Yesterday, as C|Net News reported, Senator Orrin Hatch (R-UT) officially introduced the INDUCE Act to the public (Senate bill bans P2P networks). See also, Susan Crawford (INDUCE Act introduced) and Larry Lessig (even I can’t believe this). Read the bill here: Inducing Infringement of Copyrights Act of 2004 [PDF].
In introducing the bill, Hatch provided extensive justifications and arguments on behalf of the bill. Eight pages worth: Before the United States Senate on Introduction of the “Inducing Infringement of Copyrights Act of 2004” S. 2560 [PDF]. Since it looks like this bill will move quickly in Congress, opponents will have to get up to speed quickly. Thankfully, Hatch provided an excellent guide to the talking points proponents will use. Consequently, I’ve decided to go through Hatch’s introduction and extensively annotate it. However, this is just a response piece and many arguments against the bill won’t be here. The annotation is long, but I think there are definitely some valuable nuggets of information, such as, towards the end, Hatch makes clear he wants criminal enforcement of the Act.
My comments are in brackets, bold and italics. I’ve added hyperlinks to Hatch’s text as I thought useful. Read on…
Orrin [Will someone please think of the children?] Hatch
Before the United States Senate on Introduction of the “Inducing Infringement of Copyrights Act of 2004” S. 2560
June 22, 2004
SEN. HATCH [R-UT $157,860]. Mr. President, I rise with my esteemed colleague and friend, Senator Leahy [D-VT $181,000], ranking Democrat Member of the Senate Judiciary Committee, to introduce the “Inducing Infringement of Copyrights Act of 2004 [PDF].” [The Act has changed its name. Before it was introduced it was called the “Inducement Devolves into Unlawful Child Exploitation Act” or INDUCE Act. Presumably, the new title will be subject to less ridicule.] This Act will confirm that creative artists [Note to self: When introducing copyright legislation always refer to “creative artists” and not “large corporate conglomerates, many of which are foreign-owned.”] can sue corporations [Hmmm … my copy of the bill doesn’t say “corporations.” It says you can sue “whoever.”] that profit [Or not. You don’t have to profit in order to be sued. Many not-for-profit open source software projects (and their coders) will be targeted for elimination if this bill becomes law.] by encouraging children, teenagers [Will someone please think of the children?] and [millions of] others to commit illegal or criminal acts of copyright infringement [as well as frowned upon use of fair use rights and freedom of expression]. Senator Leahy and I are pleased that Majority Leader Frist [R-TN $58,550] and Minority Leader Daschle [D-SD $318,790] and Senators Graham [R-SC $72,273] and Boxer [D-CA $476,985] are co-sponsoring this important bipartisan legislation.
Mr. President, it is illegal [If it is already illegal, why do we need a statute?] and immoral to induce or encourage children [Will someone please think of the children?] to commit crimes. Artists realize that adults who corrupt or exploit the innocence of children are the worst type of villains. [Well, call me morally challenged, but I consider murderers worse. And I take it these are different artists than the ones that corrupt children through that “rock and roll” or “rap” noise?] In Oliver Twist, Fagin and Bill Sikes profited by inducing children to steal. [Hatch fails to note that Oliver was forced into the streets when the moralistic parish authorities sent him to a workhouse that nearly starved him to death and then sold him to an abusive undertaker as a slave/apprentice when he asked “for more.” I think one of the points Dickens was making was that if you treat people better, there will be less cause for them to turn to crime. Sort of like if the RIAA treated people better they might not engage in infringement.] In the film Chitty-Chitty Bang-Bang, the leering “Child-Catcher” lured children into danger with false promises of “free lollipops.” [Actually, the Child-Catcher was acting as an agent of the government because a nonsensical law banning children had been passed by a ruler who feared kids, sort of like other nonsensical laws banning things those in power fear.] Tragically, some corporations now seem to think that they can legally profit by inducing children to steal – that they can legally lure children [Will someone please think of the children?] and [millions of] others with false promises [If the promises are false, then no infringement takes place, right?] of “free music.” [Tragically, some major corporate copyright holders now seem to think that they can legally profit by getting laws passed that inhibit innovation and free speech.]
Such beliefs seem common among distributors of so-called peer-to-peer filesharing (“P2P”) software. [“So-called,” indeed. Hatch isn’t about define what P2P software is because it would end up including things like e-mail, IM, VoIP, HTTP and plenty of other internet protocols. P2P is how much of the internet works.] These programs are used mostly by children and college students – about half of their users are children. [You can say the same things about videogames, as well as other popular technologies like IM and SMS. It is frequently the case that the younger generation adopts new technologies sooner than older users.] Users of these programs routinely violate criminal laws relating to copyright infringement and pornography distribution. [You can say the same thing about plenty of internet protocols, such as HTTP, FTP, SMTP, and so on.] Criminal law defines “inducement” as “that which leads or tempts to the commission of crime.” [Luckily, not every temptation is a crime or there would be more people in jail than free.] Some P2P software appears to be the definition of criminal inducement captured in computer code. [Software is a tool. This is the same as saying that bolt-cutters and crowbars are inducements to burglary.]
Distributors of some P2P software admit this. The distributors of EarthStation 5 state, “While other peer 2 peer networks like Kazaa or Imesh continue to deny building their programs for illegal file sharing, at ES5 we not only admit why we built ES5, we actually promote P2P, endorse file sharing, and join our users in swapping files!” [Unfortunately for Hatch and copyright holders, EarthStation 5 claims to be located in a Palestinian Refugee Camp and is beyond the reach of US law. Point out problems that your statute will do nothing about. That’s persuasive.]
