Richard Epstein Criticizes HR 1201

1/5. The Institute for Policy Innovation (IPI) released a paper [2 pages in PDF] titled "Will Congress Circumvent the DMCA?". The author is Richard Epstein, a law professor at the University of Chicago law school. The paper is a criticism of the key provisions of HR 1201, the "Digital Media Consumers' Rights Act of 2005 ", sponsored by Rep. Rick Boucher (D-VA) and others.

The primary purpose of HR 1201 is to modify the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA), at 17 U.S.C. § 1201.

HR 1201 provides, in part, that "Section 1201(c) of title 17, United States Code, is amended -- (1) in paragraph (1), by inserting before the period at the end the following: `and it is not a violation of this section to circumvent a technological measure in order to obtain access to the work for purposes of making noninfringing use of the work´; and (2) by adding at the end the following new paragraph: `(5) Except in instances of direct infringement, it shall not be a violation of the Copyright Act to manufacture or distribute a hardware or software product capable of substantial noninfringing uses.´ "

Epstein criticized both of these proposals. First, he argued that the exception to circumvention would render the anti-circumvention provisions ineffective.

He wrote that "Once the first of these two provisions is in place, then someone can circumvent the device for the appropriate purpose. But unfortunately H.R. 1201 does not say one word about how the circumvention in question will be limited just to those cases. Nor does it indicate what penalties will be given to individuals who first circumvent for fair use and then proceed, as is likely to be the norm, to circumvent for all other purposes. So if equipment can be sold for good purposes, then it can be used for bad ones, and the DMCA has lost its teeth. It is not too much to say that this stealth provision, which is never referred to in the findings of the act could work a comprehensive repeal of the DMCA." (Emphasis in original.)

Second, Epstein argued that the new subsection (5) codifies Sony, and undoes Grokster. He wrote that HR 1201, with its reference to "capable of substantial noninfringing uses", codifies the opinion of the Supreme Court in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). The Court wrote in that case that the "sale of video cassette recorders (``VCR´´s) did not subject Sony to contributory copyright liability, even though Sony knew as a general matter that the machines could be used, and were being used, to infringe the plaintiffs' copyrighted works. Because video tape recorders were capable of both infringing and ``substantial noninfringing uses,´´ generic or ``constructive´´ knowledge of infringing activity was insufficient to warrant liability based on the mere retail of Sony’s products."

Epstein argued that "we should allow for some case law that contracts its scope in some future case."

He further argued that the new subsection (5) would undo the Supreme Court's opinion [55 pages in PDF] in MGM v. Grokster. See, story titled "Supreme Court Rules in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.

Epstein wrote that "Grokster was of course capable of noninfringing uses, and yet it was shut down on the purposive inducement theory. New Subsection (5) purports to say that it is no violation of the Copyright Act period to distribute hardware or software that has that power. The purposive inducement theory is a Copyright Act theory, so it looks as though the decision would give the same protection for purposive inducement that it gives for contributory infringement cases. If so, then Grokster is history." (Emphasis in original.)

For more on HR 1201, see stories titled "Reps. Boucher and Doolittle Introduce Digital Media Consumer Rights Act" and "Summary of the Digital Media Consumer Rights Act" in TLJ Daily E-Mail Alert No. 532, October 4, 2002; and story titled "Reps. Boucher and Doolittle Introduce Digital Fair Use Bill" in TLJ Daily E-Mail Alert No. 582, January 14, 2003. See also, stories titled "Chairman Barton Says Commerce Committee Will Mark Up Boucher Doolittle Bill in July", "House Commerce Committee's Primary Jurisdiction Over HR 107", and "Judiciary Committee Leaders Condemn Jurisdictional Power Grab" in TLJ Daily E-Mail Alert No. 924, June 23, 2004. See also, story titled "Reps. Boucher, Doolittle and Barton Reintroduce Digital Media Consumers' Rights Act" in TLJ Daily E-Mail Alert No. 1,111, April 8, 2005. See also, story titled "House Commerce Subcommittee Holds Hearing on Fair Use" in TLJ Daily E-Mail Alert No. 1,256, November 18, 2005.

Bush Signs DOJ Reauthorization Bill

1/5. President Bush signed HR 3402, the "Violence Against Women and Department of Justice Reauthorization Act of 2005", which is also sometimes referred to as VAWA. See, White House release.

This bill authorizes appropriations for the Department of Justice (DOJ) for fiscal years 2006 through 2009. See, §§ 1101 through 1104. For example, it authorizes, for the Antitrust Division, $144,451,000 for FY 2006. Also, it authorizes "For the costs of conversion to narrowband communications, including the cost for operation and maintenance of Land Mobile Radio legacy systems: $128,701,000."

