Monday, December 27, 2004

Anti-Counterfeiting Amendments Act of 2003

President Bush signed into law today the Anti-Counterfeiting Amendments Act of 2003, H.R. 3632, criminalizing the distribution of genuine authentication components that have been separated from the software they were intended to authenticate for the purpose of knowingly attempting to certify counterfeit products. This includes Certificate of Authenticity (COA) labels, licensing documents and registration cards that certify copyrights.

[via Politech]

Thursday, December 23, 2004

Induce Debate Reveals Lack of Scholarship

Less Activism, More Economic and Legal Analysis Needed, Singleton Writes

Press Release: The introduction of the so-called Induce Act was the biggest surprise of the year in intellectual property, argues Progress & Freedom Foundation Senior Adjunct Fellow Solveig Singleton, but not for the reasons many would suppose. In an article in the latest Legal Times (pdf), she writes that the debate revealed a surprising lack of economic and legal scholarship in the area, as well as "legal academics' failure to recognize that protecting content online is hard."

"No one wants to ban P2P technology," Singleton writes. The Induce Act -- introduced by the top two senators on the Senate Judiciary Committee, Republican Senator Orrin Hatch of Utah and Democratic Senator Patrick Leahy of Vermont -- addressed the problem of peer-to-peer [P2P] downloading of copyrighted material online. It contemplated liability for inducing someone to infringe copyright.

"Many techies greeted the bill with alarm. Others watched in silence, notable in itself," Singleton says. "Ultimately, the Induce Act was just a weather balloon -- revealing of the IP climate, but not the alien spaceship that blog readers might think."

"Markets normally adapt fine to new technology," says Singleton. "But it's not clear how they can adjust when the devices -- statutory, contractual, or technological -- that they traditionally rely on to redraw boundaries don't work. It is one thing to call for new business models, another thing to actually create one."

The Induce debate also revealed the desperate need for better scholarship and less activism, Singleton argues. "For example, except for one computer science professor, few commentators discussed inducement liability in patent law and the implications for copyright. It turns out that there is a rich legal history here to explore."

As the 108th Congress came to a close, the language of the Induce Act remained too broad, says Singleton. However, "its method was not alien to the law." The liability debate inherent in the Induce Act debate is now before the U.S. Supreme Court, which has agreed to review the Ninth Circuit Court's ruling in the Grokster case. The rogress & Freedom Foundation's Center for the Study of Digital Property held a Congressional Seminar on the subject earlier this month. The Center's director, James DeLong, has written on the complexities of the Induce Act debate on the Center's weblog at

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.

[via Politech]

Monday, December 20, 2004

Patent Quality Assistance Act introduced with an eye toward enacting patent reform in the 109th Congress

The Patent Quality Assistance Act (H.R. 5299) was introduced near the end of the last session of Congress. The PQAA includes several patent reform measures, including establishment of a post-grant opposition procedure and a statutory presumption of obviousness for business method claims where the only point of novelty is the use of computer technology.

The sponsor of the bill, Representative Howard Berman, states that the timing of the bill is designed to "frame the debate" for the upcoming 109th Congress.

For more on the PQAA, see this PTP post.

Saturday, December 18, 2004

Arlen Specter as Chairman of the Senate Judiciary Committee: any better than Orrin Hatch?

The Washington Post wonders what is going to happen with the copyright debate now that Arlen Specter is taking over as Chairman of the Senate Judiciary Committee. Essentially, he isn't as interested in, or dedicated to pursuing, IP issues as Hatch was. On the other hand, Specter could put Hatch at the head of the IP subcommittee and allow him to keep steaming forward. So it all depends on how much Specter wants to assert his agenda over that of Hatch's. We'll just have to wait and see. Here's some good bits from the article:

In the realm of protecting music and movies from electronic theft, Hatch has been the entertainment industry's most powerful ally in Congress. A songwriter himself, Hatch has waged war against illegal file swapping, backing laws to stiffen copyright protections and keeping the issue in the spotlight with a steady stream of high-profile hearings.

In 2005, term limits require that Hatch hand over his chairman's gavel to Sen. Arlen Specter (R-Pa.) -- an otherwise routine power shift that could have far-reaching implications for high-tech firms, movie studios, record companies and the future of downloading.
Opponents of the entertainment industry in the copyright debate -- including high-tech companies, Internet service providers and civil-liberties advocates who have long argued that stiffened protections come at the expense of lost technological freedom -- see Specter's ascension as an opportunity to gain ground in a fight that they say has been stacked against them.
'It's not clear to me what [Specter's] positions are on these issues but I think he's generally going to be a little more balanced. Hatch has really been an unabashed friend of the content industry and Specter has no such record,' said Gigi Sohn, the president of Washington-based Public Knowledge.
Wherever Specter comes down on the copyright debate, it's an issue that will almost certainly take a back seat to other matters, at least at the outset of his chairmanship, former Specter staffers said.
'What he's going to care the most about are the judicial nominations, with asbestos and class action coming [second and third].'
But while opponents of the recording industry may be salivating at the prospect of starting the Senate debate from scratch, sources familiar with Hatch doubt the outgoing chairman will cede his copyright role that easily.

