WASHINGTON, June 24 (UPI) -- For centuries, governments have sought, by various means, to end the threat of piracy. Some responded with force, hunting down pirate dens and, with cannon and sword, eliminating them. Others flexed their financial muscle to buy immunity from these sea-faring raiders while their rivals continued to lose profit. And some turned these outlaws into servants of king and country, setting them loose on the shipping of their hapless enemies. Still, the relationship between state and pirate has never been a particularly warm one, especially as international trade has begun to move from the seven seas to the information superhighway.
Another chapter in the struggle to immunize trade from what is perceived as piracy was added Tuesday night when Senator Orrin Hatch stood and delivered the Inducing Infringement of Copyrights Act of 2004 to the Senate. Co-sponsored by Senator Leahy, Senator Frist, Senator Daschle, Senator Graham of South Carolina and Senator Boxer, the bill is an amendment to the Copyright Act that would make inducement of copyright infringement just as legally liable as breaking the copyright itself.
In a floor statement that heavily referenced "Oliver Twist" and "Chitty Chitty Bang Bang," Hatch claimed that this bill would protect children who are unwittingly duped into doing the dirty work of file sharing corporations. He compared peer-to-peer file sharing services to the Dickens characters of Bill Sikes and Fagin, who taught children how to pick pockets in Victorian England.
And in the case of "Chitty Bang Bang" it was the "childcatcher" who lured innocents with lollypops.
"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 false promises of 'free music,'" said Hatch.
If the Hatch copyright bill is passed, anyone actively and intentionally aiding, abetting, inducing, or procuring means to circumvent copyright would be held liable under both civil and criminal penalties. The bill defines intent as what a "reasonable person" would be able to see given the facts available. What exactly counts as a reasonable person usually is determined on a case-by-case basis.
The Inducing Infringement of Copyrights Act of 2004 is but one bill in a veritable armada of information technology litigation aimed at destroying piracy. Other bills include the Digital Millennium Copyright Act (now a law), which Hatch also masterminded.
Content industry groups applauded the Induce Act, with the music, movie and video game industry being perceived as taking the brunt of digital piracy. Groups such as the Recording Industry of America and the Motion Picture Association of America expressed that they felt the bill struck the balance between protecting intellectual property and protecting civil rights.
"As this legislation makes clear, the debate isn't digital versus plastic. It isn't old versus new. Here's what it is: Legitimate versus illegitimate," said Mitch Bainwol, chairman and CEO of the RIAA in a statement.
"We believe Senators Hatch and Leahy have struck a reasonable balance between anti-piracy and technological innovation, and we look forward to working with them as the Senate proceeds with action on this important bill," said Business Software Alliance President and CEO Robert Holleyman in a statement.
Still, some are concerned that in this attempt to end piracy on the Internet, personal freedoms might be inadvertently sunk.
"We'll lose out in choice in the sense that copyright holders will hold all the keys to your computer and you will only get to use things that they approve. So if the record companies say okay, this particular type of MP3 player is one that we'll allow, that's the only one consumers will get to have. And the other companies will be too afraid to offer you one because they could potentially get sued," said Jason Schultz, staff attorney with the Electronic Frontier Foundation.
Schultz explained how one device, the Apple iPod, could fall under this act "(Intent) can be inferred from money that you make off of the product and I think that anyone could easily argue that Apple knows full well that people sometimes use iPods for storing and playing unauthorized music and that they clearly make a significant amount of money off of such use."
"It is a tech mandate. It is Congress telling inventors and innovators what kind of technology they can build. It would be like telling a car manufacture that they cannot build a car that goes over 55 mph," said Gigi B. Sohn, president of Public Knowledge.
Sohn expressed concerns that this bill would undercut the historic 1984 Sony-Betamax decision, where it was decided that video recording devices, because they had substantial non-infringing uses, were legal.
"They can say all they want that this doesn't undercut fair use or Sony but they are creating a brand new way for people to sue copyright infringers, but now copyright infringers are anyone who induced infringement regardless of other uses of technology."
Another concern regarding this act is that it might be overly broad. By concentrating on potential rather than actual malfeasance, some consumer advocates are afraid innocent people will be caught in the tide.
"One of the problems with laws which have such broad sweep, when you have a law that says if X intends to do Y and Y is illegal, people know what they are allowed to do and can't do. It's clear. If we say 'induce,' that it might happen, that it might have an impact on someone else, it's unbelievable on how many people it might reach if anyone thinks about it," said Edward J. Black, president and CEO of the Computer and Communications Industry Association.
"They want to go spear fishing, we'll go spear fishing. They're going to catch half the ocean and let some of them go back," Black added.
As for whether or not this would be an effective bill at stopping piracy on the Internet, opinions were highly polarized.
"The Act will further protect this vital economic contributor by clarifying for the courts that those who actively encourage others to break the laws designed to protect copyrights should not escape liability for their actions," said president and CEO of the Motion Picture Association of America Jack Valenti in a statement.
"Real commercial pirates are not discouraged by laws in this area. It's really a flailing away at a problem ... True lawbreakers aren't going to be significantly impacted," said Black.
