June 23, 2004

INDUCE is S.2560 [4:15 pm]

Its text still is not in Thomas, but there’s an entry for it. See the Congressional Record, S7189 and sequential for the introduction on June 22, 2004. So, I can pull the text from there:

[from S7192, Congressional Record]

Mr. President, I urge all of my colleagues to support S. 2560, the Inducing Infringement of Copyrights Act.

I ask unanimous consent that the text of the bill be printed in the RECORD.

S. 2560

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


This Act may be cited as the “Inducing Infringement of Copyrights Act of 2004”.


Section 501 of title 17, United States Code, is amended by adding at the end the following:

“(g)(1) In this subsection, the term `intentionally induces’ means intentionally aids, abets, induces, or procures, and intent may be shown by acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor, including whether the activity relies on infringement for its commercial viability.

“(2) Whoever intentionally induces any violation identified in subsection (a) shall be liable as an infringer.

“(3) Nothing in this subsection shall enlarge or diminish the doctrines of vicarious and contributory liability for copyright infringement or require any court to unjustly withhold or impose any secondary liability for copyright infringement.”.

And the BSA is already out there in favor of it:

BSA applauds Senators Hatch and Leahy for their leadership in introducing an important bill to stem the tide of illicit file sharing which is enabling software piracy and causing substantial harm to our members. BSA believes that ways need to be found to address piracy generally, and online piracy specifically. In addressing these critical problems, we need to ensure that we are not creating unintended consequences for general purpose technology products. Peer-to-peer technologies hold great promise. Senators Hatch and Leahy have introduced legislation that recognizes that the technology is not the problem, but rather the problem is bad actors that intentionally induce in illicit acts.

Leahy’s statement: Statement Of Senator Patrick Leahy: Introduction Of The “Inducing Infringement Of Copyright Act Of 2004”

Hatch’s press release and statement: Hatch Introduces Bill To Stop Inducement Of Children To Commit Crimes

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Has Sony Completely Lost It? [4:02 pm]

Nice ebook, shame about the DRM [via TechDirt] (sorry about the weird characters. I can’t even figure out what they’re supposed to be so I can fix the quotes.)

One of the buzz products of the first half of 2004 is Sony’s new ?%40,000 (£210) electronic book reader called the Libri?Ž EBR-1000EP, seen by many as the first decent attempt to replicate the paper-based reading experience on an electronic device.

[...] Less than charming, however, is the digital rights management (DRM) used for the project. Fifteen of the biggest Japanese publishers (and Sony) put their heads together to figure out how to offer a compelling collection of novels and other material while protecting their own financial investments in the work and the interests of the authors.

What they came up with is a sad business model that ties downloaded ebooks to a maximum of four devices, which is reasonable enough, but also ensures that the titles purchased (with your money, remember) lock up after 60 days, which is far from reasonable. Sure, the books are cheaper than their real-world equivalents, but who in their right mind is going to buy books that simply evaporate after two months? Periodicals might be suitable for this protective scheme, but none are yet taking advantage of it on the Libri?Ž.

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Followup: RIAA Settlement & Libraries [3:45 pm]

BoingBoing points to a followup on Jenny Levine and other’s discussion of the kind of recordings libraries are getting as a part of the RIAA settlement: MSNBC - Librarians: Free CDs too much of a good thing. And wouldn’t you know it — those darn computers were behind the whole thing!

The good news is that the mystery has been solved and the source of the overabundance has been determined to be nothing more sinister than a computer-programming glitch that will soon be fixed, law enforcement officials say.

The bad news is that libraries that were among the first to receive their free CDs are now going to have to figure out what to do with all the duplicates.

[...] While some librarians said they immediately suspected the strange allotments were the result of the music companies involved in the settlement dumping unwanted product that had been gathering dust in their warehouses, state officials involved in the settlement say there is an innocent explanation for the mix-up.

“In trying to give everyone a variety of genres, the claims administrator wrote an allocation program that resulted in some entities getting large numbers of a certain title and others getting no copies,” said Tina Kondo, senior assistant attorney general for Washington state, one of 43 states and territories that participated in the antitrust suit. “We checked with the claims administrator and they’re in the process of reprogramming the allocation formula.”

