Opponents of IPPA Urge Delay Until 109th
Congress |
11/16. A collection of groups wrote a letter to
Sen. Orrin Hatch (R-UT) and the other
Senators urging them not to pass the bill titled "Intellectual Property
Protection Act", or IPPA, in the remaining days of the 108th Congress.
On October 9, 2004, the Senate Judiciary
Committee approved a package of copyright bills. This composite bill is
titled the "Intellectual Property Protection Act of 2004". See,
text of bill
[44 pages in PDF], and
text of
bill, in HTML, with hyperlinked table of contents, and U.S. Code hyperlinks.
Much of the content of this bill has also been passed by the House. See,
story
titled "Senate Judiciary Committee Approves Large Collection of Copyright Bills"
in TLJ Daily E-Mail
Alert No. 994, October 11, 2004.
This bill is numbered HR 2391. However, HR 2391 EH, which has been approved
by the House, is a patent bill. The Senate Judiciary Commitee made the content
of HR 2391 EH a part of the IPPA.
The signatories of the letter include the
Consumer Electronics Association (CEA), the
Digital Future Coalition (DFC), and
Public Knowledge.
The other signatories are the American Association of Law Libraries,
American Conservative Union (ACU),
American Library Association (ALA), American
Research Libraries, Computer & Communications
Industry Association (CCIA), Computer Professionals for Social Responsibility,
Electronic Frontier Foundation (EFF), and Free Press.
The signatories, and their members, tend to support limited intellectual
property rights regimes, and weak intellectual property rights protections. The
IPPA is supported by groups that represent copyright industries, and especially,
the music, movie and interactive game industries.
The signatories of this letter wrote that they have "grave concerns about
several titles" of the IPPA. They added that "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."
The letter does not, however, identify any of the sections or titles of the
IPPA that the signatories of the letter find objectionable.
They conclude that "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."
In addition, representatives of many of these groups held a press conference
on Friday, November 12, 2004, in which they articulated the nature of their
opposition to the IPPA with more specificity.
Consumer Education. Will Rodger of the CCIA stated that the IPPA is
"part of a basic pattern of pushing back fair use" and "freedom to innovate
through all society".
He also said that "one of the most chilling things is the copyright education
program".
§ 205 of the IPPA creates a public education program at the DOJ, to "educate
the general public concerning the value of copyrighted works and the effects of
the theft of such works on those who create them".
Civil Actions by the DOJ.
Stacie Rumenap of
the ACU stated that "the biggest problem we have with 2391 is the PIRATE Act".
Title III of the IPPA is the "Protecting Intellectual Rights Against Theft
and Expropriation Act of 2004", or "PIRATE Act". One of its provisions would
allow the Department of Justice (DOJ), which
can already bring criminal actions, to bring civil actions based upon the same
conduct.
§
302 would authorize the DOJ to bring civil actions for copyright
infringement for conduct that already constitutes criminal copyright
infringement under 17
U.S.C. § 506. This would accomplish two things. It would make it easier to
prevail, because, among other things, the civil action would have a lower burden
of proof. It would also provide a less punitive action for youthful P2P music
pirates.
"It is plain wrong to make the Department of Justice Hollywood's law firm",
said Rumenap. It "expands the role of government".
She also read the text of an ad that is being placed by the ACU that builds
upon its conservative members' longstanding dislike for the movie industry. It
states that "Right Now, Hollywood is trying to ram this flawed bill -- a handout
for Tinsel Town fat cats -- through Congress without hearings or debate."
She also explained that the ACU's analysis of the Inducing Infringement of
Copyrights Act is similar to their analysis of some gun control proposals. That
is, she reasoned that just as it is criminals rather than guns that commit
crimes, it is infringers rather than technologies that pirate music and movies.
She said that in both arenas, the government should regulate behavior, not
technologies.