Recently, in the Grokster case, a federal court drew similar conclusions about the intent of other distributors of P2P software. It warned that some P2P distributors “may have intentionally structured their businesses to avoid secondary liability for copyright infringement, while benefiting financially from the illicit draw of their wares.” [Generally, those who structure their companies so that they remain within the bounds of the law are considered admirable. We call these people “businessmen,” “entrepreneurs,” and “capitalists.”] In other words, many P2P distributors may think that they can lawfully profit by inducing children [Will someone please think of the children?] to break the law and commit crimes. [What about those who have no intention of profiting, but merely like to code?]
They are dead wrong. America punishes as criminals those who induce others to commit any criminal act, including copyright infringement. [So we need this statute, why?] The first sentence of our Criminal Code states:
Whoever commits an offense against the United States or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal….
Indeed, it is absurd to think that our law might be otherwise. No civilized country could let sophisticated adults profit by tempting its most vulnerable citizens – its children [Will someone please think of the children?] – to break the law.
I think we must understand how some corporations came to confuse child endangerment with a legal business model. [Again with the corporations. Unfortunately, the law isn’t limited to corporations.] Their confusion seems to arise from court cases misinterpreting a well-intended Supreme Court decision that tried to clarify two critical components of federal law: the law of secondary liability and the law of copyright. [Senator Hatch, legal scholar. I like this quote from The Hill, “No Republican senator has sponsored more laws later held unconstitutional than Hatch.” That’s quite an impressive record and says something about his legal acumen. And what it is saying can’t be printed on a family webpage.]
The Supreme Court states that secondary liability is “imposed in virtually all areas of the law.” Secondary liability is universal because its logic is compelling. [Except when it isn’t compelling.] It does not absolve lawbreakers of guilt. But it recognizes that we are all human: We are all more likely to break the law if encouraged or ordered to do so. [Encouraging and ordering are far more direct actions than “inducing.” Thesaurus.com doesn’t show either “encourage” or “order” as being synonymous with “induce.”] Secondary liability thus discourages lawlessness by punishing people who manipulate others into doing the “dirty work” of breaking the law. [Nope, “manipulate” isn’t a synonym for induce either. “Manipulate” usually indicates some form of control.] Secondary liability usually targets two types of persons: 1) those who induce others to break the law, and 2) those who control others who break the law. [Ok. But let’s remember that P2P software also has legitimate uses (dual-use), which Hatch doesn’t deny. What does a real legal scholar, like UCLA Law Professor Eugene Volokh, have to say about inducement, particularly in speech cases involving dual-use, in his paper on Crime Facilitating Speech {PDF}?:
First, aiding and abetting laws and crime facilitation laws are almost never applied to dual-use conduct. In the typical aiding case, the aider knows that his services will be used by one particular person, solely to commit a crime. Even when the aider is generally in the business of providing a dual-use product—such as metal-cutting equipment—he is generally prosecuted only when he knows that a particular sale is going to a person who intends to use the product illegally (for instance, to break into a bank).]
Though secondary liability is nearly ubiquitous, it has almost always remained as a judgemade, common-law doctrine – and for a good reason. [Judgemade that is, except for that first sentence in the Federal Criminal Code cited above.] Secondary liability prevents the use of indirect means to achieve illegal ends. Consequently, the scope of secondary liability must be flexible – otherwise, it would just instruct wrong-doers on how to legally encourage or manipulate others into breaking the law. [It must also be flexible otherwise you are going to be tossing a lot of people into jail unjustly. You see, the more secondary liability you impose, the more likely you significantly increase the costs of obeying the law. For example, you could hold sellers of bolt-cutters secondarily liable for burglary, unless they proved they did a background check before selling bolt-cutters.] The common-law judicial process is ideally suited to evolve flexible secondary-liability rules from the results of many individual cases. [Indeed. Unfortunately, it isn’t providing the answers Hollywood wants.]
As a result, Congress rarely codifies secondary liability. It has codified secondary liability to narrow it, as in the Patent Act. Congress has codified secondary liability in the Criminal Code to ensure that the narrow construction given criminal statutes would not foreclose secondary liability. In the Digital Millennium Copyright Act, Congress codified a complex balance between opposed interests that expanded one type of secondary liability and narrowed another. [If Hatch considers the DMCA balanced, I’m not sure he has any idea what the word actually means.]
Congress has always assumed that infringers could readily induce consumers to accept infringing copies of works. It thus created “a potent arsenal of remedies against an infringer….” But secondary liability often arises if a third party can be ordered or induced to make the infringing copies. [If P2P networks were ordering people to infringe copyright I would be all for prosecuting them.] Consequently, only after copying devices became available to people who might be induced to infringe did questions about secondary liability for infringement become pressing. [Today, we call these copying devices “Personal Computers connected to the internet.” Of course, they do a lot more than copy things, but if you talk about them as “copying devices” it sounds better.]
In 1984, these questions reached the Supreme Court in Sony Corp. v. Universal City Studios, Inc. Sony held that the makers of the Betamax VCR could not be held secondarily liable in a civil suit brought by copyright holders – even though some consumers would use VCRs to make infringing copies of copyrighted TV broadcasts.
Sony also created a broader limitation on secondary liability by importing a limitation that that Congress had codified only in the Patent Act; this was the substantial-noninfringing-use rule, also called the “staple article of commerce” doctrine. Sony intended this rule to strike, as between creators of works and copying equipment, the same “balance” that it had struck under the Patent Act between the rights of patent holder and makers of staple products.
