Washington Update on Copyright

Allan Adler

10:10 am   May 19, 2004

 

[Footnotes are mine -- JF]

 

Legislation, Regulation and Litigation

 

None of this information is for practical use on day to day basis.

 

Background on how copyright has come to be in the public debate that occurs on an almost daily basis.

 

Previously, on Washington Update

• Government mandate on DRM technology (Hollings bill –S. 2048)[1]
• Self-help for Copyright owners (Berman bill – HR 5211)[2]
• Digital Consumers Bill of Rights (Cox-Wyden bills SJ 51)[3]

 

Has been constant tension between users and holders of copyright works

 

Educational institutions and Libraries have lead efforts to expand fair use – since digital revolution  – so have ISPs, phone companies, Digital Future Coalition (including SUN), …

 

Mostly these players are carriers of copyrighted works – they provide the pipes and their concern is they don’t want to be held liable for any possible infringements.

 

Hollings bill would have required digital media devices to have DRM tech built in.  Went nowhere.  But engendered debate on nature of DRM, who should be responsible as to costs, and should Government play role in design and mfg of devices

 

Berman Bill – self/help – protects you should you take action to shut down p2p servers on your own [vigilante].

 

Digital Consumer Bill of Rights – would protect time-shifting, place-shifting (take your e-book to another device) – items not clear under current law.  We oppose as these are not established under fair use and these have never been declared to be an affirmative right under protected works.  [What of the Sony Betamax case?]

 

Current Legislative Proposals

 

• DMCA revisions (HR 107)
• Federal Government’s role in criminal and civil enforcement and public education
• Labeling mandates for digital media –
  • would require labels informing what consumers can and cannot do with those works (ala Cox-Wyden)
• Digital ‘first sale’ rights
  • Two years ago Copyright office did detailed report[4] indicating there isn’t a digital first sale right (1909 Supreme Court decision – book publisher imposing price limitations as to how books can be sold – Congress codified in 1976 that when you deal with a physical copy, then owner’s rights of that physical copy ends at the sale.  There is no limit on control of reproduction of works.  Problem with digital transmission is that you reproduce the work, you do not merely re-distribute it.  Congress did not want to see the value of physical property limited by some artificial restriction from the owner.)
• Orphan works
  • AAP agrees with User community that we need device to deal with this issue.
• Anti-counterfeiting amendments
  • Counterfeiting doesn’t implicate copyright necessarily.  Applies to things protected by trademark or patent.
• IP owners’ remedies (sovereign immunity)
  • Restore rights to certain remedies that were taken away when Supreme Court held (11^th amendment) that states were immune from suits of monetary damages unless they consent to be sued.  Right of Congress to abrogate that protection is extremely narrow.
• Database Protection Legislation
  • You heard about the Feist case
  • For the last three Congresses – there have been efforts to establish protection for databases[5] . 
• Removing copyright from works that flow from results of taxpayer supported scientific research (HR 2613).  Concern that taxpayer money is subsidizing publishers and making exchange of scholarly data difficult[6].

 

Proposed DMCA Revisions

• Fair use exception to anti-circumvention (section 1201).
  • Critics argue both provisions (devices and use of devices) – interfere with fair use.  They fail to grasp that fair use only is defense of copyright infringement.  Argues the intent is to infringe the copyright and therefore fair use is no defense[7].
• Limits on copyright owners’ ability to obtain/use subpoenas to obtain ISP disclosure of subscriber information
  • Communication providers argue that this was not intended to apply to p2p problem.  (Section 512(h)).  ISPs argue should only apply to activity on their network.  Transmission of communications is not infringing as they do not have copy of the copied work.
  • HR 107 in committee without jurisdiction – committee more concerned with rights of pipeline owners as versus copyright owners
  • HR 1066 limits avail of subpoenas
  • Related litigation
    • RIAA v. Verizon
      • Federal district judge rejected Verizon arguments why subpoena was unconstitutional under 1^st and 5^th amendments and Intellectual Property Clause [hmm… that that was the Progress clause].
      • Unfortunately, only question DC circuit took was whether language of DMCA anticipated p2p.  Said DMCA only anticipated cases where material resided on ISP servers[8].
    • RIAA v. Charter Communications
      • 8^th Circuit  - thinks it does apply to p2p
    • AAP was amicus party in both cases[9]
• Second Triennial DMCA Section 1201 Rulemaking Proceeding
  • Upon sufficient evidence, Librarian of Congress can exempt designated classes of works from the circumvention prohibition
  • Oct 2002 decision authorized 4 exemptions
    • Three concern video games, computer programs, and lists of Internet locations blocked by filtering software
    • Fourth exemption – applies to “literary works distributed in ebook format”.  But only when all editions of the work – contain access controls that prevent enabling of the ebook’s read-aloud function as well as enabling of screen readers to render the text into a specialized format. [AAP argued that the market should decide]
    • Copyright rejected proposed exemption of ‘tethered works.’

