Tuesday, November 30, 2004

IPac info (the IP political action committee)

Wired is running a story about Intellectual Property Political Action Committee (IPAC). IPac is an exciting new way to get people involved in the copyfight and to educate politicians on IP law.

IPac pledges to support candidates and elected officials who fight for a balance in copyright law: The group will support those who advocate for laws that will pay creators without limiting political expression, innovation or research and education, and back laws that foster new creativity. The group says it believes that intellectual property laws should be clear so technologists can innovate without being sued.
Wired News: Battling the Copyright Big Boys

Check out this post on Chris Rush Cohen (my blog) about IPac and the mainstreaming of the fight against unbalanced copyright law. Here's a snippet:

IP is an area of legislation where politicians can hand huge rewards to companies at the expense of the public without really getting any negative attention. People just don't know how important IP law is, don't realize they are actually the ones losing out, or don't care because IP doesn't make for a great above-the-fold story. As the copyright law has expanded so massively in the last decade, however, the public's interest in IP has really been piqued.
It is only natural that eventually an IP PAC would pop up. It would obviously make a huge difference to the future direction of IP law if the public took such an interest in IP that politicians were forced to react, and particularly if donors other than the MPAA and the RIAA began to consider IP issues in who they supported financially. That will be a next step that may be a few years off but appears to be happening.
Chris Rush Cohen: New Intellectual Property Political Action Committee

Congratulations and good luck to everyone involved in IPac, it's a great idea. Go check them out and support them.

An interview with Kazaa's D.C. lobbyist

CNet is running an interview with Philip Corwin, Kazaa's/Sharman's sole lobbyist in D.C. That has to be a rough job. In the past Corwin has been a lobbyist American Bankers Association, the Commercial Finance Association and the Independent Bankers Association of America, and now he's a partner at the Butera & Andrews lobbying firm...so I'm guessing his services don't come cheap.

Here's part of the interview concerning the Induce Act, you can go get the rest about halfway down the page here - CNet: Fighting for file-swapping on Capitol Hill:

Why do you think the Induce Act died in Congress this year, even though it had the support of the MPAA and RIAA?

Neither Sharman Networks nor any of the other peer-to-peer companies were invited to participate in those negotiations. We were just labeled as bad actors, while other people talked about the method and timing of our execution.

Do you think the entertainment industry overreached by asking for too much?Y

es. Particularly the way they did it. It became known that the RIAA and MPAA had been working with Senate staff on that language for over a year. Then suddenly this was put on the table, and the other side is told: "You have two months to reach a deal."

I can't think of any precedent for parties in a legal case coming to Congress and saying, "We're losing the case under current law. Can you change the law so we can win?" I think it's very unseemly. (Ed. note: The Induce Act was designed in part to overturn court decisions saying that the Grokster and Morpheus file-swapping networks were legal to operate.)
Actually, I think this happens all the time that industry groups ask Congress to change laws in order to benefit them. It's called...uh...LOBBYING.

By the way, Kazaa/Sharman just began their defense in a civil trial brought by the RIAA (and others) in Australia. Here are some articles on that - here and here. If they lose the judgment would sink them, that is if the judgment is enforceable in the small corporate shelter island of Vanuatu, where Kazaa is located (my guess is that it isn't).

Friday, November 26, 2004

Patent fee increases -- Summary of the major themes in the omnibus appropriations bill (H.R. 4818)

Congress appears to have been succesful in levying major fee increases on the patent system. The omnibus appropriations bill (H.R. 4818) will likely become law in mid-December, and will bring several major changes to the fee structure for the filing and prosecution of patent applications. This post discusses some of the major themes of the bill, and shows that it goes way beyond mere fee increases.

Wednesday, November 24, 2004

Gunning for p2p?

