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Commentary: No Matter What You Call It, the Inducing Infringement of Copyright Act Spells Trouble

Putting the Hammer Down on Innovation
If the Betamax case had been decided the other way, the VCR would never have become a consumer device. No one (at least no one in the U.S.) would have invested time or money in streaming media or dozens of other advancements—including email, CD and DVD burners, large capacity disk drives, DSL connections, the iPod—that have myriad uses unrelated to copyright infringement because their potential "unlawful" use in infringement would have given Big Content the grounds to go after them in court. Even worse, under INDUCE, Big Content can actually go back and sue all the manufacturers and distributors of all the potentially infringing devices we already have. No one seriously thinks that anyone is going to sue Microsoft over Outlook (Microsoft is a member of the Business Software Alliance, which supports the bill), but if someone comes up with next-generation email software, they can count on getting in someone's crosshairs under INDUCE.

The Betamax case provided the legal foundation for the 9th Circuit to find recently that Grokster and Morpheus were not liable for contributory copyright infringement arising from the use of their network protocols for file sharing. Big Content can’t risk having the Supreme Court affirming that decision, so they have to change the ground rules before the case gets there.

The fundamental problem I have with P2P is that the creators don’t get paid for the distribution of their work, and I don’t really buy the arguments that this "free" dissemination encourages people to buy CDs, or that it builds a fan base, or that it promotes their live appearances. The hard numbers really don’t bear these contentions out. INDUCE, however, attacks the wrong part of the problem by attempting to stop technology in its tracks. As the VCR proved, the MPAA’s position in the Betamax case was shortsighted at best, and the current bill proves they and their allies haven’t learned anything in the intervening 20 years.

Rather than figure out how to get paid from the technology, Big Content is supporting INDUCE in order to stop the technology from coming to market. This is just stupid. INDUCE isn’t going to stop hardware and software developers outside the U.S. from working on new technology and bringing it to market. It is going to stop U.S. developers from participating in this growth, just as it will stop U.S. manufacturers, distributors, and retailers from achieving any share of the profits to be made, or employing the people who perform these functions, and no one else is going to be paid, either.

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