The Excessively Annotated RIAA Letter on the INDUCE Act (IICA)

Just about a week ago, a number of technology companies, civil liberties groups and consumer rights organizations sent a letter to Senators requesting hearings on the fast-tracked Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) (Many Organizations Sign on to Letter Requesting INDUCE Act Hearings). Read the letter at EFF (one of the signatories): Letter to Senator Hatch, Re: S. 2560, the “Inducing Infringement of Copyrights Act of 2004”.

Today, Techdirt noted (RIAA Defends INDUCE Act; Explains Why It’s No Betamax) a brief report in the Hollywood Reporter that the RIAA had responded with a letter defending the INDUCE Act to all 100 Senators (RIAA chief to senators: OK copyright bill). Read the RIAA’s letter here: Letter to Senators from Mitch Bainwol, Re: INDUCE Act.

Read on for the annotated version …

My comments are in brackets, bold and italics. I’ve added hyperlinks to Bainwol’s text as I thought useful.

The Annotated RIAA Letter on the INDUCE Act (IICA)

July 13, 2004

The Honorable
United States Senate
Senate Office Building
Washington, DC 20510

Dear Senator :

It is no secret that the intellectual property assets of our nation are under assault, as never before. [Hmmm … where have I heard that “assault” language before? Oh, yes, Jack Valenti twenty years ago. From his infamous testimony on the VCR, “while the Japanese are unable to duplicate the American films by a flank assault, they can destroy it by this video cassette recorder.”] That is why we support S. 2560, an effective [Effective that is, if you’re trying to cripple technological innovation.], bipartisan [Yep, both parties are selling out the consumer.] bill drafted by Senators Hatch and Leahy and introduced two weeks ago. The bill is aimed at ensuring the vibrancy of both our creative community and our technology community. [Well, no it isn’t. Rather, it is aimed at ensuring the vibrancy of the creative community at the expense of the technology community.]

S. 2560, introduced by Senators Hatch [R-UT $158,860, an increase of $1,000 since my original annotation of Hatch’s remarks.], Leahy [D-VT $220,450, an increase of $39,450.], Boxer [D-CA $517,660, an increase of $40,675.], L. Graham [R-SC $72,273, no known increase.] and both Majority Leader Frist [R-TN $58,550, no known increase.] and Democratic Leader Daschle [D-SD $382,760, an increase of $63,970.] – is timely, warranted legislation. We urge you to support it. It is intended to target bad actors only – those who have built business models to get away with stealing the creative work of predominantly American artists. [Intentions are funny things. The bill might be “intended” to go after “bad actors” only, but I think a “reasonable man” would think the intent was to crush any technology copyright holders don’t like.] The bill finds the right balance to protect both technology AND content innovators. [I guess putting technology innovators out of business is “protecting” them now. That sure is an innovative use of language.]

Let me back up and set the context necessary for appreciating the true significance of this legislation. [Well, that’s the problem isn’t it? The true significance of this legislation.]

Global sales of recorded music – dominated by our country – quadrupled from 1980 to 1999. [And why did this happen? Could it have been a one-time surge as people bought music on a new medium (CDs) that they had already purchased on an older medium (tape/vinyl)? Could it have anything to do with the enormous general economic growth of the time? Might it have anything to do with innovative music development and support. I thought we were going to get some context.] Then, almost on a dime, that trend line reversed, with sales figures falling by about a third to the mid point of last year. [And why this turn around? Did it have anything to do with the end of the replacement surge? Did it have anything to do with poor marketing and music development changes? Did it have anything to do with an economic downturn? Did it have anything to do with other media (such as videogames) competing for consumer dollars? How about a little more context?] Before the launch of lawsuits by the industry last fall against those induced to steal music online, we were spiraling down with no sense of a floor. [So, everyone who has been sharing files was induced? No one did it of their own volition? Also, is there any evidence that it was the lawsuits that created a “sense of floor”? Is there no other reason?]