In a Washington Post Op-Ed, Lawrence Lessig notes the parallels between the rationale for regulating P2P through liability for tool vendors and the rationale for regulating firearms by creating liability for gun manufacturers: Bytes and Bullets
But there is a silver lining here, and it has to do with, of all things, a very old technology: guns. For if Congress passes this bill, on what principled basis can it then refuse to hold gun manufacturers responsible for the crimes committed with their technologies?

(Via Lessig blog.)

Legislation to regulate pro boxing may derail new copyright bills:

It seems that the copyright bills recently passed in the Senate could still be derailed when they come back to the House for approval. This approval is necessary because of minor differences between the Senate and House versions, even though they have both been passed already. When the pared-down IPPA was passed in the Senate, as we have been reporting on here for the last few days, the Senators also attached a completely unrelated bill to the copyright legislation concerning regulation on professional boxing. It seems that this attached boxing legislation is actually somewhat controversial and may prove to be the undoing of the entire lot of new laws:

Provisions of the Senate copyright bill previously passed under other legislation in the House but would need to be approved again because of minor differences between the bills. Industry and consumer lobbyists, however, believe the copyright proposals could be derailed in the House because of unrelated boxing reforms added to the measure.

"We'll see how this plays out," said Mitch Bainwol, chief executive of the Recording Industry Association of America, the trade group for the largest record labels. "They'll either work it out in December or early next year."

Sen. John McCain (R-AZ), appended a proposal to create a three-person commission — appointed by the president — to license boxers, managers, promoters and sanctioning organizations.
"I don't know whether this is a poison pill for the bill," said Alan Davidson, associate director for the Washington-based Center for Democracy and Technology. "These were a carefully crafted set of copyright provisions, but it's an open question whether the House will accept them with the boxing legislation attached."
Yahoo! News - Boxing Dispute Clouds Copyright Bill.

Here's more on the boxing legislation and how it ended up attached to the copyright bills, good 'ol fashioned tough-guy politics, McCain style, may have backfired:
A fight between two powerful lawmakers over boxing reform legislation might have KO'd the Family Movie Act and a bill that makes it a federal crime to camcord a movie.

The dispute between Sen. John McCain, R-Ariz., and Rep. Joe Barton, R-Texas, over McCain's legislation federalizing boxing regulation went into the final rounds Saturday and ended the attempt to get the legislation through in the last-minute rush before lawmakers go home, according to congressional and industry sources. McCain chairs the Senate Commerce Committee, and Barton chairs the House Energy and Commerce Committee.

McCain held up the intellectual property legislation as leverage to get Barton to agree to his boxing-reform bill. In the end neither lawmaker was willing to go to a neutral corner or throw in the towel until it was too late. At the last minute the legislation made it through the Senate, but there wasn't time to get it through the House.

While the bill failed to win approval in this lame-duck session, it could be resuscitated if lawmakers return Dec. 6 to attempt to finish work on the intelligence agency overhaul.
Backstage.com article: Two Movie-Related Bills in Limbo.

Tuesday, November 23, 2004

last minute negotiations over the Induce Act break down

Passage of the Induce Act (IICA) this Congressional session are looking less and less likely. Not surprisingly, the negotiations between the content providers and tech companies are not going so well:

The fate of the controversial Induce Act that would restrict file-sharing technology that can be used to illegally download and share copyrighted material was in question today after negotiations between the music and electronics industries broke down as the current Congressional session nears an end, possibly by this weekend.

Talks aimed at a compromise on that bill, which was put forward by the Copyright Office after court rulings found P2P file-swapping networks were legal, broke down earlier this fall, making it unlikely the legislation would be picked up in the same form any time soon.

Will Rodger, director of public policy at the Computer and Communications Industry Association and the Open Source and Industry Association, said the language in that bill spelled potential disaster for the technology industry.

"The recording and movie industries thought they could come up with a magic bullet to kill infringement," Rodger said. "That's just not going to happen, never mind what the consequences might be for the U.S. economy as a whole."
ECommerceTimes.com article: Copyright Bill Clears Senate Minus Induce Act

$2 million earmarked for the creation of new Copyright Czar position in the DOJ

Two million dollars of the new $388 billion spending bill has been earmarked for use in the creation of a Copyright Czar within the Dept. of Justice and to fund a group called the National Intellectual Property Law Enforcement Coordination Council (NIPLAC).

