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continuing congressional confusion on copyrights (ie, not just (c), or (cc), or even (ccc) but (cccc))







continuing congressional confusion on
copyrights (ie, not just (c), or (cc),
or even (ccc) but (cccc))

continuing congressional confusion on
copyrights (ie, not just (c), or (cc),
or even (ccc) but (cccc))
07/07/2004 02:51 PM

Word has it that the regulators in Washington are enamored of Professor (in the School of Computing) Hollaar's recent paper, So ny Revisited, and that it is in part responsible for Congress' current infatuation with the Induce Act. Professor Hollaar is a smart guy, and his paper is an interesting and well-researched examination of secondary liability in the context of copyright law. But if Congress thinks this justifies the Induce Act, then there is some deep confusion somewhere. I suspect there are two possible sources for this confusion. (1) Hollaar discusses the scope of "inducement" liability in the context of patent law. There are some in Congress who seem to think that the Induce Act "merely" carries the same idea to copyright law. This is just a mistake. The scope of the Induce Act as written is far broader than the scope of inducing patent infringement as interpreted. And if "all" Congress wants to do is extend patent inducement to copyright law, then it should amendment the Induce Act to state precisely that. That would be a vast improvement over the existing proposal -- not enough to justify it in my mind, but it would make the harm it will cause much much less significant. (2) Hollaar discusses the purpose and meaning of the Sony case. While his discussion is technically correct enough (though the idea that copyright is the right to protect a "business model" is really not right at all), imho, the Professor, and in turn, the supporters of the Induce Act, are really missing the point of Sony. As everybody knows, Sony set the rule that when a new technology has the "potential" to support "substantial noninfringing use" of copyrighted material, the maker of the technology would not face secondary liability for copyright infringement. But what no one (in Washington, at least) seems to understand is why Sony set that standard. It was not because the Supreme Court is filled with copyright infringers who wanted to encourage copyright infringement. It was instead because the Supreme Court was filled with judges not eager to engage in the complex balancing required to judge whether a technology creates more benefit than harm. As the Court stated:

Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials. Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology.
This is not an opinion about copyright law alone. It is an opinion about separation of powers -- about which branch is best able to do the necessary balancing that copyright law demands, "within the limits of the constitutional grant." Sony says, in effect, when a technology is not simply a technology for violating the law, then it is left to Congress to decide whether and how that technology is to be regulated. Congress, not the courts. Why is that a great idea? Because (isn't this obvious to Republicans?) courts are awful, expensive, and slow institutions for judging the economic effect of new technology. Soviet planners with better lighting. And rather than bury innovators in years of litigation before their innovation gets to market, the Sony rule says: let the innovation go, if there is a potential for a substantial noninfringing use, and if Congress wants to regulate it more, then let Congress weigh the benefits of the technology against its costs. Ignoring this extremely sensible separation of powers principle has already cost Silicon Valley dearly. See, e.g., ReplayTV. ReplayTV is the digital equivalent of the VCR. It does the job more efficiently, and it promised to do some things the VCR couldn't do, too. But under the principle of Sony (innovate first, regulate later), it should plainly have been allowed into the market without intervention by the courts. Yet precisely the opposite happened. Content owners sued ReplayTV. It was dragged into federal litigation for many many months defending its new technology. And before the case could be resolved, the company effectively declared bankruptcy. Is this the future Senators Hatch and Leahy want for all new technologies that impact copyrighted material? Will every Apple be forced to defend its innovation in a federal court? Will federal judges become the arbiters of good technology? Will technology firms be forced to spend more on lawyers than on R&D? Whatever the lobbyists say about this bill, this is the single most important fact that we should not forget: It is a lawyer employment act. It will force technologists into court before they get to enter the market place. It will shift responsibility for striking the balance in copyright law from Congress to unelected federal judges. That's not a bad thing for me, or my kind. I, after all, think the courts have some role here (in setting the limits of copyright), and I, after all, make lawyers for a living. But for an already overregulated Silicon Valley, it is another nail in the coffin by the regulating-obsessed in Washington.




