The INDUCE bill is really bad bill that somehow has gained bipartisan support in the Senate. Basically it makes creating a device that induces copyright infringement by another a crime. Under this legislation we would not have technology like TiVo, the VCR, or home cassette recording because such devices can be used for infringement. I think congress is overstepping their bounds in trying to tie together the criminal and the civil codes here. Copyright is a CIVIL offense, they’re trying to make inducement a criminal offense.
I’ve presented here all of the text from the senate debate on June 22, 2004, direct from the congressional record pages S7189 - S7193. Pdf’s are here for your enjoyment.
By Mr. HATCH (for himself, Mr. LEAHY, Mr. FRIST, Mr. DASCHLE, Mr. GRAHAM of South Carolina, and Mrs. BOXER):
S. 2560. A bill to amend chapter 5 of title 17, United States Code, relating to inducement of copyright infringement, and for other purposes; to the Committee on the Judiciary.
Mr. HATCH. Mr. President, I rise with my esteemed colleague and friend, Senator LEAHY, ranking Democrat Member of the Senate Judiciary Committee, to introduce the “Inducing Infringement of Copyrights Act of 2004.” This Act will confirm that creative artists can sue corporations that profit by encouraging children, teenagers and others to commit illegal or criminal acts of copyright infringement. Senator LEAHY and I are pleased that Majority Leader FRIST and Minority Leader DASCHLE and Senators GRAHAM and BOXER are co-sponsoring this important bipartisan legislation.
It is illegal and immoral to induce or encourage children to commit crimes.
Artists realize that adults who corrupt or exploit the innocence of children
are the worst type of villains. In
Oliver Twist'', Fagin and Bill Sikes
profited by inducing children to steal. In the filmChitty-Chitty
Bang-Bang”, the leering
Child-Catcher'' lured children into danger with
false promises offree lollipops.” Tragically, some corporations now seem to
think that they can legally profit by inducing children to steal–that they can
legally lure children and others with false promises of “free music.”
Such beliefs seem common among distributors of so-called peer-to-peer
P2P'') software. These programs are used mostly by children and
college students--about half of their users are children. Users of these
programs routinely violate criminal laws relating to copyright infringement and
pornography distribution. Criminal law definesinducement” as “that which
leads or tempts to the commission of crime.” Some P2P software appears to be
the definition of criminal inducement captured in computer code.
Distributors of some P2P software admit this. The distributors of EarthStation 5 state, “While other peer 2 peer networks like Kazaa or Imesh continue to deny building their programs for illegal file sharing, at ES5 we not only admit why we built ES5, we actually promote P2P, endorse file sharing, and join our users in swapping files!”
Recently, in the Grokster case, a Federal court drew similar conclusions about the intent of other distributors of P2P software. It warned that some P2P distributors “may have intentionally structured their businesses to avoid secondary liability for copyright infringement, while benefiting financially from the illicit draw of their wares.” In other words, many P2P distributors may think that they can lawfully profit by inducing children to break the law and commit crimes.
They are dead wrong. America punishes as criminals those who induce others to commit any criminal act, including copyright infringement. The first sentence of our Criminal Code states:
Whoever commits an offense against the United States or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal …….
Indeed, it is absurd to think that our law might be otherwise. No civilized country could let sophisticated adults profit by tempting its most vulnerable citizens–its children–to break the law.
I think we must understand how some corporations came to confuse child endangerment with a legal business model. Their confusion seems to arise from court cases misinterpreting a well-intended Supreme Court decision that tried to clarify two critical components of federal law: the law of secondary liability and the law of copyright.
The Supreme Court states that secondary liability is
imposed in virtually
all areas of the law.'' Secondary liability is universal because its logic is
compelling. It does not absolve lawbreakers of guilt. But it recognizes that we
are all human: We are all more likely to break the law if encouraged or ordered
to do so. Secondary liability thus discourages lawlessness by punishing people
who manipulate others into doing thedirty work” of breaking the law.
Secondary liability usually targets two types of persons: 1. those who induce
others to break the law, and 2. those who control others who break the law.
