June 28, 2004

A Balanced View of the INSANE Act Proposal

The new INSANE (Intentionally Stopping Advances of the Nation's Economy) Act proposed by Senator Hatch is getting unfriendly reviews like "dumbf#&% nation-destroying" everywhere in sight. Apparently the name of the proposal has changed as well lately to something more neutral.

Since this impresses me as somewhat one-sided, I will try to offer some reasons why this proposal might be a good idea after all.

First of all, while it might be true that this legislation will help to make America a technological backwater, with iPods and the Internet being illegal under this legislation, depending on your perspective, that is actually a good thing. It helps Europe and Japan in the global competition with America to have strange American laws strangling research and development there, so from an international point of view, I can only say "go ahead".

Then again, probably Senator Hatch's intention is not shutting down the Internet completely. He even pretends that his legislation wouldn't overturn the Sony ruling of the American Supreme Court.

That doesn't matter, however. A law is a tool, like a P2P network or a gun. If the P2P network enables large-scale copyright infringement, and if the guns kill lots of law-abiding citizens and only very few criminals, those effects on reality should count when discussing those tools, not the intention of their creators.

The intention of this legislation seems to be to shut down some forms of P2P networks perceived as hotbeds of copyright violations.

Japan is doing this as well, without bothering to enact any new law, in the Winny case.

I think there can be a legitimate interest to make some tools illegal. For example, you can't buy any thermonuclear weapons of mass destruction at your friendly neighborhood store even in gun-crazy America. However, as I remarked when discussing the Winny case, you need to pay very close attention on the line between what exactly is legal and what not.

That attention seems to be lacking from the proposal. The intention is to hit Grokster. But exactly what in this proposal stops liability in the case of iPods, paper copy machines, or VHS video recorders?

If the proposal can come up with an answer to these questions, possibly requiring adding some language to restrict its application to Internet P2P software that is specifically designed to resist enforcement attempts by copyright holders, it might be better than the Japanese approach of just arresting creators and sort out later if it was actually illegal what they did. Sinking this proposal would not change any risk under existing rules of secondary liability for copyright infringement.

And anyway, it's not that big a deal. Even if development in the P2P area gets shut down in America, there are still some free countries around where research won't be stopped. The result of that research will flow back to the U.S. over the Internet, leaving the legislation without any measurable effect on the availability of P2P software there.

Posted by Karl-Friedrich Lenz at June 28, 2004 12:47 PM | TrackBack