Inducing Infringement of Copyrights Act

Dear Rep. Moran:

Recently the media has given attention to the Senate Bill S 2560, Inducing Infringement of Copyrights Act (“Induce Act”) that would seem to provide liability a company that provides software, hardware or service that encourages copyright infringement and piracy even if its product has legal use and is intended for legal use. The act reminds us of an earlier issue in the 1980s with the VCR. Recently, the 9^th Circuit has ruled that providers of file-sharing software without a central server will not be held liable for the infringements of their customers.

As an “emerging artist” (I hope!) and possibly future filmmaker myself, I can understand the seriousness of the piracy problem and the threat it poses to the livelihoods of artists. As a substitute teacher I am also concerned about plagiarism and the general lack of ethical understanding of a younger generation that not everything is “free.”

However, there is another side to the problem. New artists are likely to use file-sharing (which will now be somewhat safer as Microsoft issues Service Pack 2), as well as DVD-burning or CD-burning and copying technology to distribute their own work to others, often free or for low costs, in order to be “noticed.” In a like manner, artists also establish domains and sometimes their own webservers to do so.

Technology has provided new opportunities to newbies, but of course it also provides some legal and perhaps ethical uncertainties because artists can distribute their work in an unsupervised manner without the intervention of established third parties. Issues like invasion of privacy and right of publicity come to mind as well as copyright. Moreover, established commercial interests in the entertainment community, such as actors’ or writers’ guilds, or agents, or production or distribution companies may fear gradual loss of economic interest and therefore high-paying jobs from low-cost competition. This is always possible with new technology, as we already know from dealing with offshoring.

It is always easy to rationalize downstream liability laws in areas like copyright protection and even anti-terrorism (remember the case with the Paladin book about assassination, Hit Man?). However such laws run the risk of chilling out new software and hardware innovation and new opportunities for emerging artists.

I urge Congress to proceed with great care in this area. Talk in detail to software and hardware companies (including Microsoft, IBM for Linux, providers of file-sharing software, web-hosting companies, and manufacturers) about other innovations to filter out the real infringers first. I will keep research this problem on my own.

I look forward to your comments on this matter.

John W. Boushka

http://www.hppub.com/ (RIAA discussion at http://www.hppub.com/eriaa.htm with other bibliographic references there), http://www.doaskdotell.com/

Note:  On January 6, 2005 Jonathan Krim provided The Washington Post with the provocative story “Tech Firms Aim to Change Copyright Act: ISP’s Liability for File Sharers at Issue,” in which Krim reports that The Business Software Alliance (BSA) is lobbying Congress to amend the Digital Millennium Copyright Act of 1998 to require more pro-active cooperation from ISP’s in tracking down potential file sharing copyright infringements without the necessity to file individual lawsuits. This would seem to invite passage of something like the Inducing Infringement of Copyright Act (“Induce Act”).