In the Know - March 24, 2005

A bimonthly Public Knowledge Update

Contents:

• Grokster Day is Almost Here — Save Betamax!
• Orphan Works Comments Accumulating
• Boucher-Doolittle Bill Reintroduced
• New Broadcast Flag Court Filing Due
• Stay In the Know with PK’s RSS Feeds

Grokster Day Is Coming Fast — Save Betamax!

The excitement is building to the March 29 Grokster oral argument at the Supreme Court — even though everyone recognizes that almost any decision will be taken to Congress.

Public Knowledge President Gigi B. Sohn told the Consumer Electronics Association (CEA) conference, “IP and Creativity,” on March 16 that even before the oral argument, the entertainment industries are working Capitol Hill to lay the groundwork for legislation regardless of how the Supreme Court decision comes out.

The CEA event was the highest profile gathering in the pre-oral argument phase of the current discussion. It generated a lot of attention, particularly the “Clash of the Titans” closing panel which featured CEA Pres. Gary Shapiro, NetCoalition General Counsel Markham Erickson, Motion Picture Association of America (MPAA) Pres. Dan Glickman and Recording Industry Association of America (RIAA) Chmn. Mitch Bainwol.

Bainwol, who made a forceful argument for his side of the debate, said he couldn’t understand why Shapiro and others on the opposite side of the Grokster case thought the content community wanted to do away with the infringement standard from the 1984 Sony-Betamax decision. Shapiro replied: “I read your brief.” Erickson highlighted the importance of the case, by noting that as important as the First Amendment is to Hollywood, the Betamax decision is to the consumer electronics and technology industry. When Bainwol argued repeatedly that the government had entered the case on his side, Shapiro responded that a group of distinguished computer scientists has filed a brief on CEA’s side arguing the government didn’t understand how the Internet worked. On the panel and in separate speeches, Shapiro pressed the argument that “intellectual property” was a misnomer, and that copyrighted material didn’t equate to more traditional forms of property.

Other panelists had some cogent observations during the day. Stacie Rumenap, deputy director of the American Conservative Union, noted that while the content industry and its allies protest what they contend is a large amount of pornography on peer-to-peer networks, the recording industry’s own product is not so clean. She read some of the lyrics from the rapper 50 Cent’s hit, “In Da Club,” which are full of references to sex and drugs.

The most definitive observation went to technologist/NBA owner Mark Cuban, who said: “If Grokster loses, we’re in deep shit.”

Also in the pre-Grokster run-up, the Heritage Foundation on March 15 sponsored a forum with former Solicitor General Theodore Olson and Utah Attorney General Mark Shurtleff, along with former Attorney General Edwin Meese III. There was much hand-wringing about theft of property and the alleged prevalence of pornography on p2p networks, and a good deal of quoting of the movie, “Pirates of the Caribbean.” There were no representatives from the pro-Betamax side on any of the panels.

The last word in the pre-oral argument gabfest went to the Washington Legal Foundation, which sponsored a panel on March 24. This one featured a debate between David Israelite, formerly of the Justice Dept., now president of the National Music Publishers’ Association, Alan Davidson of the Center for Democracy and Technology and Jim Burger of Dow, Lohnes and Albertson. Again, there was much discussion of child pornography and theft by Israelite, with replies by Davidson and Burger that the issue was an attempt to stifle technology.

The learned analysis will continue after the Court oral argument. There will be two events we’ve heard of, both at 4 p.m. on March 29 (following the arguments and PK’s party in honor of EFF and other tech-side participants in the Grokster case).

The Georgetown University Law Center will have a discussion on the case featuring PK Pres. Gigi Sohn, Jim Burger, Fred von Lohmann of EFF, Jim DeLong of the Progress and Freedom Foundation, Jonathan Band of the law firm Morrison and Foerster and Barbara Comstock, formerly of the Justice Dept. and now with Blank Rome Government Relations firm. The Center is at 600 N.J. Ave., N.W., near Capitol Hill.

The George Washington University Law School will hold its own panel with EFF Counsel Cindy Cohn, Grokster attorney Michael Page of Keker and Van Nest, Register of Copyrights Marybeth Peters and Justin Hughes of the Cardozo School of Law. The session will be held on the 5th floor at 716 20th St., N.W.

On April 30, the Stanford Law Center for Internet and Society will host a discussion on “Cyberlaw in the Supreme Court.” PK Pres. Gigi Sohn will participate, with a host of other luminaries.

Here’s the information on the Stanford conference:

http://cyberlaw.stanford.edu/supreme/

Stacie read some of these lyrics in front of a ballroom full of people:

http://www.seeklyrics.com/lyrics/50-Cent/In-Da-Club.html

The Consumer Federation of America, Consumers Union, Free Press and US PIRG recently released a major study on the critical role of p2p networks on technological innovation and the economy.

