Ernest Miller, continuing his stellar coverage of the Induce Act, reports that, according to PublicKnowledge:
An all-star game of private sector legislative drafters will start at 10:30 [today]. There will be representatives from consumer electronics, Verizon, CDT, and others on our team and from the usual suspects on the other team. They are supposed to produce a draft by 4 p.m. That draft will then be, probably revised, to see if it can be marked up next week.
Yes, you read that right: critically important decisions about our national innovation policy need to be made, and a small group has been given a few hours to make them.
The result of this process will be yet another Induce Act draft. Doubtless it will take the same approach – blanket bans on broad classes of behavior, with narrow carveouts to protect the present business plans of the groups in the room – as the previous bad drafts.
How bad have these drafts been? Well, as far as I can tell, the now-current draft would appear to ban the manufacture and sale of photocopy machines by companies like Xerox.
Xerox induces infringement because, when it makes and sells photocopiers, it “engage[s] in conscious and deliberate affirmative acts that a reasonable person would expect to result in widespread [copyright infringement] taking into account the totality of circumstances.” After all, everybody knows that photocopiers are sometimes used to infringe, so that widespread distribution of copiers will lead to widespread infringement.
Now we come to the issue of the narrow carveouts. The Induce Act draft does have two subsections that provide carveouts, which appear to be constructed to protect iPods. But those carveouts appear not to protect Xerox. Subsection (C) of the draft exempts some product distributors, but only if the infringements that are induced are entirely private, non-commercial, and done by consumers. This would appear not to protect Xerox, which has many commercial customers. Subsection (D) exempts Xerox’s user manuals and advertising, but not the distribution of its copiers, so that doesn’t help either. It looks like Xerox would be liable as an inducer under the current draft.
Am I missing something here? Perhaps a reader who is a lawyer can straighten me out. Regardless, this kind of analysis shows the risk induced by the “broad ban; narrow carveouts” approach to tech regulation – the risk that some legitimate business activity will fall outside the carveouts.
This problem is at its worst when regulatory language is written in a hurry, and when only a few stakeholders are invited to participate in drafting it. But that’s exactly what is scheduled to be happening, right now, in a conference room in Washington.
