It is time to tell your elected officials just what you think!

If some of these elected crooks have their way, they would make it illegal to copy anything onto an IPOD or any other mp3 player.

June 24, 2004

Will the Inducing Infringement Act Kill the iPod?

EFF Attorneys Play Devil's Advocates, Post Mock Inducement Complaint against Apple

San Francisco - With Senator Orrin Hatch (R-Utah) and his colleagues pushing hard to bring the Inducing Infringement of Copyright Act ("Induce Act") to the full Senate for a vote, the Electronic Frontier Foundation (EFF) is already dreading the loss of all technologies this legislation has the potential to destroy. Although Hatch wants the public to believe that the legislation will only hurt "the bad guys" in the P2P wars, EFF argues that the Act is so sweeping that "the good guys" will get taken down too. The Induce Act, which would make it illegal to "induce" people to infringe copyright, could potentially outlaw everything from CD burners to the iPod.

To dramatize how the Induce Act might harm innovators and consumers, EFF attorneys realized they would have to make the threat a reality by becoming devil's advocates. Today, EFF posted a mock complaint in a lawsuit that could be brought against Apple, accusing the corporation of selling its popular iPod music player to induce people to infringe copyright.

The complaint, which mimics the format of an actual complaint that record companies might draft, points out that "Apple advertises that its 40 GB iPod can hold 'up to 10,000 songs.' This amount of capacity far exceeds the total CD collection of the vast majority of Americans. This suggests that Apple knew and intended that iPod owners would be getting their music from elsewhere, including P2P networks." The complaint also named Toshiba as a defendant for manufacturing the hard drive used exclusively by Apple for its iPod and CNET Networks for writing a review of the iPod that instructs users on how to copy music files between computers.

Because the Induce Act defines "intent" as being "determined by a reasonable person taking into account all relevant facts," it's unlikely that a technology company like Apple would be able to easily dismiss any lawsuit brought against it. It would face the prospect of an expensive trial, with all the attendant legal fees and negative publicity. One such company, SonicBlue, recently fought against a group of copyright holders in court over its ReplayTV and spent close to $1,000,000 per month in legal fees alone. In essence, this means that copyright owners can use the "inducement" theory to inflict an arbitrarily large penalty on any tech company that builds a device they don't like. That's not a pleasant possibility for an innovator to face as he or she tries to launch a new product.

EFF hopes that its mock complaint, brought by a hypothetical "group of major recording labels" against Apple, will raise awareness about how the Induce Act will destroy incentives to innovate. "We knew we could draft a legal complaint against any number of the major computer or electronics manufacturers for the everyday devices we all know and love, like CD burners and MP3 players," said EFF Staff Attorney Jason Schultz. "We picked Apple as our mock target because one could argue it's 'reasonable to know' that having an iPod enhances the lure of using P2P to download music."

"We don't mean to single out Apple, Toshiba or CNET," said Cindy Cohn, EFF's legal director. "If the Induce Act passed, a similar lawsuit could easily be imagined against Hewlett-Packard for selling PCs equipped with CD burners or against cell phone manufacturers who allow users to swap ringtones."

EFF Action Alert on Inducing Infringement Act

Contacts:

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org
+1 415 436-9333 x112

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org
+1 415 436-9333 x108

Posted at 02:27 PM

Have you faxed your Senator yet? The opposition to Senator Hatch's 'Induce' Act may have got off to a spluttering start, but is now hitting its stride. Hatch wants to introduce a new crime of "inducement" to infringe a copyrighted work in order to close down the P2P networks. The RIAA says it isn't designed to target manufacturers - but no one believes them.

The Consumers Union, publishers of Consumer Reports has produced a very articulate sample letter to your Senator, urging Congress debate the issue. A copy can be found here. A petition by Mac fans to "Save the iPod" has also produced a sample fax, and according to the website over 2,500 have been sent.


The first one is much better, because it suggests a path of action and also because it doesn't contain the phrase "the natural advance of technology". (The electric cattle prod, Microsoft's PowerPup and the Dark Ages are three things that spring to mind. But you can see what they mean).

Our piece stimulated some fascinating mail, with one from Chris Capel offering an explanation on why we're so useless at making a case.

"Two considerations come to mind," he writes.

"One, most people in America have no interest in politics and do not keep up with political activities. Even if half of these people are 'on the Internet', that doesn't mean they're any more likely to read weblogs. Thus, the only exposure, if any, that they get to these issue is a five second spot on the nightly news, or a paragraph in the daily paper."

"Two, the internet community, in general, is very grassroots. It has no large amounts of money behind it. If it's not in the interests of a company or intsitution somewhere to lobby for a particular cause, it doesn't matter how many bloggers or online tech writers support that cause - it's not going to get lobbied.