Technical-Legal Confluence News

The “Prioritizing Resources and Organization for Intellectual Property Act of 2008”, H.R. 4279, has this link on govtrack. http://www.govtrack.us/congress/bill.xpd?bill=h110-4279 , introduced in the 110th Congress by John Conyers (D-MI).

The Congressional Research Service gives this summary.

There are multiple provisions, including some strengthening of administrative procedures to protect trademark, establishment of an IP czar (“Executive Office of the President the Office of the United States Intellectual Property Enforcement Representative (IP Enforcement Representative)”) , providing a “safe harbor” provision in copyright registration, and increasing penalties for introducing instrumentalities into foreign commerce that encourage copyright infringement.

The full text of the bill is here.

The is a major brouhaha developing over fair use of wire service stories. This conflict has apparently started with some take-down notices from the Associated Press to the “Drudge Retort.”

The heart of the matter seems to be that the site reproduces links, titles, and leading sentences of AP news stories, without other comment enhancing the content. However, the stories usually result in visitor comments which, as a matter of natural course, add value to the original stories. There was also a report that AP wants to be paid $2.50 per word for any quote that exceeds four words, and there seems to be an objection to bloggers’ reproducing the titles of the stories, although that would be the accepted practice in the footnotes or a bibliography in a book or term paper as taught in high school and college English.

There are stories of negotiations going on, and the outcome is unclear. There will be more details added later here or on related blogs.

A typical news story about the incident comes from Workbench, here.

Here is a discussion from “buzzmachine” on the “ethics of the link layer” in journalism, including blogger journalism, here.

The account from the Media Bloggers Association (MBA) is here.

AP maintains that this controversy represents an intellectual property control and “ownership issue.” It could argue that the practices of some blog sites simply reproduce content and may deny the content originators legitimate revenue. But there are “philosophical” questions beneath, as to how visitors acquire news, and the legal observation that “facts” themselves cannot be owned (even though reporters work very hard to get original scoops).

The PRO IP act (HR 4297) has the full title “Prioritizing Resources and Organization for Intellectual Property Act of 2007,” introduced by John Conyers (D-MI), with 19 cosponsors.

The govtrack reference is this.

The Executive Summary from the CRS is this It would create and Intellectual Property Czar, or a Executive Office of the President the Office of the United States Intellectual Property Enforcement Representative. It also provides some safe harbor for copyright registration with inaccurate information, prevents inappropriate disclosure of records related to copyright infringement, and prohibits importing and exporting of infringing works.

The full text link is this.

Coordinated with this bill is “H.R. 5889: To provide a limitation on judicial remedies in copyright infringement cases involving orphan works,” govtrack reference link here. The bill would permit the use of “orpaned” works without permission when the copyright holder could not be found, but allow compensation later should the owner step forward. The text of the bill is here.

The law that resides at the heart of controversy over digital copyright management is the Digital Millennium Copyright Act of 1996 (DMCA).

The text of the law is on Wikisource, here.

There is a supplement called “Limitations of Liability Relating to Material Online,” section 512, Cornell link here (also called the “Online Copyright Infringement Liability Limitation Act” (OCILLA), or the “safe harbor” provision.

The law is controversial for a number of reasons. One is that manufacturers are forced to use the copy protection technology of one vendor (Macrovision). A totally unrelated controversy concerns the takedown provision. Web hosts are immune from copyright infringement liability if they follow takedown requests, and then have little incentive to challenge the legitimacy of infringement claims. There have also been DMCA-related requests to take down links to infringing material, and this is a legally gray area.

Another concern is that the DMCA can hinder the efforts of “newbie” artists to manufacture and distribute their own works for free or low-cost consumption. Some people feel that DMCA and related laws are intended to protect “entrenched media” from low cost competition.

A website called Chillingeffects keeps a log of DMCA “cease and desist” letters.

The Sonny Bono Copyright Term Extension Act of 1998 is here.
extends copyright terms for 20 years.

There have been several attempts to modify the law.

109th Congress.

These bills are “dead” but it is likely that similar ones will be reintroduced.

H.R. 4569: Digital Transition Content Security Act of 2005, to close an “analog” loophole and require certain analog devices to have copy protection.
Govtrack link.

H.R. 1201: The Digital Millennium Consumer Rights Act of 2005 (DMCRA) would refine the DMCA provisions and restore some ordinary “fair use” for consumers as was common previously with CD’s, cassettes, and vinyl phonograph records.

Govtrack here.

Some court cases:

Chamberlain v. SkyLink (DC Circuit Court of Appeals, 2004, here)
(may require registration), a case involving automated garage door openers

Universal v. Reimerdes, distribution of DeCSS, reverse engineering allowing decryption of DVDs. Trial court opinion (2001), here, was upheld in Second Circuit (resolved in favor of copyright holder)

U.S. v. ElcomSof and Skylaorv (criminal prosecution), Electronic Frontier Foundation reference.

Lexmark v. Static Control Components. Intervention of a printer’s microcontroller to allow other printer cartridges does not violate the DMCA (6th Circuit). Link here.

MGM et al. v. Grokster et. al (2005), opinion here.

The Supreme Court allows downstream liability for software vendors or service vendors when their “business model” is based on encouraging copyright infringement.

I have running news occasionally on this issue on my main blog (intermixed with many other issues), link.

A major attempt in the 108th Congress was S. 2560, “Inducing Infringement of Copyrights Act of 2004,” govtrack here.