Buried inside the massive $388 billion spending bill Congress approved last weekend is a program that creates a federal copyright enforcement czar.

Under the program, the president can appoint a copyright law enforcement officer whose job is to coordinate law enforcement efforts aimed at stopping international copyright infringement and to oversee a federal umbrella agency responsible for administering intellectual property law.
The legislation, part of the bill funding Justice Department operations, also for the first time funds the National Intellectual Property Law Enforcement Coordination Council (NIPLAC).

NIPLAC is charged with establishing policies, objectives and priorities designed to protect American intellectual property overseas and to coordinate and oversee implementation of intellectual property law enforcement throughout the government. While NIPLAC has been around since the early 1990s, it has never done anything, and appropriators hope that giving the organization $2 million and a new charter will make the office effective.
But their ambitions for a more robustly funded program were scaled back. Originally the subcommittee had designated $20 million for the program, but fiscal reality forced lawmakers to agree to one-tenth of that.
Reuters.com: Lawmakers OK Anti-Piracy Czar.

Senate Passes CREATE Act

On 11/20/2004, the Senate passed, and House agreed to S. 2192, the Cooperative Research and Technology Enhancement (CREATE) Act of 2004.
Congressional Record Reference, House of Representatives, November 20, 2004, Page: H10219: " In the future, research collaborations between academia and industry will be even more critical to the efforts of U.S. industry to maintain our technological preeminence. By enacting S . 2192, Congress will help to foster improved communication among researchers, provide additional certainty and structure for those who engage in collaborative research, reduce patent litigation incentives, and facilitate innovation and investment."
[via bespacific]

Monday, November 22, 2004

WaPo on the passage of the pared-down IPPA

Bootlegging just got even more dangerous:

People who secretly videotape movies when they are shown in theaters could go to prison for up to three years ...
This one was for all those reviewers for the Oscars who have been handing out copies of films they get from the MPAA:

Hackers and industry insiders who distribute music, movies or other copyrighted works before their official release date also face stiffened penalties under the bill.
As for the PIRATE Act:

That bill would have also directed the Justice Department to pursue file-traders more actively through civil lawsuits.

Consumer groups, consumer-electronics makers and the American Conservative Union had sought to derail those measures, portraying them as a radical expansion of traditional copyright protections.

That material was dropped from the bill, but the Justice Department said on its own last month it plans to take a more aggressive approach to policing intellectual-property crimes.
There is good news for the ClearPlay company:

The bill also shields "family friendly" services like ClearPlay that strip violent or sexually explicit scenes from movies. Hollywood groups say such services violate their copyrighted works by altering them without permission.
Although I find the actual purpose of the ClearPlay technology (for those opposed to sex and cursing, mainly on religious grounds, to skip over naughty bits of movies) to be disagreeable, I was never convinced that the "moral rights" of the writers and directors who make the films should override my right to utilize media I purchase in any way that I choose - such as by skipping parts. To me the ClearPlay issue went to the heart of what I, and other media consumers, are allowed to do with their media purchases in their own home. I think the standards for what is ok to do with media in the privacy of the home must be far more liberal than for what a purchaser of media can do when distributing media to other people, whether online or via a CD-R (in which case there is probably real and damaging infringement taking place anyway). You can see the ClearPlay ad here (it was a good idea, poorly executed).

As for that whole commercial skipping thing, someone on The Hill is still sane. This bill would've knocked out a main point of TIVO/DVR technology:

A section that would have made it illegal to edit out commercials was removed.
Finally, as for The Induce Act (IICA):

Another measure that would have made it easier to sue peer-to-peer networks died in committee last month, though insiders expect Congress to take it up again next year.
Here's the article: The Washington Post: U.S. Senate Passes Scaled-Back Copyright Measure.

