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House IP Chairman on COICA: “We Don’t Want To Be Egypt.”

WASHINGTON, February 20, 2011 — The lead lawmaker in the U.S. House of Representatives regarding intellectual property issues says that he and his colleagues need to be extremely wary of giving the federal government too much unfettered power when it comes to seizing the domain names of web sites that are suspected of promoting online piracy.



WASHINGTON, February 20, 2011 — The lead lawmaker in the U.S. House of Representatives regarding intellectual property issues says that he and his colleagues need to be extremely wary of giving the federal government too much unfettered power when it comes to seizing the domain names of web sites that are suspected of promoting online piracy.

“We don’t want to be Egypt,” Rep. Bob. Goodlatte, R-Va. told C-Span in a recent televised interview that aired Saturday. “Nor do we, when you talk about cybersecurity, a broader issue that goes beyond theft, that goes to the functioning of the internet itself, we don’t want to give government so much power that they have a kill switch, or something like that.”

Goodlatte was responding to a question posed by Gautham Nagesh, The Hill newspaper’s technology and telecom policy reporter.

Nagesh had asked Goodlatte to address the criticisms that S. 3804, the Combating Online Infringement and Counterfeits Act, had engendered when it sped through the Senate Judiciary Committee.

The newly-named chairman of the U.S. House subcommittee with jurisdiction over intellectual property, competition and legal internet issues has been a staunch supporter of enforcing intellectual property laws against infringers on the internet.

But he said during the C-Span interview that federal law enforcers need to play fair.

“Narrowing it down to individual domains, we need to be very careful that we’re doing it in a way where due process is properly followed,” he said.

Thus his committee isn’t going to take the lead from the senate judiciary committee, he added.

“We’re not going to start with what the senate has done — we’re going to start with a careful, fresh look at this,” said the 10-term congressman.

Concern Over Due Process and “Censorship” v. Unfettered Piracy

Numerous groups, including several library associations, public interest groups the Center for Democracy and Technology and Public Knowledge; industry groups the Computer and Communications Industry Association, the Consumer Electronics Association, and NetCoalition have criticized the senate bill, for, among other things, shortchanging targeted web sites on due process.

On the other hand, more than 80 signatories representing the top U.S. brand names across the economy, industry trade groups for music, publishing, and software signed a latter addressed to all members of congress last week supporting the legislation.

Several groups have also argued that the proposed legislation amounts to censorship, but noted First Amendment lawyer Floyd Abrams argued on behalf of five entertainment industry groups earlier this month that “COICA is consistent with the First Amendment.”

“If an order under COICA does result in blocking some non-infringing content, COICA is sufficiently narrow to accomodate the immediate publication of that content elsewhere and the future publication of the content on the same domain,” he argued in a letter addressed to the senate judiciary committee.

Abrams also argued that a web site may be deemed under the proposed legislation to be “dedicated to infringement” based on a set of hyperlinks to another web site rather than for its own hosted content.

This approach is consistent with current case law, he said.

Patent Reform, ICANN’s New Top Level Domain Name Plans, and Obama Administration’s Wireless Initiative Will Also Be Examined

During the wide-ranging interview that was an effective preview of the House subcommittee’s agenda for the 112th congress, Goodlatte said that his committee will also be starting afresh with patent reform, trying to resolve the impasse between independent inventors and corporations that has blocked passage of the legislation for the past six years.

“There’s lots and lots of interest in this, both in Congress, and in various sectors of the economy — not just the tech sector,” he said.

“We’re going to start from scratch, and we’re going to look at where we think there is widespread support, and that could pass the House with strong support,” he added. “But as we do that, we’re going to take into account where the senate is, where the senate has been, and have some close discussions with Senator [Pat] Leahy and Senator [Orrin] Hatch, and other senators to make sure that we’re not creating a divide that can’t be closed.”

Goodlatte also promised a hearing on the Internet Corporation for Assigned Names and Numbers’ (ICANN) controversial plan to expand the number of top level domains.

A top level domain is the part of a web site’s address that comes after the site’s name, such as .com or .net.

ICANN wants to start establishing new top level domains that could include .music and many other kinds of words.

The music industry is concerned that the establishment of new top level domains could encourage and facilitate online copyright and trademark infringement.

During the interview, Goodlatte said that his committee will look at the White House’ recently-unveiled broadband wireless initiative to make sure that the publicly-funded effort is really serving markets that are experiencing market failure.

Broadband Breakfast is a decade-old news organization based in Washington that is building a community of interest around broadband policy and internet technology, with a particular focus on better broadband infrastructure, the politics of privacy and the regulation of social media. Learn more about Broadband Breakfast.


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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