Previewing the Tech and IP Agendas in the 109th Congress

Cameron Wilson, Director of the ACM Public Policy Office in Washington, makes some predictions concerning technology legislation in the 109^th Congress: Congress organizes (mostly): IT policy implications, and looks at how orgazational shifts in the new Congress will affect legislation concerning Intellectual Property, Privacy and Cyber-Security.

Two Senate committees that make policy on IP and tech issues have new chairmen. Arlen Specter (R-PA) will head the Judiciary Committee, while former Judiciary Committee chair Orrin Hatch (R-UT) will chair a new subcommittee on Intellectual Property. Wilson expects the Intellectual Property Subcommittee to wait on major IP legislation until after the Supreme Court releases its decision in Grokster.

Ted Stevens (R-AK) will become chair of the Commerce Committee and focus on reforming the Telecommunications Act of 1996. In a Keynote Address to the Internet Caucus at the State of the Net Conference in early February, Stevens noted that the Telecommunications Act of 1996 no longer reflects the current state of telecommunications and internet technology and that "it’s necessary to rewrite it or to amend it," but has no set agenda for reform. Before writing legislation, Stevens wants to find out:

What can we do to remove barriers to entry for new technologies?

What can we do to provide certainty and promote capital investment in new technology?

How can we enable the Internet to improve lives and keep America competitive in the global marketplace?

Are our anti-spam laws working, or is there more we could do and should do?

Should states be permitted to tax phone service that is provided over the Internet, or should we make the tax moratorium that the last Congress approved permanent?

When it comes to spyware, how can we satisfy Americans’ need for privacy with the need for innovation and growth in the e-business community?

Should Voice-Over IP be free of regulation, or should it pay into the Universal Service Fund?

In this age of global terrorism, how can we best address law enforcement’s needs in the new VOIP environment?

Should telephone companies be required to acquire a cable franchise if they provide video movies and shows that compete with cable?

Should we protect movie producers, musicians, and other artists from piracy, or should we allow all material to be exchanged freely over the Internet even if some of it was stolen?

Additionally a new Commerce subcommittee will focus on "Technology, Innovation, and Competitiveness."

(via Freedom to Tinker)

Grokster Press Conference

Event: There will be a news conference on March 1, 2005 to discuss the consumer/tech briefs on the MGM v. Grokster file-sharing case before the U.S. Supreme Court.

Time: 2 p.m., EST
Place: Public Knowledge

Speakers confirmed (as of Feb. 24):

Fred von Lohmann, Electronic Frontier Foundation, counsel for Streamcast, one of the peer-to-peer companies being sued.
Mike Weiss, CEO of Streamcast
Michael Page, attorney for Grokster
Gigi Sohn, president of Public Knowledge
Mark Cooper, Consumer Federation of America
Gary Shapiro, president of Consumer Electronics Association
Ed Black, president of Computer and Communications Industry Association
Deirdre Mulligan, director of Samuelson Law, Technology and Public Policy Clinic, U. of Cal./Berkley School of Law

UPDATE: MP3 of press conference available thanks to EFF [via]

Save Orphan Works

Mark clarification bill leftover from the 108th Congress reintroduced

Representative Mike Simpson (ID) introduced H.R. 784 on February 10, 2005. The bill is identical to S. 2796/H.R. 5194 introduced in the 108th Congress.

I haven't been able to locate any significant comments on the introduction of the new bill, but everything from the prior bills is still relevant. It seeks to legislatively overturn a federal court decision that limited the effect of "no contest" clauses in license agreements for certification marks.

See this PTP post for more details (including bill text, which is not yet available on Thomas...)

Post- Post Post

I'm catching up with the blog now that I'm here, so you'll excuse a little time travel.

David Post's post on Volokh goes like this -- I'm going to add a paragraph that Kevin clipped out:

I think the Court will send the case back to the Ninth Circuit and say: you were right that, under Sony, the non-infringing uses here are substantial enough so that, standing alone, providers of these p2p technologies can't be held liable for the copyright infringements of network users. But — and here's the critical part — on these facts, it doesn't stand alone; there's evidence in this record that Grokster and the other defendants actively encouraged and induced its customers to infringe copyrights, and that inducement of this kind is not protected by the Sony safe harbor. The Court will then instruct the Ninth Circuit to re-open the case and evaluate whether or not this evidence is enough to hold the defendants liable on an inducement, or "aiding and abetting," theory of liability.

The record companies will claim victory, but it will be a Pyrrhic one — it will just cause the next generation of P2P providers to be more careful about what they say in their promotional and advertising material, secure in the knowledge that if they just shut up about it, they'll be allowed to go about their business without fear of copyright liability.

