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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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« Movie Studios Cooperate with Broadcast Censors | Main | On the Burden of Persuasion for the INDUCE Act (IICA) »

July 15, 2004

Hatch's Hit List #5 - Automatic Online Translators

Posted by Ernest Miller

What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) in the Senate. The bill would make it illegal to "intentionally induce" copyright infringement, but is worded so broadly that it would have all sorts of unintended consequences, one of which is to severely limit, cripple or kill innovation in many different fields. Hatch's Hit List is a daily exploration of some of the technologies and fields that the bill would likely affect. See also, Introducing Hatch's Hit List and the INDUCE Act Archives.

Today on Hatch's Hit List: Automatic Online Translators with a tip o' the virtual hat to Matt Perkins.

Translations are derivative works. The making of derivative works is one of the exclusive rights in copyright (17 USC 106(2), to be precise). Therefore, making unauthorized translations is an infringement of copyright. Under the INDUCE Act, if you intentionally induce someone to infringe copyright, you are liable.

Ever do a search on Google and some of the results weren't in English? Notice that little "Translate this Page" next to the link? Yeah, that's an inducement. Google is practically begging you to create a derivative work. They do everything for you (aka aid and abet) except click the "Translate this" link. And let us not forget the ease of use of Altavista's Babelfish Translation.

It's crazy, but not only are there no copyright warnings on the translation home pages, but there aren't any copyright warnings on either Google's Translation FAQ or Babelfish's Help Page. But what can you expect from such blatant copyright scofflaws? This is clearly an open and shut INDUCE case. And let us not forget that both Google and Altavista have deep pockets to pay off a juicy lawsuit. (Ooops, I wasn't supposed to write that out loud.)

Seriously, this is actually a very good example of why the INDUCE Act is bad law.

Under existing copyright law doctrine, automatic online translators like Google and Babelfish have some very good defenses. For example, although one could make a prima facie case that both are guilty of direct infringement, the RTC v. Netcom decision would likely protect both. In Netcom, a BBS operator was held not liable for direct infringement basically because their system of uploading files was automatic and directed by third parties. A similar argument would protect automatic online translators as well, I think.

Secondary liability (contributory and vicarious) would also not be an issue here. There is no real way for Google or Babelfish to control how their system is used to translate webpages and text without simply shutting them down, and there is clear evidence of substantial non-infringing uses.

However, the INDUCE Act changes all this. The evidence is blatantly obvious that both Google and Babelfish encourage the creation of translations (aka derivative works). They had to have known that they were encouraging copyright infringement. I don't see how a "reasonable man" could believe otherwise.

I know that I'll be keeping copies of my referrer logs. Sto parlandovi, lettori in Italia!

Comments (1) + TrackBacks (0) | Category: Hatch's Hit List | INDUCE Act


COMMENTS

1. David Carroll on July 19, 2004 10:04 PM writes...

In a similar vein, the Induce Act/ICAA might be construed to ban software that allows fans to create alternative audio or subtitle tracks for DVDs, e.g. DVDSubber for adding subtitles to a DVD.

Roger Ebert has written enthusiastically about the possibility for fans to create their own commentary tracks, but it seems clear that some commentary tracks or subtitle tracks will be fan-created translations into alternate languages. Since these are derivitive works, such tools would be banned.

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