Counseling Copyright Infringers May Be A Crime

Pete writes "The good folks over at Techdirt have this article about how some of our elected representatives would all but do away with the concept of fair use of digital media. "While it's not yet confirmed, the EFF is reporting that [Sen. Orrin] Hatch is set to introduce a new bill that would make it a crime to "induce" copyright infringement.""


I can't encourage people to shoot their neighbor, why should I be able to encourage people to break other laws. In my country we call that conspiracy.

Now I agree that Hatch is a bit of a nutjob sometimes. However this proposal seem reasonable after cursory review.

The article distorts the truth: " Does this mean those who infringe on copyrights, even for fair use reasons, no longer have a right to legal representation?"
Fair use is not infringing on copyright. Fair use, is a permitted -not illegal- use; perhaps that is why it is called fair use. And legal representation implies an ex post facto consultation, after the offense has been committed. Just as an axe murderer is entitled to counsel, so would a copyright infringer. In neither instance can the attorney counsel someone to commit an illegal act, but they can represent them once the act has been committed.

You're right about fair use - I'm surprised techdirt made the error, they normally seem to have a sharp grasp of such issues.However, there also seem to be First Amendment arguments against this Act:"I see this proposed statute as clearly posing serious First Amendment problems.Under Brandenburg v. Ohio, crime advocating speech may be punished only if such speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." [emphasis added] There is nothing in this statute that distinguishes mere advocacy from incitement."From tmlAnother thought about your comments on counselling - wouldn't this act *also* prevent someone from consulting a lawyer in advance? e.g. "I don't know if my intended actions break the law or not, so I'll consult a lawyer"?See: 6/16/89416.html"So you can't even hire a lawyer if you're doing something risky."Finally, did anyone catch the name of this act?the "Inducement Devolves into Unlawful Child Exploitation Act." Excuse me?

I don't practice law in the US so I really don't keep up with the inciting v. encouraging v. advising but one certainly can't tell someone to do something that he or she knows is illegal. If not from a legal perspective this is true from a puerly moral perspective.

Now asking a lawyer a hypothetical is certainly not prohibited in fact hypothetical questioning is a very well researched and reported method of examination. (Not well researched or reported by me, nevertheless). So asking a lawyer if it is illegal to go through a stop sign when no one else is there does not imply that you are planning on running through stop signs, but simply that you want a clarification of the law.

The first Amendment is a wonderful freedom we enjoy but as with all freedoms it must be used wisely so that no one feels a need to contrain its use. Taking peoples' works without paying is stealing no matter what Amendment you want to hide behind. If it is not fair use, pay the buck or two to the CCC before you copy that journal article for your sister.

The first Amendment allows, among other things to be free from an abridgment of our freedom to speak or our freedom to publish, it does not give us the right to steal protected works, or to encourage others to do so. Stealing the works is obviously wrong, encouraging others to do so may not be as cleary wrong from a legal view, but it is morally repugnant. Just because something is not illegal does not make it right.

Fundamentally, this law, if enacted, will put libraries out of business. Libraries, to operate, need liability insurance. If this law is enacted there's no way that insurers will able to offer liability insurance to libraries or, better put, libraries won't be able to afford the insurance. It also appears, from what this says, that individual librarians can also be held liable -- which is probably exactly what will happen the first time a library system is sued under this. The librarian will be hung out to dry by their employers.Under this law it's a perfectly reasonable position to take that providing public access to the Internet constitutes aiding and abeting. Therefore, libraries will be liable. The bigger problem is that this also applies to schools and universities.The reality is that you cannot have an Internet, like we have today, when the providers of the service are legally liable for the activities of those using the system.

I haven't been back to LISNews in several weeks. Now I remember why.

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