn’t do, too. But under the principle of Sony (innovate first, regulate later), it should plainly have been allowed into the market without intervention by the courts. Yet precisely the opposite happened. Content owners sued ReplayTV. It was dragged into federal litigation for many many months defending its new technology. And before the case could be resolved, the company effectively declared bankruptcy.
Is this the future Senators Hatch and Leahy want for all new technologies that impact copyrighted material? Will every Apple be forced to defend its innovation in a federal court? Will federal judges become the arbiters of good technology? Will technology firms be forced to spend more on lawyers than on R&D?
Whatever the lobbyists say about this bill, this is the single most important fact that we should not forget: It is a lawyer employment act. It will force technologists into court before they get to enter the market place. It will shift responsibility for striking the balance in copyright law from Congress to unelected federal judges.
That’s not a bad thing for me, or my kind. I, after all, think the courts have some role here (in setting the limits of copyright), and I, after all, make lawyers for a living. But for an already overregulated Silicon Valley, it is another nail in the coffin by the regulating-obsessed in Washington.
Or one step further:
Continuing congressional confusion concerning copyrights: (ccccc)
First of all, wonderful post. Reading others’ comments on your short posts can be quite illuminating, but what draw me here are your lengthier posts like this one.
The ReplayTV comments interest me. Obviously some chilling effects were in play, that the innovate first, regulate later principle of Sony was not enough to protect ReplayTV from injunction. Is this principally due to the DMCA? Or should I be a bit more cynical and attribute it to the increasing willingness of federal judges to slap injunctions down when they see any slight risk to the income of large corporations?
My real question these days is, how could a “warming effect” be achieved? That is, what is the minimum or most likely combination of legislation and court rulings that will return us to the Sony principle? Obviously the Induce Act must not be law, and some provisions of the DMCA overturned; Congressman Boucher’s Digital Media Consumers� Rights Act is promising (though I have no hope that the 3-4 Republicans who decide what gets through Congress will let it get anywhere). Is that enough? It seems to me that another Supreme Court ruling might be the most powerful step to reaffirm the principles in Sony. In that sense, perhaps the IICA is a good straw man. But the cost of IICA in the interim is much too high.
As an aside: even with zero formal training in Economics (OK, I had a semester on it in high school), it is totally obvious to me that when legislatures and courts act to protect “business models”, when they state in so many words that sellers have a “right” to sell certain things in certain ways, that this can only be described in one way: as a command economy. It is not just uncapitalistic, it is anti-capitalism. Of course legislatures must have the fundamental right to draw a line around certain sets of transactions in our economy and say, “this is not allowed.” (E.g., prostitution, gambling, slave trade). But these days their approach to copyright is the inverse; they are drawing a line around the set of transactions that the RIAA/MPAA are trying to defend, and legislating that everything that threatens to replace or obsolete those transactions is not to be permitted. Those two approaches are fundamentally different.
Professor, you ask “Is this the future Senators Hatch and Leahy want for all new technologies that impact copyrighted material?”
Clearly the answer is yes! The senators, overbribed by slow-to-respond content owners, want exactly that. They want, most importantly, to control the distribution channels of copyrighted material so that, rather than letting the average citizen decide what gets distributed, these companies can pump out whatever swill they want and guarantee a profit shared proportionately between the major players.
I agree with Jack. The problem is that Congress clearly does not have the interests of the Public in mind. As long as you labor under that false impression, you’ll make no progress towards finding a solution. Convincing Congressmen that you have a better understanding of how to handle this fairly is pointless, because they have no interest in being fair.
Strategies that may work include shaming them (difficult), showing them your way is more profitable to their corporate constituents, making a bargain for something else they want or changing the nature of the political game entirely.
Personally I’m choosing the last option. When Claude Shannon & Alan Turing set out to create the first computers, they first mastered the math that would have to be used by them (Information Theory). I’ve nowhere near the towering intellect of those great men, but as best I can I aim to do the same for self-organizing systems.