So my take on this is, as dumb as fairly brilliant people in and around the Supreme Court can be, this would be such a dumb outcome that even they wouldn't dare. After all, they kind of like IP cases -- they ultimately did decide Betamax and TrafFix and Dastar, just to name a few, after all. Imagine what a nice break a case like this must be in between the usual drudgery.

At the end of the day, it's hard to imagine the Supreme Court just giving a road map to infringement like that. In fact my guess is that the court will seek to promulgate a standard for what is and what is not a "substantial infringing use" -- emphasis on substantial -- using, in part, the record Post refers to in order to bolster a finding, not of intent, but that the defendants have made an admission of the substantialilty of the non-infringing uses.

That would, indeed, result in more careful public statements by purveyors of file-sharing and other "troublesome" technologies. But it would not be a total waste of time, if the court would along the way set out one of its famous "multiprong tests" or some other clearer standard that would effectively update Betamax -- or, even better, provide an appropriate legislative opening and leave the policymaking to Congress.

Broadcast Flag Oral Arguments

LuminousVoid has a report from the oral arguments at the D.C. Circuit Court in American Library Association v. FCC.

EFF has the briefs. [via]

More info here and here.

Broadcast Flag

Professor Susan Crawford of Cardozo tells us that It's Just As Important as Grokster:

The broadcast flag argument is coming up on February 22. It's a crucial case. Did the FCC have jurisdiction to enter the broadcast flag order in November 2003? If it didn't, we'll need to go to Congress to discuss all this.

Here's her paper discussing this. It explores the application of complex systems theory to internet governance.

Public Knowledge has provided some additional details:

1. The argument for the case, No. 04-1037, will be at 9:30 a.m. in the fifth floor courtroom of the U.S. Appeals Court, in the Federal Courthouse at 333 Constitution Ave., N.W. (Near the Judiciary Square Red Line Metro stop). We are the only oral argument scheduled for that day, so I expect it will start on time.

2. The lawyer arguing the case for those challenging the FCC rule, including PK, will be Pantelis Michalopoulos, a partner in the law firm of Steptoe and Johnson. The judges will be Harry T. Edwards, David B. Sentelle and Judith W. Rogers.

3. Those challenging the FCC rule are: Public Knowledge, American Library Association, Association of Research Libraries, American Association of Law Libraries, Medical Library Association, Special Libraries Association, Consumer Federation of America, Consumers Union and Electronic Frontier Foundation.

All the Grokster Brief Belong to Us

The Copyright Office has posted the Grokster briefs in their entirety. [via]

AG's file Grokster Brief

Attorney General Mark Shurtleff is asking the U.S. Supreme Court to hold software companies liable when they facilitate the spread of child pornography and the theft of copyright protected music and movies. [press release]

Are software makers liable for the piracy of file swappers?

Julie Hilden finds that the outcome of MGM v. Grokster is extremely hard to predict.

Grokster Grok

The 463 on the Congressional Internet Caucus conference..

Submissions Accepted

Have you reviewed the briefs submitted on both sides of the MGM v. Grokster appeal before the Supreme Court and have a post or prediction of your own, but nowhere to post it?

Submit it to kevin-at-techlawadvisor-dot-com and we'll consider it for publication.

David Post on Grokster Outcome

Volokh conspirator David Post has made his prediction :

Instead, I think the Court will send the case back to the Ninth Circuit and say: you were right that, under Sony, the non-infringing uses here are substantial enough so that, standing alone, providers of these p2p technologies can't be held liable for the copyright infringements of network users. But — and here's the critical part — on these facts, it doesn't stand alone; there's evidence in this record that Grokster and the other defendants actively encouraged and induced its customers to infringe copyrights, and that inducement of this kind is not protected by the Sony safe harbor

A Grokster/Induce review

Here's an article by the president and co-founder of Public Knowledge, Gigi Sohn. It is a review of what is going on in the courts (Grokster) and in Congress (Induce Act, etc.) that threatens the Sony Betamax ruling and why people should be suspicious. Nothing profound, just a nice overview of what's happening.

Getting real about the Grokster case - CNET News.com

Senate approves FECA

The Senate has approved the Family Entertainment and Copyright Act (FECA) of 2005 -- a package of copyright bills which includes the camcorder legislation, the Family Movie Act and legislation designed to make it easier for law-enforcement officials to combat the growing problem of music and movies being distributed on file-sharing networks and circulating on the Internet before they are released. FECA also contains a measure to reauthorize an existing program for the preservation of historically and culturally significant films. [Reuters]