Posts by Rashmi Rangnath

Victory for Access to Books for the Blind

Countries agree on historic treaty to increase access to books for the blind.

Late yesterday night, countries gathered at Marrakesh, Morocco, agreed on a treaty designed to promote greater access to books for the blind and other visually impaired persons. As many have explained, currently, the blind have access to less than 5% of printed material in most parts of the world and this treaty is designed to change that situation. Representatives of the blind, public interest organizations, and library groups working on this treaty have expressed their happiness with the text.

Here is a quick summary of how the treaty could increase access to books for the blind:

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Copyright and Secrecy Don’t Make for Good Trade Agreements

Dear USTR, copyright has meaningful non-economic and social value; keep it out of the U.S.-E.U. Free Trade Agreement. If you have to have it, make sure it protects all Americans and not just large content owners. (And make the agreement transparent and inclusive while you’re at it.)

Today we filed comments about the proposed United States-European Union Free Trade Agreement – the Transatlantic Trade and Investment Partnership (TTIP). We told the Office of the United States Trade Representative (USTR) that copyright is an uncomfortable fit for a trade agreement and should be kept out of the TTIP.

If the USTR still wants to include copyright within the TTIP, it should make sure that a copyright chapter in the TTIP will not impede Congress’s ability to change U.S. copyright laws.

We also asked the USTR to break from the past and not negotiate the TTIP in secret.

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PK calls for simple and usable solutions to the problem of orphan works

Among the many valuable collections that the Library of Congress holds is a vast collection of old newspapers. The Library explains (page 16) that digitizing these collections can provide new and efficient tools for researchers. These newspapers offer a wealth of information on topics such as “the Great Depression, American perspectives on the rise of Hitler and World War II, post-World War I and immigrant communities in America, the assassination of President John F. Kennedy, community views on the Civil Rights Act of 1968, to name a few.” These newspapers and scores of other works cannot be publicly disseminated without permission from their copyright owners, who are often unlocatable. These works are called orphan works. The Copyright Office is conducting an inquiry into possible solutions to the problem of orphan works.

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Copyright’s Impact on Free Expression Rights

Exclusive rights conferred by intellectual property laws can conflict with human rights. Yet policy makers rarely acknowledge this possibility and continue to make IP rules that increase the scope of exclusive rights. In a recent decision the European Court of Human Rights (ECHR) disagreed, recognizing that copyright laws can have an adverse impact on the freedom of expression. Scholars point out that the court is likely to hear more such cases in future.

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PK’s Special 301 Comments Reiterate Importance of Balance in Copyright Law

This past Friday, we filed comments in the Special 301 process, the Office of the United States Trade Representative’s (USTR) annual exercise of naming countries that do not adequately protect intellectual property interests of Americans. We believe that this process has turned into an exercise of pressuring countries to pass copyright laws that provide maximum benefits to rights holders, preventing many social, economic, and political benefits that flow from sensible limits on copyright owner rights.

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Wyden Calls for Trade Agreements that respect Open Internet Principles

As my colleagues Sherwin Siy and Michael Weinberg have reported, Senator Ron Wyden spoke at CES yesterday and unveiled his Freedom to Compete agenda. The agenda contains many concrete proposals to preserve and promote an open Internet. In this post, I will focus on the proposal that would instruct the Office of the United States Trade Representative (USTR) to seek open Internet principles in “all trade discussions” and also talk about the process by which these trade discussions take place.

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The ITU WCIT - a Springboard for a Larger Debate on Internet Governance

The World Conference on International Telecommunications will convene this December to revise the International Telecommunication Regulations (ITRs). Certain proposals to revise the ITRs would adversely impact the open Internet.  PK and many others believe that any revision of the ITRs should not stray from their basic purpose – to facilitate international telephone calls.

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Failing to understand the needs of the 21st century: The TPP’s flawed digital locks scheme


For comprehensive information about the TPP please visit

The 14th round of negotiations for the Transpacific Partnership Agreement (TPP) started today. The TPP is being touted as a “21st century" trade agreement, implying that the TPP’s provisions would reflect an understanding of the needs of 21st century citizens. With respect to copyright, this should mean that the agreement would reflect an understanding not only of the tools copyright owners need to protect their rights but also an understanding of the flexibilities that various users (like hobbyists, cultural institutions like libraries, archives and museums, and information and communication technology companies) would need to use digital material. Yet what we know of the TPP, at best, reflects little understanding of the needs of these communities.

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Intellectual Property in the TPP: How About a Little Balance?

This blog post was co-written by Peter Maybarduk, Public Citizen's Global Access to Medicines Program Director.

This past Friday (August 17), Douglas E. Schoen published an op-ed in Politico lobbying for “strong” intellectual property (IP) protection in the Trans-Pacific Partnership Agreement (TPP). The op-ed argued that such an approach would be a "straightforward" route to "job-creating innovation." The op-ed ignored serious costs that over aggressive IP protection can pose to the economy, including the stifling of innovation in consumer electronics products and high monopolist prices for consumer goods including critical medicines. Like others before and since, the study Schoen cites does not support inferences linking particular IP demands in the TPP to innovation or jobs.

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Defining your rights to participate in culture: How the USTRs attempts on limitations and exceptions

All over the world, blind people cannot get books and other printed material as easily as those of us with sight can. Teachers face difficulties in using movies and music, particularly those in digital format, in the course of teaching. Librarians are constrained in their ability to lend and preserve books, movies, and music. Copyright laws, with the restrictions and costs they impose on these users, are a major contributor to these barriers. International copyright agreements exacerbate these barriers by constantly ratcheting up exclusive rights over knowledge and cultural products and diminishing user rights. The TPP is the latest iteration of these agreements.

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EU Parliament Rejects ACTA: Ray of Hope for TPP

Yesterday, we were treated to news of a very positive development from Europe: the European Parliament voted, by a massive majority (478-39), to reject the Anti-Counterfeiting Trade Agreement (ACTA).

This rejection comes after more than five years of negotiations that were plagued by controversy and outcry against ACTA’s secretive process. So what should you make of this rejection and what lessons should future trade negotiators learn from the ACTA experience?

For one, it should be apparent that the negotiating process is just as important as the substance. Shutting out the public and their representatives and giving privileged access to the entertainment and pharmaceutical industries severely undermines the legitimacy of the negotiating exercise.

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Possible Inclusion of Limitations & Exceptions in TPP Good Step, by No Means Adequate

PK and others have argued for a long time that international agreements, including the proposed Transpacific Partnership Agreement (TPP) must include mandatory provisions on limitations and exceptions. These provisions must promote fair use of works and also generally reflect the robust user rights that that US copyright system seeks to promote. Perhaps as an acknowledgement of the concerns that these arguments reflect, the Office of the United States Trade Representative (USTR) has announced that it is proposing a provision on limitations and exceptions in the TPP.

