Commentary: No Matter What You Call It, the Inducing Infringement of Copyright Act Spells Trouble

Though it’s not aimed solely, or even primarily, at streaming media, the "Inducing Infringement of Copyright Act" should give anyone involved with moving content across the Web cause for concern.

The name has been changed from "Inducement Devolves into Unlawful Child Exploitation Act" to "Inducing Infringement of Copyright Act," but the bill is still commonly known as INDUCE, and that’s what I will call it here. The original name of the bill reflects the political ruse commonly used to fight peer-to-peer networks: that they were a hotbed of child pornography. Unfortunately for Orrin Hatch, the original sponsor, there was a severe shortage of proof of this connection, and much stronger evidence that the great majority of child pornography is traded one-to-one on the Internet via email and IM rather than by P2P.

Under either name, this piece of legislation scares the hell out of me.

What the bill boils down to is giving copyright holders a virtual veto power over any technological development that could possibly be used to distribute copyrighted material. It gives them this power by establishing contributory liability under copyright law for anyone who creates, develops, implements, or distributes technology (hardware or software) that is capable of disseminating copyrighted material without compensation to the copyright holders.

Because of the broad language regarding what constitutes inducement in the current bill, this liability would extend to anyone who even advocates the use of this technology. A couple months ago, Senator Patrick Leahy, one of the bill’s co-sponsors, entered a statement in the Congressional Record lauding Phish (Vermont residents and Leahy constituents), in which he commented favorably on their policy of encouraging fans to record and trade copies of their live performances. This could be found to violate INDUCE.

Because Rock and Rap Confidential, a newsletter of cultural and political commentary, runs a regular column entitled "Home Downloading Tips" (which are actually brief reviews of new CD releases), they could also be found liable for inducing copyright infringement under the act if it is passed with the current language. And the newsletter doesn’t have the advantage of Congressional immunity available to Leahy (though that might not apply, as Article I, Section 6 of the Constitution excludes felonies from immunity).

All the promoters of the bill (including, to no one’s surprise, the MPAA and the RIAA) say the bill will only be used to go after the "bad actors" engaged in promoting out-and-out piracy, but the reach is actually far greater. INDUCE is an overt and direct attempt to overturn the Supreme Court decision in Sony v. Universal Studios, the "Betamax case." That case established that if a device has substantial non-infringing uses, its developers, manufacturers, and distributors could not be found guilty of contributory copyright infringement if the device was also used to make unlawful copies of copyrighted works. For 20 years, the Betamax case has provided a safe harbor for hardware and software creators, protecting them from pre-emptive litigation from the "Big Content" entities intended to drive them out of business by forcing them to incur immense legal fees to defend themselves from these attacks.

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