Why? There are a variety of factors, but the most critical are the twin challenges of physical and online piracy. [Really, the most critical? None of the other factors was as important? Is there any evidence for this assertion?] Physical piracy has been a problem as long as music has been recorded, and has climbed to staggering levels. But it is the relatively new online piracy that has had a truly devastating impact in a short amount of time, which makes action to combat it crucial. [And the RIAA has been taking action to combat it. There are devastating legal remedies at the RIAA’s beck and call.] And the most virulent form of online piracy is file sharing on P2P (peer to peer) networks. [Filesharing is a disease and the RIAA is the cure?]

An independent study conducted last summer noted that over 97% of the files “shared” using these file-sharing networks are illegal. [Last summer is so 2003. This summer studies are showing an increaing use of P2P programs to distribute authorized content, such as Linux distributions via BitTorrent (one of those “virulent” P2P networks, apparently).]

The infringement is remarkably pervasive. [Hmmm, maybe the infringers are trying to tell the RIAA something.] A recent academic study estimated that almost a billion illegal downloads take place each and every month. Four of the top ten downloaded applications on the Internet are P2P programs operated by companies who purposefully set them up to be used for illegal conduct. [Well, if the RIAA has proof of this purpose, then they should be able to bring these companies into court under current law.] Popular for sure… but lawbreaking nonetheless. [And when a law is unpopular and frequently broken, the answer is to make it more illegal?]

Let me be clear. There is nothing inherently evil about P2P. [Well, it is nice to concede that technology is simply a tool.] On the contrary, it’s a magnificent technology. [As long as we can control it.] But it has been hijacked by some unscrupulous operators who have constructed a business model predicated on the taking of property financed by my member companies. [And Bainwol can distinguish between the admirable operators and unscrupulous ones, how?]

That taking has consequences, human and creative. [Some of the consequences are good, some are bad. Separating them, however, is a pain and may not be possible.] My companies make money almost exclusively from the sale of our creative product. [And they still can, they will have to make some adjustments to their business model.] We don’t have a performance right on radio and therefore derive no income from radio play. [Welcome to the wonderful world of “when Congress tries to dictate business models.” And so, the RIAA proposes a sequel.] We don’t make money from artist tours or merchandise. [And why is that? Is there a law against it? If so, I would recommend it be repealed.] We don’t make money from endorsements of other products. [Is someone stopping them from doing that?] We just sell recorded music. [You’re free to structure business however you like.]

We take profits from sales – when we’re good and lucky enough to get them – and plow money back into the search for that next great talent who will thrill music fans around the globe. [I guess the industry must have been bad these last few years.] When we think we have found that talent, we invest huge amounts to sign, nurture, promote and distribute their creative product. [And the RIAA is the only way talent can be found and promoted, because?] Our economic vitality is based on generating hits – finding special talents that enjoy strong commercial appeal. [And we should care about the hit-maker mentality, because?]

In 2000, the top ten hits sold 60 million units in the U.S. Seven of the ten sold more than 5 million units each; every one of them sold at least 3 million units. Then the slide kicked in. Last year, in 2003, the top ten hits were cut almost in half, to 33 million units. Just two of the ten sold more than 5 million units; five of those top ten hits sold less than 3 million units. [And this is a bad thing, why? Why shouldn’t the music industry be subject to a less intense power curve? Wouldn’t our culture be healthier for it? Are labels as hit-making gatekeepers really the cultural ideal?]

In our business, the hits are what allow investment in genres that do not accumulate great sales, such as jazz, classical, bluegrass, and the blues. [What a bunch of philanthropists the RIAA is. They take their profits and invest them in less popular genres out of the goodness of their hearts. God bless ’em!] By decimating the sale of hits, online piracy has devastated investment in an entire industry and in the development of great future cultural contributions. [You know, because the freedom of the internet hasn’t led to any great cultural contributions, or anything. The internet is just one big wasteland, devoid of culture.]