Update: Seems that the Seattle Post Intelligencer (and Slashdot) didn’t quite get to this (or the related) postings: RIAA Dumps Unsold Inventory to Settle Anti-Trust Case

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Why You Still Need A Paper [3:23 pm]

When this article title and its blurb turned up in my Amphetadesk news aggregator, A Politician Looking for Funds? Here Are Two Useful Addresses, I saw it only as another of what will be an endless series of articles on the presidential campaign this summer. But when I actually read a Times over lunch, I found that it was also a practical demonstration of what the marriage of GIS and Federal Election Commission records can mean, as cited in this earlier posting, Privacy, Public Disclosure and Integration.

The Fundrace WWW site is not mentioned, but the Queens College Department of Sociology is cited in the graphs in the sidebars to this article. The maps are very, very interesting.

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Motion for Summary Judgment in Golan v Ashcroft [3:13 pm]

Government Moves For Summary Judgment [via Copyfight] The motion

On March 15, 2004, the Court granted in part and denied in part the government s motion to dismiss this lawsuit. See Golan v. Ashcroft, 310 F. Supp. 2d 1215 (D. Colo. 2004). The Court dismissed Plaintiffs’ challenge to the constitutionality of the Copyright Term Extension Act (CTEA). However, while explaining that Plaintiffs “may ultimately be unsuccessful,” the Court found that “Plaintiffs ha[d] adequately stated a legally cognizable claim” as to their challenge to the constitutionality of §514 of the Uruguay Round Agreements Act (URAA). Id. at 1221.

Since the Court issued its order, the United States District Court for the District of Columbia issued a decision holding that the URAA is constitutional and dismissing a challenge similar to this one. See Luck’s Music Library, Inc. v. Ashcroft, Civ. No. 01-2220 (D.D.C. June 10, 2004) [Slip opinion attached at Tab 1]. In the Luck’s Music Library decision, the Court addressed and rejected almost all of the arguments raised by Plaintiffs here.

The government now moves for summary judgment.

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Ernest’s On A Roll [1:21 pm]

Woof! Ernest seems to have had a lot on his mind the last 24 hours or so. Check out several interesting postings, reflecting some themes of the last month or so.

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Ed Felten on Filesharing [1:14 pm]

The Future of Filesharing

The resulting arms race favors the filesharing side, for two reasons. First, the filesharing side can probably adapt faster than the anti-filesharing side; and speed is important in this kind of move-countermove game. Second, the defensive technologies that filesharing systems are likely to adapt are the same defensive technologies used in ordinary commercial distributed systems (end-to-end encryption, anti-denial of service tactics, reputation systems, etc.), so the filesharing side can benefit from the enormous existing R&D efforts on defensive technologies.

Given all of this, it’s a mistake for universities or ISPs to spends lots of money and effort trying to develop or deploy the One True Solution Technology (OTSS). [...]

[...] The best role for a university in the copyright wars is to do what a university does best: educate students. When I talk about education, I don’t mean a five-minute lecture at freshman initiation. I don’t mean adding three paragraphs on copyright to that rulebook that nobody reads. I don’t mean scare tactics. What I do mean is a real, substantive discussion of the copyright system.

My experience is that students are eager to have serious, intellectual discussions about why we have the copyright system we have. They will take seriously the economic justification for copyright, if it is explained to them in a non-hysterical way. They’ll appreciate the wisdom of the limitations on copyright, such as fair use and the idea/expression dichotomy; and in so doing they’ll realize why there are not exceptions for other things.

This kind of education is expensive; but all good education is. Surely, amid all of the hectoring “education” campaigns, there is room for some serious education too.

Hear, hear!

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Hatch Revises INDUCE [12:59 pm]

P2P bill draws key backing in Senate

Orrin Hatch, chairman of the Senate Judiciary Committee and a Republican of Utah, sought to dispel some of the early criticisms of his proposal, saying in a statement distributed late Tuesday that a new version of his bill reflects only modest changes and would not affect Internet service providers’ legal rights or Americans’ abilities to make “fair use” of copyrighted works.

[...] The final version is titled Inducing Infringement of Copyrights Act, and it enjoys the backing of senior politicians including Patrick Leahy, D-Vt., Senate Majority Leader Bill Frist, R-Tenn., Minority Leader Tom Daschle, D-S.D., Lindsey Graham, R-S.C., and Barbara Boxer, D-Calif.

[...] The aide argued that the bill targets acts that are “already a trigger for civil, criminal liability,” is far less intrusive than technology mandates, and is designed to overrule the decision of a federal judge in the Grokster case, who ruled that the networks could be allowed to continue to operate.

