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Congress Sneaks Trio of Intellectual Property Bills Into Funding Omnibus, Plus Reactions, and Additional Copyright Changes

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Photo of Sen. Thom Tillis from the New York Post

Congress included a trio of notable and hotly debated intellectual property measures in its multi-trillion-dollar spending and relief package that it passed this week. The intellectual property portion of the legislation includes the Protect Lawful Streaming Act, the Copyright Alternative in Small-Claims Enforcement Act, and the Trademark Modernization Act.

Proponents of the CASE Act argue that the bill would make it easier for independent artists to bring about copyright claims without having to endure the lengthy and expensive federal courts process.

The bill will streamline copyright disputes by creating a small claims tribunal within the U.S. Copyright Office that will adjudicate small claims infringement cases. Critics of the bill argue that the CASE Act could fine ordinary internet users for engaging in everyday online behavior, such as sharing memes.

The Trademark Modernization Act allows third parties to request the Patent Office to reject trademark applications in an effort to combat “trademark trolls” who make money off of trademarks they never planned to use.

The Protecting Lawful Streaming Act, a provision included authored by Sen. Thom Tillis, R-North Carolina, would allow the Justice Department to charge businesses for felony copyright infringement if they intentionally stream copyrighted material online.

The law specifies that it doesn’t apply to people who use illegal streaming services or “individuals who access pirated streams or unwittingly stream unauthorized copies of copyrighted works.” Rather, it’s focused on “commercial, for-profit streaming piracy services” that make money from illegally streaming copyrighted material.

Reactions to the last-minute copyright inclusions

Changes to copyright law can be controversial, as small legislative changes can have massive impacts on the public’s ability to express themselves. Many viewed these changes being included in the stimulus funding bill a travesty.

“Shoehorning last-minute proposals that haven’t had a hearing into an end of the year spending bill is concerning both due to the controversial substance and the lack of due process,” wrote Arthur Sidney, vice president of public policy at the Computer & Communications Industry Association, in a recent statement.

Many expressed fear of the impacts that the legislation will have on speech, because of a lack of attention on studying the bill closely.

Critics of the CASE Act say the bill could have a chilling effect on free speech, as it creates a new small claims system that allows individual artists and designers to challenge copyright infringement without launching a federal case. “The CASE Act will supercharge copyright trolling exactly at a time when we need to fix the law to have less trolling,” wrote Mike Masnick, in an article for Techdirt.

Twitch streamers, YouTubers, and their subscribers have expressed fear that the Protecting Lawful Streaming Act may incriminate them; however, proponents of the bill say they’re more interested in tackling services dedicated to streaming pirated content.

“The felony streaming bill which was only just revealed last week, with no debate or discussion, includes provisions that are so confusing and vague no one is sure if it makes users of sites like Twitch into felons,” wrote Masnick.

However, some entertainment interests applauded the measure. “We applaud congressional approval of The Protect Lawful Streaming Act, bipartisan legislation that modernizes copyright law to protect video programming against unlawful online streaming,” said Michael Powell, CEO of the NCTA, the Internet and Television Association.

He said it was a “narrowly-tailored law [that] will target large scale criminal piracy, and will not affect legitimate internet service providers or ordinary internet users.  It will provide prosecutors with a critical new tool to deter online criminal activity and protect the rights of cable programmers that stream their creative works online.”

According to Public Knowledge senior policy counsel Meredith Rose, the bill doesn’t appear to criminalize Twitch or Twitch streamers “who may include unlicensed works as part of their streams.”

“As a general matter, we do not see the need for further criminal penalties for copyright infringement,” said Rose, in a statement earlier this month. “However, this bill is narrowly tailored and avoids criminalizing users, who may do nothing more than click on a link, or upload a file. It also does not criminalize streamers who may include unlicensed works as part of their streams.”

Additional controversial copyright reform proposes changes to Digital Millennium Copyright Act

Relatedly, on Tuesday Tillis  introduced a discussion draft of a further controversial copyright bill.

