In the Know - April 21, 2005

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a bimonthly Public Knowledge update

Contents:

Copyright Legislation Clears
Congress

Congress got on the copyright scoreboard earlier this week, as the
House cleared the Family Entertainment and Copyright Act (S. 167).
The Senate passed the bill in February, so the bill goes to the
White House for President Bush’s signature.

The bill passed without any major controversy or debate, as it was
generally the most non-controversial items left over from last
year’s copyright debate. The Family Movie Act part of the
legislation would make it legal for companies to provide DVD players
that would skip past objectionable sex, violence or other content.
House Judiciary Committee Chairman F. James Sensenbrenner, Jr.
(R-Wis.) framed the issue as one addressing the desire of parents to
control what their children see in the privacy of their homes.
Intellectual Property Subcommittee Chairman Lamar Smith (R-Tex.),
agreed, saying parents should be able to skip over any material they
want in order to protect their children. Rep. Chris Cannon (R-Utah),
whose state is home to companies making the controversial DVD
players now involved in litigation, made the same point.

Congressional friends of the entertainment industry, while generally
supporting the bill, disagreed on this point. Rep. Howard Berman
(D-Cal.), senior Democrat on the Intellectual Property Subcommittee,
said the issue wasn’t one of protecting children, but was one of
whether one commercial company could sell technology that
fundamentally alters a creative work. He compared it to someone
republishing a book with controversial passages eliminated. Rep.
Diane Watson (D-Cal.), chair of the Congressional Entertainment
Caucus said that she supported the bill generally, but not the
Family Movie Act part because it would allow for the destruction of
artistic vision.

The bill also would make it a crime to use a camcorder in a movie
theatre to record the film being shown. There was a lot of concern
when this issue came up last year that the bill as written could
preclude salesmen demonstrating a camcorder in a store, or could
subject to someone carrying a camcorder into a theatre to arrest.
This year, the sponsors put language into the committee report on
the bill to make it certain those situations wouldn’t apply under
the bill.

The most problematic language is in the section of the bill setting
penalties for distributing movies, records or other material before
their commercial release. The bill would create a criminal penalty
for “making it [a work] available on a computer network accessible
to members of the public, if such person knew or should have known
that the work was intended for commercial distribution.”

Some copyright attorneys see that language as setting a bad
precedent, because it equates “making available” to actual
“distribution,” when they may not be. The passive “making available”
is not explicitly illegal under U.S. law, while active
“distribution” is. Others point out there’s no evidence to show harm
to the movie industry bottom line from P2P distribution of
unreleased movies.

The text of the bill is here:
http://www.publicknowledge.org/content/legislation/s167

Here is the Committee report:
http://www.publicknowledge.org/pdf/s167housereport.pdf

and here is the floor debate:

http://www.publicknowledge.org/pdf/s167-house-floor-consideration.pdf

WIPO Development Talks To Be
Continued

As international victories go, this one may not sound very stunning
— the World Intellectual Property Organization (WIPO) has agreed to
continue talking about how the group should approach the topic of
intellectual property in developing nations. But considering the
history of WIPO and its history of acting on the side of the content
community and strong intellectual property protections, this was
huge. The public-interest and developing-country representatives
were ecstatic at the conclusion of WIPO meetings held the week of
April 11 in Geneva.

As an added bonus for the public-interest community, a number of
private, “non-governmental” groups to whom WIPO wanted to deny
accreditation to the meeting were eventually allowed to participate
in the April meeting, and will be allowed into subsequent meetings
as well. These are groups such as IP Justice or the Institute for
Policy Innovation, which had not yet been given permanent
accreditation status by WIPO, but which wanted to attend the
meetings. Public Knowledge is applying for permanent accreditation.

The purpose of the meeting was to figure out how WIPO should work
with developing countries. There were basically two schools of
thought presented in Geneva. The U.S., and much of the developed
world, argued in favor of providing technical support and resource
material to developing countries that would reinforce the strong
intellectual property regimes WIPO has traditionally supported.