"To the extent that people think ... the center of power over intellectual property issues will shift from Senator Hatch to Senator Specter, they may be quite mistaken," said a former judiciary staffer who now lobbies on behalf of copyright owners.

The aide, who asked to remain anonymous, said Specter might be inclined to let Hatch keep holding the reins. Specter "has been a follower rather than a leader on these issues," the aide said.

Former staffers for both senators said that if Hatch wanted to re-launch the intellectual property panel, Specter would probably play along.
Still, regardless of where Hatch ends up, Specter will play a major role in how the electronic piracy debate evolves in the upcoming congressional session. Even if Hatch is chairing a subcommittee and churning out bills, it'll be up to Specter to determine what moves.
He may get a chance to make those decisions early in the term. In addition to Induce, two other anti-piracy measures supported by Hatch -- one which would have allowed the Justice Department to slap downloaders with financial penalties, and another which would have made it easier to jail file swappers -- failed to pass at the end of the 2004 session.

"Copyright issues are important and they're going to percolate up, and it's really impossible for [Specter] to ignore them," said David Green, vice president for technology and new media at the Motion Picture Association of America. "He might be right now more interested in something else, but because these issues are important to America they are going to be important to Arlen Specter."

These issues are important to America? Important to the RIAA and MPAA is more like it. Actually they are important to America - it's important that bills like IICA don't pass so that our tech industry can keep moving forward without the content industry holding a veto over their production of new tech that's capable of copying. It's also important for regular people who want access to such mixed-use technology, like cd-burners and mp3 players and so on. It's important to American citizens and to the economy, but not in the way the RIAA understands. Hopefully Specter will bring a measure of sanity to the copyright debate in the Senate and worry about more important issues.

Here's the article: Uncertain Landscape Ahead for Copyright Protection (

Orrin Hatch's musical career in flight

Orrin Hatch was formerly the Chairman of the Senate Judiciary Committee (to be replaced by Arlen Specter (R-PA) in the coming term) and is a champion of stronger copyright protection. He and Sen. Patrick Leahy (D-VT) sponsored the Induce Act and "promise to try again next year." In other news, apparently Sen. Orrin Hatch's second career as a musician is really taking off:

"Souls Along the Way," the love song Utah Sen. Orrin Hatch wrote for political rival Sen. Ted Kennedy and his wife a few years ago, has found its way to Hollywood in the box office hit "Ocean's 12."
The song didn't make the CD version of the soundtrack to the hip heist thriller, but Hatch said he's thrilled it's included in the movie. "Ocean's Twelve" is the latest success of Hatch's second career as a songwriter... "Souls Along the Way" can be heard in the background of a scene in which Las Vegas casino boss Terry Benedict (Andy Garcia) crashes a wedding party to demand the gang of crooks repay his stolen loot.
A song more recently emerging from Hatch's prolific pen - he collected $33,000 in royalties from his music last year - is "Unspoken." It is the title track of the latest CD by contemporary Christian music star Jaci Velasquez, a Grammy nominated 23-year-old artist who won the 2002 Latin Billboard Magazine Award for Female Pop Album of the Year.
"Hatch's moonlighting as a songwriter has made him a bigger star in one of his pet political crusades: to enhance digital copyright protection of artists by cracking down on illegal sharing of music files over the Internet.
After a federal court ruled last year that two major online file-sharing companies, Grokster and Streamcast, could not be held liable for illegal downloading of songs by their customers, Hatch joined with Sen. Patrick Leahy, D-Vt., to sponsor the 'Induce Act.' Their bill would have made it illegal for any company to create technology that 'intentionally induces' a computer user to violate copy protections.
Although championed by the music, record and film industry, the measure died after a storm of opposition from the consumer electronics, e-commerce, and technology lobbies.
Hatch and Leahy have vowed to make adjustments to the bill and try again next year."

Here's the article - Salt Lake Tribune, Utah: Hatch's 'Soul' music a Hollywood hit

Friday, December 17, 2004

Hatch to Step Down is reporting that Senator Orin "Hatch is going to have to step down from the chairmanship of the Senate Judiciary Committee in favor of Arlen Specter."