Though secondary liability is nearly ubiquitous, it has almost always remained as a judge-made, common-law doctrine–and for a good reason. Secondary liability prevents the use of indirect means to achieve illegal ends. Consequently, the scope of secondary liability must be flexible–otherwise, it would just instruct wrong-doers on how to legally encourage or manipulate others into breaking the law. The common-law judicial process is ideally suited to evolve flexible secondary-liability rules from the results of many individual cases.
As a result, Congress rarely codifies secondary liability. It has codified secondary liability to narrow it, as in the Patent Act. Congress has codified secondary liability in the Criminal Code to ensure that the narrow construction given criminal statutes would not foreclose secondary liability. In the Digital Millennium Copyright Act, Congress codified a complex balance between opposed interests that expanded one type of secondary liability and narrowed another.
Congress has always assumed that infringers could readily induce consumers to accept infringing copies of works. It thus created “a potent arsenal of remedies against an infringer …….” But secondary liability often arises if a third party can be ordered or induced to make the infringing copies. Consequently, only after copying devices became available to people who might be induced to infringe did questions about secondary liability for infringement become pressing.
In 1984, these questions reached the Supreme Court in Sony Corp. v. Universal City Studios, Inc. Sony held that the makers of the Betamax VCR could not be held secondarily liable in a civil suit brought by copyright holders–even though some consumers would use VCRs to make infringing copies of copyrighted TV broadcasts.
Sony also created a broader limitation on
secondary liability by importing a limitation that that Congress had codified
only in the Patent Act; this was the substantial-noninfringing-use rule, also
staple article of commerce'' doctrine. Sony intended this rule to
strike, as between creators of works and copying equipment, the samebalance” that it had struck under the Patent Act between the
rights of patent holder and makers of staple products.
Under the Patent Act, the substantial-noninfringing-use rule bars secondary
liability for selling a
staple'' product that has asubstantial
noninfringing use”–even if that staple could also be used as a component in
an infringing copy of a patented invention. This rule protects makers of
staples without changing the nature of secondary liability. In particular, it
does not immunize bad actors who intend to distribute
kits.'' Even in the rare case of a novel invention that consists only ofstaple” components, an
infringement kit'' must bundle components and
include assembly instructions. Neither the bundle nor the instructions will
likely have asubstantial noninfringing use.”
Sony intended this rule to strike the same admirable
balance'' under the
Copyright Act. Unfortunately, Sony also proposed that if this rule proved
problematic, Congress should alter it on a technology-by-technology basis. This
proposal was flawed: In 1976, Congress redrafted the Copyright Act to avoid the
need to re-adjust copyrights on a technology-by-technology basis because
legislation could no longer keep pace with technological change. Returning to
this impractical technology-based approach would create an endless procession
oftech-mandate” laws that discriminate between technologies Congress deems
good'' orbad.” But technologies are rarely inherently either
good'' orbad.” Most can be used for either purpose; the effect depends on details of
implementation impossible to capture–or predict–in prospective legislation.
Of course, the dysfunctional corrective mechanism that Sony proposed would have become problematic only if the Sony limitation was misunderstood or misapplied by lower courts. Unfortunately, that has now happened.
In cases like Napster and Grokster, lower courts misapplied the substantial-non-infringing-use limitation. These courts forgot about “balance” and held that this limitation radically alters secondary liability. In effect, these cases retained secondary liability’s control prong but collapsed its inducement prong. The results of these cases prove this point: Napster imposed liability upon a distributor of copying devices who controlled infringing users; Grokster did not impose liability upon distributors who appeared to induce and profit from users’ infringement.
A secondary-liability rule that punishes control and immunizes inducement is
a public policy disaster. It seems to permit the distribution of
machines'' designed to make infringement easy, tempting, and automatic. Even
Harvard's Berkman Center for Internet and society suggests that this is
happening. The Center warns thatit can be extremely difficult for a
non-expert computer user to shut down” the viral redistribution that can
otherwise automatically make the user an international distributor of
infringing works. The Center notes that the
complexity of KaZaA's
installation and disabling functions'' may leave many users unaware that they
have become a contributor to global, for-profit copyright piracy.