All in all this has been a good fight by those of us who believe copyright laws are already broad enough to provide adequate protection for the content industries. As we can see content makers are already adapting their business plans to emerging technology. Maybe now the RIAA and MPAA will put more effort into figuring out how to make money using the new tech instead of just trying to kill it off. Oh who's kidding who...we all know this battle will rage on until the Betamax doctrine is either killed or enshrined in a statute.

With us bloggers and groups like Public Knowledge and the EFF (who, by the way, just announced a new advisory board) focusing attention on the copyright issues and the tech industry dumping money into the lobbying effort it looks like the legislative outcomes are actually quite fair. This year the content industries got some extra help via tougher penalties for infringement, but they do not get a veto over new mixed-use technology (the induce Act), nor do they get to have the Dept. of Justice as their private law firm (the PIRATE Act). I have always been of the opinion that we need strong copyright protection because these industries are huge engines of growth for the U.S. economy, however, I think those protections need to balanced against the interests of the media consumer and other industries as well (such as the technology producers). Although some of the new legislation was pushed through, I think we can all pat ourselves on the back for a few minutes, until the next Congressional session is called to order that is.

UPDATE: Here is an informative article in WIRED News (featuring quotes from Wendy Seltzer) about the new copyright legislation: Wired News: A Kinder, Gentler Copyright Bill? Go, read it.

Here's what they had to say about HR 4077:
Senators dropped that section -- HR4077 -- which would have lowered the standard for copyright infringement. "It took 'willfulness' out of the definition of a criminal violation, so you could be judged a criminal without willfully infringing copyright," Seltzer said. A person who had 1,000 songs on their computer in a music folder and who didn't intend to make the files public could be nabbed.

Public Knowledge Reacts to Senate Passage of Copyright Legislation

Importantly, HR 4077 and the Pirate Act were dropped from the bill, however, I continue to disagree with the Family Movie act on the basis of moral rights.

Background: The Senate late in its weekend session passed by unanimous consent S 3021, a shorter version of the omnibus copyright legislation (HR 2391) that had been introduced earlier in the session.

Statement of Gigi B. Sohn, president of Public Knowledge:
Consumers won a major victory when the Senate passed legislation removing the most egregious elements of the omnibus copyright bill that had previously been under consideration.

We strongly support the version of the Family Movie Act, included in the bill, which gives families more control over how they watch movies and television, preserving the right to skip over commercials. The bill will benefit consumers, both in their entertainment choices now, and from the innovation in technology that will result in coming years.

We are also pleased that HR 4077 was dropped from the bill that passed. That legislation would have lowered the standard for copyright infringement. The Senate also wisely removed the PIRATE Act, which would have made the government the entertainment industry’s private law firm at taxpayer expense.

The Senate should also be commended for including in the bill legislation helping to preserve orphan works and reauthorizing the National Film Preservation Board. These features of the bill are important steps in preserving our nation’s culture. We look forward to working with Congress in coming sessions to make further progress in advancing consumer interests and preserving copyright balance.
A copy of the bill is available here.

See also: A Kinder, Gentler Copyright Bill? by Katie Dean
The Senate passes a copyright bill that is not as bad as digital rights activists had feared. The bill drops language that would have banned tech that would have allowed people to skip commercials.

Are the content industries losing influence on The Hill?

This article asks that question and points to the failure of the content industry to push the Induce Act through Congress and also suggests that IPPA looks to be defanged. The tech industry has stepped up to the plate.

When the Induce Act materialized...the tech industry won by calling in the heavy artillery in the form of broader-than-usual alliances. By venturing beyond the usual cluster of Silicon Valley companies, the allies managed to prevent the kind of consensus from forming that has characterized recent copyright laws.

