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U.S. Trade Rep Stands Firm Amid Barrage of Criticism Over Global Intellectual Property Negotiations

SAN FRANCISCO, June 28, 2010 – The office of the United States Trade Representative is standing firm as its negotiators head into a set of week-long negotiations over the controversial Anti-Counterfeiting Trade Agreement in Lucerne, Switzerland.

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SAN FRANCISCO, June 28, 2010 – The office of the United States Trade Representative is standing firm as its negotiators head into a set of week-long negotiations over the controversial Anti-Counterfeiting Trade Agreement in Lucerne, Switzerland.

When asked whether the USTR had seen a statement issued early last week by a group of about 90 law professors, non-profit groups and lawyers representing technology interests against the proposed April draft of the agreement and had any comment, a spokeswoman responded: “Yes, we are aware of it. We disagree with its assertions and we direct you to our statements on www.ustr.gov/acta.”

ACTA could export US law to other countries when it might not be appropriate, says Sean Flynn, as associate director and law professor at the Washington College of Law at American University.

The proposed agreement between the United States, Europe, Japan, and South Korea, among other countries, would allow the governments of participating countries to take new actions to crack down on intellectual property violations.

Technology and telecom companies are worried about being forced to police their networks in draconian new ways or face massive copyright infringement liabilities and criminal penalties. Public interest groups are worried about the impact of the agreement on the flow of generic pharmaceutical drugs.

Staffers at both Google and the Consumer Electronics Association have expressed concern this year about the proposed agreement and the impact it could have on tech companies.

“Even if ACTA turns out to be consistent with U.S. law, it’s increasing penalties overseas without any concurrent increase in the limitations and exceptions that permit legal activity here in the U.S.,” said Matt Shruers, the Computer and Communications Industry Association’s senior counsel for litigation and legislative affairs in an April interview with Broadbandbreakfast.com, and one of the signatories on last week’s statement against the April draft of ACTA. “Imagine if [companies that engage in] innovative activities that we see on the internet — like search — being subjected to statutory damages, but not being able to avail themselves of the defense that we have in the United States of fair use, it dramatically increases the prospect of liability.”

CCIA’s members include Yahoo, Google and eBay.

The negotiation process has been controversial on many counts: It sidesteps the regular institutions for international trade and intellectual property agreements, and public interest advocates and some technology company representatives have complained that the negotiations are happening without their input — even though the results may have a huge impact on their companies and have public interest implications.

The issue of process and getting an agreement hammered out in a timely fashion is a complex one. The technology industry is affected by piracy and counterfeiting —  some powerful software companies want a more effective crack down on piracy. The Business Software Alliance, for example, has endorsed the Obama’s efforts to get a deal done. And counterfeit Cisco routers have in the past compromised the US military. But the usual fora for negotiating global agreements are increasingly being seen by negotiators as ineffective, hence the move toward ACTA.

Trade negotiators from around the world are scheduled to discuss ways to better enforce intellectual property rights both online and at their borders between Monday and Thursday this week.

The coalition of  law professors, non-profit groups and lawyers representing tech firms called ACTA “the predictably deficient product of a deeply flawed process.”

“What started as a relatively simple proposal to coordinate customs enforcement has transformed into a sweeping complex new international intellectual property and internet regulation with grave consequences for the global economy and governments’ ability to protect the public interest.”

“A lot of the provisions of the law that they’re claiming are not being changed may emerge in court interpretations of the agreement,” said  Sean Flynn, a law professor at American University. “It’s exporting a lot of US standards in US law to a lot of other countries that may not be best practice.”

The USTR has tried to assuage the concerns of the various groups by specifically addressing their concerns through a FAQ page, but the group that signed the Communique last week remained unconvinced, writing:

We find that the terms of the publicly released draft of ACTA threaten numerous public interests, including every concern specifically disclaimed by negotiators.

  • Negotiators claim ACTA will not interfere with citizens’ fundamental rights and liberties; it will.
  • They claim ACTA is consistent with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS); it is not.
  • They claim ACTA will not increase border searches or interfere with cross-border transit of legitimate generic medicines; it will.
  • And they claim that ACTA does not require “graduated response” disconnections of people from the internet; however, the agreement strongly encourages such policies.