Unfortunately,piracy machines” designed to mislead their users are just one
of the perverse effects of a secondary liability rule that punishes control and
Perhaps the least perverse of these effects has been years of conflict
between the content and technology industries. Content creators sought the
corrections'' that Sony proposed. Technology industries opposed
such laws because they too easily foreclose innocent or unforeseen
applications. P2P software illustrates the problem: Today, most P2P software
functions like Earthstation 5'spiracy machine.” Yet all agree that
non-piracy-adapted implementations of P2P could have legitimate and beneficial uses.
A rule that punishes only control also produces absurd results. Secondary liability should focus on intent to use indirect means to achieve illegal ends. A rule that punishes only control degenerates into inane debate about which indirect means was used. Thus Napster and Grokster are regulated differently–though they function similarly from the perspective of the user, the distributor, or the copyright holder.
A rule that punishes only
control also acts as a
tech-mandate'' law: It mandates the use of
technologies that avoidcontrol”–regardless of whether they are suited for
a particular task. Napster was punished for processing search requests
efficiently on a centralized search index that it controlled. Grokster escaped
by processing search requests less efficiently on a decentralized search index
that it did not control. Rewarding inefficiency makes little sense.
A secondary-liability rule that punishes only control also punishes
consumers: It encourages designers to avoid
control'' by shifting risks onto
consumers. For example, Napster incurred billion-dollar liability because it
controlled computers housing a search index that located infringing files.
Programs like Kazaa avoid Napster'scontrol” by moving their search indices
onto computers owned by unsuspecting consumers. Consumers were never warned
about the risks of housing these indices. As a result, many consumers,
universities, and businesses now control computers that house
mini-Napsters''--parts of a search index much like the one that destroyed
Napster. These indices could still impose devastating liability upon anyone whocontrols” a computer housing them. A secondary-liability rule that punishes
only control thus rewards Kazaa for shifting huge risks onto unsuspecting
consumers, universities and businesses.
And search indices are just one of the risks that designers of P2P software seem to impose upon their young users to avoid control. For example, the designers of most filesharing software choose to lack the ability to remove or block access to files known to contain viruses, child pornography or pornography mislabeled to be appealing to children. This ability could create “control” and trigger liability. Aiding distributors of viruses and pornography may be just an unfortunate side effect of avoiding control while inducing infringement.
A secondary-liability rule that immunizes inducement also encourages attempts to conceal risks from consumers: It is easier to induce people to take risks if they are unsure whether they are incurring a risk or its severity. The interfaces of most P2P software provide no warnings about the severe consequences of succumbing to the constant temptation of infringement.
Another risk to users of P2P software arises when pornography
combines with the
viral redistribution'' that thwarts removal of
infringing copies of works. Most filesharing networks are awash in
pornography, much of it mislabeled, obscene, illegal child
pornography, or harmful to minors. Anyone risks criminal prosecution
if they distribute pornography accessible to minors over these
child-dominated networks. As a result, one P2P distributor who does
distributeadult” content demands that it be protected by access
controls. But every adult who uses this distributor’s software as
intended to download one of millions of unprotected pornographic files
automatically makes that pornography available for re-distribution to
millions of children. This distributor has sat silently–knowing that
its software exposes millions of its users to risks of criminal
prosecution that the distributor cannot be paid to endure.
Perhaps the worst effect of punishing control and rewarding inducement is that it achieves precisely what Sony sought to avoid: It leaves copyright holders with an enforcement remedy that is “merely symbolic”: It seems real, but it is illusory.
In theory, a rule that immunizes inducement still permits enforcement against those induced to infringe. At first, this remedy seems viable because copyrights have traditionally been enforced in lawsuits against direct infringers who actually make infringing copies of works.
But a fallacy lurks here: The “direct infringers” at issue are not the traditional targets for copyright enforcement. In fact, they are children and consumers: They are the hundreds of millions of Americans–toddlers to seniors–who use and enjoy the creative works that copyrights have helped create.
