The Induce Act: is it apocalypse now?

I wasn’t at Thursday’s (22nd of July 2004) hearing of the Induce Act that changed so many minds. O­ne peculiar statement did catch my attention: “No threat to iPod from blanket P2P ban, says US”. Vermont’s top Democrat o­n the panel, Patrick Leahy, echoed Hatch’s comments. While everybody was hauling tar and feathers for Orrin Hatch I started reading S. 2560 (Induce Act) again. Will the Induce Act really kill P2P?


What’s all the fuss about the Induce Act?
What a lot us don’t know is that inducing infringement is nothing new to IP law. It has been slumbering in Patent statues for a while now (17 U.S.C. 271(b)). The question is; Did it kill patent innovations and drive investors overseas? At the rate I see new patents being filed in the US I would like to suggest it did not. However, patent holders acted mostly individually against infringements and had singular targets. And doing so without the help of bundle interest groups.  In the hands of RIAA and MPAA the Induce Act could spell trouble for a whole range of people.    
 
So, could it spell the end of P2P?
I have my doubts. According the Induce Act o­ne has to determine “intent”. As easy as it sounds, it hasn’t been that successfully proven to do so in patent law. The whole basis of P2P is sharing files no matter what the content. It is based o­n nothing more than breaking down files into data, transferring them, and repackaging them into files at destination. If I’m not mistaken, that’s how the internet works. The difference is that P2P tries to decentralize the transfer as much as possible for it to get faster to more users . Therefore, thinking up such a system of file transferring will not irrevocably determine “intent to infringe”. If the Induce Act where to be applicable in the Grokster case I still think the end result would be the same.

Who are they going after with the Induce Act?
They will try to go after the people who conceive, invest, develop and use P2P. In my opinion the industry will start with the investors who abuse P2P into forcing industry to join in. I belief the industry should leave the conceivers, developers and users alone. Bottom-line: The iPod might be safe but Apple is not.

FK2W is independent legal consultancy and defends several P2P website in Holland against interest groups sponsored by parties such as RIAA and MPAA. It frequently publishes articles concerning legal subjects and the Internet.