 

USG’s Role in Criminal and Civil Enforcement

• Deterrence programs
• Public education programs (concern of allowing the AG to manage such a program)
• Amend copyright act to address p2p activity and pre-release works
• Provide for civil enforcement authority
• Remember the NET act – response to MIT guy that had bulletin board where software (illegal) could be downloaded.  Prior to – copyright act required private gain due to the activity.  NET set threshold standards saying you were involved facilitating transmission would implicate you.  Now lawmakers want to implicate p2p activity as being an implication in illegal activity.

 

[some question as to whether publishers play square – on the one hand they contend electronic is not physical and therefore can’t enjoy fair use.  But, they count, like it is physical, each track of an album as a separate copyright infringement]

 

[send Allan email to get copy of this presentation]

 

Orphan Works

• Re-institution of “renewal” requirements (HR 2601[10]) based on a Lessig idea – nominal fee of $1 – Most of copyright industry is opposed.  Since Congress did away with renewal and rest of the world did away with such copyright formalities – such bill would violate WIPO agreements which would subject is to World Tribunal.
• Kahle litigation – seeks declaration  that the “alteration of traditional contours” infringe “free speech” rights. [again Adler talks of IP clause in constitution.]  AAP will probably file amicus brief for defendants.  Though AAP would like to resolve Orphan issues.

 

Anti-Counterfeiting

• Make federal offense to alter authentication features.  We weren’t interested, though we are learning that print-on-demand technology is making pirating of physical book.  We just thought it was bad to start establishing separate tier of protection (literary works was taking back chair).
• HR 3643, and S 2227

 

Restoration of IP owners’ remedies

• Bill would bar state from obtaining damages per violation of its rights unless state submits to suits against their actions (S 1611)

 

Database protection

We won’t get very far in the congress here.

Though their tact has been to use state misappropriate law at a federal level.

Stalemate exists.

 

Federal Funded Research

 

Bill introduced based on thinking that it was inappropriate for taxpayers to pay for research and then journals lock up these types of works under copyright acts.  This would throw major wrench into business models of scientific journals[11].

 

Sony to Napster to Aimster to Grokster

 

Sony[12] decision occurred, some say, because broadcasters were indifferent to whether time-shifting affected their business model.

 

In DMCA separate standards were written to separate the legitimate use circumvention devices versus non-legitimate use.

 

Publishers feel technology (p2p) should be regulated because it contributes to infringement with no apparent legitimate purpose for existence outside that illegal act.

 

Example, Ninth Circ. Decision on Napster[13] cited Napster’s centralized system of distribution of software and archiving of directories saying Napster contributed in its use in illegitimate ways.

 

Aimster (2003)[14] – copyright wins again.

 

Grokster (2003)[15] – found defendants lacked ‘actual knowledge of infringement’ – claims this is a tougher standard for copyright owners to prove.

 

Eventually we will see these cases lead back to Supreme Court – will they have different view of this issue as opposed to 1984. 

 

321 studios litigation[16] – judge has actually enjoined producer from selling software

 

Questions

None

 

 

 

 

 

 

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