In the lame duck session, Congress may take further action on S.3804 Combating Online Infringement and Counterfeits Act, a bill that would give the federal government broad powers over internet domain names and blocking internet traffic in order to prevent the infringement of copyrighted works.
While the US government is opposed to other countries regulating speech online, Congress is willing to consider a measure that would allow the US to do the same.
Juliana Gruenwald, Tech Daily Dose, Senate Judiciary Backs Online Piracy Bill: “The Senate Judiciary Committee approved legislation Thursday aimed at cracking down on online piracy and counterfeiting with a particular emphasis on rogue foreign websites.”
Peter Eckersley, Electronic Frontier Foundation: The Case Against COICA, “COICA gives the government dramatic new copyright enforcement powers, in particular the ability to make entire websites disappear from the Internet if infringement, or even links to infringement, are deemed to be ‘central’ to the purpose of the site. Rather than just targeting files that actually infringe copyright law, COICA’s ‘nuclear-option’ design has the government blacklisting entire sites out of the domain name system — a reckless scheme that will undermine global Internet infrastructure and censor legitimate online speech.”
Center for Democracy and Technology The Dangers Of S. 3804: Domain Name Seizures And Blocking Pose Threats To Free Expression, Global Internet Freedom, And The Internet’s Open Architecture “Copyright infringement is a serious problem, and CDT harbors no sympathy for websites whose primary purpose is to enable widespread violation of copyright and other intellectual property rights. But methods embraced by S. 3804, the “Combating Online Infringement and Counterfeits Act,” would mark a sea change in U.S. policy towards the Internet. In particular, U.S. government action to seize domain names and to direct Internet Service Providers (ISPs) to block government-blacklisted sites would set dangerous precedents with serious consequences for free expression, global Internet freedom, and the Internetʼs open and global architecture.”
Law Professors’ Letter in Opposition to S. 3804 “The Senate Judiciary Committee is poised to consider a bill that, if enacted, will have dangerous consequences for free expression online and the integrity of the Internet’s domain name system, and will undermine United States foreign policy and strong support of Internet freedom abroad.”
An Open Letter From Internet Engineers to the Senate Judiciary Committee: “We are writing to oppose the Committee’s proposed new Internet censorship and copyright bill. If enacted, this legislation will risk fragmenting the Internet’s global domain name system (DNS), create an environment of tremendous fear and uncertainty for technological innovation, and seriously harm the credibility of the United States in its role as a steward of key Internet infrastructure. In exchange for this, the bill will introduce censorship that will simultaneously be circumvented by deliberate infringers while hampering innocent parties’ ability to communicate.”

Tasty, Tasty Sausage

This story about the natural gas industry losing out to dirtier fossil fuels in the energy bill on NPR’s Morning Edition demonstrates the fundamental problem with Federal policymaking today, With Little Clout, Natural Gas Lobby Strikes Out: “[Former Senator Tim] Wirth told the industry leaders that on Waxman-Markey, they blew it. ‘Every industry was deeply engaged, except one: Yours,’ he said. ‘The natural gas industry, the industry with the most to gain and the most to offer, was not at the bargaining table.’ It’s an especially harsh verdict because the Waxman-Markey bill was drafted only after high-profile negotiations with proponents of coal, nuclear, oil, wind, solar and other energy sources.”
If natural gas is so important to national energy policy, why does the industry need to advocate for inclusion in that policy? If it’s so important, shouldn’t that be advocated by the Congressional staffs and civil service experts who are engaging in policy analysis to determine the best policy outcome for the public interest, rather than the policy outcomes best advocated by the various lobbies?

