US news -INDUCE Act

Some news from the US - where i am at the moment... the INDUCE act is 
the hottie, proposed by Sen. Orrin Hatch (he of the amazing 'And then 
can we blow up their computers?' p2p blooper)...

An open letter by James Tyre which could do with some UK support.

mC~

-------- Original Message -------



September 21, 2004

The Honorable Orrin G. Hatch			The Honorable Patrick J.
Leahy
Chairman						Ranking member
Senate Committee on the Judiciary	      Senate Committee on the
Judiciary
224 Dirksen Senate Office Building  	224 Dirksen Senate Office Building
Washington, DC 20510				Washington, DC  20510

BY FAX

RE: S.2560 

Dear Senators:

I previously submitted comments to your Judiciary Committee staff and to the
Copyright Office in connection with your consideration of S.2560, The
Inducing Infringement of Copyrights Act of 2004, and write again in that
regard.   

The new draft of S.2560 sent to you on September 10, 2004 by the Copyright
Office is an indirect assault on the Sony-Betamax doctrines as effective as
a direct hit.  

S.2560 is a sweeping, ground-breaking proposal with very significant
consequences should it prove to be mistaken - - a judgment which will come,
unfortunately, only in hindsight.  I urge the Committee to hold additional
hearings in order to receive the input, advice and counsel of affected
parties and more critically to provide time for sober consideration before
advancing such a dramatic change on the fabric of the American intellectual
property scheme.

There are additional voices to be heard and existing ones needing time to
digest the potential impact of this bill.

Content aggregators, such as the RIAA and MPAA companies and the companies
that make technology useful to the distribution of content such as
Microsoft, Intel, consumer electronics manufacturers, ISP's, etc...  are
fully engaged, right now in the marketplace, shaping together new rules for
their businesses accommodating the transformational impact of digital
replication, distribution and manipulation.  S.2560 is a part of that
dialogue.  

This bill began as a call for legislative intervention to stop "bad actors"
involved in so-called P2P software applications used to assist in millions
of allegedly unlawful, and certainly uncompensated, transfers of copyrighted
works. Quite obviously, S.2560 has moved on from its original intent into an
attempt on the part of content companies to force greater control over a
broader group of technologies, mostly as yet undeveloped, that impact public
distribution of copyrighted works in digital form.

The purpose of the copyright law in the United States (and admittedly not
elsewhere) is to enable two core constituencies - - authors and consumers -
- and not to enable advantages in battles among commercial enterprises.
Commerce protected by copyright laws occurs entirely as a derivative of
author's rights or the consumers' rights of access to copyrighted works.
The Congressional powers for copyright were established in the Constitution
to benefit authors and specifically not publishers even though some
publishers were Founding Fathers present at the Constitutional Convention.  

But, neither authors nor consumers are well represented in this debate over
S.2560.

Of course, the well funded and highly capable corporate players claim
representation and even protection of these "natural" parties in interests.
The claims are largely opportunistic.  Content companies support artists
because artists keep their supply chain in working order and technologists
support consumers simply to advance the attractiveness of their consumer
products.  (As shareholders no doubt in some of those companies, we wouldn't
want it to be any other way.)

Nonetheless, authors and consumers need strong, pure voices in this debate
if the copyright law, their law, is to be changed.  Your Committee needs to
reach out and hear those voices and here are just two examples why.

Who will stand up and say to Congress that this technology acts to enable
artists to distribute works outside of conventional channels and that their
interest in new modalities for distribution and new ways to reach their
audience need to be balanced against the acute protectionism demanded by
content owners?  Certainly ASCAP will not stand for this because half of its
membership, the music publishers, can only promote copyright maximalism. At
a critical time when artists need a collective voice before Congress, they
are not organized, appear only through surrogates and their silence may be
dreadfully mis-interpreted. Thus far, the point that the technology
endangered by S. 2560 enables self-publishing and intermediary-free
world-wide direct distribution is made only by technologists and only by
default.   

Who will stand up and say to Congress that consumers want nothing other than
maximum access to the greatest quantity of content at the lowest possible
price which would serve to expand the availability of knowledge and the
appreciation of the human condition?   The typical American family budget is
directly and increasingly impacted by the cost and availability of
communications technologies and entertainment products.  You know consumers
aren't in the room because if they were the noise would be deafening. No
consumer could possibly support the INDUCE Act as a solution to P2P
distribution. Consumers, once well informed, could opt for no other solution
than collective licensing.  
 
Remarkably, the proponents of S.2560 don't even need to argue against
collective licensing.  They can (and do) ignore it because, it would seem,
collective licensing isn't even before the Committee as an option.  The
Register of Copyrights made no mention of it whatsoever in her testimony
before your Committee even though it has been a tried and true solution in
the past.