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700 MHz Interoperability: The FCC Should Let You Keep Your Phone

Most of you want to keep your smartphone when you switch service providers. After all, you have paid a lot of money for your phone and have customized it in a way that works for you. Having to give up your phone just because you want to switch providers is expensive and inconvenient. We at Public Knowledge, along with our friends in the public interest community, think you should have the freedom to switch providers and not be tethered to them.

The Federal Communications Commission  (FCC) is currently considering whether it should prevent the dominant carrier building a new high-speed wireless network (LTE), AT&T, from stifling the ability of smaller carriers, such as Cellular South, to acquire devices that work on this network.

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TPP Deep Dive: The TPP’s Myopic Focus on Enforcement Will Cause Collateral Damage

This is the third in the series of our deep dive blog posts talking about concerns with specific aspects of the TPP. In this one, I will talk about the copyright enforcement provisions of the TPP and why they are not in the best interests of Americans or citizens of the other TPP countries.

Like most of our other our substantive analyses, this one is based on the US proposed draft text that leaked in February last year.

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The 2012 Special 301 Report Continues to do the Bidding of the Content Industry

The “Special 301 Report” is an annual report compiled by the Office of the United States Trade Representative (USTR), supposedly identifying countries that do not provide adequate and effective protection to the intellectual property rights of US persons.

In practice, Special 301 has turned into an arm-twisting exercise forcing countries to pass laws and adopt practices favored by large copyright and patent holders and often not in the public interest.

The office of the USTR published its 2012 Special 301 Report today. We are still analyzing the report, but here are our first impressions:

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Who Should Get an IP3 Award This Year?


The public interest community has a lot to celebrate. In the last year, we have succeeded in stopping AT&T’s attempt to take over T-Mobile, prevented Congress from passing SOPA and PIPA, and saved net neutrality from a Congressional death sentence.

A number of thought leaders and activists have made these victories possible.

Public Knowledge's IP3 awards are a special occasion to honor those who have made significant contributions in the three areas of "IP"—intellectual property, information policy and Internet protocol.

This year will be the ninth year PK has made the awards, and now it's time for you to submit nominations. They can be for a career's worth of work, or for a more recent accomplishment. It's up to you.

Winners in 2011 were Sen. Ron Wyden, Beth Noveck, a professor at New York Law School and Peter Jaszi, a professor at the Washington College of Law at American University.

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TPP Tranparency Problems Keep Getting Worse

The Trans-Pacific Partnership Agreement (TPP) negotiation shuts out public participation and we have written extensively about why that is a problem. The agency leading the negotiation, the Office of the United States Trade Representative (USTR), however, seems completely oblivious to these problems, arguing instead that it has given opportunities to all stakeholders to present their views. The mere opportunity to present our views to the USTR, without more, does not cure problems with TPP’s process. However, it provides us with a minuscule opportunity to influence its outcome.

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The TPP and Policy Laundering


In previous posts, I have talked about various problems with the Transpacific Partnership Agreement’s (TPP) intellectual property (IP) chapter, the sequel to ACTA. Many of these problems could be solved with greater transparency. Yet the Office of the United States Trade Representative seems comfortable with this secrecy arguing that trade agreements cannot be negotiated any other way. They also assure us that they would not pursue provisions that are inconsistent with U.S. law. Yet, if history is any guide, they very well might be.

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TPP Negotiations Reveal Chink in U.S.’s Armor


As I’ve written before, negotiations for the Transpacific Partnership Agreement (TPP) are secret and we don’t know much about what’s in it. What we do know gives us cause for concern.

It appears from a text that leaked a year ago that the United States is pushing a copyright chapter that significantly compromises your ability to communicate on the Internet. Yet given the power of the U.S. as a negotiator and the eagerness of the other countries to gain access to U.S. markets, it appeared that the U.S. could ram this text down the throats of the other countries. However, there seems to be a small chink in the U.S.’s armor.

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Why did we have a Special 301 hearing?

Yesterday, the Office of the United States Trade Representative (USTR), along with several other government agencies, held a hearing on its Special 301 process. This hearing was part of the process by which the USTR compiles a list of countries that do not provide “adequate and effective protection” to the intellectual property rights of U.S. persons or deny market access to them. I testified on behalf of Public Knowledge. A copy of my testimony is available here.

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Shhhh. The TPP is Secret.

In my previous post on the Transpacific Partnership Agreement (TPP), I explained how provisions of TPP might harm you. Of course, it's hard to know exactly what might be bad within secret agreements like the TPP--all we have to go off of is leaked text that is many months old. But this raises another point: the secrecy itself is bad, not just because it makes it hard to comment on what may or may not be in the text, but because it undermines the democratic process. Secrecy might make sense for nuclear disarmament talks but it's hard to see why agreements like the TPP--which amount to international treaties that set levels of intellectual property protection around the world--deserve such hush-hush treatment.

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What’s Actually in the TPP?

The blogosphere is abuzz with speculation that the Transpacific Partnership Agreement (TPP) is much worse than SOPA. Is this true? Since the text is currently top secret, there is no way to tell.  Of course, that’s part of the problem. But, after tracking international intellectual property (IP) issues here a PK for a number of years, I can try to make an educated guess about what may be in TPP’s IP chapter and how it may affect you.

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Tell The USTR Not to Do Big Content’s Bidding

The United States Trade Representative (USTR) is asking for public comment in its Special 301 inquiry for 2012. Special 301 is an annual report that the USTR compiles listing countries that allegedly fail to provide adequate and effective protection for intellectual property rights of US persons. As we have said before, this report has turned into an exercise that arm-twists countries into instituting laws and policies that serve the interests of big content even where these policies hurt the free expression and due process rights of citizens.

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The TPP: Closed-Door Negotiations, Worse than ACTA, Lessons from SOPA/PIPA

This week trade negotiators from 8 countries (including the United States) are meeting in LA behind closed doors to discuss the intellectual property chapter of a new international trade agreement.

The recent outpouring of opposition to SOPA/PIPA was an indication of citizens' outrage, not only at the actual bills, but also at the fact that Congress could be so blind to the public interest in order to please the content industry. While SOPA/PIPA are unprecedented incursions into the Internet architecture, the mindset that caused these bills to go as far as they did, has been at play for a very long time: ratcheting up protections for IP rights holders with little regard for preserving balance in IP laws or due process rights of citizens. 