The statement is lengthy:

The Act does not overrule or limit the Sony-Betamax decision. The Act will not abrogate or affect Sony’s holding that the maker of a copying device will not be liable just because it knows that its product could be used to infringe. Id. at 439. The Act will only address cases of intentional inducement not covered by the Sony ruling: “Sony certainly does not ‘intentionally induce’ its customers to make infringing uses of respondents’ copyrights….” 464 U.S. at 439 n.19.

The Act does not affect most Internet services because of the Section 512 “safe harbors” in the Digital Millennium Copyright Act (DMCA). The bill will not affect Internet service providers – like Verizon, eBay, or Google – who comply with any of the Section 512 “safe harbors” for conduit, user-directed, or information-location services.

The Act permits civil enforcement only against parties whose acts would already trigger criminal liability under existing law. Intentional inducement of criminal or illegal acts of infringement is already a felony. The bill merely confirms that civil liability can be imposed in cases where potential criminal conduct already exists.

[...] This bill will also preserve the Sony ruling without reversing, abrogating or limiting it. 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. The Inducement Act also preserves the Section 512 safe harbors for Internet service providers.

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.

Without the text of the bill, it’s going to be hard to see how he plans to accomplish this. The motivations for the bill have been changed, too

No civilized country could let sophisticated adults profit by tempting its most vulnerable citizens — its children — to break the law.

We’ll see. I can’t find it in Thomas, but it may just be too soon.

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Laugh — It’s A Joke [12:53 pm]

So far, anyway — RIAA Claims Music On Car Radios Meant Only For Original Vehicle Owner!!!! [via Doc Searls]

The Recording Industry Association of America announced today it would be expanding its crackdown on copyright infringement by suing family members, hitchhikers and carpoolers.

Lawyers for the RIAA maintain that the radio in each car was never meant to be listened to by anyone else except the original owner of the vehicle.

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Missing Coalition Members [12:39 pm]

The Register points out who didn’t show up for the party: Microsoft, Apple snub consumer freedom coalition

But the modest goals of the DMRA and the PTFC are too much for two vendors to embrace: Microsoft and Apple. Microsoft is quietly pleased with the DMCA, arguing that it needs to protect its business software, which is widely pirated. But it has another agenda, which is getting Hollywood’s big content producers hooked on its formats. It’s working, too, as Microsoft has already snagged Disney.

Meanwhile, Apple once appeared to regard DRM as a necessary, and perhaps even a temporary evil. Steve Jobs last year told Rolling Stone that he didn’t think that DRM would ever work, all the while patenting new DRM technologies and leading, with Sony and Warner Brothers, the movie industry’s secretive Copy Protection Technology Working Group. And when Apple’s head lawyer for its iTunes Music Store told EFF attorney Fred Von Lohmann last month that it would keep DRM even if it didn’t have to, its true strategy became clear: DRM is a competitive weapon, and its customers are collateral damage.

Ernest points out that the House Judiciary Chair, Sensenbrenner, has now also been heard from: Pro-DMCA Forces Strike Back

“We strongly oppose the substance of H.R. 107. This legislation would eviscerate a key provision of the Digital Millenium Copyright Act (DMCA), which is successfully protecting copyrighted works and providing consumers access to more digital content than ever before. In fact, a DVD player is now as common a household item as the VCR was 15 years ago precisely because of the DMCA. H.R. 107 would undo a law that is working and destroy the careful balance in copyright law between consumers’ rights and intellectual property rights.

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The Hazards of Moving the Goalposts [11:35 am]

When the INDUCE Act’s title is spelled out (”The Inducement Devolves into Unlawful Child Exploitation Act of 2004″), the first thing that comes to mind is what does the criminalizing of technologies that could infringe copyright have to do with child pornography? As Ernest has pointed out in the past, Sen. Hatch’s legislative initiatives in the realm of IP strangely seem to help, rather than hurt, the porn industry.

Jon Newton at p2pnet has a look at the fight against P2P, pointing out that there are certain complications that come with claiming that fighting P2P is fighting pornography: Merchants of Porn

“P2P stands for piracy to pornography,” states Andrew Lack, chief executive of Sony Music Entertainment. And, “As a guy in the record industry and as a parent, I am shocked that these services are being used to lure children to stuff that is really ugly.”

So that’s OK. Your kids and their sensibilities are in safe hands. But just to make doubly sure, last September the RIAA launched a campaign against p2p, says a CNET story here, going on, “a significant percentage of the files available to these 13 million new users [of P2P networks] per month are pornography, including child pornography.”

