PIRATE Act + INDUCE Act = ???

On Friday, C|Net News reported that the Senate had passed the PIRATE Act (S.2237 Status) "overwhelmingly" (Senate OKs antipiracy plan). The Act would permit government to bring civil enforcement lawsuits against willful infringers. As Frank Field said on Furdlog, "So much for all the whistling past the graveyard, claiming that Congress had too much real work (like passing a budget) to mess with the copyright fights" (PIRATE Act Passes Senate). Indeed. Previous coverage here: PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry and PIRATE Act - Wiretaps for Civil Copyright Infringement?.

Of course, attention-wise, the PIRATE Act has taken a backseat to the INDUCE Act this past week. The INDUCE Act claims that "Whoever intentionally induces any" copyright infringement "shall be liable as an infringer." How does this interact with the PIRATE Act? Could the government start suing P2P companies and putting them out of business? Possibly. I'd like to say, unlikely, but I'm not sure.

Under the PIRATE Act, for the government to go after someone, they have to meet the requirements of 17 USC 506:

(a) Criminal Infringement. - Any person who infringes a copyright willfully either -

(1) for purposes of commercial advantage or private financial gain, or
(2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000,

shall be punished as provided under section 2319 of title 18, United States Code. For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement.

Proving "for purposes of commercial advantage or private financial gain" would definitely be pretty easy in the case of most commercial entities sued under the INDUCE Act. The question is whether being "liable as an infringer" is the same thing as one who "infringes a copyright willfully." Although a plain reading of the statute would seem to indicate it isn't, I believe there are some plausible arguments that it is. If someone who "infringes a copyright" is the same as someone "liable for infringement," then the government would be able to bring civil law enforcement suits under the INDUCE Act. Certainly an agressive DOJ might try to push this issue. And how many juries would fail to convict with the government telling people what rotten dirty inducers the defendants are?

Hmmm...