The recording industry is trying to ram a bill through the United States Senate that would give entertainment industry lawyers a new cause of action to attack every new technology about which a copyright owner is concerned. 

S. 2560, the so-called “Induce Act,” would impose potential new costs and liabilities on almost every sector of the U.S. economy, including consumer electronics retailers and manufacturers, Internet companies, libraries and universities, venture capital firms, financial services companies, and even organizations that provide product reviews.  More than 40 organizations have sent a letter to the Senate Judiciary Committee identifying their concerns. 

The biggest concern with the Induce Act is that it would undermine the Sony Betamax decision, the 20-year old Supreme Court decision in Sony v. Universal City Studios, 464 U.S. 417 (1984) (“Betamax”).  In Betamax, the Supreme Court held that the manufacturer of a product could not be held secondarily liable for infringing uses of the product by others so long as the product was capable of substantial noninfringing uses. 

In other words, technology, in and of itself, could rarely be considered unlawful in the copyright context.  

In fact, it is hard to find another issue that has so quickly united such a wide range of organizations, including technology companies, telecommunications carriers, libraries, and universities; conservative groups to public interest organizations.

Representatives from various sectors of industry have offered alternative proposals that would protect innovators from threatening and harassing litigation while still giving Copyright owners an ability to sue truly bad actors that are promoting illegal behavior.

Unfortunately, the U.S. Copyright Office has told the Senate Judiciary Committee that Congress should consider overturning the Betamax case.  It has provided the Committee with two draft amendments to S. 2560.  The second draft produced another letter of opposition from a wide array of organizations concerned that it goes too far to impose liability on good actors. (See Copyright Office's First Draft)

Congress should not rush to revise fundamentally a well-established Supreme Court doctrine without a process in which the implications for the individuals and the industries that have relied on it for the last two decades are fully and publicly aired and discussed. 

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