Under the Patent Act, the substantial-noninfringing-use rule bars secondary liability for selling a “staple” product that has a “substantial noninfringing use” – even if that staple could also be used as a component in an infringing copy of a patented invention. [Of course, in Sony, the Supreme Court said that a device “need merely be capable of substantial noninfringing uses” in order to avoid copyright liability.] This rule protects makers of staples without changing the nature of secondary liability. In particular, it does not immunize bad actors who intend to distribute “patent-infringement kits.” Even in the rare case of a novel invention that consists only of “staple” components, an “infringement kit” must bundle components and include assembly instructions. [Well, that is one of the problems, isn’t it? P2P is a staple component of the internet. If P2P was only useful for infringement it would be easy to pass a law banning P2P, now wouldn’t it? And what about those assembly instructions? What P2P network, other than EarthStation 5, is bundling infringement instructions? It doesn’t take a genius to figure out that P2P filesharing programs can be used to infringe copyright; no instructions are needed. Of course, I can also say the same thing about email, FTP, HTTP, you get the picture.] Neither the bundle nor the instructions will likely have a “substantial noninfringing use.” [Well, then there isn’t a problem is there? The “substantial noninfringing use” test is already part of the legal landscape.]
Sony intended this rule to strike the same admirable “balance” under the Copyright Act. Unfortunately, Sony also proposed that if this rule proved problematic, Congress should alter it on a technology-by-technology basis. [Not quite. The court basically said to Congress, if you don’t like our ruling, change the law. I don’t recall the Court demanding Congress only change the law on a technology-by-technology basis.] This proposal was flawed: In 1976, Congress redrafted the Copyright Act to avoid the need to re-adjust copyrights on a technology-by-technology basis because legislation could no longer keep pace with technological change. [Which explains why Congress had to pass the No Electronic Theft Act, Digital Audio Home Recording Act and the DMCA. Hatch has been around long enough that he should remember these laws.] Returning to this impractical technology-based approach would create an endless procession of “tech-mandate” laws that discriminate between technologies Congress deems “good” or “bad.” [Instead, Hatch proposes that Hollywood deem what technologies are “good” or “bad” through the courts. And don’t think it won’t happen. As soon as Hollywood manages to get a judgement against the provider of a particular technology, no one will dare touch it for fear of liability.] But technologies are rarely inherently either “good” or “bad.” [Hollywood thinks that the only good technology is technology that it controls. I can’t think of a major advance in consumer electronics that Hollywood hasn’t tried to put out of business through lawsuit.] Most can be used for either purpose; the effect depends on details of implementation impossible to capture – or predict – in prospective legislation. [Similar excuses are used whenever a legislature wants to pass the buck on deciding what the law should be to another branch. “Stop the bad uses. Here is a broad, vague mandate of power.”]
Of course, the dysfunctional corrective mechanism that Sony proposed would have become problematic only if the Sony limitation was misunderstood or misapplied by lower courts. Unfortunately, that has now happened. [“Lower courts.” You know, we already have a correction mechanism for lower courts. They are called “appellate courts.” We even have a correction mechanism for appellate courts. It is called the “Supreme Court.” You might argue that the system doesn’t operate quickly enough. But we do have things like temporary injunctions and what not that are supposed to balance the harms while a decision is being made. Can you imagine if Congress had to jump in to change the law everytime a lower court screwed up? Congressmen would never have any time to raise more election money.]
In cases like Napster and Grokster, lower courts misapplied the substantial-non-infringing-use limitation. [I imagine that Napster would be quite surprised to hear this.] These courts forgot about “balance” and held that this limitation radically alters secondary liability. [Yeah, Napster was a hugely unbalanced loss for the RIAA.] In effect, these cases retained secondary liability’s control prong but collapsed its inducement prong. [Or, one could say that the courts were following the common law and applying the precedents. If “inducement” has been commonly cited in secondary liability copyright cases, I must have missed it.] The results of these cases prove this point: Napster imposed liability upon a distributor of copying devices who controlled infringing users; Grokster did not impose liability upon distributors who appeared to induce and profit from users’ infringement. [Funny, there is no “and” in the statute. You don’t have to “induce and profit from” users’ infringement.]
A secondary-liability rule that punishes control and immunizes inducement is a public policy disaster. [This is highly disputable. One could argue that punishing inducement without control of dual-use technology is not a good idea, which explains why courts are reluctant to do it. I highly doubt that the judges in Grokster and Napster stayed away from inducement arguments because they favor copyright infringement. Let’s see what Volokh has to say:
I know of no aiding and abetting or criminal facilitation prosecutions where the seller sold a genuinely dual-use product (other than speech), and couldn’t tell which users were going to use it for criminal purposes. If anything, the cases suggest the opposite: Even when a seller of a dual-use good or service knows (but doesn’t intend) that a particular customer will use the product criminally—for example, when an answering service operator knows that particular clients are prostitutes who use the service to arrange assignations—courts often refrain from imposing liability.]
It seems to permit the distribution of “piracy machines” designed to make infringement easy, tempting, and automatic. Even Harvard’s Berkman Center for Internet and Society suggests that this is happening. The Center warns that “it can be extremely difficult for a non-expert computer user to shut down” the viral redistribution that can otherwise automatically make the user an international distributor of infringing works. [Bad interface design – now a violation of copyright. More importantly, Derek Slater, who works for the Berkman Center, says this quote is taken out of context: Things That Bother Me, Vol. 1] The Center notes that the “complexity of KaZaA’s installation and disabling functions” may leave many users unaware that they have become a contributor to global, for-profit copyright piracy. [It is only “for profit” if you already assume liability for the network.] Unfortunately, “piracy machines” designed to mislead their users are just one of the perverse effects of a secondary liability rule that punishes control and immunizes inducement. [And one of the perverse effects of misleading consumers is that consumers stop using your products and software, especially when consumers get sued for using your products. Also, where Hatch has been arguing that the infringers are complicit in violating the law, now he seems to be arguing that they are unwitting dupes. If people are “unaware” that they are violating the law, does it really make sense to talk of “inducement”?]
