In December, I noted artist Tom Forsythe's legal victory, when the 9th Circuit held that "Food Chain Barbie" was fair use. Now, the district court has fortified that ruling with a substantial award of attorneys' fees, $1.8 million, the New York Times reports.

"Plaintiff had access to sophisticated counsel who could have determined that such a suit was objectively unreasonable and frivolous," Judge Lew wrote in his order. "Instead it appears plaintiff forced defendant into costly litigation to discourage him from using Barbie's image in his artwork. This is just the sort of situation in which this court should award attorneys fees to deter this type of litigation which contravenes the intent of the Copyright Act.''

As Berkman colleague Jonathan Zittrain notes in the Times, this ruling helps avert the chilling effect of legal threats, if it causes executives and their counsel to think twice before sending groundless and unreasonable complaints.

Just have to make sure that's clear, now that Orrin Hatch has introduced the threatened INDUCE Act (PDF) (already renamed IICA). The bill would create a new class of indirect liability for anyone who "intentionally aids, abets, induces, or procures" copyright infringement. With that broad definition, no developer, vendor, or funder of emerging technologies is safe.

Save the iPod might sound extreme, but EFF was able to draft a colorable complaint against Apple -- one that would cost a lot in legal fees to defeat even if Apple might win in the end. This isn't about P2P, it's about letting Hollywood drop a lead weight on the copyright balance between author and public. It's saying no one may develop disruptive technologies without permission. It's saying the public rights are frozen in 2004, because no one will risk developing the tools the public needs to keep pace with publishing technology.

Please help us stop INDUCE in its tracks.