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SOPA and the DMCA Safe Harbors

The Internet is a great facilitator of commerce and discourse. Our laws and policies are designed to preserve this character by preventing sites that host content of others from being shut down or crippled by money damages for their users’ illegal actions. Copyright law achieves this objective by exempting content hosts, such as Youtube and flickr, from liability for their users’ infringing actions so long as these sites comply with certain conditions. These conditions are premised on the idea that copyright owners are primarily responsible for policing sites on the Internet for infringement and protecting their rights. The recently introduced Stop Online Piracy Act (SOPA) would undermine this principle. In the process, it would undermine a vital legal protection that has fostered today’s Internet.

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What We Won In ACTA

The Office of the United States Trade Representative (USTR) reports that Australia, Canada, Japan, Korea, Morocco, New Zealand, Singapore, and the United States signed the Anti-Counterfeiting Trade Agreement (ACTA) this past weekend. Representatives of the European Union (EU), Mexico, and Switzerland were present, but did not sign the agreement. It appears that the EU has "not yet completed its internal procedures authorizing the signature". Neither have Mexico or Switzerland. The Europeans claim that EU's Council of Ministers has to authorize signature, and that that will only happen after ACTA is translated into all European languages.

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Was the TPP Stakeholder’s Forum Just Lip-Service?

Trade agreements have often been used to secure intellectual property (IP) provisions that are harmful to ordinary citizens. The secrecy that generally surrounds trade agreements makes them the ideal vehicle to secure such provisions. These agreements are used to usher in international obligations that would require countries around the world to protect copyrights for longer, prosecute infringements with longer prison terms and higher fines, and generally subject more uses of works to the control of copyright owners. We have written extensively about the Anti-Counterfeiting Trade Agreement (ACTA), which was called a trade agreement and concluded in great secrecy. The Transpacific Partnership Agreement (TPP) seems to be the sequel to ACTA, but with different participating countries.

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Global Congress on Intellectual Property and Public Interest Happening Next Week

The good folks over at American University are hosting the Global Congress on Intellectual Property and the Public Interest next week. The Congress will bring together scholars, policymakers, and policy advocates to discuss how positive copyright policies can be constructed. The purpose of the event is to come up with policy recommendations that would allow copyright to serve the interests of artists and the general public and not just a few established industries. The plenary session of the Congress is open to the public and folks at American University welcome your participation. Here’s more information about the Congress:

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Civil Society Walks Away From OECD Internet Policy Principles

It was an unfortunate end to a long and laborious process when a coalition of more than 80 civil society organizations, including Public Knowledge, refused to endorse the Organization for Economic Cooperation and Development’s (OECD) Communiqué on Principles for Internet-Policy Making.
While this may seem like an obscure process, it has large implications for Internet policy in the U.S. and abroad. 

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2011 Special 301 Report: Still Oblivious to Public Interest

The Office of the United States Trade Representative (USTR) issued the 2011 Special 301 Report yesterday afternoon. For those unfamiliar with the Special 301 Reports, these are reports that the Trade Act requires the USTR to publish every year identifying countries that fail to provide “adequate and effective protection” to intellectual property (IP) rights of U.S. persons. Over the years, these reports have turned into an annual exercise of naming countries whose domestic IP policies do not meet the unrealistic expectations of IP rights holders. I have written before about our concerns with these reports. These concerns remain true for this year’s report as well.

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A Trade Agreement For The 21st Century

Today, Public Knowledge, the Special Libraries Association and Internet NZ told the Office of the United States Trade Representative (USTR) that an IP chapter in a truly “21st century trade agreement” should reflect the rights and interests of the wide variety of stakeholders affected by copyright. To demonstrate how this can be done, we submitted to the USTR our own discussion draft of a copyright chapter to be included in the proposed Transpacific Partnership Agreement (TPPA) and a letter explaining the draft. In contrast to the U.S. proposed draft, recently leaked on the Internet, we believe that this draft represents a middle-ground position that begins closer to a position that respects the interests of the many different stakeholders that will be affected.

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Proposed New Copyright Treaty Asks For Tougher Terms Than ACTA

Yesterday, a draft of the U.S. proposal for an intellectual property (IP) chapter of the transpacific partnership agreement (TPPA) leaked on the Internet. The U.S. proposal calls for IP protections and enforcement obligations more extensive than those called for in the Anti-Counterfeiting Trade Agreement (ACTA) or the most recent U.S. Free Trade Agreement (FTA) – the Korea U.S. (KORUS) FTA.

Here are the highlights of the U.S. proposal:

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ACTA the Sequel: The Transpacific Partnership Agreement

The ink on the Anti-Counterfeiting Trade Agreement has not yet dried and the Office of the United States Trade Representative (USTR) is already negotiating another trade agreement. This one, called the Transpacific Partnership Agreement (TPP), would cover trade in goods and services and also include a proposed chapter on intellectual property (IP). Countries negotiating the TPP are Australia, Brunei, Chile, Malaysia, New Zealand, Peru, U.S, and Vietnam.

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How Copyright Policies Stifle Free Flow of Information

The U.S. portrays itself as a bastion of free speech. Yet when it comes to copyright policy, both domestic and international, the government too often puts on blinders and refuses to see how copyright policies adversely impact free speech. It views stronger, longer copyrights as goals to aspire for and harsher enforcement measures as means to accomplish these goals. Domestically, this has resulted in copyright being used as a pretext to stifle political speech by taking down political campaign videos. Internationally, it has resulted in copyright being used as a pretext to crack down on dissidents. For instance, Russian authorities seized computers belonging to an environmental group critical of the government under the pretext that they housed unauthorized Microsoft software.

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Law Professors Ask for Public Input on ACTA

Seventy Five law professors including, Prof. Yochai Benkler, Prof. Susan Crawford, Prof. Lawrence Lessig, and Prof. Pamela Samuelson, have written a letter to the President expressing their concerns with the Anti-Counterfeiting Trade Agreement (ACTA) and calling upon the administration to seek public input and Congresssional approval for the agreement.

Here is a copy of the letter:

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Great Ideas To Examine How Copyright Impacts Innovation Presented At the National Academies

Almost all of us accept the proposition that copyright protection encourages creativity. But how much of this protection is appropriate? How long should it last? What sources of data can we look to to answer these questions? In the copyright context data about these and many other questions is sorely lacking and law and policy is made in its absence. For instance, in 1998 Congress extended copyright term from life of the author plus 50 years to life of the author plus 70 years based on assertions of certain rights holders (page 4) that longer terms would provide them with greater incentives to create. Yet, there was no evaluation of the effect this long term would have on many creative communities that use pre-existing works. Many, including PK, posit that these communities are adversely impacted by long terms. 

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Near Final ACTA Text Released

The United States Trade Representative (USTR) and its negotiating partners today released the near-final draft of the Anti-Counterfeiting Trade Agreement (ACTA). This text, while similar to the last draft leaked in August, has a few notable changes, most of which make the text far less problematic.

