In a move that's alarming technology firms, the U.S. Copyright Office is about to endorse new legislation that would outlaw peer-to-peer networks and possibly some consumer electronics devices that could be used for copyright piracy.
Marybeth Peters, the U.S. Register of Copyrights, is planning to announce her support for the measure at a Senate hearing on Thursday. The Induce Act, which critics warn could imperil products like Apple Computer's iPod, is an "important improvement over existing law," according to a copy of her statement seen by CNET News.com.
Peters goes even further than the politicians supporting the Induce Act, saying a 1984 Supreme Court decision "should be replaced by a more flexible rule that is more meaningful in the technological age." That 5-4 ruling said that VCRs were legal to sell because they were "capable of substantial noninfringing uses"--a legal shield that one federal court has extended to cover the Grokster and Morpheus file-swapping networks.
The endorsement of the nonpartisan Copyright Office complicates what is shaping up to be yet another high-stakes tussle over copyright between hardware firms and e-commerce companies, which worry about legal liability if their products are used for copyright violations, and large copyright holders who fret about rampant copying on peer-to-peer networks. The Induce Act says "whoever intentionally induces any violation" of copyright law would be legally liable for those violations.
In an opinion article for the Wall Street Journal published Wednesday, Les Vadasz, who retired last year as an Intel executive vice president, denounced the Induce Act as having a wealth of undesirable side effects. "The chilling effect that a law like this would have on innovation cannot be underestimated," Vadasz said.
More than 40 trade associations and advocacy groups voiced similar sentiments in a letter to senators on July 6. The Induce Act "would chill innovation and drive investment in technology" overseas, said the letter signed by CNET Networks, eBay, Google, Intel, MCI, TiVo, Verizon, Sun Microsystems and Yahoo. (CNET Networks publishes News.com.)
On the other side are the music industry groups that have become Silicon Valley's typical political adversaries on copyright laws--with one exception.
The Business Software Alliance, a group that includes Adobe and Autodesk as members and is closely affiliated with Microsoft, has applauded the Induce Act. BSA said in a statement that it is a "reasonable balance between antipiracy and technological innovation."
On Wednesday, entertainers joined BSA in welcoming the Induce Act. "We urge the committee to pass this crucial legislation as quickly as possible," said a statement from groups including the American Federation of Musicians, the National Music Publishers' Association, the Nashville Songwriters Association, and the Songwriters Guild of America.
A lawyer for the Copyright Office, who spoke on condition of anonymity, defended the Induce Act as making modest changes to copyright law that were necessary to target file-swapping companies. "If people have specific concerns (about the wording of the bill), we'd be open to working with the committee to figure out how to address them," the lawyer said.
Alarm over "inducing"
NetCoalition, which represents e-commerce firms and Internet publishers, said it was alarmed by the Copyright Office's call to revisit the 1984 "Betamax" VCR decision.
"We would vigorously disagree that Congress ought to reconsider the Betamax decision," said Markham Erickson, NetCoalition's director of federal policy. "We're troubled by the Copyright Office's suggestion that it's no longer applicable in the digital era. In fact, we would suggest that the Betamax decision is one of the reasons why we had the explosion of the Internet, instant messaging and Web browsing products. The Betamax decision helped to foster this era of great products."
Fred von Lohmann, an attorney at the Electronic Frontier Foundation in San Francisco, said it's no real surprise that the Copyright Office is eager to see the Induce Act enacted.
"The Copyright Office tends to view copyright law through the narrow lens of what does it mean for copyright owners," he said. "The Copyright Office has not traditionally and certainly not recently viewed as one of its core missions asking, 'How has copyright law affected other areas, such as technology policy and innovation?'" EFF has prepared a fake lawsuit that shows how Apple, Toshiba and CNET Networks could be sued for products and reviews that allegedly "induce" people to violate copyright law.
The Induce Act's supporters include Judiciary Chairman Orrin Hatch, R-Utah; Patrick Leahy, D-Vt.; Senate Majority Leader Bill Frist, R-Tenn.; Minority Leader Tom Daschle, D-S.D.; Lindsey Graham, R-S.C.; and Barbara Boxer, D-Calif.