9/11. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet and Intellectual Property (SCIIP) held a hearing on HR 6845 [LOC | WW], the "Fair Copyright in Research Works Act".

Rep. John Conyers (D-MI), Rep. Darrell Issa (R-CA), Rep. Robert Wexler (D-FL), and Rep. Tom Feeney (R-FL) introduced this bill on September 9, 2008. All are members of the HJC. Rep. Conyers is the Chairman.

The National Institutes of Health (NIH), which funds research, has proposed that recipients of NIH research grants renounce copyright in their peer reviewed article manuscripts. The NIH proposes to provide open access to these articles in NIH internet accessible databases. See, NIH release of January 2008.

This bill would benefit authors and commercial publishers of articles of on scientific, technical, and medical topics who object to this proposal. This bill would limit the ability of the NIH and other government agencies to impose such limitations on copyright.

Hearing Testimony. Elias Zerhouni, Director of the NIH, wrote in his prepared testimony that the NIH policy "has two basic premises: 1) the integration and accessibility of biomedical research will speed discoveries, resulting in the prevention of death and disability; and 2) the public has a right to have full access, without charge, to research findings supported by taxpayer dollars, after a reasonable period of embargo."

Ralph Oman, a law professor at George Washington University, wrote in prepared testimony that "the NIH proposal seems short-sighted, counterproductive, damaging to U.S. creativity, which this subcommittee fosters and safeguards, and contrary to the NIH’s own interests in encouraging broad public dissemination of peer-reviewed learned articles."

He continued that "Congress should require the NIH to demonstrate convincingly that their free access policy will not jeopardize the existence of the STM publishers and the indispensable role they play in vetting and selecting peer-reviewed articles. Absent that proof, the NIH should rethink their current policy of involuntary assignment."

Martin Frank, Executive Director of the American Physiological Society, also testified in support of the bill. He wrote in his prepared testimony [PDF] that "By protecting copyright, this bill preserves the current incentives for the continued investment in the peer review process that is essential for the quality and integrity of scientific research. It does so by ensuring that the federal government does not diminish copyright protections for scientific journal articles in which private sector publishers have made a significant value-added contribution."

Heather Joseph testified on behalf of the Association of Research Libraries. She wrote in her prepared testimony that this bill would have a negative impact "on the advancement of scientific research and on the availability of vital health care information".

Bill Summary. This bill would amend 18 U.S.C. § 201, which pertains to ownership of copyright. The bill would add a new subsection 201(f) titled "Limitations upon Federal Government".

First, the bill provides, in a subparagraph (A), that "No Federal agency may, in connection with a funding agreement ... impose or cause the imposition of any term or condition that--
  (i) requires the transfer or license to or for a Federal agency of--
    (I) any right provided under paragraph (3), (4) or (5) of section 106 in an extrinsic work; or
    (II) any right provided under paragraph (1) or (2) of section 106 in an extrinsic work, to the extent that, solely for purposes of this subsection, such right involves the availability to the public of that work; or
  (ii) requires the absence or abandonment of any right described in subclause (I) or (II) of clause (i) in an extrinsic work".

17 U.S.C. § 106 provides the exclusive rights of copyright. (1) is the reproduction right. (2) is the right to prepare derivative works. (3) is the distribution right. (4) is the performance right. (5) is the display right. (6), which is not affected by this bill, is the digital audio transmission right; it only applies to audio recordings.

The bill also provides that "No Federal agency may, in connection with a funding agreement ... impose or cause the imposition of, as a condition of a funding agreement, the waiver of, or assent to, any prohibition under subparagraph (A)".

The bill also provides that "No Federal agency may, in connection with a funding agreement ... assert any rights under this title in material developed under any funding agreement that restrain or limit the acquisition or exercise of rights under this title in an extrinsic work."

9/11. The Senate Judiciary Committee (SJC) amended and approved S 3325 [LOC | WW], the "Enforcement of Intellectual Property Rights Act".

Sen. Patrick Leahy (D-VT), Sen. Arlen Specter (R-PA), Sen. Evan Bayh (D-IN), and Sen. George Voinovich (R-OH) introduced this bill on July 24, 2008. Sen. Leahy and Sen. Specter are the Chairman and ranking Republican on the SJC.

