Ernest Miller on What's Wrong with the Induce Act
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Koman: So, assume that this was passed. How debilitating a hit would it be to technological innovation?

Miller: It's hard to overestimate it, to be honest. It would be incredibly debilitating to investment and innovation across the board, to anything having to do with the Internet, anything having to do with computers and the ability to copy. First of all, there's no clear boundary as to what is legal and what is not. There's no bright line defense. As long as they can provide some evidence that a reasonable person could think some technology was intended to induce infringement, then the lawsuit has to go all the way to the jury. You can't get it dismissed very easily. That's very expensive.

There's no limitation on who can be sued. Not only can the company making the device be sued, but under the Induce Act they can sue the company that invested in the company, they can sue the company that provides parts and supplies to the company, they can sue business partners, they can sue the advertising agencies. If you come up with something that's a really wonderful, neat new product but Hollywood won't like it, who's going to do business with you, who's going to invest in you? It's going to be incredibly difficult to do business, and that's going to dry up investment to no end. It's scary how far-reaching this is.

Koman: Unless you cut a deal with Hollywood.

Miller: Yes. And, of course, that will be fine for some of the big guys like Microsoft who are happy to cripple their products and put in DRM and have the power to negotiate with Hollywood, but for startups? For instance, instant messaging. AOL didn't invent that. It was six guys in Israel. But it makes copying and sharing files very easy. Would ICQ have gotten off the ground with Induce Act around? Probably not.

Koman: In point of fact, every Internet technology by definition involves the storing and copying of files, some of which might be illicit.

Miller: Exactly. All of them have that capability, all of them have that potential. So unless you can negotiate with Hollywood beforehand and get their approval .... Here we have the MPAA and the NFL saying, we don't like TiVo-to-Go, because you can share it with ten different people -- even though you need a registered dongle for each of these different devices, which makes it really inconvenient. You know, they're ridiculous.

MPAA sued the ReplayTV out of existence, not because they won the court case, but because ReplayTV simply couldn't afford the legal bills. The legal bills would be enormously high here and anybody who did business with ReplayTV would be sued as well. So who would do business with them? They wouldn't be able to get parts. They wouldn't be able to get any investments.

Koman: Let's walk through some of the Hatch Hit List, where you've listed a number of technologies that will never get off the ground if Induce is passed. These are all sort of contenders to be the next iPod. Wi-Fi car stereos, to start.

Miller: This is a technology that is just coming out. People don't necessarily think they need it yet, but this is a really cool technology -- who wouldn't want to be able to download the latest MP3s, have them in your car in the morning, bring them with you to the office, without all the hassle of all this DRM and registration, which can make it difficult to do that. But this is also a technology that could obviously be used for copyright infringement. If you have a Wi-Fi car stereo that you can share with other cars, you can share between your home and the car, there are all kinds of crazy things that you'll be able to do with it, and so I imagine when the Induce Act passes, very quickly Hollywood will sue the manufacturers to put in all kinds of DRM to make sure that people can't make it easy to connect and to share. You'll have to register your Wi-Fi at home so it can talk to your car in the garage.

Koman: AM/FM transmitters.

Miller: I used that because we're talking about copyright infringement; we're not just talking about copying things, we're not just talking about distribution of things, we're talking about all of copyright law, which includes the rights to public performance, the rights to derivative works, and so we're not just talking about things on the Internet. We're talking about the right to sue over all sorts of devices that you wouldn't really think of. The web site that sells these things talks about using them for your block, for your entire dorm at your college. Well, you know, that's considered a public performance under copyright law. You can buy these things cheap; $70, $90, it's really cool, you learn all about electronics, it's a great project. But you know, if Hollywood sues, they have to put in DRM, all kinds of restrictions, the price will go up, they may not be able to sell them at all, they may just say, well, it's just not worth it anymore.

Koman: Arcade emulators. It's perfectly legal right now to emulate these old games, yes?

Miller: Absolutely. Everybody thinks they're very cool, but when they first came out where did people get the games to play on them? There were legal sources, but most people were getting them from illegal sources. But the very basic technology itself is legal, and its been very beneficial to people who care about video game culture. But clearly if the Induce Act had been around, arcade emulators clearly would have been illegal. And the fact that they've built up such a market for the free arcade emulators is what allowed the current market in ROMs. If they hadn't existed, nobody would have bought the ROMs, but now you can pay $3.00 and get a really cool game.

Koman: Online translators, such as Babelfish or Google's translation engine.

Miller: Absolutely. This is a good indication of how far the Induce Act stretches. It deals with derivative works, which is a copyright issue. Translations are the paradigmatic example of a derivative work. Translations were one of the main targets when they added derivative works to the copyright law, because originally translations weren't covered by copyright law, because they weren't copies. They're incredibly useful devices. It's very clear that under existing law they have substantial noninfringing uses. I mean I'm happy to have everybody read my work in Spanish, Italian, and what not. But clearly they're encouraging people to translate works that are copyrighted. Therefore, under the Induce Act they would be liable.