Among the new allies: the Association of American Universities, the American Conservative Union, the American Library Association, BellSouth, MCI, RadioShack, SBC Communications and Verizon Communications. Even The New York Times and The Wall Street Journal slammed the Induce Act in their editorial pages.
During the last decade, the tech industry has grown far more spendthrift in purchasing political favors. In 1992, the computer and Internet industry gave a total of $5.3 million while the entertainment industry spent a hefty $13.5 million.

By the 2004 election cycle, those numbers had almost reached parity--at $21.1 million from tech donors and $23.9 million from the entertainment industry.
As of Friday, the buzz was that the "omnibus" package will be stripped of its most objectionable portions and turned into a "minibus" copyright bill. That might give the entertainment industry some solace. But it's far less than its lobbyists had expected.

University of Texas newspaper op-ed

Here's a nice student op-ed piece from The Daily Texan.

MPAA campaign a scary waste:
Nothing is novel about the conflict of content creators and content distributors over the use of new media technology. What is novel is the way that the entertainment industries have shifted their targets from the groups that make distribution possible to the public that consumes them. From the milestone Sony v. MGM "Betamax" case to last month's Federal Court of Appeals ruling favoring the legitimacy of file-sharing services Grokster and Morpheus, the tide of judicial logic has slowly turned in favor of value-creating technologies.Never discouraged, the Recording Industry Association of America and now the Motion Picture Association have risen to bite the very hands that feed them - the movie-consuming public. Although over 60 million Americans use file-sharing networks, the MPAA seems to feel that they have nothing to fear in their use of intimidation.Although none of Hollywood's latest attempts at terror have given me my money's worth, Thursday's full-page MPAA ad in the Texan sent chills down my spine.Although the ongoing campaign against listeners by the RIAA has proved a massive waste of taxpayer money (having made improper use of federal offices, filed lawsuits illegally and done nothing to stem the tide of downloading), the movie industry is set to follow in their footsteps.They also have another trick up their sleeve: the INDUCE act. The recently-introduced congressional legislation would devote federal funds to putting "music pirates" (students) behind bars.I expect cooperation with this type of anti-consumer carpet bombing from the mouthpieces of multinational media conglomerates, but the pro-student stance of the Texan has left me with a higher set of expectations.With DVD sales up 33 percent in 2003, it is sheer avarice that provokes this kind of misguided boot-stomping on the part of the MPAA. I hope that in the future, the Texan can associate itself with cooler heads.
Byron Landry
Economics senior

Friday, November 19, 2004

Anti-Counterfeiting Provisions of IPPA 2004

Professor Lessig reports that Senator McCain is "floating an amendment, to limit the regulation of "illicit labels" to physical labels only. And he has proposed a savings clause, which states:"
Savings Clause.--Nothing in Section 2318 of title 18, United States Code, as amended by this title, shall be construed to restrict defenses or limitations on rights under title 17, United States Code, for a phonorecord, a copy of a computer program, a copy of a motion picture or other audiovisual work, a copy of a literary work, a copy of a pictorial, graphic, or sculptural work, or a work of visual art, that a genuine certificate, licensing document, registration card, or similar labeling component is (1) affixed to, enclosing, or accompanying, or (2) designed to be affixed to, enclose, or accompany.
The issue is that "the act makes it an offence to distribute unauthorized copies of labels, then there's a very simple way for content owners to hack around fair use: embed a watermark into the content, and then any clip, even if fair use, would also constitute an unauthorized copy of a label. Thus, DMCA-like, what copyright law gives, this labeling law would take away."

See Lessig's post: More good McCain work

Omnibus Intellectual Property Bill Would Harm Public Interest

Public Knowledge has an action alert set up where you can let your congressional representatives know your concerns.

