CDT POLICY POST Volume 10, Number 19, October 26, 2004

A Briefing On Public Policy Issues Affecting Civil Liberties Online
from
The Center For Democracy and Technology

(1) Senate Holds Off on Copyright Inducement Bill, Further Efforts to Target P2P Likely

(2) Though Intended Narrowly, Inducement Drafts Would Have Swept in Valuable Technology

(3) Other Copyright Measures Still Pending in Congress, Could Pass

(1) Senate Holds Off on Copyright Inducement Bill, Further Efforts to Target P2P Likely

In recent weeks, there has been a flurry of activity In Washington on copyright legislation, focused mainly on the "Inducing Infringement of Copyright Act," S. 2560. The bill, formerly known as the INDUCE Act, was designed to target companies - especially makers of P2P file sharing software - that "induce" widespread copyright infringement .

Consumer groups and technology companies warned that, unless narrowly drafted, the law would impact a wide array of valuable consumer technologies. Intensive discussions among a range of interested parties, including CDT, failed to yield consensus language and the Senate Judiciary Committee put off a scheduled mark-up on the bill.

Although Congress will return after the election for a "lame duck" session, it is very unlikely that differences over the bill will be resolved this year. However, the issue will surely be back on the Congressional agenda next year, and it is likely that there will be further efforts to draft legislation. The sponsors of the Inducing Infringement of Copyright Act have said they remain committed to finding a way to hold accountable those who intentionally induce copyright infringement.

CDT has reiterated its willingness to work with others to try to find a balanced solution. CDT continues to emphasize, however, that any law must be narrowly tailored and cannot do collateral damage to innovation or basic technologies online. Thus, the impact of any bill on valuable and rapidly changing Internet technologies must remain a crucial benchmark.

• CDT letter, urging Senate Judiciary Committee to Hold Off Consideration of Inducement bill
   
• CDT's Copyright page
   

(2) Though Intended Narrowly, Inducement Drafts Would Have Swept in Valuable Technology

Senators Orrin Hatch and Patrick Leahy, the sponsors of S. 2560, had stated that they sought a "technology-neutral law directed at a small set of bad actors while protecting our legitimate technology industries from frivolous litigation." CDT has voiced its support for this goal.

The latest drafts of S. 2560, emerging from intensive discussions in recent weeks, attempted to meet the goal by outlawing the manufacture of "peer-to-peer products" used for "viral distribution" where such infringement was "the principle reason the majority of users are attracted" to the product.

However, CDT and others pointed out that the proposed definitions would have swept in a broad range of legitimate consumer technologies, including products like TiVo, online collaboration tools, new instant messaging systems, and even web browsers. The bill would have created liability simply for manufacturing or selling such products if they became widely misused. This would have gone against the longstanding "Sony-Betamax doctrine," which assures product manufacturers that they cannot be liable for selling a product that has significant non-infringing uses.

The proposal of the Inducing Infringement of Copyright Act generated widespread grassroots response in the form of online activism and direct calls to Senate offices. This response was crucial to spreading understanding about the potential harmful impacts of the bill.

Senator Hatch, who is the chairman of the Judiciary Committee, acknowledged some of the concerns raised by current drafts of the bill as reasons for holding off consideration by the Committee for now.

Internet users should remain watchful and be prepared to engage their representatives again as future drafts are proposed.

(3) Other Copyright Measures Still Pending in Congress, Could Pass

In addition to S. 2560, a variety of copyright enforcement measures may yet come to a vote this year. These have been combined into a single long bill, H.R. 2391. The bill includes:

• A provision to criminalize the use of video recorders to tape presentations of movies in theaters.
   
• A new copyright law education program, to be run by the Department of Justice (DOJ);
   
• A voluntary program for ISPs, under which the DOJ would send ISPs notices that particular subscribers are suspected of violating copyright law. The ISP would forward these warnings to their subscribers, without disclosing to the DOJ or third parties information identifying the suspected infringer.
   
• A measure to exempt the makers of devices that skip predetermined parts of movies or other video content from any copyright liability. The provision was drafted to protect makers of "Clearplay" DVD players and similar devices that automatically skip violence or other objectionable content in movies. Devices that automatically skip
   
• A provision to allow the Department of Justice to bring civil copyright cases, like those currently being brought by the RIAA against peer-to-peer users. Currently only private parties can bring civil cases, and consequently they bear the cost of such enforcement.
   
• A provision to lower the standard required for criminal copyright prosecutions, aimed at users of peer-to-peer networks. The provision would change the required level of intent from "willfulness" to "reckless disregard" and would make it a federal crime to make available even a single pre-release copyrighted work.
   
• This final provision lowering the bar for criminal copyright liability is one of the most controversial element of the bill. Critics have argued that the lowered standards could inappropriately turn what were formerly much smaller violations into federal felonies, and that such a sweeping law would invite selective enforcement.
   

Opposition to this and other elements of the bill prevented its passage before Congress adjourned at the end of October. The future of the bill is uncertain. Sponsors are now working to answer some of these objections and hope to achieve passage when the lame duck Congress meets in November.

More Information:

• Text of H.R. 2391
   

Detailed information about online civil liberties issues may be found at http://www.cdt.org/.

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Policy Post 10.19 Copyright 2004 Center for Democracy and Technology