Some have suggested P2P drives sales – or has little impact on sales. And pigs fly. The absurdity of that notion is made plain by the sales pattern of “hits.” If you can get something for free, without consequence, buying it becomes less attractive. It’s as simple as that. [Thank you Mr. Empirical Economist. Things aren’t actually that simple. If they were, the RIAA would already be out of business. There is data for both sides of the argument and it isn’t really clear where things are headed. After all, why did sales increase recently, if it were “as simple as that”?]

The revenue collapse has been staggering. Jobs in my industry are down by about a third over the last several years – and the exercise to cut costs is ongoing. [And the industry should remain the same size it always has, because? Even if filesharing went away, wouldn’t the increased efficiencies of internet distribution mean that companies would shrink? Wouldn’t the collaborative filtering of the internet decrease costs for finding and developing talent? Nor do I hear the RIAA complaining about the jobs lost in record stores because of the shift to internet distribution. Jobs at Tower Records are way down too. Thanks, iTunes!] Families have suffered. [You know, unlike the families of the entrepreneurs who will be sued under this law. Apparently, they feel no pain.] As troubling, if not more so, artist rosters have had to be slashed. [But there seem to be more artists than ever before, at least I’m exposed to more than ever before.] Fewer dreams are being funded. [But that doesn’t mean people aren’t chasing their dreams. And what dreams are these anyway? Hit stardom] This creative product is lost forever. [And other creative product becomes widely available.] Many of our greatest performers took years to catch on before their careers took off. [And even before filesharing, labels were moving away from long-term artist development.] In today’s world, those performers are being cut before they have a chance to delight fans and realize their own dreams. [And then they have to take a different path to their fans.]

These rogue P2P companies make money by advertising and by bundling spyware in their applications. [So, we should pass laws against spyware, or programs that surreptitiously install themselves when you load a CD?] Their interest is to generate as many eyeballs as they possibly can. [You know, unlike all the other advertising-driven companies on the internet.] They do that by inducing American kids – and others – to break the law by stealing the work of creators. [And if you had proof of this, you wouldn’t need the law.] The more eyeballs the better. [Unlike, say, the RIAA, which only wants to get good music out there.] That the lure to draw those eyeballs is our music is of no consequence to them, though of enormous consequence to us. They resist going legitimate because they know that a pay-for model can’t compete on the same level with free. [Pay-for models can’t compete with free on price, but they can certainly compete with free when it comes to convenience, ease-of-use, breadth of library, quality, lack of lawsuit risks, and all sorts of other factors. With all these other factors favoring legal filesharing, you have to be working pretty hard to make the virus-ridden, spammed, lawsuit-bait, P2P filesharing systems look attractive in comparison.] They won’t go legitimate unless and until they have no alternative – until the game is up. [And the RIAA gets to decide what legitimate is.]

I invite you to look at these services. [Encouraging Senators to flood their machines with spyware. Smaaaart.] They are seductive. [That KaZaA is just so darn sexy.] They intentionally invite theft. [Theft, isn’t that stealing physical goods? I thought were talking about infringement?] They are havens for pornographers that project their filth into your homes when your kids innocently seek to find their favorite artists. [Unlike the internet, where nary a pornographer is to be found. And, can’t the Senate address pornography through other laws? Indeed, wouldn’t you be inviting First Amendment problems if the Senate passed the INDUCE Act to target pornography?] They compromise computer security. [Which is why the RIAA wants Senators to use the programs. Again, aren’t there other ways to go after spyware, which is often not associated with P2P anyway. Drat those forwarded email games!] They facilitate the unintended disclosure of personal documentation – resumes, tax and credit card data, medical returns and more. [Sounds like more of an education problem than a legal one] And their warnings – about privacy abuse, security, pornography and copyright – are anything but conspicuous. [Well, not according to testimony from the FTC:

“Although the Commission has required warnings with respect to inherently dangerous products in appropriate cases, we are not aware of any basis under the FTC Act for distinguishing P2P from other neutral consumer technologies….The FTC staff’s review revealed that distributors of P2P file-sharing programs use a variety of means to convey risk information to consumers. Distributors disclose risk information on their own Web sites or in their licensing agreements with consumers. Some distributors also provide consumers with a hyperlink to risk information at www.P2PUnited.org, one of the P2P file-sharing software industry’s trade associations. In addition, one of the main portals for downloading such programs, www.Download.com, discloses some risk information on its site.”]

