WASHINGTON, July 11, 2011 – Proposed legislation introduced last month with the intent to target digital pirates whose activities hurt American jobs has instead raised the eyebrows of critics, who worry the bill would adversely affect millions of YouTube users.
“Intellectual property is vital to our nation’s economy, and our businesses rely on trademark and copyright laws to protect innovative ideas and products from theft,” said the measure’s primary sponsor, Sen. Amy Klobuchar (D-MN) in February of this year before she introduced the bill.
Digital piracy crippled the American music recording and film industry and in turn hurt American businesses to the tune of $200-250 billion and affected millions of American jobs, according to 2005 estimates from the U.S. Trade Representative published in a 2009 study by the RAND Corporation – a nonprofit research organization. Motion Picture Association of America (MPAA) and Recording Industry Association of America both favor the expansion of criminal penalties from uploading and downloading content illegally to include illegal streaming of music, movies and other content.
“On behalf of a music community that has lost thousands of jobs to piracy, we are frustratingly familiar with the damaging impact of online theft,” said Mitch Glazier, Executive Vice President of Public Policy and Industry Relations for RIAA, in a press release last month regarding Sen. Klobuchar’s bill.
U.S. Attorneys General – to whom the bill would grant the expanded authority to send convicted infringers to jail for up to five years, to fines, or both – voiced high praise of the tougher criminal penalties against infringers and counterfeiters they estimate have cost the global economy $650 billion each year, in addition to stolen 2.5 million jobs from the G20 economies.
In a letter to Congress from National Association of Attorneys General, both conservative and progressive state attorneys general agreed, “This narrowly tailored response to clearly illegal activity would enable effective action against the worst of the worst counterfeiters and pirates online.”
Critics, however, are not so confident the language of the bill is narrowly defined. Groups like DemandProgress.org, a progressive policy group, have launched venomous attacks against the bill, calling on the group’s supporters to oppose the bill.
“Here they go again: Big business’ lobbyists are launching another attack on Internet freedom,” Demand Progress said on its website.
“Senators are considering a ‘Ten Strikes’ bill to make it a felony to stream copyrighted content – like music in the background of a YouTube video – more than ten times.”
In a response to BroadbandBreakfast.com inquiries, Linden Zakula, Klobuchar spokesman, was confident in the bill’s language.
“The bill language specifically targets people who willfully engage in copyright infringement for commercial advantage or private financial gain. The bill does not criminalize uploading videos to YouTube or streaming videos at home,” said Zakula.
Liz Kennedy, RIAA spokeswoman, echoed similar thoughts.
“YouTube is licensed by the major music companies so it will have no effect on YouTube or our relationship. The streaming bill is a criminal law bill requiring willfulness and excessive damage – and the Attorney General would have to decide if a case merits prosecution, not a copyright owner.”
Despite continued reassurance from lawmakers and industry professionals that the bill only targets the worst of the worst, legal experts say that it’s not that simple.
Mike Carroll, Professor of Law and Director of Program on Information Justice and Intellectual Property at American University’s, Washington College of Law, said that while there is a monetary threshold that must be breached– exceeding $2,500 the total retail value of the performances, and exceeding $5,000 to total fair market value of licenses to offer performances of those works – calculating value of the streams is not clear.
Carroll also said that the bill is problematic because it sweeps too broadly and is not limited to infringing commercial streaming services.
“The fact that the infringement has to be deemed willful before it can be criminal is not a real safeguard because the evidence to prove willfulness can be a wide range of conduct open to varying interpretations.”
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.
U.S. and EU Privacy and Intellectual Property Landscape Complicate Data Use Requirements
February 7, 2021 – Differences in the intellectual property and privacy landscape between Europe and the United States account are among the forces complicating the regulatory landscape around commercial data, partners at Covington’s Second Annual Technology Forum said on January 27.
Further, because intellectual property laws do not provide robust protection for databases, organizations are increasingly relying on contracts that define rights and restrictions to protect their data.
When learning how to best to handle data, companies need to know what sources it is coming from, said Lee Tiedrich, a partner at Covington. Knowing the type of data is quite important, he said, since data comes in many forms. For example, open or proprietary data should be handled differently than user contributions and scraped data that comes off of public websites.
Differences between U.S. and European intellectual property laws also factor into database protection. Clients need to know how to source data properly because they want to protect their rights to their data and reduce their liability risks, Tiedrich said.
There is no sui generis database protection in the U.S., a term which means databases do not have strong legal protections. This is not unusual as intellectual property laws in the U.S. typically do not provide protection for databases, said Tiedrich.
From a EU legal perspective, there may be some form of IP protection in data but that does not eliminate privacy requirements applying to that data, said Freddie Argent, a partner at Covington.
The panelists also discussed key terms of contracts for data licensors. Data licensors need to employ best practices, have standardized terms, and apply consistency across deals, said Adrian Perry, partner at Covington. Terms of service and privacy policies require clarity with the licensee acknowledging and accepting it, Perry added.
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.
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