[IP] more on Update on the INDUCE Act (now renamed the "IICA")
Begin forwarded message:
From: Annette Hurst <annette@xxxxxxxxxxxx>
Date: June 24, 2004 10:01:39 AM EDT
To: dave@xxxxxxxxxx
Subject: RE: [IP] Update on the INDUCE Act (now renamed the "IICA")
Dave (for posting if you like):
The text of the bill can be found at the end of Senator Hatch's
introductory remarks, which are available at www.senate.gov by finding
pages S7189-93 of the Congressional Record. (These pages can be found
by doing a search on all bills introduced on 6/22/04 and then locating
the IICA, clicking on the "status" link.) The remarks are also well
worth reading, although the piety of the refrain that file-sharing
software makes criminals out of our children certainly wears after a
while.
While Senator Hatch disavows any intention to overrule Sony (the Betamax
Case), he also uses the term "induce" throughout his remarks to be the
equivalent of the current doctrine of "contributory infringement." The
key aspect of Sony as far as contributory infringement is concerned is
that if a product is capable of substantial noninfringing uses, it is
not enough simply to have "constructive notice" of infringement in order
to be found liable. Instead, there must be "actual notice." The
decision in Grokster interpreted this to mean it has to be specific
actual notice of specific acts of infringement.
Senator Hatch agrees that he is trying to overrrule this aspect of the
Grokster decision. It is difficult to understand, then, how one could
overrule the notice aspect of Grokster without taking Sony down as well,
particularly given the historical context of the Sony decision when
there was, as yet, no established market for VHS rental or sales to VCR
owners.
(Yes, I am an IP lawyer.)
Annette Hurst
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