There is no precedent for shifting copyright enforcement toward the end- users of works. For nearly 200 years, copyright law has been nearly invisible to the millions who used and enjoyed creative works. Copyright law was invisible to consumers because the law gave creators and distributors mutual incentives to negotiate the agreements that ensured that works reached consumers in forms that were safe to use in foreseeable ways. Now, those incentives are collapsing. As a result, artists must now waive their rights or sue consumers–their fans.
Worse yet, artists must sue their fans for the sin of misusing devices designed to be easy and tempting to misuse. That is unfair: When inducement is the disease, infringement can be seen as just a symptom. Yet artists must ignore inducers who profit by chanting, “Hey, kids, infringement is cool, and we will help you get away with it.” Instead, artists can only sue kids who succumb to this temptation. They must leave Fagin to his work–and sue Oliver Twist.
remedy'' is a debacle. For example, immunizing
inducement ensures that artists will have to sue their fans: Inducers
will have both the incentive and the means to thwart less extreme
measures, like educational campaigns. For example, RIAA tried to avoid
lawsuits against filesharers by sending educational instant messages
to infringers. Kazaa, forprivacy” reasons, disabled instant
messaging by default in the next version of its software. Lawsuits
And imagine the poor parent who tries to tell a teenager that free
downloading of copyrighted music is illegal. The teenager, confused because
everyone is doing it,'' consults a leading technology-news site promising atrusted source of information for millions of technology consumers.” There,
the teenager finds a P2P distributor promoting
Morpheus 4.0, the only
American filesharing software ruled legal by a U.S. federal court.'' This
statement is false: Grokster did not rule Morpheuslegal”; in fact, the case
only confirmed that downloading copyrighted works is illegal. Below this
misinformation, the teenager will find an independent editorial review rating
Morpheus 4.0 as a
Recommended'' download andan excellent choice” for
those seeking “the latest and greatest.” Who will the teenager believe?
Worse yet, if artists must sue only the induced, they just feed the contempt for copyrights that inducers breed. Inducers know that people induced to break a law become that law’s enemies: Once you break a law, you must either admit wrongdoing or rationalize your conduct. Rationalization is often so easy. You can blame the law: Copyright is a stupid law needlessly enshrined in the Constitution by naives like James Madison. You can blame the victim: Some rock stars still make money; I do not like the “business model” of the record labels. You can blame the randomness of enforcement: Everyone else was doing it, so why not me? Anyone who has talked to young people about filesharing has heard such rationalizations time and again.
And forcing artists to ignore inducers and sue the induced locks artists into a war of attrition that they are unlikely to win. If you imagine inducement as a bush, this “remedy” forces artists to spend their money to sever each leaf–while the inducer makes money by watering the root. Artists may not be able to sustain this unending battle.
This may let inducers attempt an extortionate form of “outsourcing.” Inducers can increase or decrease their devices propensity to encourage piracy. Inducers can thus tell American artists that if the artists pay the inducers to become licensed distributors of their works, perhaps fewer bad things will happen. Implicitly, if artists do not pay, perhaps more bad things will happen. Were artists to succumb to such tactics, jobs and revenues created by the demand for American creative works would go overseas to some unsavory locales.
Worst of all, inducers will inevitably target children. Children would be
easily induced to violate complex laws like the Copyright Act. Any child is a
terrible enforcement target. And because most adults never induce children to
break laws, children induced to infringe copyrights would not even be
kids.'' Indeed, they would probably be smart, mostly law-abiding young people
with bright futures. Innocent, mostly law-abiding children make the worst
enforcement targets--and thus the besthuman shields” to protect an
inducer’s business model.
This threat to children is real. Today, artists are suing high-volume filesharers who cannot be identified until late in the process. One filesharer sued for violating federal law over 800 times turned out to be a 12-year-old female honor student. This otherwise law-abiding young girl and her family then faced ruin by the girl’s favorite artists. The public knew that something was wrong, and it was outraged. So the people who gave that girl an easily misused toy–and profited from her misuse of it–exploited public outrage with crocodile tears about the tactics of “Big Music.” And then, I imagine, they laughed all the way to the bank.