I’m in progress towards creating an Open Source Manhattan Project to study & implement the mathematical laws of Self-Organization, Network Theory & related fields (Game Theory, Reputation Systems & Nonlinear Dynamics). As a start I’m collecting all the papers in these fields as they come out & publishing links to them on my blog.
I believe that out of this we stand the best chance of finding the answer we’re looking for to the problems of failing democracy, corporate accumulation & abuse of power & the failure of the media to serve as a watchdog on either of them. It’s worth a try.
Tim
Professor Lessig’s point is salient, that the Sony “mere capacity” test serves, primarily, to preclude substantive inquiry by the judiciary into the merits of a noninfringing technology having infringing and noninfringing uses. That said, we may already be in perilous grounds on that front. In short, I’m not sure that the parade of horribles Professor L suggests has not already arrived.
The consequence of the bright line test in Sony was to permit activist courts such as the 9th to seek other means to reach companies such as Napster, for whom they felt there existed some sense of wrongdoing. Alas, the extension of traditional control principles from vicarious liability, that is the positive control of an employer directing an employee to infringe, for example, to the modern, Fonvisa view has given it enough fodder to get us all into a lot of trouble.
Now, instead of the positive control of an employer to CAUSE an infringement, we find liability for the failure to exercise a theoretical control to PREVENT an infringement. That was the fundamental premise in the swap meet case, extended to networks through Napster, Aimster and Grokster. To me, the failure to exercise a theoretical negative control to prevent as a source of liability is already “over the top” with respect to this separation of powers issue.
I am, alas, the Andy Greenberg, Lee credits with the genesis of his inducement thinking in the asterisk footnote. However, I was thinking of a different issue entirely — proposing that we finish what the Supreme Court began in Sony, the appropriation of the principle of the narrow principle “active inducement” to complement contribution in cases where an infringement kit and affirmative encouragement to infringe accompanies the distribution of noninfringing and noncontributory technology. I found the jurisprudence of the Federal Circuit, though certainly not ring-the-bell crystal clear, to be adequately circumscribed that the test would work, and felt it could be adapted to adequately protect both the protective interest of copyright holders and the essential interest of society to limit the scope of Copyright to preclude an unhealthy and undue intervention in ongoing technologies.
Technologists must be allowed to develop pioneering and incremental improvements in technology, and must not be stopped because a noninfringing technology has infringing uses. However, I think it would be fair to limit the conduct of technologists in VENDING their technology, so that they do not do so in a manner which actively induces users to infringe. There, it is not the technology or even the ordinary sale and marketing of the technology, without more. Rather, it would be indpendent acts of inducement above and beyond mere sale and announcement of features that could be brought to issue. To me, this is a far healthier inquiry for the judiciary than the regulation of technology itself grounded in “control.”
While I absolutely agree with the importance of Professor Lessig’s analysis, to me sony offers a far more significant policy holding, in particular that the Copyright Act must
To me, frankly, this is the lesson of Sony, from which it seems apparent to me that my learned friend, Lee, is wholly misguided to the extent he suggests that Copyright Law may be arranged to permit the protection of anything reasonably and foreseeably broader than the expression that is its subject matter. Certainly other related conduct, such as the employer directing an infringement or the intentional knowing and leaving of a particular movie print in a location for a known pirate to make copies, may be circumscribed, but only when balanced against these other concerns.
And here is where the rubber meets the road. My notion of inducement derives from the Patent Act principles, which as applied makes painfully clear that the mere marketing and sale of features of a noninfringing work having substantial noninfringing use, without more — in particular an indpendent inducing act other than mere sale and marketing of the general purpose machine — can never be an active inducement.
Despite Lee’s protestations to the contrary, in particular a dramatic misreading of dicta in Gershwin, S. 2560 is a significant departure from established copyright law. Moreover, by using untested standards for determining inducement instead of, for example, the well tested standards of inducement under the patent act (appropriately adapted for the Copyright Act) could have far reaching and unintended consequences.
