From: CDT Info [mailto:[log in to unmask]]
Sent: 26 October 2004 20:12
To: [log in to unmask]
Subject: Policy Post 10.19: Copyright Inducement Bill Put Off for Now

CDT POLICY POST Volume 10, Number 19, October 26, 2004

A Briefing On Public Policy Issues Affecting Civil Liberties Online
from
The Center For Democracy and Technology

(1) Senate Holds Off on Copyright Inducement Bill, Further Efforts to
Target P2P Likely
(2) Though Intended Narrowly, Inducement Drafts Would
Have Swept in Valuable Technology
(3) Other Copyright Measures Still Pending in Congress, Could
Pass

____________________________________________________

(1) Senate Holds Off on Copyright Inducement Bill, Further Efforts to
Target P2P Likely

In recent weeks, there has been a flurry of activity In Washington on
copyright legislation, focused mainly on the "Inducing Infringement of
Copyright Act," S. 2560. The bill, formerly known as the INDUCE Act,
was designed to target companies - especially makers of P2P file
sharing software - that "induce" widespread copyright infringement .

Consumer groups and technology companies warned that, unless narrowly
drafted, the law would impact a wide array of valuable consumer
technologies. Intensive discussions among a range of interested
parties, including CDT, failed to yield consensus language and the
Senate Judiciary Committee put off a scheduled mark-up on the bill.

Although Congress will return after the election for a "lame duck"
session, it is very unlikely that differences over the bill will be
resolved this year. However, the issue will surely be back on the
Congressional agenda next year, and it is likely that there will be
further efforts to draft legislation. The sponsors of the Inducing
Infringement of Copyright Act have said they remain committed to
finding a way to hold accountable those who intentionally induce
copyright infringement.

CDT has reiterated its willingness to work with others to try to find a
balanced solution. CDT continues to emphasize, however, that any law
must be narrowly tailored and cannot do collateral damage to innovation
or basic technologies online. Thus, the impact of any bill on valuable
and rapidly changing Internet technologies must remain a crucial
benchmark.

-CDT letter, urging Senate Judiciary Committee to Hold Off
Consideration of Inducement bill
http://www.cdt.org/copyright/20041006cdt.pdf

-CDT's Copyright page
http://www.cdt.org/copyright/
____________________________________________________

(2) Though Intended Narrowly, Inducement Drafts Would Have Swept in
Valuable Technology

Senators Orrin Hatch and Patrick Leahy, the sponsors of S. 2560, had
stated that they sought a "technology-neutral law directed at a small
set of bad actors while protecting our legitimate technology industries
from frivolous litigation." CDT has voiced its support for this goal.

The latest drafts of S. 2560, emerging from intensive discussions in
recent weeks, attempted to meet the goal by outlawing the manufacture
of "peer-to-peer products" used for "viral distribution" where such
infringement was "the principle reason the majority of users are
attracted" to the product.

However, CDT and others pointed out that the proposed definitions would
have swept in a broad range of legitimate consumer technologies,
including products like TiVo, online collaboration tools, new instant
messaging systems, and even web browsers. The bill would have created
liability simply for manufacturing or selling such products if they
became widely misused. This would have gone against the longstanding
"Sony-Betamax doctrine," which assures product manufacturers that they
cannot be liable for selling a product that has significant
non-infringing uses.

The proposal of the Inducing Infringement of Copyright Act generated
widespread grassroots response in the form of online activism and
direct calls to Senate offices. This response was crucial to spreading
understanding about the potential harmful impacts of the bill.

Senator Hatch, who is the chairman of the Judiciary Committee,
acknowledged some of the concerns raised by current drafts of the bill
as reasons for holding off consideration by the Committee for now.

Internet users should remain watchful and be prepared to engage their
representatives again as future drafts are proposed.
______________________________________________________

(3) Other Copyright Measures Still Pending in Congress, Could Pass

In addition to S. 2560, a variety of copyright enforcement measures may
yet come to a vote this year. These have been combined into a single
long bill, H.R. 2391. The bill includes:

* A provision to criminalize the use of video recorders to tape
presentations of movies in theaters.

* A new copyright law education program, to be run by the Department of
Justice (DOJ);

* A voluntary program for ISPs, under which the DOJ would send ISPs
notices that particular subscribers are suspected of violating
copyright law. The ISP would forward these warnings to their
subscribers, without disclosing to the DOJ or third parties information
identifying the suspected infringer.

* A measure to exempt the makers of devices that skip predetermined
parts of movies or other video content from any copyright liability.
The provision was drafted to protect makers of "Clearplay" DVD players
and similar devices that automatically skip violence or other
objectionable content in movies. Devices that automatically skip
commercials are specifically excluded from protection, however.

* A provision to allow the Department of Justice to bring civil
copyright cases, like those currently being brought by the RIAA against
peer-to-peer users. Currently only private parties can bring civil
cases, and consequently they bear the cost of such enforcement.

* A provision to lower the standard required for criminal copyright
prosecutions, aimed at users of peer-to-peer networks. The provision
would change the required level of intent from "willfulness" to
"reckless disregard" and would make it a federal crime to make
available even a single pre-release copyrighted work.

This final provision lowering the bar for criminal copyright liability
is one of the most controversial element of the bill. Critics have argued
that
the lowered standards could inappropriately turn what were formerly
much smaller violations into federal felonies, and that such a sweeping
law would invite selective enforcement.

Opposition to this and other elements of the bill prevented its passage
before Congress adjourned at the end of October. The future of the bill
is uncertain. Sponsors are now working to answer some of these
objections and hope to achieve passage when the lame duck Congress
meets in November.

-Text of H.R. 2391
http://thomas.loc.gov/cgi-bin/bdquery/z?d108:h.r.02391:

__________________________________

Detailed information about online civil liberties issues may be found
at http://www.cdt.org/.

This document may be redistributed freely in full or linked to
http://www.cdt.org/publications/pp_10.19.shtml.

Excerpts may be re-posted with prior permission of [log in to unmask]

Policy Post 10.19 Copyright 2004 Center for Democracy and Technology
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