| Coleman on the INDUCE Act |
[Jul. 23rd, 2004|02:36 pm] |
I don't post here very often, but when I do ... it's a doozy.
Information on the INDUCE Act abounds the web; below is an e-mail I sent to Senator Norm Coleman, and his response. Enjoy!
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My e-mail to Norm Coleman, 7/22/2004:
Hi, Norm. Say, remember a while back when you had those hearings on the RIAA lawsuits? Yeah, I remember that well. We were all proud of you for being among the rare few that can stand up to mega-interests like the RIAA and say, "Hey fellas, you wanna explain what you're doing?" I'm still proud. We need more leadership like that, and I want to thank you.
Anyway, here we are some months down the road, and your colleagues Hatch and Leahy (among numerous others) are working toward a solution to the problem of massive copyright infringement over peer-to-peer filesharing networks.
I say "working," because they haven't found the solution yet. Oh, they have the Inducing Infringements of Copyright Act, about which a hearing was held this afternoon. But believe me: it's not a solution.
Ernest Miller, a highly distinguished copyright & information policy leader, writes on his web site that he has "yet to hear of a single senator who opposes or even has serious questions about the bill." I am ashamed that you have not raised your voice -- I don't expect a frontal assault (though it deserves one), but as a constituent who has seen you take action in the peer-to-peer realm in the past, I sure as hell expected SOMETHING. Not even a word? Maybe you haven't heard of this bill yet ... can I offer some advice?
Trash it.
As crazy as it may seem, EVERY technological innovation of the past decades which interacts with audio and video -- data compression, portable music players, photocopy machines, hard disk drives, and volatile computer memory, to name a tiny sample -- has been developed under a legal regime that PERMITS innovative companies to design products and sell them. When those products can be used for illegal purposes (such as copyright infringement), the general rule of secondary liability has been sound for decades.
This rule was affirmed by the Supreme Court in "Sony v. Universal," and it has been affirmed tine and time again. The rule is this: if your product is used for evil, then you're only liable under two conditions. Those are: (1) You must have constructive knowledge of specific acts of evil. And, (2) You must meet condition (1) at a time when you have the means and authority to prevent the evil from taking place.
It's very simple. This is the rule by which the manufacturers of woodchippers can persue their trade, without fear that one day they'll stare across a courtroom at the family of that unfortunate loner in the movie "Fargo." The rule works pretty well.
Hatch and Leahy (and, lamentably, many more of your colleagues) don't see the value in this model of contributory liability. They want to take it away. They want the standard eviscerated.
How can you stay silent on this? As much as I'd love you to share my opinion on this bill, I would be pleased nonetheless if you would only add your voice into the chorus of the bill's supporters, rather than wait on the sidelines with nothing to say.
There is much to say about this bill. Please Norm, read the testimony. (You can even read the testimony of Mitch Bainwal and Marybeth Peters, but I disagree with those people, so you might just skim those pages. Kidding.) Read it, and understand it. This bill matters, and I need you to be a voice.
Yours might be a lonely voice, if you choose to oppose this bill publicly. But if you add your voice in support, I hope to hear some clear, well-reasoned explanations for WHY you support it -- or better said, why you don't oppose it.
Thanks for your time, Norm. I look forward to hearing any thoughts you have. I'm happy to provide more details if you'd like. This subject (copyright, information policy, etc.) is my passion, so if it will help, I can come by your office and give you a little puppet show, or something. (Hey, it's better than stacks of paper.)
Take care, and enjoy the summer.
-- Matt Perkins
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And the response ...
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Response sent Fri, 23 Jul 2004 13:27:41 -0400, from the sender 'Opinion@coleman.senate.gov':
Thank you for taking the time to contact me regarding S. 2560, better known as the Inducing Infringement of Copyrights Act of 2004, or the Induce Act. I share your concern.
S. 2560 was introduced in the Senate by Senators Orrin G. Hatch (R-UT) and Patrick Leahy (D-VT) on June 22, 2004. Subsequent to its introduction the Induce Act was referred to the committee on the Judiciary.
The debate surrounding the culpability of producers and sellers of “dual-use” technology under copyright law was first brought before U.S. policy makers two decades ago with the introduction of the videocassette recorder (VCR). In Sony Corp. v. Universal City Studios, the U.S. Supreme Court decided that someone selling copying equipment would not be liable if a buyer used it to infringe copyright as long as the equipment was "capable of substantial non-infringing use." The Induce Act readdresses the culpability of producers and sellers of “dual-use” technology under copyright law by making any actor who aids, abets, or induces a copyright violation liable as an infringer.
While, I believe that an individual who has a copyright should be able to protect it, I do not believe that the Induce Act is the right answer to piracy. Rather than effectively prevent piracy, S. 2560 would expose makers and sellers of dual-use technology to charges of copyright infringement simply because one buyer committed a copyright violation.
Thank you once again for contacting me. I value your advice. If I can be of further assistance to you in the future, please do not hesitate to contact me again.
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How about that? "Not a single senator" becomes, well, one single senator. I feel like I broke the big story or something, but I can't get too excited. Two realities temper my glee:
First, this seems a bit too well-crafted; it suggests "form letter," which suggests that mine is not the first e-mail he's received on the subject. (Errrmm, I guess this is where I confess that I haven't contacted any of my national legislators until yesterday, despite the repeated calls to action. Sorry. I'm kind of a half-assed copyfighter.)
Second, given the tone and conclusions of yesterday's hearing, the bill as drafted is already dead. How much guts, really, does it take to withhold support from a bill after the plug has been pulled?
Still, it's nice to see something. Thanks, Senator.
On a final note: my clumsy articulation of secondary liablility in the e-mail above is incomplete, and probably muddles "contributory" with "vicarious." Cut me some slack: these issues are tough. (I know just enough about copyright law to know that I'm not a lawyer.) |
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