BSA sides with the copyfighters.

= ?

Senator Hatch. All he needs is a cape, red suit and pitchfork and he'd be set. It's as if he wants to eat the soul of anyone who makes a device that may be used for copyright infringement, even if the device is used for substantial non-infringing uses.

There is a new post at the Copyfight blog about Hatch and his illegitimate child known as the Induce Act. Apparently the anti-Induce team, composed of the technology and telecommunications industries, has received a new addition to its ranks in opposition of the RIAA. This new addition is the Business Software Alliance.

The BSA has written a letter to Hatch, explaining what is wrong with his little Act and suggests that a more narrow approach to expanding copyright liability would be better. The BSA writes:

We believe that to implement your goal that legitimate products and technologies not be threatened, it should be made clear that technology products that can be used for significant legitimate purposes – in the copyright vernacular, substantial non-infringing uses – are not subject to copyright infringement liability.

More broadly, we believe that the draft circulated this week would encourage litigation and ultimately require responsible companies to spend resources defending themselves, even when no illicit aims are present.

To address the goals of this legislation, we believe that a more narrowly tailored approach would be better; one that enables aggrieved parties to target entities that have illicit motives and business models. This would avoid three major problems with the current draft: first, the need for courts to make determinations of the subjective intent of a product designer or producer, instead of properly focusing on objective questions of causation and business models; second, the need for courts to examine the design, functions and capabilities of particular technologies; and third, the inability of courts to dismiss a case before parties have to engage in costly and disruptive discovery.

The BSA letter echos the sentiments of the letter sent to Hatch on September 17th, which was signed by a whole host of technology and telecommunications companies. That letter stated:

These companies and institutions could be found liable without regard to their knowledge, intent, or relationship to the infringer, simply for providing a product, service, facility or financing.

As a result, anyone involved in the development or operation of electronic, or even physical, communication, distribution, or dissemination technologies could be strictly liable when it unknowingly derives revenue that may be small in relation to its own provision of goods and services.

So what does the BSA's letter mean? Well, Jason Schultz put it best at EFF.org:

Technology and telecommunications companies and organizations uniformly oppose the current version of Induce and favor preserving Betamax. Hatch has emphasized over and over that he wants consensus on Induce. I would say that now he has it: Don't Induce; Save Betamax.

It really is amazing what kind of unity there is against the Induce Act. Can sooooo many companies really be all wrong about the Induce Act being too broad in scope? Even I, a lowly 2L, can see that this devilish piece of legislation needs to be reined in or legitimate companies would go under and quite honestly, the advent of new technology would be handicapped.

Look at the Apple iPod example. Some users of the iPod can use it to infringe. But Apple can continue making the iPod because current copyright law doesn't make Apple liable for copyright infringement in this type of situation. Under current copyright law, the acts of infringers cannot be used as an excuse to destroy the rights of legitimate users who want to use an extraordinary tool like the iPod, a tool that is capable of so many non-infringing uses.

But the Induce Act would make Apple liable for its iPod if someone, somewhere, used it to infringe. It doesn't matter if Apple didn't intend the iPod to be used to infringe, didn't know the iPod would be used to infringe, or didn't control the infringer - Apple would be liable. Does that make sense?!

Under the Induce Act, technological pieces like the iPod would never have been made. The advent of new technology would grind to a snail's pace because of the extra money and red-tape needed to ensure a liability free product. That's even if small companies that produce technologies with non-infringing uses can afford the costs that the Induce Act would bring with it. Furthermore, the product itself would be handicapped below its full potential in order to escape Induce Act liability.

This isn't right. The technology and telecommunications companies and organizations agree. The Induce Act isn't right.

Maybe Hatch wants us to return to a time before iPods, before VCRs, before technology. Maybe Hatch is skilled in the art of calligraphy and feels that his talent is being underused in today's technological world and he would like to bring about a renaissance of sorts. Maybe he really is the devil and just wants to make legitimate users of a legitimate product angry. Whatever Hatch's motives behind the Induce Act, one thing is for sure.

The Induce Act isn't right.

Comments

[Chris Brand]

But it would be great for Canada.

Thanks to the DMCA, we got plenty of encryption developers and researchers. Now, with Induce, we can get the rest of your technology industry.

[John Lotfi]

You Canadians are always joking aboot stuff, eh?

:-P