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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 18, 2004

Senators Put Copyright Office in Charge of Finding INDUCE Act (IICA) "Consensus" by Sep 7

Posted by Ernest Miller

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.

Comments (5) + TrackBacks (0) | Category: INDUCE Act


1. Alexander Wehr on August 18, 2004 03:15 AM writes...

I thought they might have learned their lesson when the entire tech sector, consumer groups, electronics groups, and thousands of faxes came pounding down their door.

I guess i was wrong.

What's your opinion on extraterrestrial life good sir?
Is there perhaps a way to get "spacelifted" from this bizarro world?

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2. Alexander Wehr on August 18, 2004 04:46 AM writes...

When will our congress acknowledge the complex economic interconnectivity between p2p and many large industries?
For instance:
- 80% of broadband (according to statistics) is used by "evil pirate traffic". meaning killing p2p kills broadband.
- this "piracy software" has been integral in development and distribution of linux, which is in widespread use running core servers for major corporate/educational entities, among others.
- many codecs now regarded as "standards" for new digital cable services and media formats (e.g. mpeg4) were pioneered and developed with the help and feedback of "evil piracy rings", which are continuing to drive the advancement of codecs to this date.
- these codecs have given rise to multibillion dollar industries dedicated to servicing needs for portable access to files "pirated" through p2p.

*and this is what pops into my head when i'm tired, i'm sure anyone more qualified with any imagination could figure out further extent of economic harm by reading more of Mr. Miller's entries"

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3. mike on August 18, 2004 05:48 AM writes...

im a pirate who can't download anything from people because my isp thretened me with $100,000 fine i hope you guys lose this battle so i can download again this is bs you should be able to download as long as your not selling it all the gov. cares about is themselves and the major corporations they don't care about what the people think of these new laws
if the people were to vote on this subject we would be downloading instead we have a bunch of middle-aged old men tring to make the desision for us why do you have to control everything you guys are making a free nation into one where the government runs and not the people there are people out there like me who can't afford to go to a movie or buy a game im mentally disabled and the only way i could see the movies play the games was to download the internet and cable tv is the only thing extra i got so what should i do now should i just take the dvds that i want from target or kmart by stealing that would be a lesser fine then getting caught downloading im not saying that im going to steal anything im just tring to make a point anyways if you guys lose at the end ill be very happy

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4. W.B. on August 18, 2004 04:37 PM writes...

What is transpiring is nothing less than a "final solution" for digital-based technology. (Indeed, given that this travesty is "last" on the list of the RIAA's "things to do," that terminology is very appropriate.) The fact that the proceedings behind this are so lopsided and stacked like this, with the whole thing being shaped by radical ideologues who couldn't care less about the realities of the world and seek to bend same to their rigid, absolutist, exclusivist dictates, underscore the callous disregard for the future development of our society, just so some fat cats can continue living (and running their business) for the moment.

What we're seeing is the development and unfolding of a closed system not unlike what used to exist under Soviet Communism, where consumer products of all types were made only one way, based solely upon the dictates of the State, and the consumer had absolutely no choice or say. But then, the radical RIAA agenda in this regard is very reminiscent of the totalitarian Left, in general. After all . . . they think Big Government should dictate the course of new technology; they favor interference and intrusion into people's personal lives; and they are filled to the brim with the attitude of "collective guilt" (which, in other cases, would be exemplified by the mania to hold the gun industry responsible whenever a whack job with an AK-47 shot up a school or workplace; or, the tobacco industry anytime somebody who smoked every day of his or her life died of lung cancer or emphysema; and don't forget the ruination of the asbestos industry due to all the class-action lawsuits from people who developed lung diseases after working with the stuff; or the rise in medical costs due to the spate of medical malpractice lawsuits, some brought up by Kerry's running mate John Edwards during his days as a trial lawyer).

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5. Alan on August 19, 2004 02:58 AM writes...

Wow. Inducing infringement. "the infringement that they intend to induce".

When they start messing around with human behaviour and very loose terminology, you just know this is gonna get messy.

Something in law that's too vague/broad? "Frivolous litigation". Something that's too narrow? Obvious "bad actors" get away by making up something else. Don't need law class; take philosophy and you can already see what's hidden.

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