Public Knowledge's Objections. Gigi Sohn of Public Knowledge, which
hosted the press conference, identified several provisions of the IPPA. First,
the bill includes, as
Title II, the "Piracy Deterrence and Education Act of 2004", which
is a revised version of HR 4077 EH, which includes the "Family Movie
Act". The House has approved HR 4077 EH as a stand alone bill. She argued that
this part of the bill "drastically lowers the standards for what constitutes a
criminal copyright violation. The standards are far too vague and could include as targets
for prosecution material passively stored on computers or shared on networks."
Although, she and others participants at the press conference expressed
support for the part of HR 4077 EH and the IPPA that is known as the "Family
Movie Act".
§ 212
of the IPPA was written with the ClearPlay technology in mind. It adds a new
¶ 11 to
17 U.S.C. § 110 (which provides exceptions to the exclusive rights of
copyright). It provides that certain DVD filtering technology is not a violation
of copyright.
Second, Sohn argued, as did many other participants at the press conference,
that the IPPA's provision giving the DOJ authority to bring civil actions is
inappropriate.
Third, she criticized S 1932 and the ART Act. She said that "The problem
we have here is that fair use protections under traditional copyright law would
be eliminated."
§
208 of the IPPA criminalizes using camcorders to copy movies in motion
picture exhibition facilities, such as movie theatres. This is aimed at those
who take camcorders into movie theatres and surreptitiously copy movies, thereby
enabling pirates to obtain and market copies of movies as soon as they are shown
in theatres. This language is in HR 4077 EH, which has passed the House. It is
also in § 3 of
S 1932, the "Artists' Rights and Theft Prevention Act of 2004", or ART Act,
which was approved by the Senate on June 25, 2004.
Fourth, she argued that the "Family Movie Act" should also allow
consumers to skip over ads.
Gary Shapiro of the CEA discussed the legislative process. He said that "our
strategy is clearly going to be focusing on the Senate".
He also said that while "Sen. Hatch has been very favorable to the content
community ... Sen. Specter's record has been far more balanced".
Sarah Deutsch of Verizon also participated in the press conference.
Several participants also criticized the inducement bill, which is not a part
of the IPPA. Rodger of the CCIA also criticized legislative proposals to provide statutory
protections for collections of data. None of these are a part of the IPPA.
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Summary of Briefs in MGM v.
Grokster |
11/16. On August 19, 2004 the U.S.
Court of Appeals (9thCir) issued its
opinion [26 pages in PDF] in MGM v. Grokster, affirming the
District Court holding that Grokster's and Streamcast's peer to peer (P2P) file
copying networks do not contributorily or vicariously infringe the copyrights of
the holders of music and movie copyrights. See
story
titled "9th Circuit Holds No Vicarious Infringement in Grokster Case" in
TLJ Daily E-Mail
Alert No. 963, August 20, 2004.
The petitioners include Metro Goldwyn Mayer Studios Inc., other
movie studios, record companies, and music publishers and songwriters. The
respondents are Grokster, Ltd. and StreamCast Networks, Inc. The 9th Circuit's
opinion is reported at 380 F.3d 1154. The Supreme Court case number is 04-480.
Petition for Writ of Certiorari. On October 8, 2004 the petitioners filed their
petition
for writ of certiorari [46 pages in PDF]. See also, story
titled "Movie and Music Industry Entities File Cert Petition in MGM v. Grokster"
in TLJ Daily E-Mail
Alert No. 994, October 11, 2004.
The petitioners argue that "This is one of the most important copyright cases ever to reach
this Court. Resolution of the question presented here will largely determine the
value, indeed the very significance, of copyright in the digital era."
They argue that "The Ninth Circuit's refusal to hold Grokster and StreamCast
accountable under these circumstances is a radical departure from principles of secondary
liability recognized ``in virtually all areas of the law,´´ including copyright."
(Quoting from Sony Corp.
of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).
They continue that "The Ninth Circuit read Sony-Betamax
not as endorsing but as rejecting those established principles, and as instead imposing
``limitations´´ and ``higher standards´´ for contributory infringement that
foreclose liability here."
