Parties Meet on Copyright Inducement Language
Senior Senate Judiciary Committee staffers, U.S. Copyright Office officials such as Assoc. Register Jule Sigall, and industry representatives including Sarah Deutsch and Kathy Zanowic of Verizon were meeting at our deadline Tues. regarding proposals to modify legislation targeting inducement of copyright infringement. A draft proposal by the Copyright Office circulated last week generated opposition among the high-tech and fair-use community (CD Sept 7 p6, Sept 3 p4). Critics have called it overbroad, with several groups instead urging consideration of a proposal CEA offered in Aug. (CD Aug 26 p7). Inducement language could be included with new authority for the Dept. of Justice in a broader copyright bill aimed at clearing Congress this year, according to Hill sources.
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At issue is S-2560 by Committee Chmn. Hatch (R-Utah) and ranking Democrat Leahy (Vt.). Their bill would extend secondary liability to entities that “induce” copyright infringement. It responds to recent court decisions finding P2P services such as Grokster not liable because their software has noninfringing uses. After faulting S- 2560 as unnecessary (CD July 23 p8), CEA and others decided to honor a request by Hatch and Leahy to draft alternate legislation. Their bill targets indiscriminate, mass-infringing distribution of copyrighted content, provides a safe harbor for ISPs and reaffirms the Sony Betamax fair-use decision. Content producers faulted the proposal, however, arguing it would be impossible to pursue a case against anyone under the legislation.
The Copyright Office takes a different approach, targeting “overt acts” of infringement. The language lists several ways someone can commit an overt act of inducing infringement, but they aren’t exhaustive, leaving open other possibilities. Content industries have been silent on the draft, but others have faulted it. Center for Democracy and Technology Assoc. Dir. Alan Davidson wrote Sigall raising several criticisms: (1) A single act could be penalized, not just large-scale infringement. (2) “Overt acts” are not narrowly targeted, and the wording could lead to extensive litigation. (3) Safe harbors are unclear. (4) “Unnecessary demands” could be put on technology development to ensure compliance.
Similar points were made in letters to Sigall by Verizon and Public Knowledge (the Copyright Office released its draft Thurs. and requested responses Fri.). Wiley Rein & Fielding attorney Bruce Joseph -- and expected to be at the Tues. meeting -- wrote on Verizon’s behalf that the “very limited” review possible on short notice suggested Sony Betamax could be threatened and ISPs could be vulnerable to liability. Public Knowledge Legal Dir. Mike Godwin wrote that the “overt acts” provision was subjective and could “induce (as it were) frivolous litigation.” Distributed Computing Industry Assn. (DCIA) declined to engage in “arguing legal precedent and citing case law,” instead informing the Copyright Office and the Senate staffers that the answer is not legislation, but adoption of a model in which P2P users share files and a software plug-in monitors downloads under a licensing regime. DCIA Pres. Marty Lafferty proposed technology from member companies to accomplish this.
Hatch and Leahy have vowed to move legislation on inducement this year. Their effort comes as the House Judiciary Committee today (Wed.) marks up HR-4077, the Piracy Deterrence and Education Act by Courts, Internet & Intellectual Property Subcommittee Chmn. Smith (R-Tex.). That bill makes it easier for the Justice Dept. to prosecute copyright infringers, an issue close to Hatch’s and Leahy’s hearts. Leahy has his own bill to do that, S-2237, the Protecting Intellectual Rights Against Theft & Expropriation (PIRATE) Act. Leahy’s bill cleared the Senate by unanimous consent. There’s talk on the Hill of putting together a House-Senate copyright bill, for passage before the end of the Congress, that would include elements of PIRATE -- as well as perhaps language on inducement, although House Judiciary hasn’t held hearings on that subject.