The US Senate has recently approved a bill called the Protection of Lawful Commerce in Arms Act. A copy of the act itself can be found here, with a summary from the BBC here. In a nutshell, the bill prohibits legal action that holds a gun manufacturer or distributor liable for the damages caused by a weapon they produced or sold.
Immediately, one is very tempted to compare this legislation with the recent decision made by the Supreme Court, which ruled on behalf of the media industry's claim that Grokster, a maker of peer-to-peer software (AKA "fileswapping technology") should be held liable in cases where its software is used to exchange copyrighted content. Summaries of the decision and the ensuing fallout can be found here and here.
So, software makers are liable if someone uses their software to exchange a copy of a recent pop-song. After all, this is damaging the economy. On the other hand, gun makers aren't liable if their weapons fire bullets that kill people. After all, it's the criminals who are at fault, not the gunmakers.
The cynic in me is bound to note that the apparent legal contradiction is swiftly resolved if you just rule in favour of the currently most powerful corporate lobby. It's also noticeable that action is being demanded of software makers because lawmakers suspect that it may be possible to detect and block copyrighted content. Trust me, lawmakers, some of us are spending late nights working on this, but to be honest, it may simply not be possible unless users cooperate with us fully. This is current research, it's not something we can just do. I would be happy if the gunmakers were held to the same standards - until they can make bullets that only harm bad guys and legal game animals, but which don't harm good guys and won't fire off-season unless in self-defence, then they shouldn't be allowed to sell guns, right?
However, taking a longer view, the gun lobby might well be doing the software industry a favour here. The ruling in the Grokster case was notably quiet on whether peer-to-peer technology should be allowed to prosper or be stamped out. Instead, the judges focussed on the intent of the software manufacturer, noting that much of Grokster's marketing and development had been directed towards the music-swapping market, without doing much if anything to discourage illegal use. For example (I quote):
Justice David Souter wrote: "We hold that one who distributes a device with the object of promoting its use to infringe copyright... is liable for the resulting acts of infringement by third parties."
So this would be like promoting a gun with the advertisement "Sick and tired of those protected species on your land? Hell, just shoot them!" Even if this was in the minds of a gun distributor, they would be scrupulously careful not to say any such thin, even after the current legislation.
Gun manufacturers may still be held liable in some instances, including the following:
(ii) an action brought against a seller for negligent entrustment or negligence per se;
(iii) an action in which a manufacturer or seller of a qualified product knowingly and willfully violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought;
It looks like both of these are potentially relevant to the software issue as well. Don't negligently put tools in the hands of the wrong people, and don't violate the law in the sale or marketing of products. It will take some years for these principles to play out in the software industry - we can probably do better than gunmakers in making sure our software will do some things and not others, but we are probably in a different situation in checking the backgrounds of people signing up to use our services. The abstraction of technology gives you a trade-off here, I think.
On a separate note, I'd like to quote recent research (OK, I do get an awful lot of my news from the BBC website) that demonstrates that people who do a lot of music downloading also spend about four and a half times as much on legal music than the average. Draw your own conclusions.
In the long term, it looks as though things are going to be good for the "good" software makers, i.e. those who don't just make good software, but those who make good software and are good people. If we do a good job of discouraging people from doing harm, it would be hard to claim legally that firing bullets is protected by the constitution but that firing off songs is destroying people's lives.
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