Thursday, November 18, 2004

Marybeth Peters makes predictions

Marybeth Peters, the U.S. register of copyrights, makes some predictions about what copyright bills will and will not be passed during the lame duck Congress' rush to enact a final bunch of legislation before breaking for the holidays:

"I don't think you'll ever see database protection," said Peters...
"Something else you won't see this year is something known as the Induce Act."
The database bill would create a new intellectual property right for collections of information, while the Induce Act would prohibit inducing anyone to violate copyright law.
Peters also said that an unrelated huge copyright bill, called the Intellectual Property Protection Act (IPPA), had even odds of being enacted before Congress left town. "Parts of this bill are extremely, extremely controversial," Peters said. "There's a 50-50 chance as I understand it that this bill could go (forward)."
Article here - ZDNet: Anti-P2P bill may slip past legislative rush

Commentary on HR 2391

  • H.R. 2391 Cooperative Research and Technology Enhancement (CREATE) Act of 2003
  • H.R. 4077 Piracy Deterrence in Education
  • S. 2237 The Protecting Intellectual Rights Against Theft and Expropriation (PIRATE) Act
  • S. 1932 The Artists' Rights and Theft Prevention Act of 2004 (ART Act)
  • H.R. 4586 The Family Movie Act
  • H.R. 3632 The Anticounterfeiting Act of 2004
  • H.R. 5136 The Preservation of Orphan Works Act
  • S. 1933 Enhancing Federal Obscenity Reporting and Copyright Enforcement

  • Wednesday, November 17, 2004

    Fast Forward to be Outlawed under IPPA

    Further Analysis of The Intellectual Property Protection Act (HR 2391) by Wired via PVRblog [via Nip]:
    However, under the proposed language, viewers would not be allowed to use software or devices to skip commericals or promotional announcements "that would otherwise be performed or displayed before, during or after the performance of the motion picture," like the previews on a DVD.
    see also: Commercial skipping is piracy? and EFF says Public Has Right to Skip or Mute Movie Scenes

    Lame Duck Session is no time to pass important IP legislation

    The Honorable Orrin Hatch
    104 Hart Senate Office Bldg.
    Washington, DC 20510

    Dear Senator Hatch:

    The undersigned technology, library and consumer organizations have grave concerns about several titles of the Intellectual Property Protection Act of 2004 (the IPPA), H.R. 2391.

    We believe that intellectual property plays a critical role in the United States as a means of fostering both artistic expression and technological innovation. However, the IPPA contains provisions that, while intended to aid in the protection of intellectual property, may harm the market for and hinder the development of new technologies and may harm long-established user rights. Unfortunately, many of the provisions of the bill did not receive the legislative scrutiny they require.

    Accordingly, we request that the IPPA not be considered during the lame-duck session, but instead be carried over into the new Congress when its controversial provisions can be studied and debated in regular order.


    American Association of Law Libraries
    American Conservative Union
    American Library Association
    American Research Libraries
    Computer & Communications Industry Association
    Computer Professionals for Social Responsibility
    Consumer Electronics Association
    Digital Future Coalition
    Electronic Frontier Foundation
    Free Press
    Public Knowledge

    Tuesday, November 16, 2004

    Linspire CEO comments on IICA

    Linspire CEO Michael Robertson is asked about the Induce Ace and other copyright legislation:

    Q: In your column, "Michael's Minutes," you wrote: "Since the courts have ruled that file-sharing software is legal, media companies have been desperately looking for a different way to halt P2P (peer-to-peer). But since P2P is now in a wide range of products and using P2P requires hardware and software, it's impossible to outlaw P2P devices or software without also outlawing the wide range of products that have legitimate uses." Senate Bill S. 2560, known as the "Induce Act," died in committee. Do you think it will rise from the grave in another form? Why is there such a big effort to halt P2P?

    Robertson: For sure we have not seen the last of media companies pleading with Congress to get laws passed that protect their business and lock down innovation and new technology. Remember, this is the same group that went to court to ban all MP3 players and VCRs. Fortunately, they lost both cases and their business is better because of it. It's easier for them to pay for lobbyists and buy politicians to get laws to stop competitive threats then it is to alter their business to take advantage of new technology.
    For the rest of the interview - Linspire CEO: Linux to yank cloth from MS table, part 1

    WaPo - Congress May Act on Internet Piracy Bill

    This article refers to the Omnibus bill as a "consolation prize" for not getting the Induce Act passed.

