p2pnet.net News:- Pressure continues to mount against the entertainment industry inspired INDUCE Act, spearheaded by Hollywood champion senator Orrin Hatch.

Suggested revisions have been put forward but, “The draft raises a host of new issues and would create an unprecedented new form of liability of uncertain, but potentially unlimited, reach,” say 41 organizations representing both public interest and industry.

Individuals, organizations and companies of all stripes and persuasions protested INDUCE as it stood and more than 5,000 people responded to a phone-based call for action organized by Downhill Battle.

On September 17, the 41 sent a letter as a group to the Senate Judiciary, chaired by Hatch with senator Patric Leahy, another avid supporter of the entertainment industry, as the ranking member, saying consensus and, “the confidence in a legislative framework that ought to underlie a major and consequential revision to the Copyright Act” are lacking.

Now read on >>>>>>>>>>>>>>>>>>>>>>>>>>>>>

Dear Senators Hatch and Leahy:

The undersigned entities are writing to express their concerns with the Copyright Office’s September 9, 2004 recommended statutory language for a new form of secondary liability for copyright infringement. We commend the Copyright Office for its efforts to meet with the many different stakeholders and to fashion a recommendation that attempts to address the competing interests. Notwithstanding the Copyright Office’s hard work and creativity, the September 9 draft is not ready for mark-up by the Senate Judiciary Committee. The draft raises a host of new issues and would create an unprecedented new form of liability of uncertain, but potentially unlimited, reach.

The Copyright Office s most recent approach would create a new form of strict copyright liability for a large class of providers of hardware, software and services used in conjunction with the electronic or physical dissemination of goods, services, and information. These companies and institutions could be found liable without regard to their knowledge, intent, or relationship to the infringer, simply for providing a product, service, facility or financing. All it takes to be found liable is to meet one of the three vague criteria proposed by the Copyright Office, which are to be applied to some undefined subset of a defendant s products or services. As a result, anyone involved in the development or operation of electronic, or even physical, communication, distribution, or dissemination technologies could be strictly liable when it unknowingly derives revenue that may be small in relation to its own provision of goods and services. Perhaps most troubling, entities that participate in the Internet and other electronic space would have no way of structuring their activities to anticipate and avoid — or even minimize — these risks.

The Copyright Office’s new draft fails to codify the Supreme Court’s Betamax decision, which, despite having fostered twenty years of explosive growth in technology, is now under unrelenting attack. Moreover, the Betamax doctrine will provide no defense against the Copyright Office s proposed new form of liability. Nor would it be availing to present any defense based on lack of knowledge, intent, or affiliation with any infringer. Thus, legitimate enterprises may have no effective means of preventing the substantial litigation cost of virtually every infringement case going to trial. The September 9 draft also explicitly opens the door to secondary liability posing yet another challenge and obstacle — to those who finance new ventures or incubate new technologies. Thus, it may sweep up far more than bad actors who build business models based in infringement.

While the decision to embark on a new approach shows that the Copyright Office has been willing to listen to criticism of previous approaches and to explore new directions, the very novelty of this approach suggests that further analysis and review are in order. Indeed, each major alternative that has been presented to your staff (including those emanating from the private sector) has revealed an attempt to avoid the pitfalls of S. 2560 as introduced, yet has differed dramatically from other serious proposals. No private or public sector consensus has yet formed as to theoretical framework and practical impact.

In the first hearing on S.2560, the Committee called on interested parties to propose legislative alternatives. The resulting process has led to a number of significant alternatives, which differ greatly from the original and from each other. However, each would work a fundamental change in copyright law, with potentially enormous impact on the competitiveness and economic growth of this nation. Before any approach becomes law, it should, at minimum, be subjected to careful scrutiny in a public hearing at which novel elements in these approaches can be compared, and discussed as to their full implications. The process thus far has been constructive, but has not resulted in either the consensus or the confidence in a legislative framework that ought to underlie a major and consequential revision to the Copyright Act.

We continue to appreciate the seriousness and cordiality with which your staffs have approached this issue, and look forward to continuing to work with you and with them.

Sincerely,

1. Association of American Universities
2. American Association of Law Libraries
3. American Council on Education
4. AeA (American Electronics Association)
5. American Library Association
6. Association of Research Libraries
7. BellSouth Corporation
8. California ISP Association
9. CNET Networks, Inc.
10. Computer & Communications Industry Association
11. Consumer Electronics Association
12. Consumer Electronics Retailers Coalition
13. Digital Future Coalition
14. Earthlink
15. Electronic Frontier Foundation
16. Electronic Industries Alliance (EIA)
17. Google
18. Home Recording Rights Coalition
19. Information Technology Association of American (ITAA)
20. Institute of Electrical and Electronics Engineers – United States of America (IEEE-USA)
21. Intel Corporation
22. MCI
23. National Association of State Universities and Land-Grant Colleges
24. National Venture Capital Association
25. NetCoalition
26. Open Source and Industry Alliance
27. Public Knowledge
28. RadioShack
29. SBC
30. Sun Microsystems, Inc.
31. TechNet
32. Texas Instruments
33. Telecommunications Industry Association
34. U.S. Internet Industry Association
35. U.S. Internet Service Provider Association — (not including AOL, Inc.)
36. U.S. Telecomm Association
37. USACM – US Public Policy Committee of the Association for Computing Machinery
38. Verizon
39. Virginia ISP Association
40. Washington ISP Association
41. Yahoo, Inc.

Cc:
Members of the Senate Committee on
the Judiciary
The Honorable Bill Frist

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See:-

INDUCE Act – INDUCE proposal bans p2p nets, p2pnet, September 3, 2004

call for action – Save Betamax Tuesday, p2pnet, September 8, 2004

as a group – Sept. 17, 2004 Group Letter to Senate Judiciary, Public Knowledge

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