Perhaps the least perverse of these effects has been years of conflict between the content and technology industries. Content creators sought the tech-mandate “corrections” that Sony proposed. [Now, the content owners are asking Congress to let them decide what the mandates are.] Technology industries opposed such laws because they too easily foreclose innocent or unforeseen applications. P2P software illustrates the problem: Today, most P2P software functions like Earthstation 5’s “piracy machine.” [If a company run out of a Palestinian Refugee Camp bought a bunch of photocopiers and claimed to support all sorts of book piracy, that would be a reason to regulate photocopiers?] Yet all agree that non-piracy-adapted implementations of P2P could have legitimate and beneficial uses. [Unfortunately, and this is what all the disagreement between the content and technology companies is about, is that they don’t agree about what a non-piracy-adapated implementation of P2P would be. Democrats and Republicans agree that promoting a strong economy is a good thing. Unfortunately, they disagree what counts as promoting a strong economy.]
A rule that punishes only control also produces absurd results. Secondary liability should focus on intent to use indirect means to achieve illegal ends. [But intention will lead to results even more absurd. The problem, which Hatch ignores, is that intent is normally very difficult to prove. You have to look at all sorts of things outside the technology itself. Basically, it will normally come down to whether a jury likes the defendants or not. With plenty of Hollywood spokespeople willing to talk about “Boston Stranglers” and “hackers” it would be easy to paint any new technology as meant for evil purposes. When the Betamax debuted, Valenti basically painted Sony as the Yellow Peril – bent on destroying Hollywood and apple pie. Hollywood will do it again.] A rule that punishes only control degenerates into inane debate about which indirect means was used. [Well, this wouldn’t be the first inane debate copyright has launched. Is a computer program in RAM a “copy” for purposes of copyright law or not, Senator?] Thus Napster and Grokster are regulated differently – though they function similarly from the perspective of the user, the distributor, or the copyright holder. [Strangely, that is how patent law works. I build something that does the exact same thing, but does it in a different manner, I don’t get busted for patent infringement. There are other legal examples, but this isn’t a terribly unusual thing in law.]
A rule that punishes only control also acts as a “tech-mandate” law: It mandates the use of technologies that avoid “control” – regardless of whether they are suited for a particular task. [Well, any sort of secondary liability rule is going to have tech-mandate qualities. For example, if one is going to design a technology, it had better have the possibility of substantial non-infringing uses. Also, as I noted above, an intention rule will also act as an effective tech-mandate, except that it will be Hollywood who determines what the mandate is.] Napster was punished for processing search requests efficiently on a centralized search index that it controlled. Grokster escaped by processing search requests less efficiently on a decentralized search index that it did not control. Rewarding inefficiency makes little sense. [Tell that to patent law. Seriously, though, what is Hatch arguing here? Does he think we could have Napster as it was under his new law? Since the law purports to leave the current doctrines of contributory and vicarious copyright liability unchanged, the original Napster would still be illegal. If Hatch was proposing to replace contributory and vicarious infringement with intentional inducement, that would be different. So, yes, the current regime supports some forms of inefficiency – though completely decentralized systems may be more robust – which is another type of efficiency. However, Hatch is only adding more potential inefficiencies into the system. Under this statute not only will Napster be illegal, so will Grokster (almost certainly). What is efficient about that? See also, Derek Slater, Things That Bother Me, Vol. 2. Derek’s arguments about control are actually very similar to mine, so I won’t repeat them here. And, hey, congratulations for reading this far! Thanks!]
A secondary-liability rule that punishes only control also punishes consumers: It encourages designers to avoid “control” by shifting risks onto consumers. [Whereas laws that punish control AND intent punish consumers by eliminating types of software many consumers use quite legitimately. It also punishes consumers by taxing innovation and turning technology development over to Hollywood. Another, less drastic solution would be for the government to sponsor a consumer education program, like those “no smoking” ads. Heck, why should government do it? If Hollywood is so concerned with the consumers, let them pay for an education campaign.] For example, Napster incurred billion-dollar liability because it controlled computers housing a search index that located infringing files. Programs like Kazaa avoid Napster’s “control” by moving their search indices onto computers owned by unsuspecting consumers. [Unsuspecting consumers or willful infringers? Which is it, Senator? If the consumers are unsuspecting, shouldn’t we be considering a law absolving them of liability as well?] Consumers were never warned about the risks of housing these indices. [Call me crazy, but I think 3,000+ lawsuits is pretty good warning.] As a result, many consumers, universities, and businesses now control computers that house “mini-Napsters” – parts of a search index much like the one that destroyed Napster. [Remember that DMCA law, Senator? Most of these unsuspecting types will escape liability if they didn’t install this software themselves. If they are still liable despite not knowing, shouldn’t we be creating a safe harbor for them?] These indices could still impose devastating liability upon anyone who “controls” a computer housing them. A secondary-liability rule that punishes only control thus rewards Kazaa for shifting huge risks onto unsuspecting consumers, universities and businesses. [Of course, suing KaZaA out of business doesn’t eliminate the liability for these people. That is the problem with decentralized services, there is no single point of control to eliminate. So, let’s assume KaZaA is sued out of existance tomorrow. Does that do anything with regard to all those “mini-Napsters” out there?]
And search indices are just one of the risks that designers of P2P software seem to impose upon their young users to avoid control. For example, the designers of most filesharing software choose to lack the ability to remove or block access to files known to contain viruses, child pornography or pornography mislabeled to be appealing to children. [What does this have to do with copyright infringement? Isn’t this a consumer protection issue? Shouldn’t we call the FTC? Oh, yeah, the FTC has this to say: “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.” And hasn’t Congress already passed several laws dealing with pornography on the internet? Oh, yeah, they keep getting struck down by the courts, mostly.] This ability could create “control” and trigger liability. Aiding distributors of viruses and pornography may be just an unfortunate side effect of avoiding control while inducing infringement. [Hatch keeps talking about “avoiding control.” Like companies will start creating filesharing programs that can be controlled as long as the Napster decision is still valid law. Hello, 2+2=4, Senator.]