Most of the VAWA's provisions are not technology related, and hence, are not described in this publication. However, some provisions are technology related.

DOJ Privacy Officer. § 1174 of the VAWA provides for the creation of a privacy officer position at the DOJ. It states that "The Attorney General shall designate a senior official in the Department of Justice to assume primary responsibility for privacy policy." This section goes on to enumerate several advisory and reporting responsibilities, but no powers, of this privacy officer.

The main responsibilities of this position are advisory. The bill provides that this person shall advise the Attorney General regarding "appropriate privacy protections, relating to the collection, storage, use, disclosure, and security of personally identifiable information, with respect to the Department's existing or proposed information technology and information systems" and "privacy implications of legislative and regulatory proposals affecting the Department and involving the collection, storage, use, disclosure, and security of personally identifiable information". This privacy officer is also required to prepare periodic reports to the Congress.

The Internet as a Telecommunications Device. The bill, at § 113, provides that it is a crime for any person to use internet technologies "without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person".

What may be notable about this section is how the bill accomplishes this. § 113 of the bill revises the meaning of the term "telecommunications device" to include the internet, for one subsection of 47 U.S.C. § 223.

§ 223 is the Communications Act's section titled "Obscene or harassing telephone calls in the District of Columbia or in interstate or foreign communications". § 113 of the bill is titled "Preventing Cyberstalking". § 509 of HR 3402 as introduced, as reported by the House Judiciary Committee, and as initially approved by the House, was also titled "Preventing Cyberstalking". However, this earlier language would have instead amended 18 U.S.C. § 2661A, a section of the criminal code which is titled "Interstate stalking". The Senate deleted § 509 and inserted § 113.

47 U.S.C. § 223(a)(1)(C) currently provides, in part, that "Whoever (1) in interstate or foreign communications ... (C) makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications ... shall be fined under title 18 or imprisoned not more than two years, or both."

Subsection 223(h) defines terms for the purposes of § 223. It provides at § 223(h)(1) that "The use of the term ``telecommunications device´´ in this section --- (A) shall not impose new obligations on broadcasting station licensees and cable operators covered by obscenity and indecency provisions elsewhere in this chapter; and (B) does not include an interactive computer service." That is, it does not provide a definition of "telecommunications device"; rather, it provides exceptions.

The VAWA, which the President signed into law, adds a new Subsection 223(h)(1(C), which provides that for the purposes of the above quoted Subsection 223(a)(1)(C), the term "telecommunications device" also "includes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet (as such term is defined in section 1104 of the Internet Tax Freedom Act (47 U.S.C. 151 note))." (Parentheses in original.)

The VAWA also contains the following provision: "This section and the amendment made by this section may not be construed to affect the meaning given the term `telecommunications device´ in section 223(h)(1) of the Communications Act of 1934, as in effect before the date of the enactment of this section."

The meaning and effect of § 113 are vague and unclear. At bottom, it is an amendment to a definitional section. Yet, § 223(h)(1), the section that it amends, before enactment of the VAWA, contained no definition. It contained only exceptions to an undefined term. § 113 still provides no definition. It only adds a class of activity that is included in the undefined term.

Moreover, 47 U.S.C. § 153, which provides numerous definitions for the Communications Act, contains no definition of "telecommunications device". It does, however, define the term "telecommunications" in a manner that is inconsistent with including most internet protocol based communications. Yet, § 113 provides that IP based communications are a "telecommunications device" for certain purposes.

Also, the VAWA pertains primarily to violence against women. However, the scope of § 223, as amended by § 113, extends to actions that are neither violent, nor against women. Also, while § 113 is titled "Preventing Cyberstalking", it extends 47 U.S.C. § 223(a)(1)(C) to conduct that is not in the nature of stalking.

The DOJ has prosecutorial authority under § 223. For years the DOJ has been advocating extending telecommunications laws and regulatory regimes to internet and information technologies. In the past two years the Federal Communications Commission (FCC) has demonstrated increasing enthusiasm for this process. It is not clear what use the DOJ and FCC might make of this new § 113 of the VAWA, either in the context of internet based stalking, or for other purposes.

More News

1/5. Rep. James Sensenbrenner (R-WI), the Chairman of the House Judiciary Committee, released the first two of a series of statements in support of the conference report [PDF] on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005". Sixteen sections of the 2001 PATRIOT Act are scheduled to sunset on February 3, 2006, unless extended. The first statement [2 pages in PDF] and the second statement [PDF] of Rep. Sensenbrenner both argue that the conference report contains civil liberties safeguards that prevent abuse of the powers created by Section 215 of the PATRIOT Act. Section 215 pertains to access to business records under the Foreign Intelligence Surveillance Act (FISA).