The Supreme Court could not have intended to force artists to sue children in order to reduce the profits that adults can derive by encouraging children to break the law. No one would intend that. Yet it seems to be happening.
These are the inevitable results of a secondary-liability rule that
immunizes inducement. This
rule'' has created the largest global
piracy rings in history. These rings now create billions of infringing
copies of works, and reap millions in profits for leaders who insulate
themselves from direct involvement in crime by inducing children and
students todo the dirty work” of committing illegal or criminal
acts. These rings then thwart deterrence and condemn attempts to
enforce the law. These rings may now use profits derived from rampant
criminality to extort their way into the legal Internet distribution
market–a market critical to the future of our artists and children.
This must stop–and stop now. Artists have tried: They targeted for-profit inducers. But artists were thwarted by a court ruling that held, in effect, that although artists can sue exploited children and families into bankruptcy, courts need “additional legislative guidance” to decide whether artists can, instead, sue the corporations that profit by inducing children to break the law. I find this assertion wholly inconsistent with the intent of both Congress and the Supreme Court. But until this fundamentally flawed ruling is overruled by legislation or higher courts, artists cannot hold inducers liable for their actions.
Fortunately, Congress has charged the Department of Justice to enforce the Criminal Code. In the Criminal Code, Congress made it a Federal crime to willfully infringe copyrights or to distribute obscene pornography or child pornography. Congress also made it a crime to induce anyone–child or adult–to commit any Federal crime.
Indeed, Congress codified many forms of criminal secondary
liability in the Criminal Code. I have already quoted its first
sentence. Here is its second:
Whoever willfully causes an act to be
done which if directly performed by him or another would be an offense
against the United States, is punishable as a principal.'' One court
has said that this ensures that[a] crime may be performed through
an innocent dupe, with the essential element of criminal intent
residing in another person.” Not coincidentally, some Federal
prosecutors worry that P2P software makes infringement so tempting,
easy and automatic that many of its users will lack criminal
intent. Perhaps–but their relative innocence will not protect their inducers.
The Criminal Code also codifies other forms of secondary liability, like this one:
If two or more persons conspire to injure, oppress, threaten any person in any State ….. in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or the laws of the United States, ….. [t]hey shall be fined under this title or imprisoned not more than ten years, or both. …..
These examples of laws imposing secondary criminal liability have something in common: Congress codified no exceptions for “substantial non-criminal uses.” The message is clear: Those who induce others to commit crimes cannot avoid prison by showing that some of them resisted. I will work with my colleagues in Congress to ensure that the Department of Justice enforces the Federal laws that prevent anyone from inducing violations of any Federal law by our citizens, our students, or our children.
Congress, too, must do its part by enacting the Inducing Infringement of Copyrights Act, S. 2560. This bill will protect American artists, children and taxpayers by restoring the privately funded civil remedy crippled by the Grokster ruling. Congress must act: A Federal court has held that artists can only enforce their rights by suing exploited children and students pending “additional legislative guidance” about whether artists can, instead, sue the corporations that profit by inducing children to break laws and commit crimes. Silence could be misinterpreted as support for those who profit by corrupting and endangering others. This bill will restore the tried, privately funded civil enforcement actions long used to enforce copyrights.
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 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.
I also want to thank everyone who has worked with us to craft a bill that addresses this serious threat to children and copyrights without unduly burdening companies that engage in lawful commerce in the wide range of devices and programs that can copy digital files. As Sony illustrates, clear knowledge that a copying device can be used to infringe does not provide evidence of intent to induce infringement. It was critical to find a way to narrowly identify the rare bad actors without implicating the vast majority of companies that serve both consumers and copyright-holders by providing digital copying devices–even though these devices, like all devices, can be misused for unlawful purposes. In particular, I would like to thank the Business Software Alliance for its invaluable assistance in crafting a bill that protects existing legitimate technologies and future innovation in all technologies–including peer-to-peer networking.