More Little Orphan Works

Here are some more links to pieces discussing the orphan works problem in general along with specific criticisms of the Orphan Works Act of 2008.
Gigi Sohn, Public Knowledge, The Orphan Works Act of 2008: Copyright Reform Takes Its First Steps: “Why do we have all of these orphan works in the first place? We have them because starting in 1978, copyrighted works no longer needed to be registered to get the full protection of copyright law. The consequence of this automatic copyright has been that it has become very difficult to find who owns the rights to a particular work. Even when works are registered, sometimes the owner is a company that goes out of business, or an individual who dies, or sometimes the registration is never updated. If you are a person or institution that wants to use a work under copyright but cannot find the owner, even after a thorough search, you are out of luck — current copyright law provides the same onerous damages whether you are a good faith actor or a pirate. And these damages can range anywhere from $750 to $150,000 per infringement. So nobody takes the risk that the copyright owner will show up and drag him to court. As a result, orphan works are relegated to the dustbin of our culture.”
Nancy Prager, Fundamentals of Copyright and the Problem with Lost Owners: unintended consequences: “Unfortunately, the proposed bill fails to offer the original creators of a work any protections related to: 1) the right to make decisions about whether their work can be used; 2) payment; and 3) attribution. In fact, the legislation — which doesn’t even mention creators — could override contract terms that have been spelled out between a creator and a record label.”
Carolyn Wright, Photo Attorney, They Still Don’t Get It: “While it is true that OW does not make registration with the private registries mandatory, registration will be required if photographers want the same protection for their works as they have now. Specifically, for those photographers who register their photos with the Copyright Office, they also would have to register with the private registeries to rebuff a potential OW defense and thus be eligible for statutory damages, the primary weapon that creatives have to fight infringements.”
Donn Zaretsky, The Art Law Blog, On Not Getting It: “There are reasonable grounds for opposing the legislation, and I’ve discussed some of them here before. But it seems pretty clear to me that the creation of a new private registry that would make it easier to find authors who want to be found is simply not one of them.”
Susan Scafidi, Counterfeit Chic, Orphan Works and the Adoption Process: “While many agree that the basic idea has merit, the reality is somewhat more complicated.  After almost two decades of telling creators that they don’t have to do anything to receive protection, is it fair to penalize them for not showing up in the Copyright Office’s searchable records?  What’s a ‘diligent effort’ to find a copyright holder?  What’s ‘reasonable compensation’ if the copyright holder turns up later?  And — perhaps most relevant to the apparel industry — what about the difference between the kinds of works on which it’s easy to display copyright notice (a book, for example) and the kinds of works that often don’t bear the author’s name (like a printed textile that’s been cut and sewn into a garment)?”
Dan Lewis suggests going even further and that online publishers should have bear the burden of taking an action to maintain copyright in abandoned works, Copyright and the Duty to Maintain “In the digital age, with content available over the Web, why put all the burden on the subsequent user of the content? Instead, let’s shift the burden on the rights-holder to, in the very least, maintain his content and/or contact information”
Here’s an Ask Metafilter post looking for assistance with a real-life example of an orphan work issue– a willing licensee unable to find the copyright owner in order to obtain a license, I can has copyright permission?: “I am now in the position where I would like to obtain permission to reuse an image, but am having a hell of a time tracking down the copyright owner.”
Previously: Working on Orphan Works

Trademark Dilution Act

The Trademark Dilution Act was signed into lawMoseley v. V. Secret Catalogue, Inc. that in order to prevail on a trademark dilution claim, the plaintiff must establish the existence of actual dilution, not simply the likelihood of dilution. But the bill reshapes trademark dilution law
Eric Goldman, Trademark Dilution Revision Act of 2006: “Ostensibly, this law was intended to overturn the Moseley case’s requirement that plaintiffs show ‘actual dilution’ instead of a ‘likelihood of dilution.’ However, the act morphed into an omnibus dilution revision effort that reshapes dilution law on a number of fronts. The result is a mixed bag–there is a little good news mixed in with the bad.”
Attorney(s) at Kaye Scholer: The Trademark Dilution Revision Act of 2006: A Major Overhaul of Federal Trademark Dilution Law: “On October 6, 2006, the President signed the Trademark Dilution Revision Act (“TDRA”), a significant revision of federal trademark law intended to clarify and amend the scope of protection afforded to “famous” marks under Section 43(c) of the Lanham Act, 15 U.S.C. §1125(c). While it addresses and resolves a number of issues that have arisen since the introduction of dilution protection to federal law in 1995, the TDRA, nonetheless, has the potential to create numerous other issues, thereby making it likely that dilution will remain a controversial and evolving aspect of trademark law for many years to come.”
William McGeveran, Info/Law, Trademark Dilution Revision Act Becomes Law: “The dilution concept has long been criticized for separating a trademark claim from its conceptual moorings: in theory, the principal interest protected by trademark law has been to prevent consumers from being confused. But that theory has been highly attenuated for a long time, so maybe it is better to admit that trademark law now protects big companies’ brand names for their own sake.”

