The Irony of the Outcry against INDUCE

Recognizing the present futility in combating illegal P2P activity, a bi-partisan bill widely referred to as the “Induce Act” has been proposed in front of the Senate. This admittedly broad bill makes it illegal for anyone to “intentionally induce” the infringement of copyrighted works. There has been a widespread outcry that this bill will stunt and perhaps irreparably slow the production of new technology capable of noninfringing uses, and the argument goes that that is simply not fair.

The irony is that we have brought this proposed measure upon ourselves. As the well-respected Columbia School of Law Professor Tim Wu (a guest blogger on Lessig Blog) wrote in response to a comment on his blog entitled Grokster Wins,

Essentially, everyone already concedes that swapping copyrighted MP3s without permission is a violation of copyright law for the people who do it.

Obviously, not everyone who is up in arms about the possible ramifications of INDUCE is guilty of illegal P2P activity, and admittedly it is not fair to punish some for the activities of others. But this bill has arisen and will potentially punish innocent bystanders, not because of the actions of a few, but because of the actions of tens of millions. Were it not for our desire to act despite knowing of the illegality of our actions, and were it not for the companies like Grokster who have seized upon our desires and exerted a “willful blindness” to the actions that they have enabled, INDUCE would not exist.

While I am in no way advocating the acceptance of INDUCE, because I think the is too far-reaching, it is hard to blame the government for proposing new measures in order to crackdown on illegal file sharing. We have consistently ignored threats that they will prosecute sharers because we know the chances that they will get us are so ridiculously miniscule. We know that no government will jail an 18 year old high school kid or a 21 year old undergraduate student for sharing his Coldplay CD with others who want it over a P2P network. We have laughed in the face of the repercussions and now when we face consequences we do not like we should not be heard to cry unfair. I don’t blame technology companies and I don’t blame innocent P2P users, but should our objections honestly be heard?

Nobody is enraged over INDUCE because it makes sharing copyrighted works illegal. INDUCE did not do that and it did not need to do that. It is already widely known that sharing copyrighted works is against the law. People are outraged over INDUCE because of the breadth of its ramifications. It is hard to take serious any argument that because P2P sharing is socially acceptable it is ok. Our bluff has been called, the government is preparing to take serious action and now we must come to grips with reality. If we would all be honest with ourselves for one minute and consider why INDUCE has been proposed in the first place, we would see the obvious way to stop INDUCE’s potential peril before it is started: STOP SHARING.

While the intent of this post is not to argue for or against INDUCE it is interesting to note the arguments of both sides.
Marybeth Peters (attached is the Registry of Copyrights' lengthy memo in support of INDUCE)
Ernie Miller's Guide to INDUCE (a wealth of arguments for and against INDUCE)

Comments

[Reverend Joe]

"It is already widely known that sharing copyrighted works is against the law."

Ummmmmm, sorry, wrong again. Do you ever share a book you have purchased with a friend? Is this illegal? Do you believe it should be? How about sharing a TV show with your Grandma that you specifically taped to give to her? Is that also "against the law", on your planet?

How is filesharing philosophically any different from any of these activities? It is admittedly more convenient, but should it really be the job of law to criminalize on the basis of convenience? Should something that is convenient be illegal while an inconvenient way of doing the same thing, is legal? Even when no one who is arguing to make such convenience illegal can show any credible evidence that the convenient way of doing something has no real negative impact on their business or revenue stream?

Is it then your contention that the purpose of copyright law is not to, as it says in the Constitution, "Promote the Progress of Arts and Science", but, rather, to protect as some sort of inviolable right the ability of creators to completely prevent any use of their creation of which they do not approve, in perpetuity? Do you believe copyrights SHOULD be inviolable rights like physical property ownership rights (which are also not really inviolable, see below), to the exclusion of all other considerations? IOW, should those who own copyrights be allowed to pass ANY legislation necessary to protect against "pirate" copying, regardless of the reality of what harm is being done to them by the copying?

"It is hard to take serious any argument that because P2P sharing is socially acceptable it is ok."

Not for me, because, you see, I think we should use the Constitution as a guide for our laws, not the bleatings of the control-freak property-rights lobbies that have been dragged screaming to the money tree by the tech industry every time property rights have needed to change for the last 228 years.

It is important, to me, at least to consider that P2P is "socially acceptable", because that is an indicator of what "progress" is being done by it. How would you measure "Progress" of the arts, if not by who considered a thing that relates to the Arts to benefit them? Is it not "Progress" if it becomes easier to sample more kinds of Art, without any real financial penalty for the creators of that Art? Or do you believe "Progress" is defined by how well we are able to control and limit the dissemination of said "Arts"?

By your argument, "what is now law regarding property righs is what we should abide by and what should be enforced", we would have no airline industry, because when airplanes were invented, they "pirated" the airspace above people's land, which "rightfully" belonged the landowners below.

Thank the gods that be that no one listened to your then-compatriot, who no doubt advocated to the airplane fliers and owners to abjure their "SHARING" of the airspace above those tiny, early U.S. farms.

Thank the gods that be that no one listened to your then-compatriot at the time movie makers were "pirating" Edison's moving pictures technology, for, if they did, we would now have a completely-monopolized movie industry.

Thanks the gods that be that no one listened to your then-compatriot that moaned endlessly about the "wrongness" of radio broadcasters and listeners who infringed upon the "property rights" of composers and, for, if they did, we would now have no radio stations, and, I believe, no MTV or satellite or internet radio.

Obviously, I could go on and on with examples of industries that were created when people REFUSED to "STOP SHARING", but that would be belaboring the point.

Your admonition to "STOP SHARING" would also be easier to stomach if the people who are trying to buy this legislation were not enjoying record profits in a time when MORE filesharing is going on than at any time in history. (See BMI, MPAA results for last year and last quarter, respectively). I understand that they feel that the Internet WILL EVENTUALLY, NECESSARILY harm their business as bandwidth goes up, etc. etc. Fine. Come looking for draconian legislation when it ACTUALLY DOES, not now simply because YOU'RE convinced it SOMEDAY WILL, and you want to establish pre-emptive control.

There is no case that can logically be made against sharing -- except the simple-minded, "our current laws are against it".

By your logic, the advice to abolitionists in 1861, or MLK, Jr. in 1962, would be to sit down, shut up, and follow the law of the land, regardless of what is right, what is good, what is justified, or what provides the greatest good for the greatest number ....

[Tommy O'Reardon]

My post is really a much more simple and what I believe, a quite obvious observation regarding the proposal of INDUCE. In fact I injected several times that the post was in no way either in support of OR against the enactment of INDUCE. While many people obviously feel strongly against our government intervening in P2P sharing and believe that it actually hinders "progress" of the arts, are these people really suprised at what some members of our government have proposed: INDUCE? What I expressed, apparently not clear enough is that considering (a) the modern social acceptance of what govt (not necessarily the courts) has declared illegal, (b) modern attitudes towards current legal sanctions, and (c) the influence and pressure of the record industry, it is not a suprise that an INDUCE-like proposal has emerged. Think of it this way if you will, exceeding the speed limit is a crime according to our government whether right or wrong, if the police only stopped people who doubled the speed limit and only then gave them a nominal fine, people would continue to speed, laughing in the face of reprecussions. In that scenario it would not suprise me if the government increased sanctions in order to provide more of a deterrent effect towards an activity they have declared unlawful. More or less that is my reaction to INDUCE and the motivation behind my post, it is not as is implied by the comment in response, a thesis in support of its enactment.