A secondary-liability rule that immunizes inducement also encourages attempts to conceal risks from consumers: It is easier to induce people to take risks if they are unsure whether they are incurring a risk or its severity. The interfaces of most P2P software provide no warnings about the severe consequences of succumbing to the constant temptation of infringement. [Back to the FTC’s testimony on this issue:
There is reason to believe that many consumers already are aware of some of these risks. For example, with respect to the concern that consumers may use P2P software illegally to download copyrighted material, the recording industry has brought nearly 2000 copyright infringement actions since July 2003 against consumers who used P2P file-sharing programs to download music. Thus, many consumers likely are aware that they also could be liable for copyright infringement if they engage in similar conduct….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.]
Another risk to users of P2P software arises when pornography combines with the “viral redistribution” that thwarts removal of infringing copies of works. Most filesharing networks are awash in pornography, much of it mislabeled, obscene, illegal child pornography, or harmful to minors. [Mislabeled porn. Damn, I hate that.] Anyone risks criminal prosecution if they distribute pornography accessible to minors over these child-dominated networks. [If they know they are children, yes. Otherwise I’m sure Ashcroft would be throwing every XXX webmaster in jail who hides pornographic images behind an “I’m 18” button. In any case, if someone knows for sure they are sharing with a minor and does it anyway, can the technology possibly be at fault?] As a result, one P2P distributor who does distribute “adult” content demands that it be protected by access controls. But every adult who uses this distributor’s software as intended to download one of millions of unprotected pornographic files automatically makes that pornography available for re-distribution to millions of children. [Will someone please think of the children?] This distributor has sat silently – knowing that its software exposes millions of its users to risks of criminal prosecution that the distributor cannot be paid to endure. [Hatch knows these people can’t be prosecuted for this, but it turns opponents of this bill into supporters of smut, at least to those who are logically challenged.]
Perhaps the worst effect of punishing control and rewarding inducement is that it achieves precisely what Sony sought to avoid: It leaves copyright holders with an enforcement remedy that is “merely symbolic”: It seems real, but it is illusory. [Hardly. There are plenty of strategies that Hollywood can use to thwart illicit filesharing, but it would require a shift in business model, something they refuse to do. Of course, we could also consider ways to make enforcement against direct infringers more efficient, but that wouldn’t give Hollywood the distribution control that is their true aim.]
In theory, a rule that immunizes inducement still permits enforcement against those induced to infringe. [I bet it doesn’t seem theoretical to those targeted by the John Doe lawsuits.] At first, this remedy seems viable because copyrights have traditionally been enforced in lawsuits against direct infringers who actually make infringing copies of works.
But a fallacy lurks here: The “direct infringers” at issue are not the traditional targets for copyright enforcement. [Why is “direct infringers” in quotes? Are they direct infringers or not?] In fact, they are children [Will someone please think of the children?] and consumers: They are the hundreds of millions [Hundreds of millions. That is an awful lot of “direct infringers.” Certainly a higher estimate of infringers than I have seen before.] of Americans – toddlers to seniors – who use and enjoy the creative works that copyrights have helped create. [Indeed. Perhaps Hatch should pass a law immunizing children and consumers from infringement lawsuits if he is so concerned.]
There is no precedent for shifting copyright enforcement toward the end-users of works. [Now, Hatch has dropped all the infringement talk.] For nearly 200 years, copyright law has been nearly invisible to the millions who used and enjoyed creative works. [Well, that horse is out of the barn and closing the door ain’t gonna help. Even if KaZaA goes out of business tomorrow, Gnutella won’t. In any case, as the world becomes ever more connected, citizens are going to have to become more familiar with copyright law, whether we have an INDUCE Act or not.] Copyright law was invisible to consumers because the law gave creators and distributors mutual incentives to negotiate the agreements that ensured that works reached consumers in forms that were safe to use in foreseeable ways. [Plus, consumers were unable to be publishers. Now that consumers have these great “copy devices,” aka connected PCs, you’ll never be able to keep consumers ignorant. Doesn’t make sense.] Now, those incentives are collapsing. [And the INDUCE Act brings these incentives back, how?] As a result, artists must now waive their rights or sue consumers – their fans. [Shucky darn. And the INDUCE act will immunize fans threatened by the “artists,” how? Is Hatch guaranteeing that the RIAA will drop its consumer lawsuits if they get this law?]
Worse yet, artists must sue their fans for the sin of misusing devices designed to be easy and tempting to misuse. [Yeah, that IM is just totally too tempting. Oh, wait, Hatch is talking about P2P, as he … well, he actually never defines it.] That is unfair: When inducement is the disease, infringement can be seen as just a symptom. [You’re not guilty of infringement – you’re just sick. “Hi, I’m Ernest, and I’m an infringer.” “Hi, Ernest!”] Yet artists must ignore inducers who profit by chanting, “Hey, kids, infringement is cool, and we will help you get away with it.” [Well, if they are chanting … oh, wait, the only one chanting is in Palestine, outside of Hatch’s reach. The FTC says the ones in the US give adequate warning of the risks.] Instead, artists can only sue kids [Will someone please think of the children?] who succumb to this temptation. They must leave Fagin to his work – and sue Oliver Twist. [The difference being, however, that Fagin has specific knowledge of the specific individuals he is sending out to commit specific crimes. Slightly different case, don’t you think?]
