A bill introduced in the Senate aimed at overturning an April 2003 ruling that said file-swapping services were legal to operate appears to be gathering popular support. If passed the bill would effectively outlaw P2P networks and could end up affecting various electronic appliances such as TiVOs and VCRs.
The Inducing Infringement of Copyrights Act, which was made public Wednesday, represents the latest legislative attempt by large copyright holders to address what they see as the growing threat of peer-to-peer networks rife with pirated music, movies and software. Violations of the IICA would be punished with civil fines and, in some circumstances, lengthy prison terms.
Foes of the IICA, including civil liberties groups and file-swapping network operators, are alarmed that the measure enjoys strong support from prominent politicians of both major parties. Its supporters include Patrick Leahy, D-Vt.; Senate Majority Leader Bill Frist, R-Tenn.; Minority Leader Tom Daschle, D-S.D.; Lindsey Graham, R-S.C.; and Barbara Boxer, D-Calif.
Mitch Bainwol, chairman of the Recording Industry Association of America, praised the IICA as a “narrowly focused but meaningful” proposal that “places the spotlight squarely on the bad actors who have hijacked a promising technology for illicit means and ignoble profits.” The Entertainment Software Association, which represents video game makers, called the IICA an “important and valuable tool to fight piracy.” The Business Software Alliance also announced its support.
It should come as no surprise that this legislation is from Sen. Orrin Hatch who has previously advocated that copyright owners should have the right to destroy the PCs of file swappers as a solution to piracy. Despite the claims of Mitch Bainwol, this new legislation is anything but narrowly focused.
Critics were assailing the measure even before it was introduced, saying that in addition to outlawing peer-to-peer networks, it could imperil products like ReplayTV and even the VCR. Jessica Litman, a professor at Wayne State University who specializes in copyright law, said the language was “worded so broadly” that it would put Web sites such as Tucows, which hosts peer-to-peer clients like the Morpheus software, at risk for “inducing” infringement.
If the IICA were to become law, “let’s say that you’re selling an MP3 player and it turns out that the MP3 player can be used to move copyrighted material around really easily,” Godwin said. “People start buying your MP3 player. Do you want a world where courts can say, ‘Hey buddy, you’re liable for copyright infringement?’”
Critics of the IICA have suggested that it also might have the effect of overturning the Supreme Court’s 1984 decision in the Sony v. Universal City Studios case, often referred to as the “Betamax” lawsuit. In that 5-4 opinion, the majority said VCRs were legal to sell, because they were “capable of substantial noninfringing uses.” But the majority stressed that Congress had the power to enact a law that would lead to a different outcome.
Patrick Leahy, D-Vt, tried to downplay the concerns raised by opponents to the bill with the kind of reassurances we hear all too often that turn out to be misleading at best, or false at worst.
Leahy, the top Democrat on the Senate Committee on the Judiciary, downplayed those concerns in a statement. “The makers of electronic equipment, the software vendors who sell e-mail and other programs, the Internet service providers who facilitate access to the Web—all of these entities have nothing to fear from this bill,” Leahy said. “So long as they do not conduct their businesses with the intention of inducing others to break the law—and I certainly have not heard from anyone who makes that claim—they should rest easy.”
Similar claims about a narrow focus that wouldn’t have unintended impacts were made about the DMCA legislation back when it was passed and yet we’ve seen lawsuit after lawsuit over the years where the DMCA was used as a hammer against people and organizations we were told would never have anything to fear from it. People like encryption researcher Edward Felten who was threatened with a lawsuit by the RIAA over a presentation on the vulnerabilities in several “watermarking” CD protection technologies. Or sites like FatWallet.com which received a DMCA subpoena from Wal-Mart over the advanced publication of “Black Friday advertisements,” a reference to the sales ads for the day after Thanksgiving. Wal-Mart later withdrew the subpoena after a law clinic at the University of California at Berkeley offered to defend FatWallet. Or how about Lexmark’s attempt to use the DMCA to stop Static Control Components from selling low-cost aftermarket ink and toner cartridges? Lexmark won a preliminary injunction in that case, but Static Control Components got some help from the U.S. Copyright Office which released an opinion stating Lexmark’s use of the DMCA was invalid. Hell, even garage door opener companies have gotten in on trying to use the DMCA against their competitors. I’m sure the legislators considered all these possible applications of the DMCA when they spoke so eloquently about it’s narrow and limited focus.
Given all of that, I think I’m justified in my skepticism of Patrick Leahy’s reassurances.