In addition to serving as the chairman of the Senate Judiciary Committe, Senator Orrin Hatch is also an amateur songwriter. Unfortunately, he’s introduced legislation (ghostwritten by the Recording Industry of America) that is one bad song.
The Inducing Infringement of Copyrights Act of 2004, known as the Induce Act, would hold any individual or corporation liable for infringement that “intentionally aids, abets, induces or procures” copyrighted material for illegal use. Mitch Bainwol, chief executive of the Recording Industry Association of America, wrote in a letter to the Senate that “the need for the bill has never been clearer. This legislation is essential for the legitimate online entertainment services forced to compete on an unfair playing field.”
The Motion Picture Association of America argues that copyright-protected industries account for 5% of U.S. GDP and should be vigorously defended. “The Act will further protect this vital economic contributor by clarifying for the courts that those who actively encourage others to break the laws designed to protect copyrights should not escape liability for their actions,” the association says in a statement supporting the Induce Act.
Opponents of the legislation include more than 50 corporations – among them, Google, Verizon Communications, Sun Microsystems and Yahoo – along with consumer, academic and trade associations. They argue that the legislation would unfairly hold them accountable for others’ actions. “The sponsors want to go after a few bad apples but the language of the legislation captures virtually every technology and service company, including ISPs and broadband providers, in its net,” says Sarah Deutsch, associate general counsel of Verizon Communications. Under the proposed legislation, companies like Verizon could be liable for copyright infringement for merely providing Internet access to illegal file-sharers.
The Consumer Electronics Association leads the opposition. “Right now this is the biggest threat to technology in over 20 years. We just think it will open the floodgates to frivolous lawsuits, hamper investment and stifle innovation,” says Veronica O’Connell, senior director of government affairs at the Consumer Electronics Association in Washington D.C.
Look, I’m a believer in the notion of copyright protection. I’m also of the opinion that the distribution of copyrighted material over P2P networks constitutes infringement (there is a distinction to be made between the distribution of copyrighted material and the receipt of that material, but it is irrelevant for the present discussion). However, as numerous authors have documented, the history of the recording industry is replete with examples of how emerging technology forced changes in the status quo, and yet it seems as though the recording industry (and the film industry) is completely missing the boat – again.
Whether users of P2P networks are infringing or not, or whether the creators and owners of such networks are “aiding” in that process becomes less critical than realizing that consumers want their product available in digital form. With that in mind, the real focus should shift from trying to find as many deep pockets as possible for infringement claims to simply coming up with a workable system for compensation.
Nobody thinks that artists and creators shouldn’t be compensated for their efforts. And nobody really thinks that digital content should be truly free (pirates make bootleg DVDs for sale in order to make a profit, and even P2P networks strive to make money through advertisements, spyware, and the like). The question is how to go about establishing a workable compensation structure under the new paradigm of delivery and exchange (i.e., digital, networked, etc). Legislation like this is simply stupid, because it doesn’t deal with the actual problem. Instead, the various groups – from the content creators on one side to the technology developers on the other side – are going to have to hash out some sort of compromise that allows filesharing to exist and provides reasonable compensation for the distribution of copyrighted material. This is one song Congress should stop playing, and they should start moving to the beat of a different drummer.