First, the provision requiring Internet Service Providers (ISPs) to disclose the identity of alleged infringers now contains a balancing provision. It states that procedures to disclose such information “shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with each Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy.”

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Copyright Policy Should Reflect Social Welfare Concerns too.

The United States Patent and Trademark Office (USPTO) is asking for public comment on its proposal to provide an incentive to those who develop technologies that meet humanitarian needs. The goal of the proposal is to increase access of impoverished populations to such technologies. The agency’s press release says that such technologies include treatments for tropical diseases, diagnostic medical tools, crops with higher yield or better nutritional value, and sanitation or clear water. The USPTO’s announcement to encourage humanitarian technologies is commendable and represents an approach that should also animate its copyright policies.

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IP in Trade Agreements: How the USTR Can Begin to End Industry Domination

International agreements prescribing what domestic intellectual property (IP) laws should look like have been around for a long time. However, the linkage between IP and trade is of more recent vintage. By recent I mean at least 16 old. And with this linkage comes the ability to enforce IP agreements with the threat of trade sanctions. For instance, recently the U.S. successfully brought an action against China before the World Trade Organization claiming that China’s IP policies violated the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). At the same time, IP aspects of trade agreements are increasingly affecting domestic policies.

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Visually Impaired Gain Access to One Million Books, Thanks to the Internet Archive

The blind, dyslexic and other visually impaired people have long suffered what many advocates have termed a “book famine,” having access to only 5% of all published books. This situation is even worse in developing and underdeveloped countries. But now another step has been taken in improving this situation thanks to the Internet Archive.

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USTR Special 301 report: Business as Usual

On April 30, this year the Office of the United States Trade Representative (USTR) came out with this its Special 301 Report. The Report is disappointing in many respects. Despite unprecedented public input into the process and calls by public interest commenters to consider the importance of balance in copyright law, the report continues to promote a view of intellectual property (IP) law that tramples on user rights. By providing vague explanations for countries' placement on watch lists and seemingly placing reliance on unsubstantiated and questionable rights-holder assertions, it completely ignores our calls for transparency and accountability.

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Old Problems Remain in New ACTA Text

The United States Trade Representative (USTR) today released the text of the Anti-Counterfeiting Trade Agreement (ACTA). The text closely follows the recently leaked consolidated text, with only some minor differences. While today's released document doesn't indicate which proposals were made by which countries, both the leaked document and today’s release indicate that there are differences about whether ACTA’s provisions would cover all intellectual property (IP) rights or would be limited to trademark and copyright infringement. While a lot of initial stories have concentrated on the Internet provisions, there's a lot to find throughout the document. Here are some of the significant provisions we've found in ACTA's current draft:

Key definitions missing

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American University calls for papers on ACTA and Special 301

The American Universities’ Program on Information Justice and Intellectual Property (PIJIP) is calling for a series of working papers on the public interest impacts of intellectual property enforcement covering a wide range of issues including the Special 301 process and the Anti-Counterfeiting Trade Agreement (ACTA). While a lot has been written about ACTA’s secretive process and its Internet chapter, PIJIP’s initiative may lead to a much more comprehensive analysis of ACTA particularly, and the enforcement agenda generally.

As the American University’s website specifies, the papers should be 8-12 pages long and geared towards policy makers. Accepted papers will be presented at a workshop in Washington D.C. If you are interested in writing a paper, please contact Sean Flynn, Associate Director, PIJIP at Abstracts should be submitted to by April 15.

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Another ACTA leak: Will the USTR Ever Listen to Public Interest Concerns?

The drip, drip of leaked versions of the Anti-counterfeiting Trade Agreement (ACTA) almost burst a pipe earlier this week. Rather than the chapter-here, sub-point there leak as in past weeks, a consolidated text of the whole secret agreement bubbled up. The latest leak, a complete version of the agreement dated January 18, 2010, is the most comprehensive so far. The leak confirms that ACTA would contain six chapters, some of which include several sections. In addition to the much-discussed elements on transmission of copyrighted material online, there is a chapter on civil, criminal, and border measures.

The latest leak confirms that provisions in ACTA’s Internet chapter could be interpreted as supporting a “three strikes” policy allowing Internet Service Providers (ISPs) to throw off of the Internet those customers accused of infringement.

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First Public Hearing on Special 301: Great first step with room for improvement

UPDATE: A copy of the audio recording of the Special 301 hearing is available on the USTR website at this link: (scroll down to "Recent Audio")

The United States Trade Representative (USTR) held a public hearing on Wednesday, as part of its ongoing 2010 Special 301 review process. This year marks the first time that such a hearing was held and that public interest representatives, including myself, were invited to testify. The Trade Act first instituted the Special 301 process in 1988 and authorized the USTR to identify countries that fail to provide “adequate and effective protection of intellectual property rights” or that deny “fair and equitable market access” to U.S. persons who rely on intellectual property (IP) protection.

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PK and EFF: 2010 Special 301 Review Should Respect Copyright Balance and Increase Transparency

Today, Public Knowledge, along with the Electronic Frontier Foundation (EFF) filed comments in the 2010 Special 301 review process. We wrote about this issue last time calling upon you to file comments with the USTR. I want to thank everyone who responded to our call and filed comments. Here are our comments.

As we said before, the Special 301 process, which is supposed to ensure protection for US intellectual property, has morphed into an instrument used to exert pressure on foreign countries to curtail socially beneficial intellectual property limitations and exceptions, ratchet up penalties for infringement, and force countries to sign treaties that are not necessarily in their best interest.

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UPDATE: TAKE ACTION! Tell USTR balanced copyright is important

UPDATE: We've created an action alert to help you file comments with the USTR. Go here now and let the USTR know you care about exporting fair use and innovation policy!

A balanced copyright regime that respects the rights of creators and users is vital for innovation and advancement of learning. The carefully balanced regime that has existed in the U.S. for the past 200 years has allowed libraries to lend books, teachers to educate their students, and innovators to bring products such as the VCR, the TiVO, and the Sling Box to the market. Sadly, agreements such as the Anti-Counterfeiting Trade Agreement and several Free Trade Agreements show that the U.S. has given short shrift to this balance in pursuit of copyright policy abroad. Another process that shapes intellectual property (IP) policy abroad, called the Special 301, is currently underway in the Office of the United States Trade Representative (U.S.T.R.).

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The 19th session of the WIPOs Standing Committee on Copyrights and Related Rights Promises More Work

The 19th session of the Standing Committee on Copyrights and Related Rights (SCCR) concluded this past Friday. Since my last post, the SCCR discussed the treaty for protection of audio visual performers (AV Treaty) and also a treaty for protection of broadcasting organizations.

