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Hollywood Has Bought Off Congress

-Details of campaign donations

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Senator Orrin Hatch is at the forefront of modern legal theory. His new bill before Congress � the �Inducing Infringement of Copyrights Act of 2004� (formerly the �INDUCE Act�) � illegalizes the �inducement� of copyright infringement. While ostensibly aimed at filesharing networks, which Mr. Hatch claims tempt users to share copyrighted material, this bill�s impact is far greater than even its sponsors might realize. Any corporation that does anything to bring added value to intellectual property would be a potential target under the Induce Act. While established corporations might be able to withstand a legal onslaught from groups wielding this law, entrepreneurs with novel, perhaps revolutionary technology could falter under legal threats and expenses. With the Induce Act, the iPod of the 22nd century might never be released.

But even if the legislation were to be as narrowly focused as its sponsors claim, the Induce Act would remain flawed. It would overturn more than 20 years of legal doctrine established by the Supreme Court�s Sony v. Universal decision, and in doing so, the Act would become the sole tool of media conglomerates. These businesses lost their suits against the P2P networks in the courts, so now they are lobbying Congress to protect their existing revenue streams with legislation. Passing the Induce Act requires much less effort, creativity, and expense than creating innovative new business models to capitalize upon new technology.

Mr. Hatch and his co-sponsors are saving an industry�s broken business model, while simultaneously � and this is purely coincidence � keeping their biggest donors satisfied. We implore you to help stop this madness.


The bill is too broad

-Could outlaw the ipod

-Links to the fake legal complaints

It stifles technological innovation

-Who will create a new device if it could be misconstrued to "induce" copyright infringement?

May make bad business sense

-The movie industry attacked the VCR the same way the music industry attacks p2p and then videos became the primary revenue source.

What the heck does 'induce' mean anyway?

-The answer: it is very vague, and that's exactly what Hollywood and the RIAA wants. Dictionary definition. -Creation of a new legal doctrine -This is not what the US has historically done, even for much worse crimes against society (speeding in cars that "tempt" you with high MPH ratings, assault riffles, etc.)

Even if the bill does what it says it does, it is still wrong

At its most basic, this bill wants to take out Sony v. Universal. Re-hashing of why Sony decision was sound. COMPLETED by CC and CIS guys (waiting to be emailed to Jake)

Not as strong (let's make them stronger):

Restricts Free Speech


Wastes Taxpayer Money

-Do we have info on how this would be enforced? re: enforcement, doesn't this law just create liability? The enforcement piece of things is taken care of by the pirate act and HR 4077, I think.


A Lazy Solution

The music and movie industries are worried that the freedom and flexibility presented by new technology will undermine their current business models. But instead of developing innovative ways to take advantage of the opportunities that filesharing technology presents, Hollywood is asking Congress to solve a business challenge by allowing more lawsuits and creating more regulations.

Monetize Filesharing

Filesharing is here to stay. But there are simple, practical ways to make sure that musicians and record labels get paid whenever someone downloads a song. A Voluntary Collective Licensing (VCL) system would let internet subscribers pay a flat fee for "all-you-can-eat" downloads, and the money would be divided up to musicians and labels according to popularity. It would only cost you $5 a month, and unlike pay-per-song stores like iTunes, which have lots of costly overhead, all that money would go directly to musicians and record labels. This means that thousands more musicians would be able to make a decent living and everyone would be free to share music without having to worry about getting sued.

VCL is the best of both worlds: it preserves the immense cultural value of the peer-to-peer "music library" while delivering more money to deserving musicians.

A simple diagram about how VCL would work

An Op-Ed in the New York Times explaining VCL

Hypocrisy on Pornography

The record companies argue that we should ban filesharing as a way to combat pornography. Not only is this line of reasoning hypocritical from an industry that profits by marketing sexually explicit material to children, but it's also nonsensical. Peer-to-peer networks account for a tiny fraction of the pornography that's avialable online. It would make more sense to ban web browsers, but if the music industry proposed this, they would simply be laughed at.


Just One Senator

The music indsutry is trying to rush the INDUCE Act to a vote without any debate on the Senate floor. They're taking this extreme step because they realize that any open discussion about the public interest would sink this misguided legislation. But just a single Senator can put a "hold" on the bill which means that it can't go to a vote without a real debate. Please take just 2 minutes to write to your Senators and ask them to put a hold on this bill:

Send a Free Fax About the INDUCE Act

INDUCE Act Hearing - July 22, 2004

Several free culture members (Ross, Rebekah, Nicholas, and Amanda) attended the Senate hearing on the IICA (/Induce). Report follows:

The general attitude of the senators (particularly Hatch, he did most of the talking, Leahy mostly just mumbled) was that it was time to do *something*, but they were interested in hearing suggestions for ways they could change the bill to make it a little less objectionable to the other sides of things. How legitimate their interest in changing things is, I don't know, as they originally wanted to push this through without hearings, so they may have just been trying to sound reasonable. They asked all of the witnesses to submit proposed alternative legislation that would accomplish the same goals while being less troublesome (IEEE had already done this).

