On the heels of Fritz Attaway's antagonistic comments about P2P the other week, there was an interesting Q&A in CNET last week with Mitch Glazier, head DC lobbyist for the RIAA. I found this exchange particularly illuminating:

There has been speculation that the original Induce Act could make Apple Computer liable for selling like the iPod. Could it?

No.

Why not?

The original Induce Act focused on the totality of the circumstances. There's no way that a company that produces great digital rights management for a licensed product is ever going to be shown to want to profit from piracy.

In other words, the RIAA intends to use INDUCE as leverage to pressure companies into incorporating DRM. If you incorporate "great digital rights management for a licensed product", they won't sue. Leave out the DRM, however, and well.. you enter the marketplace at your own risk.

Also, it appears that Mitch is confusing his Apple products. Apple's iTunes Music Store does put DRM on each of its songs, but the iPod can handle an unlimited number of DRM-free MP3 files without any restrictions. Apple could have designed the iPod to only handle DRM-protected content, but it didn't. Does the fact that it enforces DRM rules for some songs but not for others still mean it can't INDUCE?

The next section was also interesting, albeit a bit more personal:

The Electronic Frontier Foundation drafted a faux complaint that said the iPod could be at risk.

They forgot the word "intent." It's a key element. State of mind is the key element of the Induce Act. Overt acts that show state of mind for purposes of proof are key elements of the Induce Act. That said, we understand that in this atmosphere, corporations would like assurances that they're able to continue the legitimate activities that they're in the business of conducting.

Perhaps Mitch should take another look at the actual complaint we drafted. It has an entire section on intent, alleging that numerous Apple marketing and design choices demonstrate that they should have known the iPod would be used to infringe RIAA copyrights. No summary judgment there, Mitch. You'll have to try something else if you really want to Save the iPod.