During yesterday's Senate Judiciary Committee hearing on S. 2560, the Inducing Infringements of Copyright Act, Judiciary Chairman Orrin Hatch (R-UT) made a few comments about the concerns EFF raised about the Act in our mock complaint against Apple, Toshiba, and C-NET over the iPod. Sadly, Orrin seems to have missed a few key points.

Said Senator Hatch:

[There] is a mock complaint circulating that alleges that the Apple iPod violates S. 2560 because MP3 players would never have been commercially viable but for the preceding, massive wave of for-profit file sharing piracy that was defended by groups like the Electronic Frontier Foundation.

A real court would respond to that mock complaint in two words: Complaint dismissed. The case law states that no one can "induce" unlawful acts that have already occurred. Neither Apple nor the iPod violate S.2560 - even if portable MP3 players became commercially viable only because file-sharing piracy created MP3 collections too large to be explained by legal purchase.

First, we didn't allege that the iPod would be liable because of the file sharing that occurred before its launch, but, rather, the increased file sharing and hand-to-hand "CD swap" transfers it is now "inducing." How many more songs will be copied on Duke University's campus now that the university is supplying all incoming students with free iPods? Does Orrin really think students will fill every GB without downloading or copying a single unauthorized file?

Second, Hatch fails to point to any specific language in S. 2560 or any legal precedent to support his conclusions. As a courtroom lawyer, you can't get a judge to dismiss a case unless you can point to something in the law to support your argument. Hatch's comment is cold comfort without specific language in S. 2560 to back it up.

Third, in addition to the "commercial viability" argument, we also point out that Apple made explicit decisions to advertise the "Rip, Mix, Burn" potential of its products and to design the iPod to carry MP3 files -- the most common unprotected file format on file-sharing networks -- instead of limiting iPods to copy-protected formats like AAC or WMA. These facts alone would be enough to bring a case against the iPod and reach the trial stage before being dismissed.

P2P applications now come in more than 130 flavors, and it would be very difficult for Congress to craft a law capable of taking all of them down without harming companies like Apple in the cross-fire. If Hatch really wants to protect the iPod and other everyday devices from litigation threats, he should be helping the entertainment industry explore new business models that compensate artists and rightsholders by leveraging the power of P2P. Otherwise, we sacrifice innovation for legislation that will only drive file sharing further underground.