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Prospects For Global Anti-Counterfeiting Trade Agreement in 2010 Appear Dim

SAN FRANCISCO, September 9, 2010 — The European Union might drop out of a global intellectual property enforcement agreement between the United States, Japan and other countries because of too many compromises in the two most recent rounds of negotiations, said the European Union’s Trade Commissioner Karel de Gucht.

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SAN FRANCISCO, September 9, 2010 — President Obama has touted his administration’s involvement in negotiating a global intellectual property enforcement agreement as a sign of how important his administration takes industry’s rights both domestically and abroad.

And the office of the United States Trade Representative has established a goal of wrapping up negotiations by the end of the year. But it turns out that the Europeans might now stymie that effort.

The negotiations over the details of how best to enforce intellectual property rights under radically different legal regimes around the world, and over the scope of enforcement has proved to be a contentious issue — making it look as if negotiators may not be able to strike a deal by the end of the year as promised.

On Wednesday the European Union’s Trade Commissioner Karel de Gucht threatened to walk out of the talks because its negotiators had compromised too much.

“I remain firmly convinced of the importance of tackling the systematic and widespread abuse of European intellectual property around the world, and of the essential contribution that ACTA can have towards this goal,” he said in a speech to the European Parliament Wednesday. “This is why I remain committted to the success of the negotiations. However, if at the end of the process the EU is faced with a treaty without much concrete added value for our rights-holders, or with a treaty that tries to establish that there are first or secondary classes of intellectual property rights, we should be prepared to reconsider our participation.”

De Gucht was reacting to the latest August draft of the Anti-Counterfeiting Trade Agreement. He made the statement to several members of the European Parliament, many of whom are skeptical about the agreement themselves.

Silicon Valley technology companies earlier this year had voiced deep concerns about the secondary liability provisions of the agreement, which could have changed current law to subject internet intermediaries to the infringing activities of their users.

The latest August draft of the agreement addressed those concerns and changed the language to suggest that businesses from both the content and technology sides should simply be encouraged to work together to find a solution.

DeGucht suggested that this was a compromise that had gone too far.

“On the digital environment, the internet, which is one of the most sensitive, but one of the most innovative of the chapters of ACTA, there was a considerable step back in the last round, with the parties unable to agree on a common liability exemption regime for internet service providers,” he said.

US negotiators also want to restrict the agreement’s scope to copyrights and trademarks, but the EU wants it to cover all forms of intellectual property. De Gucht pointed to that difference as another major sticking point.

“Another area of disappointment for the EU is the issue of which intellectual property rights will be covered,” he said. “The problem is that several of our partners insist that only copyrights and trademarks deserve to be protected under ACTA — we firmly disagree, and will continue to push for these EU rights to be protected.”

Many members of the European Parliament remain skeptical about both the substance and process of reaching an agreement.

That skepticism was formalized Wednesday in the form of Written Declaration 12, which was first drafted earlier this year, and just approved Wednesday with over half of the 736 members of parliament signing it.

Many of the policy disagreements between the various countries at the negotiating table are complex, and that’s why it’s hard to see how negotiators can arrive at a conclusion when they meet in Japan later this month, said Erika Mann, the Computer and Communications Industry Association’s vice president in charge of European policy issues in Brussels.

CCIA opposes the agreement’s section on enforcement policies in the digital world, saying that it could expose US companies to huge legal liabilities.

If negotiators do manage to reach an agreement at the end of the month, the European Parliament would have to vote to ratify it after the commission signs off on it. The agreement would then have to be further ratified by every single legislature of the EU’s member countries for it to become effective in those countries.

Though the written declaration indicates members of the EU parliament’s disapproval of ACTA so far, there’s no guarantee on whether they will ultimately vote to approve or block the measure, Mann said.

Michael Geist, a professor of intellectual property law at the University of Ottowa, notes that the EU’s effort to expand the scope of the agreement may be the dealbreaker.

“From the U.S. perspective, however, this may be a line-in-the-sand issue since their inclusion would require domestic law reform, which the USTR has repeatedly promised would not be needed (and which sends the treaty to Congress in an election year),” he wrote in this blog on Wednesday.

The ACTA is one legal tool that the US and several of its trading counterparts around the world hope to use to better crack down on online piracy and on the international trafficking of counterfeited goods. The US Chamber of Commerce and the Business Software Alliance, among many other groups , have endorsed the agreement.

Signatories include the United States, Europe, Japan, New Zealand, Morocco and several others (but notably not China or Russia.)

The next round of talks are scheduled to take place in Japan between September 21st and October 1.

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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