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Induce Act tweaks fail to stem concern

Sell a VCR, go to jail

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Clouds of ambiguity hover over Senate Bill S.2560, known as the "Induce Act", despite the latest tweaks. The Bill (Inducing Infringement of Copyrights Act of 2004, to give its full title) adds the same liabilities for copyright infringement to anyone who "intentionally induces", via a product or service, acts of copyright infringement.

The substance of the bill remains the same, despite the addition of language which appears to permit "fair use." Such provisions are made irrelevant by the remaining language which allows manufacturers of VCRs, PVRs and PCs to become liable for inducement.

You're not going to have any fair use rights on a machine that doesn't exist, or that you can't buy.

The additional language forbids prosecutions solely based on a consumer's "private and noncommercial" usage of a product or service provided that the consumer hasn't made the copies publicly available. It also allows a similar escape clause for distributors, investors, marketing companies who promote such products or services, or journalists and analysts who write about them.

The "actor must have engaged in conscious and deliberate affirmative acts which a reasonable person would expect to result in widespread violations of subsection (a) taking into consideration a totality of the circumstances." Even with such waffle, the bill remains essentially the same.

Campaign group Public Knowledge maintains that the amendments fail to defang the most damaging aspects of bill.

"It nullifies the 1984 Betamax decision, the fundamental Supreme Court decision that helped to create new choices and experiences for consumers, and will create a litigation nightmare," said PK president Gigi Sohn in a press release.

"If the Copyright Act had read this way in 1975, it is highly unlikely that any home recording or email products would have come to market," PK's Art Brodsky writes in a preliminary analysis of the revised bill. "TiVo, iPod, iTunes, and other products and services all involve combinations of products and services that, no matter how otherwise commendable and useful for consumers, arguably involve “widespread” infringement as currently defined by copyright interests."

One of the bill's co-sponsors, Senator Hatch, once advocated introducing compulsory licenses (aka "Flat Fees") to bring sense to the record industry and raise money for songwriters from file trading. After being wooed by the Recording Industry Ass. of America, Hatch changed his mind. ®

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