EFF Demonstrates How To Use New Law Against Apple, iPod

T he 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 EFFis 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 EFFis 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 doesnit change the law; it just clarifies it. But theyire 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 devilis 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 Expertis 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 Expertis 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. Appleis "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 oneis customers. The Apple iPodis Storage Capacity Demonstrates Appleis Intent to Induce Infringement

12. The iPodis remarkable storage capacity also demonstrates Appleis 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 customersi 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 iPodis $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 EFFis Web site, and we encourage you to do so.