    Congress May Act on Internet Piracy Bill (washingtonpost.com)

    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.


    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.


    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.]

    CEA not happy with Omnibus Bill either

    Consumer Electronics Association (CEA) on The Intellectual Property Protection Act (H.R. 2391):
    "We are uncomfortable, however, with taxpayers funding copyright enforcement for major multinational companies. This is absurd."


    "This omnibus bill would create a new category of criminal activity and restrict technology and consumer behavior. The House and the Senate should carry this bill over into the next Congress where each of its pieces can be given careful consideration in regular order. We pledge our cooperation in giving full consideration to each component of this legislation so we can preserve the careful balance between protecting intellectual property while preserving fair use and innovation."

    Conservatives very unhappy about the PIRATE Act

    It's hard to remember these days, but supposedly conservatives are all for small government. That's one of the reasons why the American Conservative Union (ACU) is upset about all the ridiculous new copyright legislation:

    Stacie Rumenap, deputy director of the million-member ACU, joined officials from the electronics industry and public interest groups Friday to denounce an omnibus bill that combines eight different pieces of legislation that deal with copyright laws and technology.
    The ACU is particularly unhappy with the PIRATE Act, which allows the Fed to go after copyright infringers civilly instead of just criminally as they do now.

    Most offensive of the bills, said the ACU's Rumenap, is the Pirate Act (S. 2237), which would authorize the Department of Justice (DOJ) to file civil actions against copyright infringers, i.e., peer-to-peer (P2P) file swappers. The DOJ currently has the authority to pursue only criminal prosecutions against infringers, leaving civil actions to the private sector.

    "We find it is just plain wrong to make the Department of Justice Hollywood's law firm," Rumenap said at a policy briefing in the offices of Public Knowledge, a public interest advocacy group.
    If the Department of Justice is able to go after copyright infringers it essentially takes the burden of pursuing these cases off of Hollywood and the music industry, saving them a bundle.

    "The Pirate Act is another masquerade by Hollywood to make taxpayers foot the bill for its misguided war on promising new technology," Rumenap said. "Right now, Hollywood is trying to ram this flawed bill -- a handout for Tinsel Town fat cats -- through Congress without hearings or debate."
    "The Pirate Act isn't just ill-conceived, it's bad public policy. It needlessly and harmfully expands the role of government," Rumenap said. "[Under this bill] Who pays the legal bills for Hollywood? The American taxpayers. And as a bonus, Hollywood companies get to collect the fines."
    According to the MPAA, the civil suits will seek damages and injunctive relief. Under the Copyright Act, statutory damages reach up to $30,000 for each separate motion picture illegally copied or distributed over the Internet and as much as $150,000 per picture if the infringement is proven to be willful.
    The American Conservative Union is launching some commercials in the the next week or so in an attempt to educate people about this situation and to put the pressure on Republican lawmakers not to pass the omnibus bill containing the PIRATE Act and other overreaching and dangerous IP legislation.

    Get the rest of the story here - Internetnews.com: Conservatives Aim to Sink Pirate Act.

    Wednesday, November 10, 2004

    Mark Cuban on RIAA

    Sounds right too me.

    When will the music industry do it right?
    Consumers want a cost effective, easy to use way to buy music. Broadband and dialup providers want new revenue options and to stop dealing with subpoenas from the RIAA.

    The only ones against the move? Probably the RIAA and our politcians. The RIAA would have nothing to do but give out gold and platinum records and the politicians would lose a gravy train of money.
    All the RIAA employees and lawyers will be out of work and the politicos are making hundreds of thousands dollats from the lobbyists.

