One Step Closer

Following the recent 9th Circuit decision holding that p2p networks such as Grokster and Morpheus are not liable for contributory or vicarious copyright infringement, members of Congress and the RIAA seek ligislation overuling the decision. However, proposed legislation such as the Induce Act has met vast criticism that it creates liability for producers of products with substantial noninfringing uses such as Apple's iPod because it may induce people to infringe upon copyrighted materials. A response to the Induce act was the Don't Iinduce Act, drafted by the Home Recording Rights Coalition. The Don't Induce Act seeks to preserve the Supreme Court's 1984 holding in Sony v. Universal by specifically targeting those who encourage others to infringe upon copyrighted material for financial gain while exempting technology that has substantial noninfringing uses. However, Don't Induce is also attacked with substantial criticism that it may be too narrowly drafted and hard to apply.

On September 2, 2004, the US Copyright office drafted a new version of the Induce Act in an attempt to satisfy the two competing interests. The Discussion Draft was written with the intention that it will ban networks like Kazaa while not creating liability for manufacturers of devices with noninfringing uses such as mp3 players. The newest version of this act is more narrowly tailored to encompass only those who "intentionally induce another to infringe" upon copyrighted material. Induce is defined as "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."

Some of the major criticism of this new version comes out of what constitutes "overt acts." Among these overt acts are interference with copyright holder's efforts to detect infringing uses and failing to take reasonably available corrective measures to prevent any continuing acts of infringment. However, while this version is not without flaws, it does appear to be more protective of technologies with noninfringing uses than the original version. The act details examples of actions that do not fall within "overt acts" for the purposes of this bill such as distribution of technology that has substantial noninfringing uses, even knowing that it can be used for infringing purposes, so long as it is not designed for infringing purposes.

Many of the objections to this latest draft are due to uncertainty. Businesses and consumer groups want clear cut answers as to who will be held liable and when. This seems to be a fairly reasonable oobjection. However, is it an entirely realistic demand? This legislation will be drafted again and again before it is finally passed. And by the time it is certain enough to be passed, it may have already lost much of its power. The more specific the legislation becomes, the more easily ways will be found to get around it. This is not to say that vague legislation should be passed, and then enforced by the courts as they see fit. But legislation that is too specific runs the risk of being ineffective.

No matter how well drafted the legislation is, it will always require interpretation by the courts. And while much of the criticism is not without merit, a perfect draft that satisfies everyone will never be written. These are extremely complicated matters that the law seeks to correct. Perhaps somewhat broad legislation interpreted with case by case analysis is the way to go. But whatever the correct answer, at least the 09/02/04 draft is a step in the right direction.