No objective review of these services can possibly conclude that they have any pretense of legitimacy. [Except for all those companies distributing their files via P2P networks.]

Do these illegitimate services compensate artists? No. Songwriters? No. Pay taxes on the value of product? No. Compensate the record label in any way? No. Invest in the generation of new art? No. [Translation: If you pay us, you’re legitimate. Otherwise, not.]

They are scam artists of the highest order – hiding behind a veil of new technology and the aura of innovation. [You know, because P2P isn’t innovative. Because creating a distributed network of peers that come and go is child’s play.] They are illegitimate – and they are destroying the investment basis in new art. [Unlike the RIAA, which has spent millions developing boy bands.] A country – and an economy – that has as its core respect for property, cannot tolerate grand theft of this order. [Property defined as “the RIAA gets to decide who can own innovation.”]

By anomaly, we can’t get at these operators directly in the courts. [Or maybe by proper judicial reasoning. It’s only anomalous if you don’t like the outcome.]

The original illegitimate version of Napster (as distinguished from the new Napster which is a legitimate licensed service) was forced by the courts to eliminate unlicensed copyrighted songs from its service because it had central servers. [Isn’t this what the RIAA wanted?] Napster exercised “control” and, therefore, was held responsible for the infringement it facilitated. [“Control.” Sounds like a pretty good basis for liability to me.] Some companies read the Napster decision carefully, [I guess judicial decisions should only be read lightly?] and purposefully crafted a de-centralized system that intentionally offloads the risks, costs and liability it should bear to the users it lures to its service. [Otherwise known as comporting with the law. Attempting to avoid liability should now, itself, be a crime.] A District Court in California ruled that these new services were not liable despite the obvious profit-by-infringement business model, and invited Congress to address the loophole. [But I don’t think the court was really asking for Congress to broaden the standards with some vague language and toss it back to the courts to figure out what Congress meant.] (The decision is being appealed.) [And so Congress needs to address this now, why?]

From a user experience, there is no meaningful distinction between centralized and de-centralized file sharing. [From a user’s perspective, there isn’t a meaningful distinction for a lot of the internet.] From a victim experience, the impact is the same. [But from the network’s experience, it is certainly distinct. Shut down Napster’s servers and you shut down Napster. Shut down KaZaA and KaZaA’s network remains. I think that is relevant distinction.] In both cases, it’s identical to someone walking into a store, taking some CDs off the shelf, and walking out of the store without paying for them. [Well, no it isn’t, because the RIAA is proposing going after the company that made the jacket with pockets that the person used to carry the CDs. The jacket company might wish to protest that they didn’t have anything to do with the person taking CDs.] Yet the courts have applied the law in a manner that this essentially meaningless distinction allows these parasitic inducers to perpetrate their fraud. [Since when has control been meaningless? Does Bainwol, who has no legal control over what his member companies do, think that he should be held accountable for their illegal actions? After all, control is a meaningless distinction according to Bainwol.]

And so, Congress should accept the court’s invitation and act. Senators Hatch and Leahy have taken the lead in doing so.

To date, much attention in the policy arena has been focused on process questions relating to the lawsuits my industry was forced to initiate. [In my view, initiated too late. And now they want to complain because they let the problem grow out of control.] Importantly, the new legislation puts the spotlight exactly where it belongs – squarely on the bad actors that intentionally induce the illegal behavior. [Actually, the legislation puts the spotlight on those who innovate in ways that threaten copyright holders.]

My industry can continue to sue users, many of them kids, to establish deterrence and educate the public. [And indeed they will. The RIAA isn’t promising to stop the lawsuits if this bill passes.] But the real villains are not the kids. [But we’re going to continue to sue them anyway.] The real villains are those profiteers who offload liability on these kids and are laughing all the way to the bank as American courts struggle to apply existing law (or misapply it) to this abuse of good technology. [Actually, I don’t think it is really possible to profit from P2P and avoid contributory or vicarious liability under existing doctrines. If the RIAA thinks it is hard to compete with free music, why isn’t it just as hard to compete with free software? In any case, I’ve provided the RIAA with some hints as to how they can reduce the profitability of commercial P2P networks: The Best Defense is a Good Offense and One Way for the RIAA to Go on the Offensive.]

