Antipiracy bill targets technology

The proposal, called the Induce Act, says “whoever intentionally induces any violation” of copyright law would be legally liable. In the draft bill seen by CNET, inducement is defined as “aids, abets, induces, counsels or procures” and can be punished with civil fines and, in some circumstances, lengthy prison terms.

This measure represents the latest legislative attempt by influential copyright holders to address what they view as the growing threat of peer-to-peer networks rife with pirated music, movies and software. It was originally scheduled to be introduced Thursday by Sen. Orrin Hatch, R-Utah, but the Senate Judiciary Committee confirmed at the end of the day Thursday that the bill had been delayed. A representative of Senate Majority Leader Bill Frist, a probable co-sponsor of the legislation, said the Induce Act would be introduced “sometime next week.”

[… Jessica] Litman said that under the Induce Act, products like ReplayTV, peer-to-peer networks and even the humble VCR could be outlawed, because they can potentially be used to infringe copyrights.

OK — are we really planning to commit suicide? First stem cells, now digital technology? This is going to push every piece of digital technological innovation offshore — possibly permanently. After all, we’re not going to be able to draw the line at the software — eventually there’s going to be some clever lawyer who’s going to look at Intel’s, IBM’s or Motorola’s deep pockets and argue that the microprocessor is also implicated in “inducing” copyright infringement. After all, processor power is part of the picture. Will the 3 megahertz G5 cross the line? A G6?

Would the NRA put up with an identical theory — guns could kill people, so we need to make the producers of guns liable? Time to get serious — I look forward to (a) seeing who the co-sponsors are and (b) contributing to any opponent.

This kind of “know-nothing” pandering to the copyright cabal is too dangerous to let alone.

Test question: why does free speech get a more nuanced treatment? From International conference targets Internet hate speech [via Slashdot]:

U.S. Assistant Attorney General Dan Bryant acknowledged the American approach differs from that of other countries.

“We believe that government efforts to regulate bias-motivated speech on the Internet are fundamentally mistaken,” Bryant said. “At the same time, however, the United States has not stood and will not stand idly by, when individuals cross the line from protected speech to criminal conduct.”

He said the United States believes the best way to reduce hate speech is to confront it, by promoting tolerance, understanding and other ideas that enlighten.

See also Seth’s comments: INDUCE Act

Earlier Furdlog entry; Derek’s thoughts; Slashdot: Sen. Hatch to Introduce Wide-ranging Copyright Bill

Oh, Boy

Copy-blocked CD tops U.S. charts

For the first time, the No. 1 album in the United States is loaded with anticopying protections, marking a clear step into the mainstream for the controversial technology.

According to figures released by Nielsen Soundscan, Velvet Revolver’s “Contraband” was the top-selling album in America last week, despite being prominently labeled on its cover as being “protected against unauthorized duplication.”

The success of the album is likely to prompt more experiments from BMG, the band’s label, and other record companies, industry watchers said.

I suppose the real test is whether (a) the copy protection works and (b) you can find the content on KaZaA or not. Something to research…..

Update (10:15PM): I’ve gotten an e-mail telling me that the album’s been available on Usenet for some time, so either a pre-release got out, or the DRM was cracked long ago

Later: From The Register — Lock-down CD scores No.1 hit and Slashdot (with confirmation of the fact that, DRM or not, the music’s online) — Copy-protected CD Tops U.S. Charts

Hmmm – is the folding chair working? Or will there be a backlash?

Ernest: CD DRM Keeps Music Off P2P Filesharing NetworksOh, wait, that didn’t happen.

Ed Felten: Lame Copy Protection Doesn’t Depress CD Sales Much; TechDirt: Misunderstanding The Success Of A Copy-Blocked CD

Speaking of this Administration

Today’s War Room report in Salon refers to this LATimes article: Spy Work in Iraq Riddled by Failures. One particularly priceless description (if hideously nightmarish at the policy level):

U.S. analysts also erred in their analysis of high-altitude satellite photos, repeatedly confusing Scud missile storage places with the short, half-cylindrical sheds typically used to house poultry in Iraq. As a result, as the war neared, two teams of U.N. weapons experts acting on U.S. intelligence scrambled to search chicken coops for missiles that were not there.