Little young thing go around my dick with your tongue ring / Deep throat my nine inch

That’s from a Sony Music CD, and you’ll find more Sony porn here. Or simply use your favourite search engine.

The Lack quote is from this NYTimes article: Aiming at Pornography to Hit Music Piracy; September 7, 2003 (cited here)

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June 22, 2004

n + 482 [8:32 pm]

The RIAA Sues 482 More People (Wired news: RIAA at it Again: 482 More Sued)

The identities of the alleged offenders are not known. The labels identified them only by their computer addresses. The music companies must receive a judge’s permission before they can subpoena a defendant’s Internet service provider for the name of the alleged file swapper.

CNet: RIAA takes hundreds more ‘John Does’ to court; The Register - RIAA sues 482 more unnamed file-sharers

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GrokLaw on the EU Patent Vote [12:50 pm]

EU Patents - It Ain’t Over ‘Til It’s Over

If you thought the EU patent story was a done deal, I suggest you read this account by Arend Lammertink on his efforts to turn things around in the Netherlands, which may result in the Dutch Parliament revoking its vote approving the patent directive. Lammertink holds a Masters degree in Electrical Engineering from the University of Twente and works as a Software Engineer for dGB Earth Sciences that specializes in quantitative seismic interpretation software and services

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Archiving, Infringing — All In A Day’s Work [9:21 am]

beSpacific points to a NIST report, Information Technology: Care and Handling of CDs and DVDs — A Guide for Librarians and Archivists.

Surprisingly, the report fails to mention the implications of DRM techniques for these archiving strategies. And, reading all this discussion of copy-making for archival purposes, you have to wonder what the copyright cabal would like to make of these instructions……

A potentially more immediate threat is technological obsolescence. Technological advances will no doubt make current optical disc types obsolete within several years. If the software currently used to interpret the data on optical discs becomes unavailable, a migration or emulation technology will be needed to access the data. Also, if the current disc-drive technology becomes unavailable, and if disc drives produced in the future lack the backward compatibility to play today’s discs, the information on the discs will likewise be inaccessible. Film and paper are much more stable in this regard, as human language does not change as rapidly as computer software, hardware, or the media format. Ink on paper, for example, has been used for centuries, and film has not changed significantly over the years.

The importance of ensuring that information can be read by future generations cannot be overstated. It is vital to have in place a preservation strategy that guarantees the sustainability of the collection for as long as possible. The computer-user industry standard for data storage on removable digital media has changed considerably over the past few decades (TASI 2002). As shown in Figure 1, digital media used as recently as 20 years ago are already incompatible with most of today’s systems.

[...] The ability to make copies of equal quality (digital-to-digital) means that it is possible and recommended to archive one copy of a given digital collection (preferably the original) by storing it in a location separate from that of frequently accessed copies. Presumably, then, the archived (original) media will be needed only for inspection, production of additional copies, or migration to new media. One of the most important benefits of archiving is increased security; it helps prevent information loss caused by disaster, theft, or mishandling.

If budgetary limits preclude separate locations, then multiple copies should be kept at the same location. The original can be designated as archival, and the copies accessible. If the original is in analog format, then the analog version and the original digital copy should both be archived. [...]

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Ludd’s Latest Follower: Orrin Hatch [8:38 am]

Moore’s Lore: Luddite Laws [via Jim Flowers]

Here’s Ludd. (Image from the Salt Lake City Tribune.) He thinks his name is Sen. Orrin Hatch, but he’s Ned Ludd all right. I can prove it.

His solution to the technology of copying files. Ban it. Sen. Ludd’s latest idea, called the INDUCE Bill, would not only make illegal any technology that copies files (such as, I assume, caching them) but encouraging people to make such technology.

[...] If it weren’t for the fact that many technology companies are so hungry for government protection, or funding, that they’re eager to make common cause with Luddites, we might have a way to organize against them.

As it is, we’ll need the pressure of the market, the growing pressure of China and India, to get any rational policy.

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Upcoming Hearing on P2P [8:06 am]

The US Senate Committee on Commerce, Science, & Transportation (McCain, chiar, Hollings ranking Democrat) will be holding a hearing, The Future of Peer-to-Peer (P2P) Technology, this Wednesday afternoon.

