Communications Daily 09/08/2004
Parties Meet on Copyright Inducement Language

Senior Senate Judiciary Committee staffers, U.S. Copyright Office officials such as Assoc. Register Jule Sigall, and industry representatives including Sarah Deutsch and Kathy Zanowic of Verizon were meeting at our deadline Tues. regarding proposals to modify legislation targeting inducement of copyright infringement. A draft proposal by the Copyright Office circulated last week generated opposition among the high-tech and fair-use community (CD Sept 7 p6, Sept 3 p4). Critics have called it overbroad, with several groups instead urging consideration of a proposal CEA offered in Aug. (CD Aug 26 p7). Inducement language could be included with new authority for the Dept. of Justice in a broader copyright bill aimed at clearing Congress this year, according to Hill sources.

At issue is S-2560 by Committee Chmn. Hatch (R-Utah) and ranking Democrat Leahy (Vt.). Their bill would extend secondary liability to entities that “induce” copyright infringement. It responds to recent court decisions finding P2P services such as Grokster not liable because their software has noninfringing uses. After faulting S-2560 as unnecessary (CD July 23 p8), CEA and others decided to honor a request by Hatch and Leahy to draft alternate legislation.

Their bill targets indiscriminate, mass-infringing distribution of copyrighted content, provides a safe harbor for ISPs and reaffirms the Sony Betamax fair-use decision. Content producers faulted the proposal, however, arguing it would be impossible to pursue a case against anyone under the legislation.

The Copyright Office takes a different approach, targeting “overt acts” of infringement. The language lists several ways someone can commit an overt act of inducing infringement, but they aren’t exhaustive, leaving open other possibilities. Content industries have been silent on the draft, but others have faulted it. Center for Democracy and Technology Assoc. Dir. Alan Davidson wrote Sigall raising several criticisms: (1) A single act could be penalized, not just large-scale infringement. (2) “Overt acts” are not narrowly targeted, and the wording could lead to extensive litigation. (3) Safe harbors are unclear. (4) “Unnecessary demands” could be put on technology development to ensure compliance.

Similar points were made in letters to Sigall by Verizon and Public Knowledge (the Copyright Office released its draft Thurs. and requested responses Fri.). Wiley Rein & Fielding attorney Bruce Joseph -- and expected to be at the Tues. meeting -- wrote on Verizon’s behalf that the “very limited” review possible on short notice suggested Sony Betamax could be threatened and ISPs could be vulnerable to liability. Public Knowledge Legal Dir. Mike Godwin wrote that the “overt acts” provision was subjective and could “induce (as it were) frivolous litigation.” Distributed Computing Industry Assn. (DCIA) declined to engage in “arguing legal precedent and citing case law,” instead informing the Copyright Office and the Senate staffers that the answer is not legislation, but adoption of a model in which P2P users share files and a software plug-in monitors downloads under a licensing regime. DCIA Pres. Marty Lafferty proposed technology from member companies to accomplish this.

Hatch and Leahy have vowed to move legislation on inducement this year. Their effort comes as the House Judiciary Committee today (Wed.) marks up HR-4077, the Piracy Deterrence and Education Act by Courts, Internet & Intellectual Property Subcommittee Chmn. Smith (R-Tex.). That bill makes it easier for the Justice Dept. to prosecute copyright infringers, an issue close to Hatch’s and Leahy’s hearts. Leahy has his own bill to do that, S- 2237, the Protecting Intellectual Rights Against Theft & Expropriation (PIRATE) Act. Leahy’s bill cleared the Senate by unanimous consent. There’s talk on the Hill of putting together a House-Senate copyright bill, for passage before the end of the Congress, that would include elements of PIRATE -- as well as perhaps language on inducement, although House Judiciary hasn’t held hearings on that subject. -- Patrick Ross

if it passes there'll probably be a court challange eventually and the supreme court will once again have to weigh in

That's it...we've lost our country. We have no impact as citizens to prevent the worst kinds of 1984 fascistic laws from passing.

On THAT note,

HR3920, the bill that would allow congress to overturn Supreme Court decisions is not dead, some just hope it's forgotten long enough to slip it through the cracks.

Current Status ...

H.R.3920
Title: To allow Congress to reverse the judgments of the United States Supreme Court.
Sponsor: Rep Lewis, Ron [KY-2] (introduced 3/9/2004) Cosponsors (26)
Latest Major Action: 4/2/2004 Referred to House subcommittee. Status: Referred to the Subcommittee on Courts, the Internet, and Intellectual Property.

