It seemed for a while that some version of the Induce Act was going to pass this year.  Instead of lobbying against any sort of legislation that would characterize a class of entities as "infringement inducers" and make them illegal, advocacy organizations like the Home Recording Rights Coalition and Public Knowledge decided to constructively craft alternative legislation that would narrowly and unambiguously target "bad actors" while leaving others alone and not forcing technology companies to worry about litigation when they design new products.  

The media, technology, and consumer interests ultimately could not agree on certain fundamental issues.  Organizations like the MPAA and RIAA were not content to have the bill target today's crop of file-sharing networks, such as Morpheus, Grokster, and eDonkey (the latter now being the most heavily used P2P network, surpassing KaZaA); they wanted to ensure that the legislation would apply to whatever "infringement inducement" technologies appear in the future.  Technology companies, on the other hand, were concerned that any description of such future technologies would have to be so open-ended that it would force them to second-guess a wide swath of new product development activity, for fear that it would lay them open to litigation; and worse, they were concerned that the media industry could use the law to characterize existing technologies -- such as hard-disk-based portable music players -- as infringement inducers. 

The various sides could also not agree on non-technological criteria for identifying "bad actors."  For example, the last couple of drafts of the bill before its death used a theory based on business models -- that an infringement inducer is an entity whose business model depends chiefly on revenue related to copyright infringement.  Many factions found objections to this.  The media industry objected (or should have, at any rate) that this characterization would not fit those who produce file-sharing or DRM circumvention technologies just because they can, or because they want to damage the media industry -- people like Jon Lech Johansen of Norway.  Others objected on more general terms, that laws should not restrict classes of business models.

Sen. Hatch intends to take up the matter again next year.  In the meantime, the media industry has filed a petition for certiorari on (i.e., asked the U.S. Supreme Court to hear an appeal of) the MGM v. Grokster case, whose decision went in favor of the file-sharing networks last year (and was upheld on appeal in August of this year).  Many legal experts consider this to be a long shot, but it is evidence that the media industry does not have much faith in the passage of any variant of the Induce Act.

We have said that addressing all of the concerns mentioned above in a single piece of legislation is extremely difficult at best, and it's not surprising that a roomful of legal and subject-matter experts gave up trying. The truth is that even if a law were passed that puts the likes of Morpheus and eDonkey out of business, someone would figure out another way of achieving the same result with technology that is different enough to escape the law. Trying to incorporate a range of guesses at what that future technology might look like without attacking the very nature of innovation just seems inherently impossible.

Perhaps the best strategy to address the fact that the vast majority of activity on these file-sharing services is infringing is to create laws that just shut them down without affecting anybody else, then address the problem anew when the next round of technology comes along. The resulting game of legal whack-a-mole would be inefficient, and we would have to be convinced that even that strategy could not be abused, but perhaps that's the only possible legal alternative -- as opposed to purely market-based alternatives -- to the status quo.

Get DRM Watch Newsletter

Click here to subscribe to DRM Watch