Ernest Miller writes that the proposed INDUCE act, which would make anyone who “intentionally aids, abets, induces, counsels, or procures” an act of copyright infringement liable as an infringer, facially violates the First Amendment. I’m pretty sure he’s right; the Supreme Court has been clear that speech which is not directed to inciting imminent lawless action is protected. It’s possible to “counsel” infringement without inciting imminent lawless action; for example, one might say, “Arrr! Download those MP3s! Arr! But do it after we get a bite to eat or take a nap or something! Arr!”.
But those who induce patent infringement are liable as infringers, and there’s no First Amendment problem there, so why is the sky falling? 35 U.S.C. 271(b) says:
Whoever actively induces infringement of a patent shall be liable as an infringer.
Sounds a lot like the INDUCE Act, which reads:
Whoever intentionally induces any violation identified in subsection (a) of this section [that is, copyright infringement] shall be liable as an infringer.
The critical difference comes in the scope of what it means to “induce” infringement. As I mentioned above, the INDUCE act makes it illegal to “intentionally aid, abet, induce, counsel, or procure” infringement. How about the patent law? An official note to the section says that:
One who actively induces infringement as by aiding and abetting the same is liable as an infringer
That language comes from the 1952 Senate Report on the bill when it was under consideration. (It’s on page 22 of the PDF.)
While it echoes concepts from patent law in some ways, the INDUCE Act goes much farther than the inducement liability provision in patent law — and at least some of that added scope runs afoul of the First Amendment.
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