1/5. Rambus stated in a release that "the judge in the patent infringement matter with Hynix Semiconductor has denied Hynix's request to dismiss Rambus' case based on unclean hands and document spoliation following a two-week evidentiary hearing".

1/5. The Copyright Office published a notice in the Federal Register that announces that it has received from SoundExchange eleven notices of intent to audit eligible nonsubscription and new subscription services that transmit sound recordings under statutory licenses. See, Federal Register, January 5, 2006, Vol. 71, No. 3, at Pages 624 - 625.

People and Appointments

1/5. Christopher Sonderby was selected to be the Department of Justice's (DOJ) Intellectual Property Law Enforcement Coordinator (IPLEC) in Bangkok, Thailand. He is a federal prosecutor with experience in investigating and prosecuting computer, intellectual property, and trade secrets crimes. Sonderby was previously head of the DOJ's Computer Hacking and Intellectual Property Unit (CHIPS) in the U.S. Attorneys Office for the Northern District of California, in San Jose. He will coordinate enforcement efforts in some Asian nations. The DOJ release does not identify which nations.

1/5. Mozelle Thompson was named to the Board of Directors of the Media Access Project (MAP). He is a former Commissioner of the Federal Trade Commission (FTC). The MAP is a Washington DC based interest group that participates in telecommunications related litigation and agency proceedings. See, MAP release.

1/5. Robert Laurence was named interim President of the Information Technology Association of America (ITAA). He is VP for public sector operations at Sybase, Inc. He replaces Harris Miller, who resigned. The ITAA Board of Directors also appointed a committee to search for a permanent President. See, ITAA release.

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1/5. Secretary of State Condoleezza Rice gave a speech in Washington DC to a university group in which she discussed, among other topics, visas for studying at U.S. universities. She stated that "America’s mission in this new century must be to welcome more foreign students to our nation and send more of our citizens abroad to study. To be successful, our government and our universities must forge a new partnership for education exchange, a partnership that rests on new thinking and new action." She continued that "we as a nation must continue to improve our visa policies." She added that "There are legitimate security concerns that must be met and we need your help in meeting them. I will make a promise to you: if you are prepared to help us to make certain that we can achieve a balance between openness and security, we are prepared to work with you to do so."

SEC Fines McAfee $50 Million

1/4. The Securities and Exchange Commission (SEC) filed a civil complaint [22 pages in PDF] in U.S. District Court (NDCal) against McAfee (which is also known as Network Associates) alleging violation of federal securities laws in connection with its overstatement of revenues, back in 1998 through 2000. The SEC and McAfee simultaneously settled the case. McAfee will pay a fine of $50 Million. See also, SEC release. See, full story.

People and Appointments

1/4. Federal Communications Commission (FCC) Commissioner Deborah Tate named Aaron Goldberger to be one of her legal advisors. He was previously acting Deputy Director of the FCC’s Office of Legislative Affairs. Before that, he was Special Counsel and Legal Advisor in the FCC's Wireless Telecommunications Bureau, where he worked on public safety and critical infrastructure matters. And before that, he worked in the FCC's Wireline Competition Bureau's Competition Policy Division. See, FCC release.

1/4. William Kovacic took the oath of office as a member of the Federal Trade Commission (FTC). See, FTC release.

1/4. President Bush gave a recess appointment to Gordon England (at right) to be Deputy Secretary of Defense. See, White House release. Bush nominated England for this position in April of 2005. However, the Senate has not acted on the nomination.

1/4. President Bush gave a recess appointment to Benjamin Powell to be General Counsel of the Office of the Director of National Intelligence. See, White House release.

1/4. President Bush gave a recess appointment to Julie Myers to be Assistant Secretary of Homeland Security for the Bureau of Immigration and Customs Enforcement. He also gave a recess appointment to Tracy Henke to be Executive Director of the Office of State and Local Government Coordination and Preparedness at the Department of Homeland Security (DHS). See, White House release, and statement by Michael Chertoff.

1/4. President Bush gave recess appointments to Robert Lenhard, Steven Walther and Hans Von Spakovsky to be members of the Federal Election Commission (FEC). See, White House release. See also, story titled "Bush Announces FEC Nominations" in TLJ Daily E-Mail Alert No. 1,276, December 20, 2005.