This sue-Oliver “remedy” is a debacle. For example, immunizing inducement ensures that artists will have to sue their fans: Inducers will have both the incentive and the means to thwart less extreme measures, like educational campaigns. [Yep, I was in a theater the other day and as soon as the “Don’t Pirate” message came on, some dude in a KaZaA jacket distracted me with a bright shiny light.] For example, RIAA tried to avoid lawsuits against filesharers by sending educational instant messages to infringers. Kazaa, for “privacy” reasons, disabled instant messaging by default in the next version of its software. Lawsuits then followed. [Where’s the memo in which the RIAA says, “if only we could send instant messages we won’t sue direct infringers”?]
And imagine the poor parent who tries to tell a teenager [Will someone please think of the children?] that free downloading of copyrighted music is illegal. The teenager, confused because “everyone is doing it,” consults a leading technology-news site promising a “trusted source of information for millions of technology consumers.” [Yeah, teenagers are confused. I would expect the average teenager is, by this time, more knowledgeable about copyright law than their parents.] There, the teenager finds a P2P distributor promoting “Morpheus 4.0, the only American filesharing software ruled legal by a U.S. federal court.” [That damn C|Net News! When will the free press ever learn?] This statement is false: Grokster did not rule Morpheus “legal”; in fact, the case only confirmed that downloading copyrighted works is illegal. [Umm, if Grokster is not legal, what is the issue again?] Below this misinformation, the teenager will find an independent editorial review rating Morpheus 4.0 as a “Recommended” download and “an excellent choice” for those seeking “the latest and greatest.” Who will the teenager believe? [The Senator who is trying to confuse the issue?]
Worse yet, if artists must sue only the induced, they just feed the contempt for copyrights that inducers breed. [Enforcing the law creates contempt for the law. That is a new one on me. I thought it was the unenforced laws that created contempt. I thought it was the fact that the RIAA didn’t sue for direct infringerment for a couple of years of P2P filesharing that increased people’s belief that it was okay. See, Why the RIAA Should Continue to Sue Filesharers. Perhaps we should immunize consumers for infringement lawsuits and the artists won’t be tempted to create contempt for the law.] Inducers know that people induced to break a law become that law’s enemies: Once you break a law, you must either admit wrongdoing or rationalize your conduct. [You know what else make people become the law’s enemies? When the powerful use the law to needlessly ignore consumers desires. Would it have been that difficult to launch something like iTunes shortly after Napster launched?] Rationalization is often so easy. You can blame the law: Copyright is a stupid law needlessly enshrined in the Constitution by naives like James Madison. [That James Madison, I knew there was something wrong with him. Of course, using the law to ignore consumer desires and create demand for infringement is also easily rationalized.] You can blame the victim: Some rock stars still make money; I do not like the “business model” of the record labels. [On the other side, you could blame new technologies that restructure business relationships. “I don’t like what the internet does to my business model. I shouldn’t have to change.”] You can blame the randomness of enforcement: Everyone else was doing it, so why not me? Anyone who has talked to young people about filesharing has heard such rationalizations time and again. [And anyone who has talked to record industry executives has heard rationalizations as to why they shouldn’t have to make any changes as technology develops.]
And forcing artists to ignore inducers and sue the induced locks artists into a war of attrition that they are unlikely to win. [Well, if all they do is launch lawsuits, yes. But there are plenty of other business models they could adopt.] If you imagine inducement as a bush, this “remedy” forces artists to spend their money to sever each leaf – while the inducer makes money by watering the root. [If you were a little more imaginative, you could see content owners placing little ceramic pots for the leaves to voluntary fall into and sprout. It’s a messy metaphor, but you get the picture.] Artists may not be able to sustain this unending battle. [What is Hatch talking about? Infringement lawsuits could become a profit center. I’d start by concentrating on the Hollywood, Manhattan and Georgetown neighborhoods.]
This may let inducers attempt an extortionate form of “outsourcing.” Inducers can increase or decrease their devices’ propensity to encourage piracy. [Inducers aren’t the only ones with a piracy knob to turn. Content owners can also increase and decrease piracy. If DVDs cost $100, there would be more DVD piracy. Hatch calls this extortion, I call it a market. It may not be a market that Hatch likes, but is isn’t going away.] Inducers can thus tell American artists that if the artists pay the inducers to become licensed distributors of their works, perhaps fewer bad things will happen. [American artists, perhaps, but not American content owners.] Implicitly, if artists do not pay, perhaps more bad things will happen. [Alternatively, the non-American content owners can increase the costs of filesharing through a variety of tactics and make licit downloading more attractive. No need to do a deal with the “inducers”.] Were artists to succumb to such tactics, jobs and revenues created by the demand for American creative works would go overseas to some unsavory locales. [P2P = Terrorism? What is the argument here? Is Hatch claiming that INDUCE Act will impact piracy overseas? Is so, huh?]
Worst of all, inducers will inevitably target children. [Will someone please think of the children?] Children would be easily induced to violate complex laws like the Copyright Act. [Yeah, the Copyright Act is so complex that explaining the basics of filesharing is beyond children who can download and install a filesharing program.] Any child is a terrible enforcement target. And because most adults never induce children to break laws, children induced to infringe copyrights would not even be “bad kids.” [Don’t we already have a government agency to deal with problems like this? Let me think, isn’t there some government agency that keeps track of Hollywood advertising, Tobacco advertising, and similar? Oh, yeah, the FTC. The way Hatch is talking, one would think we’ve never had to deal with similar problems before.] Indeed, they would probably be smart, mostly law-abiding young people with bright futures. Innocent, mostly law-abiding children make the worst enforcement targets – and thus the best “human shields” to protect an inducer’s business model. [Apparently these mostly law-abiding children don’t have any adult supervision.]