On September 11, the SJC approved a manager's amendment [15 pages in PDF] offered by Sen. Leahy, an amendment [1 page in PDF] offered by Sen. Charles Grassley (R-IA), and a second amendment [2 pages in PDF] offered by Sen. Grassley. See also, S 3325 as introduced [46 pages in PDF] for page numbers referred to by amendments.

Sen. Leahy stated that "We all know that intellectual property makes up some of the most valuable, and most vulnerable, property we have. We need to do more to protect it from theft and abuse if we hope to continue being a world leader in innovation. I am pleased the Committee has reported this legislation, which will provide the tools, resources, and structure needed for law enforcement at all levels to protect our intellectual property and to prosecute those who steal it."

This bill deals primarily with private remedies under, and government enforcement of, copyright and trademark laws. It contains sections that are similar to sections in the PRO IP Act, which the House passed in May. Neither the Senate, nor the SJC, have taken any action on that House bill.

On May 7, 2008, the House approved HR 4279 [LOC | WW], the "Prioritizing Resources and Organization for Intellectual Property Act of 2007" or "PRO IP Act", by a vote of 410-11. See, Roll Call No. 300. See also, story titled "House Passes PRO IP Act" in TLJ Daily E-Mail Alert No. 1,763, May 8, 2008.

See also, story titled "Representatives Introduce PRO IP Act" in TLJ Daily E-Mail Alert No. 1,683, December 5, 2008; story titled "House Subcommittee Amends PRO-IP Act" in TLJ Daily E-Mail Alert No. 1,727, March 05, 2008; and, story titled "House Judiciary Committee Approves PRO IP Act" in TLJ Daily E-Mail Alert No. 1,758, May 1, 2008.

S 3325 (at Section 101) would enable the Department of Justice (DOJ) to bring civil actions for copyright infringement. Currently, the government can only bring criminal actions, pursuant to 17 U.S.C. § 506, or decline to take action.

This bill would add a new §506a. This option would both lower the burden of proof for the government, and reduce the range of penalties for, and diminution of reputation to, the defendant infringer. The House PRO IP Act contains a similar provision.

S 3325 (at Section 201), as amended, contains a copyright registration harmless error exception. That is, it would amend 17 U.S.C. § 411 to provide that "A certificate of registration satisfies the requirements of this section and section 412, regardless of whether the certificate contains any inaccurate information, unless -- (A) the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and (B) the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration." The House PRO IP Act contains a similar provision.

S 3325 (at Section 202) would amend 17 U.S.C. § 503, regarding "Remedies for infringement: Impounding and disposition of infringing articles" to allow a court to order the impounding of "records documenting the manufacture, sale, or receipt of things involved" in a violation. Currently, only infringing items, and things used to make infringing items can be impounded.

The manager's amendment contains language to protect individual privacy. It adds that "For impoundments of records ... the court shall enter an appropriate protective order with respect to discovery and use of any records or information that has been impounded. The protective order shall provide for appropriate procedures to ensure that confidential, private, proprietary, or privileged information contained in such records is not improperly disclosed or used."

Sen. Leahy explained that "we heard very recently a concern about the privacy interests of innocent third parties if, for example, law enforcement were to seize computer servers. To make doubly sure that such interests are protected, we have added mandatory, court-issued protective orders under any circumstances involving records to the protections already employed through the warrant process."

S 3325 (at Section 203) would amend the Trademark Act to allow for the award of treble profits or damages for use of a counterfeit mark or designation.

S 3325 (at Section 204) would amend the Trademark Act, at 15 U.S.C. § 1117, to increase statutory damages in counterfeiting cases.

S 3325 (at Section 205) would amend the Trademark Act, at 15 U.S.C. § 1124, which currently pertains to "Importation of goods bearing infringing marks or names forbidden", to also cover transshipment and exportation.

The bill would create a new Intellectual Property Enforcement Coordinator (IPEC) in the executive branch. The IPEC would be appointed by the President, and confirmed by the Senate.

Sen. Grassley's first amendment adds the Department of Agriculture to a list of federal agencies with membership on an interagency intellectual property enforcement advisory committee that would be created by the bill.

His second amendment pertains to the transition from current NIPLECC to the new IPEC.

The vote on approval of the bill as amended was 14-4. Four SJC members voted against the bill: Sen. Jon Kyl (R-AZ), Sen. Jeff Sessions (R-AL), Sen. Sam Brownback (R-KS), and Sen. Coburn (R-OK). Sen. Joe Biden (D-DE) was not present.

