will Apple be illegal?

Posted on June 24, 2004 by Lessig

EFF has mocked-up a complaint against Apple under the pending INDUCE Act.

This entry was posted in bad law. Bookmark the permalink.

9 Responses to will Apple be illegal?

  1. Ryan says:
    June 24, 2004 at 9:21 pm

    IIRC, “Rip Mix Burn” was before the iPod ever existed. The biggest giveaway is that you don’t “Burn” to an iPod.

  2. Dave Ethington says:
    June 25, 2004 at 9:12 am

    The point of that section of the phoney legal complaint is that it proves that Apple is iducing its customers to violate copyright and has a histoery of doing so, not that you “Burn” to an Ipod.

  3. Andrew Greenberg says:
    June 25, 2004 at 9:46 am

    The significance of this complaint is not that Apple would likely lose under the new standard, but rather that the complaint can be filed. Moreover, contemplate how one would Answer and raise counterclaims and, most importantly, how one would hope to proceed on summary judgment.

    My initial, though not fully considered concern, is that Apple would NOT prevail on SJ. Accordingly, the case goes to trial with a downside liability that might be measured at $750 times the number of recorded musical works in circulation, of which there may be millions (does anybody know a better approximation?)

    While Apple should prevail, for it did not induce infringement by its distribution of the iPod, a reasonable person is not the same as a juror, and the finding of fact as to scienter would be unassailable on appeal.

    Who would roll those dice? who would invest in a company rolling those dice? Imagine life without innovation in consumer electronics resulting, not from a serious fear of actual liability, but rather from the ad terrorem effect of receiving the complaint.

    The significance is NOT how that complaint would be litigated, but how a corporation receiving a demand letter with an accompanying draft complaint like that would respond. If innovation is stifled by this new form of technology regulation, we will all lose.

    The problem with INDUCE is that it extends copyrights to grant patent-like protection against innovative technologies to non-technologists for an indefinite period of time.

    A cause for copyright inducement is not a bad idea. A carefully circumscribed for of inducement liability could comfortably replace the now-dangerous “control” standard that cases such as Napster and Aimster have grafted onto Sony. Patent inducement is well-understood and responsibly balances important policy concerns.

    That being the case, why would we ever run off on this new adventure, rather than simply adopting a patent-like standard of active inducement, and evolving from there if need be? The answer is apparent: INDUCE is not sound policy, but rather a dangerous piece of special interest legislation to appease those concerned about technological circumvention by P2P suppliers of the RIAA’s ill-gotten legal fruits of Napster. Napster and aimster may well have lost under an appropriate inducement standard, but at least more fundamental sharing technologies would be saved!

    the point is that contribution should almost never occur with the manufacture of general-purpose duplication or distributino machines, capable of substantial non-infringing use, unless the vendor actively induces people to use that technology for illicit purposes. In such a case, they would be punished, NOT for the technology, but for their independent conduct inducing the infringement. The mere distribution of the technology, without more, would be unassailable and prevail upon summary judgment as to contribution. The mere marketing of the technology, without more, would be unassailable and prevail upon summary judgment as to inducement. As it should be.

    If network effects are created by direct or plainly implied reference to the fruits of infringing conduct, inducement is a sound inquiry. The Federal circuit and district courts been breathtakingly good at distinguishing the “nod-and-a-wink” cases from genuine cases of non-inducement. That standard works. Why not use it?

  4. Jerry says:
    June 30, 2004 at 7:37 pm

    First thought that went through my head is; wouldn’t it be beautiful irony if this exact same strategy was levelled at Microsoft? … Surely an analogous case can be made against Windows in that it supports the majority of filesharing / ripping / editing tools currently available in the market and can therefore be said to aid and abet this ‘criminal’ activity?

    Better still, … let the EFF indicate its intention to do just that if the INDUCE act passes, and have the Microsoft lobbying machine do its thing for our cause…

  5. Dennis says:
    July 1, 2004 at 9:40 am

    What is it with our government these days? There’s this act, and today’s news that a pending bill would restrict all export of computers more powerful than a Pentium IIIs…are these people determined to turn us into a technologically backwards nation?

    Then there’s the news a few days ago that the WHO is supposed to go through U.S. government to invite our public health scientists to international conferences…it’s like the Soviet model is taking over, scientists need to toe the party line…boy, worked out for the USSR, didn’t it.

  6. Peter Timusk says:
    July 1, 2004 at 1:22 pm

    I think movies also induce crimes. My counter suit as an apple owner would be to sue the original makers of the Superman TV show for inducing violence in me.

    Also it is my limited legal belief that computers make hacking easy. A point and click break in takes less effort at warp speed than a well thought out break-in through the window. Less time for the criminal to think about what they are doing and have second thoughts. And movies like the Matrix make hacking more popular.

    More blogs and attention for these discussions should allow us to create realistic laws. Harmonising the law for instance internationally throgh the Internet. EFF should know that a Canadian courts has found P2P legal. I mean that’s what we want right free music. I of course disagree to a point with the court.

    As someone who has made less than 100 dollars playing music I really don’t want music to be free in any economic sense it is not free to make in a money sense it should not be free to use. I believe Lessig confuses his constitutional freedoms with free beer as do many of our so called Internet scholars and activists.

  7. Joe Buck says:
    July 1, 2004 at 5:22 pm

    Yes, “Rip, Mix, Burn” refers to CD writers, not to the iPod. But CD writers
    would also be vulnerable to prosecution under INDUCE: after all, they are
    being used by many, many copyright infringers, so many as to affect
    the profitability of the devices.

  8. Danny says:
    July 3, 2004 at 1:53 pm

    You’ll notice that Apple itself has no position on the legislation. That is, Steve Jobs himself, the person with most at stake in this theoretical litigation threat, has said nothing about the INDUCE Act. You think he, with an army of lawyers, knows less than you do?

  9. Wires says:
    July 4, 2004 at 9:33 am

    You’ll also notice that Apple – which supposedly supports Fair Use – has no position on the DMCRA.

    http://news.com.com/2100-1028_3-5242774.html

Leave a Reply