Nevertheless, the Obama Administration remains firmly committed to the agreement, highlighting its participation in ACTA last week in its “Joint Strategic Plan on Intellectual Property Enforcement.”

Editor’s Note: Don’t miss the Intellectual Property Breakfast Club Event on Tuesday, July 13, “The Anti-Counterfeiting Trade Agreement Treaty,” for FREE at Clyde’s of Gallery Place in Washington from 8 a.m. to 10 a.m. Register at http://ipbreakfast.eventbrite.com.

Sarah Lai Stirland was Contributing Editor for BroadbandBreakfast.com until April 2011. She has covered business, finance and legal affairs, telecommunications and tech policy for 15 years from New York, Washington and San Francisco. She has written for Red Herring, National Journal's Technology Daily, Portfolio.com and Wired.com. She's a native of London and Hong Kong, and is currently based in San Francisco.

Copyright

Public Knowledge Celebrates 20 Years of Helping Congress Get a Clue on Digital Rights

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Screenshot of Gigi Sohn from Public Knowledge's 20th anniversary event

February 27, 2021 – The non-profit advocacy group Public Knowledge celebrated its twentieth anniversary year in a Monday event revolving around the issues that the group has made its hallmark: Copyright, open standards and other digital rights issues.

Group Founder Gigi Sohn, now a Benton Institute for Broadband and Society senior fellow and public advocate, said that through her professional relationship with Laurie Racine, now president of Racine Strategy, that she became “appointed and anointed” to help start the interest group.

Together with David Bollier, who also had worked on public interest projects in broadcast media with Sohn, and is now director of Reinventing the Commons program at the Schumacher Center for a New Economics, the two cofounded a small and scrappy Public Knowledge that has become a non-profit powerhouse.

The secret sauce? Timing, which couldn’t have been better, said Sohn. Being given free office space at DuPont Circle at the New America Foundation by Steve Clemmons and the late Ted Halstead, then head of the foundation, was instrumental in Public Knowledge’s launch.

The cofounders met with major challenges, Sohn and others said. The nationwide tragedy of September 11, 2001, occurred weeks after its official founding. The group continued their advocacy of what was then more commonly known as “open source,” a related grandparent to the new “net neutrality” of today, she said.

In the aftermath of September 11, a bill by the late Sen. Ernest “Fritz” Hollings, D-S.C., demonstrated a bid by large copyright interest to force technology companies to effectively be the copyright police. Additional copyright maximalist measures we launched almost every month, she said.

Public Knowledge grew into something larger than was probably imagined by the three co-founders. Still, they shared setbacks and losses that accompanied their successes and wins.

“We would form alliances with anybody, which meant that sometimes we sided with internet service providers [on issues like copyright] and sometimes we were against them [on issues like telecom],” said Sohn. An ingredient in the interest group’s success was its desire to work with everyone.

Congress didn’t have a clue on digital rights

What drove the trio together was a shared view that “Congress had no vision for the future of the internet,” explained Sohn.

Much of our early work was spend explaining how digitation works to Congress, she said. The 2000s were a time of great activity and massive growth in the digital industry and lawmakers at the Hill were not acquainted well with screens, computers, and the internet. They took on the role of explaining to members of Congress what the interests of their constituents were when it came to digitization.

Public Knowledge helped popularize digital issues and by “walking [digital information] across the street to [Capitol Hill] at the time created an operational reality with digitization,” said Bollier.

Racine remarked about the influence Linux software maker Red Hat had during its 2002 initial public offering. She said the founders of Red Hat pushed open source beyond a business model and into a philosophy in ways that hadn’t been done before.

During the early days of Public Knowledge, all sorts of legacy tech was being rolled out. Apple’s iTunes, Windows XP, and the first Xbox launched. Nokia and Sony were the leaders in cellphones at the time, augmenting the rise of technology in the coming digital age.

Racine said consumers needed someone in Washington who could represent their interests amid the new software and hardware and embrace the idea of open source technologies for the future.

Also speaking at the event was Public Knowledge CEO Chris Lewis, who said Public Knowledge was at the forefront of new technology issues as it was already holding 3D printing symposiums before Congress, something totally unfamiliar at the time.