In particular, I can imagine almost no cases whatsoever where the S. 2560 test would admit summary judgment for a defendant. Thus, any new technologist must face, at least, a jury to make substantially unreviewable factfindings of “intentional inducement,” whatever that means. Since the downside measure of liability is, essentially, AT LEAST the cardinality of the corpus of copyrighted works times minimum statutory damages, this risks rolling the dice against nearly a billion dollars for every new product.
What is worse, there is no escape from this liability — ever. No number of releases will be able to grant consent for EVERY POSSIBLE copyrighted work — there will always be risk from downstream copyright owners dissatisfied with the splits they get from whatever consortium of owners is managing the IP.
This is effectively a patent-like protection assertable by non-inventors over technology they did not invent, available for as long as ANYONE owns a copyright, which will be forever. Aside from the obvious constitutional questions, who would ever invest in any possibly “unfavored” technology under such circumstances?
While I still think that a patent-like “active inducement” is both workable and an excellent replacement for the monster that is “negative control-based” indirect liability, S. 2560 is, as Prof. L. stated, a lawyer employment act. Although it would likely pay for the education of my great-grandchildren, perhaps deeper into my progeny, it is a terrible bill that deeply risks american competitiveness.
At the very least, no departure from well-established balancing of issues of this magnitude should be adopted merely because a Computer Scientist, however well-researched, overreads dicta and thinks its a good idea. Compare, for example, Lee’s paper, with Jon Band’s excellent article, The Marshall Papers: A Peek Behind the Schenes at the Making of Sony v. Universal, 17 Columbia — VLA J. Law & the Arts, 427 (1993). The latter, in my view, is a more balanced and better legally reasoned analysis of nearly the same corpus of Supreme Court correspondence.
This idea of introducing a new form of secondary liability should be carefully and publicly vetted in detail by legal scholars and economists to fully measure the risks and benefits to American Society. In the absence of such careful review, any rush to adopt S. 2650 is not only risky and unwholesome, but irrresponsibly so.
If the point of Sony is that Congress should decide on these matters, how exactly does that point stop Congress from doing so?
I don’t understand how this separation of powers argument could limit Congress in enacting some new strange copyright law. And, while opinions might differ about whether it would be a good idea to do so, doesn’t Congress have the power to overrule the Sony decision if they want to?
That doesn’t mean I support the INDUCE proposal, which I have blasted rather strongly on my blog. I just don’t understand this particular line of criticism.
What K-F Lenz said. Didn’t we get the DMCA in exactly that manner? And isn’t precisely one of the problems with the reach of the DMCA, that the courts keep saying in effect “Take Your Complaint About Fair-Use To Congress, It’s Not Our Job”?
Karl: I think you misunderstood what was meant by “these matters.” The question was whether the courts or the Congress should inquire as to the suitability or availability of particular technologies capable of both infringing and noninfringing use.
While you are quite correct that INDUCE changes the Copyright Act, it changes it in a manner that requires the courts in each case to make an unwholesome policy inquiry as to the extent and nature for which particular technologies are primarily used to infringe, indeed inquiries into the underlying business model of the proponents of a technology, itself.
While, no doubt, the Congress might address particular technologies in this regard, it does not have the will to do so. Senator Hollings did precisely that with his floated and fallen “P2P” legislation and other forms of technology regulation.
Unable to obtain a consensus that this is bad in itself, the Congress now floats a proposal that is even more unwholesome than the position taken by the MPAA in Sony — asking Courts to inquire into the “reasonable person’s” state of mind in bringing a technology to market as a threshold question to copyright liability.
I think it’s impossible to separate the Courts from this “inquir[y] as to the suitability or availability of particular technologies capable of both infringing and noninfringing use”. Congress will pass laws, and someone will bring lawsuits based on those laws, and there you are. I agree that they’re trying to pass the buck and have the debate take place in court since they keep failing to outright ban the technology in law; but in the end, we’d be there anyway.