Koman: LEGO Mosaics. I guess LEGO sells you the bricks to recreate photographic images in LEGO form?

Miller: Yes, you can use LEGOs to make mosaics. They're really quite cool. And the LEGO Company will let you send them a picture and then they'll send you the specific bricks you need to make that picture in LEGO. Obviously, they'll let you send in any JPEG or GIF. How are they going to control whether you control the copyright on that or not? They even have a copyright warning, but this is aimed at kids. Who's going to read that copyright warning? And so one could say they're clearly encouraging people to violate copyright.

Koman: By copying a copyright image in LEGO form?

Miller: Exactly. That just shows the absurdity of how far this law reaches.

Koman: Something that's not absurd at all is VoiceOver IP.

Miller: No, that is a very, very scary thing. I think that's one of the scariest things out there, actually. If you think about it, there are so many wonderful uses of VOIP. We haven't even begun to think about what telephones will look like when everything is VOIP; there are so many wonderful things you're going to be able to do. Of course, one of the things you're going to be able to do is send files, audio files certainly, but people are going to come up with some really clever stuff. The problem is that a lot of it is going to permit people to infringe copyright. Do we really want Hollywood controlling what capabilities our phones have? Because ultimately, that's what the Induce Act would do. We already have enough trouble with the FBI trying to tell us how our phones have to work. Imagine if Hollywood got to do it.

Koman: The implications, then, are not just for cool consumer gadgets but for the entire future of telecommunications infrastructure.

Miller: Absolutely. If the Induce Act had been law when the Internet was starting, we wouldn't have open protocols like HTTP and TCP/IP. They'd be required to have some sort of copyright checkpoints. People wouldn't be able to run their own servers; you'd have to have a license to have a server. The only reason the Internet as we know it wouldn't be illegal is because it's so widely in use. The next versions are going to have that stuff built in, if the Induce Act happens.

Koman: Of course, the Internet was originally designed by the military to be a communications system resistant to nuclear attack, and it's those original design decisions that make copyright infringement so easy on today's net. Wouldn't the the Induce Act actually impinge on the military's ability to make their best technology decisions?

Miller: The military wouldn't be liable because of sovereign immunity. You couldn't sue the government if they built something.

Koman: Right, but there's a lot of private sector technology that the military relies on.

Miller: Absolutely, off-the-shelf stuff. I mean let's face it, a lot of stuff like IM that the military is using was developed and adapted from civilian applications.

Koman: I did an interview with Col. Michael Macedonia, the chief scientist for an Army simulation center called STRICOM, and everything they are doing is built on private sector or open source technology, from Linux clusters running on Intel boxes to head-mounted displays connected by Wi-Fi to NVIDIA graphics chips to virtual reality games. So there is a connection between what the private sector is free to develop and the military's ability to use cutting-edge technology.

Miller: That's good. I'm going to write a little story about that: "Induce Act Harms National Security."

Koman:What's this about The New York Times?

Miller: The Induce Act is extremely broadly worded. There are no real limitations on liability. If you read the Times article, it's actually very positive about this whole phenomenon; it romanticizes it, makes it seem very attractive. It basically tells you how to do it, it gives you the equipment they used, the legal implications, it's a how-to guide. So under the Induce Act, they could be sued. People who write reviews, reporters who write about ways to get around certain things, could very easily be sued.

Koman: The Business Software Association has now come out against the act; does it seem like the balance is shifting towards at least some rewrite?

Miller: Yes, definitely. If it were just the RIAA and the MPAA, I don't think it would get as far as it has so far. But what happened was that the BSA came out in support, which meant the lobbyists and supporters could say, "Look, tech companies are behind it." And so the bill got much further than it would have. When the BSA basically changed position and said, well, we support the purpose of the bill, but we think changes need to be made, and they're very significant changes, the BSA basically took the side of the Net Coalition and IEEE.

Koman: Do you think with changes it's possible to craft an acceptable law around the question of inducement?

Miller: Inducement is already illegal under the law. The question is just how you define inducement. This law wants to define it in new ways. It wants to ignore Sony Betamax. I think it might be worthwhile for us to put into the law a codification of the Sony Betamax decision. "Look, this is what constitutes secondary liability for copyright infringement, but if you have substantial noninfringing uses, you're protected." And make that legislative law, not just judge-made law. I think its possible to craft a law that will protect innovation, that will make it very clear what is acceptable for innovation and what is not. I think it's possible to craft a law that will protect innovation while still providing the ability to sue bad actors for copyright infringement. But the focus is on protecting innovation, not copyright.

Richard Koman is a freelancer writer and editor based in Sonoma County, California. He works on SiliconValleyWatcher, ZDNet blogs, and is a regular contributor to the O'Reilly Network.

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