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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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September 02, 2004

Copyright Office Produces 'Discussion Draft' Alternative to INDUCE Act (IICA)

Posted by Ernest Miller

As ordered by four Senators a couple of weeks ago, the Copyright Office has begun work on producing a "consensus" version of the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). See, Senators Put Copyright Office in Charge of Finding INDUCE Act (IICA) "Consensus" by Sep 7. As of August 23rd, there was apparently no progress being made (INDUCE Act (IICA) Interview (with me) and Other News), but things have picked up quite a bit since then, though the Copyright Office has had its deadline extended to Thursday, Sep. 9th.

The Copyright Office has released a "discussion draft" of an alternative to the INDUCE Act to be used as the basis of, what else, the discussion that will take place. Read the 4-page draft here: Copyright Office - Discussion Draft - Alternative INDUCE Act [PDF]. HTML version after the break.

Before looking at the alternative, however, be sure to check the email the Copyright Office sent to quite a few people along with the draft proposal. The Copyright Office doesn't endorse the proposal and is seeking comments by this Friday, and another meeting this coming Tuesday:

As was indicated in last Thursday's meeting, attached for your review and comment please find a discussion draft prepared by the Copyright Office. Please keep in mind that this draft is intended to facilitate and promote discussion of the issues in a more concrete way than we discussed last Thursday -- it should not be taken as our recommendations, and nothing in here should be taken as the official position of the Office. We remain open to suggestions and clarifications that will help us develop recommendations that have the best chance at garnering consensus around an effective and appropriate form of liability.

Here is the process we will follow going forward. We ask that you submit written comments on this draft, by e-mail to this e-mail address, by 5 P.M. Friday Sept. 3. On Tuesday afternoon, at 2:00 PM, location to be determined, we will hold a meeting at which we will react to your comments and seek further information for our recommendations. We will then prepare and submit our recommendations to the Judiciary Committee on Thursday, Sept. 9. We greatly appreciate the fact that the cosponsors of the bill and their staffs have given us two extra days to submit our recommendations, which allows us to hold the additional meeting with interested parties.

Thanks again for your constructive participation in this process. We look forward to comments on Friday and the meeting on Tuesday.

My basic take on a first look is that, while this language is significantly better than the ridiculously overbroad language of the INDUCE Act as introduced, this is still a very dangerous bill for technology and innovation. Instead of ludicrously overbroad, this proposal is only excessively overbroad.

Also, be sure to compare and contrast this alternative with:
Ernest Miller's Draft Substitute for the INDUCE Act (IICA) v2.0
Tim Wu's INDUCE Act (IICA) Alternative
Shredding the INDUCE Act (IICA) - CEA, IEEE-USA, NetCoalition (IEEE-USA's alternative language about the middle of the article)
'Don't Induce Act' - an Alternative to the INDUCE Act (IICA) and Other News

Read on for the Copyright Office's discussion draft's alternative language...


To amend chapter 5 of title 17, United States Code, relating to inducement of 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 Infringement of Copyrights Act of 2004'.


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

(g) (1) Whoever intentionally induces another to infringe any of the exclusive rights in Sections 106(3), 106(4), 106(5) or 106(6) under subsection (a) shall be liable as an infringer. For the purposes of this subsection, 'induces' means to commit one or more affirmative, overt acts that are reasonably expected to cause or persuade another person or persons to commit any infringement under subsection (a) of this section.

(2) For the purposes of this subsection, "overt acts" constituting inducement may include:

(A) distributing any dissemination technology that, when used as intended, automatically causes the user of the technology to infringe copyrighted works without the user making a specific, informed decision, for each copyrighted work at issue, about whether to engage in such infringement;

(B) actively interfering with copyright holders' efforts to detect infringing uses of dissemination technology and enforce their copyright against those uses;

(C) offering an incentive to users of dissemination technology to make infringing use of the technology, such as providing improved performance of the technology in exchange for infringing distribution of copyrighted works;

(D) failing to take reasonably available corrective measures to prevent any continuing acts of infringement resulting from overt acts described in subparagraphs (A)-(C) of this subsection (2) that were committed before the effective date of this subsection; or

(E) distributing a dissemination technology as part of an enterprise that substantially relies on the infringing acts of others for its commercial viability or the revenues of which are predominantly derived from the infringing acts of others.

(3) For the purposes of this subsection, and absent any other overt act, an "overt act" does not include:
(A) distributing any dissemination technology capable of substantial noninfringing uses knowing that it can be used for infringing purposes, so long as that technology is not designed to be used for infringing purposes;

(B) distributing any dissemination technology that incorporates reasonably effective measures to prevent or halt dissemination that constitutes infringement within the meaning of this subsection;

(C) advertising, marketing or promoting a dissemination technology that does not specifically encourage the use of that technology for infringing purposes;

(D) the providing of information on the use of a dissemination technology by the creator or distributor of that dissemination technology when the information does not specifically encourage the use of that technology for infringing purposes, including through instruction manuals, handbooks, user guides or customer support services;

(E) the providing of information on the use of a dissemination technology by a person not affiliated with the creator or distributor of that dissemination technology in the context of commentary, criticism, or reviews of the dissemination technology; or

(F) providing products or services to a distributor of dissemination technology in the same manner that such products or services are provided to other members of the public, including but not limited to financial services, delivery services, advertising services, product reviews or evaluations, library services, real estate services, customer-support services for users of computer software or hardware, utilities and telecommunications services.