Among other sweeping changes to the Digital Millennium Copyright Act, the bill increases the role of federal agencies in regulating copyright, gives greater power to copyright holders to file small claims suits and also adds rules and penalties impacting how internet companies take down copyright infringement online

In a recent statement, CCIA criticized Tillis’ proposed reform, saying it “reads like a Christmas wish list for Hollywood and big content companies, and takes cues from contentious copyright reforms in Europe.”

“Industry works to provide new tools for greater compensation for creators and lawful alternatives for consumers,” said CCIA President Matt Schruers. “Unfortunately this discussion draft would not benefit individual creators and would impose notice and staydown provisions that are not just too severe but unconstitutional.”

“The U.S. leads the world in the technology and content sectors, in large part due to flexible regulatory proposals like the DMCA that have encouraged innovation and creativity online. We should not be abandoning important U.S. copyright precedent and contemplating controversial copyright proposals from the European Union,” said Schruers.

In the statement, CCIA says it looks forward to working with Senator Tillis’ office to address our serious substantive concerns.

Broadband Roundup

Digital Equity Foundation Guide, UScellular Selects Ericsson for 5G, Brightspeed Targets

A policy paper recommends how a federally funded digital equity entity should be funded and structured.

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Michael Calabrese, director of New America’s Wireless Future Project

May 25, 2022 – A policy paper released Wednesday outlined recommendations for a federally funded Digital Equity Foundation, including how it should be structured and funded.

New America’s Open Technology Institute and the Philanthropic thru Privatization report recommends the foundation focus on having a stable endowment to maintain the its annual support, an ability to raise outside funds, to have advisory groups with a broad range of expertise to guide the foundation, and to have transparency principles that would see it have federal appointees and report regularly to the Senate and House commerce committees.

The paper comes after a joint note from New America and the Johns Hopkins Center for Civil Society Studies in April 2021 to Congress for funding for the foundation. At least 75 organizations support the Digital Equity Foundation.

“A federally funded Digital Equity Foundation isn’t a radical concept. Rather, it’s a common-sense policy solution to a longstanding national problem,” said Chuck Bell, a project associate for the PtP Project. “This proposed foundation would meet vital community needs, fit with longstanding legal precedents, and provide sustainable national funding to bridge the digital divide for millions of underserved Americans.”

Michael Calabrese, director of New America’s Wireless Future Project, said that even with the billions in broadband investments from the Infrastructure, Investment Jobs Act – which provides funding for digital equity – we won’t close the digital divide without “sustained investments in digital literacy and adoption efforts at the community level.”

UScellular selects Ericsson for C-band deployment

UScellular, the nation’s fourth-largest wireless carrier, announced Wednesday an agreement that will see Swedish telecom equipment supplier Ericsson help the telecom build out its 5G network using the C-band spectrum.

The telecom looks to use the spectrum to build out its fixed wireless network.

“Ericsson’s advanced mid-band coverage extension functionality with Carrier Aggregation network solutions will increase coverage and capacity for UScellular customers both at home and on the go,” said a press release Wednesday.

“Ericsson has a valued, long-standing relationship with UScellular, and we share their commitment to providing a resilient and sustainable network through the use of industry-leading innovations, ultimately elevating the customer experience,” Eric Boudriau, Ericsson’s vice president and head of customer unit regional carriers, said in the release.

Brightspeed announces first-year build target for its fiber network

On Wednesday, telecom company Brightspeed announced first-year plans for its proposed $2 billion network transformation plan, including an aim to have one million new fiber passings across rural and suburban regions of the U.S. and reaching close to three million homes and businesses by the end of 2023.

The company said it is optimistic the first deployment will take place in North Carolina in a few weeks and will serve as a company blueprint for future applications.

“We have already begun design and construction preparations necessary to hit the ground running on day one. We will be well-equipped to quickly deliver on our mission to bring ultra-fast, reliable Internet and Wi-Fi to more homes and businesses” said Bob Mudge, CEO of Brightspeed.

The company said its network is expected to provide more than one gigabit per second download speeds.

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Broadband Roundup

Court Strikes Social Media Law, Industry Likes Cyber Initiative, Meta Data Transparency Project

Key provisions in the social media law signed by Gov. Ron DeSantis was found unconstitutional by an appeals court.

