[Fwd: TIME VALUE: Please Sign INDUCE Act letter today]

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From: Will Rodger <[email protected]>
To: [email protected]
Subject: TIME VALUE: Please Sign INDUCE Act letter today
Date: Mon, 27 Sep 2004 16:27:22 -0400


Friends, Members:

Below is a letter being circulated for signatures by OSAIA and others in 
opposition to S. 2560, commonly known as the INDUCE Act. It is difficult to 
overstate the need for swift action against this bill. We therefore ask you 
to add your name to this letter.

As you likely know, S. 2560 would create a new legal standard known as 
"inducement of copyright infringement". This new theory, in effect, would 
hold liable anyone whose product or service, in the view or a "reasonable 
person," could be expected to be used to make illegal copies. If passed, 
INDUCE will almost surely lead to regulation of software, PCs, VCRs, 
general-purpose optical drives and countless other hardware and software 
products. Under this bill, ISPs would likely be forced to police their 
networks for infringement. Indeed, it is fair to say that the entire 
Internet could be open to redesign in court. Digital rights management 
technologies, as controversial and difficult to implement as they are, 
would almost certainly become mandatory. Small innovators, faced with the 
legal hurdles in from of them, would likely cease innovating.

In short, S. 2560 would give Hollywood and the record companies a direct 
voice in how IT is done in this country. Not reaching agreement with the 
content industry before introducing a new product or service would, in our 
view, invite litigation on a massive scale. This bill, in our view, will 
force jobs and revenue out of the US, yet do nothing to stop actual 
infringement today.  It is, unfortunately, on the verge of passing a major 
committee. S. 2560 will likely pass the Senate quickly unless Senate 
leadership hears from us immediately.

A copy of the latest discussion version of the measure is attached to this 
email.

Given the weight that signatures by individual companies carry, we urge you 
to join the list of signatories below by close of business Tuesday Sept. 
28. The presence of individual companies willing to oppose this measure 
will add significantly to the impact of the letter.

Please call me at ext. 105 or Dan Johnson at ext. 106 if you have further 
questions about the letter.

best regards,

Will Rodger
Director Public Policy
CCIA/Open Source and Industry Alliance
+1 202 783 0070 x-105

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September 27, 2004 The Honorable Bill 
Frist                                        The Honorable Tom Daschle 
Majority Leader                                                Minority 
Leader U.S. 
Senate                                                        U.S. Senate 
Washington, DC 20510                                        Washington, DC 
20510
The Honorable Orrin G. Hatch                                The Honorable 
Patrick J. Leahy 
Chairman                                                        Ranking 
Member Committee on the 
Judiciary                                        Committee on the Judiciary 
U.S. Senate                                                        U.S. 
Senate Washington, DC 
20510                                        Washington, DC 20510
cc: Members of the Committee on the Judiciary
Dear Senators Frist, Daschle, Hatch, and Leahy:
The undersigned companies and organizations  write to express our amplified 
concerns over both the process and the substance pertaining to what we 
understand to be the current draft of "inducement" legislation.  Although a 
fourth good-faith attempt, this version appears no closer to meeting what 
we understood to be S. 2560's original objectives:  (1) to differentiate 
between objectionable and legitimate conduct; (2) to preserve the essence 
of the Betamax holding; and (3) to avoid an unmanageable flood of 
litigation that would tie up innovators and chill investment.
The new draft, like the original S. 2560, relies on a vague and 
indeterminate "totality of circumstances" standard of intent.  Like the 
first Copyright Office draft, it predicates liability on undefined 
"affirmative acts"  but unlike that draft, is not limited to the 
"dissemination" of works.  Rather, the draft is addressed to the very 
introduction of products and services into commerce, and equates 
"inducement" with the foreseeability of any significant infringement, no 
matter how positive the potential economic and social contribution of the 
product or service may be.  This extends well beyond any concept that the 
Copyright Act or the Supreme Court has yet embraced; it would effectively 
expand copyright monopolies and, correspondingly, devalue  patent 
grants.  It thus implies a fundamental realignment of our intellectual 
property system.
The draft contains a number of apparent exceptions, but all are easily 
avoided by a plaintiff who divides his allegations into a number of 
separate "acts."  The "affirmative acts" creating liability under the bill 
could simply be the (1) design and (2) making available of a multiuse 
product.  In sum, there seems no clear rationale by which it can be 
interpreted as applying only to the bad actors cited by Senator Hatch, upon 
introduction of S. 2560, and not to legitimate businesses, individuals, and 
institutions.
The standard for potential liability  action one could "expect to result 
in widespread violations"  is entirely novel in the copyright law, and 
seems considerably easier for a plaintiff to satisfy than that of the 
Betamax case  or even the standard suggested in the dissent in the Betamax 
case.  It would seem to subject all who invest, manufacture, or "traffic" 
in legitimate home, personal recording, and Internet products to a new and 
unquantifiable risk of litigation.  There seems a substantial likelihood 
that staple hardware and software products that are considered legal today 
would be found illegal tomorrow.  Moreover, the provision mentioning the 
Betamax holding explicitly invites judges to "evolve" its doctrine  a 
concept that met with universal dismay when advanced on July 22 by the 
Register of Copyrights.
That these vulnerabilities and uncertainties remain, even though the 
drafters have recognized and attempted to address many of our concerns, 
underscores the fact that adding any  new cause of action to the Copyright 
Act is a daunting undertaking that requires carefully nuanced drafting to 
prevent adverse impacts on the many sectors of the economy that copyright 
law reaches.  The present "induce" attempt, like those previous, requires 
reflection and comment, via hearings, so that the many new terms and 
concepts may be discussed and vetted publicly.  We hope you will respect 
our concern, as entities participating constructively in this process, that 
the present draft is not ready for passage out of the Judiciary Committee.
Respectfully submitted,
Association of American Universities American Association of Law Libraries 
American Library Association Association of Research Libraries California 
ISP Association Computer & Communications Industry Association Consumer 
Electronics Association Digital Future Coalition Electronic Frontier 
Foundation Electronic Industries Alliance (EIA) Home Recording Rights 
Coalition Information Technology Association of American (ITAA) Institute 
of Electrical and Electronics Engineers - United States of America 
(IEEE-USA) Matsushita Electronics Crop. of America
MCI National Venture Capital Association NetCoalition Open Source and 
Industry Alliance Public Knowledge Radio Shack
Samsung Electronics America
Sun Microsystems, Inc. Telecommunications Industry Association
Uniden America Corp.
USACM - US Public Policy Committee of the Association for Computing 
Machinery Verizon



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