The petitioners argue that there is a conflict between the Ninth Circuit and the
U.S. Court of Appeals (7thCir),
based upon its
opinion [23 pages in PDF] in In Re Aimster Copyright Litigation, 334
F.3d 643. On June 30, 2003, the 7th Circuit issued its opinion affirming the
District Court's preliminary injunction affecting the Aimster (aka Madster) file
copying system. See, story titled "7th Circuit Affirms Preliminary Injunction in
Aimster Case" in
TLJ Daily E-Mail Alert No. 691, July 1, 2003.
The petitioners argue that "Review is urgently needed not only to
resolve the conflict between the Ninth and Seventh Circuits, but more importantly to
clarify the standards for secondary liability applicable to Internet-based services
that facilitate copyright infringement. The infringement Grokster and StreamCast foster
is inflicting catastrophic, multibillion-dollar harm on petitioners that cannot be
redressed through lawsuits against the millions of direct infringers using those
services. Left undisturbed, the Ninth Circuit’s decision will effectively insulate
Grokster and StreamCast from suit nationwide, leaving these harms unremedied."
They conclude that "the Ninth Circuit’s decision threatens the very
foundations of our copyright system in the digital era. The ease with which
copyrighted works in digital form can be unlawfully copied and distributed
millions of times over on the Internet makes it especially important that
traditional principles of secondary copyright liability apply to enterprises
that, like respondents, brazenly encourage and profit from infringement. Unless
respondents and those like them can be held accountable, copyright will soon
mean nothing on the Internet, and the incentives on which our copyright system
rests will be imperiled."
Respondents' Opposition Brief. On November 8, 2004, the respondents filed their
brief [54 pages in PDF] in opposition. It was prepared by
Mark Lemley (Keker
& Van Nest, attorney for Grokster) and Cindy Cohn (for Streamcast).
The respondents argue that "Congress is the body the Constitution charges with
determining what is ``just and economically rational,´´ Pet. 12, in striking the
balance between the interests of copyright holders and technology innovators.
Congress, moreover, is at this moment considering the very question Petitioners
pose to this Court -- whether and how copyright law should be altered to address
the challenges and opportunities created by new internet technologies, including
peer-to-peer (``P2P´´) file sharing. Congress’ judgment will be informed by the
essential facts that Petitioners ask this Court to brush aside -- that the
technology in question has substantial noninfringing uses, and that the prospect
of massive and unpredictable liability for innovators under Petitioners’ theory
would cast a pall over the nation’s technology sector.
They continue that the "Petitioners ask this Court to preempt the
legislative process and substitute judicial policy-making: ``A court must assess a
system’s actual and probable potential infringing and noninfringing uses, and then must
balance the costs and benefits to accommodate the interests of copyright holders in
preventing infringement while protecting the right of the public to use products
for noninfringing uses.´´"
But, they argue, the Supreme Court rejected this invitation in the Sony
case. They wrote that the Sony case announced "a rule of deference to
Congress that has served copyright owners, innovators and the public well for
twenty years. In turn, Congress has repeatedly amended the Copyright Act to
address new technologies and to craft balanced, nuanced statutory solutions to
accommodate the competing interests of these two critical sectors of the
American economy, as well as ``society’s . . . interest in the free flow of
ideas, information and commerce.´´"
The Senate Judiciary Committee has considered, but not approved,
S 2560,
the "Inducing Infringement of Copyrights Act of 2004", a bill that responds
to the 9th Circuit's holding in MGM v. Grokster.
The respondents also argue that the Appeals Court correctly decided the
case, and correctly applied the Sony case.
Amicus Briefs in Support of Granting Certiorari. The Supreme Court has
also received numerous amicus briefs in support of granting certiorari.
See for example,
amicus
curiae brief [12 pages in PDF] of the
Progress and Freedom Foundation (PFF), dated November 8, 2004. See also,
story titled "PFF Urges Supreme Court to Grant Certiorari in MGM v. Grokster" in
TLJ Daily E-Mail Alert No.1,014, November 9, 2004.