Cable Bill Phone Spam

I just received an automated phone call on my home phone with a recorded message telling me that if I am concerned about the high price of cable television to press 1. Pressing 1 would tell Congress to act now on the vote this week to allow competition in the cable market. If I pressed 2, that would indicate that I do not care about cable prices.
I dialed 0, hoping to find out more information about who sponsored this call and to learn more about the issue. The recording thanked me for my vote and hung up.
Who is responsible? Most likely the phone company, seeking the ability to provide cable television (and exploiting an existing customer relationship.)
Aha. Here are a couple of articles from the National Journal’s Telecom Update. Heather Greenfield, As Telecom Bill Debate Heats Up, Firms Spending Big On Advertising: “Telecommunications companies are spending serious green on advertising in recent weeks to alert members of Congress and their staff to what they call a serious cause — a grassroots campaign for lower cable and broadband rates.”
Drew Clark, McCain ‘A La Carte’ Bill Remains A No-Show: “Sen. John McCain, R-Ariz., failed to introduce legislation that would allow the former regional Bell operating companies to provide cable television service nationally if they offered consumers the option to purchase channels individually — despite earlier indications that he would do so this week.”

IPTelligentsia Podcast: Satisfying the 21st Century Consumer (Part 2/2)

Last week, the House Committee on Energy and Commerce Subcommittee on Commerce, Trade, and Consumer Protection held hearings on Digital Content and Enabling Technology: Satisfying the 21st Century Consumer. This is the second half of the podcast about these hearings, focusing in on fair use, DRM/TPM and anti-circumvention.
IPTelligentsia Podcast: Satisfying the 21st Century Consumer (Part 2/2) (24:14, 22MB MP3).
Freedom to Tinker: Bernard Lang Reports on the Proposed French DRM Law
Open Media Commons
Eliot Van Buskirk, Wired News: Reasons to Love Open Source DRM
Timothy B. Lee, Cato Institute: Circumventing Competition: The Perverse Consequences of the Digital Millennium Copyright Act
David Pogue, NY Times: review of Slingbox
Consumer Electronics Assoc: CEA Praises Digital Technology Hearing; Urges Congress to Resist Content Industry Pleas for Technology Mandates; Increased U.S. Jobs and Employment Thanks to Tech Innovation
Broadcasting & Cable: Alternate TV Takes the Hill
Previously: IPTelligentsia Podcast: Satisfying the 21st Century Consumer (Part 1)

Fair Use in the Internet Age

The House Committee on Energy and Commerce Subcommittee on Commerce, Trade and Consumer Protection held hearings today on Fair Use: its Effects on Consumers and Industry.

  • Mr. Peter Jaszi
    Washington College of Law
    American University
  • Mr. Gary Shapiro
    President & Chief Executive Officer
    Consumer Electronics Association
    Arlington, VA
  • Ms. Prudence S. Adler
    Associate Executive Director
    Federal Relations and Information Policy
    Association of Research Libraries
    Washington, DC,
    On behalf of: The Library Copyright Alliance
  • Mr. Jonathan Band PLLC
    Washington, DC,
    On behalf of: NetCoalition
  • Ms. Gigi B. Sohn
    President & Founder
    Public Knowledge
    Washington, DC
  • Mr. James V. DeLong
    Senior Fellow & Director
    IPCentral.Info Progress & Freedom Foundation
    Washington, DC
  • Mr. Frederic Hirsch
    Senior Vice President, Intellectual Property Enforcement
    Entertainment Software Association
    Washington, DC
  • Mr. Paul Aiken
    Executive Director
    Authors Guild, Inc.
    New York, NY