This threat to children is real. Today, artists are suing high-volume filesharers who cannot be identified until late in the process. One filesharer sued for violating federal law over 800 times turned out to be a 12-year-old female honor student. This otherwise law-abiding young girl and her family then faced ruin by the girl’s favorite artists. The public knew that something was wrong, and it was outraged. [Interestingly, this also served to alert and educate the public to the dangers of filesharing. That is often how these things work. How many times do parents only find out about the illegal actions of their children when one of them has a run in with the law?] So the people who gave that girl an easily misused toy – and profited from her misuse of it – exploited public outrage with crocodile tears about the tactics of “Big Music.” [Problem is, did the software company specifically know it was giving software to a child? Should we require companies to require adult verification before people can download software (although the law won’t let us require this for pornography)? What about IM? What about IRC and email? Who knows what sort of mischief a teenager can get into with GMail account? How does Google know how old the people who use its services are?] And then, I imagine, they laughed all the way to the bank. [Actually, I doubt it. The PR backlash hit both the RIAA and the P2P companies.]
The Supreme Court could not have intended to force artists to sue children [Will someone please think of the children?] in order to reduce the profits that adults can derive by encouraging children to break the law. No one would intend that. Yet it seems to be happening. [Yeah, it could be that the courts expect the companies to adapt to the new business environment and provide attractive alternatives. If videotapes were only sold for $100 or more, Betamaxes would have been used for a lot more piracy. But that didn’t happen and everyone was happy.]
These are the inevitable results of a secondary-liability rule that immunizes inducement. [Umm, no. It is also a combination of the RIAA not taking the step of providing appropriate alternatives to reduce the incentive to infringe. Actually, about the only thing inevitable here is that innovation will be severely taxed by Hollywood. Piracy won’t stop. That is why these programs are called “decentralized P2P.”] This “rule” has created the largest global piracy rings in history. [Global, as in this law will not actually accomplish much, except to burden US innovators.] These rings now create billions of infringing copies of works, and reap millions in profits for leaders who insulate themselves from direct involvement in crime by inducing children and students to “do the dirty work” of committing illegal or criminal acts. [“Rip, Mix, Burn” Apple?] These rings then thwart deterrence and condemn attempts to enforce the law. [Correct me if I am wrong, but didn’t Hatch just condemn attempts at enforcing the law as creating contempt?] These rings may now use profits derived from rampant criminality to extort their way into the legal Internet distribution market – a market critical to the future of our artists and children. [No industry has ever done that before. Not the piano roll market, not the film market, not the cable market. Oh, wait…]
This must stop – and stop now. Artists have tried: They targeted for-profit inducers. [Yeah, and the case hasn’t come out of a single appellate court yet. Let’s not rush to fix what might not be broken.] But artists were thwarted by a court ruling that held, in effect, that although artists can sue exploited children and families into bankruptcy, courts need “additional legislative guidance” to decide whether artists can, instead, sue the corporations that profit by inducing children to break the law. I find this assertion wholly inconsistent with the intent of both Congress and the Supreme Court. But until this fundamentally flawed ruling is overruled by legislation or higher courts, artists cannot hold inducers liable for their actions.
Fortunately, Congress has charged the Department of Justice to enforce the Criminal Code. [Phew … glad to know that they’re not ignoring what we pay them to do.] In the Criminal Code, Congress made it a federal crime to willfully infringe copyrights or to distribute obscene pornography or child pornography. [So now, instead of being sued into bankruptcy, those children Hatch is so concerned about will be going to jail?] Congress also made it a crime to induce anyone – child or adult – to commit any federal crime. [So … the point of this staute is? After all, how hard would it be for the DOJ to toss the executives of these inducing companies into the klink?]
Indeed, Congress codified many forms of criminal secondary liability in the Criminal Code. I have already quoted its first sentence. Here is its second: “Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.” One court has said that this ensures that “[a] crime may be performed through an innocent dupe, with the essential element of criminal intent residing in another person.” [Gee, “one court.” That’s persuasive argument Senator. It would be nice to know a few of the details of the case. I suspect that the criminal working through a dupe was working through a specific dupe that they knew would be committing a specific crime. Not quite the same thing as P2P.] Not coincidentally, some federal prosecutors worry that P2P software makes infringement so tempting, easy and automatic that many of its users will lack criminal intent. [So, do you want to prosecute them or not, Senator? And do you think they should also be innocent of civil liability for direct infringement? After all, if you can enforce against the inducers, why do you need to enforce against the direct infringers, since they sound like such innocents?] Perhaps – but their relative innocence will not protect their inducers. [Good, no need for this statute then. After all, how hard will it be to find willful infringement with all this inducement going on?]
The Criminal Code also codifies other forms of secondary liability, like this one:If two or more persons conspire to injure, oppress, threaten any person in any State … in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or the laws of the United States, …. [t]hey shall be fined under this title or imprisoned not more than ten years, or both…. [This is relevant, why?]
These examples of laws imposing secondary criminal liability have something in common: Congress codified no exceptions for “substantial non-criminal uses.” [Indeed. But, luckily, the courts have generally required something more than essentially knowing that some of your actions will likely assist others in committing crime, as Volokh has shown. Otherwise, gasoline stations in crime-ridden neighborhoods could be held liable for knowing that some of the gas they sell will be used in drive-by shootings.] The message is clear: Those who induce others to commit crimes cannot avoid prison by showing that some of them resisted. [Hatch calls it “resisted.” I call it people using P2P for perfectly legitimate reasons. You might as well say, sports car dealers cannot avoid prison by showing that some sports car owners resisted speeding.] I will work with my colleagues in Congress to ensure that the Department of Justice enforces the federal laws that prevent anyone from inducing violations of any federal law by our citizens, our students, or our children. [Will someone please think of the children?]