And really, it’s the judicial system’s fault. If they would quit hemming and hawing and wringing their hands about not wanting to appear “activist”, instead doing their jobs and forcing Congress to set definite limits on what a copyright is and how long it will run and demanding that Congress be absolutely clear on what infringement is (that which is not explicitly prohibited is permitted), we wouldn’t be here. IMHO.
Absolutely. And what will happen is that all new technology will be developed OUTSIDE the United States, because it will be too expensive and legally risky to do it here. Then there will be much lamentation about all those pirates overseas and we’ll expend much treasure (and maybe even blood) trying to export our ridiculous protectionism around the world, which will only have the effect of making us seem even more backward and reactionary. We’re already trying to kill off our biotech industry with moralistic laws preventing basic research into stem cells except on very limited bases, meanwhile overseas there are no such restrictions and the breakthroughs will be made over there. I’m sure nanotechnology is next, the “conservatives” who run our country simply don’t yet understand its potential enough to be roused to legislate against it. In the future, we will be the last to enjoy the fruits of technological innovation and we’ll have to bankrupt ourselves to get it; but by gum we’ll be moral paragons in the eyes of our Lord.
The fact that legislation like this can get bipartisan support is a sad statement about the priorities of our country.
Rob, I’m sympathetic to the issues you raise, but I disagree that I want courts, for purposes of determining copyright infringement by a noninfringing manufacturer to “work up” the societal merits of a particular technology. The reason for this is fundamental:
1) It inherently chills technological innovation. A client asking me to opine concerning the risks of launching a new technology can never get a clean bill of health. Never. I will always have to say, “well, we’ll know after the judge and jury tell us so, unless there are appeals.”
In the good old days of Sony, I would first look to see if the tech itself were infringing. If not, I would then look to see if there was a capacity for a use, which in turn would not be infringing. I have written many such letters, and have never needed to notify the carrier of a pending claim.
After Napster, I can’t do that for any technology that is networked. Even for stand-alone issues, I have to write an incomprehensible disclaimer that subsequent service or updates might be deemed to constitute a form of control.
2) Even if the risk of liability were manageable, the risk of having to litigate liability could not be. I have trouble seeing the “merits of a technology” ever being measured in a way that would admit summary judgment for a defendant. Thus, a jury trial is assured, just from the filing of a complaint, even when the case is utter [email protected]#[email protected]#[email protected] For the same reason, even when the case is utter b+etc., it can almost never be a violation of Rule 11 to file it.
This means that the defendant risks a majority or supermajority of a jury being convinced of the general nastiness of a technology, and then from that, the measure of damages being unmanageably large — this is because the class of plaintiffs are owners of every copyrightable work the technology can address. Damages are measured by the number of registered works, times $750 for minimum statutory damages, perhaps reduced to a couple of hundred damages by a sypmathetic court finding the infringement to be “innocent.” Billions for tribute.
Thus, even by merely filing a threatened lawsuit, the defendant is at risk for the entire company just by releasing a new Tivo.
Yeah, I’ll invest in that. Not.
BOTTOM LINE: The Congress may be able to damn a technology within its constitutional wisdom to determine national policy, but first let them define it with clarity — not by asking the courts to weigh those policy questions. (For my part, I simply can’t think of any definable technology that would justify that sort of legislation — which is why the Hollings P2P legislation couldn’t get off the ground.)
That, I think, is the separation of concerns we are thinking about here.
I completely agree with you. I don’t want the courts involved in making decisions on whether a technology is legal to develop or not. I just don’t see how it can be avoided; we’re up against a “conservative” impulse that dates back centuries, all the way back to Socrates being put to death just for talking about issues the government of his time didn’t approve of. Since our representative government is no longer representative of The People except in name, the debate on the merits of technology will necessarily devolve to the courts as the conservatives get their restrictive laws passed without a serious debate and new technology confronts it. Every politician talks about how we need a “national debate” about this or that, but there is no such debate going on; most people are too busy living their lives to have time to discuss the merits of P2P file sharing in a just society, even if they had the inclination to do so. Isn’t that what we supposedly elect our representatives to do for us? And when those representatives can be influenced by campaign contributions or (more charitably) are so remote from the individual citizen that only the voices of those powerful enough to stand out are heard, inevitably we get laws that benefit the few at the expense of the many. So again it’s up to the courts to make sure these laws are overturned and that a just society results; and recently I don’t think they’ve been doing a good job of it (though they may feel they have, since they apparently have a different idea of what constitutes a “just society” than I do).
