Inducement

In looking at the issue of whether to punish the inducer or the direct infringer, my first thought is that there is a very similar market where there is an unmanageably large class of violators, developers who market devices with non-infringing and attractive, marketed infringing uses, but where the direct infringers are the only one’s punished. My analogy is to vehicle manufactures, particularly of sport cars. Nearly every automobile manufactured has the mechanical capacity to exceed maximum speed limits in any jurisdiction. Manufacturers include the top speeds in their marketing materials, but despite this, only the individual speeder is prosecuted for the offense. In the US, traditionally, when a product has legitimate legal uses, but users choose to use the thing to break the law, the liability should stay with the bad actor. No gun maker, nor car manufacturer, nor internet site should be responsible for the individual’s bad choices. Further, there is already law in place for criminal inducement without a court created amendment to the Copyright Act.

A common strawman argument against individual prosecution is that the numbers of infringers make it an impracticality. Back to my analogy, the number of speeders must be at least as substantial as copyright infringers, but despite this, deterrence is maintained by the selective enforcement of only a small fraction of direct violators. The change made to abandon individual infringers in favor of the court created cause of action ‘inducement’ was wise in the court of public opinion because of the astronomical value attached to the infringed media and the pity factor of the college kid defendants. However, if and when Big Media discovers a remedy to again punish individuals, any direct liability is far from absolved by the concurrent prosecution of the inducers of the world.

The problem is that permitting (or burdening) industries with the enforcement of what is becoming more like a regulatory issue is leading to strange, confusing, and possibly, bad law where liability and enforcement are not matching up.