The Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) continues to endanger technology and innovation, as the response to the Copyright Office's "discussion draft" revision of the bill is received poorly by both sides of the debate. Sometimes, when you upset both sides, you've got a good compromise. That is most definitely not the case here.

Citizens, you know, the people who supposedly are sovereign and all, weren't invited to provide any feedback to the Copyright Office. In fact, there was only a 24-hour window for comments ... it is almost as if they really didn't want any real discussion or something. In any case, the lack of openness of the process didn't stop at least one private citizen from providing unsolicited (but extremely worthwhile) advice. Joshua Wattles is past president of the Los Angeles Copyright Society; the former acting general counsel of Paramount Pictures Corporation and it’s then lead intellectual property counsel; former counsel to certain peer-to-peer services and developers appearing as amici in the MGM v. Grokster litigation; a former in-house lawyer for ASCAP; and a co-founder of Bay Area Lawyers For The Arts, the precursor organization to Volunteer Lawyer For The Arts. So, basically, he knows what he is talking about - and he is quite critical, to put it mildly, of this version of the INDUCE Act.

Be sure to read Wattles' 8-page annotation of the "discussion draft": Comments of Joshua S. Wattles as a Private Citizen and Member of the Copyright Bar [PDF]. Just a small taste:

At some point if enough cuts are made around a doctrine, it falls just as dramatically as if it had been stabbed in its core. The draft preserves the Sony-Betamax doctrines in only the most technical sense of failing to state that they are overturned. Congress is free to directly eliminate the Sony-Betamax doctrines from the law but the impression was made by the Senate Committee that it would not do so.

C|Net News has its own report on the "discussion draft" from the Copyright Office (Copyright Office pitches anti-P2P bill). Read my story here: Copyright Office Produces 'Discussion Draft' Alternative to INDUCE Act (IICA).

Prof. Susan Crawford's original response to the INDUCE Act was quite moderate, simply calling for hearings on a flawed bill (Crawford on the INDUCE Act: Not With a Sledgehammer, But a StilettoTaking On Technology):

I'm sure there will be many meetings about this draft, and I'm confident that reason will prevail. I'm sure this redraft isn't the last word. So I'm not jumping up and down. I'm just amazed at this sequence of events.

Me, I'm very concerned. Sen. Orrin Hatch (R-UT) has promised to pass something, flawed or not. In any case, read the whole thing.

Public Knowledge has also written a response (Sept. 3 Letter to Copyright Office Regarding S2560). The letter asks some highly pertinent questions about the langugage of the draft:

By contrast, the Copyright Office discussion draft appears to us to be much less narrowly crafted. In its scope it appears to sweep up virtually all communications technology-- from e-mail to web browsers to Internet routers -- then appears to attempt to exclude from liability some types of “good” technology. This approach strikes us as a backwards one that leads to overbreadth of potential liability even as it departs from the useful notion of focusing on potential defendants’ intentions.

Given how little of the discussion draft actually addresses the precise question of infringement-inducing peer-to-peer companies, we are left with a looming question: What is the real focus of the language of the discussion draft? Chairman Hatch and Senator Leahy were clear which bad actors they intended this bill to target. Is there some other class of actor or behavior that the discussion draft wishes to target other than the ones specifically mentioned in the senators’ statements?

Of course, the letter also pushes the alternative Public Knowledge has signed on to. More on that alternative here: 'Don't Induce Act' - an Alternative to the INDUCE Act (IICA) and Other News.

Techdirt doesn't mince any words (Latest Induce Act Gets See Through Whitewash).

In a more positive take, on Copyfutures, Matthew Caron thinks overbreadth might not be so bad (One Step Closer):

No matter how well drafted the legislation is, it will always require interpretation by the courts. And while much of the criticism is not without merit, a perfect draft that satisfies everyone will never be written. These are extremely complicated matters that the law seeks to correct. Perhaps somewhat broad legislation interpreted with case by case analysis is the way to go. But whatever the correct answer, at least the 09/02/04 draft is a step in the right direction.

On the other hand, another poster to Copyfutures (and Utah native) is more critical (Induce Act "discussion draft" still overly broad).

There has been even more commentary on the INDUCE Act on Copyfutures. Tommy O'Reardon argues that the best way to fight INDUCE is for people to stop committing copyright infringement over filesharing networks (The Irony of the Outcry against INDUCE). He makes some good points, but I don't think INDUCE is simply about stopping piracy. I believe it is about giving copyright holders control over distribution technologies in general.

Michael Loughran asks, What did Sony Induce? He is asking how the copyright industries feel about the Sony-Betamax devision, given that it has brought them tremendous profits. My quick answer? They still hate it.

Dan Gillmor has a wrap-up of several legislative issues, including the INDUCE Act, that we should all care about on the Mercury News (very annoying reg. req.) (Bad legislation threatening privacy, innovation, accounting).

CNN has a fairly lengthy article on INDUCE (iPod in the middle on Capitol Hill).

Finally, on Copyfight, Jason Schultz notes Hollywood spokespersons being somewhat honest about the fact that they expect the INDUCE Act to behave as mandating DRM (RIAA Lobbyist: DRM 'up or INDUCE is gonna getcha). Gee, and I thought that INDUCE was supposed to only target bad actors? Of course, if you define bad actors as those who don't use DRM, that definition still holds.

Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.