In the Know - April 21, 2005

a bimonthly Public Knowledge update

Contents:

• Congress Passes Copyright Legislation
• WIPO Talks Continue — That’s a victory!
• Last Broadcast Briefs Filed
• CFP Coming to D.C. — Godwin reports
• Stay In the Know with PK’s RSS Feeds

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.

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.