In the Know - February 7, 2005

Most recent activity:

February, 7, 2005

Issues: 
Copyright
Orphan Works

In this issue: Anti-Grokster and Neutral Briefs Filed; Copyright Office Examines Orphan Works; Don’t Forget the Other Case - BnetD; Senate Passes Copyright Legislation; NIH Announces Open Access Policy; and Love Letter (Hate Mail?) from PFF.

a bimonthly Public Knowledge update

Contents:

Anti-Grokster and Neutral Briefs
Filed

The allure of intellectual property protection is one powerful
issue. After all, what else could bring together the administration
of George W. Bush with Dixie Chicks singer Natalie Maines, who was
driven off of country music radio in the run-up to the Iraq war for
her criticism of the Bush Administration.

Yes, the performer who said, “Just so you know, we’re ashamed the
president of the United States is from Texas,” was listed as a party
on a brief filed with the U.S. Supreme Court on the same side as the
Solicitor General of the United States, both arguing for curbs on
the 1984 U.S. Supreme Court decision that opened the door for
consumers to use video tape recorders. That decision, called the
Sony Betamax case, said it was legal to sell devices like the video
recorder as long as the equipment had “substantial noninfringing
uses.” That ruling 20 years ago opened the door to the creation of
the vast array of consumer electronics and computer storage devices
we have today.

At issue in the current case, MGM v. Grokster, is whether that
consumer experience with everything from the VCR to the iPod will
continue. In this case dealing with Grokster, a peer-to-peer file
sharing program, the government, recording industry and a host of
others ranging from Major League Baseball to the Christian
Coalition, argue for reinterpretation of the Sony decision. The
Solicitor General said, for example, that the Sony decision
shouldn’t apply in this case because Grokster and others have built
their businesses around copyright infringement. Their view is that
if the product is “overwhelmingly used for infringing purposes,” and
if a business depends on revenue from infringement, then Sony
shouldn’t apply.

The artists, including the Dixie Chicks, Bonnie Raitt, all of the
Barenaked Ladies, Avril Lavigne and others, blamed the “massive,
unfettered copyright infringement being fostered by businesses like
Grokster” for what they see as the “dramatic downturn” in the music
business.

Many of those filing amicus briefs argued that the Court should
create an “inducement” theory of infringement — one crafted both
broadly and vaguely in order to ensure that technology providers
like Grokster and Streamcast would be swept into liability. But not
all advocates of “inducement” theory asked the Court to state a
legal rule that broad or that new. Notably, IEEE-USA (formerly, the
Institute of Electrical and Electronics Engineers) argued in a
“neutral” brief (that is, in support of neither party) that
“inducement” of copyright infringement already exists in today’s
copyright law. IEEE-USA further explained that this version of
“inducement” is a narrowly crafted and precisely defined theory of
liability that would strike with particular focus on “bad actors”
who deliberately set out to cause infringement.

Public Knowledge didn’t file with the court in this round of briefs.
We will file on March 1 with others who want to see the Sony
doctrine maintained.

You can find a good collection of the briefs on the Electronic
Frontier Foundation web site:
http://www.eff.org/IP/P2P/MGM_v_Grokster/.

The stars are all on the National Academy of Recording Arts and
Sciences brief.

A nice take on Grokster from tech entrepreneur (and NBA team owner)
Mark Cuban:
http://www.blogmaverick.com/entry/1234000237029704/

Copyright Office Examines Orphan
Works

The U.S. Copyright Office published in the Jan. 26 Federal Register
a notice asking for comment whether a solution is needed to deal
with “orphan works” - works for which the copyright owner cannot be
located. The Copyright Office said in its notice that: “…the public
interest may be harmed when works cannot be made available to the
public due to uncertainty over its copyright ownership and status,
even when there is no longer any living person or legal entity
claiming ownership of the copyright or the owner no longer has any
objection to such use.” The Office noted that given the high cost
pursuing orphan works means that scholars and small publishers don’t
use the works, “even where there is no one who would object to the
use.”

Public Knowledge President Gigi B. Sohn said, “The Copyright Office
is to be commended for beginning this proceeding to examine the
status of orphan works. We also very much appreciate the efforts of
Senators Orrin Hatch and Patrick Leahy from the Senate Judiciary
Committee, and Chairman Lamar Smith and Rep. Howard Berman from the
House Judiciary Committee in asking that this analysis be
undertaken.

“As the Copyright Office said in its notice, the evidence suggests
that a large number of works may fall into the category of orphan
works. We consider it extremely important, not only for the artists
who are creating new work today, but also for the ideas created in
years past, that orphan works be made as widely available as
possible.”

The full Notice is at:
http://www.copyright.gov/fedreg/2005/70fr3739.html.

