Tomorrow, Senator Orrin Hatch (R - UT) will introduce one of the most blatant attempts at copyright maximalization ever attempted - the INDUCE Act. Fred Von Lohmann, Senior Intellectual Property Attorney for EFF, broke the story on Deep Links (INDUCE Act = Hollings II?). Donna Wentworth brought it to Copyfight here (INDUCE Act = Son of Hollings?). Prof. Susan Crawford briefly comments and posts a link to the actual act (INDUCE Act). Read the one-page proposed act here: INDUCE Act [PDF].
As Prof. Crawford says:
This is amazing. Now we're waaaaaay beyond contributory and vicarious theories of liability, which are court-created and pretty darn broad on their own. See Napster 9th Circuit, Aimster 7th Circuit. It's not even clear what the limit to this is -- "aids" could mean that even something that would have been fair use under the Sony Betamax decision is now an illegal inducement.
What is the INDUCE Act, exactly? Read on...
To amend title 17, United States Code, and for other purposes
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled
Section 1. SHORT TITLE
This Act may be cited as the "Inducement Devolves into Unlawful Child Exploitation Act of 2004."
Section 2. INTENTIONAL INDUCEMENT OF COPYRIGHT INFRINGEMENT
Chapter 5 of title 17, United States Code, is amended by adding to the end of section 501 the following:
(g) Intentional Inducement of Infringement.-Whoever intentionally induces any violation identified in subsection (a) of this section shall be liable as an infringer.
(1) In subsection (g), "intentionally induces" means intentionally aids, abets, induces, counsels, or procures, and intent may be shown by acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor, including whether the activity relies on infringement for its commercial viability.
(2) Nothing in this section shall enlarge or diminish the doctrines of vicarious or contributory liability for copyright infringement or require any court to unjustly withhold or impose any secondary liability for copyright infringement.
Von Lohmann says that,
Even a moment's reflection should make the danger to innovators clear -- you now have to worry not just about contributory and vicarious liability, but an entirely new form of liability for building tools that might be misused. It will be interesting to see whether the bill expressly precludes any Betamax-type defense. This may also pose First Amendment problems, to the extent a journalist or website publisher might be liable for simply posting information about where infringement tools might be found or how to use them.
I have to respectfully disagree with Fred. I see this proposed statute as clearly posing serious First Amendment problems.
Under Brandenburg v. Ohio, crime advocating speech may be punished only if such speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." [emphasis added] There is nothing in this statute that distinguishes mere advocacy from incitement.
It also seems to me that this statute as applied to speech is a content-based restriction, which means that it is subject to what is known as "strict scrutiny." In order to pass the strict scrutiny standard, the law must be "narrowly tailored" to meet a "compelling government interest." I'll grant that preventing copyright infringement is a "compelling government interest" but I'll be damned if the law is narrowly tailored to achieve it for a number of reasons. For example, much speech that induces infringement also induces fair use. You can't really stop one without stopping the other. One might even cite the overbreadth doctrine, which doesn't permit substantial lawful speech to be prohibited in order to stop unlawful speech. Substantial in the case in relation to the harm the government seeks to prevent. I think preventing people from counseling how to exercise fair use rights constitutes substantial lawful speech. I would also be extremely concerned that this is a civil law, which allows private actors to wield it like a hammer.
There are more examples. What of the cryptography researcher who publishes a paper or gives a lecture on the vulnerabilities of a particular type of DRM? Must Prof. Ed Felten of SDMI fame and the Freedom to Tinker fear penury?
Of course, some might argue (taking a narrow reading of the statute) that the speaker in these cases must intentionally intend infringement. So, Prof. Felten would be free since he obviously is a nice guy and would never intend people to commit infringement. The problem is that infringement is a strict liability crime with no intent necessary. This proposed statute doesn't apply only to willful infringements, it applies to "any violation" which means it applies to strict liability infringements. This seems to be confusingly close into a "knowledge" requirement as opposed to a true "intention" requirement. After all, if you know that your language will lead to some people engaging in a strict liability behavior, isn't that almost the same as saying you intended them to violate the law?
Seriously, do think it would be that hard to convince a jury that is already frightened of "hackers" that Felten or one of his graduate students did intend some people to infringe copyright? "You see, members of the jury, Prof. Felten has been extremely critical of existing copyright law, make of that what you will." Moreover, even though Felten (sorry to keep abusing your name Ed, but you make a convenient example for this statute) is unlikely to be guilty of intending to induce people to infringe ... how much of a threat of multiple lawsuits would it take to get him to start teaching another subject? Perhaps we should call this the "Shut Down Cryptography Research" statute.
This is a just a quick look at the proposed statute. The law here is actually quite complex and a couple of paragraphs barely scratches the surface of the issues involved. Nevertheless, any advocate of free expression should certainly be concerned by this statute. Oh, and by the way, this is only a brief look at some of the First Amendment issues. And talk about unbalancing copyright law...
A final aside. What is up with the title? What does copyright infringement have to do with child exploitation? I can only think that it is an homage to Sen. Hatch's strange obsession with P2P pornography (PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry and Pornography Obsession on Both Sides of P2P Debate).