Proposed federal legislation threatens to clamp down on fair use of copyrighted material, turning developers' workaday explorations into felonies. What's going on here?

December 01, 2004
URL:http://www.drdobbs.com/tools/induce-us-not/184415240

As do most other designers, I keep my eyes open for websites with interesting or particularly functional designs. To find out how they're constructed, I often use Web Developer, a Mozilla Firefox extension written by Chris Pederick, to reverse-engineer the site. When installed, it becomes part of the Firefox browser and allows me to not only view and edit a site's HTML and CSS code, but also provides tools to allow me to experiment with the code by converting GETs to POSTs (and vice versa) and making disabled form fields writeable.

It's a handy tool, and it's most unfortunate that, if Utah Sen. Orrin Hatch (R) has his way, my use of Web Developer may put Chris Pederick in the Big House. Why? Because if I use Web Developer to reverse-engineer a copyrighted "MegaCorp website, MegaCorp could complain to the local U.S. Attorney that Chris Pederick "induced me to reverse-engineer its website's functionality, and in doing so, violate MegaCorp's copyright. The vehicle with which Sen. Hatch could make Pederick a potential felon is the "Inducing Infringement of Copyrights Act of 2004, a controversial bill that, as of this writing, is in its fifth rewrite. Along with the Digital Millennium Copyright Act (DMCA), about which I wrote last month, the so-called "Induce Act circumvents the fair use argument for copyrighted material by making it a federal offense to "intentionally induce someone to infringe upon the rights of a copyright holder—regardless of whether the end user of the technology is legally entitled to use it.

This legislation is the latest battle in a war between consumers and content owners over fair use of copyrighted materials. It's worth noting that artists and other creators of copyrighted works are often portrayed as victimized parties—a convenient PR fiction for the copyright holders.

How did we get here? Shortly after the first Sony VTR was introduced, it was the focal point of much litigation by the entertainment industry that ultimately became the Supreme Court's 1984 "Betamax decision, in which the Court decreed that the Sony VTR was "capable of substantial noninfringing use, and thereby provided an avenue for defense using the fair use clause of the copyright laws. Thus, the Betamax case created an objective rule by which the courts could determine whether copyright infringement occurred. Matters remained somewhat stable until the Internet and peer-to-peer (P2P) file sharing made it trivially easy for the general public to share audio and video recordings. The entertainment industry retaliated with the DMCA.

The DCMA has shifted the balance of power to the copyright holders, and also made them the copyright cops. The Induce Act goes further, by creating a subjective test of which Rep. Rick Boucher (D-VA), writing on Stanford law professor Lawrence Lessig's website (http://lessig.org), says, "The effect on device manufacturers would appear to be self-evident: They could not bring new multipurpose devices (including software) to market without facing the threat of crippling litigation. They would either have to withhold from the market useful new technology or agree in advance to restrictions on the functionality of the equipment, perhaps even agreeing to specific technical mandates sought by content owners.

Taxing Innovators

In this manner, the content owners (for the most part, large media conglomerates) could make an end run around the fair use clause and prevent illegal copying—not by going after the individual who made the copy, but after those who "induced him to use the technology that made the copying possible. This, as IP lawyer Fred von Lohmann says, "will give entertainment industry lawyers leverage over big technology companies and a crushing hammer to wield against small ones. ("A Tax on Innovators, DeepLinks, http://eff.org.)

It isn't just the entertainment industry's pet poodles in Congress that are creating this monster. The Copyright Office wants to expand the Induce Act's scope beyond manufacturers, as a recent article by Sarah McBride in The Wall Street Journal explained, "[to] extend liability to those who distribute technology, devices and components. It has established guidelines for liability that are intended to gauge how much a product's commercial viability or sales rely upon copyright infringement.

"Copyright has never given an oligopoly of media companies a veto over new technologies, von Lohmann asserts. The Induce Act, he says, is a tax on innovation that will solve nothing. "Many great products would be hobbled and many others would never be built. Less flexible, less useful products means fewer sales, lower revenues.

Politics, it's often said, makes strange bedfellows, and thus it is with the Induce Act. Joining Sen. Hatch in supporting it is Sen. Hillary Rodham Clinton (D-NY); joining me in opposition are the Electronic Frontier Foundation and the American Conservative Union. Write me at [email protected].

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