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9.28.2004
More Induction
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The current version of the Induce Act is scheduled to be marked up by the Senate Judiciary Committee on Thursday. Unfortunately, there is still no meeting of the minds between the tech and content worlds on the language of the bill.
The intent is to attack the cynical purveyors of file-sharing that are up to their tails in copyright infringement, as described by Mary Beth Peters (Register of Copyrights) in congressional testimony earlier this summer.
Furthermore, the tech world agrees that creative property must be protected against appropriation. (It better agree: No one will buy tech toys unless vibrant content is available, and this will not happen unless the people who create this content can make money. Also, the tech world lives by its IP in the form of patents. Were I a content company, if the Induce Act fails I ould put some of my lawyers to work drafting the "Patent Sharing Act of 2005.")
However, once a law is on the books it becomes a weapon for opportunistic lawyers, and of course the common law creativity of judges lauded in recent blogs is not always exercised wisely. (As someone once noted, "The trouble with a call for new ideas is that most new ideas are bad ones.")
So the tech world remains skittish, dreaming up horrible hypotheticals under which the law might be deployed against the iPod, or even against the personal computer itself. It is egged on by the academicians and public-interest types who are really opposed to protecting creative products at all, and who have no interest in solving the problem.
The content people keep reassuring everyone that the intent of the law is limited, but so far no language has been found that satisfies everyone of this, and no one can guarantee against opportunistic law suits by unknown parties in the future, so the tech people are loath to take a chance.
Still, it seems like a solution should be possible. The key distinction is between the person who simply sells a product or service and who does not want to be and should not be responsible for the use made of it, and the person who actively fosters infringing uses. It is the difference between selling a copying machine or setting up a copying center and establishing a business that advertises "books pirated here." In the file-sharing context, it is the difference between selling software which customers can use to share files of any sort (infringing or not) and setting up a business that encourages a continuing stream of piracy.
The distinction is not without complications, but surely the interested industries agree on the desirable outcome and can come up with a combination of statutory language and legislative history that will achieve it.
The tech world needs this as much as do the content people. Perhaps not this week, but sooner or later the need to protect creative content will become imperative, and at that point the tech world better have a bill it likes, or it will most certainly get one that it does not.
posted by James DeLong : 9/28/2004 02:34:10 PM
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