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In the Know - October 28, 2005

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Contents:

Broadcast Flag Kept Under Wraps… So Far

Two key Congressional committees have approved legislation on the transition to digital television (DTV) without having broadcast flag language added. That’s the good news. The bad news is that there is still plenty of room for mischief in the legislative process.

Under the budget process now wending its way through Congress, the Senate Commerce Committee and the House Commerce Committee each had to produce legislation dealing with the auction of spectrum now held by broadcasters for over-the-air “analog” television service as the industry transitions to “digital” TV broadcasts. It was as part of those considerations that the motion picture and record industries had the opening to bring in the broadcast flag and digital radio protection controls.

The Senate Commerce Committee, at its markup Oct. 20, was the first to skip over the broadcast flag issue. Chairman Ted Stevens (R-AK), said he hoped to start discussions soon on a separate bill that deal with the multitude of policy issues related to the DTV transition. The broadcast flag and radio content controls could be in there, as well as issues such as whether cable or satellite systems have to carry all of the new digital broadcast channels, and whether more spectrum will be assigned by the FCC for unlicensed uses, like WiFi. Stevens acknowledged that such a bill would be difficult to pass, but said he would make the attempt.

The flag issue was raised at the House Commerce Committee markup Oct. 26, but again put off for another day. Rep. Mary Bono (R-CA), said that the broadcast flag for DTV was “an important element” for the transition to DTV, and that content control was “equally critical” for music and other forms of entertainment. Her comments were echoed by Rep. Eliot Engel (D-NY), Mike Ferguson (R-NJ), Greg Walden (R-OR), a former broadcaster; and Marsha Blackburn (R-TN), who said the radio controls were an important issue for her constituents.

Bono never offered a formal amendment, but merely asked Chairman Joe Barton (R-TX) whether he would be willing to work on the issue. Barton replied he would be willing to work on the broadcast flag issue, but in the context of HR 1201, the bill he sponsored with Rep. Rick Boucher (D-VA) that would help restore the historic balance of copyright law by permitting individuals to break technological “locks” for lawful reasons. “With that understanding,” Barton said, he would be willing to work with Bono on the content issues.

Bono replied that she would like to work with Barton on the bill, because she has “serious objections” to HR 1201.

The next step in the process is for the Senate and House budget committees to cobble together the bills from all of the committees, including the Commerce committees, and bring their measures to the full Senate and House for debate. At that point, the legislation is open for debate and amendment. In the Senate, there is a special procedure for the budget bill requiring 60 votes to pass an amendment not directly connected to the budget. In the House, the Rules Committee usually determines the procedures for the floor debate, including which amendments would be allowed.

A new player in the game, the House Intellectual Property Subcommittee, has scheduled a hearing on the flag for Nov. 3 (Thursday), at 2 p.m. We don’t know the witness list, but check our site for updates.

So, we still need you to tell your Senators and Representatives not to enact a broadcast flag.

Our take on the House markup is here:
http://www.publicknowledge.org/pressroom/releases/pressrelease.2005-10-26.5398517747

Here’s our new fact sheet on the digital radio copy protection scheme being sent around Capitol Hill by the record industry:
http://www.publicknowledge.org/news/analysis/digital-radio-2pager

If you haven’t yet let your legislator know of your concerns, check out our Action Alert to use as a guide:
http://www.publicknowledge.org/action/night_of_the_broadcast_flag

PK Defends Google’s Library Scanning Program

Late last year, Google announced a most ambitious project — that it would begin scanning books in major research libraries so that the printed word would be, as with Web content, able to be searched online. Google’s project would include books in the public domain, as well as books still under copyright.

The full text of a public domain book would be available to view or to store. For books still under copyright, however, users will see only a snippet, between three and seven lines of text — enough to let you know you’ve found the right book. Google would also display links so that you could buy the book.

As a reward for trying to make much of the world’s knowledge more accessible, Google has been sued by the Association of American Publishers (AAP) and the Authors Guild. Those groups believe Google has engaged in copyright infringement by creating the scanned copies of copyrighted works. Not just any infringement, either. The Authors Guild said Google is “engaging in massive copyright infringement at the expense of the rights of individual writers.”