Of course, collective licensing does nothing good for content aggregators
looking for the highest price and is of little help to technology companies
now privileged with a free ride.  For authors and consumers, however, it is
the preferred and obvious outcome.

Congress solved the problem of unlawful cable and satellite retransmission
of copyrighted works with collective licensing.  Congress solved over 40
years of free uses of music by jukeboxes with collective licensing.
Congress solved with compelled, openly available licensing, a pernicious
monopoly over piano rolls held by a single dominant company with the
collusion of music publishers.  That solution, the mechanical license, was
adjusted over time, again by Congress, to include modern sound recordings
and digital downloads.  Webcasting of digital soundrecordings is covered
under collective licenses required by law and enacted by Congress. 

For cable transmissions, for jukeboxes, for piano rolls, for webcasting, for
digital downloads Congress did not cede control over these technologies to
content owners as S.2560 would propose to do. Yet in each of these examples
the content owners have been able to shape healthy, vibrant markets in which
their rights are respected and their works are compensated. Tellingly, in
each instance, consumers were also treated with respect and benefited from
uninterrupted enjoyment of their access to copyrighted works without being
prosecuted by copyright holders. And, in each case authors ultimately
obtained a substantial increase in royalties.

S.2560 does the opposite of building on Congress' successful interventions
of the past - - many of which came from this Committee.  Each successive
draft of S.2560 builds upon a broad scale one-sided grant of control to
content owners over the design and implementation of digital distribution
technologies for the future.  

But no artist, no authors and certainly no consumer would ever want such a
result.  There are no "trickle-down" benefits to authors in permitting large
scale aggregators of copyrights to dictate the manner of technology to be
used for essential communication and distribution of our culture.  It is an
axiom that more communication, more channels of distribution give breath and
life to more expression.  Less - - well, it's just less and results in a
suffering for the world of ideas, an impoverished exchange of culture for
all and ultimately will threaten to produce a weaker democracy.

Allowing content owners to dictate and shape technology is a step back into
the pre-history of modern copyright when all content was controlled and
owned by the Crown and all printing presses were approved by the Crown's
agents or destroyed.  Imagine if early U.S. copyright law had given the
owners of agricultural texts the power to tell Benjamin Franklin whether or
not he could improve upon on the moveable type at his presses in
Philadelphia.

The Copyright Office went on record against the Sony-Betamax doctrines
before your Committee just a few weeks ago (and in advance of your
assignment to that Office to produce a consensus approach) offering a
constrained statement of the doctrines more narrow than any interpretation
ever applied in the federal courts.   Its position is as unfortunate as it
is near-sighted with regard to its general responsibility to authors and
consumers.

I can assure you as a copyright lawyer that the new draft sent to you by the
Copyright Office in effect and if applied eviscerate the Sony-Betamax
doctrines as they are now understood and used in practice.  The draft is
even sufficiently well crafted to permit the bill to include a direct
re-affirmation of the Sony-Betamax doctrines while nonetheless rendering
them completely irrelevant for the future.  It is not a trick or a nuanced
trap.   It is an open object of the exercise.

Precipitous action against these doctrines can upset a business-driven
symbiosis now successfully balancing powerful forces.   Accommodations are
reached daily in the marketplace between content owners and distribution
technologies while each risk billions of dollars a year in development,
manufacturing, marketing and sales expenses.  It is a symbiosis well built
on the compromises found by the Supreme Court 30 years ago in crafting the
Sony-Betamax doctrines.  This symbiosis earns everyone handsome returns,
benefits our society and expands the world-wide cultural influence of the
United States.

There is no exaggeration in saying that the principles of the Sony-Betamax
doctrines share responsibility for the most productive and explosive period
of technological development in the history of the world that produced the
most efficient, open and democratic channels of communication and delivery
ever made.  

Are these channels in need of some control and perhaps some regulation now
that the technology has matured and some of its benefits and harms are
self-evident?  

Of course.  

But when, and if, that control is imposed, it should be done directly and
openly after deliberate social debate.  Not, as with INDUCE, out of mere
expediency.  Not, as with INDUCE, by granting near veto power over new
technologies to a select group of commercially-driven companies controlling
copyrights in prosaic works. 

Not by overturning 30 years of proven law as applied just to stop some "bad
actors" temporarily and anomalously outside the reach of current law.  As a
legal matter it is relatively simple to draft a bill directed at stopping
only P2P applications managed and distributed for profit without providing
the slightest compensation to authors.  S.2560 could do this but it doesn't
stop at it.

Your staff worked hard on this bill.  You obviously look to have results.
With great respect, I urge you to apply just a little more process and
re-direct your effort to hearing the voices of consumers and authors as well
as to the consideration of the alternatives presented to your Committee in
past weeks.

Sincerely Yours,


(for the pho list post, you can read the CO proposal in one of James Tyre's
recent posting to the list) 


Joshua S. Wattles
joshs-yBeKhBN/[email protected]
 



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