In A swan song for the music industry [pdf], Hiawatha Bray points to what might be the Achilles Heel of INDUCE/IICA — realization that it’s a threat to Betamax. If that worries Bray, it’s bound to worry a large part of the population that otherwise would support Hatch’s efforts — of course, Hatch insists that’s not the likely consequence of the act, but Marybeth’s fawning performance may have tainted that perception for good:
For those of us who despise the file-swappers as larcenous hypocrites, it’s not a happy verdict. But it’s well nigh impossible to dispute it. The judges simply pointed to a crucial 1984 Supreme Court decision that protected the rights of Americans to own videotape recorders. The movie industry scowled that these devices would enable people to practice a lively trade in pirated movies. The court responded that VCRs could also enable a fellow working the night shift to watch “The Waltons” when he got home. And because the technology had “substantial noninfringing uses,” VCRs could not be banned, even if they could also be used for illegal purposes.
The so-called “Betamax case” liberated technologists to create CD and DVD burners, portable MP3 music players, and music-ripping software, secure in the knowledge that they couldn’t be sued for it.
[...] Republican Senator Orrin Hatch of Utah must have seen this coming. Hatch went out on a limb a few months back, proposing a federal law that would ban products that sought to “induce” copyright violations. In this space, I defended Hatch against the scorn of outraged technologists, who insisted the new law would have stifled the invention of the Apple iPod and other tech goodies.
But I changed my mind when Marybeth Peters, the chief of the US Copyright Office, praised the Hatch bill because it would undermine the Betamax case. If that happened, the next generation of digital marvels would be buried in an avalanche of injunctions, depositions, and discovery motions. No thanks, Marybeth. We’d rather learn to live with digital thievery.
Note that a letter in today’s NYTimes [pdf] parrots the current industry strategy — we’ll float IICA and, if you think it’s so bad, you tell us how to fix it so we can get what we want:
To the Editor:
“In-House Advice” (editorial, Aug. 17) correctly articulates the need for balance in our nation’s intellectual property laws. What is happening to copyright owners on today’s file-sharing networks, though, is a one-sided mauling in which millions of users illegally download music while loopholes in the laws allow those who facilitate the theft in the first place to escape accountability.
Congress appropriately wants to do something about this crisis. It makes sense to apply the “aiding and abetting” legal concept to the copyright laws - to get at those who deliberately immunize themselves from liability by passing on their liability to kids and other users.
If there are concerns about the Induce Act’s scope, let’s work constructively to address them. We, too, want to see technology flourish. But what of the legitimate online entertainment services forced to compete against stolen copies of the same product offered for free? That’s a decidedly unbalanced playing field.
Chairman, Recording Industry Association of America
Washington, Aug. 18, 2004
Related: Music stores lack excitement, executive says [pdf]
Music mogul Clive Davis has some advice for retailers looking to persuade music fans to return to traditional record shops: Make shopping more fun.
“You are faced with a major threat . . . competition from digital distribution,” Davis warned merchants and recording industry executives at a conference yesterday.
The chairman and chief executive of BMG North America compared the choice between buying music online or in a store to eating dinner at a restaurant or at home. “It’s fun to shop for music . . . and you’re not making it a fun experience,” he said. “You have got to make it exciting.”