Developing countries and public-interest groups took another view,
put forward in a “Friends of Development” proposal put forward by 14
countries. The best description came from a statement from the
India: “‘Development’, in WIPO’s terminology means increasing a
developing country’s capacity to provide protection to the owners of
intellectual property rights. This is quite the opposite of what
developing countries understand when they refer to the ‘development
dimension’?The real ‘development’ imperative is ensuring that the
interest of intellectual property owners is not secured at the
expense of the users of IP, of consumers at large and of public
policy in general.” The Indian statement, endorsing the Friends
philosophy, was that “The primary rationale for Intellectual
Property protection is, first and foremost, to promote societal
development by encouraging technological innovation.” The monopoly
rights granted to IP creators “is a special incentive that needs to
be carefully calibrated by each country, in the lights of its own
circumstances, taking into account the overall costs and benefits of
such protection.”

That philosophy is quite at odds with the U.S. official agenda. The
victory, moral victory or otherwise, for developing countries and
public-interest groups, is that our issues remain out in the open in
two ways. First, WIPO will sponsor two more meetings on the
development issues, one for June 20-22, and one to be scheduled for
July.

Second, WIPO put off any action on strengthening the permanent
committee on development related to intellectual property. On the
surface, such a committee may seem a good thing, but the
public-interest/developing countries don’t see it that way. Their
view is that such a committee would simply be a burial ground to
which their issues would be shuffled off to die. The
public-interest/developing country forces want to make sure their
concerns are taken directly to the WIPO general assembly, and they
view expanding the scope of the community as a barrier.

You can read about the WIPO meetings here:
http://www.ip-watch.org

EFF also has some good background on what’s going on here:
http://www.eff.org/IP/WIPO/
as well as in their “deep links” section.

Also, www.cptech.org has good
background on WIPO.

Briefing Finally Ends in Broadcast
Flag Case

The FCC and MPAA got the last word in the extended briefing schedule
at the U.S. Appeals Court, D.C., on the broadcast flag case, and
they used it to criticize PK and our allies.

The Court had ordered a new round of briefs on the question of
whether PK, the American Library Association, the other library
groups, Consumer Federation of America, Electronic Frontier
Foundation and Consumers Union were legally qualified to file the
suit against the FCC’s broadcast flag rules in the first place —
whether we had “standing” is the legal term of art.

In our brief, filed March 29, we argued that the broadcast flag
would cause harm, and filed 13 affidavits demonstrating specific
harm to libraries, researchers, teachers, equipment makers and
others.

In their replies, the FCC and MPAA disputed that any harm would
occur, and, as a result, we would not have standing to bring the
case. The FCC, which didn’t challenge our standing in earlier briefs
or at the oral argument on the case, now argues that our claims of
harm as a result of the flag are “misleading or mistaken” and that
the court shouldn’t rely on them.

MPAA made a similar, if more detailed, argument, looking at specific
affidavits that we filed and arguing that we didn’t show a harm
caused by the broadcast flag. The group said we showed only
hypothetical injury “contingent on future events, rather than
demonstrate present injury caused by regulation.”

In attacking our legal standing, MPAA said PK, ALA and the rest of
our team “are not injured parties but interest groups that are
philosophically opposed to any content protection, including the
Broadcast Flag.” We pause to note for the record that, speaking for
PK, we are not against content protection — we are opposed to
government-mandated content protection. There is a big difference.
We think that the marketplace is the best venue for the development
and implementation of content-protection technologies. The actual
case, however, turned on our argument that the FCC exceeded its
authority in ordering this broadcast flag regime.

So that’s the end of our say. The next word will be the court’s,
expected in the next couple of months.

