EFF Demonstrates How To Use New Law Against Apple, iPod
EFF Demonstrates How To Use New Law Against Apple, iPod
by , 8:00 AM EDT, June 25th, 2004
The Electronic Freedom Foundation (EFF) has a warning for everyone concerning a proposed law called the Inducing Infringements of Copyright Act (IICA), and the group has used Apple to demonstrate the threat that law represents. The law was introduced by Senator Orrin Hatch, and it seeks to holds those who "induce" others to infringe on copyrights just as responsible as those who actively perform copyright infringement.
According to the EFF, the law as proposed could be used by heavy handed copyright holders to sue just about anyone, including the makers of music players. The group also says that the law would have made VCRs and CD burners illegal, and that it accomplishes this by removing provisions in current copyright law that allow devices that have "substantial non-infringing uses." In other words, according to the EFF, the IICA could be used to legally squash any product or technology that has any infringing use, no matter the non-infringing uses that it may also have.
According to the EFF's interpretation, the IICA would substantially change Fair Use as we know it today. To demonstrate that, the EFF has put together a fake complaint against Apple using the provision of the IICA. From the EFF's Web site:
Senator Orrin Hatch and his colleagues on the Senate Judiciary Committee have introduced the Inducing Infringements of Copyright Act ("The Induce Act" [PDF, 25k]) this week. They want us to think the Act is no big deal, and that it targets only the bad guys while leaving the good guys alone. They say that it doesn't change the law; it just clarifies it. But they're wrong. And this legal complaint is the proof.
» Fake Complaint against Apple, Toshiba, and C-Net for Inducing Infringement of Copyrights [PDF, 290k]
Take a look. Scared yet? You should be. When the lawyers at EFF first sat down and asked "Whom could we sue under the Induce Act if we were an abusive copyright holder?" the answer was clear: pretty much everybody. Playing the devil's advocates, we knew we could draft a legal complaint against any number of the major computer or electronics manufacturers for selling everyday devices we all know and love -- CD burners, MP3 players, cell phones -- and that with that complaint, we could file a lawsuit that would survive any attempt to dismiss it before trial, costing the targeted company up to $1,000,000 per month in legal fees alone. The Induce Act is a nasty, brutish stick in the hands of the wrong plaintiff.
The following are the specific salient points in the fake complaint against Apple:
8. Before the introduction of portable digital music players, the value of the music files derived from infringing sources was limited by the fact that computer users generally had to be sitting at their computers in order to play and enjoy them. Defendant Apple knew this and hence made the calculated decision to intentionally induce and enhance the attractiveness of infringement by providing these infringers with a device to enhance the rewards of their illegal labors – the iPod.
9. As detailed further in Professor Expert's report, the iPod would have been much less attractive to consumers had it been incompatible with the music files downloaded from P2P networks and had it not allowed consumer-to-consumer transfers. Professor Expert's report also makes it clear that the iPod, in turn, enhanced the attractiveness of P2P networks by offering iPod owners expansive storage capability and lightning-fast data transfer, allowing them to listen to any number of infringing music files when away from the computer.
10. Surveys conducted by Professor Expert establish that a majority of iPod owners have used at least some significant portion of their iPods to store and play infringing music files, whether derived from P2P networks or promiscuous hand-to-hand copying. Upon information and belief, Apple was certainly aware of this fact from its own internal marketing research. Apple's "Rip, Mix, Burn" Campaign Demonstrates Its Intent To Induce Infringement
11. Apple has directly encouraged music piracy through its "Rip, Mix, and Burn" campaign used to sell both its Macintosh computers and iPod player. There can be no better evidence of inducing infringement than to literally spell out the steps to one's customers. The Apple iPod's Storage Capacity Demonstrates Apple's Intent to Induce Infringement
12. The iPod's remarkable storage capacity also demonstrates Apple's intent to induce, aid, and abet infringers. For example, Apple itself advertises that its 40 GB iPod can hold "up to 10,000 songs." This amount, over 500 albums, far exceeds the capacity necessary to hold the total CD collection owned by the vast majority of Americans. This suggests that Apple knew and intended that iPod owners would be getting their music from elsewhere, including P2P networks and promiscuous hand-to-hand copying.