Patrick Ross, head of the Copyright Alliance, praised the bill in a release. He wrote that "While today’s action is great progress for creators everywhere, time is running short. It is imperative the full Senate acts quickly to approve this important piece of legislation, and that the House pass the same bill. With our economy at its lowest point in years, we need the economic stimulus of anti-piracy actions, and we need copyright enforcement legislation on the President’s desk this year."

On September 10, 2008, a collection of interest groups that traditionally support a weakening of intellectual property rights, remedies and government enforcement wrote a letter criticizing the bill.

With respect to civil enforcement actions, the letter states that "Section 101 would be an enormous gift of federal resources to large copyright owners with no demonstration that the copyright owners are having difficulties enforcing their own rights. For example, the recording industry has threatened or filed over 30,000 lawsuits against individual consumers. Movie and television producers, software publishers, music publishers, and print publishers all have their own enforcement programs. There is absolutely no reason for the federal government to assume this private enforcement role."

The groups signing this letter include the Public Knowledge (PK), Electronic Frontier Foundation (EFF), the American Library Association (ALA), and others.

Dan Glickman, head of the Motion Picture Association of America, praised the bill in a release.

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The House will not meet.

The Senate will meet at 9:30 AM. It resume consideration of S 3001 [LOC | WW], the Department of Defense authorization bill.

12:30 - 2:00 PM. The Federal Communications Bar Association's (FCBA) Engineering and Technical Practice Committee will host a brown bag lunch for organizational purposes. For more information, contact Laura Stefani at lstefani at g2w2 dot com. Location: Goldberg Godles, 1229 19th St., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding telecommunications relay services and speech to speech services for individuals with hearing and speech disabilities, and speech to speech services and internet protocol speech to speech telecommunications relay service. The FCC adopted this NPRM on June 11, 2008, and released the text [19 pages in PDF] on June 24, 2008. It is FCC 08-149 in CG Docket Nos. 03-123 and 08-15. See, notice in the Federal Register, August 13, 2008, Vol. 73, No. 157, at Pages 47120-47122.

9:00 AM - 12:00 NOON. The Information Technology Association of America (ITAA) will host an event titled "A Forum on our National Cyber Security Posture". Michael Chertoff (Secretary of Homeland Security) will speak at 9:00 AM. The price to attend ranges from $50-$125. See, notice. Location: Ronald Reagan Building and International Trade Center, 1300 Pennsylvania Ave., NW.

12:00 NOON - 1:30 PM. The Federal Communications Bar Association (FCBA) will host a brown bag lunch titled "Successfully Solving the Press/Policy Equation". The speakers will be Janice Obuchowski (Freedom Technologies), Blair Levin (Stifel Nicolaus), Michael Balmoris (AT&T), Mary Greczyn (Freedom Technologies), Lynn Stanton (TR Daily), John Dunbar (Associated Press), Jonathan Blake (Covington & Burling), Howard Buskirk (Comm Daily), and William Phillips (Ryan Phillips Utrecht & MacKinnon). Location: Bingham McCutchen, 2020 K St., NW.

2:00 PM. The U.S. Court of Appeals (DCCir) will hear oral argument in C-SPAN v. FCC, App. Ct. No. 08-1045. See, FCC's brief [87 pages in PDF]. Judges Rogers, Tatel and Williams will preside. Location: 333 Constitution Ave., NW.

2:00 PM. The U.S. District Court (DC) will hold a status conference in APCC v. AT&T, D.C. No. 99-cv-0696. Location: Courtroom 14, 333 Constitution Ave., NW.

5:00 PM. Extended deadline to submit reply comments to the Copyright Office in response to its notice of proposed rulemaking regarding the scope and application of the Section 115 compulsory license to make and distribute phonorecords of a musical work by means of digital phonorecord deliveries. See, original notice in the Federal Register, July 16, 2008, Vol. 73, No. 137, at Page 40802-40813. See also, extension notice in the Federal Register, August 13, 2008, Vol. 73, No. 157, at Pages 47113-47114.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft NIST Interagency Report 7511 [47 pages in PDF] titled "Security Content Automation Protocol (SCAP) Validation Program Test Requirements".

