EFF Fears the Inducing Infringement of Copyright Act Will Stifle Innovative Technology

August 2004

Record Labels, Music Publishers, Film, Television, Internet

The Electronic Frontiers Foundation have pointed out that Senator Orrin Hatch’s new Inducing Infringement of Copyright Act (S.2560, Induce Act) would make it a crime to aid, abet, or induce copyright infringement. The EFF say that Senator Hatch “wants us all to think that the Induce Act is no big deal and that it only targets ‘the bad guys’ while leaving ‘the good guys’ alone. He says that it doesn’t change the law; it just clarifies it. He’s wrong.”. The EFF comment that under the Supreme Court’s ruling in Sony Corp. v. Universal City Studios, Inc. (the Betamax VCR case), devices like the iPod and CD burners are “100% legal” not because they aren’t sometimes used for infringement, but because they also have legitimate uses. The Court in Sony called these “substantial non-infringing uses.”
The EFF have suggested that the Inducing Infringement of Copyright Act might “kill the iPod” and to dramatise how the Induce Act might harm technology innovators and consumers. The EFF have posted a mock complaint on their website which is a lawsuit that could be brought against Apple, accusing the corporation of selling its popular iPod music player to induce people to infringe copyright. The complaint mimics the format of an actual complaint that the EFF suggest record companies might draft. The complaint also names Toshiba as a defendant for manufacturing the iPod hard drive and CNET for writing a review of the iPod that instructs users on how to copy music files between computers. Because the Induce Act defines “intent” as being “determined by a reasonable person taking into account all relevant facts,” it’s unlikely that a technology company like Apple would be able easily to dismiss a lawsuit brought against it under the Act. It would instead face the prospect of an expensive trial, with all the attendant legal fees and negative publicity. The EFF add that one company, SonicBlue, recently fought against a group of copyright holders in court over its ReplayTV and spent close to $1,000,000 per month in legal fees alone. The inducement theory thus enables copyright owners to inflict an arbitrarily large penalty on any tech company that builds a device they (copyright owners) don’t like. EFF hopes that the mock complaint, brought by a hypothetical “group of major recording labels” against Apple, will raise awareness about how the Inducing Infringement of Copyright Act will destroy incentives to innovate.

For the full press release:

Case Law:
Sony v Universal City Studios (1984) 104 US 744
CBS Songs v Amstrad (1988) RPC 567

Further comment from the EFF EFFector Vol. 17, No. 26 July 15, 2004

The Senate Judiciary Committee has taken the Inducing Infringement of Copyrights Act (Induce Act, S.2560) off the fast track, scheduling a hearing on the bill next Thursday. This is good news for the public, but the recording industry is going on the offensive, turning up its rhetoric in an effort to scare common sense out of the debate. In a letter sent to the Judiciary Committee and all 100 senators, RIAA president Mitch Bainwol insists that critics of the bill are missing the point, and that the Induce Act is a “moral behavorial test that targets the bad guys.” But the wording of the legislation itself doesn’t support Bainwol’s claims. By making it illegal to “aid, abet, or induce copyright infringement,” the Induce Act could make companies liable for violations committed by their customers. This extends liability so far that it threatens both current and future technologies. Under the Induce Act, creators of the next iPod or VCR would be forced to subject themselves to approval from every major copyright holder before even getting to market. That’s too high a price to pay to satisfy the recording industry in its witch-hunt for peer-to-peer file sharing.

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