What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) in the Senate. The bill would make it illegal to "intentionally induce" copyright infringement, but is worded so broadly that it would have all sorts of unintended consequences, one of which is to severely limit, cripple or kill innovation in many different fields. Hatch's Hit List is a daily exploration of some of the technologies and fields that the bill would likely affect. See also, Introducing Hatch's Hit List and the Hatch's Hit List Archives. Send list suggestions to ernest.miller 8T aya.yale.edu.
Today on Hatch's Hit List: Credit Card Companies
Law.com reported yesterday that a federal judge threw out a case involving secondary copyright liability (Federal Judge Finds Internet Porn Suit Is No Perfect 10). One pornographer (Perfect 10) was suing credit card companies who provided credit card services to other pornographers who Perfect 10 claimed infringed Perfect 10's copyrights:
Perfect 10, which had sued under the theories of contributory and vicarious copyright infringement, wanted the credit card companies held liable for facilitating the buying and selling of the stolen images.
According to the article, the judge based the decision on the concept of "control," letting the credit card companies off the hook because they couldn't control the infringing pornographers.
In the Perfect 10 case, Ware said, it comes down to what degree the credit card companies can control the Internet businesses.
It's not enough, the judge wrote, for "the defendants to merely have contributed to the general business of the infringer. To have materially contributed to copyright infringement, 'the ... assistance must bear some direct relationship to the infringing acts.'"
Ware cited the older Napster case, A&M Records v. Napster, 239 F.3d 1004, as an example where there was "substantial contributing conduct" because Napster provided an online index of tradable, copyright-protected songs.
Sounds similar to the reasoning behind the
Grokster decision, which the INDUCE Act aims to overturn.
Pornography is a big business. The credit card companies make money handling pornography transactions. Infringement means more transactions and more profits for the credit card companies. Certainly, they are aware of this. They must also be aware that some of their customers are infringers. By making it easy to set up shop, are not the credit card companies inducing potential infringers into the unauthorized copying and distribution of copyrighted works?
I bet Perfect 10 wishes it had the INDUCE Act to wield against the credit card companies.
Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic, including Hatch's Hit List: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.
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 @