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In Google v. Oracle, Supreme Court Hears Landmark Fair Use Case on Software Copyright

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Photo of Tom Goldstein from the Peabody Award used with permission

October 12, 2020 – The Supreme Court on Wednesday publicly struggled with the copyrightability of software in a uniquely contested case between Google and Oracle, the outcome of which could play a significant role in the future of software development in the United States.

The oral arguments were the culmination of a battle that started 10 years ago, when tech company Oracle accused Google of illegally copying its code. Oracle owns the copyright to the Java application programming interface that Google utilized to establish a new mobile operating system.

The company has sued Google for more than $9 billion in damages.

Yet Google claimed a “fair use” defense to its copying. Google copied less than 1 percent of the Java code. Even though the law generally treats computer programs as copyrightable, Google’s attorney before the Supreme Court, Thomas Goldstein, said that by adapting Oracle’s code to serve a different purpose, Google’s use was “transformational,” and entitled to fair use protections.

Goldstein said that this form of unlicensed copying is completely standard in software, and saves developers time and lowers barriers to innovation.

He referenced a famous Supreme Court precedent about public domain works, Baker v. Selden, which in 1880 declared that once information is published to the public, the public has a right to use it.

“Google had the right to do this,” said Goldstein.

Still, Oracle attorney Joshua Rosenkranz asserted that the Java code is an expressive work eligible for copyright protections. Rosenkranz further argued that Google’s use of the code was not transformational.

Justice Sonia Sotomayor appeared to suggest that jurors in the lower court case properly found Google’s use to be transformational because it took the APIs from a desktop environment to smartphones.

“Interfaces have been reused for decades,” said Goldstein. Google had to reuse Oracle’s code to respond to interoperability demands.

“It has always been the understanding that this purely functional, non-creative code that is essentially the glue that keeps computer programs together could be reused, and it would upend that world to rule the other way,” he said.

Supreme Court observers said that the high court appeared leaning toward upholding the 2016 jury verdict vindicating Google’s fair use defense.

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Fair Use is Essential But its Enforcement is Broken, Says Senate Intellectual Property Subcommittee

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Screenshot of Grammy-winning recording artist Yolanda Adams from the hearing

July 28, 2020 — “Fair use” is an essential doctrine of copyright law that is unevenly applied, said participants in a Senate Intellectual Property Subcommittee hearing Tuesday.

The hearing, “How Does the DMCA Contemplate Limitations and Exceptions Like Fair Use,” saw participants discuss whether the Digital Millennium Copyright Act still permits fair uses of copyrighted content that would be otherwise infringing.

The DMCA, passed in 1998, criminalizes the manufacture, sale or other distribution of technologies designed to decrypt encoded copyrighted material. This ban on anti-circumvention tools does not appear to account for fair use.

The fair use exception to copyright law allows the republication or redistribution of copyrighted works for commentary, criticism or educational purposes without having to obtain permission from the copyright holder.

However, Joseph Gratz, partner at Durie Tangri, said that fair use often clearly applies but is not enforced, leaving users of the legally obtained content to deal with automated content censors.

“Fair use depends on context, and machines can’t consider context,” he said. “A video, for example, that incidentally captures a song playing in the background at a political rally or a protest is clearly fair use but may be detected by an automated filter.”

When an automated filter detects a song on a platform like YouTube, it redirects advertising revenue from the creator of the video to the creator of the song, often erroneously.

Rick Beato, who owns a music education YouTube channel with over one-and-a-half million subscribers, said that he does not receive ad revenue from hundreds of his videos.

“One of my recent videos called ‘The Mixolydian Mode’ was manually claimed by Sony ATV because I played ten seconds of a Beatles song on my acoustic guitar to demonstrate how the melody is derived from the scale,” he said. “This is an obvious example of fair use, I would argue.”

Grammy-winning recording artist Yolanda Adams testified that she sees the problems of fair use employment as about more than simply receiving money.

“As a gospel artist, I’m not just an entertainer,” she said. “I see my mission as using my gift to spread the gospel — so for me, fair use is not just about money. It’s about access.”

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