SAN FRANCISCO, July 29, 2010 –By all accounts, online piracy of software, movies, and music is on the upswing and becoming ever more sophisticated, making efforts to crack down on pirates ever more challenging — but that doesn’t daunt Steven Tepp.
Tepp has just joined the US Chamber of Commerce in Washington DC as its first senior director for internet piracy and counterfeiting. His job will be to lead the Chamber’s efforts to battle the phenomena on behalf of its members.
The new role puts him in the Chamber’s Global Intellectual Property Center, a team of 20 people headed up by David Hirschmann, GIPC’s chairman and CEO.
“They brought me in to generally help reduce online infringement, and I’ve got some opportunities to come up with some innovative ways to do that,” Tepp said in an interview, though he said he had no specific details to share yet.
Tepp joined the group just over a week ago from the US Copyright Office, where he worked for 11 years both on domestic and international copyright policy issues.
Most recently he provided policy advice to the United States Trade Representative for its negotiations over the Anti-Counterfeiting Trade Agreement, a few portions of which have become controversial among technology companies and people in the non-profit community worried about what the agreement’s sections on patents would do to access to medicines.
The ACTA is one legal tool that the US and several of its trading counterparts around the world hope to use to crack down on online piracy and counterfeiting. The US Chamber has endorsed the USTR’s efforts. (For his part, Tepp himself won’t be working on ACTA issues. Rob Calia, the Chamber’s director of counterfeiting and piracy will.)
The agreement, between the United States, Europe, Japan, New Zealand, Morocco and several other countries (but notably not China or Russia) aims to improve the way participating countries’ governments crack down on counterfeiting. But it also includes enforcement provisions regarding digital piracy that make Silicon Valley’s legal counsels quake. They worry that the agreement in its official April incarnation could expose technology companies to gargantuan financial penalties both directly and as a result of the activities of their users.
As a behind-the-scenes shaper of US copyright policy since his start in 1994 on Capitol Hill as an aide to Utah Senator Orrin Hatch, Tepp readily acknowledges that formulating and enforcing copyright law in a digital world often results in controversy.
“But I honestly don’t think that it needs to be that way,” he said. “There are areas where pretty much everyone can agree. For example, I think it’s pretty reasonable that we can say that we ought to take action against a web site that knowingly traffics in infringing goods, especially when that site is reaping profits from that infringement, and that’s the sort of thing where I hope to be able to take effective action.”
The good news for Tepp is that strong intellectual property protection is the one policy issue on which the Chamber and the Obama Administration appear to agree upon. The Chamber has called on the administration to conclude the ACTA negotiations by the end of the year.
President Obama stated his administration’s commitment to ACTA earlier this year, and the USTR’s office has said that it plans on achieving the goal of striking a deal by year’s end.
As required by law, the Obama administration also has appointed an intellectual property czar in the form of Victoria Espinel, who is tasked with better co-ordinating enforcement efforts across the government. Her office issued a 65-page report earlier this year outlining how the Obama administration is committed to protecting and promoting America’s idea-fueled economy.
One of the many initiatives the report outlines is the creation of a Justice Department task force whose focus is to shut down “rogue” web sites and figure out other ways to go after online pirates. The Chamber has said that it plans on working with Justice.
Many technologists have criticized Washington policymakers for focusing solely on piracy when it comes to updating copyright law for the digital age. But Tepp notes that this is not a new phenomenon. Every new technology has stoked copyright holders’ fears about theft of their work — even though new technologies also present new opportunities.
“The internet is not only a new medium for creating new works — it’s also an unparalleled device and distribution network for infringing copyright,” Tepp said. “But it’s also an incredible opportunity for consumers, and publishers, and IP owners to find new markets, and to find works that decades ago would have been difficult, if not impossible, to track down.”
Public Knowledge Celebrates 20 Years of Helping Congress Get a Clue on Digital Rights
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.
In Google v. Oracle, Supreme Court Hears Landmark Fair Use Case on Software Copyright
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.
Fair Use is Essential But its Enforcement is Broken, Says Senate Intellectual Property Subcommittee
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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