Related: Hatch’s INDUCE Act is still expected to hit the Senate floor this week — and note that the PIRATE Act (S.2237) is still listed in the Senate’s General Orders

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OD2 Sold To Loudeye [7:50 am]

Realignments in the European emusic business: Peter Gabriel sells digital music firm

Essentially, Loudeye is buying OD2’s European customer base and music licenses, saving it the effort of setting up a competing operation from scratch, doubling the buyer’s revenue at a stroke. Since OD2 is only pulling in $2.5m a quarter - and making a loss - according to figures provided by Loudeye - which must [mean?] the company is clearly banking on considerable growth going forward, not only to reverse the downward trend in Loudeye’s own revenues but to justify the cost of the transaction.

And that’s the big question: is that growth there? There are certainly plenty of bullish predictions as to the size of the global digital music market. Loudeye notes that $11bn worth of recorded music were sold in Europe last year, and that researcher Forrester is anticipated European digital music sales of $1.6bn come 2007.

But who will take the lion’s share of that total?

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Huffman: More Than A Coder [7:39 am]

In addition to Huffman coding, a part of MP3 technology, David Huffman had some other intriguing interests: Cones, Curves, Shells, Towers: He Made Paper Jump to Life. Worth a read, if only to see what paper can do. See Geometric Paper Folding, from the Geometry Junkyard

See also Slashdot’s Computational Origami and David Huffman

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Taking on Section 1201 [7:19 am]

Tech heavies support challenge to copyright law

Skirmishes between content-producing companies seeking expansive copyright protections and hardware and telecommunications corporations on the other side have resulted in a legislative deadlock on Capitol Hill.

Some of the most influential technology companies are planning to announce on Tuesday an alliance that they hope will end the impasse. Called the Personal Technology Freedom Coalition, its purpose is to coordinate lobbying efforts in opposition–at least initially–to the most controversial section of the Digital Millennium Copyright Act.

[...] But members of the nascent coalition, including Intel, Sun Microsystems, Verizon Communications, SBC, Qwest, Gateway and BellSouth, are lending their support to a proposal by Rep. Rick Boucher, D-Va., to rewrite that part of the DMCA. Boucher’s bill says that descrambling utilities can be distributed, and copy protection can be circumvented as long as no copyright infringement is taking place.

One participant in the coalition, who spoke on condition of anonymity, said its members already have met with representatives of more than 20 congressional offices. Their sales pitch: Beyond harming “fair use” rights, the DMCA also endangers computer research vital to national security.

Other members of the coalition include: Philips Consumer Electronics North America, the Consumer Electronics Association, the American Library Association, the Electronic Frontier Foundation, Consumers Union, the Consumer Federation of America, Public Knowledge, the American Foundation for the Blind, the United States Telecom Association, and the Computer and Communications Industry Association.

Slashdot discussion: Boucher’s Anti-DMCA Bill Gets High Profile Allies

Ed Felten: Tech Giants Support DMCA Reform

Rich Boucher at CNet: The Hill’s property rights showdown

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June 21, 2004

ISPs, DMCA “Safe Harbors,” and Volition [6:35 pm]

LawGeek: Fourth Circuit Affirms that Passive Hosting/Viewing of Web Content without Knowledge is not Copyright Infringement

The Fourth Circuit Court of Appeals has affirmed in the Costar v. Loopnet case that ISPs and other providers are not liable for direct infringement when their servers passively copy works that have been uploaded, downloaded, or hosted by users if they didn’t have knowledge that the works were infringing. Their rationale: copyright infringement requires as active “volitional” act; setting up automatic servers to upload/download/host content is purely passive and does not include any active participation by the hosting company.

Scrivener’s Error suggests that the case was mis-specified at the outset: 21 June 2004

The problem with this case is that it actually answers almost nothing. CoStar pressed a theory of direct infringement, which did not persuade the court.

Because LoopNet, as an Internet service provider, is simply the owner and manager of a system used by others who are violating CoStar’s copyrights and is not an actual duplicator itself, it is not directly liable for copyright infringement.

Slip op. at 3 (emphasis in original). This is not a terribly surprising result. CoStar should have been pressing contributory and vicarious liability. At least, in the abstract it should have been. [...]

[...] What this means in the long run is that the rhetoric in the Fourth Circuit’s opinion will be quoted out of context in cases turning on contributory or vicarious infringement, or in attempts to intimidate persons making what are essentially contributory or vicarious infringement claims. [...] The parties appear to have obstinately refused to address any theory of liability other than direct; the court obliged their apparent myopia with an opinion that only Mr Magoo could love.

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