Fall Policy Preview: Copyrights (and Patents) Return to the Headlines

This past spring and summer was all about broadband policy for Public Knowledge - we were consumed with the 700 MHz spectrum auction, Federal Trade Commission and Federal Communications Commission proceedings regarding net neutrality, and Congressional efforts to change the way the government defines broadband and gathers data about broadband deployment and adoption.

This fall promises to be much different. The rules for the spectrum auction have been set, and while a number of parties (including most likely, our Public Interest Spectrum Coalition) will ask the FCC to "reconsider" some relatively minor aspects of the decision, no one should expect any major changes to the decision that came out on August 1. The FTC issued its net neutrality report, and the FCC's inquiry on broadband practices, including net neutrality, is unlikely to be finished anytime soon, and likely will remain open for the next FCC to conclude after January 2009. The broadband data bills are still alive and kicking, but there is no timetable for passage by either house. Last week, speakers at a One Economy panel discussion featuring former FCC Chairmen Richard Wiley and Bill Kennard, as well as former FCC Chief of Staff (now super telecom-analyst) Blair Levin and former Commerce Department official (now super lobbyist) Bruce Mehlman were united in the opinion that with the exception of actions regarding the Digital TV transition and universal service fund reform, not much was going to happen in communications policy until after the election.

So does that mean that PK staff will be sitting around twiddling our thumbs for the next few months? Hardly. Copyright and patent issues are rising to the top of Congress' and the courts' agendas, so we will be very busy. We've already discussed in detail the pending patent reform bills and why we think their passage will be bring some long-needed sanity back to our patent system. But after an eight-month hiatus, we expect to see the usual onslaught of copyright bills, and it won't surprise any readers of this blog to hear that we aren't going to be happy with some of them. Here are some of the legislative possibilities and PK's take on them:

1. Copyright Enforcement

Just before summer recess Representative Steve Chabot (R-IN) introduced a copyright enforcement bill that would, among other things: a) make "attempted" copyright infringement a crime; b) double the prison sentences for copyright infringement violations, bringing them up to a range of 6 to 20 years; and c) add new penalties to both copyright law and DMCA, including requiring anyone convicted under the laws to forfeit any property (including personal computers) used in any manner to commit the offense. With a Republican lead sponsor and just three co-sponsors (all Republicans), this bill is unlikely to go anywhere. But it is no secret that IP subcommittee chair Howard Berman (D-CA) will be introducing his own bill in the next couple of weeks. We feel pretty sure that the attempted infringement language will not be in Mr. Berman's draft, and that rumors that the bill will mandate that Internet Service Providers (ISPs) send warning notices to copyright infringers using their networks are unfounded. Beyond that, we don't know what else is in store. PK hopes that Mr. Berman's bill focuses solely on commercial pirates and leaves ordinary folks alone.

2. Mandated Filtering by ISPs/Amending the Digital Millennium Copyright Act (DMCA)

Forcing ISPs and websites like You Tube to filter their networks and sites for copyright violations is Hollywood's newest obsession. As we reported during the summer, NBC asked the FCC as part of its broadband inquiry to require ISPs to filter their networks. Such a filtering mandate could turn up in the enforcement bill or elsewhere, and most likely would be fashioned as a condition to ISPs obtaining protection from liability for the infringement of others pursuant to the DMCA. Currently, ISPs and other "online service providers" are free of such liability if they take down the offending material when asked to do so by a copyright holder. This, of course, is at the core of Viacom's lawsuit against YouTube - Viacom claims that YouTube is not entitled to that protection.

Of course, if the content industry wants to re-open the DMCA, copyright reformists have a number of their own ideas for changing the law to protect fair use and innovation, starting with H.R. 1201, the Digital Media Consumers' Rights Act. Whether members of Congress, many of whom drew blood over the original law nearly 10 years ago, want another battle remains to be seen.

3. Music Licensing Reform

Last year, sincere efforts to make it easier for online services and others to license the rights to music were hijacked by the recording industry's attempts to, among other things a) impose technology mandates on digital satellite radio and HD radio; b) make buffer copies licensable and c) take royalties away from artists. This fall, a lot of attention will be paid to the question of whether over-the-air broadcasters should pay the same performance royalties to record labels and artists as satellite radio and webcasters. And speaking of webcasters, they still have not been relieved of the new higher royalty rates set by the Copyright Royalty Board earlier this year. While PK is sympathetic to leveling the playing field with respect to performance royalties, we think that new broadcaster royalties should offset royalty hikes for webcasters, particularly small ones. PK would also like to have some assurance that new royalties actually get distributed to the artists.

4. Orphan Works

Fixing the "orphan works" problem is seemingly a no-brainer, but a bill has yet to be introduced in either the House or Senate this year. Orphan works are works under copyright for which the copyright holder cannot be found, even after a "reasonably diligent search." In 2005, the Copyright Office made a proposal that would limit the damages that anyone that chose to make use of an orphan work after such a search would have to pay, and legislation to that effect made some progress in the House the following year. While there are some minor differences around the edges, the content industries and copyright reformers largely agree on the parameters of such legislation. There are some parties, including photographers, graphic illustrators and textile manufacturers, who oppose any orphan works legislation, because they view it as a loophole for infringers. PK has tried to address their concerns by proposing that the Copyright Office certify visual registries that would make it easier to find these visual works. We are still working hard to get a bill introduced (probably first in the Senate) soon.

So PK will have a full plate on the Hill for the foreseeable future, and this list doesn't include supporting the CCIA fair use initiative at the Federal Trade Commission or the various copyright-related lawsuits wending their way through the courts. As always, PK will keep you updated on all of these proposals.

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