Saturday, November 13, 2004

The Intellectual Property Protection Act

H.R. 2391 - Status

The Senate Judiciary Committee on Oct. 7, 2004 approved H.R. 2391, the Intellectual Property Protection Act, as a bundle of other intellectual property bills. The overall bill has not yet been considered by the full Senate.

Summary

Here are the pieces of the bill:

H.R. 2391 Cooperative Research and Technology Enhancement (CREATE) Act of 2003
The Cooperative Research and Technology Enhancement (CREATE) Act of 2004 would allow researchers and inventors who work for different organizations to share information without losing the ability to file a patent. Passed the House March 10, 2004.

H.R. 4077 Piracy Deterrence in Education
Establishes “offering for distribution” as basis for criminal copyright violation and “making available” for civil violation, regardless of whether there is any distribution or copying, let alone infringement. While traditional infringement employs a higher, "willful" infringement standard, this new cause of action lowers the standard of infringement to "knowing with reckless disregard.” Passed the House Sept. 28, 2004 on voice vote.

S. 2237 The Protecting Intellectual Rights Against Theft and Expropriation (PIRATE) Act
The bill would authorize the Justice Dept. to file civil actions against copyright infringers. We believe that is an inappropriate use of federal funds to enforce private rights of action. Passed Senate June 25, 2004 under unanimous consent. Passed the Senate June 25, 2004.

S. 1932 The Artists' Rights and Theft Prevention Act of 2004 (ART Act)
The bill would make the unauthorized use of a video camera in a movie theater to transmit or make a copy of a copyrighted work into an imprisonable offense. Fair use protections guaranteed under copyright law would not apply. Text was folded into
H.R. 4077. Passed the Senate June 25, 2004.

H.R. 4586 The Family Movie Act
The provisions were included in H.R. 4077 as passed by the House. The original House version of this bill provided an affirmative right for those who used technology to skip objectionable material, such as profanity, violence, or other adult material, in the audio / video works that they legally purchased. This is a right that most believe manufacturers of technology and consumers already have—regardless of H.R. 4077. Now, the affirmative right to watch and skip parts of the content that a consumer has legally obtained only exists if certain conditions are met: no commercial or promotional ads may be skipped. Additionally, technology manufacturers must provide a notice at the beginning each showing stating that “the motion picture is altered from the performance intended by the director or copyright holder of the motion picture.”

H.R. 3632 The Anticounterfeiting Act of 2004
The bill provides penalties and jail sentences for trafficking in “counterfeit labels, illicit labels or counterfeit documentation or packaging” of records, software, movies, etc. The original bill also provided penalties for filing false information with Internet registrars, but that portion wasn’t picked up in the omnibus. Passed the House Sept. 21, 2004.

H.R. 5136 The Preservation of Orphan Works Act
The bill would allow libraries to create copies of certain copyrighted works that, in their last twenty years of copyright term, are no longer commercially exploited, and are not available at a reasonable price. Introduced Sept. 23, 2004. No further action.

S. 1933 Enhancing Federal Obscenity Reporting and Copyright Enforcement
The bill would amend copyright law to provide that a certificate of registration shall satisfy registration requirements irrespective of any inaccurate information on the registration application, unless: (1) the inaccurate information was included on the application with knowledge that it was inaccurate; and (2) the inaccurate information, if known, would have caused the Register of Copyrights to refuse registration. This is a way of eliminating defenses raised in many suits (including Napster, mp3.com, etc.) that the plaintiffs' copyrights were invalid or unenforceable due to inaccurate information in the application for registration. This is quite ironic given that the same copyright owners just pushed through the WHOIS bill creating criminal penalties for domain name applicants who put false information in domain name registrations. Approved by Senate Judiciary Committee May 20, 2004.

Analysis

H.R. 4077 Piracy Deterrence in Education
The standards in the proposed bill are far too vague, and could include material stored on computers and shared on networks. The bill is a departure from existing copyright principles and could have a number of unforeseen consequences. Example: use of innovative music sharing feature of Apple’s popular and legal iTunes program would be made a crime. Traditionally, to enforce criminal copyright infringement, the copyrighted work needs to be registered with the Copyright Office. Under Section 6 of HR 4077, in conjunction with S. 2237, “The PIRATE Act,” the Justice Department could pursue a copyright infringement claim, regardless of whether the work was registered.

S. 2237 The Protecting Intellectual Rights Against Theft and Expropriation (PIRATE) Act
We believe that is an inappropriate use of federal funds to enforce private rights of action. Passed Senate June 25, 2004 under unanimous consent. Passed the Senate June 25, 2004.

S. 1932 The Artists' Rights and Theft Prevention Act of 2004 (ART Act)
Fair use protections guaranteed under copyright law would not apply.

H.R. 4586 The Family Movie Act
The entertainment community has hijacked the provision affirming the right of consumers to skip over objectionable material and turned it against consumers and the tech community. Now, the affirmative right to watch and skip parts of the content that a consumer has legally obtained only exists if certain conditions are met: no commercial or promotional ads may be skipped. Additionally, technology manufacturers must provide a notice at the beginning each showing stating that “the motion picture is altered from the performance intended by the director or copyright holder of the motion picture.” This sets the functionality of the everyday VCR and TiVo on its head.
S. 1933 Enhancing Federal Obscenity Reporting and Copyright Enforcement
This bill is a way of eliminating defenses raised in many suits (including Napster, mp3.com, etc.) that the plaintiffs' copyrights were invalid or unenforceable due to inaccurate information in the application for registration. There is great irony given that the same copyright owners just pushed through the WHOIS bill creating criminal penalties for domain name applicants who put false information in domain name registrations.

[via http://www.publicknowledge.org: Public Knowledge is a public-interest advocacy and education organization that seeks to promote a balanced approach to intellectual property law and technology policy that reflects the "cultural bargain" intended by the framers of the constitution.]

3 Comments:

At 2:37 PM, Anonymous Anonymous said...

Regarding H.R. 4586 The Family Movie Act
It has been implied that the user may not skip ads. That is not true from the verbiage of the bill. The provider of the 'hardware/software' which modifies the content does not automatically skip the ads. The user can skip the ads if he or she wishes to do so. The hardware (or software) solution merely provides for the elimination of offensive (objectionable) material while providing the remaining content without modification.
To suggest that a user may no longer skip the ads via use of a remote control, is a Red Herring - meant only to draw focus from the original intent of the bill.
The intent of the bill is to provide current forms of expression (movies, et cetera) in the privacy of the home without demanding the offensive material be viewed and heard. The original content must remain intact on the source (i.e. DVD). The user must be notified that the content will be modified from the original form (i.e. vulgarities, expletives, and sexual content will be removed or unviewable).

 
At 9:58 PM, Blogger Mark Ci said...

It's NOT a "red herring." In fact, it's quite easy for a manufacturer of a DVD to put an ad on the disc that could not be skipped with a standard player. If someone manufactured a DVD player that allowed these to be skipped, it would be a violation.

 
At 7:21 PM, Anonymous Anonymous said...

Here is a new article of interest: "Copyfraud" available at SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=787244

 

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