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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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Copyfight

« INDUCE Act = Son of Hollings? | Main | All Your Public Domain Are Belong to Us »

June 16, 2004

INDUCE Act is Free Speech Killer

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Posted by Ernest Miller

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...

A BILL

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).

Comments (10) + TrackBacks (0) | Category: Laws and Regulations


COMMENTS

1. Doug Hudson on June 17, 2004 9:59 AM writes...

Keep in mind that liability for active inducement has a long history in patent law. Under that doctrine, if you knowingly take steps to induce a third party to infringe a patent, and the third party actually infringes, you are jointly liable with the third party for damages for the patent infringement.

For example, one key difference between inducement and contributory infringement (in the patent context) is that having a substantial non-infringing use is not a defense to a charge of inducement. Court decision (even within the Federal Circuit itself, the court hearing patent appeals) differ on what constitutes active inducement.

However, in the patent context, active inducement liability has not really had many first amendment style challenges.

Various speech "acts" have been found relevant to a finding of inducement, such as advertising infringement or instructions on how to infringe.

Advertising tends to fall into the commercial speech doctrine. Ask Nike how that works...

Instructions should at least get intermediate scrutiny following Bernstein and Remierdes, but under Judge Nemwan's reasoning in Remierdes, the functional nature of instructions sometimes outweights the speech aspects in a copyright context.

Point being, while I understand your concern about first amendment issues, active inducement liability has been a longstanding component of patent law. While the merits of extending active inducement liability to copyright can be argued either way, and the breadth of any particular statutory amendment can be too narrow or too broad depending on your point of view, inducement liability has a long history in both the intellectual property and criminal context.

This said, if a statute were to take inducement so far as to provide liability for, for example, lobbying for changes in copyright law or developing infringement-neutral technologies

(The comments made herein are for purposes of acadmemic discussion of the hypothetical extension of inducement liability to copyright, do not constitute legal advice, and do not necessarily represent the view of any client or firm.)

Permalink to Comment

2. doug hudson on June 17, 2004 10:19 AM writes...

Also, on your question of what intent is necessary for active inducement --

Interestingly, in the patent context, the question has never been completely resolved. Some (mostly earlier) cases say that you need intent to practice the patent, other cases (more recent cases) say you only need intent to perform the activities that would result in practicing the patent -- whether or not you knew the patent existed. The conflict hasn't yet been resolved to my knowledge.

I have no idea how this would apply in the copyright context (perhaps, per Berne, there would be some sort of presumption that one knows stuff is copyrighted) but I wanted to give you a heads up that this issue is a live one.

Permalink to Comment

3. Ernest Miller on June 17, 2004 11:02 AM writes...

Good points, but there are some significant differences between copyright and patent.

First, copyright itself is about restrictions on speech and clearly implicates the First Amendment everytime it is invoked - much more so than patent. So, unlike in patent, we have speech restrictions upon further speech restrictions.

Second, as you note, there is no substantial non-infringing use defense in patent, although the "staple" item defense is somewhat similar. However, there is no fair use defense. This is where most of the patent analogies break down. If I provide instructions on how to infringe a patent, there is seldom a lawful use for those instructions. If I provide instructions on how to infring copyright, there is often a lawful use for those instructions - to engage in fair use. Clearly, the First Amendment concerns are great when your law extends to much lawful speech, particularly speech at the core of the First Amendment such as criticism and commentary.

Third, I'm not sure how many cases would necessarily be relevant to the cases likely to be brought under the law. I'm a bit weak on my patent law here, so perhaps I'm just not knowledgeable enough, but how many inducement cases have involved companies inducing the average citizen (or masses of citizens) to infringe patent? The ones I'm aware of deal with one company inducing another company to infringe patent.

Fourth, statutory patent inducement was a codification of existing patent law. This would be wholly new to copyright, as there is no judicially-created doctrine of copyright infringement inducement at this time.

Permalink to Comment

4. Crosbie Fitch on June 17, 2004 12:47 PM writes...

Well, if inducement becomes applicable to copyright, perhaps just as all patents are public documents there should be a central register of copyrighted works - where anyone can view a work and thus there is a clear reference to determine when infringement has occurred or been induced.

However, such a register would obviously itself be an inducement to infringe.

If a register simply listed all the secure hashes, even those would provide a facility to file sharers and thus an inducement to infringe.

If copyrights are to be protected like patents then perhaps they should be published like patents?

Permalink to Comment

5. Peter da Silva on June 18, 2004 3:43 PM writes...

Could someone comment on what inducing patent infringement would entail? Would publishing or paraphrasing the patent itself count as inducement? I wouldn't think so, otherwise the patent office would be guilty... but the same activity in the copyright realm could be copyright infringement itself, let alone "inducement".

Permalink to Comment

6. nostrum on June 18, 2004 4:34 PM writes...

With our current system, it is generally an all-or-nothing deal. This doctrine is a "some" description, that will simply make it a less black-and-white problem. There are only two actual solutions to this problem: 1. Make all copying legal and give government funding to artists based on a popularity rating system OR 2. Change all courts to be "situational courts" - based on particular instances of copyright infringemnet. A more specific look at one of these two solutions can be found in the novel "Ecotopia" - this is how we should have ran our government; the idea of the copyright is counterproductive to our economic system - those few inventors that have good ideas have no way to pay for patents and would rather not release them than to get used by a large corporation for their years of effort. It would be much better for the government to have a "creative fund" or sorts for musicians, inventors, and artists. This way, America would be motivated to produce better products than to have ongoing internal conflicts within our own country based on who has credit for what.

Permalink to Comment

7. Joe Public on June 18, 2004 5:22 PM writes...

I thought a major point of having patents was that skilled people can reproduce what is patented. If somebody patents a design for a "widget", then anbody can use that design to make their own "widget" for their own personal use. They just can not sell their homemade "widget". Which encourages them to design a better "widget" that they can patent.

Copywright should work in a similar fashion, anybody should be able to copy what ever they want. Distribution of that copied material would be infringement and illegal. only the infringer would be liable. If somebody was to drive a truck full of knock off watches up the highway, should the taxpayers be held liable because they own the highways?

Permalink to Comment

8. Larry on June 18, 2004 5:35 PM writes...

Another difference between patents and copyrights is that the feds have recently shown that they'll prosecute people vigorously and punish them harshly for copyright infringement but I believe that patent infringement is a civil matter.

Permalink to Comment

9. Sol-Badguy on June 20, 2004 9:53 AM writes...

If this passes kiss your computer goodbye cause under this a computer would be an obvious device able to perform copyright infringement and able to decrypt, much to the delight no doubt of the mian pushers to this bill our favorite greedy four letter corps, the RIAA and MPAA. This better not pass or I am moving to Canada.

Permalink to Comment

10. Bob Matthews on June 23, 2004 5:47 PM writes...

Hey - let this pass with one condition: Microsoft will be the first company prosecuted, and no one else can be prosecuted under the law until Microsoft is convicted. Since they make the OS that runs on over 90% of the infringing devices (and Kazaa is Windows only), they are obviously the ones most responsible for ruining the recording industry;-)

Permalink to Comment


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