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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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August 06, 2004

Tim Wu's INDUCE Act (IICA) Alternative

Posted by Ernest Miller

Timothy Wu, professor of law at the Univ. of Virginia's School of Law and prolific guest blogger on Larry Lessig's blog, posts alternative language for the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). Read his post (The Induce Act Revised) for commentary on the revision, and then read the revision: Inducing Innovation Act of 2004 [PDF]. I've pasted the text below. Feel free to compare and contrast with my alternative language for the INDUCE Act: Ernest Miller's Draft Substitute for the INDUCE Act (IICA) v2.0. Read on for the text of Wu's alternative and some brief commentary...


To amend chapter 5 or title 17, United States Code, relating to secondary and vicarious liability for copyright infringement, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


This Act may be cited as the "Inducing Innovation Act of 2004."


Section 501 of title 17, United States Code, is amended by adding at the end the following:

(g)(1) For purposes of this subsection, an "accomplice to copyright infringement" is one, who, with the intent of promoting or facilitating a specific act of infringment, actively commands, aids, induces, or willfully causes such other person to commit the infringment.

(2) No person shall be secondarily or vicariously liable for copyright infringement unless that person was an accomplice to copyright infringement.

(3) Nothing in this subsection shall lead a provider of goods or services to be held liable for copyright infringement:

(i) if the good or services is widely used for legitimate, unobjectionable purposes or is capable of substantial noninfringing uses; or
(ii) based upon mere knowledge that a good or service is capable of being used for copyright infringement.
I'm not sure why the revision talks of "secondary and vicarious" liability as opposed to "secondary, contributory and vicarious" liability. "Contributory liability" is a commonly used term and although it would be considered to be secondary liability, so might vicarious infringement. There would seem to be some unnecessary ambiguity with regard to contributory liability.

I'm not so sure we want to set the bar so high for all secondary liability. Our current standard for vicarious liability, narrowed in order to take into account the Sony Betamax decision, seems pretty good to me.

I'm not sure what the distinction is between "legitimate, unobjectionable purposes" and "capable of substantial noninfringing uses" is. If something is widely used for "legitimate, unobjectionable purposes" isn't it also "capable of substantial noninfringing uses?"

I still prefer my version. Overall I think it provides a higher degree of protection.

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


1. cypherpunk on August 6, 2004 06:22 PM writes...

With all the fun you poke at INDUCE, I don't really see why you propose an alternative. What is the problem that you see your version as solving? Can you suggest any examples, real or hypothetical, of people, companies, or software which you think should be shut down and which your INDUCE (or STOP PIRACY) act would accomplish?

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