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.
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.