WASHINGTON — U.S. Sen. Orrin Hatch (R-Utah) said Thursday he plans to do
“something” this year about rampant music theft on peer-to-peer (P2P)
networks. As for his controversial new copyright inducement bill, he’s
willing to negotiate.
Last month, Hatch introduced his Inducing Infringement of Copyrights Act of 2004 (S.
2560), legislation permitting persons or corporations
to be held liable for infringing acts “that they intend to induce.” The bill
would allow P2P networks and others to be sued for encouraging children and
teenagers to commit copyright infringement via their P2P networks.
“The architects of this file-sharing piracy make millions of dollars while
attempting to avoid any personal risk of the severe civil and criminal
penalties for copyright infringement,” Hatch said at a Senate Judiciary
Committee hearing on the bill.
He added, “I think all here today would agree that these pernicious schemes
to encourage others — and unfortunately these are mostly kids — to break
federal law allows these pirates to collect huge revenues while subjecting
users to the risk of prison or crippling damage awards.”
Hatch is a longtime critic of the P2P
networks. Last year, he suggested
he might favor technology that can remotely destroy the computers of those
who illegally download music from the Internet. The proposal was never acted
upon.
In introducing the legislation, Hatch again startled the tech industry by originally maneuvering the
bill to the Senate floor without a hearing. After a number of industry
groups criticized
the legislative tactic, Hatch scheduled Thursday’s hearing.
Witnesses at the hearing readily agreed stealing copyrighted works was
wrong, but strongly opposed Hatch’s approach.
“Although I believe this bill to be a novel and sincere approach to dealing
with an issue that merits much discussion,” said Gary Shapiro of the
consumer Electronics Association, “I also believe it would make a radical
and unfortunate change to legal principles on which my industry and many
others have relied in order to bring new technology to American consumers.”
Shapiro was referencing the landmark 1984 U.S. Supreme Court Betamax
decision, which found that the manufacturer of a technology, in this case a
VCR, could not be held liable for infringing uses of a product as long as
the product also has non-infringing use.
“The Supreme Court in Betamax gave technology companies the confidence and
incentives to invest in new technology because it set an objective legal
standard: a safe harbor for manufacturers and distributors of hardware and
software products,” Shapiro said. “Unfortunately, the subjective legal
standard proposed in S. 2560 would fill this harbor with unchartable mines.”
Robert Holleyman, president and CEO of the Business Software Alliance, told
the Senate panel his organization believes Hatch’s proposal would result in
unintended consequences.
“Persons with bad motives have repeatedly used developments in the
marketplace and technology to their own ends,” he said. “Today is no
different. In the past such bad actors have used the postal system,
telephones, automobiles and other avenues of commerce for their own illicit
ends.”
Holleyman noted, “Just as past solutions focused on these bad actors, and
did not outlaw overnight delivery, cars, or telephones, today’s solutions
must leave intact the important contributions computing technologies make
to our daily lives, and allow these technologies to make even greater
contributions in the future.”
IEEE-USA Intellectual Property Committee Vice-Chair Andrew C. Greenberg
testified that copyright owners should not be permitted to restrict the
development of technology having non-copyright-infringing uses, unless the
developer actively and independently induces a copyright infringement. The
IEEE is the world’s largest professional technology society.
“The Sony test worked well and has withstood the test of time for nearly 20
years,” Greenberg said. “Far from destroying the market for content,
successors to the Betamax were plentiful and cheap, and spawned entire new
markets for distribution of content, creating a significant, and in some
cases principal, new source of revenue for content owners savvy enough to
capitalize.”
Hatch contended his bill would not inhibit technological innovation.
“Just as the Sony Court never intended to allow the
substantial-non-infringing-use rule to be misused as a license to enter the
copyright piracy business, I do not intend to allow S. 2560 to be misused
against legitimate distributors of copying devices,” he said.
Hatch said he welcomed a “constructive dialogue” with the technology
industry about his bill, but warned, “We must find a solution in this
session of Congress that protects both copyrights and the technology. We’re
going to do this, we’re going to get this done.”
