Continuing my series on how various aspects of the copyright law may interact with the INDUCE Act (née IICA), today let us discuss the anti-circumvention provisions of the Digital Millennium Copyright Act ("DMCA"), codified at 17 USC 1201. For those of you who have been travelling with the Mars Rover for the past few years, the relevant portions of the DMCA make it illegal to distribute devices that circumvent access controls and copy controls, basically, DRM cracks. The DMCA is a bad law, but I'm not going to go into details here.
Now the thing with many anti-circumvention devices is that they are "capable of substantial noninfringing uses" and thus avoid secondary copyright liability under the Sony (Betamax) doctrine. Backups, fair use, playback on alternative devices; all are common examples of noninfringing uses that circumvention devices enable. DMCA plaintiffs could fight this in court, but it would be tough and probably not worth it. So, while a company may get busted for violating § 1201, which is bad enough, they will generally have a pretty good defense against claims of secondary copyright liability.
But how hard would it be to prove secondary liability under the INDUCE Act? Once you've shown that a company has violated the DMCA, it isn't much farther to push a jury to find that they "induced" copyright infringement as well, thus bringing all the secondary liability down like a ton of bricks without all the hassle associated with proving contributory or vicarious liability. Indeed, merely advertising a circumvention device or providing instructions on how to use it will probably be enough to trigger inducement liability.
Now, think about how the DMCA has been abused to do things like control markets in ink cartridges. Now, imagine that plaintiffs get to slap a secondary copyright liability suit on top of that. Bonus!
The INDUCE Act will make the unbalanced anti-circumvention provisions of the DMCA even more unbalanced.