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About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

What Does "Copyfight" Mean?

Copyfight, the Solo Years: April 2002-March 2004

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In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Copyfight

« More on Barbie's battles... | Main | RIAA Wooing California District Attorneys with Free Drinks, CD give-aways »

June 29, 2004

Hiawatha Misunderstands Again

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Infamous technology writer Hiawatha Bray (he of the exaggerations and misunderstandings) suggests geeks are doing the same thing when it comes to the Induce Act:

Orrin Hatch [has] been marked by the nation's geeks as an incipient menace. ... [Hatch] seeks to outlaw file-swapping programs used by people around the world to deal in stolen music and movies. Outlawing plainly criminal activity seems a worthy use of a senator's time. ... [But critics] predict that Hatch's bill would ban digital music players, outlaw home videotaping, and force cats and dogs to sleep together. ...

The bill is a response to a surprising federal court decision last year that makers of file-swapping software are not liable for the thefts committed by users of their products. ... But the bill's critics say it goes way too far. ... But if the Hatch bill is such a threat to technology, why has it garnered such avid support from the computer software industry? The Business Software Alliance, which represents some of the world's biggest software firms, backs the bill. ...

Maybe it's because critics of the Hatch bill have gotten it wrong. ... According to Hatch and one of his staffers, an intellectual property attorney who spoke on background, the bill is designed to complement Betamax, not overturn it. "If this bill had been enacted into law in 1984, the Betamax law [case] would have come out the exact same way," the staffer said.

What Bray seems to miss is that the Court didn't declare Grokster legal because it felt like it. It found it legal because it passed the test in Betamax. Hatch could try to overturn that specific determination of fact, but instead he passed a broad new bill. The bill either overturns the Betamax test or it doesn't outlaw Grokster. He can't have it both ways.

Anyway, you don't need to go on Hatch's staffer's word -- the bill itself is pretty clear. Anyone who "intentionally aids, abets, induces, counsels, or procures" a violation of copyright law is out.

Did Sony intentionally aid or induce copyright infringement? Well, as the dissent noted in Betamax, "Sony's advertisements, at various times, have suggested that Betamax users 'record favorite shows' or 'build a library.' Sony's Betamax advertising has never contained warnings about copyright infringement".

Now maybe Sony didn't mention it because copyright infringement was the furthest thing from their mind. However, it's hard to think of a common-sense reading of the bill that would allow Sony thru but not Grokster. And certainly someone like Bray, who is so quick to note publishing file sharing software is "plainly criminal", wouldn't give Sony much benefit of the doubt. After all, their VCRs are "used by people around the world to deal in stolen" television shows. How much more evil can you get?

(And as for the comments about the Business Software Alliance, maybe it's because the BSA's mission is ensuring "[s]trong copyright protections", not protecting "the right to publish ... technology", that they support this bill.)

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