August 9, 2004 · Rick Boucher
I have tremendous respect for the scholarship of Professor Larry Lessig, and I am honored to be asked to host his blog this week. I hope that over the coming 5 days, we will have a series of thought-provoking conversations. Your views and suggestions will be helpful to me as we consider a variety of matters that Congress is now debating or will take up next year.
Let’s begin today with the hottest topic, the so-called Induce Act.
The Senate has under consideration a bill ( S. 2560 , often referred to as the Induce Act) that makes it unlawful for anyone to “intentionally induce” the infringement of a copyrighted work. By creating a new cause of action based on a subjective test, the legislation would overturn, or at least make irrelevant, the Supreme Court’s objective test in the Betamax case (“capable of substantial noninfringing use”). The effect on device manufacturers, including computer manufacturers, would appear to be self-evident: They could not bring new multi-purpose devices (including software) to market without facing the threat of crippling litigation. They would either have to withhold from the market useful new technology or agree in advance to restrictions on the functionality of the equipment, perhaps even agreeing to specific technical mandates sought by content owners.
Although I have my doubts that the bill will make its way out of the Senate this year and be considered by the House, we could yet see the bill appear in some form before the House Judiciary Committee (on which I sit) either as freestanding legislation or as an amendment to a pending copyright bill. As we fashion a strategy to address this threat to innovation and technical progress, I would welcome thoughts on whether the Induce Act does in fact gut the Betamax decision, how its effect will be felt beyond devices, and whether it raises any First Amendment issues by potentially chilling speech (e.g., product reviews).