An archived webcast and witness and member statements are available here.
Much of the hearing focused on discussing the merits of HR 1201, The Digital Media Consumers’ Rights Act of 2005. HR 1201 would create a fair use exemption to the DMCA prohibition on circumventing digital rights protections schemes (aka DRM). In addition, the bill would authorize the FTC to require manufacturers and retailers to label copy protected CD’s.
Most of the witnesses who addressed the panel spoke in favor of this bill and in defense of the fair use right. Jaszi discussed the tradition of fair use within the Copyright Act and noted a number of policy arguments in favor of the fair use rights, particularly the fact that fair use prevents copyright from overwhelming the First Amendment. As the reach of copyright law is constantly expanding to provide more restrictions on uses than ever before, fair use matters.
Shapiro started off discussing how fair use ensures innovation. Without fair use, there would be no VCR, tape recorder, Tivo, or iPod. The information technology industry relies on fair use– fair use is all that protects inventors from an over-protected world. Because every use of digital content requires making a copy, fair use is especially important and needs to be strengthened. Americans should be able to use their property in any way they choose that does not harm others.
Band also noted that all actions in the digital world require making copies, including viewing web sites and replying to emails. Search engines depend on fair use in order to exist. Each major search engine copies a large portion of the world wide web every month under and opt-out scheme of implied consent. Kelly v. Arriba Soft found that search engine indexing is fair use and limiting this use would hurt the way we find information on the internet.
Adler discussed the relevance of fair use to the mission of libraries. Fair use works well because it is flexible, dynamic and inherently ambiguous. In addition to fair use by library patrons, librarians rely on fair use to create print and electronic reserves and to digitize print works. But when acquiring databases and electronic resources for collections, libraries license, rather than acquire like print material. License agreements are more restrictive than the scope of rights under fair use. Once technological controls are built-in to software, it is impossible for libraries to negotiate exceptions in license agreements.
Adler concluded by stressing the importance of libraries, who, rather tan publishers, archive copies for future uses. Fair use is an important safeguard on our nation’s interest in cultural information.
Sohn discussed how fair use rights are slowly being chipped away. Although consumers expect to use content when, how and where they want, the content industries have managed to restrict these uses in the name of preventing piracy. Under the current anti-circumvention law, it is illegal for an individual to copy songs from a copy-protected CD for personal use, shifting video from a DVD to view on an iPod, or removing malicious DRM “rootkit” software from a computer. Sohn asked the representatives to “reject the notion that your constituents are pirates and theives. They do purchase digital products when those digital products are avilable on the market.” In addition, she encouraged the representatives to reform the DMCA so that it permits circumvention solely for lawful purposes and clarify and strengthen the DMCA triennial review process.
Public Knowledge thinks that DRM is fine, so long as it is marketplace driven, not driven by legislation. FairPlay works in the marketplace, while Sony’s didn’t. The government should not mandate technological protection measures. DeLong agreed with applying a marketplace test to technology. But then, DeLong thinks a marketplace will sort out all problems with the copyright economy.
DeLong testified, “We don’t talk about the need to balance the interests of automobile manufacturesr and drivers. We assume that we can establish rules promoting markets and allowing the market to sort itself out.” Fair uses usually exist when the transaction cost of getting permission is out of proportion to all value to the user and detriment to the creator.
The internet is taking transaction costs out of the system.
DeLong credited DRM with creating marketplace solutions to things that used to have a cost. On the other hand, DRM imposes a cost on performing actions that the law has traditionally considered to be fair uses– uses either so important to the free spread of ideas or so trivial that the law is not concerned with imposing a cost. These are actions that have no monetary value, yet are to be part of a marketplace? Fair use and free use are not necessarily the same.
Aiken and Hirsch, not surprisingly, spoke against strengthening the scope of fair use.
In both his opening statement and questioning of the witnesses, Stearns focused on seeking a technological solution for the “fair use problem.” He thinks that technology should be able to come up with a magic bullet that would absolve Congress of its role in having to make difficult decisions about what activities should be encouraged and which activities prohibited. Stearns asked, “Why not make this the copyright equivalent of a race to the moon? Why shouldn’t we be able to technologically limit the number of copies?”
Impressionistic transcripts of the most interesting questions asked by the subcommittee follow in the extended entry.


Protecting Copyright and Innovation in a Post-Grokster World

On Wednesday, the full Senate Judiciary Committee held hearings on “Protecting Copyright and Innovation in a Post-Grokster World,” with testimony from:

  • The Honorable Mary Beth Peters, U.S. Register of Copyrights, Copyright Office, Washington, D.C.
  • The Honorable Debra Wong Yang , U.S. Attorney for the Central District of California , and Chair of the Attorney General’s Advisory Committee , on Cyber/Intellectual Property Subcommittee , Los Angeles, CA
  • Marty Roe, Lead Singer, Diamond Rio, Nashville, TN
  • Cary Sherman, President, Recording Industry Association of America, Washington, D.C.
  • Gary Shapiro, President and Chief Executive Officer, Consumer Electronics Association, Arlington, VA
  • Mark Lemley, William H. Neukom Professor of Law, Stanford University Law School, and Director, Stanford Program in Law, Science and Technology, Stanford, CA
  • Ali Aydar, Chief Operating Officer, SNOCAP, San Francisco, CA
  • Sam Yagan, President, MetaMachine, Inc. (developer of eDonkey and Overnet), New York, New York

Details about the testimony continue after the jump…


Legislate early, litigate often

One of the bills that may pass during the lame-duck session of the 180th Congress is HR2391, the Intellectual Property Protection Act. This is an omnibus bill containing some of everyone’s favorite IP-related bills, including Create, PDEA, Pirate and the Family Movie Act. Each of these bills deserves to be debated on its own individual merits, but Congress may pass the omnibus act for the sake of “doing something” in this field.
The Induce Blog is the place to turn for links and analysis about this bill, such as: The Intellectual Property Protection Act.
Public Knowledge: The Intellectual Property Protection Act
Wired News: Wired News: Senate May Ram Copyright Bill