September 10, 2004

INDUCE Act, Take Two

The Copyright Office today released a new draft of the INDUCE Act. The content of the legislation is still in flux, but its purpose is and has always been to make a smoking hole in the ground where the P2P software companies used to be. The new draft is much narrower than previous ones, focusing on the business model of the defendant rather than the functions performed by the defendant’s technology.

It’s still impossible for a defendant to win on summary judgment, though. Let’s take the iPod as an example. The iPod is unquestionably “a cause” of public dissemination. But for the iPod, at least one marginal user wouldn’t be on P2P, since the iPod makes his MP3s more useful; but for the downloading activity connected with the iPod, the user wouldn’t disseminate by running the P2P app. One of the things you learn in first-year Torts is that things get hairy quickly when your standard of causation is lower than proximate cause or reasonable foreseeability; you end up suing the tortfeasor’s mother for giving birth to him, or suing the cabbie who brought the tortfeasor to work that day. So the standard for causation in this draft is dangerously low, and unless the causation requirement is tightened up in a later draft, nothing will be too remote a cause. The plaintiff will never lose because they failed to prove sufficient causation.

As for the three-part test — you’d need a lot of facts to determine whether the iPod would be commercially viable without P2P, or whether most iPods are bought for use with illegal MP3s, or whether Apple relies on P2P to attract people to the iPod. All a copyright holder would have to do is dig up enough marketing memos during discovery to give rise to a genuine question as to facts material to those determinations. Even under the revised bill, something like the EFF’s iPod complaint would probably get past summary judgment.

And that means the bill must be stopped, even though it’s guys like me who would be able to rack up untold billable hours fighting off bogus INDUCE lawsuits.

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

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