There are reasonable people walking on this earth who will say that the IICA is not a big deal.  Rather than jump down their throats, I'm going to suggest that we slow things down, have some hearings, and try to get to the bottom of what's going on.  Three kinds of arguments, all of which interrelate, are being thrown back and forth:

1.  The bill will cripple the development of new technology.  Counterargument:  The RIAA says that the legislation "was meant to be narrowly tailored to address companies that build technology focused on illegal file sharing." And Sen. Hatch says the bill "protects existing legitimate technologies and future innovation in all technologies – including peer-to-peer networking," and maintains that "all agree that non-piracy-adapted implementations of P2P could have legitimate and beneficial uses."

Let's assume, for the sake of this argument, that both sides have good points.  But there is a great deal of fear on the IT sector side, and there's no limiting language in the bill that focuses on "illegal file sharing."  It's all about copyright infringement, which can be said to occur all the time in all kinds of digital and analogue devices. 

Because it's hard to go after direct infringers, it makes chokepoint sense for the content industry to go after machine and software maufacturers.  (Note:  under the bill, Xerox copying machines look like much more attractive targets.  Those guys know they're making money from illegal copying.  They constantly advertise their copying services.)  The content industry has of course already done this, and they're disappointed with the district court decisions in Grokster and Napster.  But they did very well at the appellate level in Napster and Aimster, and they drove ReplayTV out of business.  Surely secondary liability is alive and well. 

Given the apparently well-founded fears of the IT industry, and the existing, ample, judge-made doctrine on secondary liability, why create a brand-new, seemingly unlimited cause of action that any copyright owner can bring against any thing or person or business he doesn't like?  It's worth having a hearing or two on this subject, at the very least.

2.  The bill will broaden secondary liability for copyright infringement in ways we cannot predict.  Counterargument:  This is a merely incremental statute, and nothing new.  "In the Criminal Code, Congress made it a federal crime to willfully infringe copyrights or to distribute obscene pornography or child pornography. Congress also made it a crime to induce anyone – child or adult – to commit any federal crime."  And, "The Inducement Act will simply import and adapt the Patent Act’s concept of “active inducement” in order to cover cases of intentional inducement that were explicitly not at issue in Sony."

Again, there are certainly good sources for "inducement" in both the criminal law and patent law.  But both are arguably inapposite sources:  criminal law has a higher standard of proof and requires the exercise of a prosecutor's judgment about what's worth suing on; patent law requires specific intent to induce infringement of a specific patent -- and it may be that "inducing" can't be found where the article is capable of substantial noninfringing uses.  So where are we?  We're puzzled and confused.  Again, it's worth having hearings.

The bill will render Sony irrelevant.  Counterarguments:  The bill says that "Nothing in this subsection shall enlarge or diminish the doctrines of vicarious and contributory liability for copyright infringement or require any court to unjustly withhold or impose any secondary liability for copyright."  This "savings" clause is said to save Sony, and MPAA says that "Enabling technologies have nothing to worry about as long as they are not inducing other people to violate the copyright law."

The people on the other side of this argument can point to the emptiness of DMCA's statement that fair use wasn't affected by that statute.  Yes, the doctrine of fair use isn't affected by the DMCA, but the anti-circumvention rules make fair use impossible.  It's a difficult problem:  "Fair use" is itself a court-created, after-the-fact balancing of many relevant factors.The fair use balancing does not occur until someone has brought a case charging infringement, infringement has been found, and the infringer has raised the affirmative defense of fair use.  In the anti-circumvention arena, all of this back-and-forth is inpossible. 

Similarly, so the argument goes, the IICA's creation of a new kind of secondary liability, triggered by "acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor, including whether the activity relies on infringement for its commercial viability," would leave judge-made theories of contributory liability in place -- but no one would ever use them again. 

Plaintiffs would have this brand new, clean-as-a-whistle cause of action to use, untainted by all that Sony history.  They could show that infringement is important to the commercial viability of a particular machine (like the copy machine), and then, poof, there would be enough "intent" to satisfy the statute.

So where are we?  We're worried enough to hold a hearing.  We don't need to scream or claim that the other side is witless or evil.  We just need to think this through.