The AV Treaty proposes to provide copyright protection to actors and other performers in movies and other audiovisual works. An effort to conclude the AV treaty had failed in 2000, as countries failed to reach agreement on the issue of how rights would be transferred from performers to producers. The issue is significant because, a motion picture involves the creative input of a large number of people and requires rights to be aggregated in one entity, usually the producer, to enable licensing rights to it. The law with respect to transfer of rights varies in different jurisdictions.

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Another ACTA leak reveals Europe’s worries about Internet chapter

The Daily Finance is reporting on a newly leaked memo from the European Union analyzing and critiquing ACTA’s Internet chapter.

According to the memo, ACTA’s Internet chapter would have provisions dealing with secondary liability, ISPs safe harbors from copyright liability, and DMCA style civil and criminal penalties for breaking digital locks. The memo points to how provisions in this chapter would conflict with European Union (EU) law and go beyond the requirements of existing international treaties. For instance, the secondary liability provisions would require ACTA member countries to enact laws against contributory copyright infringement, a legal concept that does not exist in EU law and in the laws of some member countries.

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Artist, Open Government, and Civil Liberties Groups Join Calls for ACTA Transparency

Public Knowledge and other public interest organizations have been calling for transparency in the Anti-Counterfeiting Trade Agreement (ACTA) negotiations since the United States Trade Representative (USTR) started the negotiation process. The Freedom of Information Act (FOIA) requests file by PK, EFF, and KEI are a testimony to this fact. Continuing this saga, PK and 15 other public interest, library, artist advocacy, and civil rights organizations sent a letter to the President yesterday, urging him to keep his promise of making government more open, transparent, and participatory and release the ACTA text.

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U.S. Chamber of Commerce uses the DMCA to silence critic

Copyright owners have often used the DMCA’s notice and take down procedure to silence criticism instead of preventing copyright infringement. A recent DMCA take down involving the group Yes Men is yet another example of this phenomenon. On October 22, a website created by the Yes Men which parodied the U.S. Chamber of Commerce’s stance on a climate change bill was taken down pursuant to a DMCA notice.

The Yes Men is a group that exposes corporate greed by posing as corporate representatives and pulling off the “world’s most outrageous pranks.” Their most recent prank that caused the ire of the Chamber involved the Kerry-Boxer climate change bill. The Chamber opposes the bill even though its decision to do so has been controversial.

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PK and EFF Tell Congress: Secret Negotiations Harm the Public Knowledge

As many of you know, PK and its friends have been fighting to lift the veil of secrecy that shrouds the Anti-Counterfeiting Trade Agreement (ACTA) negotiating process. The lack of public disclosure has meant that consumer advocates and the general public are left to plead their case in a near vacuum, without the ability to review and consider the documents and positions that the U.S. Trade Representative (USTR) is advancing on our behalf. Meanwhile, representatives of intellectual property (IP) owners belong to a trade advisory committee called ITAC 15, which holds confidential meetings. Through their membership on ITAC 15, IP owners may be able to influence provisions in ACTA.

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PK and EFF Tell Congress: Secret Negotiations Harm the Public

The U.S. has included chapters on Intellectual Property (IP) in many of its trade agreements and negotiated these trade agreements in secret. Secrecy in negotiating (IP) aspects of trade agreements poses a grave danger to the public policy goals underlying U.S. copyright and patent laws. The public, which is affected by these agreements, is not allowed to present its views on proposed provisions. However, representatives of IP owners, through their membership in one Industry Trade Advisory Committee (ITAC), have the opportunity to influence their formulation.

The House Ways and Means Committee, Subcommittee on Trade is examining the functioning of trade advisory committees. The Subcommittee held a hearing on this issue on July 21st and kept the hearing record open for members of the public to submit written testimony.

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Deja Vu: Broadcast Treaty to Remain on SCCR Agenda

The 18th session of the Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO) concluded last week. The most substantive discussions centered around: 1) a treaty for limitations and exceptions to copyright to facilitate access to works by the blind, visually impaired, and other reading disabled and 2) a proposal to consider possible norms for limitations and exceptions to copyright. I have written about some of these discussions in my previous post.

In addition, the Committee also discussed proposed treaties for protection of broadcasting organizations and audiovisual performers. Discussions concerning the broadcasting treaty during this session mirrored that of the last session of the SCCR which Sherwin has reported here.

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WIPO SCCR Day 1: Countries Divided About Limitations and Exceptions to Copyright

Compliance with international treaty obligations has often been used as a justification to erode user rights granted by copyright law, the most famous example being the enactment of the DMCA. So when international organizations embark upon the business of treaty making, we in the public interest community pay attention. One such organization, the World Intellectual Property Organization (WIPO) is discussing several copyright issues in its ongoing 18th session. The session started yesterday with the election of the Chair and the adoption of the agenda. Up for discussion this time are two positive issues: limitations and exceptions to copyright; and a treaty for the blind, visually impaired, and other reading disabled.

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Nominations Now Open For the 2009 IP3 Awards


It’s that time of year again: time to nominate individuals for our annual IP3 awards. As you may know, each year, Public Knowledge selects three individuals to receive the IP3 Award. These winners are people who have advanced the public interest in each of the three “IPs:” Intellectual Property, Internet Protocol, and Information Policy. Previous IP3 winners have included everyone from EFF lawyer Fred von Lohmann and Virginia Congressman Rick Boucher to the band OK Go and Gnarls Barkley member DJ Danger Mouse. Be sure to nominate your picks by June 22nd and look out for list of winners in October.

To submit a nomination for the IP3 Awards, email your picks to

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PK response to the MPAA: Securing Human Rights Does Not Harm Copyright

Access to information is a fundamental human right. It allows individuals to effectively participate in social, political, and cultural life. Many international treaties oblige countries to secure this right for all individuals including those with disabilities. However, as I noted in my previous post, many national copyright laws, including US copyright law, place limitations on access to information by the blind. A move to address this issue is underway at the World Intellectual Property Organization (WIPO), which may consider an international treaty that would require countries to remove certain copyright restrictions that prevent access. The Copyright Office, which is part of the U.S. delegation to WIPO, had invited public comments on this issue. The comments filed with the Copyright Office are available here.

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The DMCA hearings bring out outrageous arguments against fair use and consumer rights

This past week the Copyright Office held public hearings in Washington D.C. and Palo Alto, California, as part of its fourth section 1201 rule making proceeding. The Digital Millennium Copyright Act (DMCA) requires the Copyright Office to conduct these proceedings once every three years to exempt from the DMCAs prohibition on circumvention of technological protection measures (TPMs) those lawful uses that are adversely affected. I attended the last two days of the D.C. hearings and came away not only with a renewed understanding of how the DMCA is killing consumer rights especially fair use but also how much content owners are afraid of fair use. The hearing also reaffirmed something we have said always: the DMCA is used more to lock out competition than to protect copyrighted works. Here are some of the arguments that stood out:

The fair use exemption for documentary filmmakers and vidders:

The most forceful advocates for fair use were Prof.