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the CTIA's Petition for Declaratory Ruling [44 pages in PDF] regarding 47 U.S.C. § 332(c)(7)(B), ensuring timely siting review, and preemption under 47 U.S.C. § 253 of state and local ordinances that classify all wireless siting proposals as requiring a variance. This is WT Docket No. 08-165. See, August 14, 2008, Public Notice (DA 08-1913) and notice in the Federal Register, August 29, 2008, Vol. 73, No. 169, at Pages 50972-50973.

8:30 - 11:00 AM. George Mason University law school's Information Economy Project (IEP) will host an event titled "Consensus FCC Reforms and the Communications Agenda for the Next Administration". At 8:40 AM, there will be a panel titled "Improving Procedures at the Federal Communications Commission". The speakers will be former FCC officials: Peter Pitsch, Robert Pepper, Ken Robinson, Blair Levin, and Kathy Brown. At 9:45 AM, former FCC Chairmen Michael Powell and William Kennard will speak. This event is free. See, notice and agenda. For more information, contact Drew Clark at 703-993-8525 or iep dot gmu at gmail dot com. Location: National Press Club, 13th floor, 529 14th St., NW.

9:00 AM. The President's Council of Advisors on Science and Technology (PCAST) will meet. The agenda includes (1) university private sector research partnerships, (2) science and engineering education, and (3) impact of science policy on innovation. See, notice in the Federal Register, August 29, 2008, Vol. 73, No. 169, Page 50967. Location; Room 100, Keck Center of the National Academies, 500 5th St., NW.

RESCHEDULED FOR SEPTEMBER 18. 9:00 AM - 1:15 PM. The Federal Communications Commission (FCC) Public Safety and Homeland Security Bureau will host an event titled "Pandemic Preparedness: Enhancing Communications Response for Health Care and First Responders". See, notice [PDF]. Location: FCC, Commission Meeting Room.

9:30 AM. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing titled "Status of the DTV Transition: 154 Days and Counting". The HCC will webcast this hearing. Location: Room 2123, Rayburn Building.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Commerce, Trade and Consumer Protection will hold a hearing on HR 3402 [LOC | WW], the "Calling Card Consumer Protection Act". The HCC will webcast this hearing. Location: Room 2322, Rayburn Building.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Why Broadband Matters". See, notice. Location: Room 253, Russell Building.

10:00 AM. The House Judiciary Committee (HJC) will hold an hearing on the Federal Bureau of Investigation (FBI). The HJC will webcast this hearing. See, notice. Location: Room 2141, Rayburn Building.

10:00 AM. The House Homeland Security Committee's (HHSC) Subcommittee on Emergency Communications, Preparedness and Response will hold a hearing titled "Interoperability in the Next Administration: Assessing the Derailed 700 MHz D-block Public Safety Spectrum Auction". The witnesses will be Derek Poarch (Chief of the FCC's Public Safety Homeland Security Bureau), Chris Essid (DHS), David Boyd (DHS), Richard Mirgon (Association of Public-Safety Communications Organization International), John Contestabile (Public Safety Spectrum Trust), LeRoy Carlson (US Cellular), Robert LeGrande, and Charles Dowd (City of New York Police Department). The HHSC will webcast this hearing. Location: Room 311, Cannon Building.

12:00 PM. The Cato Institute will host a panel discussion on the book [Amazon] titled "New Frontiers in Free Trade: Globalization's Future and Asia's Rising Role". The speakers will be Razeen Sally (author), Carlos Primo Braga (World Bank), and Dan Griswold. See, notice and registration page. The event will be webcast by the Cato Institute. Lunch will be served after the event. Location: Cato, 1000 Massachusetts Ave., NW.

2:00 PM. The House Homeland Security Committee's (HHSC) Subcommittee on Emerging Threats, Cybersecurity, and Science and Technology will hold a hearing titled "Cybersecurity Recommendations for the Next Administration". The witnesses will be Jim Lewis (Center for Strategic and International Studies), Harry Raduege (Deloitte Center for Network Innovation), Paul Kurtz (Good Harbor Consulting), Dave Powner (GAO). The HHSC will webcast this hearing. Location: Room 311, Cannon Building.

Extended deadline to submit reply comments to the Copyright Office (CO) in response to its proposed rule changes regarding retransmission of digital television broadcast signals by cable operators pursuant to 17 U.S.C. § 111. See, notice of extension in the Federal Register, July 14, 2008, Vol. 73, No. 135, at Page 40203, and original notice in the Federal Register, June 2, 2008, Vol. 73, No. 106, at Pages 31399-31415.

