Senator Orrin Hatch has had a lot of bad ideas - and we're not just talking about writing songs with former Beach Boy Billy Hinsche. The part-time tunesmith's worst proposals play out on Capitol Hill, where the Utah lawmaker is known as Hollywood's best buddy. The latest example: the Induce Act, legislation that could criminalize any technology that facilitates copyright infringement - from iPods to email apps. In theory, Hatch says, only "bad guys" - mostly file-swapping services like Grokster - would be subject to lawsuits and prosecution. In reality, the law would harm the tech industry and leave software pirates unscathed. The act, headed for a vote this fall, is backed by leaders in both parties; handicappers say it will pass in some form. It's not too late to change course. As one of Hatch's ditties puts it, "The Answer's Not in Washington." Five reasons his proposed law needs to die:
1. It discourages innovation
For a guy who hates frivolous lawsuits, Hatch sure knows how to induce them. His bill would open the litigation floodgates, allowing copyright holders to sue anyone with "intent to induce infringement." The law is designed to outflank the Supreme Court's so-called Sony Betamax decision of 1984, which says that tech products can't be outlawed simply because they could be used to infringe copyright. Opponents say the Induce Act would open the makers of MP3 players and DVRs to lawsuits. But the bill's sweeping scope would have a far more pernicious effect, quashing innovative products before they ever get to market. The act would effectively give the content industry veto power over new technology.
2. It threatens email, browsers, even Google
Ostensibly aimed at file-sharing companies like Kazaa, Grokster, and Morpheus, the Induce Act fails to recognize the gray area between a standard-issue P2P app and a search engine like Google, which is built on a communal exchange of links. Just listen to what Hatch's former chief of staff, Kevin McGuinness, said when he testified against the bill this summer: Induce "purports to be a simple legislative fix to complex online problems. [But] email, instant messaging, search engines, Web browsers, and broadband are basically peer-to-peer platforms."
3. It scares former proponents
The Business Software Alliance - which represents industry powerhouses like Microsoft and Symantec - loses billions to piracy every year, so it made sense that BSA president Robert Holleyman originally supported the bill. But it turns out Holleyman didn't poll the members of his own trade group. When he did, the BSA did an about-face, asking senators for "clarifications" in the bill's language.
4. It ignores reality
Even if Big Media uses the Induce Act as a sledgehammer to bludgeon leading P2P platform Kazaa out of existence, file-swapping will continue almost unabated. P2P tracking firm BigChampagne says that an increasing number of file-swappers use open source software like eDonkey and BitTorrent. These noncommercial apps are written by teams of anonymous coders, then released into the ether to grow or shrivel according to demand. Attorney General John Ashcroft can raid all the small-time hubs he wants, but he's too late: More than 300 million people are already file-sharing.
5. It delays the inevitable
The most promising road out of this copyright holder's nightmare: a collective licensing agreement like the one used by broadcast radio. The Electronic Frontier Foundation says that tacking a user fee of only $5 a month onto ISP bills would net the content industry $3 billion annually in almost pure profit. Even label execs admit - off the record, of course - that they're preparing for this contingency. But that doesn't mean they won't do everything they can to fight it in public. Consider the Induce Act one more act of desperation.
Jeff Howe (jeffhowe@wiredmag.com) is a contributing editor at Wired.
credit: Elliot Haag
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