More News

1/4. The Federal Communications Commission (FCC) published a notice in the Federal Register that describes, and seeks public comments on the U.S. Telecom Association's petition [PDF] seeking reconsideration and clarification of the FCC's CALEA order. This is the FCC's order that provides that facilities based broadband service providers and interconnected VOIP providers are subject to requirements under the 1994 Communications Assistance for Law Enforcement Act (CALEA). The FCC adopted, but did not release, this item at its August 5, 2005, meeting. See, story titled "FCC Amends CALEA Statute" in TLJ Daily E-Mail Alert No. 1,191, August 9, 2005. The FCC released the text [59 pages in PDF] of this item on September 23, 2005. It is FCC 05-153 in ET Docket No. 04-295 and RM-10865. The USTelecom argues that the FCC "should reconsider its decision to start the 18-month CALEA compliance clock on November 14, 2005, and instead should start that clock on the effective date of its forthcoming order on CALEA capability requirements for broadband and VoIP providers". It also argues that the FCC should "clarify and delineate the specific broadband access services that qualify as ``newly covered services´´ under the CALEA Applicability Order." The FCC states that "Oppositions to these petitions must be filed by January 19, 2006. Replies to an opposition must be filed within 10 days after the time for filing oppositions has expired."

1/4. The White House press office issued a release regarding National Security Agency (NSA) intercepts.

1/4.. The Electronic Privacy Information Center (EPIC) published in its web site three pages of documents [PDF] obtained from the National Security Agency (NSA) pursuant to a Freedom of Information Act (FOIA) request.

Bush and U.S. Attorneys Advocate Enactment of Conference Report on PATRIOT Act Extension

1/3. President Bush signed S 2167 on Friday, December 30, 2005. This is a short untitled bill that extends the sunset date of the 16 sections of the USA PATRIOT Act that were scheduled to sunset on December 31, 2005. The extended sunset date is February 3, 2006. See also, story titled "House and Senate Approve Five Week Extension of Sunsetted Sections of PATRIOT Act" in TLJ Daily E-Mail Alert No. 1,279, December 23, 2005.

On Tuesday, January 3, 2006, President Bush held a meeting with U.S. Attorneys and other government officials at the White House regarding extending the expiring provisions of the USA PATRIOT Act. The White House press office released the text of a speech that he delivered.

He said that "We're talking about the Patriot Act and how useful the Patriot Act has been to safeguard America, and at the same time, safeguard liberties of Americans. And yet, the Patriot Act is going to expire in 30 days. And these good folks, whose task it is to do everything they can to protect the American people from a terrorist enemy that wants to hit us again, is asking the United States Congress to give them the tools necessary to do their jobs. And I'm asking the Congress to do so, as well."

"The American people expect to be protected. And the Patriot Act is a really important tool for them to stay protected", said Bush. "For four years, that's what's happened. These good folks have used the Patriot Act to protect America. There's oversight on this important program. And now, when it came time to renew the act, for partisan reasons, in my mind, people have not stepped up and have agreed that it's still necessary to protect the country. The enemy has not gone away -- they're still there. And I expect Congress to understand that we're still at war, and they've got to give us the tools necessary to win this war."

Some of the U.S. Attorneys present at the event spoke to reporters afterwards. See, transcript.

U.S. Attorneys are nominated by the President, and confirmed by the Senate. Each U.S. Attorney leads a U.S. Attorneys Office (USAO) for a federal judicial district. The main, but not sole, responsibility of the USAOs is to prosecute federal crimes.

Mary Beth Buchanan, the U.S. Attorney for the Western District of Pennsylvania, stated that "We support the conference report. We believe that this report gives us the adequate tools that we need to investigate terrorism and to protect the people from criminal activity. We believe that this provides adequate safeguards in every respect, and we fully support this report. And we would ask Congress to enact this legislation and to make the Patriot Act permanent to give us the tools that we need."

In December, the House, but not the Senate, approved the huge conference report [PDF] on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005".

People and Appointments

1/3. Michael Copps took the oath of office for a second term as a member of the Federal Communications Commission (FCC). See, FCC release [PDF]. Deborah Tate took the oath of office as a new member of the FCC. See, FCC release [PDF] and Tate statement [PDF]. President Bush has not yet nominated a replacement for former Commissioner Kathleen Abernathy.

1/3. Mike Gallagher, head of the Department of Commerce's National Telecommunications and Information Administration (NTIA) will leave his current position later this month. The NTIA's press office further states that he has not announced what he will do next, other than that he will remain in the Washington DC area. The Secretary of Commerce has not yet announced who will become the acting head of the NTIA.

1/3. Brian Cartwright was named General Counsel of the Securities and Exchange Commission (SEC), effective January 23, 2006. He will replace Giovanni Prezioso. Cartwright is a partner in the law firm of Latham & Watkins. Chris Cox, the Chairman of the SEC, also worked for this law firm, long ago. See, SEC release.

1/3. Steve Vest rejoined the National Cable Telecommunications Association (NCTA) as Vice President, Government Relations. He worked for Gemstar-TV Guide International and Bracewell & Giuliani. See, NCTA release.

Go to News from December 26-31, 2005.