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PK tells the Copyright Office: Technology will enable the blind to access more information

What does access to information mean to you?: the ability to read your newspaper – physical or online – every day?; the ability to go to a book store and buy your favorite author’s book?; the ability to read professional publications to advance your career? Most of us rely on these sources and more to keep ourselves informed and participate in society. But for the blind and the visually impaired access to information is not easy. Works have to be converted to special formats to enable access. Because copyrights are implicated during the process, copyright law provides certain exceptions enabling the creation of accessible formats.

Are these laws sufficient to allow the blind to read anything they want to? Is the market responding to their needs? The Copyright Office is asking for public comments on these and other questions.

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After a day long hearing on how to protect consumers from DRM, FTC hesitant to act


We at Public Knowledge along with many others in the public interest community have always said that content owners have abused DRM to harm consumers. So when the FTC announced its decision to hold a hearing on the issue, we expected that at least some consumer protection measures would finally emerge. Our expectations might have been too high, because towards the end of the hearing it seemed like the agency might not do much in this area. The hearing was held in Seattle, went from 8:30 in the morning till about 5 in the evening, and the FTC heard from a number of experts about both the benefit and the harm from DRM, as well as what could be done to address the harm. A consensus seemed to emerge that a notice of DRM to consumers would be a way to address some consumer harm. Before I talk about how a notice might solve these concerns, let me discuss what was said about the benefit or harm from DRM.

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PK Tells FTC: DRM Harms Consumers

Public Knowledge recently filed comments with the Federal Trade Commission (FTC) highlighting the adverse impact of the use of DRM technologies on consumers. Our comment focused on three areas: frustration of consumer expectations, constraining consumer's rights under copyright law, and the use of DRM for anti-competitive purposes.

In view of incidents such as the Sony Rootkit scandal and the Spore incident where DRM was installed on consumers' computer without their knowledge and used to subvert their control, we are suggesting that the FTC put in place a standardized labeling scheme.

We are also hopeful that the agency will recommend further changes to the anti-circumvention provisions of the DMCA so that its harmful effects on consumers will be mitigated. The FTC plans to hold hearings on the issue in Seattle on March 25, 2009. The event is free to the public and will be webcast.

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Performance Right for Sound Recordings Moves Forward, Questions Remain

Artists and record labels who have been agitating for parity with songwriters took a major step forward this past Wednesday when House Judiciary Committee Chairman John Conyers introduced H.R. 848 the “Performance Rights Act”. The bill would require terrestrial broadcasters to obtain a license from holders of copyright in sound recordings whenever they transmit music. The bill would also require 50% of these licensing fees to be paid directly to recording artists, regardless of the terms of their contract with record labels.

While this is a good first step, the bill leaves a lot to be desired by way of achieving parity between the treatment of terrestrial broadcasters, satellite broadcasters, and webcasters.

By way of background, until 1995 copyright law did not provide a general public performance right to owners of copyright in sound recordings i.e record labels and artists.

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Help Creative Commons Improve Their Licenses

Anyone who has used a [Creative Commons]( license and likes the flexibility of use it allows owners of a copyright to offer to users should be interested in understanding the terms of the cc licenses better. Creative Commons is [conducting a study]( to shine the light on one such term - “noncommercial”. The hope is to use what’s learned from the survey responses to explain how use of the term might benefit or harm artist’s interests and even improve the licenses that incorporate the term. The Creative Commons team’s questionnaire has to be completed by this Sunday (December 14). If you are an artist or an author, please take some time to answer the questionnaire and help Creative Commons make their licenses even more useful.

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10 Years of the DMCA

Today is the 10th anniversary of the Digital Millennium Copyright Act (DMCA) – a law that content owners claimed was absolutely necessary if they were to make content available in digital form. At the time the legislation was being considered, opponents including libraries, museums, and representatives of the consumer electronics industry warned that the legislation would jeopardize fair use and other lawful uses. Today, many of these fears have been realized. What is more, the DMCA has been used in ways lawmakers never intended. However, the law's effectiveness in preventing “piracy” still remains questionable.

Over the course of this week and into the next PK will post a series of video interviews with scholars, educators, and innovators affected by the DMCA. Stay tuned and hear what they have to say.

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The McCain Campaign’s Run In With The DMCA Highlights Need For More Balanced Copyright Law

Public interest advocates have said, for a long time, that the Digital Millennium Copyright Act’s (DMCA) notice and take down provisions stifle free speech. Now the McCain campaign is chanting the same mantra, albeit in a limited sense. As many have reported, on October 13, the McCain campaign wrote to YouTube complaining that the sites’ take down of some of its campaign videos impinged on free speech. For example CBS sent a DMCA take down notice against a McCain ad that claimed that the “lipstick on a pig” remark was directed at Governor Palin.

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Studios Sue RealDVD: Another Attack on Personal Use


Large content owners have constantly sought to control every use of their content. In pursuit of this control, they have often sued the creators of technologies that have offered consumers new ways of enjoying content. Those sued have included the makers of the digital audiotape, the Betamax videotape recorder, and the Pioneer Inno used with XM's satellite radio service. The latest lawsuit in this saga has been filed by a group of Hollywood studios against RealNetworks. The object of their ire this time is RealDVD, software that allows consumers to make copies of their DVDs.

Here’s how RealDVD works: It allows a consumer to make a complete bit-for-bit copy of a DVD, including the included CSS encryption, onto his computer or an external hard drive.

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Senate passes the Shawn Bentley Orphan Works Act of 2008. Will the House do the same?

This past Friday, the Senate passed the Shawn Bentley Orphan Works Act of 2008. The bill’s provisions are mostly similar to the version as introduced. Alex’s analysis of the provisions of the bill as introduced can be found here. The major change in the bill as passed is in the “diligent search” provisions.

The bill improves upon previous “diligent search” language by clearly spelling out the user’s obligations, thereby addressing the argument that insufficient searches would permit the use of works that were not truly orphaned.

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Q:  How can a manufacturer prevent importation of a product? A: Slap a copyrighted design on it.

Copyright law seems to have become a convenient means to achieve objectives that have nothing to do with protecting the rights of authors and artists. For instance, the DMCA’s use to stifle competition and research are well chronicled. The latest example of this expansive application of copyright law comes in the form of the recent Ninth Circuit Court of Appeals decision in Omega S.A. v. Costco Wholesale Corp where the watchmaker Omega invoked copyright law to control the distribution of its watches, not because the watches themselves were protected by copyright, but because a design engraved on their underside was.