(4) For the purpose of this subsection, "dissemination technology" means any product, service, device, component, or part thereof, that enables or facilitates the distribution of copies of a work to the public, performance of a work publicly, display of a work publicly, or the performance of a work publicly by means of a digital audio transmission.

(5) Courts adjudicating actions under this subsection should attempt, to the extent practicable, to minimize the potential burdens of such litigation upon the parties by measures including:

(A) allowing discovery and summary judgment on the objective questions of inducement and infringement before permitting discovery and adjudication of the subjective element of intent;

(B) exercising their authority under this Chapter to award fees and costs to the prevailing party.

(6) Nothing in this subsection shall enlarge or diminish the doctrines of vicarious and contributory liability for copyright infringement, including any defenses thereto or any limitations on rights or remedies for infringement, or the authority of courts to apply or adapt common-law standards. Nothing in this subsection shall enlarge or diminish liability for infringement of the exclusive rights in Sections 106(1) or 106(2).

(7) The limitations on liability in Section 512 shall apply to actions brought under this subsection.


[A provision to make clear that this bill has no effect on pending litigation over inoperative dissemination technologies, such as Napster.]

Let's look at what this bill doesn't do. It doesn't codify the Sony-Betamax decision, basically leaving it unchanged (except for dissemination technologies, which are defined to cover just about everything open system networked computers do nowadays). Oh, wait, that basically makes Sony-Betamax irrelevant, just like the original INDUCE Act.

There is also no protection for those who don't make any money from their programs. If a clever college student releases a new open source filesharing program into the wild, they can still be held liable. I thought this law was meant to target those who profit from inducing infringement?

One nice thing, they seemingly adopt my restriction on what the law should include, focusing solely on only a few of the exclusive rights under copyright, such as ignoring the right of reproduction, which is a good thing. They add the right of public display to my more limited list, but I don't find that crazy.

One major problem, the proposed alternative defines induce as "reasonably expected to cause or persuade another person or persons to commit any infringement." Gee, I wonder how such a standard would work in other areas of the law. Do gun manufacturers "reasonably expect" that their products would be used for crime? Well, yeah.

Where is the specific intent? Why not a specific intent standard?

This proposal targets defaults, by going after systems that let people infringe copyrights without specific decisions about each. I guess my sarcastic proposal that the email forward function needed a warning dialog box is what this proposal intends (Hatch's Hit List #35 - Email Forward Function):

Even worse is that there is no warning. When one chooses to use the "forward" function, there should at least be a copyright infringement warning dialog: "Forwarding email may be an infringement of copyright. Proceed? (Y/N)" Without such a dialog, there will be many innocent infringers, who might not realize that forwarding email can be a violation of copyright.
Providing privacy and anonymity will become elements of a crime under subsection (g)(2)(B).

Variations on BitTorrent have to worry about whether they offer improved performance for those who simultaneously upload and download. Wouldn't want too much efficiency in our transfer protocols. Such power is reserved for major media concerns and what not.

I have no idea what subsection (g)(2)(D) requires. Do you have to patch all software you've already distributed? What the heck would be reasonable?

Sony's own Betamax might have relied on infringement for it initial commercial viability. This law would ensure that it never established itself to become primarily non-infringing under (g)(2)(E).

The protection of (g)(3)(A) doesn't really mean a whole heck of a lot, except that Hollywood's lawyers will be paid an awful lot to demonize every technology that Hollywood doesn't like. "Of course it was designed for piracy, can't you see how evil this technology is?"

Use DRM and you're protected is what (g)(3)(B) says. Great, just great.

Protections for reviewers, and providers of support to those who make "dissemination technologies" seems reasonable. This will significantly reduce the costs of the original INDUCE Act, but just look at what "dissemination technologies" covers, it is still a huge swath of the technology and innovation industries. At least you don't have to worry about being sued for providing caffeinated beverages to filesharing coders.

Subsection (g)(5) will reduce the costs of litigation somewhat, but I doubt the reduction will be significant.

Overall, this bill will still be a terrible burden on creativity and innovation. It is improvement in the sense that innovation will be permitted a lingering death instead of immediate execution.

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 (2) + TrackBacks (0) | Category: INDUCE Act


1. Doug Hudson on September 3, 2004 07:30 PM writes...

Why does it include public display and public performance rights? P2P is concerned with distribution. By including display and performance, this is also a backdoor to regulation of pure display and performance equipment (everything from a digital keyboard to a television to a TIVO).

This should be limited to the distribution right, pure and simple, unless the real purpose is simply to create another back-door way of enforcing horizontal and vertical agreements (that would otherwise be antitrust violations) via an intellectual property pretext.

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2. John Mitchell on September 4, 2004 02:52 PM writes...

Doug Hudson states that "P2P is concerned with distribution." Correction: P2P is NOT concerned with "distribution," as the exclusive right of distribution is limited to physical distribution of tangible copies (and "phonorecords"). P2P is almost exclusively concerned with reproduction, and it is startling that a bill presumably intended to go after infringement of the exclusive right of reproduction carves out an exception so that it does NOT apply to anyone intentionally inducing massive infringement of the exclusive right of reproduction in Section 106(1). That is, the Copyright Office took great care to make it inapplicable to P2P.

In plain English, "distribution" can mean almost anything. In the Copyright Act, infringement of the exclusive right of distribution can only apply to tangible products. In plain English AND under the Copyright Act, when you "download a copy" from the Internet, you are making a reproduction.

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