Congress, too, must do its part by enacting the Inducing Infringement of Copyrights Act, S. 2560. This bill will protect American artists, children [Will someone please think of the children?] and taxpayers by restoring the privately funded civil remedy crippled by the Grokster ruling. Congress must act: A federal court has held [Oh my God! A single federal district court!] that artists can only enforce their rights by suing exploited children and students pending “additional legislative guidance” about whether artists can, instead, sue the corporations that profit by inducing children to break laws and commit crimes. [“instead” or “in addition to.” Somehow I doubt all the consumer-targeted lawsuits will stop.] Silence could be misinterpreted as support for those who profit by corrupting and endangering others. [Indeed. It might also be interpreted as support for technological innovation and progress. Or support for a reasonably limited copyright monopoly. Or support for calm, rational thought instead of hysteric demagoguery.] This bill will restore the tried, privately funded civil enforcement actions long used to enforce copyrights. [Funny, I thought Hatch wanted the government to start engaging in civil enforcement. I think he called it the “PIRATE Act”: PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry]
This bill will also preserve the Sony ruling without reversing, abrogating or limiting it. [Only in the narrow sense that one will still be able to sell the Betamax videotape system, except that it has been discontinued.] The Inducement Act will simply import and adapt the Patent Act’s concept of “active inducement” in order to cover cases of intentional inducement that were explicitly not at issue in Sony. [They weren’t at issue in Sony because there was no doctrine of copyright inducement, otherwise, believe me, Hollywood would have made the argument in court. They certainly made the argument in the court of public opinion and Congress. Let’s go back, shall we, to Valenti’s infamous testimony:
It is a piece of sardonic irony that this asset [Hollywood], which unlike steel or silicon chips or motor cars or electronics of all kinds — a piece of sardonic irony that while the Japanese are unable to duplicate the American films by a flank assault, they can destroy it by this video cassette recorder….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….Now, Mr. Chairman, how many people would want to buy these machines if you said you couldn’t use any copyrighted material on it. The machine would be useless and this is what the Ninth Circuit said. They advertise their machine blatantly and deliberately saying the way to enjoy this machine is to copy somebody else’s copyrighted programs.
That certainly sounds like it would meet the “inducement” criteria that Hatch is talking about. So, when Hatch says it wouldn’t overturn Sony, he is being disingenuous at best. As an aside, don’t you like how charming Jack Valenti slyly insinuates that the insidious Japanese can’t win a direct assault on Hollywood and thus must, shall we say, sneak attack with the VCR?] The Inducement Act also preserves the Section 512 safe harbors for Internet service providers. [Wait a minute, I thought Hatch was implying above that colleges, universities and businesses would be liable for the “mini-Napsters” on their servers.]
The bill also contains a savings clause to ensure that it provides the “guidance” courts have requested – not an iron-clad rule of decision for all possible future cases. This flexibility is critical because just as infringement cases are fact specific, so should inducement cases center on the facts of a given case, with courts endowed with the flexibility to impose just results. This bill does not purport to resolve or affect existing disagreements about when copies made and used within an individual’s home environment are permissible and when they are infringing. Rather, this bill is about is the intentional inducement of global distribution of billions of infringing copies of works at the prodding and instigation of sophisticated corporations that appear to want to profit from piracy, know better than to break the law themselves, and try to shield themselves from secondary liability by inducing others to infringe and then disclaiming control over those individuals. [Honestly, I don’t know how Hatch makes these claims with a straight face. If someone sells a device that makes it easier to transfer files within the home, the device likely makes it easier to infringe in the home. There is really no limiting clause. Courts will be forced to argue about whether certain copying within the home environment is infringing.]
I also want to thank everyone who has worked with us to craft a bill that addresses this serious threat to children and copyrights without unduly burdening companies that engage in lawful commerce in the wide range of devices and programs that can copy digital files. As Sony illustrates, clear knowledge that a copying device can be used to infringe does not provide evidence of intent to induce infringement. [Ummm … no. The issue of inducement was not properly addressed by the Sony case. I thought you were supposed to be a legal expert, Senator.] 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. [Indeed, it is critical, unfortunately this is not a narrow bill.] In particular, I would like to thank the Business Software Alliance for its invaluable assistance in crafting a bill that protects existing legitimate technologies and future innovation in all technologies – including peer-to-peer networking. [Wait a minute … I thought all the existing technologies were legitimate, but it was the actor’s intentions that were the crime, not the technology itself. The cognitive dissonance of this speech is giving me a headache.]
Senator Leahy and I look forward to working with all affected parties to enact this bill and restore the balance and private enforcement that Sony envisioned. [Technically, this isn’t a lie. But it is the functional equivalent of one. You see, it is pretty clear to me that Hatch’s intent here is to mislead.] But until Congress can enact the Inducing Infringement of Copyrights Act, the duty and authority to stop inducement that targets children [Will someone please think of the children?] and students resides in the Department of Justice that Congress has charged to protect artists, commerce, citizens and children. [Mr. Ashcroft – sic ’em.] The Department must act now to clarify some simple facts: American has never legalized the “business model” of Fagin and Bill Sykes. [Interesting factoid: Some people spell “Sykes” as “Sikes.” Hatch spells it both ways in this speech.] Modern Child-Catchers cannot lawfully profit by luring children into crime with false promises of “free music.” [Again, I remind the reader that the Child-Catcher was an agent of the government, arresting children because Congress the evil ruler had made all children illegal. Let’s not have a Hollywood-run “Technology-Catcher” tossing innovators into jail with false promises of campaign contributions for Congress.]
Mr. President, I urge all of my colleagues to support S. 2560, the Inducing Infringement of Copyrights Act. [Hey, what the heck, I urge them to undermine the bill….Congratulations! You made it all the way through. I hope you enjoyed this annotation and please leave your comments and suggestions.]