The INDUCE Act makes it a crime to induce copyright infringement in very broad terms. Most of the commentary on the Act and what technologies, creativity and innovation it threatens have focused on two types of infringement, those of the right of reproduction (the right to make copies) and the right of public distribution. We should remember, however, that there are other exclusive rights that can be infringed. The intersection of the INDUCE Act with these other exclusive rights will create an even broader swath of technology and acts that Hollywood will have an effective veto over. Let's consider one of these other rights and the technologies that might be affected.
According to 17 USC 106, the second exclusive right is the right "to prepare derivative works based upon the copyrighted work."
Hmmm, I would imagine that it will be much easier for Hollywood to go after websites that promote fan fiction. Computer game companies that do not like modding can go after websites that teach people how to mod computer games. Websites that encourage or promote Machinima are in deep trouble. Things like remix "construction sets" would probably also be under legal threat, even if they didn't contain any unauthorized material. Certain editing technologies like the ClearPlay DVD player, which allows parents to skip offensive portions of a DVD, would certainly be more threatened than they are now. See, Liberals, Conservatives Favor Different Kinds of Censorship. Third-party annotations? Well, those are right out. Heck, it might be that a parody would be illegal because it encourages the creation of derivative satires. Anything that encourages you to change, edit, or manipulate copyrighted content would likely be forced to incorporate DRM else the technology provider be sued.
Just imagine if SCO, the company that wants to stop open source, had INDUCE in its arsenal. Linux, which never had much of a process (until recently) to ensure that submitted code was clean of adverse copyrights, would be toast. And how long before SourceForge and O'Reilly get C&D letters?
Now Hollywood might not win all these potential lawsuits, assuming the defense can afford to go all the way through trial and risk having a jury look askance at what they're doing, but how heavy will the threat of litigation weigh on those who encourage creation?
UCLA law professor Eugene Volokh poses an interesting hypothetical this afternoon regarding the future of pornography (Guess who'll be in porn movies in a decade or two?):
Within about ten years, there will probably be software that can merge people's photographs and voices with movies that depict someone else. ... But, practically, the most common use of this would probably be for pornography. Consumers would buy the program; get ordinary, nonpornographic photographs of celebrities or of acquaintances; merge the photograph with a pornographic movie; and then be able to watch pornography that "stars" whomever it is they lust after. ... if I were the sort of person whom either acquaintances or strangers would like to merge into a porn movie -- even one they'd only watch by themselves -- I wouldn't be at all pleased by this technology. Even if they watch the movie in the privacy of their own homes, there'd still be something mighty icky about them watching pictures that show me having sex.
I've actually written something along the same lines back in 2002 on LawMeme (The Future of Virtual Kiddie Pr0n and Other Notes on Ashcroft v. Free Speech). I think my example of virtual child pornography is even more disturbing and icky than celebrity porn.
However, I have to disagree with Prof. Volokh. As someone who is (peripherally) involved in the Machinima community, I believe that although pornography will be quite prevalent so will many other legitimate uses. The tools available to the pornographer will be the tools available to the budding film student. I think we are going to see many more non-pornographic uses than not. Yes, people will make pornography, but they will also download comedic scripts and the images of their favorite comedians.
Heck, it may become a significant art form with those who make the script suggesting several actors (or synthespians) for a particular role, but leaving the final "casting" decisions up to the consumer. Why pay for actors if you can direct the script and have the consumers add in the actors that they want later?
In any case, there better be significant legitimate uses, otherwise you are going to have a lot of explaining to do when your spouse/significant other stumbles across the program on your converged media center.
Earlier today Slashdot linked to an article about whether distributed rendering for CGI movies, such as the hilarious Shrek 2, makes any sense (Rendering Shrek@Home?). The article that sparked the /. discussion was on Download Aborted!: Can I Help to Render Shrek 3?.
For a number of technical reasons, this is probably not a very viable idea (see the comments on /. and the original piece for the reasons why). However, on BoingBoing, Cory Doctorow has transformed the original concept into a much better one: SHREK@HOME: blue-sky proposal for the future of film production:
Ultimately, the largest expense in an Internet marketplace where anything is available always anywhere is marketing: the more choice, the more expensive influencing choice becomes.
So a social SHREK@HOME could engage its audience not just for their cycles, but for their evangelism. We see glimmers of that in some machinima projects, like Red v Blue or in Flash-shorts like Homestar Runner, a clubbish sense of ownership by its fans that turn them into relentless marketers of the net-art. [emphasis in original]
As they say, read the whole thing.
Cardozo Law Professor Susan Crawford gives me an excuse to talk about one of my favorite topics - machinima (Susan Crawford Blog :: Machinima). For those who are unaware, machinima is a media form in which creators use pre-existing 3D engines (typically game engines, such as Unreal) to create new video works. Basically, machinima is a cheap and easy way to make animated movies.
Apparently, Crawford is planning something called "Property Law: The Video Game" and had the whole machinima concept introduced to a bunch of law professors. "Property Law: The Video Game" actually is an intriguing concept. I don't know what Crawford has planned but it will be interesting to see, as we already have property law videogames out there, in a sense, such as EverQuest. Certainly there are both implicit and explicit (not to mention intriguing) notions of property law in games like There and Second Life. Interested in more examples? Check out Virtual Worlds Review. Property Law: The Video Game is worth keeping an eye on, I think.
Back to machinima, however. Honestly, I'm not quite sure how useful this video form will be in law schools. Law is primarily and will, hopefully, remain textual for quite some time. Who wants to watch a video of a document? Sure, you could make machinima reenactments of accidents or crime scenes, but that is fairly trivial. Although ... I do think back to the final exam for one of my torts classes and remember the horrible accident involving Macy's Parade Balloons that was the hypothetical to be analyzed. It would have been very cool to have a machinima version of the accident instead of the paragraphs. Of course, professors will seldom have the desire, time or resources to create such things (many barely have the time to write the traditional page-long hypothetical).
Thanks to the new Second Life license, discussed here (New IP Rules for Second Life), there has been a request by a director of machinima to "film" in the world of Second Life. Permission has, of course, been granted.
Cool.