13. Apple does sell authorized music that is specifically licensed for use with iTunes and its iPod from its iTunes music store. However, the number of songs sold comes nowhere close to the number of songs that Apple knows or reasonably should know are on its customers' iPods. To fill up a 40 GB iPod with authorized songs from the iTunes music store would cost the average user $9,999. It is inconceivable that any iPod user would spend almost $10,000 in order to fill a $499 iPod. In contrast, there is no question that the iPod's $499 price is made more palatable to buyers by the availability of the infringing no-cost music available on P2P networks or via friends.
14. Thus there can be no doubt that Apple materially relies on illegal infringement by its customers to support the commercial viability of its iPod and to maintain its high price in the marketplace.
You can find more information at the EFF's Web site, and we encourage you to do so.
The Mac Observer Spin:
Orrin Hatch is both a songwriter and a noted pro-copyright activist crusading against piracy. For instance, Mr. Hatch once suggested that the recording industry be allowed to destroy the computers of people caught stealing music. That's about as extreme as the IICA, and we thank the EFF for being vigilant, and bringing it to our attention.This is serious stuff, and not just because it's a potential threat to Apple. We encourage you to research this issue, read through the proposed law (it's actually quite short), study what the EFF has to say on the subject, and contact your Senator and Representative to voice your opinion. If you live n Utah, definitely contact Senator Hatch to let him know how you feel about this law.
As a songwriter, it would seem that Mr. Hatch feels personally threatened by piracy, but it's always possible that he will adopt a different viewpoint if he felt his gig in the Senate were threatened by his crusade against Fair Use and his efforts to give copyright holders ever more power.
In our (never humble) opinion, there must be a balance between copyright and Fair Use, but that balance has been skewed to favor copyright owners. The IICA will skew it even further.
Observer Comments
Fri Jun 25, 2004 9:04 am Subject: This is a joke, right?
Who do they think they're kidding? What 12 year old dreamed this up?
So, Apple intentionally WANTS people to illegally download files from P2P networks into their giant iPod hard drives...this was why it was created?
How about Apple wants to SELL consumers songs and make a profit, kind of the reason they are in business.
This article caters to the morons who watch and appear on Jerry Springer.
Fri Jun 25, 2004 9:30 am Subject: Yes, it is a joke
Read more carefully, Tiger.
This is not a real complaint, but just an illustration of what could happen if the Induce act passes. Its excessively broad and allows anti-technology, anti-fair use parties to sue nearly anyone who has even remotely a hand in "infringing" copyright.
Forget the fact that you MAY have 10000 legal songs... what they're saying is that under the proposed Induce act, because there is the possibility of piracy, and its possible that the iPod may encourage people to share their music, the iPod in its current incarnation can be declared illegal and Apple sued up to $150k per pirated song EVER put on an iPod.
I think I will write my senator about this.
Fri Jun 25, 2004 10:50 am Subject: What Is Not A Joke, Tiger... (hey tbone1??, wtf?)
Is that Orrin Hatch is amazingly focused in taking every single right you have as a consumer of PURCHASED goods away from you. Yes, the complaint is a "joke" in that it is not real; but if congress passes the law, then the complaint could happen in real life.
Write your Senator. Now.
Tbone, are you questioning the validity of the activism?
Fri Jun 25, 2004 10:54 am Subject: Didn't Apple get approval
Saying that it's not just a threat to Apple is putting it mildly. We'll have to do without photoduplicating machines (NB: not xeroxing machines--that's a trademark one wouldn't want to infringe 
). Gee, I can't wait to do mimeos again--the smell of the duplicating fluid gets you sooooo high! 
Fact : Piracy exists becuase of greed (large wealthy entertainment companys).
If CD's / DVD's / Software (some) were fairly priced, people wouldn't even bother downloading it... other than to try before buy (which should be an option)
Many enquiries have been passed over the Music industry, each time concluding price fixing, and prices being too high, but nothing changes.
I have no sypathy for the RIAA, or IICA, as it is a politicians answer to a practical supply / demand pricing problem.
Cheap CD's, and DVD's are the answer to all ob these problems.
Quotetbone1 wrote:
Political activists. Is there anything they don't know?
As summary dismissals go, that one's pretty lame. Specifically how is the EFF wrong about this issue?
