The Hollywood Reporter has published a story reporting that several of the Senators co-sponsoring the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) have made official what had been discussed during the INDUCE Act hearings (Senators seek consensus from P2P parties on new law). During the hearings, Sen. Orrin Hatch (R-UT) had mentioned putting Marybeth Peters, the Register of Copyrights, in charge of organizing comments and criticism for a consensus bill. A formal request to that effect has now been made. Read the 2-page letter: Letter to Marybeth Peters from Senators, 13 Aug 2004 [PDF].
A brief annotation of the letter follows...
Thank you for agreeing to assist our efforts to find a technology-neutral, behavior-based solution to the problems of rampant on-line piracy of copyrighted materials. We request that you play a leadership role as we meet with the interested parties designated by our offices during the next few weeks in order to identify proposed solutions to any legitimate concerns raised about S. 2560, the "Inducing Infringement of Copyrights Act of 2004."
Asking Marybeth Peters to play a leadership role with regard to legislative changes to copyright law is like asking Dr. Jack Kevorkian
to play a leadership role with regard to legislative changes to euthanasia law.
Be that as it may, however, note that Peters is only to meet with those "interested parties" designated by the Senators' offices. Not all "interested parties," but only those the Senators care about. Doesn't sound like a very open or transparent process.
Peters is to identify "proposed solutions" to "legitimate concerns." Unfortunately for the tech industry, Peters doesn't think there are any legitimate concerns with regard to the bill, at least according to her testimony: Copyright Office on INDUCE Act (IICA): It isn't Strong Enough. If anything, she thinks the bill is too soft on technology.
Specifically, we would like your assistance in identifying key concerns that have been raised about S.2560 and serving as our principal copyright adviser in a series of meetings designed to resolve any remaining issues.
Paging Dr. Kevorkian.
What is this about resolving "any remaining issues"? Have any issues been resolved already? If so, I am unaware of it.
There is little dispute that entities intentionally encouraging and promoting widespread infringement should be held secondarily liable for the infringement that they intend to induce. The imposition of such liability is particularly appropriate given that much filesharing software automates the redistribution of infringing files so effectively that people making hundreds of works available for distribution to millions of persons across the globe can testify that they had no idea that they were engaged in the massive, global redistribution of those protected works.
This paragraph is full of some pretty slippery rhetoric.
First, I'm really not aware of a consensus concerning "encouraging and promoting widespread infringement." I don't think many people support making those who advocate civil disobedience to the copyright law liable, plus there is that little matter of the First Amendment. There is a general consensus concerning inducement, using the standard definition. However, we might all agree that something is a crime and yet disagree quite a bit about what constitutes evidence of that crime, which is precisely the problem with the INDUCE Act.
Second, the paragraph slips very easily from inducement to an assumption the filesharing programs should be held liable. If that is the intention, why not simply make it the law? Could it be because P2P has legitimate uses and defining it could be problematic as the internet is built on P2P applications?
Third, the issue regarding the efficiency of P2P cuts both ways. The better it is at infringing, the better it is at distributing legitmate files. In any case, if it is automation of redistribution that is the problem, why not legislate against that specifically?
We do recognize, however, that some technology companies are concerned that claims for intentional inducement of infringement might be misused frivolously against entities who distribute legitimate copying devices or programs such as computers, CD-burners, personal video recorders, email services, etc. We are open to any constructive input on how Congress can best frame a technology-neutral law directed at a small set of bad actors while protecting our legitimate technology industries from frivolous litigation.
Some technology companies are concerned, as opposed to the law actually being flawed. Nice avoidance of any responsibility of promoting flawed legislation. There has been plenty of constructive input. Let's see what these nice Senators do about it - though the next paragraph leaves much doubt that they really care.
We continue to believe that the existing law of secondary liability provides considerable protections against potential abuses of a cause of action for intentional inducement of copyright infringement. Indeed, we suspect that many concerns about such claims may be resolved by making explicit principles already present in the body of law against which this cause of action would operate. Nevertheless, we remain open to other approaches. When possible, we would like you to attempt to achieve consensus proposals.
Let me get this straight. The Grokster
decision, which was based on protections against absurd secondarily liability is wrong and this new law is necessary to strip these protections away. So, how exactly, does the INDUCE Act both contain and overturn these protections? Paging Dr. Cognitive Dissonance.
This paragraph hints at codifying the decision in the Betamax case, Sony, it doesn't hold the Senators to that path. A good out for Peters, who thinks that the Betamax decision provided too much protection to technology companies.
As noted at the Judiciary Committee hearing, we intend to resolve this serious threat to artists, consumers, and the development of safe, lawful Internet commerce as soon as possible. As a result, we request that you present us with any recommendation you may have no later than the close of business on September 7, 2004. Thank you for your efforts to assist Congress in addressing the many difficult issues related to transitioning our system of copyrights into a networked, digital age.
Rush, rush, rush. Unless we solve this problem RIGHT NOW who knows what might happen in a few more months or next year? Nice that the threat is to "artists" and not major international conglomerates. Consumers will be affected; are any of the "interested parties" to be consulted consumer groups? If not, it would put the lie to this paragraph.
Well, looks like we will have Peters' idea of "consensus" soon enough.
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.