I wish you all the best in convincing Congress to get their act together.
IANAL, and English is not my native tongue. Having said that, in “it should amendment the Induce Act”, shouldn’t “amendment” be “amend”?
Does anyone else find it ironic that Sony Music, via the RIAA, is partnering with the MPAA to support legislation overturning the case that *saved* Sony Electronics *from* the MPAA? Has Sony as a whole considered the possible implications to its bottom-line? Talk about letting the fox run the henhouse…
I’m not sure what’s “conservative” about the proposed INDUCE Act. Anti-democratic, yes. Pro-monopoly, yes. But let’s remember — to their discredit — that senators from all political stripes (Hatch to Leahy) are behind this thing.
There you go again, Lessig — thinking the things I wish I had thought and putting it down in snappy prose.
To me, a fundamental question is this:
Which branch of government is less amenable to continue to be disproportionately co-opted by vested (for lack of a better word) business interests. I share your frustration with the Courts, but then Prof. Litman’s book makes me wonder if Congress is any better these days. (At least the power isn’t primarily with the Executive Branch!)
If Congress and the Courts are substantially equally co-optible, then I am not it makes to much difference who is setting the bar on level of (c) clearnance for emerging technologies.
Re: Kevin Riggle’s point about Sony…at the time of the Betamax case, I think Sony wasn’t one of the 5 media megacorporations that control the music industry today. I seem to remember that their acquisition of Columbia came later; so now the shoe is on the other foot. It is an interesting little hypocrisy though, and exposes the cold calculus of capitalism when it comes to corporate decisionmaking.
Re: “conservatism” of the proposed Act…I would call it conservative in the sense that it is an attempt to legislate the continuance of the status quo ante. Conservative Republicans, for all their bluster (bloviating!) about being against “Big Government” and “let the market decide”, are all too eager to create government bureaucracies and impose regulations when it suits their purpose. I was very disappointed to see the Democratic Senators co-sponsoring this legislation, including the Minority Leader himself who should know better. Senator Daschle has not been a consistantly strong voice as leader of the opposition; he’s had his moments, but this isn’t one of them.
IANAL, and I’m not clear about the Court vs Congress argument over the Sony ruling. It seems like, in Sony, the Court is indicating that Congress should deal with (e.g., regulate) new, possibly copyright infringing, technologies as it had done with, say, Cable TV. I.E., Do nothing or impliment statutory licensing–but keep the matter out of the courts.
Am I reading too much into Sony?
Laws like INDUCE seem to be ways in which Congress is forcing new technologies to be regulated (and, specifically controlled in the interests of the RIAA and MPAA) in the courts–especially through propogating the threat of overwhelming legal costs for technologists.
Induce Act (or any copyright law) has nothing to do
with political parties. We love to make corporations
a scapegoat for all the evils that fall on society.
But, in our blind criticism and angry, we overlook
the real force behind Induce Act. The real force
comes from the authors and artists and it is
responsible for propelling the corporations to protect
their copyright interest. These authors and artists
are part of the people that Congress is supposed to
represent. Historically, Congress tends to give
sympathetic ear to the authors and artists, even
though they are fewer than the users in term of
population. Moreover, Congress tends not to see users
in good light, thanks to the users who choose to be
infingers. It is no surprise that Congress introduces
Induce Act. And, to prove my point that it has
nothing to do with political parties, authors and
artists come from all parties.