“We inspected a lot of chicken farms,” said a former inspector who asked not to be identified because he now works with U.S. intelligence. His U.N. team printed “Ballistic Chicken Farm Inspection Team” on 20 gray T-shirts to mark the futile hunt.

See also this NYTimes book review: How Feuds and Failures Affected American Intelligence

Negroponte on Yochai’s Open Wireless Network

Q&A With MIT’s Nicholas Negroponte

Q: Which new products or services are likely to make the biggest splash?

A: Peer-to-peer is key. I mean that in every form conceivable: cell phones without towers, sharing leftover food, bartering, etc. Furthermore, you will see micro-wireless networks, where everyday devices become routers of messages that have nothing to do with themselves.

Nature is pretty good at networks, self-organizing systems. By contrast, social systems are top-down and hierarchical, from which we draw the basic assumption that organization and order can only come from centralism.

Slashdot discussion: Q&A With MIT’s Nicholas Negroponte

Jack Balkin Sees A *Glowing* Lining

In Radioactive Judicial Candidates , Jack Balkin finds a ?silver? lining in his ongoing discussion of the Administration’s legal shenanigans on torture:

One of the little noted side effects of the Iraq war is that the Administration’s eagerness to remove legal constraints from its interrogation of detainees in Iraq, Afghanistan, and Guantanamo Bay may well have torpedoed the chances of a number of Administration lawyers to become federal judges or Justices on the Supreme Court. These ambitious people may well have thought that doing the Administration’s bidding would propel them into judicial office. In the case of Jay Bybee, who now sits on the 9th Circuit Court of appeals, the strategy worked. But that was before the Abu Ghraib scandals and the release of the OLC and Defense Department torture memos. Bush Administation lawyers who can be found to have participated in any way with these decisions are probably radioactive. Their judicial prospects are pretty much destroyed.

One of the most interesting examples is Alberto Gonzales, the President’s counsel. People have long assumed that Gonzales, who would have been the first Latino nominee, was at the top of the list for any future Supreme Court appointment. […]

[…] The corruptions of power have brought us to a sorry spectacle in which intelligent lawyers, many with impeccable credentials, have argued vigorously for an Imperial Presidency that is above the law and for the right to abuse and torture fellow human beings. This failure of moral imagination and professional scruple makes the participants unfit for judicial office, and no one should hesitate in saying so. Put another way, if the torture memos have made these very bright and talented lawyers radioactive, it couldn’t have happened to a nicer bunch of guys.

See earlier posting: OT: Krugman on Ashcroft

Who’s Surprised?

In RIAA Exceeds Expectations (the Low Ones), Jenny Levine points to the expectations and contrasts with the realities of the record companies’ CD settlement to libraries.

I don’t know why I’m surprised. I expected offbeat titles (I got one copy of “Ray Romano at Carneige Hall”, for example) and some grab-bag stuff, but not 47 copies of a Latin CD I’ve never even heard of (the Hispanic population of the city this library serves is 7%, according to the 2000 census, in case you’re thinking there might be a huge demand for this title and I am simply unaware of it). While there are titles I got that I will add to my collection and am glad to have, I’m angered by the hubris and or carelessness of whoever is sending me 23 copies of ANYTHING, much less some of the gems you see listed above.

Be sure to read the list as well as the percentage of "cut-outs" he got.

Issues With Beastie Boys’ New CD

From SecurityFocus: Caveat Lector: Beastie Boys Evil [via the June 17th posting at MemePool]

It seems that Capitol Records has some sort of new copy protection system, that automatically, silently, installs “helpful” copy protection software on MacOS and Windows as soon as you insert the CD into default systems. I’m not sure exactly what it does yet, but I am sure regreting actually purchasing said media now… they don’t deserve my money if they choose to pull stupid stunts like this. Installing software without your permission sounds like viral malware behaviour to me. I certainly hope the AV companies put signatures into their products for this crap.

They include some sort of uninstaller buried on there for Windows, but I see no such thing for MacOS.