If utal does not vote hatch out, let,s through them out of the union!

I've never seen such a determination to pass a law that so obviously attacks one form of business, that being the p2p programs of course.(This effectively kills peoples business dreams) That in itself should never be allowed to happen.

I may have my head in the sand, but I really just can't see the people in congress, with any kind of common sense, see this thing through.

Tom--I submitted a quick news item today, just a note really, but I included the link for the hearing on PDEA tomorrow for anyone who has the time to listen--it was for the whole day, and the committee had a lot planned, but for anyone interested, the link is in the submission.

We've got some dumb educated people in congress and the copyright office they'll need to stop using their copy machines and anything else that induces them what retards.

We need to start calling these programs something else so it doesn't fall under p2p.

Better yet if it does get passed maybe we should get a class action suit against Hatch and leahy for making us being induced to being a pirate.

They induced me to do it.

All these laws for the content cartel. Where in the CONSTITUTION of the United States says. We have to protect foreign own business from losing money in the United States. For an industry thats keeps losing in court case after case since 1938. Will we also forget that they priced fixed cd's. Oh yes just pay back $12.00 and send all the cd's to the libraries that you can not sell. We do not care if they are all the same. In the last two years there must have been at least twenty bills for this industry. Why? I can see no rhyme or reason for this except, money from soft to PAC to under the table in Las Vegas. By the way in Vegas they are called speaking engagement.They have to go in the back door little by little to get what they need. They call it closed meeting, no John Q. Public Allowed .As Sgt. Hans Schultz would say. I see nothing, nothing. "I'm just as loyal a German soldier as any prisoner here in this room!", Well Induce no more or induce this. !

"content cartel" - that's a clever name for them

money from soft to PAC to under the table in Las Vegas ("speaking engagements") - illegal political deals at the expense of ordinary Americans make me sick

Congress is failing. Here is a bill which is hated by all who know of it, making rapid progress anyway because a few people with money and connections want it.

"if it passes there'll probably be a court challange eventually and the supreme court will once again have to weigh in"

Why should we be waiting that long?

Seriously, file a lawsuit against Congress itself for even attempting to pass this. In a free market economy where you're *supposed* to have competition and oppose monopolies, the top legislative body is making bad laws strictly to maintain the stranglehold of the entertainment industry.

Never before have I even heard of a law specifically created to force existing companies and technology already ruled legit by the courts out of business. Anti-trust in Congress?

Can your congress be sued?

We can all sue the RIAA for inducing us to use P2P due to thier outrageous prices and habits of sueing thier customers.

It'll be Prohibition all over again. During the Alcohol Prohibition, almost all American breweries closed, and never came back. The outcome for the Tech industry (, business, and education in general if cassetts, scopiers, and scanners get hit) could be worse than the "bubble" effect.

Merrily they are leading us into Hell...

... copiers ... geez....

With the induce act, could they sue my parents for giving me a PC, which induce me to download?
Can they sue my parents for bringing me into this world? That directly induces to download and violate copyrights. How can u live in this world without downloading?
They could also sue Trojan, since one of their bad products is the reason im here mouhahahahaha

Maybe they could sue Bill Gates. His damn Windows is the OS permitting all those P2P to run so well.

OMG

Bill Gates VS RIAA

I'd pay to see that!!!!!

Who says that this bill would kill creativity? Look how my imagination gets on fire just thinking of the funny ways we could use this bill.
I think if this pass, i'll create an organization to collect funds to fill the funniest puirsuits

And in light of the repeat of recent news that the U.S. has gone from third to tenth over four years in the area of broadband development (just a question: Is it not a coincidence that this drop occurred after the metastasizing cancer known as the DMCA was put into effect, in fact the two happenings may very much be tied together?), it is very likely that should this latest manifestation of anti-technology bigotry (and initiative to force us all back into the proverbial yokes and chains) become entrenched and solidified, we as a nation stand to plunge even further down (maybe into last place) -- and all because a clique of multinational corporations who have both houses of Congress in general -- and the U.S. Senate in particular -- don't like certain "new" technologies. We might all just as well be living under Soviet Communism in that case. Not to mention the fact that there is truly NO justice in the world we live in today.

Er . . . sorry . . . one passage should read:
" . . . all because a clique of multinational corporations who have both houses of Congress in general -- and the U.S. Senate in particular -- BY THE THROAT" (emphasis mine).

Better than suing Congress.... VOTE THEM OUT OF OFFICE. What the HELL is wrong with you people in Utah? Are you all dumb-asses, or did you think Orin Hatch deserved another term??

