The Copyright Office redraft [pdf] of S. 2560 got a lot of attention this week.  Essentially, the redraft suggests that if you do a single overt thing (raise an eyebrow? build a microchip?) that could (a) be "reasonably expected" to (i) cause an infringement or (ii) persuade someone to infringe, you're liable for direct infringement yourself. 

"Overt acts" aren't defined, but there are specific things listed that aren't overt acts -- like providing phone service to a "distributor of dissemination technology." Thanks.

The last time I wrote about the Induce Act, I suggested that we shouldn't jump up and down and attack it -- that Congress should hold a hearing and get people to explain why the bill would or wouldn't work.  That hearing happened in late July.  Most of the people testifying, save for the Copyright Office and the RIAA, said that the bill shouldn't go further.

Now the Copyright Office has circulated a redraft that, if anything, is likely to get people even more worried than they were about the original S.2560.  It doesn't seem like a move towards compromise.  If anything, it signals a hardening of position:  any technology that makes infringement possible (not just KaZaa or Grokster) can be reached under the draft, and the Sony/Betamax rule is dead. 

Sony is dead because the draft says that one possible "overt act" could be distributing a technology "that, when used as intended, automatically causes the user of the technology to infringe copyrighted works without the user making a specific, informed decision, for each copyrighted work at issue, about whether to engage in such infringement."  This boils down to:  if you build a technology that makes it possible to distribute works publicly (broadband access? mp3 players that connect to the internet? PCs?) you're liable.  Even if you don't meet current judicial standards for contributory or vicarious liability.

What's remarkable here is that the content industry feels that Grokster has given it an opening to broaden copyright liability beyond recognition.  Why haven't the comments of the many other businesses and advocates that opposed S.2560 been listened to?  Why are people stuck negotiating a special-purpose bill that doesn't seem to be special-purpose at all -- but, instead, seems to take on anything that might be used by an infringer?  Why is the Copyright Office (clearly not neutral on this subject) holding the pen?

I'm sure there will be many meetings about this draft, and I'm confident that reason will prevail.  I'm sure this redraft isn't the last word.  So I'm not jumping up and down.  I'm just amazed at this sequence of events.