So the other day I heard about the Induce Act, aimed at shutting down illegal file sharing over peer-to-peer networks. Some groups have a strong reaction against it, including the EFF. I read their Prelude to a Fake Complaint, and I read the text of the bill, which is quite short. My reaction: they’re a bunch of alarmists.
So I consulted my local legal expert, Professor Lee Hollaar, who taught the Legal Protection of Digital Information class that I took here at the University of Utah. I figured he would at least have an opinion. It turned out his work, a paper titled Sony Revisited, was a major influence in the creation of the Induce Act. In his own words, you might even call him the father of the Induce Act.
The point of the Induce Act is to clarify and formalize a concept that has already come up in court cases before, that of indirect liability for copyright infringement. The key thing that many people seem to miss, including the EFF, is the use of the word intentionally in “intentionally induces”. This oversight is especially odd since the word is not being introduced, but only clarified:
(g)(1) In this subsection, the term `intentionally induces’ means intentionally aids, abets, induces, or procures, and intent may be shown by acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor, including whether the activity relies on infringement for its commercial viability.
Would a “reasonable person” say that Apple is intentionally inducing copyright infringement with the iPod? No, on the contrary, they designed the software to make it difficult to copy music illegally, and the iPod’s commercial viability does not depend on its ability to facilitate music piracy.
But what about peer-to-peer software like Kazaa? I think “illegal file sharing” is the first thing that will pop into most people’s minds when you mention that name (at least it does mine). Even the demo on their site shows a user downloading music, with little to no guarantee that the activity will be legal.
For an opposing view to Sony Revisited, as well as an example of how it got famous, see Stanford Law Professor Lawrence Lessig’s blog post about it.