Comment deadline is March 25. Reply comments are due May 9.

Don’t Get Snowed by Blizzard in
BnetD Case

With all the attention that the Grokster case is getting, it would
be easy to overlook what’s shaping up to be an equally fascinating
case in the 8th U.S. Appeals Court, St. Louis. The case is Blizzard
v. BnetD. At stake is the ability of a company to impose a monopoly
on consumers through the use of restrictive shrink-wrap contracts
and the Digital Millennium Copyright Act (DMCA).

Blizzard is a videogame company that sells software to be played on
its proprietary network, Blizzard.net. The company is part of
Vivendi Universal, which also owns Universal Music, one of the
world’s largest record companies.

In this case, three programmers dissatisfied with the Blizzard.net
service decided to create their own server software in order to play
the Blizzard games. They wrote their own open-source software by, in
part, reverse engineering the official Blizzard product. Blizzard
sued the writers of the program, Tim Jung, Ross Combs and Rob
Crittenden, for violating the DMCA and violating the agreements that
come with the software. Blizzard won at the District Court and the
programmers, represented by the Electronic Frontier Foundation
(EFF), appealed.

Public Knowledge and Consumers Union filed an amicus brief in the
case, siding with the BnetD programmers. We made two key points.
First, we argued that consumers sign away “important public rights
as they rip and click through one-sided, non-negotiated shrink-and
click-wrap contracts.” These contracts, which can forbid otherwise
legal activities, such as reverse engineering, are contained in the
opening screens of a program when the user usually clicks “I Agree,”
generally without reading the terms.

Second, we said that there are benefits to reverse engineering, in
developing new and better products. Even the DMCA had a provision
allowing for reverse engineering. By deciding this case in favor of
Blizzard, the District Court would allow a situation in which the
holder of any license “could supplant public policy favoring
competition and innovation with a combination of technical
protection measures and clip-wrap contracts.”

As the programmers put it in their brief, while Blizzard says it
wants to protect itself against piracy, “this case has nothing to do
with embracing or facilitating piracy. It has everything to do with
Plaintiffs (Blizzard) wanting to stifle competition for Internet
game servers that work with its store-bought products…” Blizzard
should have taken inspiration from the programmers and improved
their service instead of filing suit, the programmers said.

Here’s our brief in the case:
http://www.publicknowledge.org/pdf/bnet_blizzard.pdf

Other documents are at:
http://www.eff.org/IP/Emulation/Blizzard_v_bnetd/

Senate Passes Copyright Bill

As we said in our last issue, the copyright issues left over from
last year could be put on a fast track this year. And they are. The
Senate late Feb. 1 passed S. 167, the Family Entertainment and
Copyright Act of 2005, which was introduced on Jan. 25. The bill was
sponsored by Sen. Orrin Hatch, R-Utah, and Sen. Patrick Leahy, the
senior Democrat on the Judiciary Committee, along with Sens. John
Cornyn, R-Tex., Dianne Feinstein, D-Cal, and Lamar Alexander,
R-Tenn. The House version, (HR 357) was introduced on Jan. 25 by
Rep. Lamar Smith, chairman of the House Judiciary Subcommittee on
the Courts, the Internet and Intellectual Property and Reps. Bob
Goodlatte, R-Va., and William Jenkins, R-Tenn.

Essentially, the bills contain the legislative proposals that were
left over at the end of the last Congressional session after all the
fussing over the more controversial issues had generally died down.
The Senate last year passed the legislation last year, but it did
not pass the House. The identical bills are divided into four
sections:

The Artists’ Rights and Theft Prevention Act of 2005 (ART Act)
(formerly S. 1932 from the 108th Congress): The bill would make the
unauthorized use of a video camera in a movie theater to transmit or
make a copy of a copyrighted work into an imprisonable offense. Fair
use protections guaranteed under copyright law would not apply. This
version of the bill also includes language that would provide
protection under a “preregistration” scheme for a yet-to-be-released
work, as previous versions did.

The Family Movie Act of 2005 (formerly H.R. 4586 of the 108th
Congress): This bill provides an affirmative right for those who
used technology to skip objectionable material, such as profanity,
violence, or other adult material, in the audio or video works that
they legally purchased. This is a right that most believe
manufacturers of technology and consumers already have.
Additionally, technology manufacturers must provide a notice at the
beginning each showing of the “altered” content stating that “the
motion picture is altered from the performance intended by the
director or copyright holder of the motion picture.” The
controversial language that excluded from the exemptions the
skipping of commercials has been left out of this version. Hatch
said that he was told by the Copyright Office the
commercial-skipping language wasn’t necessary.

