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Bradford Brown
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On The Horizon: Copyright Bill Needs Narrower Definition

Congress should hold hearings so both sides are fairly represented.

The Grokster decision in April in U.S. District Court for the Central District of California concerned file swapping. In his opinion, Judge Stephen V. Wilson found no infringement on the part of the defendants, Grokster and StreamCast Networks. However, Wilson said he was unwilling to expand the scope of copyright law "beyond its well-known boundaries," and that "additional legislative guidance may be well counseled." The U.S. Senate Judiciary Committee was happy to accommodate.

USA Today ran a story titled "Copyright Bill Poses Threat To iPod's Future." The bill in question evidently is aimed at answering Wilson's suggestion. It's only two pages long but is causing a summer squall. The bill, Inducing Infringement of Copyrights Act of 2004, amends Section 501 of Title 17 of the U.S. Code by making anyone who intentionally induces a copyright infringement liable as an infringer. But what exactly does "intentionally inducing" mean? The act defines "intentionally inducing" as "aids, abets, induces, or procures, and intent may be shown by acts from which a reasonable person would find intent to induce infringement based upon all the relevant information about such acts then reasonably available to the actor, including whether the activity relies on the infringement for its commercial viability."

What's getting attention online and off is that Sens. Orrin Hatch, R-Utah, Patrick Leahy, D-Vt., Bill Frist, R-Tenn., and Tom Daschle, D-S.D., support the bill. Hatch, chairman of the Judiciary Committee, is quoted by as saying, "Tragically, some corporations now seem to think that they can legally profit by inducing children to steal; that they can legally lure children and others with promises of free music."

While no one was looking, the Senate slam-dunked a few copyright bills earlier this summer, so there's concern that the issues surrounding this bill won't be debated. Forty-two companies and groups requested hearings on the issue, including eBay, Google, Verizon, and Yahoo, according to USA Today. The Judiciary Committee had one hearing in July.

"The makers of electronic equipment, the software vendors who sell E-mail and other programs, the Internet service providers who facilitate access to the Web--all of these entities have nothing to fear from this bill," says Leahy on Cnet's "So long as they do not conduct their businesses with the intention of inducing others to break the law ... they should rest easy," he adds. Sure, tell that to Steve Jobs. The fact remains that the meaning of "intentionally inducing" will still have to be interpreted by the courts.

Leahy's interpretation of the legislation seems narrower than Hatch's, who was quoted in USA Today last year as saying, "I'm for destroying all their machines," referring to network trading of copyrighted material. What isn't clear is if he was talking about computers, routers, storage devices, or just all MP3s. With comments like that on the record, it's small wonder there was a strong call for hearings. Companies are riled up on both sides of the issue.

The issues surrounding file sharing are volatile, and the notion of "intentionally inducing" copyright infringement is new and expansive. At a minimum, Congress should forget about ever passing this legislation on a voice vote and hold more hearings in the fall to gather more information so both sides can be fairly represented.

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