Wouldn’t it be preferable to put these bad actors in the vise of the law? [Well, that is the trouble isn’t it? Distinguishing the bad actors from the good. If we could pass a magical law that only put bad actors in jail, the Senate could just about close up shop and go home.] Isn’t it time to end this charade? [Which charade is that? The charade that the INDUCE Act isn’t wildly overbroad?] Isn’t it time to stand up for the fundamental American value of property? [How about the fundamental American value of technological innovation? My America is an America of tinkerers and inventors, not an America of landed aristocrats.]

That’s where S. 2560 comes into the picture. [Finally. I thought the “context” would never end.]

Instead of seeking to target a technology, we believe the bill rightly goes after bad behavior. [Translation: We don’t want to define a technology because, a) we can’t, since the internet is built on P2P and any definition we provide would almost inevitably encompass all sorts of technologies like FTP and email, b) thanks to the flexibility of the internet, there will inevitably be loopholes unless we ban wide swaths of technology, c) technology? We’re the RIAA, we don’t do technology.] It seeks to isolate bad actors that intentionally induce others to break the law. [Except that it defines “intentionally induce” as a guess at someone’s motives with regard to mass amounts of others where some act illegally and others don’t.] I’m not a lawyer, but intentional inducement is a high standard that is difficult to meet, consistent with the 1984 Sony Betamax case, and would not come anywhere near companies who simply produce devices that can be used for either legitimate or illegitimate purposes. [Well, I’m glad you’re not a lawyer, because if that was the advice you were giving to Google, for example, you might just be guilty of malpractice. The real point is that the traditional standard for inducement is quite high. If the RIAA could prove that higher standard, existing laws would suffice to put the evildoers away. However, the RIAA can’t meet that higher standard, and so they want to reduce the burden of proof necessary.] S. 2560 requires purposeful action, deliberate and intentional conduct to induce others to break the law. [Unfortunately, that is the thing with intent. The action is ambiguous. You look at an action and try to figure out what the actor intended. They might have good intentions, they might have bad intentions. If the action was clearly bad, you wouldn’t need intent, now would you? This law allows courts and juries to impute bad intent to actions that will often have both good and bad effects.] It’s common sense. [This am common sense in Bizarro world.] It’s the premise behind aiding and abetting under the criminal laws. [It might be the premise, but it isn’t how aiding and abetting are normally proven in court.] It’s a moral behavioral test that targets the bad guys, not legitimate commercial actors. [A “moral behavioral test”? What the heck is that? Is this law ala BF Skinner?]

In Sony, the lower court found that Sony Corp., the maker of the Betamax, did not induce a violation of the law by consumers who used it to copy videos. [Funny, citing a case that was overruled and isn’t good precedent. Still, yes, Betamax was not found guilty of inducement, but the court wasn’t judging Sony under this proposed standard of the INDUCE Act. In fact, this court was judging whether or not Betamax induced infringement as part of the existing contributory liability test:

The Second Circuit has offered the most clear definition of contributory infringement:
(O)ne who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a “contributory” infringer.
Plaintiffs rely on the same factual allegations discussed above to support a finding of contributory infringement: the manufacture, advertising, demonstration and sale of Betamax causes, induces or, at the very least, encourages, furthers or materially contributes to the unauthorized recording of copyrighted motion pictures. According to plaintiffs, that is the primary use for which Betamax is designed and marketed and which defendants encourage in their ads and brochures. In addition, plaintiffs’ witnesses testified at trial that while off-the-air recording was possible with machines available prior to Betamax, Betamax was the first compact, affordable consumer item. {citation omitted}]

Sony made a machine that was capable of copying, but did not induce users to use it for illegal purposes. [That’s not what Jack Valenti said at the time: “Now, these machines are advertised for one purpose in life. Their only single mission, their primary mission is to copy coyrighted material that belongs to other people. I don’t have to go into it. The ads are here. Here is Sony that tells you that you can record one channel while watching another. You can program to record a variety of shows on four different channels for up to 14 days in advance if you like.” Let’s look at the arguments made in the case at the time.