Omega’s watches were manufactured in Switzerland with a U.S. copyrighted “omega globe design” engraved on their underside. Omega authorized sale of these watches in Switzerland. After a series of subsequent sales they were purchased by a New York company, which sold them to Costco.

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New York State Court Holds That Fair Use Applies to Sound Recordings

The Center for Internet and Society at Stanford Law School reports that a New York State court has refused to stop the distribution of the film Expelled: No Intelligence Allowed, holding that the movie’s use of a clip from a John Lennon recording is not likely to violate copyrights held by EMI Records and Capitol Records. The movie uses a 15 second clip of John Lennon’s "Imagine" in juxtaposition with views about religion and science. In refusing to stop the distribution of the movie, the court held that the use was probably fair. This decision comes two months after a federal district court in New York held that use of the underlying lyrics in the same song was also likely to be fair use.

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Cablevision remote DVR case sets the standard: Copyright Office should follow suit

This past Monday, Sherwin wrote about the Cablevision decision by a federal appeals court that held that a remote DVR service did not violate the copyrights of major film studios and television networks. Part of the Cablevision decision was based on the idea that buffers do not implicate the reproduction right and are not infringements. This holding addresses an issue often raised by the content industries and that resonates in other areas of copyright law. In particular, the ruling comes at a time when the Copyright Office is proposing new rules that would establish that buffers do in fact implicate the reproduction right.

The Copyright Office’s proposed rule changes relate to the definition of a Digital Phonorecord Delivery (DPD) – the digital equivalent of a CD sale.

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HR 4279 and S. 3325:  which one is the lesser of the two evils?

Senators Patrick Leahy(D.Vt) and Arlen Specter(R-Pa.) introduced the “Intellectual Property Enforcement Act of 2008”, S. 3325 last Thursday. Like the PRO IP Act, H.R. 4279 passed by the House recently, S. 3325 seeks to ratchet up enforcement by combining under one banner violations of laws as varied as copyright infringement, trademark counterfeiting and use of spurious or false marks on goods and services and increasing penalties for their violation. It also, makes registration optional for criminal copyright infringement. We have said before and continue to say that such a provision would reduce the incentive to register and aggravate an already acute orphan works problem. While S. 3325 mostly tracks H.R.

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Proactively Protecting Visual Artists’ Copyrights

Visual artist groups have been up in arms about orphan works reform proposals for a long time. This opposition is based on misconceptions about reform proposals, which we debunk here. One of these misconceptions is that the orphan works bills currently before the House and Senate would require owners to act proactively to protect their rights. So lets talk about the idea of owners being active in protecting their rights.

Let me be clear. The orphan works bills would not require owners to take any steps not already required by copyright law to be eligible for copyright protection. The bills would merely provide a way, with visual registries, to help owners identify themselves as creators of their works. Owners are free to use these services or not.

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Public Knowledge files comments on ACTA

Public Knowledge filed comments regarding the proposed Anti-Counterfeiting Trade Agreement (ACTA) last Friday advising the office of the United States Trade Representative (USTR) that ACTA should not adversely affect the rights of consumers and technology innovators in its efforts to curb counterfeiting and piracy.

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Publishers and PicScout make our case for orphan works

The book publishers and an online infringement tracking company, of all people, made PK’s case for an orphan works solution yesterday. Testifying before the House Subcommittee on Courts, the Internet and Intellectual Property, Allan Adler, of the Association of American Publishers (AAP), said that Congress should move forward with legislation that would solve the orphan works problem. At the March 13 hearing, he advocated for a solution based on the framework set by HR. 5439 introduced in the 109th congress. You can find an analysis of that bill here.

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UPDATE:  RIAA double standard: Labels should pay artists percentage of revenue, denies same method t

How much compensation should an artist get when his music is used? And in deciding this question, what consideration should be given to the interests of the distributor? If you ask the RIAA or SoundExchange the answer would be that the artist deserves the highest compensation if the RIAA members don’t have to pay it. If they do, whoever decides the amount of compensation should always be mindful of the RIAA companies’ bottom line.

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Design protection for fashion designs and autoparts: A bad idea times two

As Alex mentioned, the House Subcommittee on Courts, the Internet and Intellectual Property held a hearing on the need to protect fashion designs and designs of external automobile parts this past Thursday. A bill to protect fashion designs, H.R. 2033, has already been introduced in the House. We’ve written about it here, here and here, but this bill would prevent designers from making garments and accessories that look the same or substantially similar to protected designs.

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What a copyright troll looks like

I have heard stories about patent holding companies acquiring patents and harassing legitimate businesses that might be inadvertently infringing on the patent. But I thought this did not happen in the copyright context. That is why I was shocked when I was forwarded a link to Dan Heller’s article which explains how being infringed is good for a photographer’s business. Heller points to a news story about Corbis’ lawsuit against TemplateMonster which resulted in a $20 million judgment for Corbis and tells photographers whose photos have been infringed that they may be “sitting on a pot of gold”.

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U.S. Government Should Seek Public Comment on Anti-Counterfeiting Treaty

No one is opposed to efforts that seek to curb counterfeiting and piracy, especially when those efforts seek to prevent the entry of unsafe products into streams of commerce. However, what many are opposed to is increasing already high penalties for IP infringement and increasing the rights of content owners at the expense of consumers in the name of curbing counterfeiting and piracy. What is worse is when this happens through an international treaty that is not open to public scrutiny. Case in point: the Anti Counterfeiting Trade Agreement (ACTA).

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The Senate Should Vote on the Patent Reform Act of 2007

The Patent Reform Act of 2007 has been awaiting a vote on the floor of the Senate for sometime now. Public interest groups have been hoping there will be a vote sometime this fall. The House passed a similar version of the bill on September 7th of this year. There has been too much discussion and deliberation about patent reform for this bill not to come to the Senate floor. The FTC came out with its recommendations for patent reform in 2003 and the National Academies came out with their report in 2004. Many provisions of this Patent Reform bill and its previous iteration are based on recommendations in these reports.

When the bill is considered for a vote, public interest groups only hope that some of its reform provisions don’t get watered down in effectiveness. As it stands a few key provisions in the Senate bill are more pro-reform than the House bill.

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Musicians Eager to Embrace the Internet

Musicians are definitely interested in using the Internet to reach their audience. That was the clear message I got at the Copyright Tutorial for Musicians that Public Knowledge hosted in New York City recently. Sherwin and I gave the presentation at the tutorial, which was designed to give musicians an overview of copyright law and policy. The event was co-sponsored by the New York City based Volunteer Lawyers for the Arts.

