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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 26, 2004

The INDUCE Act (IICA) - Inducing Foreign Scientists Away From Our Shores

Posted by Ernest Miller

There has been a great deal of discussion about the Inducing Infringement of Copyrights Act's (IICA, née INDUCE Act) effects on domestic innovation and even the fact that investment will likely move overseas in the face of the INDUCE Act (Go Ahead with the INDUCE Act - A View from Overseas). However, one likely effect of the INDUCE Act has been mostly overlooked: the fact that many researchers and scientists may refrain from visiting these shores in order to avoid INDUCE Act lawsuits.

Imagine that you are a scientist or researcher in some foreign country. Your research deals with computer science, which means that you write programs that frequently copy things. Heck, you might even be directly involved in figuring out more efficient protocols for distributing content, like peer-to-peer filesharing programs. What you are doing is perfectly legal in your country, indeed, they even encourage such research with grants and the like. However, Hollywood is not nearly as happy with you and would love to sue you for your research under the INDUCE Act.

But, what can Hollywood do? What you're doing is perfectly legal in your own country. They can't sue you there. Simply publishing research on the internet will probably not be sufficient "contact" to haul you into a US court, and, as long as you stay home, how are they going to serve you with process?

Then, you get an invitation from colleagues to visit the United States and present your "inducing" research at a conference. What do you do? What do you do?

Well, one thing is, you might turn down the invitation. The reason is that you don't want to be served with process as soon as you pass through customs and be subjected to an INDUCE Act lawsuit. It is quite possible that presenting your research (and distributing proof-of-concept programs) at a conference in the US will be sufficient jurisdiction for a case to be brought. You could blow off the case (leading to a default judgement) or defend it (but that will quickly grow very expensive, especially for someone on an academic's salary).

If a judgement is entered against you, it will probably include both monetary damages and an injunction. Enforcing the judgement will require a foreign court to agree. That may not happen because what you are doing is legal at home, but a foreign court might enforce the judgement; you can't be certain it won't. In any case, you will have to spend money to defend yourself at home, which can be very expensive.

Even if the foreign court doesn't enforce the decision, you may still have an injunction against distributing your proof-of-concept program in the US. So, the next time you visit the US to discuss your research with colleagues, you might be paid a little visit by Federal Marshalls, who will seek to enforce the injunction, violation of which is a criminal offense. Unlikely, but possible.

So, as a foreign researcher in fields Hollywood doesn't like, will you visit the US to discuss your research?

We've seen this sort of chilling effect before with the Digital Millennium Copyright Act, where foreign researchers and developers have gotten in trouble on visits to the US, such as Dmitry Sklyarov. While Skylarov's case was a criminal one, the possibilities of being the target of a civil suit will also be a significant disincentive to visiting for many.

Nor has Hollywood shown itself particularly wary of threatening researchers for presenting at conferences. Ask Ed Felten about the SDMI threat letters.

If the INDUCE Act passes, I can imagine that many foreign scientists will become quite wary of visiting the US to share the fruits of their research. Thanks, Sen. Hatch!

A final note. I would just like to thank James Grimmelmann for maintaining (on LawMeme) an index of my postings on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). According to the index, this is the 100th posting (The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act). Wow, that is a lot of postings on a single topic in such a short period of time.

Comments (1) + TrackBacks (0) | Category: INDUCE Act


COMMENTS

1. Derek Slater on August 26, 2004 09:10 PM writes...

Alan Cox urged people to boycott all US conferences after the Sklyarov was arrested:
http://www.newsforge.com/article.pl?sid=01/07/20/1228200&mode=thread

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