Also, 41 states file an
amicus curiae
brief [34 pages in PDF] that also focuses on P2P pormography. It states that
P2P networks "are increasingly becoming havens for non-copyright-related
criminal activity. Of particular concern to the Amici is the widespread use of
P2P technology to disseminate pormography, particularly unlawful child
pormography, and the deliberate choice of some P2P networks to disable control
devices that might be effective in tracking and prosecuting this predatory
practice."
The states' brief adds that "As part of an ongoing effort to keep pace with
emerging technologies that are being used to commit, facilitate, and conceal
Internet crimes against children, federal, state, and local law enforcement
officials have joined forces as part of a nationwide initiative to combat the
large volume of child pormography being distributed through P2P networks."
The brief also argues that states are harmed by the illegal copyright
infringement that takes place on P2P systems by the loss of jobs, loss of sales,
and loss of state and local tax revenues.
There is also the
amicus curiae brief [14 pages in PDF] of the
American Intellectual Property Law Association (AIPLA), dated November 8,
2004. It is titled "in support of neither party". However, it urges the
Supreme Court to grant certiorari. It further argues that there is a split
between the Ninth Circuit and the Seventh Circuit, and that the Sony standard is
ambiguous.
It states that the Ninth Circuit in the MGM v. Grokster reads the
Sony case to require that the device be capable of substantial noninfrining uses.
It states that the Seventh Circuit in the Aimster case held that for a product
to avoid contributory liability under the Sony test, it must be more than merely
capable of substantial noninfringing uses. There must be evidence of actual noninfringing
uses.
It states that the split caused by the Grokster and Aimster
cases "plagues important sectors of the economy with confusion and uncertainty."
It further states that "Copyright holders need practical
protection from rampant infringement of their works, and software and equipment
suppliers need predictable boundaries for the marketing of lawful products."
However, it does not offer the Supreme Court an argument as to how it should
resolve the ambiguity and provide certainty.
See also, amicus
curiae brief [9 pages in PDF] of the Recording Artists Coalition (RAC) and of various
individual rock and country music recording artists, dated November 8, 2004, and
prepared by Thomas Corcoran, Jr. (Berliner Corcoran & Rowe).
And see, amicus
curiae brief [26 pages in PDF] of various music industry associations, dated
November 8, 2004, and prepared by Jon Baumgarten (Proskauer Rose) and Joel Katz
(Greenberg Traurig). The amici who joined in this brief are the National Academy
of Recording Arts and Sciences (NARASA), American Federation of Musicians of the
United States and Canada, American Federation of Television and Radio Artists,
The Country Music Association, Inc., The Gospel Music Association, The Hip-Hop
Summit Action Network, Jazz Alliance International, Inc., and The Rhythm & Blues
Foundation.
Other briefs in support of granting certiorari were filed on November 8,
2004.
Briefs in Opposition to Granting Certiorari. See,
amicus curiae brief [32 pages in PDF] of the Computer and Communications
Industry Association (CCIA) and Internet Archive, dated November 8, 2004. It was
prepared by Peter Jaszi (American University) and Laura Quilter (UC Berkeley).
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Washington Tech Calendar
New items are highlighted in red. |
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Wednesday, November 17 |
The House will meet at 10:00 AM. The House may consider
HR 1417,
the "Copyright Royalty and Distribution Reform Act of 2004", under
suspension of the rules. The Senate approved this bill on October 6, 2004. See, story
titled "Senate Approves Copyright Royalty and Distribution Reform Act" in
TLJ Daily E-Mail
Alert No. 992, October 7, 2004. See,
Republican Whip
Notice.
12:00 NOON. The National Emergency Number
Association (NENA) will host a press conference regarding its
Next
Generation E-911 [PDF] initiative. For more information, contact Michelle
Jones at 703 812-4600. Location: Lisagor Room, National
Press Club, 529 14th St. NW, 13th Floor.
