The media industry supports the “Inducing Infringement of Copyrights Act of 2004” (commonly known as Induce Act) as an effort to crack down on digital piracy by amending 17 U.S.C. §501 to allow liability for an “intent to induce infringement.”
The Home Recording Rights Coalition (HRRC) has drafted and sent an alternative to the Induce Act called the Discouraging Online Networked Trafficking Inducement Act of 2004 (DONT Induce). The primary difference is that DONT Induce narrows liability to those who traffic in software that engage in indiscriminate infringement with the specific and actual intent to reap financial gain by “encouraging” such behavior.
Opponents of the Induce Act state that the standard for liability is hopelessly vague and subjective. Intent, by its very nature, is a subjective state of mind and passage of the Induce Act would gut the heart of “substantial non-infringing uses” in Sony v. Universal City Studios and leave an empty shell of protection by allowing copyright owners to essentially haul anyone into court where a reasonable person might infer an intent to induce infringement. Thus, the Induce Act would move away from the objective standard of substantial non-infringing uses and allow the subjective standard of intent to induce infringement to reign over infringement suits.
However, DONT Induce doesn’t fare much better. DONT Induce aims to narrow liability to those with a specific and actual intent to reap financial gain through infringing activities. Again, the standard is subjective and an assessment of the actor’s state of mind needs to be made in determining liability for copyright infringement. Technology companies are fair game as targets of copyright infringement suits because it is arguable that the technology they provide encourages infringement and was provided for the ultimate goal of financial gain. An argument can be made for financial gain even when the technology is gratis because the company gains market identification (brand recognition) and ultimately goodwill by providing the technology to the public.
An argument can be made suggesting that DONT Induce is actually worse off than the Induce Act because DONT Induce requires at least two judicial determinations and the Induce Act requires at least one judicial determination. Under DONT Induce, the courts have to decide whether the infringement is the predominant function of the defendant’s software and whether it is the distributor’s predominant source of revenue. The Induce Act only requires a judicial determination whether the defendant intended to induce infringement.
It is clear that the Induce Act would shift the infringement analysis to a subjective standard. If the goal is to preserve the objective standard in Sony v. Universal City Studios, the best solution is defeat the Induce Act rather than enacting DONT Induce Act and requiring a greater judicial expenditure of resources in adjudicating infringement cases. The objective standard is an almost universally accepted method to conserve judicial resources and reduce the number of cases that require adjudication. Copyright owners remain free to identify and sue copyright infringers individually under Sony v. Universal City Studios.
It is worthwhile to note that this writing examines only one of the controversial issues of the Induce Act/DONT Induce Act (specifically the burdens that would be created for the courts in determining intent to infringe). There are other issues of the Induce Act/DONT Induce Act that have not been examined but are important to consider in fully understanding the Induce Act/DONT Induce Act.