The National Film Preservation Act of 2005: Reauthorizes the
Librarian of Congress to carryout a comprehensive preservation
program for motion pictures, in an effort to make the works more
accessible for research and educational purposes.

Preservation of Orphan Works Act: The bill would allow libraries to
create copies of certain copyrighted works that, in their last
twenty years of copyright term, are no longer commercially
exploited, and are not available at a reasonable price.

Here’s Sen. Hatch’s statement:

http://hatch.senate.gov/index.cfm?FuseAction=PressReleases.Detail&PressRelease_id=1267

Here’s Chairman Smith’s statement:
http://lamarsmith.house.gov/news.asp?FormMode=Detail&ID=546

NIH Announces Open Access Policy

As we expected, Secretary of Health and Human Services Michael
Leavitt on Feb. 3 announced the open-access policy for the National
Institutes of Health (NIH) on open-access publishing of
government-funded research. The policy requests the authors of
scientific papers to make their work available for free, online as
soon as possible and within 12 months of the official date of
publication.

PK thinks it’s an unwelcome retreat from what the National
Institutes of Health (NIH) had proposed earlier - that papers could
be available for free online within six months. Peter Suber,
director of Public Knowledge’s Open Access Project, said of the new
rule:

“I regret that the National Institutes of Health has scaled back its
open-access policy. It is a retreat from the version the agency
first proposed and for which public comment was overwhelmingly
favorable. The chief problem with the new rule is that it could
significantly delay public access to publicly-funded medical
research. It could even mean that the public will never have access
to some of it at all. The new rule also creates a difficult dilemma
for NIH-funded scientists by forcing them to choose between their
funding agency and their publisher. The NIH will ask authors to
choose early public release and many publishers will ask authors to
choose late public release.

“This policy is a step backward from the House of Representatives’
wishes that NIH ‘require’ free online access after six months. In
the end it looks like the publishers had more clout with NIH than
scientists or taxpayers. The policy is better than nothing, but is a
lot less than taxpayers deserved.”

Here’s the NIH policy:

http://grants.nih.gov/grants/guide/notice-files/NOT-OD-05-022.html

Americans for Taxpayer Access, a group favoring a more open policy,
is here:
http://www.taxpayeraccess.org.

Love Letter (Hate Mail?) from PFF

If you didn’t see this before, it’s time you saw it now. This is a
column published on CNET’s News.com by Patrick Ross of the Progress
and Freedom Foundation. It attacks PK Pres. Gigi B. Sohn, by name,
several times. It also distorts the positions PK has taken on
copyright issues on the Hill. The good news is that we’re obviously
getting somebody’s attention if groups like PFF are taking the time
to attack us. We don’t mind debating the merits of policy, but we
think this one is a bit much. And we think it’s sad that the
Progress and Freedom Foundation, which prides itself on being a
market-oriented think tank, is using the politics of personal
destruction to advance a pro-regulatory agenda. That’s a loser all
around.

Here’s the link to the piece:

http://news.com.com/File-sharing+battles+leave+us+out/2010-1071_3-5551946.html

If you read this and think it’s a bit much (to say the least), send
CNET a letter and tell them so. The address is:
send-letters-to-news@cnet.com. Jai Singh is the editor. His email is
jais@cnet.com

To be fair, CNET also published something more moderate:

http://news.com.com/Why+punish+the+technology/2010-1071_3-5553805.html

Look for a response from Gigi on CNET very soon.

And now a word from our sponsors: The work PK is doing to protect
intellectual freedom and intellectual property is vital to a free
democracy. You can help: Support PK now, at: http://www.publicknowledge.org/takeaction/donate.
It’s quick and easy through PayPal.

Also in the News:

Watch the PK web site for the latest in breaking news elsewhere.
Here are some stories you may have missed from the PK Breaking News
section: ( http://www.publicknowledge.org/news/breaking
).

Briefly:

David Israelite, who formerly headed the Intellectual Property Task
Force for the Justice Department, has taken a new job as president
of the National Music Publishers Association. The trade group will
move from New York to Washington.

Senate Commerce Committee Chairman Ted Stevens, R-Alaska, abolished
the Communications Subcommittee, which had been chaired by Sen.
Conrad Burns, R-Mont., and which former Committee Chairman John
McCain, R-Ariz., expected to chair this year. Communications issues
will be handled at full committee. Sen. John Ensign, R-Nev., will
chair the Technology Subcommittee. He is also chair of the Senate
Republican High-Tech Task Force. McCain won’t have a Commerce
Subcommittee to lead.

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Next issue: Everyone else weighs in on the Grokster case before the
U.S. Supreme Court, and more.

For the best in blogging: http://www.Godwinslaw.org, by PK
Legal Director Mike Godwin