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, I've begun working on a draft INDUCE Act with alternative language (aka the "Support Technology, Oppose Piracy, Protect Innovation Research And Correct Youth Act of 2004," aka the "STOP PIRACY" Act). I didn't expect to get it right the first time. Version 1.0 is here: Ernest Miller's Draft Substitute for the INDUCE Act (IICA). Below is version 2.0 with differences noted in bold (except the title):
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 under Subsections 106(3), 106(4) or 106(6) of this title with the specific and actual intent to cause and to financially benefit from 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).
There are two differences from version 1.0. The first distinction limits inducement to particular types of direct infringement (distribution, public performance and transmission). The reasons for this are several. For example, mucking with the reproduction right could cause headaches with regard to the mechanical license for phonorecords. The derivate work right doesn't seem to be a proper target either. There would seem to be too much danger of collateral damage with regard to creative uses that we would wish to protect (The INDUCE Act and the Right to Prepare Derivative Works
In any case, the problem cited that the INDUCE Act is meant to solve is not the making of copies, or of derivative works, but of the distribution of these works. If you have 100 copies of a work at home, what is the harm? The real problem is when those copies are distributed. Thus, the first change narrows the INDUCE Act to target the wrong-doers, and not someone who might suggest making mashups at home.
The second change addresses what the proponents of the INDUCE Act claim is the purpose of the Act. They claim that they wish to address the commercial inducers, those who are making "millions of dollars while attempting to avoid any personal risk of the severe civil and criminal penalties for copyright infringement" (Judiciary Statement: Protecting Innovation and Art While Preventing Piracy). By including a "financial benefit" clause, only commercial inducers will be targeted.
This is a second draft. It probably still isn't right. If you have any suggested changes, comments, etc., please let me know.
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.