According to Wired, technology and consumer groups were unable to find common ground with the RIAA over the Induce Act. What they were trying to do was find a way that they could target the makers of software like Kazaa, without creating wider liabilities. The fundamental problem here is that it is virtually impossible to come up with an objective test for whether or not a company is a so-called “bad actor”. In the absence of such a test, it is inevitable that the test would be carried out in the courts. Even the possibility of being dragged into court, regardless of likely outcome, will be sufficient to have a dramatic chilling effect on innovation.
This is the fundamental problem with the Induce Act, and no amount of clever legal wording can get around it. At the end of the day, therefore, legislators are left with a simple decision, the status quo, where tools are safe provided they have “substantial non-infringing use”, or replacing this with a vague subjective test that will give, not just the RIAA, but all copyright holders (myself included!), an effective veto over any new technology.
But why is this happening, what is the underlying reason? It isn’t just about the luddite music industry refusing to adapt, although this is accelerating the process, the reality is that they really should be scared. I have been saying for years that then entire concept of copyright is in trouble. My soundbite a few years ago about people in 50 years looking back on copyright as we view witch burning may not seem quite as hyperbolic today as it did then. The inevitable fact is that it will get more and more difficult to enforce as communication technology improves, until either technology stops in its tracks (the Induce Act strategy), or it becomes entirely impossible.
The house of cards won’t collapse overnight, but I believe that the Induce Act is one of the first serious death throes of the music industry as we know it.