After negotiations on the bill’s language fell apart late last
week, the INDUCE Act fizzled out in committee. You may remember
from earlier newsletters that the INDUCE Act was a bill introduced by
Senator Orrin Hatch (R-UT) that would have made technology companies
that “induce” the public to illegally share movies or music
legally liable for these violations, a prohibition that would have effectively
banned P2P filesharing networks, but also put legitimate hardware and
software – such as iPods – at risk.
In early August, FMC sent a letter to the Senate Judiciary Committee
that expressed our concerns about the original draft of the INDUCE Act. Briefly
they were:
- Creators are stakeholders and should be at the table during these
policy deliberations.
- INDUCE assumes that all copyright owners do not want their works
to be shared on a P2P network when preliminary results from the FMC/Pew
Internet survey suggest that many artists believe P2P file-sharing
has helped their careers.
- INDUCE does not promote market-based solutions.
Read FMC’s letter to the Senate Judiciary Committee here
In late August, the Senate Judiciary Committee ordered the US Copyright
Office to draft a proposal written specifically enough to ensnare the “bad
actors” but not harm legitimate businesses, software and hardware. The
Copyright Office was diligent in its efforts to include many stakeholders
in this process, and FMC was one of the many groups invited to review
the draft and submit comments.
In our comments to the Copyright Office, FMC’s Walter McDonough
pointed out that any representations that "all" musicians are
united in support of INDUCE (or any similar legislation) was simply wrong
and that some artists have actually benefited from the exposure that
P2P filesharing can give to a musician.
An excerpt from Walter McDonough’s reply: ”Because the continued
consolidation of radio in the United States and the decline of traditional
record retail have deprived many independent recording artists of access to
the media and significant marketing opportunities, P2P, in some instances,
has been their only available method of communicating with the public. Certainly,
we are discussing a universe of copyright owners who have made the decision
to share their intellectual property without reservation. Although the
actions of unscrupulous business entities that sanction copyright infringement
are certainly deplorable, a blanket ban on P2P will deprive many copyright
owners, particularly independent artists, of exercising their exclusive rights
under section 106 to increase public awareness of their copyrights by using
this relatively new form of media distribution. This is the unintended
consequence that we hope that the Copyright Office and the Congress consider
in their deliberations - - - independent musicians who choose to use P2P should
not have their only access to a mass market denied to them.”
On September 10, the Copyright Office submitted recommended language
to amend Senator Hatch’s original bill to the Senate Judiciary
Committee. Despite the Copyright’s Office’s attempt
to craft something specific, technology companies criticized the proposed
language, claiming it suffered from the same defects as the original.
Copyright office pitches anti-P2P bill
The U.S.
Copyright Office has drafted a new
version of the Induce Act that it believes will ban networks like
Kazaa and Morpheus while not putting
hardware such as portable hard drives and MP3 players on the wrong
side of the law.
By Declan McCullagh, CNET, September 2, 2004
New Induce Act Proposal Is a Bad Idea
The proposed language targets
companies who make "public dissemination" technologies,
where those companies make money from, or attract users with, copyright
infringement.
By Fred von Lohmann, EFF, September 11, 2004
http://www.eff.org/news/archives/2004_09.php#001899
Copyright Proposal Induces Worry
For the first time ever, Rodger wrote
in an e-mail, it would make it possible for someone who has not infringed
to be liable for others’ infringement.
By Katie Dean, Wired.com, September
11, 2004
Senator Hatch demanded that representatives from the technology and
entertainment industries meet to negotiate a compromise. Despite
what was reported as hours of closed-door meetings, the technology companies
and recording industry reps could not come to a workable agreement, especially
on the tight time frame of this congressional session (which formally
ended Friday, October 8). This led the bill to stall in committee.
Senate Talks Fail on File-Sharing Software
Entertainment groups and consumer organizations were unable Thursday
to reach a compromise over a Senate proposal aimed at manufacturers of
file-sharing software commonly used to steal electronic copies of music,
movies and computer programs.
By Ted Bridis, Associated Press, October 7, 2004
Senate Shelves Induce Review
The Senate Judiciary Committee has postponed a final review of the
Induce Act after negotiations among the principal parties involved in crafting
the bill collapsed.
By Katie Dean, Wired, October 7, 2004
While some in the music and recording industry feel like the INDUCE
Act is a reasonable way for copyright owners to legally go after the
P2P services that facilitate filetrading, the FMC continues to have serious
reservations about the bill. As such, we are glad that the bill
has not moved ahead. This does not mean that we do not value copyrights
or think it’s okay for people to steal music – but rather
we think that the bill would not have provided a workable solution. It
could have chilled innovation, put legitimate hardware and software businesses
at risk, and it would have given the record companies the legal tools
to shut down file sharing systems that some musicians and artists actually
embrace, not to mention the fact that P2P services are capable of non-infringing uses.
Trying to legislate P2P filesharing is akin to a game of whack-a-mole
and the very bad actors will always come up with a way to shield themselves
from being subject to the enforcement of US Copyright law, so there’s
a question of whether any piece of legislation could accomplish what
Senator Hatch envisioned. FMC would like to see the market sort out the
balance between copyrights and emerging technologies before any legislation
that could hinder one or the other is enacted.