Induce Part Deux

Ernest Miller has stayed on top of the proposed INDUCE copyright legislation. Here is a pdf of what I understand to be the most recent draft.

Most of the (eminently justifiable) opposition to the bill is based on the transparent political economy of the thing. It’s worth noting, in addition, that the draft is intellectually incoherent. If Congress passes anything that even remotely resembles this, then more than a few faculty members will earn tenure by analyzing it, more than a few judges will lose their hair over it, more than a few lawyers will get rich off of it, and more than a few innovators and consumers — who are already and understandably confused by copyright law — will simply lose their minds.

Rhetorical overkill? Consider just a few examples, with my own parsing, for what it’s worth:

“A determination that a person intentionally induces another . . . shall require that the person engaged in conscious and deliberate affirmative acts that a reasonable person would expect to result in widespread violations of subsection (a) [infringement by violations of sections 106 through 122] taking into consideration the totality of the circumstances.” Given the content of current copyright doctrine, it is impossible that such a reasonable person could be found or constructed. I assume that the reasonable person standard here is a proxy for various copyright policy concerns. Meaning that the statute merely adds mush to the swamp.

A consumer’s “private and noncommercial” use of a product or service cannot trigger liability for “inducing” that use. I think that I can get my mind around the idea of non-private, noncommercial use. I’m having a hard time with the idea of private, commercial use, but I’m willing to assume that file sharing fill that bill. I assume that that’s the point: to sneak the market failure theory of fair use into the letter of the law.

Advertising, marketing, or promoting a product, service or software is not “inducing” infringement “when doing so does not encourage the use of that device, service or software for infringing purposes.” The point may be to protect “responsible” innovators like Apple. Will it succeed? Test the likelihood that the standard will achieve its goal with a minimum of expensive, time-consuming litigation. Run it by an industry that has some experience with this sort of thing: Big Tobacco. Does BT say that children shouldn’t smoke? Check. Does BT say that smoking is dangerous? Check. Is BT liable for inducing dangerous, illegal activity? Check. Is Apple feeling better?

“Nothing in this subsection shall enlarge or diminish the doctrines of direct, vicarious, or contributory liability for copyright infringement, nor to alter or diminish the authority of the courts of appropriate jurisdiction to adapt or evolve those doctrines . . . .” This is my favorite part; it’s the real sleeper, the section 1201( c ) of the bill, if you will. In the guise of “protecting” our favorite doctrines, the bill may make them entirely irrelevant. Is fair use a defense to an INDUCE claim? I wouldn’t bet on it. Is Sony’s “substantial noninfringing use” standard an independent basis for avoiding INDUCE liability? Doubtful.