April 23, 2014

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Induce Act Hearing Webcast, Live Discussion

Today’s Senate hearing on the Induce Act will be webcast (link) at 2:00 PM Eastern time.

Anybody who is listening to the webcast is invited to discuss the hearing while it happens, in the comments section of this post. I’ll be listening, and watching the comments.

Comments

  1. Ed Felten says:

    Sen. Hatch’s introductory statement talked repeatedly about “our intent” in introducing the bill. Not much discussion of what the bill actually says.

  2. matt perkins says:

    Interesting how Hatch wants this to be a “technology-neutral” bill … one which doesn’t single out P2P. That’s a good point: what in this bill requires that the P2P “piracy rings” will be guilty of inducement? In fact, this bill doesn’t single out any one thing: it singles out everything.

    Why are legislators so reluctant to tell us exactly what’s forbidden? Why not spell it out? Instead, we have this “reasonable person” test, which means anything and nothing (depending on the judge).

  3. Ed Felten says:

    Sen. Leahy says the bill is a “clarification” of secondary liability that “does not undermine the Betamax decision”.

  4. Ernest Miller says:

    Peters says the bill attacks “specific” intent. No. If the copyright industries could prove “specific” intent you would not need this law which gets rid of “specific” intent.

  5. Ernest Miller says:

    Oh NO! Copyright Office is now in charge of determining whether the law can be abused … of course, they’ve already said they don’t think the law can be abused.

  6. Drew Vogel says:

    The Register of Copyright — I missed her name — complained that the “cramped” interpretation of the Betamax decision has left victims of copyright violation with no other course of action but to sue individual violators. Her arguement was that because this is inefficient, we need to clarify the meaning of the Betamax decision. Since when is the government supposed to ensure the effeciency of the media industry?

  7. matt perkins says:

    M. Peters says that this bill won’t displace Sony, since that case was based on different facts. Still, it was a secondary liability case, examined exactly as the Grokster case was: does the defendant have actual, constructive knowledge of precise acts of infringement?

    Why don’t they just pass a bill that says: “actual knowledge of direct infringement is no longer required for secondary liability?” That’s really what the bill is supposed to do.

  8. Ed Felten says:

    Marybeth Peters says, surprisingly, that distribution of copying technology, by itself, is not enough to be a violation. Seems to say that the main feature of P2P systems that would trigger liability is the automatic sharing of downloaded materials. Also argues that this bill might not be enough, and Congress might want to go farther later.

  9. Ernest Miller says:

    Peters “hopes” that after the law is passed the RIAA would stop lawsuits against individuals. Yeah … sure. RIAA will not stop suing users of Gnutella.

  10. Ed Felten says:

    Sen. Leahy didn’t know how to pronounce “Grokster”.

  11. Chris Rush Cohen says:

    They’re just being intellectually dishonest by stating that the bill will utilize a specific intent standard.

  12. Ed Felten says:

    Peters says that Grokster was wrongly decided. If this is true, how exactly would the bill help?

  13. Ed Felten says:

    Peters says that every technology is “capable of substantial non-infringing use”.

  14. Seth Finkelstein says:

    MP now talks about the problem of “capable” being possibly trivial standard.

  15. Seth Finkelstein says:

    OT: This is a bad simulation of IRC :-)

  16. Ed Felten says:

    True; there ought to be a better way to do this.

  17. Seth Finkelstein says:

    IRC channel?

  18. Ed Felten says:

    Shapiro says: cannot find one technology company that supports this bill. Ouch!

  19. Chris Rush Cohen says:

    At least 1700 tech companies as well as capital investors oppose the Induce Act.

  20. Chris Rush Cohen says:

    Finally, someone mentions subjective vs. objective standards. Shapiro: The subjective std of INDUCE invites litigation and creates to much uncertainty in business.

  21. matt perkins says:

    Shapiro’s testimony is scathing. Anyone got a link? This is must-reading, and I want to go over it in more detail …

  22. Ed Felten says:

    Shapiro plays the porn card. Surprising that it took this long for somebody to do so.

  23. Chris Rush Cohen says:

    Shapiro: Induce aids pornographers. Nice.

