Citing "too much opposition," the Senate failed to move forward a bill that would allow lawsuits against peer-to-peer online file swapping networks on grounds they "induce" others to reproduce copyrighted material like music and films unlawfully.
Senate Judiciary Committee leader Orrin Hatch (R-Utah), considered just about the main mover behind the so-called Induce Act, told reporters September 30 that negotiators would meet to begin crafting a bill that would please the entertainment and technology industries alike, as opposed to them grappling against each other since the bill was presented in June.
"If I have to," Hatch was quoted as saying during a Judiciary Committee meeting, "I will lock all of the key parties in a room until they come out with an acceptable bill that stops the bad actors and preserves technological innovation." The bill had been expected to hit the Senate floor this week.
"Hatch needs to wake up and realize that he and the [Recording Industry Association of America] are in the opposition," said Electronic Frontier Foundation staff attorney Jason Schultz to AVNOnline.com, who said a joint letter signed by forty different companies and organizations opposes the Induce Act as a bad bill threatening technology more than copyright infringers.
"Hatch has said he's looking for a consensus, but I think a consensus has been reached, and he's not part of it," Schultz said. "And I think he needs to wake up and realize that, sure, they may be threats to copyright holders but there may be an even bigger threat to technology companies who are a much larger part of our economy. He's kind of creating a false conflict between parties."
Schultz said that any legislative path to take regarding peer-to-peer has to begin with first principles including the one saying peer-to-peer is here to stay.
"And if you outlaw it in the U.S. it'll just go offshore, like anything you outlaw in the United States," he continued. "In the meantime you just hurt legitimate U.S. companies by passing this type of law."
Schultz and the EFF hope the so-called Betamax Doctrine – letting companies beat back litigation if they can show good uses to their products in spite of the products' potential for bad uses like infringement, the principle which allowed the videocassette recorder to remain in production – is remembered and allowed to survive by lawmakers.
That doctrine was cited in both a lower court ruling and an appellate ruling upholding it that found P2P networks Grokster and Morpheus not responsible for infringing activities committed by their users, since the networks themselves don't provide the materials in question.
"And all the tech companies are asking for in the end is that that rule be preserved here," Schultz said. "That no matter what you do that might facilitate infringement, if you're offering the simple offering of a product that has good and bad uses, the good uses should protect you. You should still have that [Betamax] escape valve."
Several high-visibility tech companies, such as digital media player makers Apple, have opposed the Induce Act because it could make them targets as well as P2P networks.