What happened to term limits?? We can limit the length of time someone can be President, but we can't limit the time someone can serve in Congress??

Everyone working and promoting this bill ought to be VOTED OUT OF OFFICE. It is that plain and simple.

"overt acts"...

so apparently not only am i a pirate, i'm also a secret agent.

I got news for all of youse: Apparently, "Down-the-" Hatch's current term expires in 2006, from what I understand. But the damage that these prejudiced initiatives will bring about may be irreparable.

That still means two more years for him to foul the air we all breathe, doesn't it?

Get the word out

Downhill Battle has organized a planned Call in Day, September 14th-to voice opposition to the Induce Bill

sign up here http://www.savebetamax.org/

spread this around....

P R E S S R E L E A S E
Contact:
Holmes Wilson - hw@downhillbattle.org
Nicholas Reville - npr@downhillbattle.org
Downhill Battle (www.downhillbattle.org)
Grey Tuesday (www.greytuesday.org)
Phone: 508-963-7832

Music group organizes "Save Betamax" online protest in opposition to INDUCE Act.

DOWNHILL BATTLE (September 8th, 2004) - The online community is rallying around the Supreme Court decision that made the VCR legal, just as this important piece of public policy is being threatened by Hollywood-backed Senators. Today organizers start amassing support for a massive national call-in day on Tuesday September 14th to support the 1984 "Betamax" ruling and oppose the INDUCE Act.

In the case "Sony Corp vs. Universal City Studios" the Supreme Court ruled that movie studios could not hold VCR manufacturers liable when customers made illegal copies, because VCRs also had "substantial non-infringing uses". But now, Senate bill S. 2560, known as the "INDUCE Act" would undermine the Betamax decision by creating a new kind of liability: the VCR maker of tomorrow could be sued for "inducing" their customers to make infringing copies.

"The iPod, the recordable CD-ROM, the VCR, and even the Xerox machine all owe their success to the foundation laid out by the Betamax decision," said Holmes Wilson, co-founder of the Downhill Battle, which is organizing the call-in day. "But now," says Wilson, "a handful of very well-connected entertainment companies are trying to undermine that foundation."

The swelling public voice will come to a head next Tuesday in a storm of phonecalls to Senate power-brokers. Organizers expect the event to draw a large number of tech law experts, bloggers, activists, artists, and regular internet users.

"Everyone who understands the potential of the Internet knows that the Betamax decision was good public policy," says Downhill Battle co-founder Holmes Wilson, "If you've watched the internet grow you just get it: when programmers, artists, and businesses can innovate without restraints, good things happen."

"In blogs and online discussion forums, you hardly ever see this many people agreeing on anything," said Tiffiniy Cheng of Downhill Battle, "But here there's a real point of consensus: the Betamax decision was a good idea and tampering with it is a mistake-- that consensus is what's going to make this action so successful."

The consensus extends to the community of mainstream tech companies. Last month, tech giants including Google, eBay, Intel, Verizon, and Yahoo signed a letter opposing S. 2560. "When you give entertainment giants the right to sue tech companies, you strangle scores of beneficial technologies in their infancy," said Downhill Batttle's Nick Nassar, "The tech sector doesn't want that to happen, and the public interest advocates don't want it to happen."

Downhill Battle is a public interest advocate at the intersection of music and tech law. In February 2004 the group staged the "Grey Tuesday" protests, a online action for copyright reform that drew 100,000 participants.

Hey, I live in Utah, and I've never voted for Hatch. The problem in Utah is that a majority of the laws created here are "influenced" by the LDS Church. Yes, church and state should be seperate, but people of Utah don't understand this. The mormons always vote republican, and Orrin Hatch always runs as a republican, so they blindly vote for him like sheep. We need someone here to spread anti-Orrin Hatch propaganda in 2006, that's the only way your going to be able to get him out.

- Quote: -
"When you give entertainment giants the right to sue tech companies, you strangle scores of beneficial technologies in their infancy," said Downhill Batttle's Nick Nassar, "The tech sector doesn't want that to happen, and the public interest advocates don't want it to happen."

Actually, Nick, you don't merely strangle beneficial technologies in their infancy by this destructive course; what it amounts to is nothing less than the equivalent of an abortion, when that beneficial technology is but a mere fetus.

If this isn't proof that supporters of this backward, anti-technology monstrosity are rigid, radical ideologues who couldn't care less about the damage that this agenda is doing to this country, then what is?