  24. Seth Finkelstein says:

    “Thank you Mr. Shapiro. I take it you don’t like this bill very much”. LOL :-)

  25. Ernest Miller says:

    I played the porn card long, long ago:
    http://www.corante.com/importance/archives/004836.html

  26. Chris Rush Cohen says:

    Lets see if they use the questionable new BSA piracy study stating that $29 billion of software piracy occurs per year (in former studies they had said $13 billion).

  27. Ed Felten says:

    Hatch has said over and over that BSA supports the bill. But Holleyman is not saying they do.

  28. Seth Finkelstein says:
  29. Chris Rush Cohen says:

    I liked Hollyman’s #2 – “use existing laws to attack infringers”

  30. Ernest Miller says:

    BSA is reaming the bill pretty good. I’ll have to look closer at the specifics, but the BSA has certainly shown that tech companies really don’t support the bill as is.

  31. Ed Felten says:

    Holleyman suggests five additions to the bill:
    (1) Products used for significant legitimate purposes are exempted. Clarify that Betamax standard is unaffected.
    (2) To meet intent standard, must have engaged in persistent, deliberate pattern of inducing infringement.
    (3) Knowledge of infringement does not by itself create inducement.
    (4) Advice and product support are not inducement.
    (5) Mechanism to deter frivolous suits.

  32. Wendy Seltzer says:

    Even BSA doesn’t come out with much of an endorsement. That’s significantly different from what Hatch has been claiming about them.

  33. Chris Rush Cohen says:

    I was under the impression that the BSA was hardcore for the INDUCE Act. This is strange.

  34. Ed Felten says:

    Goldberg mentions importance of protecting research. Woohoo!

  35. Wendy Seltzer says:
  36. Ernest Miller says:

    Anyone have a link to the IEEE’s statement?

  37. Ed Felten says:

    Goldberg says that he (or IEEE?) is suggesting an alternative bill. Has anybody seen it?

  38. Seth Finkelstein says:

    Greenberg, not Goldberg

    Good quote now (from someone else)

    “Instead of financing his invention, he will need to finance his legal defense”

  39. Chris Rush Cohen says:

    McGuiness – Induce kills Betamax. Creates uncertainty due to subjective intent standard. Money will go to lawsuits instead of innovation.

  40. Ed Felten says:

    Principles suggested by McGuinness:
    (1) Should codify Betamax.
    (2) Should target behavior, not platforms or technologies.
    (3) Bright line between lawful and unlawful conduct.
    (4) Ensure that product reviews and discussions of product capabilities are exempt.

  41. Chris Rush Cohen says:

    It seems like most of the speakers want the bill to codify Betamax and use the same intent standard as inducement in patent law. Which would basically not change the current copyright law much, if at all.

  42. Ed Felten says:

    Bainwol semi-jokingly paints Shapiro as a leftist.

  43. matt perkins says:

    This witness says that even credit card processors will be vulnerable. That sounded crazy to me, since a “reasonable person” would think that their only role is to crunch numbers and move money.

    But when you think about it, the risk seems frighteningly sound. After all, merchants apply to Visa/MC/Amex/Discover for merchant accounts, and somewhere on that application is probably a line or two stating the nature of the business. If that line is filled with anything involving “audio” or “video”, that might be enough to get them killed under the INDUCE Act.

    Damn. That hadn’t occurred to me before.

  44. Chris Rush Cohen says:

    The “richness” of pop music has been hurt?

  45. Ed Felten says:

    Let’s see if Bainwol finds time to say anything about what this bill says, instead of just talking about how evil P2P is.

  46. Chris Rush Cohen says:

    Bainwol – lets not talk about all this technical stuff and look at the “facts.”

    me – The RIAA doesn’t want to discuss the finer legal points, they just want INDUCE passed asap.

  47. Ernest Miller says:

    The RIAA tells us there is a problem. Gee, didn’t know that. Let’s talk about the bill, shall we?

    Bainwol says that it is easy to pierce the veil of P2P companies to see what they are really doing … then why do we need the law?

    Children and pornography. Was wondering if anyone was going to mention that.