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NTP’s attempt to monopolize wireless email: A case for patent reform

First NTP is setting its sights on wireless email providers and targeting mobile devices such as PDAs, cell phones and smart phones that are capable of sending emails. What next... the laptop? NTP filed lawsuits against Verizon, AT&T, Sprint Nextel and T-Mobile claiming infringement of eight (8) of its patents. The lawsuits, filed in Federal District Court in Virginia, seek an injunction against the sale of these devices. Lawsuits like these threaten to deprive people of continued use of legitimately purchased products and services.

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Copyright Workshop in Rochester, NY

Public Knowledge will host a copyright workshop for musicians in Rochester, NY on September 10th. The workshop will cover the basics of copyright law and how it applies to musicians. It will also discuss current issues in copyright policy. The event is sponsored by the New York State Music Fund and is being promoted through the Rochester Music Coalition. Event details:

When: September 10th, 6 to 8 P.M.

Where: Water Street Music Hall

To RSVP please email

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UPDATE: Patent reform bills move forward

Similar versions of the Patent Reform Bill of 2007, introduced in April this year, reported out of the House and Senate Judiciary Committees recently. I gave a brief summary of bill introduced in April in my last post. The current bills, although amended, retain the essence of the provisions of the earlier bill.

Both the Senate and House versions of the bill contain provisions, which if enacted, would go a long way towards enhancing the quality of issued patents, reducing litigation and unnecessary licensing and removing artificial constraints on competition and innovation. I will mention a few provisions that stand out.

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Supreme Court Tells Federal Circuit to be Flexible in Determining Obviousness

The Supreme Court yesterday rendered a very positive decision that will enhance patent quality by ensuring that patents are not issued on combinations that are obvious. Ruling in the KSR Int'l Co. v. Teleflex Inc appeal, the court cautioned against granting patents for combination of elements found in prior art without properly considering whether the combination would have been predictable given the state of the industry. The court said:

[P]atent for a combination which only unites old elements with no change in their respective functions...obviously withdraws what is already known in the field to its monopoly and diminishes the resources available to skillful men.

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Patent Reform Bill Introduced in House and Senate

Both houses of Congress introduced similar versions of a patent reform bill recently. The bill, called the Patent Reform Bill of 2007, introduces provisions likely to significantly improve the way current law deals with patent infringement liability. Other changes proposed by the bill are:

  • Replacing the first-to-invent system with a first-to-file system

  • Post-grant review of patents

  • Provision for third parties to file patent defeating documents before patents are issued

  • New rules as to where a suit can be instituted

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Using Peer Review to Reform Prior Art Search at the USPTO

The debate on patent reform is contentious and one of the sticking points is the patent examination process and the resulting patent quality. Of course, a properly issued patent is essential for innovation. In order to be valid, a patent should be granted only if the innovation it claims is novel. To determine novelty, examiners at the United States Patent and Trademark Office USPTO are required to conduct an extensive search for "prior art". However, too often, examiners fail to find relevant prior art because they face severe time constraints. Reform of the prior art search process was the subject matter of a presentation at the Information Technology and Innovation Foundation forum yesterday.

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Home Recording Rights Under Attack

The music industry is mounting a concerted attack on consumer's home recording rights. Here's their logic: Piracy comes from unauthorized copying and unauthorized copies come from unauthorized recordings; thus, we must stop unauthorized recordings. Of course this ignores all the legitimate uses of recording and copying, but that's beside the point. Their attack comes in the form of two bills - the Section 115 Reform Act and the Perform Act and a lawsuit filed by major record labels against XM Radio.

First, online music providers such as Apple, Yahoo, AOL and RealNetworks, through their association, DiMA, are asking Congress to enact a bill called the Section 115 Reform Act, or S1RA or SIRA, aimed at improving the process by which they license musical compositions. The bill contains provisions, which require online music providers to implement technology, which would prevent consumers from recording their transmissions.

Second, the Perform Act, which is supported by the National Music Publisher's Association and the Recording Industry Association of America, was recently introduced in the Senate. The bill seeks to reform the procedure by which digital, Internet, and cable radio services obtain licenses for transmitting music digitally. Some provisions in the bill would prevent consumers from making use of the benefits offered by digital technologies. For instance, the bill would make it illegal for broadcasters / webcasters to permit their listeners from automating the process of recording songs based on the artist or album. If you're thinking that's the same as TiVo, but for radio, you're right. Gary Shapiro of the Consumer Electronics Association clearly understood the implications when he said, "The Perform Act ... would require any device that can record from a satellite radio service to play back songs only in the order transmitted on a particular channel--- not in the order desired by the owner of the device".

Third, the lawsuit against XM Satellite Radio alleges that XM's tethered download service infringes copyrights. The XM+MP3 service allows XM subscribers to record up to 50 hours of songs and programs on a device called the "inno". Think of it as an iPod that records off satellite radio, except once you've recorded the content, it's stuck on the device--you can't get it off. Record labels allege that the device will allow consumers to create permanent libraries of songs sorted by artist, title and genre. This allows them to listen to songs individually--not as broadcast--thereby displacing song downloads and CD sales. "But, haven't we always been able to record off the radio?" I'm glad you asked.

Consumer's right to record broadcast music has long been recognized. In 1992 Congress settled the debate and passed a law called the Audio Home Recording Act (AHRA) to resolve any doubts about whether home recording constituted copyright infringement. The law provides that all manufacturers of recording devices, like the inno, and blank recording media, like blank CDs, pay a royalty for each sale, and that be dropped into a pool for copyright owners. It also requires that all digital recording devices distributed in the United States and all digital transmissions of music incorporate a technology that would allow consumers to make only one copy of the recorded or transmitted music.

The industry claims that permitting home recording from digital broadcasts is tantamount to distributing free copies of the broadcast music, resulting in lost sales to the industry. However, this was the whole purpose of the AHRA-- to ensure that copyright owners get paid whenever consumers record music from radio broadcasts, or music CDs. The music industry even hailed this law as a solution to the problem of home recording, but today they seem to have forgotten about it. The music industry wants to prevent consumers from taking advantage of the possibilities offered by new digital technologies - listen to only the songs they want to and in the order they want to by recording them legally off of their broadcast medium of choice.

I want to make it clear--what I'm talking about here has nothing to do with piracy. The content industry isn't even alleging that red herring in this context. No, SIRA, the Perform Act, and the XM lawsuit are all attempts to prevent what consumers can do in the privacy of their homes. The music industry conveniently omits that consumers have already paid a royalty for their right to record music--through AHRA and the purchase of the recording device. Once again, they're not seeing the new business models or thinking out of the box. By asking Congress and courts to require all recording devices to be like traditional CDs or tapes and all radio broadcasts to be like traditional broadcasts, the content industry is stunting the growth of new technologies and services. These new services increase consumer options and through the AHRA ensure that the copyright owners get paid.

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