Details on the study, by CFA Research Dir. Mark Cooper:

http://www.consumerfed.org/P2P-Press-Release22March2005.pdf

Here’s the indispensable resource on Grokster:

http://www.eff.org/IP/P2P/MGM_v_Grokster/

Orphan Works Comments Keep Coming In

The orphanworks.org site, sponsored by PK, EFF and Free Culture, is proving to be a fruitful source of comments for the Copyright Office in its proceeding to figure out how to deal with works whose copyright holder can’t be located.

So far, more than 500 comments have been submitted to the Copyright Office, and the deadline isn’t until 5 p.m. tomorrow (March 25). More than 400 comments have been submitted through the oraphanworks.org site alone. A number of comments are expected to endorse in some fashion a proposal put together by American U. Law Prof. Peter Jaszi and his students at the Glushko-Samuelson Intellectual Property Law Clinic that calls for a defense against copyright infringement liability if someone made a “reasonable effort” to find the copyright owner.

PK will file its own comment, also endorsing most of the Clinic’s proposal, but with our own suggestions that authors and other creators file with the Copyright Office a public “statement of intent” to use a work, and that they file a sworn statement setting out the actions they took to find the copyright holder. There are sure to be any number of proposals, but we expect that quite a few will center on the idea that the liability for an artist using an orphan work should be limited. Reply comments will be due May 9.

Check out the comments from the Copyright Office here (after March 25):

http://www.copyright.gov

Here’s our Orphan Works site:

http://www.orphanworks.org

Round Two Begins for Boucher-Doolittle

Reps. Rick Boucher (D-Va.) and John Doolittle (R-Cal.) along with House Energy and Commerce Committee Chairman Joe Barton (R-Tex.) reintroduced their legislation to codify the Sony Betamax decision. This is a modified version of their bill introduced in the last Congress, HR 107. Like that bill, this year’s bill, HR 1201, would also reinstate fair use rights that the sponsors argue were taken away in the Digital Millennium Copyright Act of 1998.

Boucher and Doolittle are now trying to round up cosponsors. In a letter sent to other members of the House, they argue that as a result of the DMCA, “powerful media companies were given the legal tools to restrict and to prevent altogether” the making of fair use of copies of digital work for non-commercial purposes. In their letter, Boucher and Doolittle said they want to make sure someone can buy a CD at a store, record it onto his computer and move the songs to an iPod; for a mother to share an excerpt from an electronic book with a son serving in Iraq; for a student to copy a portion of an historic speech from an electronic encyclopedia into an electronic report for class; and for a computer science professor to work with students to evaluate encryption technology.

Let your member of Congress know you support HR 1201, and that you want him or her to cosponsor it.

Also on the legislative front, the full House has yet to take up S. 167, the Family Entertainment and Copyright Act. The bill was approved by the House Judiciary Committee on March 9, but the formal committee report hasn’t been filed. That needs to be done before the bill goes to the floor. The bill was also referred to the House Administration Committee, which has jurisdiction over the Library of Congress, for the film-preservation parts of the bill. That Committee hasn’t yet acted on the legislation.

Here information on the Boucher-Doolittle bill:

http://www.publicknowledge.org/issues/hr1201

Here’s background information on S. 167:

http://www.publicknowledge.org/issues/s167

New Broadcast Flag Court Filings Due

PK and our allies in the broadcast flag case have been ordered by the U.S. Appeals Court for the D.C. Circuit to submit additional material to document why we should have legal standing to bring the challenge to the FCC rule.

At the oral argument on the case Feb. 22, Judge David B. Sentelle strongly argued that Public Knowledge and our allies didn’t have the legal right to bring the case against the FCC because we had not adequately demonstrated that the broadcast flag harmed our members. The situation is unusual, because the FCC didn’t challenge our standing, and the MPAA raised it only in passing. The court issued an order March 15 asking for support for the argument that we have standing to bring the case — meaning we have to provide information from individuals and institutions that would be harmed if the rule goes into effect.

The briefs from our side are due March 29. (What a day!) The FCC and MPAA have two weeks after that to file an answer.

Here’s the court order:

http://www.publicknowledge.org/pdf/bf_order_on_standing_20050315.pdf

Briefly: Public Knowledge joined the Consumer Project on Technology and the Electronic Frontier Foundation on an amicus brief submitted to the U.S. Supreme Court on a key issue of patent protection. At issue in the case, Merck KGaA v. Integra Lifesciences I, Ltd. and the Burnham Institute (No. 03-1237) is whether discoveries made in the early, experimental stage of drug research is protected by patent. We’re on the side of Merck, which wanted to use some early findings that could be used to inhibit growth of cancerous tumors. Our brief was ably written by Joshua D. Sarnoff and his students at the Glushko-Samuelson Intellectual Property Law Clinic at the Washington College of Law, American University.

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For the best in blogging: http://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.