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For geeks, it's a big misunderstanding

The senior senator from Utah is at it again. Republican Orrin Hatch made himself a stench in the nostrils of technophiles a couple of years ago, when he suggested that it might be nice if computers were designed to self-destruct if their users ever downloaded illegal music files. It was never clear whether Hatch was serious, but ever since that day he's been marked by the nation's geeks as an incipient menace.

Last week, the supposed threat burst into full view, as Hatch proposed the Inducing Infringement of Copyrights Act, legislation that seeks to outlaw file-swapping programs used by people around the world to deal in stolen music and movies. Outlawing plainly criminal activity seems a worthy use of a senator's time. But this bill, in the view of Hatch's critics, would pretty much end technological innovation in America. Indeed, they predict that Hatch's bill would ban digital music players, outlaw home videotaping, and force cats and dogs to sleep together. Well, never mind that last bit. But you get the idea. This bill is bad -- really bad. Or so its opponents say.

There's some cause for all of the hostility.

Hatch and a bipartisan band of cosponsors have touted the legislation with a greasy, disingenuous claim that it's about protecting America's children, and not the record industry's profits.

"Tragically, some corporations now seem to think that they can legally profit by inducing children to steal," Hatch said. "Some think they can legally lure children into breaking the law with false promises of free music." How dare they?

Hatch and his colleagues are riding to the rescue with a bill that would outlaw any product or service that "intentionally aids, abets, induces, counsels, or procures" a violation of copyright law. In other words, the kid who uses Grokster software to download pirated music isn't the only wrongdoer; so is the software company that helped him do it, and which profits by selling advertising that runs inside the software.

The bill is a response to a surprising federal court decision last year that makers of file-swapping software are not liable for the thefts committed by users of their products. Partly thanks to this ruling, the record industry is suing thousands of teenagers for stealing music, while the companies that get rich providing the burglar tools are unscathed.

There's something rotten there, and the Hatch bill seeks to tidy it up. But the bill's critics say it goes way too far. What constitutes an inducement to violate someone's copyright? Does a company break the law merely by making a product that lets people swipe someone's copyrighted material? If so, there are hundreds of everyday items that would have to be banned.

"There's nothing in this act that limits it to products primarily created for illegal purposes," said Fred von Lohmann, senior staff attorney for the Electronic Frontier Foundation, an Internet civil liberties group. "If this were to become law, I could easily envision a complaint filed against Apple Computer the very next day, claiming that the sale of iPods helps to induce copyright infringement."

After all, said von Lohmann, those iPod music players can store tens of thousands of songs -- far more than most people own. Could not a record company claim that this extra capacity is an inducement to steal additional music?

Sarah Deutsch, associate general counsel for Verizon Communications, is also appalled. Deutsch said the bill would void the 1984 Supreme Court "Betamax" decision, which protected Americans' right to own VCRs.

"Under this kind of case law, a whole host of high-tech companies, Internet service providers, and intermediate companies can be sued for inducing," she said. Verizon, she fears, could be sued because merely providing broadband Internet access might induce customers to download stolen music.

Worse yet, Deutsch added, the bill would stifle the development of technologies that could be used in illegal ways.

But if the Hatch bill is such a threat to technology, why has it garnered such avid support from the computer software industry? The Business Software Alliance, which represents some of the world's biggest software firms, backs the bill. Which is odd, because under the interpretation of the bill's critics, alliance members should be ferocious opponents.

Consider Microsoft Corp., which offers file-copying software in its Windows Media Player, included with every copy of Windows XP. If the critics are right about this bill, the recording industry could sue Microsoft, because letting people make digital copies of their CDs encourages music piracy. Plenty of other software companies make products that could get them sued, if this interpretation of the bill holds up. Yet the alliance backs Hatch.

The bill's enemies admit their confusion. When asked why the alliance did not share his fears, von Lohmann called it "a very good question, and one that puzzles me."

Maybe it's because critics of the Hatch bill have gotten it wrong. After all, the bill would require a showing that the technology intentionally induces a copyright violation. In Betamax, the court said that if there are substantial legitimate uses for a product, it can't be banned. For instance, the music software in Windows lets people make backup copies of the CDs they bought legally. Millions use it in just that way, so Windows is in the clear.

According to Hatch and one of his staffers, an intellectual property attorney who spoke on background, the bill is designed to complement Betamax, not overturn it.

"If this bill had been enacted into law in 1984, the Betamax law [case] would have come out the exact same way," the staffer said.

Critics also say that if the bill becomes law, any new technology that could crack copyrights would be snarled in endless litigation. But that already happens. Remember Betamax, or the first MP3 music players, or digital TV recorders? Even without the Hatch law, copyright holders tried to quash these technologies and failed, because these products have plenty of lawful uses.

But what are the substantial legitimate uses for Grokster or Morpheus or Kazaa? Virtually none. The file-swapping programs are used almost exclusively by thieves, who rob recording artists of billions every year. Shed no tears for them. Weep instead for poor Orrin -- not a bad fellow, but misunderstood.

Hiawatha Bray can be reached at bray@globe.com. 

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