12:15 PM. The Federal Communications Bar
Association's (FCBA) Cable Practice Committee will host a brown bag lunch. Jon
Cody, Legal Advisor to FCC Chairman
Michael Powell, will speak. For
more information, contact
Catherine.Bohigian@fcc.gov. Location:
Mintz Levin, 701 Pennsylvania Ave., NW.
1:30 PM. House and Senate conferees will hold a closed meeting
on HR 4548,
a bill to authorize appropriations for FY 2005 for intelligence related
activities. Location: Room S-407, Capitol Building.
2:30 PM. Outgoing Attorney General
John Ashcroft will
speak at the Executive Office of U.S. Attorneys (EOUSA) Director's Awards Ceremony.
Location: International Trade Center Amphitheater, Ronald Reagan Building, 1300
Pennsylvania Ave., NW.
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Thursday, November 18 |
The House will meet at 10:00 AM. The House may consider
HR 1417,
the "Copyright Royalty and Distribution Reform Act of 2004", under
suspension of the rules. The Senate approved this bill on October 6, 2004. See, story
titled "Senate Approves Copyright Royalty and Distribution Reform Act" in
TLJ Daily E-Mail
Alert No. 992, October 7, 2004. See,
Republican Whip
Notice.
9:00 AM - 3:00 PM. The Department of Commerce's (DOC)
Bureau of Industry and Security (BIS) will host an
event titled "U.S. India High Technology Cooperation Group Dialogue on
Defense Technology, Data Privacy, and Export Licensing". See,
invitation [PDF],
registration form, and
agenda. Location: DOC 1401 Constitution Ave., NW.
9:00 AM - 5:30 PM. Day one of a two day conference hosted
by the American Bar Association's (ABA) Section of Antitrust Law titled "Fall
Forum". See, event
web site. Location. National Press Club, 529 14th
St. NW, 13th Floor.
9:30 AM. The
Senate Commerce Committee will hold a hearing on pending nominations. Press contact:
David Wonnenberg at 202 224-2670 or
david_wonnenberg @commerce.senate.gov. Location: Room 253, Russell Building.
9:30 AM. The U.S. Court of Appeals
(DCCir) will hear oral argument in USTA v. FCC, No. 03-1414. This is
petition for review of a final order of the FCC pertaining to number portability.
See, brief [47 pages
in PDF] of the FCC. Judges Sentelle, Randolph and Garland will preside. Location:
Courtroom 20, Prettyman Courthouse, 333 Constitution Ave., NW.
9:30 AM. The U.S. Court of Appeals
(DCCir) will hear oral argument in Ctrl TX Tele Coop v. FCC, No.
03-1405. Judges Sentelle, Randolph and Garland will preside. Location: Courtroom 20,
Prettyman Courthouse, 333 Constitution Ave., NW.
9:30 AM. The U.S. Court of Appeals
(DCCir) will hear oral argument in Covad Communications Co. v. Bell Atlantic
Corp., No. 02-7057. Judges Ginsburg, Rogers and Tatel will preside. Location:
Prettyman Courthouse, 333 Constitution Ave., NW.
11:00 AM. The Federal Communications Bar
Association's (FCBA) Legislation Committee will host an event. The speaker will
be Gregg Rothschild (Democratic Counsel, House Commerce Committee). He will
speak on legislative issues. RSVP to Helene Marshall at
hmarshall@wrf.com. Location:
Wiley Rein & Fielding, 1776 K St., NW.
CANCELLED. The Federal
Communications Bar Association's (FCBA) will host a breakfast. The speaker will be
Jeff Carlisle, Chief of the Federal Communications Commission's (FCC)
Wireline Competition Bureau.
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Friday, November 19 |
The House may meet at 10:00 AM. See,
Republican Whip
Notice.
