August 6, 2004  ·  Tim Wu

Here’s the question: What would the Induce Act look like if it balanced the interests of copyright owners and technological innovators? Here’s what: the Inducing Innovation Act.

Comments welcomed, and thanks to all those who helped work on this.

Short Commentary

The goal of this Act is to clarify the scope of secondary and vicarious liability under copyright. Today, pernicious consequences have attended the vague scope of liability under copyright. In some cases, parties as distantly connected to content as credit card companies have been brought into court on copyright infringement charges. Other companies who handle or pass-on copyright content are forced to adopt costly measures for fears of vicarious liability. Companies that design legitimate new electronics or services have very unclear ideas of when they can expect to face liability for the potential acts of their customers.

This Act remedies these problems by making it clear that, as in federal criminal law, only accomplices to copyright infringement are liable for the acts of the principal. Accomplices are defined as those who intentionally aid or command specific acts of copyright infringement. The Act also makes clear that merely knowledge that a product could be used for infringement is not sufficient to create liability. This approach is consistent with the scope of accomplice liability in other areas of the law, and puts industries regulated by copyright on an equal footing with others. The Act further reaffirms the safe harbour for “substantially non-infringining products: from the Sony Betamax case, a case hailed for its role in great pace of information technology growth over the last two decades.

The point of the Act is make it as clear as possible to innovators what they can do to steer clear of copyright liability. It strikes a balance: persons and companies may not serve as intentional accomplices to infringement, but are otherwise free to design legitimate, neutral devices and services without undue liability concerns.

  • Anonymous

    it’s good stuff.. is it hypothetical though, or is it actually getting to the hands of good congressfolk to be actually introduced?

  • Alexander Wehr

    It is good to have dreams and all, but we as the public are currently fighting the FCC for the mere right to fairly use TV signals.

    The last i heard on that case the judge allowed it to go forward, but urgency is sadly lacking, as there appears to be no news of anything on the docket in the case for months.

  • Andrew Greenberg

    I would eschew analogies to the law of criminal complicity. For one thing, note that while the standards for scienter there are broadly stated, the burden of proof for those standards must be proved beyond a reasonable doubt. Secondary liability is not rooted in criminal complicity, but rather from principles of respondeat superior — where the law and language developed in an environment of a preponderance standard. Similar ideas from different worlds, but it is dangerous to mix the words between the worlds.

    I am fearful that even this lovely pull-back from modern standards will not be enough. Note further that the question of fuzzy and broadly stated standards has a deep and practical impact — in particular, they preclude summary judgment for either plaintiff or defendant. In the case of civil actions extending copyright infringement to technology, that uncertainty favors the content owners immensely. Potential damages are estimable by the number of extant works times $750, or billiions, and a jury can do anything. If there won’t be summary judgment for defendants in most cases, then the chill is present, even for defendants who are supposed to win: nobody will invest in or risk the technologies.

    Finally, it is impossible. The language, as I read it, essentially pulls back vicarious infringement all the way back to its roots in respondeat superior. While I think this is a good thing, and criticized the expansion in my written testimony on the IICA, extending control-relationship-based liablity to a negligent-failure-to-exercise-capacity-to-control form, you must understand that such legislation is impossible. There are two classes of cases that no legislature will pull back from: (a) the Dance-hall cases, where the club, not the band is held liable, despite absence of an agency or employment relationship; and (b) the record chain cases, where the owner of the chain, is held liable for bootleg distribution by its contracting retail stores, notwithstanding the absence of agency.

    We seriously considered pulling back on vicarious that far in the IEEE proposal (it was in until the penultimate draft!), but rejected it at end for the reason that a proposal that reverses the Dance Hall and Record Chain cases would be rejected out of hand as unserious.

    Personally, I think it is dangerous to use any new words in redefining secondary liability. While I, personally, would get rich from the process of litigating these questions, I much prefer a more rationalized basis for knowing what the legislation actually means. At the end of the day, I ask whether a lawyer could write an unqualified opinion that his client will be safe from claims of secondary liability, given only the technical details of the product, so long as the client follows certain advices concerning marketing conduct.

    This is why the IEEE substitute undertook, so far as possible, to use existing language from cases and statutes as a byword. While the law of patent inducement is far from crystal, it has proved far less uncertain than the status quo in vicarious and contributory liability, and would be far, far, clearer than the language in S.2560.

  • M. Mortazavi

    Perhaps you can make something clear for me.

    Was Andy Warhol violating copyright in his Micky Mouse (or other such) images, and are the art collectors who are engaged in commercial exchange of his work accomplices in this violation?

  • paul

    what did you do to this PDF? I can’t copy and paste the text from it.