    Technology is a parasite. I would say it is the other way. The recording industry is a parasite on technology (who gave the RIAA the CD switch windfall).

    Note that tech companies agree with bill’s intention. I agree with the intention of anyone who says they want to make the world a better place … doesn’t mean much.

  48. Chris Rush Cohen says:

    Is Bainwol guilty of inducing infringement because he ripped the warning sticker off his iPod? :)

  49. matt perkins says:

    “Apple doesn’t depend on infringement” for the iPod?? This is a historical moment! The RIAA president just admitted to ripping his “family’s entire CD collection” to an iPod, and suggests that his behavior is not copyright infringement!

    Rip/Mix/Burn? One might think that the RIAA’s official position has lightened up a bit.

  50. Chris Rush Cohen says:

    Bainwol – if the bill is written too broadly lets work with it.

    me – Wasn’t expecting that.

  51. Ernest Miller says:

    If the bill is too broad, we should still do it, because the RIAA is being harmed. Harm others because the RIAA is being hurt. Nice logic.

  52. Chris Rush Cohen says:

    “What we have here is a frontal attack on the technology industry”

  53. Wendy Seltzer says:

    Gary Shapiro: “Every new technology that’s come along has been opposed by the copyright industry; and every time, they’ve been wrong.”

  54. Seth Finkelstein says:

    Good point that penalty for infringement is far greater than theft.

    I’ve sometimes thought comparing the penalties to literal treason would be interesting.

  55. matt perkins says:

    Ha! Hatch mentioned his “blow up their computers” line! At least he seemed to take it in stride.

  56. Ernest Miller says:

    Gee, Mr. Bainwol, will the RIAA abuse this law?

    Bainwol: Gosh, no.

  57. Ernest Miller says:

    Let’s forget about the law, 97% of these actions are illegal. huh?

  58. Ernest Miller says:

    Gosh darn our hit-making is being affected.

  59. Chris Rush Cohen says:

    Bainwol – reads the bill and suggests it is tightly targeted. Says we are merely quibbling over definitions when there is serious damage going on to the RIAA and something must be done asap.

  60. Ed Felten says:

    Bainwol: *not* passing this bill would “eviscerate property rights”.

  61. Ernest Miller says:

    This law won’t actually stop the problem – finally.

  62. Ed Felten says:

    Greenberg: Even if RIAA wins all the suits, even if this bill is passed, you won’t stop P2P infringement.

  63. matt perkins says:

    “If Senator Hatch and I got along any better, we’d be going to Vermont. Or worse yet, Massachusetts.”

  64. Ernest Miller says:

    Well, looks like we will get a new law with all sorts of caveats and whatnot … boy is this going to be fun.

  65. Ernest Miller says:

    RIAA wants to get to “yes” – yes to what, exactly?

  66. Ed Felten says:

    Back to the drawing board.

  67. Chris Rush Cohen says:

    So they’ve all agreed to draft new legislation within a few weeks. Cool.

  68. Ed Felten says:

    Shapiro gives us more of the this-bill-won’t-help argument.

  69. Chris Rush Cohen says:

    Shapiro is the only one who says he doesn’t think there even needs to be any new legislation at all.

  70. Ernest Miller says:

    Dare we hope that the tech community will turn this introduced bill around to codify Betamax and other protections and piss off the RIAA?

  71. Ed Felten says:

    That seems to much to hope. But the possibility of codifying a strong Betamax defense may make the RIAA think twice about pushing too hard to pass a bill.

  72. Ed Felten says:

    Are any other Senators there, besides Hatch and Leahy?

  73. Chris Rush Cohen says:

    They haven’t shown any of the other co-sponsors, etc.

  74. Copyfight says:

    Listening to the Induce Act

    Edward Felten is hosting an impromptu discussion in the comments section of his weblog as readers tune in to the webcast of the Induce Act hearing. There are 59 comments, and counting. Bonus: Testimony by Marybeth Peters (PDF) of the…

  75. Ed Felten says:

    Hatch implies that spyware is a unique problem on P2P systems. (This is wrong, of course.)

  76. Ed Felten says:

    I would have expected any other committee members present to make opening statements. But nobody did, except Hatch and Leahy.