Monday, December 13, 2004

CREATE Act is now law, creating new type of 'double-patenting'

President Bush signed the Cooperative Research and Technology Enhancement (CREATE) Act of 2004 into law on December 10, 2004. The Act excludes secret prior art from the patentability determination in a patent application when the art and claimed invention arise under an established joint research relationship between different entities.

In effect, the Act creates a new category of double-patenting. Not to fear, though, 'double patents' arising under the Act must be tied together, both in term and enforcement, despite the fact that the Act itself is silent as to this requirement. Its up to the Patent and Trademark Office to promulgate regulations detailing the term and enforcement disclaimers that must be filed.

For more on the Act and putting it into practice, see this PTP post.

Friday, December 10, 2004

Cert Granted in Grokster

The US Supreme Court today granted certiorari in MGM v. Grokster. The Court will hear oral arguments in the case in March 2005. EFF represents one of the defendants in the case, StreamCast Networks, makers of the Morpheus P2P software application.
Prior post here. Decision here. For good pointers and discussions go here.


The LA Times reports that Congress adjourned for the year without passing all of the copyright-related bills pending: Bills to Thwart Piracy Falter: "In a blow to Hollywood and the major record companies, Congress adjourned for the year Wednesday without beefing up penalties for movie bootlegging and online piracy."

In his new blog, New York Times' technology columnist David Pogue cautions geeks to pay attention to the next Congress: Companies vs. Consumers: "These sweeping, technology-related bills are dangerous stuff; if we don't watch Congress like a hawk, the next thing we know, we won't be allowed to record TV shows or transfer songs from our CD's to our portable music players"

Wednesday, December 08, 2004

Consolidated Appropriations Act for 2005 signed into law: New Patent and Trademark Office fee schedule effective TODAY

President Bush signed into law today H.R. 4818, the Consolidated Appropriations Act of 2005. The Act includes several intellectual property-related provisions and immediately presents an issue regarding fees paid to the Patent and Trademark Office. The Act is effective as of 12:01 AM today, December 8, 2004, meaning that any fee paid on or after today, including patent maintenance fees, must be made in conformity with the new fee schedule [.pdf].

Monday, December 06, 2004

New study shows artists think the internet has been good for them, split on filesharing

A new study called "Artists, Musicians and the Internet" has been released by the Pew Internet & American Life Project about how musicians feel about the the internet and file sharing. About 3,600 musicians were interviewed on the phone or took a survey online. The results are not very surprising - many musicians feel that the internet has been great for them for increased exposure; on the other hand, half think filesharing itself is wrong. It really isn't the artists who lose much money from it after all, musicians make most of their money from concert tours. Here are some findings:

Musicians believe the internet is an essential tool to help create and market their work, but at the same time more than half of artists say file sharing of unauthorized copies of music should be illegal...
The report...found that only 28 percent of all artists surveyed consider file sharing to be a major threat to creative industries -- contradicting the official stance of the lobbying arm of the record companies. About 43 percent agree that "file-sharing services aren't really bad for artists, since they help to promote and distribute an artist's work to a broad audience."
Only 3 percent of online artists said the internet has had a major negative effect on their ability to protect their creative works. 52 percent of artists said it should be illegal for internet users to share unauthorized music files, compared with 37 percent who said it should be legal. 64 percent of artists said they think the copyright owner should have complete control over the use of a work.
Go check out the article for more. Wired article - Study: Musicians Dig the Net

[By the way, there was also also a good, but unrelated, article in Wired the other day about the Kahle v. Ahcroft case, copyfighters out there may want to check it out: Wired Article - Fight for Public Domain Goes On.]

Thursday, December 02, 2004

A new Thomas is coming...

The Library of Congress is launching a new version of its popular Thomas system. The LOC hopes to launch newThomas on January 4, 2005, the first day on which the 109th Congress convenes.

One notable improvement is the ability to search across multiple Congresses. This could be helpful in tracking certain bills, such as the Patent and Trademark Fee Modernization Act of 2003...and 2004 (...and 2005?).

A limited preview of the new site is here.

Wednesday, December 01, 2004

The omnibus appropriations bill that carries several intellectual property provisions is likely to be enacted early next week

H.R. 4818, the omnibus appropriations bill, is likely to be enacted between Monday and Wednesday of next week (between December 6 and December 8). The bill contains numerous intellectual property provisions, including the CREATE Act, the new Patent and Trademark Office fee structure, and others.

If you're interested in the reasoning behind the date range, visit this post at Promote the Progress.