Fred von Lohmann broke the news that song writing Senator Orrin Hatch plans to introduce the awkwardly-named INDUCE Act (“Inducement Devolves into Unlawful Child Exploitation Act of 2004”), which amend §501 of the Copyright Act to add inducement to copyright infringement as another ground for copyright infringement. von Lohmann:
Even a moment’s reflection should make the danger to innovators clear — you now have to worry not just about contributory and vicarious liability, but an entirely new form of liability for building tools that might be misused. It will be interesting to see whether the bill expressly precludes any Betamax-type defense
Susan Crawford: Here’s something to worry about:
‘Induce’ means intentionally aids, abets, counsels, or procures. So you can’t even hire a lawyer if you’re doing something risky.
This is amazing. Now we’re waaaaaay beyond contributory and vicarious theories of liability, which are court-created and pretty darn broad on their own. See Napster 9th Circuit, Aimster 7th Circuit. It’s not even clear what the limit to this is — “aids” could mean that even something that would have been fair use under the Sony Betamax decision is now an illegal inducement.
Under current copyright law, decentralized P2P networks like Gnutella or Kaaza, which have significant, non-infringing uses, do not themselves infringe upon copyrights. However, they might be considered to induce uploaders to infringe copyrights by making it so easy to copy files.
In News.com, Declan McCullagh writes: Antipiracy bill targets technology
forthcoming bill in the U.S. Senate would, if passed, dramatically reshape copyright law by prohibiting file-trading networks and some consumer electronics devices on the grounds that they could be used for unlawful purposes.
Inducement already exists in patent law. See 35 U.S.C. 271(b): “whoever actively induces infringement of a patent shall be liable as an infringer.” Of course, patent law provides for much stricter protection against infringement for a shorter time period than copyright law. Copyright law offers longer protection, but with limitations such as fair use. Copyright law may also have more significant First Amendment implications.
Ernest Miller: INDUCE Act is Free Speech Killer
It also seems to me that this statute as applied to speech is a content-based restriction, which means that it is subject to what is known as “strict scrutiny.” In order to pass the strict scrutiny standard, the law must be “narrowly tailored” to meet a “compelling government interest.” I’ll grant that preventing copyright infringement is a “compelling government interest” but I’ll be damned if the law is narrowly tailored to achieve it for a number of reasons. For example, much speech that induces infringement also induces fair use. You can’t really stop one without stopping the other.
