[DMCA-Activists] INDUCE Act: Is Your Computer A Loaded Gun?

[Seth Johnson]

http://salon.com/tech/feature/2004/07/22/induce/index.html


Is Your Computer A Loaded Gun?

At a Senate hearing on Thursday, defenders of the Induce Act -- which would
ban technologies that encourage copyright infringement -- will try to
explain why their bill isn't the stupidest idea they've ever come up with.

By Siva Vaidhyanathan
July 22, 2004


The torrent of unauthorized file sharing through peer-to-peer Internet
services has generated a barrage of panic, overreaction and reckless
attempts to change the cultural and technological behavior of some 60
million Americans.

The most recent and most reckless comes from the chairman of the Senate
Judiciary Committee, Sen. Orrin Hatch of Utah, and the committee's ranking
Democrat, Sen. Patrick Leahy of Vermont. It's awkwardly named the Inducing
Infringement of Copyrights Act, or the Induce Act. It would subject to civil
penalties anyone who "intentionally aids, abets, induces or procures" a
copyright violation by a third person. In other words, the photocopier in
your office could be contraband, as could the computer on which I am typing
this column. 

The Senate Judiciary Committee will hold a hearing Thursday, July 22, on the
bill. Testifying will be representatives of the entertainment industries and
the consumer electronics producers.

The bill is so broadly conceived that it could undermine the U.S. Supreme
Court ruling in Sony Corp. vs. Universal City Studios, commonly called the
1984 "Betamax case." That 5-4 decision ensured that the videocassette
recorder would be legal and ultimately made the world safe for home
recording and archiving of all kinds.

More fundamentally, the bill reflects a serious misunderstanding of
peer-to-peer technology specifically and the effects of technology
generally. It is the worst kind of policy intervention: destined to cause
more trouble than it solves and certain to stifle technological innovation.
It will make lawyers richer while failing to help the copyright holders it
is supposed to save.

The bill is aimed at a handful of companies that provide interface software
for peer-to-peer file-sharing services such as Kazaa and Grokster. Millions
of people offer hundreds of millions of music files in the popular MP3
format over the Internet. These companies, which help people find the files
they seek, have found a legal safe haven because a federal court concluded
last year that they are designed in such a way that they cannot be
responsible for how their clients use the system.

In a previous case involving an early MP3 player, a federal court ruled that
playing technology itself can't be illegal under the standards the court set
in the Betamax case: The technology is capable of "substantial
non-infringing uses" and thus should be allowed.

While industry lobbyists swear they would go only after the proprietors of
peer-to-peer services, they don't have much credibility. After all, they
have already taken the makers of videorecorders and MP3 players to court.
Why wouldn't they do all they could to fix other technologies to behave as
they wish?

"Enabling technologies have nothing to worry about as long as they are not
inducing other people to violate the copyright law," David Green, a vice
president of the Motion Picture Association of America, told the Washington
Post. And Mitch Bainwol of the Recording Industry Association of America
told the New York Times that his organization would not go after what he
called "neutral technology" like the personal computer.

Here's the problem: No technology is neutral.

The idea of technological neutrality is most succinctly expressed by the
slogan "Guns don't kill people; people kill people." The slogan may be
simplistic, but the theory is pretty powerful. It influences many of our
debates about technology and policy, from guns to automobiles to encryption.

The problem with technological neutrality is that people create technologies
and people use technologies. And people are not neutral. They have cultures
and values and expectations.

Technologies reflect ideologies. They reflect the values embedded in them.
They alter the environment in which they operate. They enable people to
imagine using them in particular ways. There is nothing deterministic about
technologies. A gun in the first act need not go off in the third.

But technologies offer possibilities. And possibilities guide options. The
bumper-sticker version of this theory of technology goes something like "To
a man with a hammer everything looks like a nail." The man might not ever
slam the hammer. But he thinks about it.

The peer-to-peer software is but one necessary part of an elaborate system
that enables people to share millions of files. Kazaa does no copying. It's
just a search engine. The entire system of unauthorized distribution
implicates the personal computer (which, after all, is a very powerful copy
machine), the high-speed modem service, and the protocols that underpin the
Internet itself.

Each of these technologies contributes to the menu of potential uses that
such a system enables, and thus the "technological imagination" of users.
For the past four years, hundreds of millions of connected people around the
world have been able to say, "What if I could search for music like never
before?" or, "Imagine contributing to a vast library of both odd and obvious
cultural choices." It's not surprising that many of those empowered by these
technologies choose to use them.

All these technologies -- especially the personal computer -- are much more
powerful and customizable than any previous communication technologies. And
they are all designed to foster irresponsibility. That does not mean all
users are irresponsible, just that those who do not wish to be held
responsible for their expressions most likely will not be. Internet users
understand this intuitively. So they misbehave.

Because all the elements of the system are basically anarchistic,
irresponsible technologies, the only way to address this phenomenon
technologically is to do so systematically. That means re-engineering every
step in the process, every device in the flow.

If we don't want to radically alter the personal computer and the Internet
itself, there is not much the Senate or the entertainment industry can do
about file sharing. Users who are accustomed to this new technocultural
environment will simply find another way. They will migrate en masse to
other services like Gnutella, ICQ, FreeNet, and BitTorrent.

Recently the civil liberties group Electronic Frontier Foundation worked up
a mock complaint that might be issued if the Induce Act becomes law. The
complaint makes it clear that Apple would be liable for selling the popular
iPod music player.

Remember: When iPods are illegal, only criminals will have iPods.