April 23, 2014

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Recent Induce Act Draft

Reportedly, the secret negotiations to rewrite the Induce Act are ongoing. I got hold of a recent staff discussion draft of the Act. It’s labeled “10/1″ but I understand that the negotiators were working from it as late as yesterday.

I’ll be back later with comment.

UPDATE (8 PM): This draft is narrower than previous ones, in that it tries to limit liability to products related “peer-to-peer” infringement. Unfortunately, the definition of peer-to-peer is overbroad. Here’s the definition:

the term “peer-to-peer” shall mean any generally available product or service that enables individual consumers’ devices or computers, over a publicly available network, to make a copy or phonorecord available to, and locate and obtain a copy or phonorecord from, the computers or devices of other consumers who make such content publicly available by means of the same or an interoperable product or service, where –

(1) such content is made publicly available among individuals whose actual identities [and electronic mail address] are unknown to one another; and

(2) such program is used in a manner in which there is no central operator of a central repository, index or [directory] who can remove or disable access to allegedly infringing content.

By this definition, the Web is clearly a peer-to-peer system. Arguably, the Internet itself may be a peer-to-peer system as well.

Comments

  1. Max Kington says:

    Attempting to nail down the definition of peer to peer will be an ever moving target.
    I have no doubt that the definition will become a point of interpretation
    that gets argued in law.

    I do however wonder what the definition of public network is? What happens if I am part of a
    kind of semi closed or gated network? For example community users could allow
    anonymous users onto the network in a manor that once that person becomes
    a peer no one person could revoke their status. We’d still all be anonymous
    (point 1), there would be no central operator of a central repository (point 2).
    The network is essentially private. Someone, the community, still has to grant
    you access. Even if this act applies to such a network any legally able enforcer
    of this law would have to petition the community to revoke someone’s rights collectively.
    That would be removing the infringer, not removing the content specifically. Could you
    argue that would equate to “remove or disable access to allegedly infringing content”.

    Although, now I type this I’m starting to wonder if such a network structure would be socially
    and technically feasible. What happens when the required majority to enable compliance isn’t
    subject to these laws?

    Mickey

  2. matt perkins says:

    I can’t tell whether (g)(1)(A) & (B) should be joined by “and” or “or.” Either way, I really don’t like this whole proportion-of-revenues test. Sounds like a p2p software distributor could escape liability even though 90% of users infringe — as long as the lawful 10% account for “the majority” of revenues.

    I like that “conscious, affirmative acts” is the crime, although that’s pretty vague & subjective. Although, that kinda renders (4)(A) superfluous: what’s the point of conditioning stat. damages on “willful” acts, if the prohibition itself is only on “conscious, affirmative acts”? Sounds like ANY violation of this statute would lead to stat. damages.

    All in all, it escapes a lot of the problems that previous drafts have had.
    –matt

  3. Copyfight says:

    Meet the New Induce Proposal, Same as the Old Induce Proposal

    Edward Felten and Derek Slater examine the latest draft (PDF) of the misguided Induce Act and deliver a one-two punch: Felten: “This draft is narrower than previous ones, in that it tries to limit liability to products related ‘peer-to-peer’ infringeme…

  4. Copyfight says:

    Meet the New Induce Proposal, Just as Bad as the Old Induce Proposal

    Edward Felten and Derek Slater examine the latest draft (PDF) of the misguided Induce Act and deliver a one-two punch: Felten: “This draft is narrower than previous ones, in that it tries to limit liability to products related ‘peer-to-peer’ infringeme…

  5. Nick says:

    Assuming (g)(1)(A)&(B) are an AND condition, it would appear that Free Software is not affected. Since all the Free Software p2p projects I have seen don’t derive revenue from anything other than donations which anyone can make, whether they are a user or not and regardless of the country they are in, it would be hard if not impossible to go after them. It would be even harder to go after companies like Red Hat and Mandrake that may include p2p software, as many of their customers won’t even install or use the p2p software.

  6. The Importance of... says:

    Final INDUCE Act (IICA) Draft From Copyright Interests – INDUCE Dead for Now

    It would appear that the Inducing Infringement of Copyrights Act of 2004 is dead. Newsday runs an AP wirestory on the death of INDUCE (Senate Talks Fail on File-Sharing Software). via Copyfight For the record, according to an anonymous source,…

  7. Jay says:

    You have to ask yourself why this process should be implemented via “secret negotiations” involving aides and lobbyists, and carried out at the last minute.

  8. Copyfight says:

    The Cure for Infringement

    Kill the Internet as we know it. Ban all technologies that capitalize on the Internet’s basic end-to-end architecture. Reshape the network so that ISPs or other traffic routers could have certain controls that would discriminate between types of traffi…