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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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« Sen. Coleman Opposes INDUCE Act (IICA) | Main | Department of Pretentious Bullshit »

July 24, 2004

Ernest Miller's Draft Substitute for the INDUCE Act (IICA)

Posted by Ernest Miller

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.
(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).
(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.
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.

Comments (8) + TrackBacks (0) | Category: INDUCE Act


COMMENTS

1. Alexander Wehr on July 25, 2004 07:54 AM writes...

in that form, and with current standards for vicarious infringement, would'nt it be unnecessary?

Why pass it in that form then?... it would do absolutely nothing to either side.

Permalink to Comment

2. John Parres on July 25, 2004 10:23 AM writes...

"...Whoever actively and with actual knowledge induces infringement..."

Is there a difference between actual knowledge and specific knowledge, and if so what? IANAL. Is this a distinction found elsewhere in law?

And you set another threshold, active inducement v. (I assume) passive. Presumably an iPod is a passive inducer and a TiVo is an active inducer because it is connected to a network? That's the critical distinction in your view?

Just asking.

JP

Permalink to Comment

3. Ernest Miller on July 25, 2004 02:50 PM writes...

I don't see a difference between actual and specific knowledge here, but I'm open to arguments.

I'm not sure why being conneected to a network automatically makes on an active inducer. Certainly, being connected to a network gives you more opportunity to induce, but I don't think it is a sufficient condition to call something "active." In any case, iPods connect to the network as well, just not on a regular basis.

Permalink to Comment

4. Chris Riley on July 25, 2004 03:50 PM writes...

Can you clarify something? What is the difference between 4a and 4b? 4a seems to indicate that a device created which serves no noninfringing use is still acceptable provided its creators do not actively encourage its use in any infringing sense; if this is true, then why is 4b necessary? What additional actions are allowed regarding a device which is also capable of substantial noninfringing use?

The only thing I can read into this is that manufacturers of devices also capable of substantial noninfringing use are permitted to actively encourage infringement (the stated impermissible action in 4a) so far as they do not actively induce infringement. Did you intend this to be a distinction between the two? It seems like a very fine line.

Or am I misreading these?

Permalink to Comment

5. Ernest Miller on July 26, 2004 01:28 AM writes...

Chris,

If a device has no substantial noninfringing use, than you can go after the manufacturer for either contributory or vicarious infringement. You may also go after them for inducement, but only if they take some additional action.

If a device has a substantial noninfringing use, then you may only go after the manufacturer for inducement. I'm not sure what you mean by encouraging infringement. Is that inducement under the definition provided or not? The problem with simply say "encourage" is that it is very vague. In order to protect innovation and research, the definition of what counts as inducement must be specific.

Permalink to Comment

6. Chris Riley on July 26, 2004 02:35 AM writes...

Okay, I understand going after them for contributory or vicarious infringement. I had no specific definition of "encouraging" in mind - I was only using your word ("encourage" is used at the end of 4a). I was trying to understand what 4b adds to the discussion, and you answered that - it in effect undoes 2 and 3 for devices that are also capable of substantial noninfringing use. I am still a little unclear about the end of 4a, but I have a better grasp now, thank you.

Permalink to Comment

7. Andrew Greenberg on July 26, 2004 05:06 AM writes...

It is subtle, but important. Section 4 is an attempt to codify the Sony defense for technologies having substantial noninfringing uses. To see how this works, you have to read them together with (1)-(3).

A person is liable for secondary infringement if he either (1) induces an infringement; (2) contributes to an infringement; or (3) is vicariously responsible because of a relationship with an infringer. Each of these bases for infringement requires that some third party directly infringe, PLUS various additional elements that are all wound up in the adjectives and adverbs of those sections.

Now, even if you would otherwise be liable under (1)-(3), you cannot be responsible for, very broadly speaking, marketing a product capable of substantial noninfringing uses. 4(b) codifies Sony, and is an absolute defense to claims of contribution or vicarious.

4(a) codifies langauge from a recent Federal Circuit case by Judge Gajarsa, and is different in that it admits the possibility that even if you were marketing an SNU technology, you could still be liable for inducement, BUT ONLY if you engaged in independent acts of inducement apart from the ordinary marketing.

Hope this helps.

Permalink to Comment

8. Anon y mouse on July 27, 2004 02:49 AM writes...

There are already laws on the books...

Conpiracy to defraud... laws would protect the record companies. If mass theft can be proven then there can be a criminal penalty.

If someone enables knowingly a criminal act and participates in the plans (method) then there is a conspiracy. The courts should look at this before creating laws that resrict individual freedoms.

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