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Silicon Valley Fears Big Liabilities In Small Print of Proposed Trade Agreement

SAN FRANCISCO, July 1, 2010 –The office of the United States Trade Representative said Thursday that its negotiators had “made progress in building consensus,” over specific provisions in a controversial global intellectual property agreement — but it’s unlikely that whatever consensus they reached will be welcomed by all back at home.



SAN FRANCISCO, July 1, 2010 –The office of the United States Trade Representative said Thursday that its negotiators had “made progress in building consensus,” over specific provisions in a controversial global intellectual property agreement — but it’s unlikely that whatever consensus they reached on the digital provisions will be welcomed by all back at home.

That’s because America’s major entertainment and technology industries don’t agree on what the US’ position should be, and that is likely to make the Obama administration’s commitment to reach an agreement with other countries on the accord by the end of the year difficult.

For the past two years, American technology companies and digital rights groups have been fretting over both the substance and process that’s unfurled over the Anti-Counterfeiting Trade Agreement. They’re unhappy about the secretive nature of the negotiations, and the proposal to implement America’s version of digital copyright infringement law, without any of its checks and balances, in Europe, Japan, South Korea and in many other signatory countries. (Without those checks, YouTube would have been on the hook for a billion dollars in the lawsuit launched by Viacom.)

To block this development, a coalition of 10 tech companies and rights groups mid-June submitted suggested changes [see document below] to the trade agreement to the USTR. The USTR was said to be receptive to including those suggestions in ACTA by those in the know.

The companies’ changes concern the rules regarding the unlocking of encrypted digital media, and the question of when internet intermediaries would be liable for their users’ infringements, and how much they should be made to pay.

“The problem with ACTA is a.) statutory damages, b.) being much more specific on secondary liability, so at that point, having the general exceptions as well as DMCA safe harbors, or something like that, becomes very important,” says Jonathan Band, an intellectual property lawyer in Washington, DC who represents America’s major library associations and NetCoalition, a group of web, advertising and information companies.


The “DMCA” refers to the 1998 Digital Millennium Copyright Act, America’s implementation, with modifications and additions,  of the World Intellectual Property Organization’s 1996 Copyright Treaty.

The coalition includes the Consumer Electronics Association,the American Library Association, the American Association of Law Libraries, the Center for Democracy and Technology, Public Knowledge and the Computer & Communications Industry Association.

The CCIA’s members include America’s most recognized web and software companies eBay, Facebook, Google, Microsoft, Oracle and Yahoo.

Another major difference between Silicon Valley, Hollywood, and the music industry is one that both sides have been fighting about since the DMCA’s inception: the anti-circumvention provision in the proposed agreement.

Critics of the US’ DMCA say that it’s a flawed law because it prohibits and criminalizes the act of unlocking digital content rather than the act of stealing. The problem: People who have legally bought a digital film, book or tune but who want to transfer it onto another device would be classified as criminals for breaking through those locks in order to load that content onto a gadget of their choice.

But that access wording has been replicated in ACTA. The tech and rights coalition has amended the language to remove the wording about “access,” and included several exceptions.

But Steve Metalitz, a lawyer who represents the US’ biggest content and software companies internationally, and who was involved in crafting the DMCA, said the proposed changes would render copyright enforcement online ineffective.

“From what I’ve looked at, this is not surprising, given the source,” he said.  “This is a group that does not think that copyright piracy is a threat to the US economy to the degree we think it is, and therefore they don’t want to see an agreement that would necessarily be an effective response, and that’s why you see some of the language in here that goes way beyond what’s in US law.”

Metalitz added that the exceptions that the coalition wants to the anti-circumvention provisions aren’t appropriate.

“This agreement is not about exceptions, because it is not about infringement — it’s about enforcement,” he said. “The other thing that this group has been calling for is to bring a lot more of the DMCA back into this. They’re basically saying: ‘We, the United States, should ram down the throats of all other countries exactly the way we deal with this.’

“We just don’t think that’s viable in international negotiations,” Metalitz said.

He added that it’s the tech companies’ approach that would require a change in the rest of the world’s laws.

“‘They say: ‘let’s spell out in excruciating detail what the safe harbors are going to be — just like in the US and if you leave out something there, that’s going to be terrible for us,’ and they say: ‘we like fair use,’ but almost no other country in the world has that,” said Metalitz.

On Thursday, the USTR said that the participants had made progress on building consensus on the provisions of ACTA that concern enforcement measures in the digital environment. It didn’t say anything beyond that.

Addressing the concerns of numerous public interest groups, the statement re-iterated that the agreement wouldn’t change existing law, nor the World Trade Organization’s Trade Related Aspects of Intellectual Property Rights agreement.

The USTR also re-iterated: “ACTA will not oblige border authorities to search travelers’ baggage or their personal electronic devices for infringing materials.”

The next round is in the United States, but the USTR did not specify when.

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

If you plan on attending, and have a question you’d like to submit beforehand, please submit it here. You can vote for which questions the moderator should ask too.

Sarah Lai Stirland is the Director of Digital Community at Broadband.Money. Sarah previously worked with Breakfast Media's CEO, Editor and Publisher Drew Clark at National Journal's Technology Daily. She has covered business, technology, government and civic engagement, finance, and telecommunications and tech policy from New York, Washington and San Francisco. Her work has appeared in Personal Democracy Media's Civic Hall, Wired, Red Herring, and She's also a radio and podcast producer, and she's worked at KALW Public radio in San Francisco. She's a native of London and Hong Kong, and is currently based in the Bay Area.


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



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



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



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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