A Perfect Storm of Bad Copyright Legislation
A Perfect Storm of Bad Copyright Legislation
A Perfect Storm of Bad Copyright Legislation

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    Here at PK, we've been keeping our heads down the past few days, trying to fight against some really bad legislation. Once we finally get word of one, another one popped up. There are three in all (so far) are four (another was introduced during the writing of this post!!!) and we're going to need your help to put them away.

    S. 3325, The Enforcement of Intellectual Property Rights Act of 2008

    First up is the Senate's version of the House's PRO-IP bill, S. 3325, “The Enforcement of Intellectual Property Rights Act of 2008.” Rashmi's written a good breakdown of the differences between the bills, but that analysis may not hold up for long as we're hearing that, as you read this, a deal may have been made to nix the differences between the bills so a compromise can be passed with ease. This morning, we along with American Association of Law Libraries, American Library Association, Consumer Federation of America, Consumers Union, Digital Future Coalition, Electronic Frontier Foundation, Essential Action, IP Justice, Knowledge Ecology International, Medical Library Association, and Special Libraries Association sent a letter highlighting our concerns with the bill. The top three concerns are:

    • Civil Enforcement by DOJ: This concept comes from the PIRATE Act, from all the way back in 2004, and allows the Attorney General to bring a civil suit against alleged copyright infringers. It would be an enormous gift of federal resources to large copyright owners with no demonstration that the copyright owners are having difficulties enforcing their own rights. The recording industry has threatened or filed over 30,000 lawsuits against individual consumers. Movie and television producers, software publishers, music publishers, and print publishers all have their own enforcement programs. There is absolutely no reason for the federal government to assume this private enforcement role.

    • Civil and Criminal Forfeiture Provisions: S. 3325 expands the ability of a private entity or the government to seize property, but unfortunately doesn't require that the seized property be owned or predominantly controlled by the infringer. Applied to the Internet, the bill potentially opens up online services to having their servers seized even if they're not the ones who committed the infringement. On top of that, the bill would extend forfeiture to DMCA circumvention of technological protection measures. The DMCA anti-circumvention provisions are already controversial because they limits otherwise fair and lawful uses of copyrighted works, but this bill would compound the problem by allowing the forfeiture of your computer for ripping a DVD you own for playback on your iPod.

    • Impounding of Records: S. 3325 allows the impounding of business records associated with an alleged infringement pending trial. This effectively deprives the (again alleged) infringer of the ability to mount a defense or even to carry on business before a court order is issued.

    Not mentioned in the letter, but still worth noting, S. 3325 also allows criminal enforcement of a copyright that has not been registered. This removes the already few incentives we have for registration of copyright, and is a slap in the face of the goals of orphan works.

    Not long ago, Congress required that when grants from National Institutes of Health for research are made, researchers must deposit a copy of their articles in PubMed Central, an online archive. Digital deposit has to be made within 12 months of peer-reviewed journal publication. The question is that if the government is funding this research but its citizens aren't receiving access to the important healthcare information, where's the public's ROI?

    Believe it or not, the scientific journal publishers (most of which are owned by non-US companies), who have made their business off of reviewing and putting into print US government funded research, are not happy about this change in their leech-like business model. They're now arguing that NIH's open access policy is inconsistent with copyright law because it requires the involuntary transfer of copyright law. They've written their arguments into a piece of legislation, for which a hearing will be held tomorrow in the House Judiciary Committee.

    As the libraries and we've said in a recent letter:

    NIH-funded research is copyrightable and copyright belongs to the author. The NIH Policy requires only the grant of a non-exclusive license to NIH…This policy leaves the author free to transfer some or all of the exclusive rights under copyright to a journal publisher or to assign these anywhere they so choose.”

    We'll see what happens at tomorrow's hearing, but if the witnesses are any clue, it's pretty stacked against open access.

    Broadcast Flag

    Believe it or not, we're hearing rumors of the broadcast flag returning. We can't give too many specifics yet, but we're hearing that the movie studios are asking Members of Congress what they've accomplished this session, and in their scramble for ideas, we may see another broadcast flag bill introduced.

    To remind you, the broadcast flag is signal dropped into digital broadcast television, that could only picked up by the devices in your home entertainment system. If the device is broadcast flag compliant (which none currently are), it will refuse to talk to other compatible non-compliant devices. Studios said in 2002 that if the public wanted high-definition broadcast-TV programming, the government would have to force electronics to protect their content with this roach-motel-like flag.

    You may be noting the problems with this already:

    • The broadcast flag is not effective since all one has to do is stick with current or older devices to defeat it.

    • The broadcast flag forces consumers to upgrade: once you introduce one compliant device to your entertainment system, be ready to buy some more because the new one won't talk to the old ones. Oh, and you better buy all the same brand because the none of the 13 broadcast flag-approved technologies are compatible with each other.

    • DTV transition EPIC FAIL: if there's one policy that could single handedly kill the change from analog to digital broadcast tv, it would be the broadcast flag. Imagine all the new devices that everyone is upgrading to and investing in, all rendered inoperable by a single flag-compliant device.

    We'll let you know more as we hear on this one, we're hoping it stays as a rumor and we don't have to kill it for the millionth time.

    International Intellectual Property Protection and Enforcement Act of 2008

    We just received word of this bill being dropped this morning. We don't even have our hands on it yet, just a press release, but we'll update you with more analysis soon. From the PR, here's what Rashmi has put together so far:

    The Baucus-Hatch bill seeks to prevent infringements of U.S. intellectual property rights in foreign countries. The term intellectual property might be defined too broadly to encompass not only patents, trademarks and copyrights but also product designs whether protected through design patents or other means. The press release refers to “piracy of American films” and “counterfeiting of American designed products”. The specific provisions include:

    • Requirement that the USTR develop action plans for countries that have been on the “Priority Watch List” for at least one year outlining actions that that country should take to achieve effective protection for IP and effective market access for US companies.

    • Authorizing the President to prohibit federal procurement, financing of projects, and withdraw preferential treatment to countries that have not complied with the action plan within one year

    • Authorizing appropriations for USTR to assist developing countries in complying with the action plan

    • Requiring President to ensure that IP officials are placed in the US embassy of each foreign country that has a “commercially significant” relationship with the US. The official would serve as a liaison on IP matters and gather information for the USTR.


    Well, if you thought things were going to quiet down because of the election, think again. We only have a few more weeks left of legislating before Congress goes home to campaign. Regardless of the election, they'll probably be back for a lame duck session, where we've seen all kinds of bad ideas sprout up. If the above is any hint at how things are going to go, please be ready to be called on to act.