Sen. Orrin Hatch (R-UT) has requested assistance in drafting alternative language for the severely flawed Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). Both the Business Software Alliance and NetCoalition have provided guidelines on what the alternative language should include. The IEEE-USA has gone one step further and actually drafted alternative language (Shredding the INDUCE Act (IICA) - CEA, IEEE-USA, NetCoalition and Backing Away from the INDUCE Act (IICA)).
Well, let no one say that I merely criticize and don't work on providing an alternative. Taking into consideration the suggestions of the BSA and NetCoalition, as well as basing the language on the IEEE-USA's, here is my draft substitute for the INDUCE Act:
Proposed Substitute to the Inducing Infringement of Copyrights Act
Section 501 of title 17, United States Code, is amended by adding at the end the following:
(g)(1) Inducement of Infringement. Whoever actively and with actual knowledge induces infringement of a copyrighted work by another with the specific and actual intent to cause the infringing acts shall be liable as an infringer.
(2) Contribution to an Infringement. Whoever materially and with actual knowledge contributes to the infringement of a copyrighted work by another shall be liable as an infringer.
(3) Vicarious Infringement. Whoever has the right and ability to supervise an activity resulting in a direct infringement and has a direct financial interest in such activity and infringement shall be liable as an infringer.
(4) Limitations on Secondary Liability.
(A) manufacture, distribution, marketing, operation, sale, servicing, support, or other use of embodiments of technology capable of use for infringement, with or without the knowledge that an unaffiliated third party will infringe, cannot constitute inducement of infringement under Subsection g(1) in the absence of any additional active steps taken to encourage direct infringement.(5) Damages for violations of section (g)(1) of this section shall be limited to an injunction against inducement, and actual damages for infringement of a work for which the defendant had specific and actual knowledge the work would be infringed.
(B) manufacture, distribution, marketing, operation, sale, servicing, support or other use of embodiments of technology capable of a substantial noninfringing use shall not be liable under this title, except for direct infringement and as provided under Subsection g(1).
This is a first draft, of course. If you have any suggested changes, comments, etc., please let me know.
UPDATE 2025 PT 24 July 2004
If this language were to be proposed as a bill, it could be called the "Support Technology, Oppose Piracy, Protect Innovation Research And Correct Youth Act of 2004," aka the "STOP PIRACY Act."
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.