ADVERTISING
DDBI is Sonam’s advertising agency for consumer products. Since the introduction of the first Betamax model, DDBI, in cooperation with Sonam, has created and published Betamax advertisements for magazines, newspapers and television. In November, 1975, Sonam agreed to indemnify DDBI for any liability arising from this advertising campaign.
Many of these national ads for the Betamax have been introduced into evidence. Some of these exhort the public to “record favorite shows” or “build a library.” Some have suggested recording “novels for television” and “classic movies.” None of the Betamax advertisements warns that recording copyrighted shows is or may be a copyright infringement.
In addition to the DDBI national advertising campaign, Sonam operates a cooperative advertising program. Under this program, individual franchise dealers write and place ads for the Betamax and, if Sonam approves the ads, the local dealer receives 5% Of the cost of the ads as a credit to the balance owed Sony for previously purchased merchandise.
Henry’s Camera has participated in this program and has received credit for advertisements with “record your favorite show” and “build a library” language.
WARNINGS
None of the Betamax models or the brochures describing them contains warnings about copyright infringement. Pre-Betamax videotape recorders manufactured by Sony (the U-Matic, AV and CV series) had a small plate attached to the back stating: “This videotape recorder is not to be used to record copyrighted works.”
The Betamax operating instructions, however, include a warning about possible copyright infringement. On page 17 of the instruction booklet, the following language appears: “Television programs, films, videotapes and other materials may be copyrighted. Unauthorized recording of such material may be contrary to the provisions of the United States copyright laws.” The Betamax machine and this accompanying booklet are delivered to the purchaser in a sealed box.
The Betamax warranty states that there shall be no liability on the part of the manufacturer, distributor or seller for any loss or damage arising directly or indirectly from the use of the Betamax.

Sounds an awful lot like what KaZaA and the others are accused of doing.] Sony, Apple and other legitimate participants in the marketplace, remain safe under this bill. [Gee, a major content owner and a company with contracts with the labels is protected, that’s reassuring.] And that’s why we support it. [Indeed, as long as Sony and Apple are protected, why not support the law?]

There has been concern expressed by the consumer electronics industry and some others that this legislation is overly broad as drafted and could have some unintended consequences. [See, me – INDUCE Act Archives & Hatch’s Hit List] We would support any version of this bill that the sponsors develop, should they choose to do so, to assure that any valid concerns are addressed. [Anything that expands copyright liability is just dandy with the RIAA.] But doing nothing to address this problem – or opposing any initiative aimed at resolving the massive P2P piracy problem against the operators who are profiting – should not be an acceptable proposition. [If the only response is an overbroad one that provides far too much power to copyright interests, well, that is a sacrifice the RIAA is willing to make.]

Therefore, when you hear criticisms of this bill, I’d encourage you to ask a simple question: Is the criticism about the core purpose – getting at bad actors that are destroying the funding of new creativity – or is the criticism about definition? [You know, because definition is not an issue. Procedural safeguards and due process aren’t important. What could I be thinking?] If it’s about who gets caught in the net, then I’d suggest the response to the critics should be to seek their suggestions for improving the definition. [The law may be overbroad and unconstitutional, but the critics should show how to fix it. The RIAA, apparently, can’t figure it out themselves and want others to do their work for them.]

The recent letter signed by a group of interests seeking a hearing (which we too support) is a case in point. [The RIAA wants hearings. Who woulda thunk it?] It states:

“While we agree with the need to penalize those who intentionally cause Copyright infringement, we are concerned…”

Those who accept the core purpose of the bill ought to come forth with constructive and concrete suggestions, not hypothetical and peripheral concerns. [Here is my suggestion, use the existing definition of inducement. There, now that wasn’t too bad was it?] Why? The men and women of the music community and their families – and other content creators – deserve action. [And the men and women of the technology community and their families – and others, like the consumers – deserve diddly squat.] We can’t afford paralysis. [We can’t afford ill-informed action, either.]