9:30 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Oversight of the Federal Bureau of Investigation". The witness will be Robert Mueller, Director of the Federal Bureau of Investigation (FBI). See, notice. Location: Room 216, Hart Building.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) in its proceeding titled "In the Matter of Implementation of the NET 911 Improvement Act of 2008". It adopted this item on August 22, and announced it and released the text [34 pages in PDF] on August 25, 2008. This NPRM is FCC 08-195 in WC Docket No. 08-171. See, notice in the Federal Register, August 28, 2008, Vol. 73, No. 168, at Pages 50741-50751.

RESCHEDULED FROM SEPTEMBER 16. 9:00 AM - 1:15 PM. The Federal Communications Commission (FCC) Public Safety and Homeland Security Bureau will host an event titled "Pandemic Preparedness: Enhancing Communications Response for Health Care and First Responders". Location: FCC, Commission Meeting Room.

9:00 - 11:00 AM. The House Intelligence Committee (HIC) will hold a closed hearing titled "Cyber Security". See, notice. Location: Room H-405, Capitol Building.

9:00 AM. The U.S. District Court (DC) will hold a status conference in Broadcast Music, Inc. v. Hunam Inn, et al., D.C. No. 08-cv-0040. Location: Courtroom 8, 333 Constitution Ave., NW.

10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of an authorization for subpoenas relating to the Department of Justice's (DOJ) Office of Legal Counsel (OLC), and consideration of the nominations of Clark Waddoups (to be a Judge of the U.S. District Judge for the District of Utah), Michael Anello (U.S.D.C., Southern District of California), Mary Scriven (U.S.D.C., Middle District of Florida), Christine Arguello (U.S.D.C., District of Colorado), Philip Brimmer (U.S.D.C., District of Colorado), and Gregory Garre (DOJ Solicitor General). See, notice. The SJC will webcast this meeting. The SJC rarely follows the agendas for its executive business meetings. Location: Room 216, Hart Building.

12:00 NOON. Deadline to submit to the Office of the U.S. Trade Representative's (OUSTR) Trade Policy Staff Committee (TPSC) requests to testify at is October 2, 2008, hearing. The TPSC will hold this hearing to receive testimony to assist it in preparing its annual report to the Congress on the People's Republic of China's compliance with the commitments made in connection with its accession to the World Trade Organization (WTO). See, notice in the Federal Register, July 31, 2008, Vol. 73, No. 148, at Pages 44783-44785.

12:15 - 2:00 PM. The Federal Communications Bar Association's (FCBA) Wireless and Wireline Practice Committee will host a lunch titled "Universal Service and Intercarrier Compensation: Is Reform on the Way?" The price to attend is $15.00. See, registration page. Location: Sidley Austin, 1501 K St., NW.

1:00 PM. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will hold a hearing on HR 5793 [LOC | WW], the "Cell Tax Fairness Act of 2008". See, notice. Location: Room 2141, Rayburn Building.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding expanding the scope of services and products covered by the FCC's schools and libraries tax and subsidy program. The FCC adopted this item on July 25, 2008, and released the text [26 pages in PDF] on July 31, 2008. It is FCC 08-173 in CC Docket No. 02-6. See, notice in the Federal Register, August 19, 2008, Vol. 73, No. 161, at Pages 48352-48359.

9:30 AM - 12:30 PM. The National Telecommunications and Information Administration's (NTIA) Commerce Spectrum Management Advisory Committee will meet. See, notice in the Federal Register, September 4, 2008, Vol. 73, No. 172, at Pages 51631-51632. Location: Room 5855, Department of Commerce, 1401 Constitution Ave., NW.

10:00 AM. The Copyright Office will hold a hearing in connection with its proposed rulemaking regarding the scope and application of the Section 115 compulsory license to make and distribute phonorecords of a musical work by means of digital phonorecord deliveries. See, notice in the Federal Register, August 13, 2008, Vol. 73, No. 157, at Pages 47113-47114. Location: Copyright Hearing Room, Library of Congress, Room LM-408, 4th Floor, James Madison Building, 101 Independence Ave., SE.

Deadline to submit comments to the Department of Defense (DOS) in response to its interim rule and request for comments regarding its Defense Federal Acquisition Regulation Supplement (DFARS). This addresses, among others things, information, technology and software. See, notice in the Federal Register, July 21, 2008, Vol. 73, No. 140, at Pages 42274-42279.