Invitation to litigation?
by Richard Lessner

If Hollywood's pampered millionaires, their trial attorney cronies and some pandering politicians have their way, innocent third parties could be held legally liable for the criminal acts of others. Such is the intention of legislation pending in the U.S. Senate, S. 2560 the "Inducing Infringement of Copyrights Act of 2004."

This misguided legislation would hold manufacturers of computers, software, TiVO, MP3 players and other technologies criminally liable if their legal products were misused to reproduce copyrighted material. Under the legislation, the mere production of such technologies would be regarded as an "inducement" to copyright infringement.

We have been down this path before. Every new technology that can be misused to violate copyrights has been targeted for such legislation. The publishing industry hysterically predicted the advent of copy machines would destroy book sales. And Hollywood studios tried to block the marketing of the original Sony Betamax videotape recorder for fear it could be used illegally to reproduce movies.

Such efforts to limit technologies and restrict consumer choice in the free marketplace have been turned aside by the courts. It is a basic foundation of American jurisprudence, recognized in the Supreme Court's landmark 1984 Sony Betamax decision, that those who actually violate copyrights should be held criminally responsible, not those who manufactured computers, VCRs, copy machines or computer software used to infringe.

How far do we push this idea? S. 2560 is tantamount to holding gun-makers liable for the acts of armed criminals, or automakers responsible for drunk drivers. Does Detroit "induce" people to drink and drive by the mere act of manufacturing and marketing automobiles? Does Smith & Wesson "induce" the armed robber to stick up the corner liquor store by making firearms for hunters, the police and self-protection? How about Ping putters? Did Ping induce the irate husband to bash his wife over the head with his prize putter? After all, in a pinch a putter can make a pretty effective weapon.

While protection of intellectual property rights is an important issue, and infringement of copyrights is a serious problem, S. 2560 is an overly broad remedy. It would penalize technology producers for "inducing" others to act criminally. The bill's standard of inducement, however, is so subjective it would chill technological innovation, severely restrict consumer choice in the marketplace, and create a whole new class of lawsuits for predatory trial attorneys.

In the bill's language, "whoever intentionally induces any [copyright violation] shall be liable as an infringer." Judging intentions, of course, is notoriously difficult. And S. 2560's language directly conflicts with the Supreme Court's Betamax decision, which held makers of technologies capable of non-infringement uses cannot be held liable for their misuse by third parties. The court specifically cited copy machines, which can be used to infringe copyrights but which also "are widely used for legitimate unobjectionable uses." So long as a technology is capable of "substantial" noninfringement uses, the makers cannot be held responsible for criminal misuse.

Likewise, automobiles, firearms and putters admit of many legitimate, legal and perfectly innocent uses. This principle should immunize car, gun and golf club makers against criminal liability when their products are used for illegal purposes.

Unfortunately, this misguided legislation's chief sponsor is Utah's Sen. Orrin Hatch, a Republican who should know better and who once aspired to serve on the Supreme Court. Sen. Hatch, sometime songwriter, is close to the music industry and is happy to carry the water for this trial attorney boondoggle.

In fact, if this bill became law it would allow the entertainment industry to sue anyone and everyone who "induces" someone else to violate copyrights, thereby creating a whole new fertile field of litigation for eager attorneys to plow.

An important principle is at stake. If this bill became law, it would set a precedent for holding innocent Americans liable for indirectly "inducing" criminal acts by others. The implications are staggering. The Republican Congress should reject this constitutionally flawed legislation and decline to hand trial attorneys a whole new class of legal industries to pillage.

Richard Lessner is executive director of the American Conservative Union.

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