You can read all the briefs here:
http://www.publicknowledge.org/pdf/bfcase-fcc-supplemental.pdf

and here:
http://www.publicknowledge.org/pdf/bfcase-mpaa-supplemental.pdf

CFP to D.C. and Other Observations

PK Legal Director Mike Godwin spent last week in Seattle at the
Computers, Freedom and Privacy 2005 conference. His impressions:

I attended the 2005 Computers, Freedom, and Privacy conference in
Seattle, and was struck by a couple of things. First of all, the
conference was fairly sedate — in many and perhaps most previous
years of the 15-year-old conference, the week’s events have been
punctuated by some external event that created lots of attention.
(In 1994, for example, attending FBI representatives attempted to
collar someone they thought was a computer-crime suspect and
fugitive, but who turned out only to look like old pictures of said
fugitive.) This year, there was nothing big and CFP-ish happening in
the outside world to fire up discussions inside the conference.
Sedate, of course, can be good — it’s a tribute to conference
organizer (and privacy activist) Deborah Pierce that things mostly
went off without a hitch.

The second thing I noticed was this: If I had a single criticism of
the conference, it was that so many panels and events focused on
privacy more than on, you know, computers and freedom. I think
privacy is important, but there are many issues arising in our
digital age that don’t implicate privacy — at least not directly —
but that do implicate freedom and our use of digital technologies to
exercise that freedom. In particular, we now see from various
corners initiatives to impose content and copyright controls on
computers and other digital tools that could seriously impact how
well those tools work for us. In addition, they could result in the
suppression of lawful speech including that content or commenting on
it.

Fortunately, I’m going to be able to contribute to the shaping of
next year’s conference, thanks to Microsoft’s Frank Torres, who will
be organizing it and who has asked me to help in the planning. I
hope the outcome will be that copyright and tech-policy concerns
come more to the front and center at CFP 2006. (Not that we’ll stint
on privacy either.)

The real value of CFP, of course, is not so much in the panels but
in the quality of people you run into there. All of us who are
obsessives about cyberliberties issue tend to show up at CFP, and so
in that sense it remains the great communal gathering it was when
first chronicled by Bruce Sterling in THE HACKER CRACKDOWN.

(Note: The website for next year has already been activated:
http://www.cfp2006.org)

You get the plug for Mike’s blog at the end of the issue, so we’ll
skip the link here.

And now a word from our sponsors: The work PK is doing to protect
the free flow of information and sharing of knowledge is vital to
a free democracy. You can help: Support PK now, at:
http://www.publicknowledge.org/takeaction/donate

It’s quick and easy.

Briefly: As part of its consideration of intellectual property
issues on the House floor April 19, the House also passed without
much debate H.R. 683, the Trademark Dilution Revision Act of 2005.
The vote was 411-8 with 15 not voting. Current law requires someone
suing for diluting the value of a trademark to prove some actual
harm from the similar name or trademark. This bill doesn’t require a
showing of harm, only a showing of the likelihood of the trademark
losing value. Our analysis of the bill is here:
http://www.publicknowledge.org/issues/tmdilution

There is no indication so far that the Senate will take up the bill.

The House Telecom Subcommittee April 20 held a hearing to learn
about new Internet Protocol (IP)-based telecom services, to be
offered by SBC and Verizon. The hearing is one of the first in what
could be a series leading up to a rewrite of the Telecommunications
Act of 1996, as legislators were trying to determine where new
services fit into regulatory structures, or whether a new system is
needed. SBC’s representative said her company’s offering,
Lightspeed, didn’t fall neatly into any regulatory category, whether
cable, telephone or data, but was a combination that didn’t deserve
regulation. Senior panel Democrat Ed Markey (D-Mass.) criticized SBC
for rolling out the service only in wealthy neighborhoods and
accused SBC of ignoring half of the households it serves.

Finally: Congrats to Alan Davidson. The stalwart of the Center for
Democracy and Technology is shifting gears into the commercial space
to open a Washington office for Google. We know you will keep up
your good work on our issues from your new gig.

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For the best in blogging: www.Godwinslaw.org, by PK Legal
Director Mike Godwin. From ruminations on Tarzan, to plots against
America, to experiments with BitTorrent, it’s all here.