Note that the Beastie Boys message board is taking some flaming

Update: Slate’s review – Rhymer’s Delight

Even later: The Register, including how to circumvent – Beastie Boys CD installs virus

Much later: Beastie Boys Respond to DRM Claims

Geist on Balance in Copyright Policymaking

Copyright reform needs a balanced approach [via Lessig Blog] — with some familiar rhetoric and some procedural suggestions for progress.

The conflicting responses reflect two very different visions of the Internet. Those calling for stronger copyright protections, including the Bulte committee, view the Internet primarily as a new distribution channel and method to copy. In their view, new copyright laws are therefore needed to control unsanctioned copying and to restore appropriate levels of compensation.

Those concerned about the effects of greater protections view the Internet primarily as a technology for creating, not a technology for copying. For this group, represented by the millions of Internet users that post messages to newsgroups, maintain blogs, or actively share their work online, the Internet is not a spectator sport. From their perspective, copyright law should support innovative and creative work, not obstruct it.

The challenge facing Canada’s parliamentarians and copyright policy makers is they must find a way to reconcile these opposing visions. The Supreme Court of Canada has indicated that a balanced approach is to be the guiding objective in that regard, noting in one recent case that “excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.”

Copyfight on Luck’s Music Library v. Ashcroft

All Your Public Domain Are Belong to Us. The opinion argues, among other things, that the passage of the 1790 Copyright Act, and the fact that it gave copyrights to works created before 1790, was not the statutory recognition of an existing copyright (in common law or otherwise) but was, instead, the exercise of a Congressional power to award retroactive copyright — consistent with Eldred but practically nonsense, since such copyright awards clearly cannot have been necessary to “promote … Progress” — or the works so protected wouldn’t have been created in the first place.

I personally enjoyed the discussion of the plaintiffs claim that such a retroactive award violates the originality requirement of copyright (the work’s in the public domain, hence any effort to award copyright to it fails because a public domain work is, by definition, unable to claim originality), but the Court’s argument that originality is (a) not dependent upon a formal temporal definition and (b) that such works must have satisfied originality at one time, or they wouldn’t have been copyrighted in the past, is both unsatisfactory and painfully circular. (slip op. 18) But, IANAL.

Worse, the bar on originality is set dangerously low, IMHO:

In Eldred, the Supreme Court held that the originality requirement means only that a modicum of creativity exists, and did not depend on the timing of the grant of copyright protection. 537 U.S. at 211. Indeed, the requirement of creativity requires only that the author independently created the work.

New Moves By Sen. Hatch

From the EFF Deep Links site: INDUCE Act = Hollings II?
(timestamp updated owing to new content: original timestamp 9:06 AM)

Rumor has it that Sen. Orrin Hatch (R-UT) will be introducing a bill tomorrow that would add a new Section 501(g) to the Copyright Act granting copyright owners a cause of action against those who “induce” copyright infringement (cf. patent law). This bill, dubbed the INDUCE Act, would apparently also reach those who “counsel” infringers.

Even a moment’s reflection should make the danger to innovators clear — you now have to worry not just about contributory and vicarious liability, but an entirely new form of liability for building tools that might be misused. It will be interesting to see whether the bill expressly precludes any Betamax-type defense. This may also pose First Amendment problems, to the extent a journalist or website publisher might be liable for simply posting information about where infringement tools might be found or how to use them.

It’s the Hollings Bill by other means — an over-reaching new form of indirect liability that will force technology companies of all kinds to “ask permission” before innovating for fear of ruinous litigation if they don’t.

Copyfight has much, much more: Donna Wentworth’s posting – INDUCE Act = Son of Hollings?; Ernest Miller’s discussion – INDUCE Act is Free Speech Killer – with a link to Susan Crawford’s blog entry that has a link to the proposed text; Techdirt posting

Update: More from Ernest — Should Have Seen the INDUCE Act Coming; and thoughts from Ed Felten

Even later update: Antipiracy bill targets technology

Later: Slashdot discussion, Sen. Hatch to Introduce Wide-ranging Copyright Bill