Marybeth Peters (Register of Copyright, United States Copyright Office) was the first witness. Her testimony was, scarily enough, most in line with the RIAA's - this legislation is great, etc. She mentions how it is more 'efficient' to sue companies like KaZaA than individual infringers, and says that INDUCE (er, IICA) is technology neutral and is good because it is directed at bad conduct, not technology. She also said that perhaps the Sony v Betamax standard should be revisited and replaced by a new standard - every technology, she says, is 'merely capable' of non-infringing uses, but some that doesn't mean they should all be acceptable. She rejected comparisons between a VCR and p2p, and said that she felt the Grokster decision was wrong.

Gary Shapiro (Consumer Electronics Association) was the first witness on the next panel, and was very outspoken against the bill (Hatch took him to task for this, asking why the CEA is just opposing it instead of offering constructive thoughts). He made the point that he has never seen such quick and almost universal opposal to any bill, and suggests that it should basically be scrapped. He pointed to Betamax as being a rule that for 20 years has encouraged massive innovation, and suggests that Betamax should be codified as law, instead of this standard. His biggest problem with the law is that it would invite excessive litigation - any new technologies might have to go through very complicated and expensive legal battles in which they would need to prove their 'state of mind' and intentions during development, a threat which would either still innovation or drive it offshore. IICA as written, he said, was so broadly written it could target almost anyone - venture capitalists, etc, etc. He was the only witness to suggest that no new law was necessary, and only when pressed would he suggest simply codifying Betamax instead.

Robert Holleyman (Business Software Alliance) was next, and while he was in favor of the bill, seemed to have backed down from total support, and was instead in favor of perhaps rewording things to make it less threatening. He suggested exhausting existing legal means, offering legal alternatives, and education as steps which should be tried before new legislation would be the optimal solution. Any new law, he said, would have to isolate 'bad actors', so technology with significant legal purposes (didn't refer to Betamax, tho, I don't think) would be okay, but bad intentions would not. Mere knowledge that a technology had potential infringing uses should not be sufficient to show negative intentions, nor should advertising or giving technical support that might highlight potentially infringing uses. He also highlighted the importance of deterring frivolous lawsuits.

Andrew Greenburg (IEEE-USA) was probably the best received witness (except RIAA, of course) by the senators - IEEE had submitted alternate language that they would prefer, and the senators were pleased to have constructive comments instead of just opposal. He made clear the point that engineers create both copyrighted works as well as tools to create, modify, share, etc, copyrighted works, and said that the uncertainty that would be imposed by IICA would chill innovation - he called it the 'practical equivalent of barring innovation'. Almost any tool such as a general purpose computer, etc, deals with copyrighted content,and this would confuse things greatly. Any new laws, he said, should be simple, clear, predictable, and effective, and IICA as written would instead force technologists to decide their willingness to weather lawsuits over any proposed new ideas.

Kevin McGuiness (NetCoalition - represents Google, Yahoo, CNET, many others), who I guess was on Hatch's staff for many years, said that they agreed with the intention of the bill, but not with the specifics. He, like the CSA, highlighted the threat of having to litigate any new technology, and said this would lead to having to finance 'litigation, not innovation'. IICA would put the entertainment industry in the 'enviable position' of being able to sue anyone they feel threatened by, and by doing so largely stifle any new technologies they do not approve of. The principles he suggested for any new law were that Betamax's protections needed to be codified, to give a bright line that innovators could look to during development. Behavior, not technology, needs to be what is targeted by any law, and he highlighted the importance of the idea that reviews or articles about technologies' infringing uses *not* be targets of litigation.

Mitch Bainwol (RIAA) basically spoke generally about their woes in the face of p2p, massive losses, etc, etc, etc. He said they were in favor of IICA as written, but that it was so important a tool that they would be willing to discuss some potential changes so long as it gets passed soon. Nothing very interesting from him, just whining. When asked if he thought this law would give them the power to 'sue anyone they want', he replied no, of course not, they were only interested in attacking 'bad actors'. McGuiness responded to this that trusting their 'good intentions' was not terribly reassuring, and the law should instead assure that they can't harass people who aren't 'bad actors'. McGuiness also suggested that abolishing p2p was not going to fix the problems of the content industry, and that they need to realize that they need to adapt and embrace the new possibilities, instead of trying to *stop* piracy.

And that's about that :) Hatch finished with the statement that they were going to do *something*, and so concerned parties should work with them to get a better final product, because if they don't, he'll do it without their input. All the groups promised to send in proposed alternatives, and Hatch emphasized the need to do this quickly - he wants to deal with this during the August recess and move ahead when they get back.

== Transcripts of testimonies are online == You can now read all the testimonies given by the panelists, along with the senators' statements, here.