My Delusional Dream

Pennsylvania’s senior senator, the moderate Arlen Specter, is on the
Senate Judiciary Committee. As
such, he can be a valuable ally in destroying this horrible bill. What
follows is a copy of the letter I sent him.

The Honorable Senator Arlen Specter
711 Hart Building
Washington, DC 20510

Dear Senator Specter:

On June 22nd, 2004, Senator Orrin Hatch introduced the “Inducing
Infringement of Copyright Act of 2004” (S. 2560) which has since been
sent to the Senate Judiciary Committee. This is a well
meaning bill that seeks to protect valid copyright holders from having
their hard work distributed without compensation on peer-to-peer
file-sharing networks. Unfortunately, it is also fatally flawed. As
a member of the Judiciary Committee, you have the power to help stop
this bill from becoming law.

The act seeks to amend the United States copyright code to make those who
intentionally induce others to commit copyright violations are held
liable for their actions. Which is fine, in concept. But it is
entirely too broad as implemented here. In the text of the bill “intentionally induces”
is said to mean intentionally aids, abets, induces, or procures. This
wording is far to vague for the bill to ever have any real impact
because too many devices fall into this category.

As some background, in the late 1990’s the RIAA sued Diamond Multimedia for
the production of the Diamond Rio MP3 player. Fortunately for
consumers, the RIAA lost the case and the we now see a wealth of new
opportunities for consumers to take their music with them and an
emerging new revenue stream for the RIAA in the form of online music
stores such as iTunes, Rhapsody, and the new Napster.

As another example, in the 1980’s the Universal vs Sony case about the
Betamax VCR went all the way to the Supreme Court. In this decision
it was found that although the device could be used for infringement,
and arguably was marketed to encourage infringement, it had
substantial non-infringing properties. A victory was made for
consumers and home taping was legalized. The sale of home videos has
become a multi-billion dollar industry for the movie studios, the same
people who brought the court case in the first place.

In his opening statements regarding the bill, Senator Hatch made references
to multiple peer-to-peer file-sharing services that allow people to
download copyrighted works without compensation. The problem with
this is that ALL of the examples are based outside the United States.
This law would do nothing to stop the developers of software such as
EarthStation 5 and Kazaa.

Unfortunately, with the vague wording of this bill, there will be
large amounts of collateral damage. One has to wonder, if this is
passed, will Apple, CNet Networks and Hitachi be sued for their roles
with the iPod portable music player? Apple manufactures the device,
CNet gave the device a very favorable review encouraging readers to
purchase the device, and Hitachi manufactures the ultra small hard
drives for the device, which have little use in other applications.
Taking this to the next extension, it appears that my computer may, in
fact, be illegal as it has a CD-RW drive built into it. Also, it
appears that my pencil may induce me to commit infringement by allowing
me to copy down lyrics to a catchy song I may hear.

The fact is, this bill will not work. In it’s current state is so
broad that the shadow of possible litigation will discourage
technological innovation in America and cause America to lag behind in
development of next generation technologies. The technology will
still be developed, but those jobs will be in some other country
that still has the concept of fair-use for copyrights. In addition,
this will not stop Americans from using peer-to-peer software, all
it’s doing is setting up a war on peer-to-peer software users that the
government cannot possibly win.

Senator Specter, I can say that I speak with authority on these issues
as this is what I study. I am a Ph.D. student in the Engineering and
Public Policy Program at Carnegie Mellon University in Pittsburgh.
Every day I read dozens of stories about how well meaning laws like
this have gone amok. We need to do something about fixing the mess
with copyright law in the digital domain, that is for sure, but this
assault on fair-use and innovation is not the way to go. If you, or
any of your staff members would wish to contact me about intelligent
alternatives that defend both consumers and copyright holders, I would
be more than happy to assist.

Sincerely,

Patrick Wagstrom