Fasten Your Seatbelts – Congress is Back in Town

Fasten Your Seatbelts – Congress is Back in Town

Fasten Your Seatbelts – Congress is Back in Town

This is going to be one crazy September. Congress is back, and just about every issue that Public Knowledge is working on is red hot. However, with only about 18 legislative days to go before the election and control of Congress at stake, it is unlikely that copyright and communications issues will get priority. Many news outlets are reporting that national security issues are likely to dominate, and that once big priorities like immigration reform are likely to be dropped. But as with every end of a Congressional term, one has to watch out for substantive provisions tacked on to spending bills or other must-pass legislation. The chances of this kind of activity will increase if, as expected, there is a “lame duck” session after the election. So here are some of the things to watch out for over these next few months:

1. The Telecom Bill and Net Neutrality. When Congress left town in August, Senate Majority Leader Frist gave Senate Commerce Committee Chair Ted Stevens an assignment – get 60 votes to end debate on the bill and I will bring it to the floor. Thanks to an incredible grassroots effort by the Save the Internet Coalition, which got net neutrality supporters to town hall meetings throughout recess and got four Senators to pledge support for net neutrality, it appears that Senator Stevens' task has only gotten more difficult. There have also been reports that several Senators in tough races do not want a controversial bill such as this one to come to the floor. But no one should count Senator Stevens out, nor should they count out last minute monkey business that would attach video franchise reform to moving legislation.

2. Attacks on Home Recording Rights/Technology Mandates. Where to begin? By my count, there are at least five bills floating around in both houses that use technology mandates and other licensing mechanisms to limit lawful uses of copyrighted content, including the ability to make home recordings of digital satellite and broadcast radio transmissions. Many of these efforts are aimed at XM and Sirius Satellite Radio, but make no mistake – this is a carefully planned campaign by the content industries to make you pay for every copy on every device you own. The bills include:

   • The Broadcast Flag Provisions of the Senate Telecom Bill. These would reinstate the long-vacated broadcast flag and give the FCC the power to make the flag even more restrictive than it already is. The audio flag provisions would give the FCC the power to adopt similar tech mandates for digital broadcast and satellite radio, and would require that an advisory committee develop such regulations.

   • Audio Flag Legislation. In addition to the audio flag provision in the Senate telecom bill, Mike Ferguson (R-NJ) is the principal sponsor of the Audio Broadcast Flag Licensing Act of 2006, which would give the FCC the power to mandate copy protection technology for digital broadcast and satellite radio.

   • The Section 115 Reform Act (SIRA). The second draft of this bill suffers from many of the same problems as the first draft. Among other things, it requires license fees for server copies and for buffer, cache and network copies made in the course of interactive webcasts. These are copies that the Copyright Office considers fair use. The new bill gives an exemption to “noninteractive” streaming, but denies that exemption to services that “authorize, enable, cause, or induce” time shift recording “for future listening. This provision is specifically aimed at taxing home recording, which is protected under the Audio Home Recording Act. Rumor has it that this bill may be marked up by the House Courts, Internet and Intellectual Property Subcommittee as early as next week.

   • The Platform Equality and Remedies for Rights-Holders in the Music Act (PERFORM Act) Bills are pending both in the House and Senate. The PERFORM Act seeks to use the process by which radio stations obtain “performance” licenses from music publishers and record companies to limit home recording and punish services like satellite radio for permitting consumers to do so. Under the PERFORM Act, entities that transmit music would not be entitled to the license compelled by the Copyright Act if they “authorize, enable, cause or induce” consumers to record songs based on the artist, album or sound recording. Consumers would also be prevented from manipulated or “disaggregating” songs they recorded.

3. Orphan Works: The House Subcommittee on Courts, the Internet and Intellectual Property passed The Orphan Works Act of 2006 a bill that would ensure that artists who engage in a reasonably diligent search for a copyright owner but cannot find that owner will not be subject to the full panoply of penalties under the Copyright Act. If the copyright owner reappears, the artist would be liable only for “reasonable compensation.” While Public Knowledge would have preferred a cap on the compensation, this is a good bill that is opposed by photographers, book illustrators, textile manufacturers and furniture manufacturers, who fear that an orphan works fix will be an excuse for people to steal their work. We believe that their real problem is not the orphan works bill, but the limitations of a registration system that is all text. We have advocated a visual registry system. No similar bill in the Senate makes this a long shot, but we are still hopeful that something might happen this year, particularly because the public interest groups and content industry are largely in agreement.

4. Open Access to Federally Funded Research Open Access advocates cheered earlier this year when Sen. John Cornyn introduced the Federal Public Research Access Act , which would require that all federal funded research be made available for free online. It hasn't gone anywhere, but yesterday it received a big boost when 53 Presidents of liberal arts colleges signed a letter in support of the bill. Since this bill is related to how agencies spend their money, attaching this to a spending bill may raise fewer eyebrows than attaching some of the substantive bills discussed above.

This is in addition to the WIPO Broadcasting Treaty, which while it isn't the subject of legislation, is the subject of many visits to policymakers to educate them about why the treaty as drafted is a bad idea. Of course, we will keep you apprised of any and all activities on these matters. So stay tuned.