Joseph Pietro Riolo
<[email protected]>
Public domain notice: I put all of my expressions
in this comment in the public domain.
If the INDUCE act was passed it would be pretty good for the Creative Commons. All developers of new technologies would then ensure that they’d only operate with content certfied to permit uncontrolled duplication, e.g. CC-SA say.
I say “Bring it on!”. The INDUCE act hastens the demise of the anachronism of copyright being applied in the digital domain.
Incidentally, the CC should consider creating an MD5 index of CC’d works. It’ll soon be sorely needed.
Commenting on Crosbie Fitch’s comment:
Don’t be too hopeful. There is no guarantee that
the authors and artists will not withdraw Creative
Commons licenses any time during their lifetime
and 70 years after death. There is no guarantee
that they will not modify terms and conditions in
the licenses. Moreover, the current U.S. copyright
law allows authors and artists to change their
mind during five years at the end of 35 years after
license or grant or in case of the right of
publication, 40 years after the date of publication,
whichever term ends earlier (Section 203).
Joseph Pietro Riolo
<[email protected]>
Public domain notice: I put all of my expressions
in this comment in the public domain.
I agree, but you fail to see the secondary infringements that might be caused. A good example is the copyright on this Bill Clinton blog. Who owns this?
There may be some hope on the horizon. Dan Gillmor has good article in the San Jose Mercury News today on S. 2560. With a little more media exposure like this, there might be some hope of sending INDUCE the same route as Hollings and friends’ CBDTPA.
Responding to Joseph Riolo:
I have to disagree with this. While the authors and artists may indeed have an interest in protecting their works, I doubt they’re the ones behind the INDUCE act. Corporations are not propelled by authors and artists, authors and artists are the laborers that produce what the corporations distribute. In most cases, the corporations are the ones claiming copyright (I don’t see a lot of artist’s names next to the (c) on movies and music that I buy), and I’m conviced that they are the ones behind this act.
I don’t scapegoat corporations. A scapegoat is something that is incorrectly accused, and I think corporations are absolutely behind some of the evils that befall society. Maybe “demonize” would be a better term for you to use.
Now there’s your scapegoat. All of this restrictive legislation is being proposed because of this supposed Mongol Horde of “infringers” out there who are pillaging and looting the entertainment industry. Meanwhile we get news of said industry reaping record profits and movies setting box-office records every other weekend. So give me break, and don’t be fooled by all the pro-industry propaganda out there. All they are trying to do is squeeze every last possible cent out of what they own, which may be in their nature as corporations but doesn’t mean that we have to pass laws to increase their profits.
You are correct that the INDUCE act has nothing to do with political parties. It’s all about money, and money is non-partisan. But while I expect Republicans to fall in line behind whatever corporate interests want them to pass, I was very disappointed to see leading Democrats also lining up behind this. The Democrats are supposed to be the “party of the people” and this act (and the whole Copyright debacle in its entirety) is such an obvious anti-consumer money grab that they should have known better than to support it, let alone co-sponsor it.
I believe it’s very easy to overthink this issue, but for me it’s very simple.
As long as the P2P’s were passive regarding the content that flowed across their networks, they could take the position that like the “Betamax” they should not be held responsible for how their services are used or misused, by individuals.
The P2P’s still portray themselves in this way, as passive providers, but in reality it is no longer the case.
In recent months the media industry has begun to increasingly employ services that attempt to prevent specific copyrighted materials from being illegally exchanged on the P2P networks. These services do not hinder the exchange of any materials that they have not been employed to protect. So in that way they do not affect fair exchange. The content they have been employed to protect is of course content that could be described as mainstream popular, copyrighted materials. The P2P’s in an effort to make the protected content available to users, have taken steps such as IP filtering in an attempt to thwart these interdiction efforts. In doing so they have gone beyond the betamax and the cd burner, and have entered into the realm of pirate devices such as cable TV descramblers, satellite TV decoders etc.
