New legislation recently introduced by a group of powerful U.S. senators would allow artists and entertainment companies to sue creators of products, such as peer-to-peer (P-to-P) software, that “induce” copyright violations.
Senate Judiciary Committee chairman Orrin Hatch, clearly targeting P-to-P vendors, claimed his bill focuses on companies that profit by encouraging children and teenagers to infringe copyrights. “It is illegal and immoral to induce or encourage children to commit crimes,” Hatch, a Utah Republican, said in a statement. “Tragically, some corporations now seem to think that they can legally profit by inducing children to steal. Some think they can legally lure children into breaking the law with false promises of ‘free music.'”
The Recording Industry Association of America (RIAA) welcomed the legislation, while P2P United, a P-to-P trade group, called the bill “horrible public policy.” The bill could stifle the development of future technologies that could be used for copyright infringement but have substantial legitimate uses, said P2P United and other critics.
The bill “will chill the development, if enacted, of not only peer-to-peer technology, but wonderful new information tools yet to be devised,” P2P United executive director Adam Eisgrau said in an e-mail. “Don’t buy the hype. Any member of Congress who supports this bill is voting, without so much as a hearing, to undo more than a century of solid copyright case law that has protected innovators and technology from the terrible power of entrenched industries and, in the process, created the American economy.”
The bill has powerful backers. Among the bill’s co-sponsors are Senate Majority Leader Bill Frist, a Tennessee Republican, Senate Minority Leader Tom Daschle, a South Dakota Democrat and Judiciary Committee ranking Democrat Patrick Leahy from Vermont.
The bill doesn’t set up new criminal or civil penalties for those who “induce” copyright violations, but it creates a new class of people who can be sued or prosecuted for copyright infringement — those who a “reasonable person” would believe “intentionally aids, abets, induces or procures” copyright violations. The “reasonable person” standard is a broadening of the standard that usually applies to contributory or vicarious copyright infringement, said Public Knowledge, an advocacy group focused on copyright law.
Currently, civil penalties for copyright infringement can be up to US$30,000 per act of infringement, or up to $150,000 per act of willful infringement. Total damages are determined at trial.
“Public Knowledge is concerned that the bill is overbroad, because it regards almost any action that leads to infringement to be a potential offense even if the person who engages in the act never intended to cause infringement,” Gigi B. Sohn, president of Public Knowledge, said in statement.
Hatch disputed criticism that the bill would overturn existing copyright law and discourage innovation. The bill is not intended to affect the 1984 Sony-Betamax decision in which the U.S. Supreme Court ruled that videotape and other copying devices were legal, because the bill targets only those companies that “intentionally induce” customers to violate copyrights, Hatch said in his statement.
The RIAA applauded Hatch for the “narrowly focused” legislation. “This bill places the spotlight squarely on the bad actors who have hijacked a promising technology for illicit means and ignoble profits,” Mitch Bainwol, RIAA chairman and chief executive officer, said in a statement. “Legitimate uses of peer-to-peer are upheld, while those who intentionally lure consumers into breaking the law are held to account. Under this legislation, the path to legitimacy remains clear: Respect the law and block the exchange of works the copyright owner has not authorized.”