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On first read of this proposed legislation I thought it was a parody and someone was pulling a sick joke. But unfortunately a clueless legislators who has gotten some serious campain donations from the sponsors.

I get tired of having to get up on my soap box but I must and will until this madness is brought to a halt. Dan Gillmor sums it up perfectly:

"This bill, the stated purpose of which is to criminalize actions that might "induce" copyright infringement, doesn't just overrule the Sony Betamax case, which gave us the right to tape TV shows to watch later. It would turn people offering totally legitimate technology into criminals, if what they offered could also be used for infringing purposes."

The EFF has written up an example complaint that is on Gillmor's site that could be submitted if this legislation makes it to the floor of congress. I encourage your to read Dan Gillmor's article he has links to the Elected Officials we need to write to this time.

Folks won't be long before we will have to swipe our debit cards thru our multi-media devices to listen to music we have paid for or to watch TV thru the set we purchased along with the monster cable bill we have to pay every month. Think I'm joking don't you know their are associations out their that want just that. [Dan Gillmor]


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(Requires free registration to read the linked article) Hollywood studios and the National Football League are freaking out about TiVo’s plan for expanding it’s service so that users could watch copies of shows and movies on other devices outside of their homes. The filings made against TiVo state that this technology will violate the copyrights of TV shows that broadcasters air in their digital form. I don’t know about the rest of you, but I…

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UPDATED

I hadn't been taking some proposed new copyright legislation very seriously, mainly because it's logically absurd on its face. But the "Inducing Infringement of Copyrights Act of 2004" (PDF) seems to be moving so quickly that we have to pay attention now.

It's basically a bill that can make the creation of technology that could possibly be used for "piracy" illegal. More on Dan's blog. Please take a look. It's quite absurd and dangerous. If it's moving quickly, I think we need to mobilize against it as soon as possible. Japan always gets hand-me-downs of ugly US bills so please stop it!

UPDATE - a scenario of what would be illegal:

Boing Boing
Here's EFF's hypothetical complaint against Apple (for making the iPod) C|Net (for reviewing the iPod), and Toshiba (for supplying hard drives for iPods).


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    Click here to comment on this entry


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    Now Is the Time for Consumers to Effect Change Through www.protectfairuse.org

    WASHINGTON, April 30 /PRNewswire/ -- A Congressional Hearing for H.R. 107, the Digital Media Consumers' Rights Act (DMCRA), has been set for Wednesday, May 12, at 10:00 AM Eastern. The DMCRA has been acknowledged and endorsed by major industry players like Intel Corp., Philips Consumer Electronics, Sun Microsystems, Bell South, Verizon, SBC, Qwest, Gateway, and the Consumer Electronics Association, among others, as a necessary balancing mechanism to restore consumers' fair use rights in the digital era. The hearing will take place before the House Subcommittee on Commerce, Trade, and Consumer Protection in Room 2123 of the Rayburn House Office Building.

    The DMCRA, introduced by Reps. Rick Boucher (D-VA) and John Doolittle (R- CA) and co-sponsored by House Energy and Commerce Committee Chairman Joe Barton (R-TX), would re-affirm consumer fair use rights and balance the otherwise one-sided protection afforded copyright owners under current interpretations of the Digital Millennium Copyright Act (DMCA).

    321 Studios Founder and President Robert Moore has been asked to testify at this historic fair use Congressional hearing. 321 Studios is the developer of the award-winning DVDXCOPY series of DVD backup software -- a product now banned in the United States after a group of Hollywood studios sued the company, and two federal judges decided that DVDXCOPY was in violation of the 1998 Digital Millennium Copyright Act (DMCA).

    I've been a big fan of Rick Boucher ever since I first met him in Tokyo and he helped me understand how the US Congress worked on Internet issues. He's been one of the few US politicians I've met who understands the Internet and the variety of important issues including the problems with the DMCA. This bill that he and John Doolittle have introduced is a REALLY important push against the DMCA and all the might of Hollywood will be resist the new bill. If the DMCRA is successful, it will be an important blow against the insanity of the DMCA which will reverberate all the way to Japan and the EU. Americans. Contact your representatives and rally around this important issue. Please.

    Via Juche


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