September 20, 2020

Sin in Haste, Repent at Leisure

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.

Comments

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    Well, no version of the INDUCE Act (IICA) has come out of Sen. Orrin Hatch’s patent-pending throw some of the interested parties in a room and not let them out until there is a compromise innovation policy development process. The…

  2. Anonymous says:

    While this may very well turn out badly, at least the good guys are at the table. There will be at least two IEEE-USA Intellectual Property Committee reps at the meeting. (I drove one of them to the airport Wednesday night.) IEEE-USA has a Press release describing their testimony at the July hearings, though the verbatim testimony appears to have disappeared from their web site.

  3. Bored Huge Krill says:

    I think there’s a much bigger problem with the “broad ban, narrow carveouts” methodology beyond the fact that some legitimate business activity will fall outside the carveouts: that some legitimate business activity or technology *that hasn’t been invented yet* will fall outside the carveouts.

    The central issue with all of this kind of regulation is that it attempts to enforce a business model driven status quo and stifle any kind of innovation. That, surely, cannot be conducive to the greater good.

  4. The real kicker that shows just how badly this idea has been drafted is that the phrase “taking into account the totality of circumstances” could also fairly reasonably be taken to mean that nothing could ever be banned by this act. If you truly look at “the totality of circumstances” you see that any technology may well be used more for non-infringing purposes, and certainly in determining what constitutes “widespread” you would have to look at how much of a technology’s use is infringing.

    Naturally you could also argue that even if 99.99% of a popular technology’s use is non-infriging, the tiny portion of 1% that is infringing is “widespread”. But you could make the opposite argument as well, as I did above. It just shows how the act really is an incredibly poorly written act so far, even if you agreed that its purpose was sensible. I don’t think it’s sensible, and the writing of it is even less sensible.

  5. David Carroll says:

    The most recent version of the Induce Act also continues to punish technology firms whose products are used to infringe any of the various copyright rights – not just the right to authorize copies. Thus inducing the creation of derivitive works can become grounds for litigation. The maker of an on-line translator like Babelfish could get sued for inducing creation of derivitive works by any website proprietor, anywhere, whose web site gets translated. So could Adobe, if somebody, somewhere uses Photoshop to alter a copyrighted photo. So could Microsoft if Word (or whatever) is used to modify a copyrighted HTML document. And so on.