The addition of “active inducement” to the Copyright Act would compliment the doctrine of contributory liability by punishing those who actively encourage copyright infringement. Actively inducing infringement can include advertising an infringing use or other affirmative acts. Therefore, active inducement provides a technology-neutral standard that would not look to punish bad technology but rather bad actions by the technology distributor. In contrast, the reasonable person standard of the Inducing Infringement of Copyright Act of 2004 (“Induce Act”) permits an inappropriate extension of the exclusive rights given to copyright holders by lowering the threshold for litigation. Consequently, the Induce Act improperly places policy questions on the merits of technology in the hands of the judiciary which becomes antithetical to intellectual property laws by chilling innovation.
Michael Raucci, Congress Wants to Give the RIAA Control of Your iPod: How the Induce Act Chills Innovation and Abrogates Sony, 4 J. Marshall Rev. Intell. Prop. L. 534 (2005)