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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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The Importance of...


August 24, 2004
'Don't Induce Act' - an Alternative to the INDUCE Act (IICA) and Other NewsEmail This EntryPrint This Entry
Posted by Ernest Miller

C|Net News's Declan McCullagh is reporting that a coalition of technology and public interest groups have come up with an alternative to the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act), which they are calling the "Don't Induce Act" (Group offers alternative to P2P bill). Groups behind the new alternative include the Consumer Electonics Assoc., Public Knowledge, Home Recording Rights Coalition, DigitalConsumer.org, Computers & Communications Industry Assoc., and the American Libray Assoc.. Interestingly, the CCIA doesn't actually endorse the alternative, but calls it a "good framework to approach these issues."

Single-page cover letter here: DONT Induce Act Cover Letter [PDF]:

In your letter to the Register of Copyrights, you expressed interest in a “technology-neutral law directed at a small set of bad actors while protecting our legitimate technology industries from frivolous litigation.” We have developed such an alternative that would address mass, indiscriminate infringing conduct while preserving the Supreme Court’s Betamax decision, the Magna Carta of the technology industry which is in no small measure responsible for our nation’s preeminence in technological innovation and entrepreneurship. We believe that the enclosed draft meets these goals and serves as the best platform for the discussion of the interests of all concerned parties.

Read the 5-page proposed legislation here: Discouraging Online Networked Trafficking Inducement Act of 2004 [PDF]. Read on for the text...

UPDATED 1325 PT

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Discouraging Online Networked Trafficking Inducement Act of 2004’.

SEC. 2. INDISCRIMINATE, MASS INFRINGING DISTRIBUTION OF COPYRIGHTED WORKS.

Section 501 of title, 17, United States Code, is amended by adding at the end the following:

(g)(1) Whoever actively distributes in commerce a computer program that is specifically designed for use by individuals to engage in the indiscriminate, mass infringing distribution to the public of copies or phonorecords of copyrighted works over digital networks, with the specific and actual intent to reap financial gain by encouraging such individuals to engage in such indiscriminate, mass infringing distribution, shall be liable as an infringer.
(2) For purposes of this subsection and without limiting such other evidence as may be relevant to demonstrating whether a person had the specific and actual intent necessary to violate paragraph (1), a person shall not be deemed to have such specific and actual intent unless--
(A) the predominant use of the computer program is the mass, indiscriminate infringing redistribution to the public of copies or phonorecords of copyrighted works;
(B) the commercial viability of the computer program depends on, and the predominant revenues derived by the distributor from the computer program are derived from, its use for such mass, indiscriminate infringing redistribution; and
(C) the person has undertaken conscious, recurring, persistent, and deliberate acts that encouraged another person to commit such mass, indiscriminate infringing redistribution or absent a legitimate purpose actively interfered with the ability of copyright owners to detect and prosecute such mass, indiscriminate infringing redistribution.
(3) Limitations on liability.
(A) A service provider as defined in 17 U.S.C. 512(k)(1)(B) whose service is used by a third party to distribute or that facilitates a third party’s distribution of a computer program shall not be liable under paragraph (1) for providing or operating such service.
(B) Actual or constructive knowledge of the use of a computer program is not sufficient to demonstrate the requisite specific intent under paragraph (1).
(C) A person who is not a distributor of a computer program that is specifically designed for use by individuals to engage in the indiscriminate, mass infringing distribution to the public of copies or phonorecords of copyrighted works over digital networks shall not be liable under paragraph (1) notwithstanding any contribution to or benefit from such distribution. By way of example and not limitation, providing
(i) venture capital, financial assistance, payment services, or financial services,
(ii) advertising, advertising services, or product reviews, or
(iii) information or support to users, including via manuals and user handbooks pertaining to a computer program, assistance or directions for using such a program through a company’s online help system or telephone help services, and library services
shall not be a basis for liability under paragraph (1).
(D) In or as part of a consumer electronics or information technology product or service, providing navigation or access functions, recording functions, storage capacity, electronic program search and indexing functions, or an electronic program guide shall not separately or in combination be a basis for liability under this paragraph.
(E) An email function does not provide mass, indiscriminate distribution of a work.
(4) In any action under paragraph (1), the facts supporting such allegation must be pleaded with particularity.
(5) Remedies for a violation of paragraph (1) shall be limited to
(A) an injunction against such intentional commercial activity; and
(B) actual damages for infringement of a work for which the defendant had specific and actual knowledge the work would be infringed.
SEC. 3. REMEDIES FOR BASELESS LAWSUITS.

In any civil action brought under section 501(g)

(a) The court shall allow recovery of full costs, including reasonable attorney's fees, by the prevailing party; and
(b) Monetary sanctions under Rule 11, Federal Rules of Civil Procedure, shall be trebled.
SEC. 4. CODIFICATION OF SUPREME COURT PRECEDENT.

Except as provided under section 501(g)(1), it shall not be a violation of the Copyright Act to manufacture or distribute a hardware or software product that is capable of commercially significant noninfringing use.

Frankly, my immediate reaction is that I am not so enamored of this proposal. It seems overly tailored to one particular use of technology. While I appreciate the narrowness of the drafting, I don't really like the special case it adds to copyright law. For example, why a specific exemption for email?

The remedy for baseless lawsuits seems good. I may add it to my version of an alternative INDUCE Act.

I'm not so sure about the codification of Supreme Court precedent. Why is only manufacture and distribution protected? Why only violations of the "Copyright Act," instead of "under this title" or similar language?