For the P2P’s to retain the status of passive providers of a benign service, that had only the potential for individual misuse. They would have had to refrain from interfering with the interdiction attempts of the rights holders. By choosing to resort to these efforts at interference, they have shown that they indeed can have an effect on the content that is exchanged on the networks, and that they will take steps to insure that their users can find the illegal content they seek.
In my opinion this the activity that has prompted the Induce Act. The P2P’s want to hide behind a defense that no longer applies to them.
They said that they had no control of the content on the network. The rights holders said we will provide legal content to block exchange of our illegal content, and the P2P’s suddenly found ways to control the legal content, so that their users could access the illegal content.
That’s a clear case of inducement, and the P2P’s have only themselves to blame. To compare it to the Sony principle is IMO, like comparing apples to oranges.
Woah up there a minute, Joe. I think you are making some leaps here that are longer than you imagine. I don’t equate IP filtering, which I understand to be blocking out certain IP addresses from participating in the network, with content control. Those are two completely different concepts. Unless the software is making decisions on what IP to filter based on some examination of the content of each particular file, there is no relationship between the two and your analogies fall apart. And what about radar detectors, should those be made illegal because they induce people to speed?
Cable TV descramblers and satellite decoders take an encrypted signal and restructure it so it displays normally on a TV set; the signal is coming in regardless of whether the device is present or not, the device acts on the content of that signal. I think a better analogy to a P2P client would be the satellite dish itself, which acts as a bridge between the microwave transmissions from the satellite (the files from the server) and the TV set that displays them (your computer). So by this analogy the content providers are saying that satellite dishes are evil because anyone can watch movies with them rather than having to go to Blockbuster and rent things, and the INDUCE act says that since satellite dishes are only bought in order to watch movies for free (once the basic service is paid for) they induce you to not go to Blockbuster and therefore should be illegal. They are trying to enshrine Blockbuster’s profits in the law by prohibiting any technology that would enable you to avoid having to go there to rent movies to watch.
Again, this is just an analogy and not an attack on Blockbuster. You could also substitute in “movie theater”, I just chose a well-known company that competes with satellite dishes in the field of movie presentation. The INDUCE act would stifle innovation and should be defeated.
“Unless the software is making decisions on what IP to filter based on some examination of the content of each particular file, there is no relationship between the two and your analogies fall apart.”
Rob that is pretty much what they are doing. They locate the IP’s from which the files are originating from, and they block them from the network.
An artist or rights holder that does not want their copyrighted materials shared, pays a service to offer a replacement. If the content is music, the replacement could be a loop of a portion of the song. It could be simply noise. It may contain a link to where the song may be purchased. Regardless, the content is legally being offered by the rights holder in an effort to protect against illegal sharing of their copyrighted content. When the P2P blocks the rights holders efforts, they are blocking access to legal content, and in doing so directing users to the illegal content. That’s inducement.
I think in it’s present form the Induce Act is a bad law, but that doesn’t change the fact that the P2P’s have to take responsibilty for their part in bringing it about. They are not a passive instrument like the Betamax, and all the other pieces of technology they are attempting to hide behind. They are an active business that attracts and serves their customers.
The INDUCE act would definitely end up forcing the company I work for to either go out of business or move out of the USA, most likely to Canada since we are only a 3 hour drive from the border. We cater to the educational market, developing technology tools that schools can use to distribute media to the classroom from a central location. The INDUCE act would affect us because what we manufacture would be considered illegal under the INDUCE act because it has the potential to be used for infringement, even though the intent of use and purpose is noninfringing. That being said, I fear that my job will be lost or that I would need to move out of country in order to keep it. The INDUCE act will probably cause more of the same to happen. This country will eventually fall behind the rest of the world technology wise and our economy will surely suffer more. I’ve read some accounts of the fall of the Roman Empire, and the fact that they fell behind technology wise was apparently a contributing factor to their demise. I don’t know how true that is, perhaps there is someone more knowledgeable about this that could verify it? If it is indeed fact, then a move to Canada may not be a bad idea if this act should pass and become law.