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Criminalizing the iPod

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It may soon be possible to carry around an AK-47 assault rifle and an iPod with you down the street - and be arrested for carrying the iPod.

That's according to critics of a Senate amendment to the copyright code proposed by Sen. Orrin Hatch this week called the 'Induce Act'. He wants to make the 'intentional inducement of copyright infringement' an offense, and this will extend liability to any manufacturer of a device which plays infringed material, or a shop that sells such a device, they say.

Hatch's terse amendment states that "the term 'intentionally induces' means intentionally aids, abets, induces, or procures; and intent may be shown by acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor, including whether the activity relies on infringement for its commercial viability," in which caser the inducer becomes an infringer.

However, the amendment also says that "nothing in this subsection shall enlarge or diminish the doctrines of vicarious and contributory liability for copyright infringement or require any court to unjustly withhold or impose any secondary liability for copyright infringement." And it's contributory liability that the RIAA want to see changed.

In his floor speech introducing the measure, Hatch said that once people are given PCs, they are bound to infringe. (Many would agree with him there). So he frames his bill as a protection. Hatch said people weren't aware that they were breaking the law by running P2P software, (citing work by Harvard's Berkman Center, which says the Senator quoted them out of context) and therefore running "piracy machines" that had been designed to mislead their users. Therefore, his argument goes, the users are in need of protection from 'inducement'.

No exceptions

The problem is that 'fair use' isn't on the statute books. It arose from case law, and specifically the Sony vs. Betamax case in 1984 in which the entertainment industry failed to prevent the video recorder being sold. Hatch rather gleefully points this out. "Congress codified no exceptions for 'substantial non-criminal uses'."

The act does nothing to address two key issues. The bill insists that only by criminalizing millions of people can we ensure artists get paid, which is supposed to be our common goal. And it fails to recognize that people are always going to exchange music.

This is odd, because four years ago Senator Hatch subscribed to both these points of view. He threatened the RIAA that he would introduce flat fee legislation, effectively decriminalizing what he now calls "piracy", if it didn't clean up its act. (See Senator Hatch's Napster Epiphany" and Senator Hatch rides to Napster's rescue).

Despite the contributory infringement clause, the opposition is adamant that this will threaten the manufacture, promotion or sale of devices which play infringing material.

"No one will invest in, or invent new innovative technologies if the mere fact that they can be used unlawfully is enough to make both the investors and the inventors liable," said Public Knowledge's Mike Godwin.

Mitch Bainwol, The RIAA's chief executive ,has denied that manufacturers are the target - "this is not about going after the device makers," he told the New York Times, and instead is directed at the P2P networks. Hatch himself said the law had purposefully been crafted to avoid bothering manufacturers.

"It was critical to find a way to narrowly identify the rare bad actors without implicating the vast majority of companies that serve both consumers and copyright-holders by providing digital copying devices - even though these devices, like all devices, can be misused for unlawful purposes," he said.

Payback time?

It remains to be seen if this eventually criminalizes the iPod. However, it is incontestable that the debate - as now framed by Senator Hatch long - has left the gravitational pull of commonsense. Take two notions: that artists should be compensated, and that we should be free to exchange culture, and you soon find an abundance of different options. That the debate should have been driven down such a cul-de-sac, is, when you think about it, quite extraordinary.

And largely it's the technology community's own fault. They've made it very easy for the MPAA and the RIAA to draft such legislation. Rather than making themselves a nuisance in Washington DC, worrying politicians, and bringing attractive alternatives to the public's attention, technology-literate advocates simply dived out of the way.

Why is this so? Many IT people don't like getting involved in demonstrating or lobbying, providing the group with vital inertia to begin with. But that's a symptom, not a cause? Non-IT people like to think IT people are uniquely bad at social relations, and only seem to be talk persuasively to other like-minded IT people. The Internet seems to have exacerbated this fragmentation. There may be some truth to this: the Howard Dean bubble demonstrated how very intense computer-based activists can easily get an exaggerated idea of their own numbers and eventual impact. Or perhaps tech people simply aren't interested in social relations at all: slogans such as "Software freedom!" are baffling to someone whose CD won't play in their car stereo.

This week dissent against Hatch's bill has been confined to the Internet, which means it's safely out of sight for most people. Concerned citizens looking for NRA-style talking points will instead find migraine-inducing "rebuttals" such as this one, written for the primary benefit of the author. (A double pity, as this is a guy who knows his stuff).

Well, perhaps it's a combination of all these factors. Perhaps too, the brief flood of speculative capital into the technology industry in the 1980s and 1990s convinced IT people they didn't have an exalted place in society. For a time, they did, and even now many seem to think so. And underneath, there's the hunch that the market will sort everything out, or the belief that every problem can be solved with technology. Whatever the reasons, the fightback against the RIAA and the MPAA has been as effective as the proverbial one-legged man in a backsid- kicking competition. The entertainment industry should be thankful it has opponents so inept.

Opportunity knocked

We mention this only because the good Senator Hatch personifies the missed opportunity. He once shared the view of many involved in the technology sector today that the RIAA could not be trusted to clean up its act, and that alternative compensation systems that ended "piracy" could prove to be very popular. That was in 2000.

At around the same time, the EFF was campaigning for Napster to be legalized, without offering any suggestions as to how the artists might be paid - thus surrendering its moral authority on the issue. Meanwhile, the RIAA was courting and flattering Senator Hatch.

At a special gala awards dinner early in 2001 hosted by the National Academy of Recording Arts and Sciences, Hatch was awarded a "Hero Award" and the diners heard Nashville star Natalie Grant perform one of his songs, "I Am Not Alone", Joe Menn reported in his book about Napster, All The Rave [Reg review]

If turning a Senator is this easy, why couldn't the techies do it?

There is hope. The coalition announced earlier this week brought industry into the battle. And the decision by the New York Times this week to publish two op-ed articles on alternative compensation systems (one of which is by William Fisher, whose ideas we explored here). This should help to take the flat-fee discussion firmly into the mainstream, where it needs to be. ®

Related links

INDUCE Amendment, from the Senator's Hatch
NY Times - Fisher

Related stories

Why wireless will end piracy and doom DRM and TCPA - Jim Griffin
Music biz should shift to flat-fee, P2P model - exec
Free legal downloads for $6 a month. DRM free. The artists get paid. We explain how
Microsoft, Apple snub consumer freedom coalition
MPAA, RIAA seek permanent antitrust exemption
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US Senator pauses on PC destruct button
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