Opinions Differ on Copyright Office Infringement Draft
The latest effort by the U.S. Copyright Office to broker a compromise over legislation targeting anyone who “induces” copyright infringement has failed to assuage fair-use advocates, while content owners remain quiet. The Copyright Office late Fri. circulated its latest draft proposal, a very short bill aimed at anyone whose business model profits from others infringing copyrights. In a much lengthier explanatory memorandum, the office argues its latest draft resolves some criticisms of its previous draft. Established opponents of S-2560 by Senate Judiciary Committee Chmn. Hatch (R-Utah) and ranking Democrat Leahy (Vt.) remained opposed, while others, such as the Business Software Alliance (BSA), were taking a more cautious approach.
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The new draft is “a good-faith effort to address” BSA’s concerns, the group’s Dir.-International Trade & Intellectual Property Jesse Feder told us. A former senior legal adviser at the Copyright Office, Feder said the office is moving S-2560 “in a positive direction.” BSA put out a statement endorsing S-2560 upon its introduction, but then Pres. Robert Holleyman testified that his members had concerns regarding liability and other issues. Feder said BSA was comparing the latest draft to Holleyman’s testimony. He saw 3 causes of action in the draft: (1) Infringement. (2) Causation of infringement. (3) A business model profiting from infringement. The Copyright Office stated in its explanatory remarks that the last provision aimed to address the concerns of BSA and others by targeting intent, not technology. But Feder noted that the business model clause could lead to expensive discovery. Unlike some others, Feder didn’t directly contradict any of the arguments in the office’s explanatory remarks.
The draft “takes a wholly unprecedented approach to copyright infringement,” Computer & Communications Industry Assn. Pres. Ed Black said: “For the first time ever, someone who has no intent to facilitate infringement or has no control over the infringement can be liable for others’ infringement.” He wondered if he'd be guilty if 5% of users of his software were infringers, under the provision that one is “relying” on infringement to make a profit. But the Copyright Office, in its explanatory comments, said that the language as written -- “derives a predominant portion of its revenues from infringing public dissemination” -- means “more than 50% of revenues are derived from infringing public dissemination.”
The latest draft is “a radical departure from existing copyright law,” Public Knowledge Legal Dir. Mike Godwin said. He argued tech providers or distributors could be found guilty of infringement by users “regardless of the creator or distributor’s intentions.” However, the office explanatory remarks claim they've addressed this concern by providing an “objective test” to determine guilt. A company would have to (1) rely on infringement for commercial viability, (2) derive a majority of its revenue from infringement, or (3) rely on infringement capabilities to attract customers. That puts the focus on the company’s intent, not the nature of the technology, the office said. That view was rebutted by Godwin, who said “a technology creator or distributor is guilty merely for providing technology that turns out to be used by infringers -- regardless of the creator or distributor’s intentions.”
The latest draft “undermines the Betamax doctrine… while doing nothing to slow P2P companies based offshore,” Electronic Frontier Foundation attorney Fred von Lohmann said. He argued the office draft conflicts with the federal court ruling in the Grokster decision, which found 2 P2P software companies not liable for infringement by its users; EFF was a party in that case. However, reversing that decision is a stated reason Hatch and Leahy introduced S-2560. The office explanatory text also claims that the draft’s “narrowed scope” addresses issues not covered in Sony -- namely dissemination rather than copying -- and that courts under the draft would still “accommodate noninfringing uses as much as practicable.” Sony “remains fully applicable to causes of action under the existing doctrines of secondary liability,” the Copyright Office said.
Many of the groups opposing the various office drafts opposed the original S-2560. Some have said there’s no need for legislation, but have participated in the debate once it was clear that Hatch and Leahy were moving forward anyway. In fact, CEA Pres. Gary Shapiro testified that the only legislation he could imagine drafting for the committee would be language reaffirming Sony. But last month CEA did introduce draft legislation, and that language has been backed by most fair-use advocates during the deliberations.
Both RIAA and MPAA said through spokesmen that they were reviewing the latest draft, and praised the Office for its continuing efforts to find a solution to copyright infringement.