The bill does not mandate any technological fix, though you should know that technology does exist to filter out copyrighted works on these networks. [Must be talking about Audible Magic. For more on Audible Magic and why it doesn’t work, read Audible Magic’s Sleight of Hand and Does Audible Magic Violate Wiretap Laws?] This technology is in use in other applications – it’s no longer conceptual. If these P2P networks adopt such a filter, the sharing then becomes legitimate, while the stealing that masquerades as sharing ends. [If the P2P networks adopt such a filter, then many of them will no longer be the same networks. And it is sort of hard to have open source code running such filters as well.]

Ironically, these P2P operators who hide behind the protective cover of “technology,” resist deploying existing technological answers to solve this problem. [They have petty complaints, like, they don’t work or change the nature of the technology.] They resist modernization because it undercuts their business model. [WHO resists modernization because it undercuts their business model? The irony is toooo rich.] There’s a price to going legitimate. [There’s a price for resisting change, too.] But you can make it harder for them to resist doing the right thing – without imposing a mandate. [That is because the mandate will be imposed by the RIAA, saving Congress the trouble.] And that’s by raising the price for not going legitimate. [And raising the price for innovation as well.]

The legislation before the Judiciary Committee does not stifle innovation. [If you define innovations as “what the RIAA wants.”] It inspires it. [Inspires it to move overseas.] It will unleash a wave of investment in legitimate P2P networks and alternative distribution approaches that want to go the right way – a model that respects property. [Alternative distribution. Riiight. That’s what the RIAA supports, sure.]

I write you today to urge you to act. Today it’s about music. Tomorrow it will be about movies, software and games. [Isn’t that what the MPAA, BSA and ESA are already claiming?] Just last week we learned that pirated software hit nearly $29 billion globally in 2003 – 60% of legal sales- with much of the blame attributed to illegal P2P file sharing. [And these figures were accurate, because? I guess the fact that not every infringed copy is a lost sale, offset by the benefits of increased market penetration and network effects just hasn’t made it through to the content industries.]

If we don’t value intellectual property, we are compromising our country’s economic future and the foundation of property rights that underlies our great capitalist system. [And if we don’t value innovation and open networks, we are compromising our country’s economic future even more.]

In the end, this debate is not about digital versus plastic or old versus new or technology versus content. [Yep, it isn’t content vs. technology, it is content vs. every other value. It is Content Uber Alles.] It’s about the delivery of digital music online – and whether Congress will accept a business model based on thievery or insist on the rule of law. [It’s about Congress permitting the development of new business models, or insisting that the old ones be frozen in amber.]

So please look carefully at this legislation. [Yep. Look closely: INDUCE Act Archives & Hatch’s Hit List] And please do not let perfection be the enemy of the good or tangential excuses be the enemy of common sense defense of property rights. [And let’s not let a desire for action sweep us into doing things that will be detrimental in the long run.] Too much is at stake. [Indeed.]

We need your help. [Americans need to be protected from this “help.”]

I’m available if you have any questions. […Nah…]

Sincerely,

Mitch Bainwol

Plaintiffs’ claims are unprecedented. Unlike the defendant in Gershwin, defendants here do not arrange for and direct the programming for the infringing activity. Unlike the defendants in Screen Gems I and II, defendants here do not sell or advertise the infringing work. Plaintiffs sue defendants because they manufacture, distribute, advertise and sell a product capable of a variety of uses, some of them allegedly infringing. Selling a staple article of commerce E. g., a typewriter, a recorder, a camera, a photocopying machine technically contributes to any infringing use subsequently made thereof, but this kind of “contribution,” if deemed sufficient as a basis for liability, would expand the theory beyond precedent and arguably beyond judicial management.]