I recently testified before the Senate Judiciary on the Inducement of Copyright Infringement Act, a bill that would grant to copyright holders the right to sue non-infringing persons selling equipment capable of both infringing and noinfringing uses, if their sale can be taken by a jury to have induced third parties to infringe.
I testified that secondary liability for copyright infringement (the holding of noninfringers liable for the infringement of others) must be carefully circumscribed, particularly when holding technologists liable for technologies, or else you are giving jingle-writers effective patents on technologies they did not invent. While inducement is a responsible basis for secondary liability, the ICIA does not do an adequate job to assure that future technologies will not be chilled.
Whether or not it was the intent its proponents, the bill as drafted would create uncertainties that would have both the real and practical effect of circumventing the protections in the Betamax case. We proposed an alternative that could more fairly balance these concerns: (i) codifying the Betamax case, (ii) permitting actions against actual wrongdoers acting with knowledge and specific intent to induce infringement; and (iii) limiting the scope of uncertainty to protect those making legitimate sale of devices having both infringing and non-infringing uses.
A fairly decent summary of the testimony can be found here. My testimony is available at the IEEE-USA web site. A quicktime video of the entire testimony is available here.
Posted by Werdna at July 31, 2004 07:46 PM | TrackBack