Thursday, May 26, 2005

"Broadcast Flag"? Not On Their Watch.

Via Tech Law Advisor, Art Brodsky of Public Knowledge crows that the DC Circuit has ruled that the FCC exceeded its jurisdiction with its the "broadcast flag" regulations. Opinion here.

Wednesday, May 25, 2005

Piracy of IP Hearing Today

This afternoon (Wed. May 25), at 2:30 PM, the Senate Judiciary Committee Subcommittee on Intellectual Property will hold a hearing on Piracy of Intellectual Property.

The subcommittee expects testimony from two panels of witnesses.
  • Marybeth Peters (Register of Copyrights and Associate Librarian for Copyright Services, United States Copyright Office)
  • Stephen M. Pinkos (Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the United States Patent and Trademark Office)
  • James E. Mendenhall (Acting General Counsel, Office of the United States Trade Representative)

  • Eric Smith (President, International Intellectual Property Alliance)
  • Taylor Hackford (Board Member, Directors Guild of America)
  • Robert W. Holleyman II (President and Chief Executive Officer, Business Software Alliance)


The hearing will be held in Room 226 of the Dirksen Senate Office Building and will be webcast.

Update: Ernest Miller listened to the hearing and suffered so that the rest of us didn't have to: Senate Judiciary IP Subcommitee Hearing On Int'l Copyright Infringement: "As I suspected the testimony of the person who is supposed to be neutral in these battles and represent the interests of the people was the most partisan of all. Marybeth Peters once again proved she is not fit to be Register of Copyrights. For example, whenever harmonization is an issue, she always pushes to ratchet up the protections of copyright law"

Family Filitering

The issue of companies that technologically filter the product of Hollywood in order to preserve a semblance of entertainment or enlightenment in that product line, while perserving other sensibilities, is bubbling up. I addressed it earlier here; naturally, it's now being litigated. This is a fascinating topic and one that is addressed very thoroughly in a New York Law Journal (registration required) article by Stephen M. Kramarsky of Dewey Pegno & Kramarsky in New York.

Here's the heart of the matter, put very well by Kramarsky:

Making copies of a movie and offering them for sale or rent, of course, is a plain violation of copyright law. To avoid this problem, editing companies buy multiple legal copies of each movie they offer so that they always retain a one-to-one ratio of 'cleaned-up' copies to originals. Some editing companies package the original DVD along with the edited copy -- sometimes in disabled form --so it is clear that each sanitized copy is backed up by a legitimately purchased original. Under this scheme, the editing companies argue that they cannot be doing harm to content owners. In fact, they assert that, by establishing a new audience for these movies, they are actually increasing revenues to the content owners. This argument ignores the fact that a copyright owner has the exclusive right to create and sell derivative works from its content. If a market exists for cleaned-up movies sold at a premium, the studios argue that it belongs to them, not the editors.

The other solution is the use of a hardware filter. Here, again, is a powerful excerpt on what's at stake:

In a now infamous display of the power of that technology a few years ago, one company showed a revised version of the "nude sketch" scene in "Titanic," in which Kate Winslet magically appeared, not naked as in the original, but demurely clad in a virtual corset. Hollywood, it appears, was not amused and some commentators have suggested that this demo was one of the sparks for the current litigation. But because masking and filtering occur inside the DVD player and do not result in any actual copying of anything, ClearPlay would seem to be in a better position to avoid an infringement claim than a company that sells edited copies. . . . the Family Entertainment and Copyright Act makes that intuition explicitly a part of copyright law.

Kramarsky suggests that while the copyright issues are a "close question" -- especially considering the new legislation -- the trademark dilution claims by the studios against the companies that sell repackaged, edited films aren't.

Monday, May 23, 2005

Public Domain Enhancement Act

Rep. Zoe Lofgren (D-CA) introduced the Public Domain Enhancement Act in the 109th Congress as H.R. 2048. The bill is intended to allow abandoned copyrighted works to enter the public domain after 50 years.

The bill would let copyright owners pay a $1 maintenance fee to maintain copyright protection of a work beyond 50 years of the date of publication. It would add section 306 to the Copyright Act:
(a) Fee- The Register of Copyrights shall charge a fee of $1 for maintaining in force the copyright in any published United States work. The fee shall be due 50 years after the date of first publication or on December 31, 2006, whichever occurs later, and every 10 years thereafter until the end of the copyright term. Unless payment of the applicable maintenance fee is received in the Copyright Office on or before the date the fee is due or within a grace period of 6 months thereafter, the copyright shall expire as of the end of that grace period.


This bill was first introduced in the 108th Congress, as H.R. 2601 in 2003 and "didn't go anywhere."

Monday, May 16, 2005

Its back: Anti-fee diversion officially back in Congress

Senator Norm Colemen officially introduced the COMPETE Act (S. 1020) last week, putting Patent and Trademark Office fee diversion back on the agenda.

The Act is not truly a patent reform bill, but the fee diversion issue (and possibly this bill specifically) will likely be a part of the reform debate in the future.

See this post on Promote the Progress for more information on the COMPETE Act and its relationship to the patent reform efforts currently underway.

Thursday, May 12, 2005

Copyight Office RSS Feeds

The U.S. Copyright Office now offers RSS News Feeds for the latest copyright office news, copyright-related Federal Register notices and pending litigation.

Wednesday, May 11, 2005

Predictions on the what and when of the coming patent reform bill

I'm playing the fool's game of predicting Congressional behavior on the issue of patent reform. See this PTP post for my predictions on what will be included in the coming bill and when I think it will be introduced. I reserve the right to be completely off-base on each and every one of my predictions.

Friday, May 06, 2005

FCC Has No Authority to Mandate "Broadcast Flag": DC Circuit

Big news. Big decision. Analysis to come -- but here's the link to Ernest Miller's coverage (hat tip to Instapundit): Victory in Broadcast Flag Case! FCC Has No Authority Says Court. Go to his article. Here's the heart of the DC Circuit decision:
In this case, all relevant materials concerning the FCC’s jurisdiction – including the words of the Communications Act of 1934, its legislative history, subsequent legislation, relevant case law, and Commission practice – confirm that the FCC has no authority to regulate consumer electronic devices that can be used for receipt of wire or radio communication when those devices are not engaged in the process of radio or wire transmission.

Wednesday, May 04, 2005

Change of Heart on Grokster

David Post at the Volokh Conspiracy predicted a few months ago that the Supreme Court would side with the entertainment industry in Grokster.

Now, for "some pretty gnarly procedural reasons," Post has a change of heart.