Letter 9/29/2004 Opposing Induce Act (S. 2560) to Sen. John Warner (R-Va.) and Sen. George Allen (R. Va).

 

I just want to speak out against the Induce Act (or the so-called Betamax Act), S. 2560) which I understand you may vote on today. Any law that confers downstream contingent liability for unsupervised customer conduct (even copyright infringements)is dangerous, and may interfere with legitimate use of technology by artists seeking to develop, publish and market their own work (rather than pirate the work of others).  I do fear that the motive of such a law may be partly to eliminate competition from small artists with low overheads (compared to the expenses of unionized work forces in movie and recording studios) as much as to prevent piracy.

 

John W. Boushka

 

Reply from Sen. George Allen: (R-VA) (9/30/2004)

 


      Thank you for contacting me regarding S. 2560, Inducing Infringement
of Copyrights Act of 2004 (Induce Act).  I appreciate your concerns and
value the opportunity to respond.

      The Induce Act attempts to increase government regulation in the area
of intellectual property and copyright law.  This measure would hold any
individual who intentionally induces, aides, abets or procures infringement
of copyrighted material liable for a copyright violation.

            As you may know, I am a strong supporter of intellectual
property rights, and believe that artists and entertainment companies are
entitled to compensation for their work.  However, I also believe that we
must protect the legitimate fair-use rights of consumers.  In today’s
marketplace, innovations in technologies, rather than government-imposed
mandates, can effectively balance between the interests of consumers and
the entertainment industry

The Induce Act currently has been referred to the Senate Judiciary
Committee and I am still in the process of considering the effects this
bill will have on both consumers and the marketplace.  Please be assured
that should this measure come before me on the Senate floor for a vote, I
will certainly keep your thoughtful comments in mind.

      On a related note, last year I worked with Senator Leahy to secure $5
million to increase international enforcement efforts to protect U.S.
copyrighted materials.  This year, I am working with Senator McConnell,
Chairman of the Foreign Operations Appropriations Subcommittee, to secure
$5 million for the Bureau of International Narcotics and Law Enforcement
budget in order to further efforts to combat international piracy.  As the
world’s largest creator, producer and exporter of copyrighted materials,
the United States has a strong and pressing need to protect itself from
widespread global piracy.


Once again, I appreciate you alerting me to this matter and hope you will
not hesitate to contact me again about issues important to you.  If you
would like to receive an e-mail newsletter about my initiatives to improve
America, please sign up on my website (<http://allen.senate.gov>).  It is
an honor to serve you in the United States Senate, and I look forward to
working with you to make Virginia and America a better place to live,
learn, work and raise a family.

 

Reply from Senator John Warner: (R-VA) (10/5/2004)

 

Thank you for contacting my office to share your views regarding S. 2560, the Inducing Infringement of Copyright Act of 2004, introduced by Senator Orrin Hatch (R-UT).

 

This legislation would allow artists to bring civil suits against parties who intend to induce others to infringe copyright laws. The bill is currently before the Senate Judiciary Committee and is awaiting action by the full Senate.

 

Copyright protection has been an important part of cultural and economic policy of the United States since the founding of the Republic. Article 1, Section 8, Clause 8 of the U.S. Constitution states that, “The Congress shall have the power to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

 

While I believe in strong copyright protections, Congress has been charged with striking a balance between protecting authors and artists and making their works available to the public. As you may know, in 1998 Congress passed the Digital Millennium Copyright Act (DMCA) in an effort to address the rights of copyright holders in the digital era.

 

The application of trademark and copyright laws to the Internet and how such laws would be enforced remains an issue of Congressional scrutiny.

 

Should this legislation or a similar proposal come before the full Senate for consideration, I will certainly keep your views in mind. If my office can be of further assistance in any matter related to the federal government, please do not hesitate to contact me.

 

With kind regards, (signature).

 

 

Reply from Representative Jim Moran: (D-VA, 8th District) (1/11/2005)

 

At the conclusion of the 108th Congress, I thought you might appreciate an update on copyright legislation, specifically the Inducing Infringement of Copyrights Act of 2004 (S. 2560).

 

S. 2560 states that. “whoever intentionally induces any copyright infringement shall be liable as an infringer.” I understand your concern that this language could be interpreted too broadly, perhaps even to include recording shows on a VCR or DVD player. The 108th Congress chose not to act on S. 2560; it was not reported from the Senate Committee on the Judiciary. Rest assured that should this issue reach the House of Representatives, I will take your thoughtful views under consideration.

 

Please feel free to visit my website http://www.moran.house.gov which contains information on other topics of interest or sign up for the Moran E-Digest to receive periodic email updates and issue alerts. Thank you again for contacting me.

 

Yours truly  (signature). 

 

Jeff Howe provides a summary of arguments against the Induce Act, including the argument that it could implicate taken-for-granted mechanisms like browers and search engines, in Wired Magazine, Oct. 2004, “Keep Your Laws off my Technology: 5 Reasons why Congress shouldn’t pass the Induce Act in any form,” at http://www.wired.com/wired/archive/12.10/start.html?pg=5

 

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Essay on Piracy Problem, including mention of recent lobbying by the Business Software Alliance (BSA) to loosen downstream liability protections for ISPs in the DMCA.

 

To track this bill, go to http://thomas.loc.gov/cgi-bin/bdquery/z?d108:s.02560:

 

Text of act:   A BILL

To amend chapter 5 of title 17, United States Code, relating to inducement of copyright infringement, 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 `Inducing Infringement of Copyrights Act of 2004'.

SEC. 2. INTENTIONAL INDUCEMENT OF COPYRIGHT INFRINGEMENT.

Section 501 of title 17, United States Code, is amended by adding at the end the following:

`(g)(1) In this subsection, the term `intentionally induces' means intentionally aids, abets, induces, 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) Whoever intentionally induces any violation identified in subsection (a) shall be liable as an infringer.

`(3) Nothing in this subsection shall enlarge or diminish the doctrines of vicarious and contributory liability for copyright infringement or require any court to unjustly withhold or impose any secondary liability for copyright infringement.'.