Senator LEAHY and I look forward to working with all
affected parties to enact this bill and restore the balance and
private enforcement that Sony envisioned. But until Congress can enact
the Inducing Infringement of Copyrights Act, the duty and authority to
stop inducement that targets children and students resides in the
Department of Justice that Congress has charged to protect artists,
commerce, citizens and children. The Department must act now to
clarify some simple facts: America has never legalized the
model'' of Fagin and Bill Sykes. Modern ChildCatchers cannot lawfully
profit by luring children into crime with false promises offree music.”
Mr. President, I urge all of my colleagues to support S. 2560, the Inducing Infringement of Copyrights Act.
I ask unanimous consent that the text of the bill be printed in the RECORD.
_ Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_
SECTION 1. SHORT TITLE.
This Act may be cited as the “Inducing Infringement of Copyrights Act of 2004”.
SEC. 2. INTENTIONAL INDUCEMENT OF COPYRIGHT INFRINGEMENT.
Section 501 of title 17, United States Code, is amended by adding at the end the following:
`(g)(1) In this subsection, the termintentionally 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.
“(2) Whoever intentionally induces any violation identified in subsection (a) shall be liable as an infringer.
“(3) Nothing in this subsection shall enlarge or diminish the doctrines of vicarious and contributory liability for copyright infringement or require any court to unjustly withhold or impose any secondary liability for copyright infringement.”.
Mr. LEAHY. Mr. President, nobody can deny that the digital age has brought many benefits and many challenges to all of us. In my home state of Vermont, the Internet has revolutionized how we work and how we learn: Distance learning brings the best teaching tools right into rural communities, and new business models let Vermont businesses reach new and far-flung customers. As suppliers who use the Internet, we enjoy access to a range of goods and services unimagined when I was growing up, and the vast panoply of information and entertainment offerings on the World Wide Web are at the fingertips of many Vermonters. Of course, we must work to ensure that everyone can reap the benefits of the digital age, and I am striving both here in Washington and in my state to do what is necessary to bring affordable and reliable Internet access to every household.
I am confident that, with continued focus and perseverance, the day of universal access is coming and we will all take part in the many advantages of the digital age. But there are other problems that require immediate attention, because they threaten the development of the web. We will never be able to make the Internet an entirely trouble-free zone, but we will also never be justified in failing to make efforts to defend and improve it.
One important effort to improve it is the bill that I am proud to introduce today–along with Senators HATCH, DASCHLE, FRIST, BOXER, and GRAHAM of South Carolina–the “Inducing Infringement of Copyright Act of 2004.”
The “Inducing Infringement of Copyright Act of 2004” is a straightforward bill. Our legislation treats those who induce others to violate copyrights as infringers themselves. This is not a novel concept; it is the codification of a long-standing principle of intellectual property law: that infringement liability reaches not only direct infringers but also those who intentionally induce illegal infringement. And while the legal principle is an old one, the problems of inducement for copyright are a relatively new byproducts of the digital age–an age in which it is easy, and often profitable, to induce others to violate copyrights through illegal downloading from the Internet.
The principle at the heart of this bill–secondary copyright liability–has long been in the common law. In fact, such secondary liability is provided for by statute in the patent law. The patent code provides liability for inducing infringement and for the sale of material components of patented machines, when the components are not a staple article of commerce suitable for substantial non-infringing use. This is because it has long been relatively simple and economically worthwhile to induce patent infringement. By contrast, until recently the ability to illegally download music, books, software, and films has not existed. Recent developments, however, now make it necessary for Congress to clarify that this principle also applies to copyrights.
What the inducement bill does not do is just as important as what it does: It does not target technology. Useful legislation on this topic must address the copyright issue and not demonize certain software. As a practical matter, if a law is targeted at certain software, the designers will simply design around the law and render it useless. And as a matter of effectiveness, if the law addresses only well-understood present threats, it will necessarily be too narrow to encompass future technologies that may pose the same threat to copyrights. A law that deals simply with the copyrights–and their violation–is far less likely to be circumvented or out-dated before it can do any good. It will be both broad enough and sufficiently flexible to accommodate situations we cannot foresee.