    Free Culture groups popping up on college campuses

    College students are forming Free Culture groups to educate their peers on the dangers of IICA and other overbroad copyright law. Wired has it covered here:

    Students at a dozen colleges around the country are organizing to teach their peers about the consequences of overly broad copyright law, hoping to prevent creative freedom from being stifled.

    They are forming Free Culture groups on campuses to explain copyright law to fellow students. Stressing its importance for culture and society, the group says copyright law is being abused. To illustrate their point, the groups hold remixing contests, promote open-source software and rally against legislation like the Induce Act, which would hold technology companies liable for encouraging people to infringe copyrights.
    Large copyright holders -- namely Hollywood studios and record companies -- are gaining veto power over technology at a time when digital technology and the internet allow more people than ever to film, record, edit and distribute their own movies and music, among other forms of expression.
    "The danger we face is being labeled rich white kids who want free music," he said. [Too late]
    "It's not just about some abstract copyright law," said Nicholas Bergson-Shilcock, a student at Franklin & Marshall College in Lancaster, Pennsylvania. "It's about free speech and the ability to express yourself."
    Free Culture was co-founded by Nelson Pavlovsky, who was involved in a copyright tussle with Diebold Election Systems after students posted copies and links to internal Diebold memos indicating that Diebold was not confident in the accuracy of their electronic voting machines.

    In other news about college students - there's a new study out, "Piracy on the High Cs," in which researchers found that record sales in the US have fallen because of people using the internet to download albums. The study involved analyzing the music consuming habits of 412 college students. The leading study up to this point (and perhaps still) is one conducted by Harvard researchers in which they determined that P2P did not have any effects on music consumption. For more check out this post.

    Tuesday, November 09, 2004

    Grokster files for Cert

    Donna Wentworth (Copyfight) on The Grokster Case - Once More Into the Breach, Dear Friends:
    At stake in the case is the continued vitality of the Betamax doctrine -- what Fred von Lohmann calls the "Magna Carta of the technology industry" because it "makes it clear that innovators need not fear ruinous litigation from the entertainment industry so long as their inventions are 'merely capable of substantial noninfringing uses.'"
    See Grokster and Streamcast joint brief [pdf].

    Although I have not seen the brief, apparently NBA and MLB are petitioning along with the RIAA to have the case heard. If this is true, we should call for a boycott of televised (internet, cable, satellite) games until these leagues remove withdraw the petition.

    Friday, November 05, 2004

    Press conference, Nov. 12, 10:30 a.m.

    Public Knowledge will host a press conference on Friday, Nov. 12, at 10:30 a.m., to discuss copyright legislation in the upcoming lame duck session.

    At this point, participants are expected to include:

  • Gigi Sohn, president of Public Knowledge

  • Gary Shapiro, president of the Consumer Electronics Association

  • Ed Black, president of the Computer and Communications Industry Association

  • James Burger, attorney representing TiVo

  • Sarah B. Deutsch, Verizon Vice President & Associate General Counsel

  • Public Knowledge is located at 1875 Connecticut Ave., N.W. (Conn. and T St.), Suite 650.

    Also, please leave us a comment if you attend on liveblogging. thanks.

    Thursday, November 04, 2004

    The aftermath of Nov. 2nd for IICA

    It is unclear how the results of Nov. 2 will affect the potential passage of the Induce Act when the lame duck Congress reconvenes. Democrat Minority Leader Tom Daschle (D-SD), who sponsored the Induce Act, was given the boot by South Dakotans. There are plenty of other co-sponsors so this means little.

    Five of the six candidates supported by IPac (the still new public interest IP political action group) won yesterday. Rick Boucher (D-VA), a champion of consumer and technology friendly IP law and the sponsor/author of the DMCRA, retained his seat. Joe Barton (R-TX), John Doolittle (R-CA), Zoe Lofgren (D-CA), and Christopher Cox (R-CA), all DMCRA co-sponsors, all won reelection.

    For more on what techies, geeks, and the copyleft can expect from the Bush administration during the next 4 years, see this C-Net article - Votes are cast--time to count the issues.