This Induce Act looks like a blatant assault on Fair Use, any way you slice it, and our bought-and-paid-for Congress will most likely pass it unless they get enough flame letters about it.
Go to: http://hatch.senate.gov/index.cfm?FuseAction=PressReleases.Detail&PressRelease_id=1083 and read the argument.
Read the REAL BILL, what will get passed into law, not the propaganda Hatch has come up with to obsfucate the issue. This has *nothing* to do with children, and *everything* to do with Orrin Hatch's corporate masters, who forsee the future where you pay every time you hear, read or see something copywritten.
No matter *what* he says that this won't overturn 'betamax', it does. It's a full frontal assault on fair use.
There's hardly a product in the modern world that couldn't be threatened by this act. I could use a pencil to copy a novel. Or a word processor (Microsoft, are you listening?). I've used my cassette recorder to tape CDs, that -- and all my blank tapes from years past -- are now suspect.
What about people with photographic memories?
Speaking of, what about digital cameras? I could surely take a photo of a copyrighted piece or art.
This is so far out of touch with reality, I can't even see straight.
Oh, yes, we must protect our children, mustn't we? Funny how diabolical legislation sounds so much better when we phrase it in terms of "protecting children". Let's censor the media to protect children. Let's limit what adults can do to protect children. Let's stomp our civil rights into the group to protect children (and save us from terrorism!).
Yes, Hatch's speech sounds great if you take it at face value. But the concerns the EFF brings up are very, very real.
Why don't you write Orin Hatch? I would bet there is 99.9999% chance he would tell you there is no intention of having what this writer says about a hypothetical iPod situation happen.
Forget it.
Go ask him.
The law is and will be focused on illigal downloading of music and video, and to finally get to the offshore providers who facilitate illigal downloading.
This guy - probably who is an avid illigal downloader - is trying to get you worked up - - to save his a--.
QuoteAnonymous wrote:
The law is and will be focused on illigal downloading of music and video, and to finally get to the offshore providers who facilitate illigal downloading.
This guy - probably who is an avid illigal downloader - is trying to get you worked up - - to save his a--.
Guest, if you are referring to me as an "avid illegal downloader," you simply couldn't be more wrong. I have gone on record for years as being against piracy, and for condemning the entitlement attitude among so many pirates. Indeed, in the Spin on this very piece, I made that point.
If you were instead referring to the EFF, I can't vouch for the EFF staff that put their report together, but I personally would be surprised if their motive was to protect any piracy on their part.
As for what this law is "intended" to do, that's irrelevant once it goes on the books. The point the EFF is making is that it can be used to go after products like the iPod. If it can be used in that manner, it is likely that it will be used in that manner.
As an example, the Patriot Act was intended to be used against terrorists, but has already been used to go after casinos and others completely unrelated to terrorism. Laws will be used whenever and wherever someone can use them.
Even if this does pass into law, the first federal judge that hears a case on it will rule it unconstitutional. It's not the first time that old geezer Orin Hatch has introduced bogus legislation, I'm sure he'll pull another one out of his Depends some day. Everybody knows he does it. There's nothing to worry about.
Frankly, the situation is absurd. There are two ways that you can sell something under copyright law. You can sell the object (like buying a copy of RedHat Linux 9) or you can buy rights to it (like buying Mac OS X). In one case, the provider is charging you for the packaging, media, etc (RedHat). In the other case, you are paying for the right to use what is contained in the media. Of course, the music industry wants it both ways. They want you to be buying a object (that way they have no responsibility to you at all), but they don't want you to own that object so that you can make copies for everyone you know.
I know that movies all have the licensing agreement show on screen before they play. Has anyone seen such a licensing agreement on a CD? If there is no agreement with the CD, one can LEGITIMATELY claim they they assumed that they were purchasing non-exclusive ownership rights to the content and therefore can license it to third parties (for profit) and make as many copies of it for other people as they want without it being illegal. And, without an agreement in there, if the music companies tried to claim that you were simply buying the media it was on, then making copies of it would be perfectly legal since you were only paying for the media and not a limited-license for the content.
Sat Jun 26, 2004 5:54 am Subject: EFF Demonstrates How To Use New Law Against Apple, iPod
So you can sue loudspeaker manufacturers, the makers of hearing aids, and house builders under this law. As they all make products that allow non copyright holders to hear music.