  77. Ernest Miller says:

    If spyware is the problem, then legislate against spyware. Perhaps that will stop the P2P problem, since they are only concerned about the commercial systems. ;-)

  78. Chris Rush Cohen says:

    They’re talking about how the P2P programs themselves come with spyware as part of the “drive by download” it seems.

  79. matt perkins says:

    A note on “bad actors:”

    Hatch gives virus propagation, spyware, and mislabeled porn as examples of harms spread by “bad actors.” I think he should focus on the file sharers who propagate those harms, not on the software tools which enable the propagation.

    But Hatch probably didn’t mean it that way.

  80. Chris Rush Cohen says:

    Hatch wants to “resolve this” during hte month of August. That would be pretty quick work.

  81. Ernest Miller says:

    Well, looks like we have the month of August to create an alternative.

  82. Ed Felten says:

    Hatch seems to think that the “file sharing problem” can be solved, and we’re only now finding the will to address it.

  83. Chris Rush Cohen says:

    Hatch – what’s happening to the artists is a “catastrophe” and I believe the 97% number is true.

  84. Seth Finkelstein says:

    I get the sense that Hatch thinks: Something Must Be Done

  85. Chris Rush Cohen says:

    Lots of talk about getting the “bad actors” and not the tech companies. That’s good.

  86. Seth Finkelstein says:

    Bingo! “Something has to be done here” – exact quote

  87. Seth Finkelstein says:

    Hatch: “We have to give a damn about copyright”

  88. Chris Rush Cohen says:

    Well, that went quite well I’d say.

  89. matt perkins says:

    “You better pitch in and help, because we’re gonna do it.”

    Legislation is going to happen, whether it’s good or not. So, let’s try to find the language which would, once and for all, outlaw P2P file sharing.

    My first suggestion: No person shall emply automatic systems which employ communications protocols for the purpose of sending or receiving information to or from a third party.

    Any harm in that?

  90. Ed Felten says:

    Thanks, everybody, for a good discussion.

  91. nonymous says:

    Totally off topic, but – isn’t the RIAA inducing infringement by allowing Imesh to run their network as usual for a couple more months after they settled their copyright infringement case?

  92. Chris Rush Cohen says:

    By the way, here’s a plug for a new site myself and Kevin at Tech Law Advisor put up this morning:

    The INDUCE ACT blog: “all Induce Act news, all the time” — http://techlawadvisor.com/induce/

    We plan to use the site to consolidate Induce Act info and provide new content re the Induce Act. We hope everyone will use the site to comment on recent developments as well.

    Thanks for setting up this discussion Ed (are we on a first name basis after this?).

  93. The Importance of... says:

    Felten’s INDUCE Act Hearings Blog Party

    Ed Felten invited everyone over to his blog, Freedom to Tinker, to participate in a contemporaneous discussion of the Senate Judiciary Committee hearing today (Protecting Innovation and Art while Preventing Piracy) on the Inducing Infringement of Copyr…

  94. Adriana de la Torriente says:

    Someone was looking for transcripts of the testimony. They are available on the Senate Judiciary site. http://judiciary.senate.gov/hearing.cfm?id=1276

  95. Adina Levin says:

    “We have to get a bill passed” is standard legislative rhetoric from bill sponsors. Doesn’t mean something will actually get through.

    If the tech industry proposes to codify betamax, while the copyright industry proposes more of the same “we’ll sue as we please”, it could take a long time to pass a bill.

  96. IEBlog says:

    re: I Love This Browser!

  97. julie m. says:

    Watching the hearing now. Thanks for the link Chris.

    Surprised no one has mentioned the case of RIAA vs Diamond Multimedia (Rio Player), another landmark case.

    Trying not to laugh at the initial opening statements, “international file sharing rings … the architects of this file sharing piracy …” you’d think they were talking about a crime syndicate!

    Hatches statement, “… automating distribution induces mass infringement that would otherwise not occur …” Completely untrue. What about IRC, Newgroups, darknets?

    Trying to make a few p2p applications responsible for the actions of millions isn’t going to stop filesharing.