The proposal, called the Induce Act, says "whoever intentionally induces any violation" of copyright law would be legally liable. In the draft bill seen by CNET News.com, inducement is defined as "aids, abets, induces, counsels, or procures" and can be punished with civil fines and, in some circumstances, lengthy prison terms.
This measure represents the latest legislative attempt by influential copyright holders to address what they view as the growing threat of peer-to-peer networks rife with pirated music, movies and software. It was originally scheduled to be introduced Thursday by Sen. Orrin Hatch, R-Utah, but the Senate Judiciary Committee confirmed at the end of the day Thursday that the bill had been delayed. A representative of Senate Majority Leader Bill Frist, a probable co-sponsor of the legislation, said the Induce Act would be introduced "sometime next week."
Though the Induce Act is not yet public, critics are already savaging it as an unjustified expansion of copyright law that seeks to regulate new technologies out of existence.
"They're trying to make it legally risky to introduce technologies that could be used for copyright infringement," said Jessica Litman, a professor at Wayne State University who specializes in copyright law. "That's why it's worded so broadly."
Litman said that under the Induce Act, products like ReplayTV, peer-to-peer networks and even the humble VCR could be outlawed because they can potentially be used to infringe copyrights. Web sites such as Tucows that host peer-to-peer clients like the Morpheus software are also at risk for "inducing" infringement, Litman warned.
One prominent lawyer for the music industry, who spoke on condition of anonymity, said he had reviewed and approved of an earlier draft of the Induce Act. Jonathan Lamy, a spokesman for the Recording Industry Association of America, declined to comment until the measure was officially introduced.
"It's simple and it's deadly," said Phil Korwin, a lobbyist for Sharman Networks, which distributes the Kazaa peer-to-peer client. "If you make a product that has dual uses, infringing and not infringing, and you know there's infringement, you're liable."
Foes of the Induce Act said that it would effectively overturn the Supreme Court's 1984 decision in the Sony Corp. v. Universal City Studios case, often referred to as the "Betamax" lawsuit. In that 5-4 opinion, the majority said VCRs were legal to sell because they were "capable of substantial noninfringing uses." But the majority stressed that Congress always has the power to enact a law that would lead to a different outcome.
"At a minimum (the Induce Act) invites a re-examination of Betamax," said Jeff Joseph, vice president for communications at the Consumer Electronics Association.
All the tech would just move offshore.