September 30, 2004 | By Jason Schultz

BSA to Hatch -- We're with the Tech & Telecom Industries on Induce

Throughout the ongoing battle over Senator Hatch's controversial Induce Act, the dividing lines have been clear: the RIAA on one side, and the technology and telecommunications industries on the other, with one puzzling exception -- the Business Software Alliance. The BSA did appear at Senator Hatch's initial hearing on the Act, but other than that has been surprisingly quiet in the debate over subsequent drafts of the bill and the effort to defend the Betamax doctrine.

Last night, all of that changed. In a strongly-worded letter [PDF 65k], BSA (along with CSPP and the ITIC) told Senators Hatch and Leahy in no uncertain terms what's wrong with Induce and what any bill that expands copyright liability would need to pass muster:

We believe that to implement your goal that legitimate products and technologies not be threatened, it should be made clear that technology products that can be used for significant legitimate purposes - in the copyright vernacular, substantial non-infringing uses - are not subject to copyright infringement liability. To this end, the bill should state clearly that the Supreme Court's decision in the Sony Corp. v. Universal City Studios, Inc case is unaffected and the defenses to infringement in that decision are preserved. That decision has stood for 20 years, and technology companies and the marketplace have come to rely on it.

[W]e believe that the draft circulated this week would encourage litigation and ultimately require responsible companies to spend resources defending themselves, even when no illicit aims are present. The draft does not make clear that providing technology products and services per se is not subject to liability, including when they can be used for significant legitimate purposes. Nor does the draft state, without qualification, that mere knowledge of infringing use of a product or service, or advertising and providing support or assistance to users, are not a basis for infringement liability.

To address the goals of this legislation, we believe that a more narrowly tailored approach would be better; one that enables aggrieved parties to target entities that have illicit motives and business models. This would avoid three major problems with the current draft: first, the need for courts to make determinations of the subjective intent of a product designer or producer, instead of properly focusing on objective questions of causation and business models; second, the need for courts to examine the design, functions and capabilities of particular technologies; and third, the inability of courts to dismiss a case before parties have to engage in costly and disruptive discovery.

This makes it full house. Technology and telecommunications companies and organizations uniformly oppose the current version of Induce and favor preserving Betamax. Hatch has emphasized over and over that he wants consensus on Induce. I would say that now he has it: Don't Induce; Save Betamax.


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