This legislation is also carefully crafted to preserve the doctrine of “fair use.” Indeed by targeting the illegal conduct of those who have hijacked promising technologies, we can hope that consumers in the future have more outlets to purchase creative works in a convenient, portable digital format. Similarly, the bill will continue to promote the development of new technologies as it will not impose liability on the manufacturers of copying technology merely because the possibility exists for abuse. Finally, the bill will not affect Internet service providers who comply with the safe harbor provisions of the Digital Millennium Copyright Act.
Copyright law protecting intellectual property is one of the taproots of our economy and of our creativity as a nation. For copyright law to work as the Founders intended, it needs effective enforcement. That means adapting enforcement tools to meet new challenges, in the digital age or in any age. And that is the straightforward purpose of this bill.
I would like to take a moment also to emphasize another important, if obvious, point about this bill that some detractors have ignored. The law only penalizes those who intentionally induce others to infringe copyrights. Thus, the makers of electronic equipment, the software vendors who sell email and other programs, the Internet service providers who facilitate access to the Web–all of these entities have nothing to fear from this bill. So long as they do not conduct their businesses with the intention of inducing others to break the law–and I certainly have not heard from anyone who makes that claim–they should rest easy. The only actors who have anything to fear are those that are already breaking the law; this bill simply clarifies and codifies that long-standing doctrine of secondary liability.
The “Inducing Infringement of Copyright Act of 2004” is a simple fix to a growing problem. The bill protects the rights inherent in creative works, while helping to ensure that those same works can be easily distributed in digital format.
Mr. FRIST. Mr. President, I rise in support of the Inducing Infringement of Copyrights Act of 2004 introduced today by Senators HATCH and LEAHY. I am proud to be an original cosponsor. The Inducement Act addresses the growing problem of online piracy–the illegal downloading of copyrighted music. Piracy is devastating the music community and threatening other forms of copyrighted work. This commonsense, bipartisan legislation takes important steps in protecting our Nation’s intellectual property.
When I return home to Nashville and drive down Music Row, my heart sinks as
I see the
For Sale'' andFor Rent” signs everywhere. The once vibrant
music community is being decimated by online piracy. No one is spared. It is
hitting artists, writers, record companies, performing rights organizations,
Every month 2.6 billion music files are illegally downloaded using peer-to-peer networks, and it is not unusual for albums to show up on the Internet before they make it to the record store. The effect of this theft of intellectual property is disastrous to the creative industry. In the end, rampant piracy dries up income and drives away professional musicians. We get fewer artists and less music.
Online piracy affects more than just the music industry. It affects a broad swath of the creative field, including the movie and software industries. Music, movies, books, and software contribute well over half a trillion dollars to the U.S. economy each year and support 4.7 million workers. When our copyright laws are blatantly ignored or threatened, an enormous sector of our economy and creative culture is threatened.
The intent of the anti-piracy bill being introduced today is simple. It holds liable those who intentionally induce others to commit illegal acts of copyright infringement. In other words, it targets the bad actors who are encouraging others to steal. In addition, the general cause of action in this bill is not new or revolutionary. It is based on the theory of secondary liability that is found squarely in our Nation’s laws.
This bill should not and does not threaten in any manner the further advancement of technology. It is not a technology mandate. Only individuals or organizations which profit from intentionally encouraging others to violate our copyright laws should fear this legislation. It has been carefully crafted and will be thoroughly reviewed to ensure that its language accurately reflects its sound intent.
The future of the music community is with advancing technology, and I encourage those in the music field to continue to offer innovative choices to consumers. It is important to recognize, however, that no one in the music industry or any other intellectual property field can survive when his or her work is being stolen. Those who are intentionally and actively encouraging this theft should be held accountable.
I would like to thank Senator Hatch for his hard work on this bill and his dedication to this issue. I would also like to thank Senator Leahy for his work. This is truly a bipartisan issue, and I look forward to working with Members on both sides of the aisle to ensure that our intellectual property laws are respected and enforced.