January 18, 2005 | By Jason Schultz

Induce -- California Style

Kevin Murray is fast becoming the Orrin Hatch of the California Senate. On the heels of criminalizing half the teenagers in the state for sharing music with their friends, Murray is training his crosshairs on the California technology industry.

The tech threat comes in the form of SB 96, Murray's own souped-up version of Hatch's controversial Induce Act. The bill, introduced in the Senate last week, would make a criminal of anyone who sells or distributes software that allows users to transmit files over a network, if the seller/distributor fails to exercise "reasonable care in preventing use of the software to commit an unlawful act" such as piracy, computer trespass, or dissemination of child pornography.

Goodbye innovation; hello regulation. "Reasonable care" could mean anything from the forced design and/or redesign of software to mandated filtering and digital rights management (DRM) -- even the forced installation of spyware to monitor user behavior. Moreover, SB 96 would effectively overrule the Betamax protections that the Supreme Court has provided technology companies for more than 20 years. That kind of seismic shift would destabilize some of California's most successful companies.

From the birth of the Xerox machine to the modern web server, every technology that enables people to copy or disseminate content has had the capacity to be used for some illegal activity. Under Murray's logic, we should have stopped the manufacture and sale of VCRs, dual tape decks, postal services, carbon paper, and any other service or device that could potentially be used in a crime.

We've never passed a law to do what SB 96 proposes, and for good reason: Not only is it unfair to hold vendors responsible for users' actions, the burden would kill innovation. That hasn't made sense in the past, and it doesn't make sense now.


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