Antipiracy bill targets technology

by Guest Contributor | Jun 18, 2004 1:39:00 PM

Takeaway: Should it be legal to sell a product that can be used to violate copyrights? Some U.S. senators don't think so.

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By Declan McCullagh
Staff Writer, CNET News.com

A forthcoming bill in the U.S. Senate would, if passed, dramatically reshape copyright law by prohibiting file-trading networks and some consumer electronics devices on the grounds that they could be used for unlawful purposes.

The proposal, called the Induce Act, says "whoever intentionally induces any violation" of copyright law would be legally liable for those violations, a prohibition that would effectively ban file-swapping networks like Kazaa and Morpheus. In the draft bill seen by CNET News.com, inducement is defined as "aids, abets, induces, counsels, or procures" and can be punished with civil fines and, in some circumstances, lengthy prison terms.

The bill represents the latest legislative attempt by influential copyright holders to address what they view as the growing threat of peer-to-peer networks rife with pirated music, movies and software. As file-swapping networks grow in popularity, copyright lobbyists are becoming increasingly creative in their legal responses, which include proposals for Justice Department lawsuits against infringers and action at the state level.

Originally, the Induce Act was scheduled to be introduced Thursday by Sen. Orrin Hatch, R-Utah, but the Senate Judiciary Committee confirmed at the end of the day that the bill had been delayed. A representative of Senate Majority Leader Bill Frist, a probable co-sponsor of the legislation, said the Induce Act would be introduced "sometime next week," a delay that one technology lobbyist attributed to opposition to the measure.

Though the Induce Act is not yet public, critics are already attacking it as an unjustified expansion of copyright law that seeks to regulate new technologies out of existence.

"They're trying to make it legally risky to introduce technologies that could be used for copyright infringement," said Jessica Litman, a professor at Wayne State University who specializes in copyright law. "That's why it's worded so broadly."

Litman said that under the Induce Act, products like ReplayTV, peer-to-peer networks and even the humble VCR could be outlawed because they can potentially be used to infringe copyrights. Web sites such as Tucows that host peer-to-peer clients like the Morpheus software are also at risk for "inducing" infringement, Litman warned.

Jonathan Lamy, a spokesman for the Recording Industry Association of America, declined to comment until the proposal was officially introduced.

"It's simple and it's deadly," said Philip Corwin, a lobbyist for Sharman Networks, which distributes the Kazaa client. "If you make a product that has dual uses, infringing and not infringing, and you know there's infringement, you're liable."

The Induce Act stands for "Inducement Devolves into Unlawful Child Exploitation Act," a reference to Capitol Hill's frequently stated concern that file-trading networks are a source of unlawful pornography. Hatch is a conservative Mormon who has denounced pornography in the past and who suggested last year that copyright holders should be allowed to remotely destroy the computers of music pirates.

Foes of the Induce Act said that it would effectively overturn the Supreme Court's 1984 decision in the Sony Corp. v. Universal City Studios case, often referred to as the "Betamax" lawsuit. In that 5-4 opinion, the majority said VCRs were legal to sell because they were "capable of substantial noninfringing uses." But the majority stressed that Congress had the power to enact a law that would lead to a different outcome.

"At a minimum (the Induce Act) invites a re-examination of Betamax," said Jeff Joseph, vice president for communications at the Consumer Electronics Association. "It's designed to have this fuzzy feel around protecting children from pornography, but it's pretty clearly a backdoor way to eliminate and make illegal peer-to-peer services. Our concern is that you're attacking the technology."

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