New Induce draft
There's a new Induce draft floating around as of late this afternoon. It's not likeable; although it more carefully focuses on the showing of intent through conscious and deliberate acts, it still creates a risk of liability for manufacturers or service providers who make things available that permit public availability (eg, providers of peer to peer systems, including IM, and general purpose computers) of copyrighted works. Initial impressions:
1. Great initial breadth: whoever intentionally induces infringement shall be liable as an infringer.
2. Intentional inducement does require “conscious and deliberate affirmative acts that a reasonable person” would expect would result in widespread infringement. That's better than actions just being “a cause” of infringement.
3. Knowledge of infringement (even actual knowledge) is not enough to add up to intent.
4. Private, noncommercial, non-public-distribution by endusers is not enough to justify a lawsuit under this act – this may mean a motion to dismiss would work if the only evidence of infringement was this kind of end-user behavior.
5. Advertising, financing etc. products and services is not the same as intentional inducement — at least by itself. These actions plus more could be intentional inducement.
6. Injunctive relief should be limited to stopping infringing uses — which means that judges will be in the business of blessing design deals insisted on by plaintiffs.
7. Pattern or practice of inducement (shades of RICO!) may lead to statutory damages award — amounts could be huge.
8. Sony not affected by this act — translation: you won't need to sue for secondary copyright liability any more, because the broad language of this act will give you a cause of action for direct infringement liability.
We'll see what happens next.
They're Going To Win
I was at a joyous pre-IFP event tonight (tomorrow's seminar is all about just how bad copyright problems are for independent film-makers). It was a gathering of the loyal opposition: we're all for copyright, don't get us wrong, but we're not so sure that the trend lines are going in the right direction. We had a fine time.
Perhaps we should have gone collectively (if only virtually) to the content session David Weinberger went to earlier this week. Froomkin snips from Weinberger's post:
they’re going to win. They own Congress and neither Congress nor the entertainment cartel sees any reason to compromise. Their Lakoffian frame tells them that they’re stopping theft, end of story. So they are going to kill the Internet and they don’t even know it.
If these two groups ever met — other than at a polite Hill assemblage to discuss the future of the Induce act — could they have a civilized conversation? Or is discourse impossible?