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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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« Book Review: The Anarchist in the Library | Main | Shredding the INDUCE Act (IICA) - CEA, IEEE-USA, NetCoalition »

July 23, 2004

Backing Away from the INDUCE Act (IICA)

Posted by Ernest Miller

Retrograde motion has been spotted among some of the early adherents of the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). Two significant supporters of the bill are having second thoughts: the Business Software Alliance and Hiawatha Bray. Read on...

The Business Software Alliance

As I predicted, the testimony of Business Software Alliance (BSA) president Robert W. Holleyman, II before the Senate Judiciary Committee yesterday (Protecting Innovation and Art while Preventing Piracy) was quite interesting. You see, the BSA had initially been a supporter of the INDUCE Act. Unfortunately, they hadn't polled their members and a number of them were opposed (Some of the Background of the INDUCE Act (IICA)).

Thus, I think that Judiciary Committee Chairman Sen. Orrin Hatch (R-UT) was a bit surprised when the BSA was taking a much more reticent view of the bill. Read the BSA's press release: Trade Group Applauds Senators for Their Commitment to Fight Piracy; Asks For Clarifications to New Online Piracy Bill to Protect Innovation:

U.S. Senate legislation introduced to stem the growth of online piracy should be clarified to ensure that it is properly balanced to curtail harmful practices while avoiding adverse unintended consequences for legitimate technology companies, according to the Business Software Alliance (BSA), the leading trade group for the high tech industry....

Holleyman said that new legislation “properly focused and balanced, should be viewed as only one of several elements to finding solutions to the problem of P2P piracy. BSA believes that the most effective way to address the harm done by operators of illicit file sharing networks is through the marketplace.”

The BSA proposed five specific ways the Act should be modified:
  • Clarify that multipurpose technology products that can be used for commercially significant legitimate purposes are not subject to liability. BSA suggested that the bill clearly state that the Supreme Court’s decision in the Betamax case is unaffected.
  • Clarify that to meet the intent standard of the bill, an actor must be shown to have engaged in conscious, recurring, persistent and deliberate acts demonstrating that the acts caused another person to commit infringement.
  • State specifically that mere knowledge by a developer of technology or a provider of a service of the infringing acts of another person using that technology or service is not sufficient to demonstrate the requisite specific intent.
  • Clarify that the bill does not create liability based on advertising or providing support to users, including instructions for using the technology provided through manuals or handbooks, nor by providing assistance for using a product through a company’s on-line help system or telephone help services.
  • Develop a mechanism to ensure that weak, harassing or frivolous suits are not heard by the courts, by establishing a way to ensure such cases are not brought without some prior review for its merits.
You can read Holleyman's full 7-page testimony here: Testimony of Mr. Robert Holleyman President and CEO Business Software Alliance, July 22, 2004 [PDF]. The testimony is actually quite good; Mr. Holleyman seems to have realized that many of the members of his group create products that could be attacked under the INDUCE Act:
BSA’s member companies are the leading developers of computers, software, security and networking technologies. To meet customer needs, these products are designed and intended to be multipurpose products. By their very nature, many of these products are freely programmable and can be modified by the user. How customers use these products changes over time and such uses are limited only by the customer’s needs and imagination.

The functions built into these products are also by design multipurpose. These functions enable copying, modifying and transmitting a broad variety of digital content. For example, they permit users to copy documents they create on storage media such as optical disks for safekeeping, to edit, cut and paste text data and graphics to enable graphics designers to do their jobs more efficiently, and to edit family photos or home video recordings to share with other family members. These functions are at the heart of the information technology revolution. [emphasis added]

He goes on to note that it is people that infringe, not P2P networks:
Persons with bad motives have repeatedly used developments in the marketplace and technology to their own ends. Today is no different. In the past such bad actors have used the postal system, telephones, automobiles, and other avenues of commerce for their own illicit ends. Now, they are also using computers, software and the Internet. Just as past solutions focused on these bad actors, and did not outlaw overnight delivery, cars, or telephones, today’s solutions must leave intact the important contributions computing technologies make to our daily lives, and allow these technologies to make even greater contributions in the future.
Holleyman can actually make a pretty good case for innovation when he wants to. Of course, this bill might never have gotten as far as it has without Holleyman's initial support.

Hiawatha Bray

Last June 28th, Hiawatha Bray, the Boston Globe's frequently wrong tech reporter, wrote that the INDUCE Act wasn't that big a threat to technology innovation (For geeks, it's a big misunderstanding). I was so unimpressed with his report that I didn't rebut it but only mentioned it in passing (Supporting the INDUCE Act). Well, it seems that Register of Copyrights Marybeth Peter's testimony in support of the INDUCE Act has changed his mind (Uh Oh):

Remember my support of the Induce Act? I just changed my mind. The US Register of Copyrights has come out in favor of it. That's not the problem. The real issue is that she wants the law as part of an effort to modify or even overturn the 1984 US Supreme Court ruling in the Betamax case, which legalized video cassette recorders.

I was assured by bill supporters that there was no intention of messing with the Betamax ruling, which really was the Magna Carta of digital tech innovation. Any possibility that this bill could amount to a set-aside of Betamax must turn me utterly against it.

Nice to see Bray conceding his misplaced trust. However, technically, Peters doesn't believe the law sets aside Betamax. In fact, she believes that the proposed statute does too much to preserve Betamax. She is calling for more laws to officially overturn Betamax (Copyright Office on INDUCE Act (IICA): It isn't Strong Enough). Of course, in actuality, the INDUCE Act doesn't overturn Betamax so much as make it irrelevant. via George Hotelling

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.

Comments (1) + TrackBacks (0) | Category: INDUCE Act


COMMENTS

1. Alexander Wehr on July 25, 2004 07:41 AM writes...

"The BSA proposed five specific ways the Act should be modified:
Clarify that multipurpose technology products that can be used for commercially significant legitimate purposes are not subject to liability. "

would this not completely nullify hatch's intent to ban p2p nets?

they are multipurpose and used for significant legitimate purposes.

I am a user for such significant legitimate purposes.

If the RIAA/MPAA wants to call me a thief.. no problem... not only will i avoid their material like the plague online, but i will refuse to buy offline as well.

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