P2P bill draws key backing in Senate
Orrin Hatch, chairman of the Senate Judiciary Committee and a Republican of Utah, sought to dispel some of the early criticisms of his proposal, saying in a statement distributed late Tuesday that a new version of his bill reflects only modest changes and would not affect Internet service providers’ legal rights or Americans’ abilities to make “fair use” of copyrighted works.
[...] The final version is titled Inducing Infringement of Copyrights Act, and it enjoys the backing of senior politicians including Patrick Leahy, D-Vt., Senate Majority Leader Bill Frist, R-Tenn., Minority Leader Tom Daschle, D-S.D., Lindsey Graham, R-S.C., and Barbara Boxer, D-Calif.
[...] The aide argued that the bill targets acts that are “already a trigger for civil, criminal liability,” is far less intrusive than technology mandates, and is designed to overrule the decision of a federal judge in the Grokster case, who ruled that the networks could be allowed to continue to operate.
The statement is lengthy:
The Act does not overrule or limit the Sony-Betamax decision. The Act will not abrogate or affect Sony’s holding that the maker of a copying device will not be liable just because it knows that its product could be used to infringe. Id. at 439. The Act will only address cases of intentional inducement not covered by the Sony ruling: “Sony certainly does not ‘intentionally induce’ its customers to make infringing uses of respondents’ copyrights….” 464 U.S. at 439 n.19.
The Act does not affect most Internet services because of the Section 512 “safe harbors” in the Digital Millennium Copyright Act (DMCA). The bill will not affect Internet service providers – like Verizon, eBay, or Google – who comply with any of the Section 512 “safe harbors” for conduit, user-directed, or information-location services.
The Act permits civil enforcement only against parties whose acts would already trigger criminal liability under existing law. Intentional inducement of criminal or illegal acts of infringement is already a felony. The bill merely confirms that civil liability can be imposed in cases where potential criminal conduct already exists.
[...] This bill will also preserve the Sony ruling without reversing, abrogating or limiting it. The Inducement Act will simply import and adapt the Patent Act’s concept of “active inducement” in order to cover cases of intentional inducement that were explicitly not at issue in Sony. The Inducement Act also preserves the Section 512 safe harbors for Internet service providers.
The bill also contains a savings clause to ensure that it provides the “guidance” courts have requested — not an iron-clad rule of decision for all possible future cases. This flexibility is critical because just as infringement cases are fact specific, so should inducement cases center on the facts of a given case, with courts endowed with the flexibility to impose just results. This bill does not purport to resolve or affect existing disagreements about when copies made and used within an individual’s home environment are permissible and when they are infringing.
Rather, this bill is about is the intentional inducement of global distribution of billions of infringing copies of works at the prodding and instigation of sophisticated corporations that appear to want to profit from piracy, know better than to break the law themselves, and try to shield themselves from secondary liability by inducing others to infringe and then disclaiming control over those individuals.
Without the text of the bill, it’s going to be hard to see how he plans to accomplish this. The motivations for the bill have been changed, too
No civilized country could let sophisticated adults profit by tempting its most vulnerable citizens — its children — to break the law.
We’ll see. I can’t find it in Thomas, but it may just be too soon.