June 27, 2004

Crawford on the INDUCE Act: Not With a Sledgehammer, But a Stiletto

Prof. Susan Crawford, who was the first to post the text of the INDUCE Act (aka IICA), writes that (Overstatement and IICA):

There are reasonable people walking on this earth who will say that the IICA is not a big deal. Rather than jump down their throats, I'm going to suggest that we slow things down, have some hearings, and try to get to the bottom of what's going on.
Crawford's arguments are meant to be the reasonable, low-key responses to proponents of the Act. They may be that, but they conclusively show how overbroad the Act is:
Let's assume, for the sake of this argument, that both sides have good points. But there is a great deal of fear on the IT sector side, and there's no limiting language in the bill that focuses on "illegal file sharing."
Well, that's the problem, isn't it? There is no limiting language. What some say with a sledgehammer, Crawford says with a stiletto.

On the question of whether the INDUCE Act overrules Sony, Crawford notes:

Similarly, so the argument goes, the IICA's creation of a new kind of secondary liability, triggered 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," would leave judge-made theories of contributory liability in place -- but no one would ever use them again.
Indeed. Although I think people would still use Sony, just because you almost always bring every charge you can.

Crawford's conclusion?:

So where are we? We're worried enough to hold a hearing. We don't need to scream or claim that the other side is witless or evil. We just need to think this through.
Indeed we don't have to call the other side witless or evil. Even if they were, this is a very politic and reasonable argument to make. More hearings needed. Of course.

Spokespeople need to make these arguments. However, my cynical self believes that the drafters of this law know full well what they were doing. The Business Software Alliance pays good money for their lawyers; they best not be witless. Neither are they evil; they're simply self-interested. In dealing with public policy issues, such as this one, we call this behaviour "rent-seeking." Rent-seeking isn't necessarily evil, but we don't generally like it. I'm going to call "rent-seeking" when I see it.

Posted by Ernest at 6:32 PM
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