Not content only to argue the case on its merits, the publishers and authors take swipes at Google because of its size, business success and the wealth of its founders. The Guild described Google as the “$90 billion search engine and advertising juggernaut.” Nick Taylor, in a Washington Post opinion piece critical of Google, referred to” the powerful and extremely wealthy search engine, with co-founders ranking among the 20 richest people in the world.” (The Post printed dueling opinion pieces on the issue, with the University of Michigan defending the program and Taylor opposing it, further raising the visibility level of the issue.)

Patricia Schroeder, the former member of Congress who now heads AAP, said: “The bottom line is that under its current plan Google is seeking to make millions of dollars by freeloading on the talent and property of authors and publishers.”

On Nov. 1, Google is set to resume its program of scanning copyrighted books into a database as part of its Library Project. Google will scan in the collections of five major research libraries, with some of the books in the public domain and some under copyright.

We think Google should be thanked, not chastised, for undertaking this ambitious publishing program. It’s true that Google has to scan the contents of every book, but the end result is that searchers looking for copyrighted works see only a little snippet of the entire book. You can read more text of a book in a book review than in the little block of text Google shows searchers. In addition, Google has links to bookstores so that searchers can buy the book.

The scanned version is never made public. It’s necessary to scan the whole book in order that searchers can find the snippet they seek. It is merely a transitional step that makes the end result possible. Should someone steal the electronic file of a book and publish it, that person would be liable for theft and for copyright violations.

Here’s our statement on the suit against Google:
http://www.publicknowledge.org/pressroom/releases/pressrelease.2005-10-19.4472932155

You can read the Washington Post op-eds, here:
http://www.washingtonpost.com/wp-dyn/content/article/2005/10/21/AR2005102101451.html

and here:
http://www.washingtonpost.com/wp-dyn/content/article/2005/10/21/AR2005102101510.html

Stats Show Failure of Open Access at NIH

The Public Access Working Group over at the National Institutes of Health is scheduled to get together on Nov. 15. We haven’t seen an agenda yet, but one supposes that the dismal showing of the open access program will be on it. . The open access program encourages, but doesn’t require, researchers to make their taxpayer-supported papers available without cost, online, and available to the public.

In our last issue, we estimated the number of papers submitted under the program to be fairly low. Now, NIH has provided some statistics. Bear in mind that if all of the NIH-funded researchers complied with the policy, about 5,000 papers would be submitted every month.

Here are the stats since the start of the program:

May 401
June 386
July 553
August 268
September 270
May to September Total 1,878

The numbers don’t lie — the NIH’s open access program is broken and can only be fixed if researchers are required to make their research available online for free.

Links to the NIH monthly statistics are here:
http://www.nihms.nih.gov/

The NIH public access policy is here:
http://publicaccess.nih.gov/policy.htm

Also in the open access world, Peter Suber and Subbiah Arunachalam have published, “Open Access to Science in the Developing World,” World-Information City, October 17, 2005. World-Information City is the print newspaper distributed to delegates at the November 2005 meeting of the World Summit on the Information Society in Tunis.

Here’s an online version of the same paper:
http://www.earlham.edu/~peters/writing/wsis2.htm

And now a word from our sponsors: PK has been working day and night to protect your digital rights, and its court victory striking down the broadcast flag. We are the only public interest organization that is fighting proposed flag legislation every single day. You can help us continue our fight, and you can do it in two ways. First, consider becoming a member of PK. Check out our membership page (with the cool premiums for joining) at https://members.publicknowledge.org/pk_membership. Or, you can donate to PK, at http://www.publicknowledge.org/donate. Both are quick and easy. We thank you for your support.

Briefly: PK has been officially granted “observer status” by the World Intellectual Property Organization (WIPO). As a result, we will be invited to attend general WIPO meetings, as well as the crucial subcommittee meetings. WIPO deals with crucial topics on intellectual property and telecommunications. Only countries can be members of WIPO, but having observer status will allow PK to have a more active and visible role in WIPO proceedings.

The Brennan Center for Justice at the NYU School of Law will publish in December a study, “Will Fair Use Survive?” An excellent question. Here’s their conclusion: “Accurate knowledge of fair use, awareness of its importance, and determination not to let it wither despite its unpredictability are essential elements of free culture, especially in the digital age.” Check it out here:
http://www.fepproject.org/policyreports/fairusesneakpreview.html

And speaking of blogs, don’t forget to check out our newest one, the PK policy blog:
http://www.publicknowledge.org/blogs/policy

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