If you turn your hifi up loud enough for a neighbour to hear you are effectively brodcasting copyright material to someone who has not paid for it to enjoy. Should the builder have made your house soundproof, or the speaker manufacturer not made such powerful speakers?
Have these people induced you to break copyright law, I suspect only as much as the manufacturer of a VHS machine or Apple for producing the iPod.
Many years ago as a young teenager I bought an single "Please, Please Me" by the Beatles. At that time everything as far as I knew was entirely legal. This would have been soon after release. 1965?
Many years later, I have no idea where that single is. Maybe broken, scratched but certainly I once owned it. Therefor nearly 40 years later am I unable to download and play it whenever I want?
Strange.
I have sent Senator Hatch an email expressing my concern. This would be a very bad bill. It does not address the problem at all. It leaves open too much for interpretation. It would clog the courts with whimsical lawsuits.
Just look at the bills definition of "intentionally induces". It is a circular argument that does not define anything. I personally am sick of people not taking responsibility for their actions, in this case copyright infringement, and the governments continued failure to recognize a problem, define the problem and taking a logical approach to solving a problem. The problem is not "FAIR USE". The right of fair use guarantees us the ability to buy and use recording devices.
http://hatch.senate.gov/index.cfm?FuseAction=Offices.Contact
QuoteGuest wrote:
Many years later, I have no idea where that single is. Maybe broken, scratched but certainly I once owned it. Therefor nearly 40 years later am I unable to download and play it whenever I want?
You fail to understand. You did not own it, you merely purchased a license to play the media for your own enjoyment (which would include playing it for friends, as long as you were not doing so to make money). The song itself would have cost hundreds of thousands of dollars at the time.
The recording industry sells these personal licenses with respect to the specific medium (e.g., a 45, tape, CD) and is not supportive of the notion that you have the license in perpetuity, only a license for the life of the particular medium upon which you purchased the content. Personal copying bugs the bejeebers outta them, but as long as fair use persists, there is little they can do to prevent copies legitimately being made.
The for-profit (i.e., non-personal use) issue can be a difficult edge. It is not clear to me where the line is, but the recording industry wants to draw it as close to their side as possible. If I am visiting Bryan and I happen to hear a song by Drew's Rosebud that I like, I might say, "hey, I have that new Atheist Temple CD, let's do a trade" - this sort of impromptu quid-pro-quo compensation (I will make you a copy of this if you will make me a copy of that) is considered not-fair-use by the industry but, except for the implicit quid-pro-quo of file-sharing networks, is very difficult for them to catch and prevent. Attacks on 12-y/o mp3 traders are not intended as actual remediation but as examples to scare us into "shaping up".
What really needs to shape up is the industry itself, yet, this does not justify that the individual should go out and trample upon its rights. As bad as the commercialization of music is, the corporations still have notable control over IP laws, and that we might think the laws are not acceptable does not gives us the right to ignore them.
Sun Jun 27, 2004 2:19 pm Subject: Attacking consumer protection
Sometimes I think that congress deliberately passes screwed-up laws so that when the inevitable screwed-up lawsuit happens they can use it as an excuse to attack consumer protection and make it even harder for legitimate suits to get through.
Orrin Hatch is an extremist, and extremists invariably destroy whatever they seek to protect. But a lot of innocent people will be caught in the crossfire.
Wed Jun 30, 2004 5:36 pm Subject: Re: The LAW, DRM and Copyright
QuoteGuest wrote:
Fact : Piracy exists becuase of greed (large wealthy entertainment companys).
If CD's / DVD's / Software (some) were fairly priced, people wouldn't even bother downloading it... other than to try before buy (which should be an option)
CDs: online samples, in-store kiosks, plenty of try-before-you buy for most albums. DVDs: you could see the movie in the theater, you could rent it, you could watch a trailer. Software: most software has demos. In all cases you could read reviews and such. Try before you buy isn't really a good justification for illegal downloads. Neither is blaming the evil corporations. Which is certainly not to say that they aren't evil, heartless, money-hungry monsters, because they certainly ARE! But you don't just get to steal stuff cause you can't afford it. Get a better job if you want a higher quality of life.
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