The widening use of digital recording technology has ignited a continuing battle with those who seek to own and control our culture. That conflict has now escalated to a new level of viciousness--one that pits a who's who of high-tech entrepreneurs in a face-to-face showdown with the world's largest content owners.
The stakes couldn't be higher. Republican Sen. Orrin Hatch of Utah and Democratic Sen. Patrick Leahy of Vermont have sponsored the wonky-sounding "Inducing Infringement of Copyrights Act"--otherwise known as the Induce Act (S. 2560).
Joining them are some high-profile co-sponsors that include Senate majority leader Bill Frist (R-Tenn.), Senate minority leader Tom Daschle (D-SD), as well as Sens. Hillary Clinton (D-N.Y.), Barbara Boxer (D-Calif.) and Lindsey Graham (R-S.C.)
The legislation, put simply, would hold tech companies and others responsible for creating devices that could be used to pirate digital content. It could also ban peer-to-peer (P2P) file-sharing networks and prohibit much of what has made the Internet so desirable to its users.
Think about that for a minute. The law would go after the maker of any device that could "induce" or encourage buyers to make illegal copies of songs, movies or computer programs. Yes, that includes file-sharing networks, audio and video recorders, hard drives, inkjet printers--even personal computers. Some smart people think it could even be used against journalists who write about the capabilities of such devices.
If you're like me, your first reaction was, whoa, this can't be serious. But the scary part is that Hatch, Leahy and a bunch of other powerful politicians actually support it, even though they've been told by a legion of technology companies that the bill would kill innovation and potentially outlaw some of the most popular devices, including Apple's iPod.
OUT OF TUNES
Lawrence Lessig, the Stanford Law professor and founder of the school's Center for Internet and Society, wrote on his Weblog, "even I can't believe this. Senator Hatch (who used to understand stuff) has introduced the Induce Act, which will criminalize the act of inducing another to commit a copyright violation. This is a brand-new theory of copyright liability."
At a recent Congressional hearing, the initiative had few supporters outside of a lobbyist for the Recording Industry Association of America (RIAA). Standing in the shadows, of course, are the major studios and media conglomerates that make most of the world's motion pictures and primetime television shows.
"Under this bill, who would want to produce a new device that handled copyrighted material without first checking with Hollywood or the record companies, given their history of fighting new business models?" said Will Rodger, director of public policy for the Computer and Communications Industry Association. "Innovation just wouldn't happen."
That didn't stop Marybeth Peters, the register of copyrights, who also supports the legislation. She didn't like the fact that a court has applied the findings of the landmark Betamax case--which held that home video recorders are legal as long as the recorders are operated primarily for personal use--to peer-to-peer networks.
Specifically, Peters disagreed with the finding of the April 2003 case involving the Grokster file-sharing program, in which the judge ruled that peer-to-peer services were not liable for their users' illegal behavior. "I think the Grokster decision is wrong as a matter of copyright law," she said.
SHARING IS A BAD THING
The recording industry contends that 97 percent of transactions over P2P networks are illegal. Such file-sharing companies "provide a mechanism for high-tech theft," said Mitch Bainwol, head of the RIAA. "They laugh all the way to the bank."
However, Jason Schultz, an attorney with the Electronic Frontier Foundation (EFF), said Hatch and the RIAA fail to make their case for the proposed law. They have never addressed whether the bill will stop P2P or how the proposed law would affect offshore P2P companies, he told "Wired News."
Gary Shapiro, president and chief executive officer for the Consumer Electronics Association (CEA) said his group would support codifying the original Betamax doctrine into law. The Betamax decision, he contended, is the "Magna Carta" for inventors and venture capitalists who have built a thriving technology industry.
More than 40 trade associations and advocacy groups have lined up to oppose the Induce Act. It "would chill innovation and drive investment in technology" overseas, said a July 6 letter, signed by representatives of CNET Networks, eBay, Google, Intel, MCI, TiVo, Verizon Communications, Sun Microsystems and Yahoo.
Representatives of the engineering group IEEE and NetCoalition, which represents Internet companies and Internet service providers, also oppose the bill.
Hatch is being hard-headed about the bill, no matter how much opposition there is.
To his critics he said: "If you help us, we just might get it right. If you don't, we're going to do it. Something has to be done. There's no way to solve these problems so everyone's totally pleased."
SHOW THEM THE MONEY
Perhaps there's another reason for the senatorial enthusiasm. Between 1999 and 2004, Hatch has received $159,860 in campaign donations from the TV, movie and music industries, according to opensecrets.org, which monitors campaign donations. In the same period, Leahy received $220,450.
They each received less money from the Internet, computer and telecommunications industries.
"I do want to solve this problem for the recording industry, the movie industry and the book industry," Hatch said. "We have to give a damn about copyright."
For those who care about their freedom to use the Internet and their personal media as they choose, it is time to give a damn about the Induce Act.
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