Guy Kewney

It's fairly obvious from my photo, but I don't shave. And while I have no intention of reaching for the razor, I was astonished that the Afghan government has felt it appropriate to pass a law prohibiting shaving, and to punish blade-using with severe penalties.

I feel equally aghast at the actions of the US Senate in deciding to ban the creation of technology which 'induces' piracy.

To induce (says the creator of the Act) means to intentionally induce someone else to break the copyright laws: "Intent may be shown by acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor, including whether the activity relies on infringement for its commercial viability."

In the days of music tapes, it became standard to build two drives into tape players. One would be able to record while the other played. It was there to enable you to copy tapes. The question of whether the tape you were copying was one you were entitled to copy was up to you.

Under the Induce Act produced by Orrin Hatch, an American senator, if 'a reasonable person' decided that building this tape player was 'intentionally aiding, abetting, inducing or procuring' the breach of copyright, then the manufacturer of that device would be liable to punishment.

The thing is, of course, I don't live in America or Afghanistan. Laws passed in the Afghan theocracy concern me as someone who takes an interest in international affairs, and laws passed in America concern me equally.

But in the normal course of my life, I don't have to worry about whether I'm transgressing some California statute, nor do I fret about whether trimming my beard short might be regarded as shaving by 'a reasonable person' as defined in Afghan law.

So the other day, when I phoned an American supplier who had been suspected of swindling UK buyers, I recorded the conversation. UK laws allow me to do so in the course of journalistic investigation. There are some restrictions on recording calls from customers without warning them, but generally, you can record your own conversations.

My American friend confirmed the factual basis of the accusations made against him, and I asked him what response he would make when I printed the story. He said he "hadn't said that", so I told him I had an audio recording.

"That's illegal under California law," he screamed indignantly. "Perhaps that's one good reason why I don't live in California," I said, and he hung up.

Now, Arnold Schwarzenegger may be governor of California, but I still don't expect the Terminator to arrive and confiscate my recording.

Can we be similarly sure that if I write a program to unlock my mobile phone, or to transfer Region 1 DVD content onto a Region 2 disc, or to buy a device which could send a copy of a piece of copyright music to my dad, America will accept that this is a matter for the UK legislators?

If I copy all the stuff off my iPod onto my hard disk, using software written in Taiwan, can I be pretty sure American senators won't try to get economic sanctions against the author on the grounds that he's 'inducing' me to break copyright?

The fact is, of course, that technology changes. People listen to music on Ipods today, not on CDs. Inevitably, sales of CDs go down.

But looking back, when CDs came in, sales of vinyl went down and nobody thought it was right to create laws to protect this. Nobody should try to inhibit the mp3 trend just because it's harder to copy-protect them than it was to prevent CD duplication.

If you think I'm being unreasonable, just remember: when video cassette recorders first appeared, American movie makers sued Sony to prevent them from being made and sold.

The Supreme Court, in 1984, decided that this was stupid. It said there were "significant non-infringing uses" for the technology. By one vote: five judges thought it was fair to let Sony sell VCRs, four thought it wasn't.

The point is, it's insane to imagine that the US can pass laws prohibiting copyright breaches on the Internet unless, somehow, it thinks it can prevent them across the whole of the web. Not just in California, or Utah, where Orrin Hatch resides, or in Afghanistan, but everywhere.

And all based on a completely bogus understanding of how technology advances.

Hatch thinks that Sony versus Universal was the wrong decision and should be reversed. He said so. So if you want his definition of 'a reasonable person' then it's a person who thinks that simply owning a VCR is the same as being 'induced' to break copyright.

You don't want to know what he thinks a broadband connection and a PC could do in the mind of a 'reasonable person'. I just wish I had a comfortable feeling that he wasn't going to try to impose his version of 'reasonable' this side of the Atlantic.

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