MPAA vice-president Fritz Attaway says the alternative is much too narrowly drawn, and the proponents are "not being honest here." Of course, the MPAA is scrupulously honest in all its claims.

Mitch Glazier of the RIAA is also critical but surprisingly positive about having an alternative:

"I don't think this as written is a reasonable proposal," he said. "I don't think that as written anyone could be found liable...But I'm glad that people are trying to draw the line between the good guys and the bad guys."
You know, why don't we plan on passing this alternative and if the RIAA or MPAA have any constructive suggestions, we could consider them.

Some companies and organizations, such as the EFF would prefer that no legislation be passed. It is a very reasonable position to hold. The only drawback is that Sen. Orrin Hatch (R-UT) has said that he wants to pass some legislation regardless whether it would be wise or not. He isn't being paid to not pass laws now is he?

Other alternatives to the INDUCE Act here:
Ernest Miller's Draft Substitute for the INDUCE Act (IICA) v2.0
Tim Wu's INDUCE Act (IICA) Alternative
Shredding the INDUCE Act (IICA) - CEA, IEEE-USA, NetCoalition (IEEE-USA's alternative language about the middle of the article)

UPDATE

Public Knowledge has issued a press release, which isn't online quite yet:

Gigi B. Sohn, president and co-founder of Public Knowledge, said she hopes the Senate Judiciary Committee will give serious consideration to a proposed alternative to the so-called “Induce” legislation being considered by the panel. “We still doubt the need for new legislation, but the draft legislation comes closest to giving the senators what they have said they want -- a law targeting those who ‘induce’ infringement,” Sohn said.

“We are pleased that so many other groups are with us on the need for an alternative approach,” Sohn said. The draft language, sent to the Committee today, focuses more tightly on those who engage in “indiscriminate, mass infringing” than does the existing legislation, S-2560. That bill, which was strongly criticized by most of the witnesses at a July 22 hearing, is sufficiently vague and overbroad that devices like the iPod might be judged to be illegal “inducement.”

Other INDUCE Act News

In other news, eWeek warns of dirty legislative tricks, such as slipping amendments into bills at the last minute (Beware of Stealth Clauses to Laws). Not only do we have to worry about the INDUCE Act's proponents sneaking the original bill through in the middle of the night, but we need to worry about other changes to the Copyright Act that might be added to any INDUCE Act that goes up for a vote.

Red Herring has an article on the effect the Grokster decision is having on investment markets (Sharing is good. The chilling effects of existing law are clear. Imagine what effect the INDUCE Act would have on private investment in innovation.

Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.


Category: INDUCE Act


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TRACKBACKS
TrackBack URL: http://www.corante.com/cgi-bin/mt/mt-pcorso.cgi/4270
Alt.InduceAct from Copyfight CNET reports that today marks the unveiling of the "Don't Induce Act" -- a proposal by SBC Communications, Verizon Communications, the Consumer Electronics Association (CEA) and others to narrow the proposed Induce Act to reduce the threat to the techn... [Read More]

Tracked on August 24, 2004 11:22 PM

On Point from The Industry Standard: Guest Blog: Denise Howell Never has such bad proposed legislation been the subject of such good daily coverage. I'm speaking, of course, of the Inducing Infringement of Copyright Act. See for yourself at the INDUCE Act blawg (now a group effort, I see), and... [Read More]

Tracked on August 25, 2004 05:45 AM

Too Many Great Posts from A Copyfighter's Musings Lots of news. [Read More]

Tracked on August 25, 2004 07:22 PM

(Don't) INDUCE Act (IICA) Round-up and Other News from The Importance of... The Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) is getting a lot of attention recently and there are many stories of interest. There are a passel of stories discussing the Don't Induce Act. The Register notes the narrowly... [Read More]

Tracked on August 26, 2004 10:01 PM

More on the "Don't" INDUCE Act (IICA) from Some New Suspects from The Importance of... I've done a couple of posts dedicated to commentary on the "Discouraging Online Networked Trafficking Inducement Act of 2004" or "Don't Induce Act" ('Don't Induce Act' - an Alternative to the INDUCE Act (IICA) and Other News and (Don't) INDUCE... [Read More]

Tracked on September 1, 2004 07:35 AM

Copyright Office Produces 'Discussion Draft' Alternative to INDUCE Act (IICA) from The Importance of... As ordered by four Senators a couple of weeks ago, the Copyright Office has begun work on producing a "consensus" version of the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). See, Senators Put Copyright Office in Charge of... [Read More]

Tracked on September 2, 2004 08:15 PM

INDUCE Act (IICA) Response to Copyright Office "Discussion Draft" and Other News from The Importance of... The Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) continues to endanger technology and innovation, as the response to the Copyright Office's "discussion draft" revision of the bill is received poorly by both sides of the debate. Someti... [Read More]

Tracked on September 8, 2004 06:42 PM

The Importance of ... Law and IT: The INDUCE Act 2.0 from The Importance of... The fourth episode of my audio series, The Importance Of ... Law and IT, is up on IT Conversations. This show focuses on the Inducing Infringement of Copyrights Act of 2004 (IICA, née INDUCE Act), with some emphasis on the... [Read More]

Tracked on September 23, 2004 06:55 PM

Induce Act 2.0 from Copyfight Ernest Miller is back with a new IT Conversations audio program on the many alternatives to the Induce Act. Later (4:27 p.m. PT): Just had a visit with the charming Mr. Miller, and he tells me he has a scoop... [Read More]

Tracked on September 24, 2004 07:56 PM




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