Less Activism, More Economic and Legal Analysis
WASHINGTON D.C. - The introduction of the so-called Induce Act was the biggest surprise of the year in intellectual property, argues Progress & Freedom Foundation Senior Adjunct Fellow Solveig Singleton, but not for the reasons many would suppose. In an article in the latest Legal Times, she writes that the debate revealed a surprising lack of economic and legal scholarship in the area, as well as "legal academics' failure to recognize that protecting content online is hard."
"No one wants to ban P2P technology," Singleton writes. The Induce Act -- introduced by the top two senators on the Senate Judiciary Committee, Republican Senator Orrin Hatch of Utah and Democratic Senator Patrick Leahy of Vermont -- addressed the problem of peer-to-peer [P2P] downloading of copyrighted material online. It contemplated liability for inducing someone to infringe copyright.
"Many techies greeted the bill with alarm. Others watched in silence, notable in itself," Singleton says. "Ultimately, the Induce Act was just a weather balloon -- revealing of the IP climate, but not the alien spaceship that blog readers might think."
"Markets normally adapt fine to new technology," says Singleton. "But it's not clear how they can adjust when the devices -- statutory, contractual, or technological -- that they traditionally rely on to redraw boundaries don't work. It is one thing to call for new business models, another thing to actually create one."
The Induce debate also revealed the desperate need for better scholarship and less activism, Singleton argues. "For example, except for one computer science professor, few commentators discussed inducement liability in patent law and the implications for copyright. It turns out that there is a rich legal history here to explore."
As the 108th Congress came to a close, the language of the Induce Act remained too broad, says Singleton. However, "its method was not alien to the law." The liability debate inherent in the Induce Act debate is now before the U.S. Supreme Court, which has agreed to review the Ninth Circuit Court's ruling in the Grokster case. The Progress & Freedom Foundation's Center for the Study of Digital Property held a Congressional Seminar on the subject earlier this month. The Center's director, James DeLong, has written on the complexities of the Induce Act debate on the Center's weblog at IPcentral.info. Some entries can be found here, here and here.
The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.