Ernest Miller is on a roll lately, especially on the topic of the INCUDE/IICA Act. I would be saying more about this dangerous bill, but Ernie is saying most of what needs to be said. James Grimmelmann at LawMeme made a nice index of Ernie’s INDUCE/IICA writings.

Ernie has instituted Hatch’s Hit List, a list of technologies that would appear to be banned by the IICA, as inducers of copyright infringement. (This is modeled on Fritz’s Hit List, a feature I introduced here in response to an earlier overreaching technology-regulation bill.)

Yesterday’s “Political Diary” at the Wall Street Journal’s online OpinionJournal had a nice little piece on Sen. Hatch’s IICA (a.k.a. INDUCE Act). (Access to subscribers only, unfortunately.)

The piece, written by David Robinson, notes that Sen. Hatch, who had previously urged vigorous action against music downloaders, even suggesting “destroying their machines,” has now changed his tune.

Now he’s returned to the issue, this time with a different message: Young downloaders are not crooks, but victims. They have been “tragically” manipulated, he explained on the floor of the Senate, by adults who “exploit the innocence of children.”

The IICA doesn’t seem to be the solution:

Mr. Hatch may have a point – software businesses like Grokster and others do seem to be engaged in trying to profit from their customers’ urge to commit piracy. But his solution seems likely to open a Pandora’s box of frivolous lawsuits, ranging far beyond music downloads. As much as we enjoy Mr. Hatch’s magic similes, “back to the drawing board” would be our advice.

Dan Gillmor, among others, bemoans the lack of effective lobbying by technology companies. Exhibit A is their weak and disorganized response to various bills, such as the Hatch INDUCE/IICA Act, that would give the movie and music industries veto power over the development of new technology. It’s true that large tech companies have been slow and clumsy in addressing these issues; but that’s not the whole story.

The other part of the story is that the interests of a few large tech companies don’t necessarily coincide with those of the technology industry as a whole, or of the users of technology. Giving the entertainment industry a veto over new technologies would have two main effects: it would slow the pace of technical innovation, and it would create barriers to entry in the tech markets. Incumbent companies may be perfectly happy to see slower innovation and higher barriers to entry, especially if the entertainment-industry veto contained some kind of grandfather clause, either implicit or explicit, that allowed incumbent products to stay in the market – as seems likely should such a veto be imposed.

Just to be clear, an entertainment-industry veto would surely hurt the tech incumbents. It’s just that it would hurt their upstart competitors more. So it’s not entirely surprising that the incumbents would have some mixed feelings about veto proposals, though it is disappointing that the incumbents aren’t standing up for the industry as a whole.

What can be done about this? I don’t see an easy answer. In Washington, it seems to be standard procedure to mistake the voices of a few incumbents for those of a whole industry. Certainly, the incumbents have no interest in contradicting that assumption. Our best hope is that the incumbents will see it in their own long-term interest to foster a fast-moving, highly competitive industry.

Fred von Lohmann at EFF Deep Links reports that Sen. Orrin Hatch is planning to introduce, possibly today, a bill to create a new form of indirect liability for copyright infringement. The full name of the bill is somewhat bizarre: the “Inducement Devolves into Unlawful Child Exploitation Act”.

Not being a lawyer, I can’t immediately say what impact this bill would have. But Fred von Lohmann, a very smart copyright lawyer, sees it as a threat to innovation, and Ernest Miller, who is also well versed in copyright law, uses me as an example of a person whose legitimate activities might be threatened by the bill. That’s definitely not the kind of thing I wanted to read over breakfast.

We’ll have to see how the Hatch bill is received. If it passes, it looks like computer security research may become even more of a legal minefield than it already is.

I just finished reading “The Creation of the Media,” by Paul Starr, a sociology professor here at Princeton. This is an important book and I recommend it highly.

Starr traces the history of communications and the media in the U.S., from the 1700s until 1940. The major theme of the book is that the unique features of U.S. media derive from political choices made in the early days of each technology. These choices, once made, can be very difficult to unmake later – witness the challenges now in reconsidering the use of the radio spectrum. After reading Starr’s book, there can be little doubt that the choices we make now will shape the development of the Internet for a very long time.

For a concise summary of the book, it’s hard to beat the review in Sunday’s New York Times, by James Fallows.

In his limited space, Fallows leaves out one pattern noted by Starr that carries obvious lessons for us. When U.S. policy was at its best, it refused to give the titans of one technology control over the next technology that came along. For example, the Post Office was not given control of the telegraph; Western Union did not control the telephone; and AT&T was locked out of radio. The lessons for us now, when the masters of old technologies, such as the movies and recorded music, want to control Internet technologies, should be obvious.