9:00 AM - 4:00 PM. The
Federal Communications Commission's (FCC) Consumer
Advisory Committee will meet. The agenda includes receiving a
report and recommendations from its broadband working group with regard
to digital television and the FCC's DTV outreach campaign, receiving a report
and recommendations from its consumer complaints, education and outreach
working group, receiving a report and recommendations from its competition
policy working group regarding consumer issues in competition policy, and
receiving a report and recommendations from its homeland security working
group regarding emergency communications. See, FCC
notice [PDF] and
notice in the Federal Register, October 29, 2004, Vol. 69, No. 209, at
Pages 63152 - 63153. Location: FCC, 445 12th St. SW, Room TW-C305
(Commission Meeting Room).
9:30 -11:00 PM. The
Progressive Policy Institute (PPI) will host
a program titled "The Japanese Broadband Miracle: Are There Lessons for the
United States?". The speakers will be Yasu Taniwaki (Economic Counselor and
Telecommunications Attaché, Embassy of Japan) and Rob Atkinson (Director of the PPI's
Technology and New Economy Project). A light breakfast will be served. RSVP to 202
547-0001 or PPIEvents@dlcppi.org. Location:
600 Pennsylvania Ave., SE, Suite 400.
10:00 AM - 12:00 NOON. The Department of
State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to
advise the DOS on policy and technical issues with respect to the
International Telecommunication Union
(ITU), and in particular, the December 15-17, 2004 meeting of ITU's
Telecommunications Development Advisory
Group (TDAG) in Geneva, Switzerland. See,
notice in the Federal Register, November 5, 2004, Vol. 69, No. 214, at Page
64620. Location: DOS, Room 2533A.
TIME? Jonathan Zittrain
(Harvard Law School) will give a lecture titled "Free Software and the Future of
the Internet" as part of the
Georgetown Law
Colloquium on Intellectual Property & Technology Law. For more information,
contact Julie Cohen at 202 662-9871 or
jec@law.georgetown.edu, or Jay Thomas at
202 662-9925. Location:
Georgetown University Law Center, 600 New
Jersey Ave., NW.
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Monday, November 22 |
9:30 AM. The U.S. Court of Appeals
(DCCir) will hear oral argument in Minnesota Christian Broadcasters, Inc v.
FCC, No. 03-1439. This case pertains to an auction for a construction permit for
a new commercial FM station. Judges Edwards, Sentelle and Garland will preside. See,
brief [26 pages
in PDF] filed by the FCC on July 27, 2004. Location: Prettyman Courthouse, 333
Constitution Ave., NW.
Deadline to submit reply comments to the
Federal Communications Commission's (FCC)
Office of Engineering and Technology (OET)
in response to Geophysical Survey Systems, Inc.'s (GSSI) request for a waiver of Part
15 of the FCC's rules to permit the higher power operation of ultra-wideband (UWB)
non-contact ground penetrating radars (GPRs). See, FCC
notice [2 pages in PDF]. This is ET Docket No. 04-374.
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Tuesday, November 23 |
8:30 AM - The National Science
Foundation's (NSF) President's Committee on the National Medal of Science will
hold a meeting that is closed to the public. See,
notice in the Federal Register, November 5, 2004, Vol. 69, No. 214, at
Page 64596. Location: Room 1235, NSF, 4201 Wilson Blvd., Arlington, VA.
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People and Appointments |
11/16. President Bush announced his intent to nominate Condi Rice, his
current National Security Advisor, to be Secretary of State. If confirmed by the
Senate, she will replace Colin Powell. President Bush announced his intent to
make Steve Hadley his National Security Advisor. See,
transcript of White House event.
11/16. The Senate Judiciary Committee
held a hearing on the nominations of Thomas Griffith (to be a Judge of the
U.S. Court of Appeals for the District of
Columbia), Paul Crotty (Southern District of New York), and Michael
Seabright (District of Hawaii). Sen. Orrin Hatch
(R-UT), the Chairman of the Committee, praised Griffith in his
prepared statement. Sen. Patrick Leahy
(D-VT), the ranking Democrat, alleged that he practiced law without a license,
and should not be confirmed by this Congress. See,
statement.
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