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Photo of Kelly Rozumalski, senior vice president at Booz Allen Hamilton, from Careers Info Security

May 24, 2022 – The 11th Circuit Court of Appeals ruled in a unanimous 3-0 decision Monday that key provisions in Florida’s social media censorship law is unconstitutional, following a preliminary injunction granted by a Florida judge last year.

The social media law, signed by Governor Ron DeSantis, would have prohibited companies from banning politicians on their platforms and limit their content moderation and editorial decisions, claiming that social media platforms are suppliers of a platform who should have no hand in the flow of information. The law was adopted following a number of high-profile Republican figures were banned from social media platforms, including former President Donald Trump from Twitter.

But the court found that provisions that allowed for the law to prevent tech platforms from removing political figures and posts by political candidates – key provisions in the law – were unconstitutional, affirming the court’s decision when it temporarily stopped the law from taking effect until it made a final determination. The court, however, found some provisions regarding data and disclosure requirements to remain in force.

The ruling came in response to a lawsuit issued by NetChoice and Computer and Communications Industry Association.

The decision comes nearly two weeks after a federal appeals court temporarily lifted restrictions on a similar law in Texas until the courts can make a final determination.

The court said in its decision that, “not in their wildest dreams could anyone in the Founding generation have imagined Facebook, Twitter, YouTube, or TikTok. But whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears.”

Industry commends Biden administration for progress on federal cybersecurity

Experts are applauding the White House’s progress in the year since President Joe Biden signed an executive order to focus on cybersecurity, according to The Hill, specifically highlighting the improvements in sharing threat information from government to private sector.

“I think the public-private partnership portion of the executive order has really been key,” said Kelly Rozumalski, senior vice president at IT consulting firm Booz Allen Hamilton, explaining that the Cybersecurity and Infrastructure Security Alliance has now partnered with numerous companies in the private sector to push for cybersecurity.

“I’ve seen much more directive, actionable steps coming out now and I think the executive order is a big reason for that,” added Chris Wysopal, chief technology officer of Veracode. “[The order] sort of changed the status quo from best practices to practicality.”

The executive order in May of 2021 introduced several initiatives to secure federal networks and critical infrastructure against cyberattacks, which included sharing threat information, modernizing federal cybersecurity standards, and improving software supply chain security.

The order was enacted amid major cyberattacks, including oil transport company Colonial Pipeline and software company SolarWinds. As a result of the order, said The Hill, many companies are taking software security more seriously and require that suppliers sell them upgraded and secure software.

In March, Congress passed the Cyber Incident Reporting for Critical Infrastructure Act, which requires private sector companies to report incidents of cyberattacks to the federal government.

Meta announces data transparency project

Meta, the parent company of Facebook, Instagram, and WhatsApp, announced on Monday the Facebook Open Research and Transparency project, which will grant access to researchers to data on how political advertising can be targeted on their platforms.

Meta, according to New York times, has given outsiders access into how political ads were used in the past, but only with certain restrictions. Meta claims that “by making advertiser targeting criteria available for analysis and reporting on ads run about social issues, elections, and politics, we hope to help people better understand the practices used to reach potential voters.”

The project will be initiated by the end of the month. The data will allow researchers to see what interest categories advertisers chose for each post. Meta will also include summaries of targeting information the Ad Library which is currently publicly available.

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Broadband Roundup

D.C. Attorney General Sues Zuckerberg, Carr Criticizes Infrastructure Bill Details, Vermont to Expand Fiber Builds

The lawsuit comes years after Facebook was found to have been used to harvest personal data for political purposes.

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Federal Communications Commission Commissioner Brenden Carr

May 23, 2022 – On Monday, Washington D.C. Attorney General Karl Racine sued Meta CEO Mark Zuckerberg for alleged consumer privacy violations revealed during the Facebook-Cambridge Analytica scandal that broke in 2018.

In his office’s filings with the D.C. Superior Court, Racine argued that “Facebook is far from a disinterested platform” and that it “[derives] enormous wealth from acquiring and monetizing the data of [billions of people] leading their lives in Facebook’s digital ecosystem.

“But even that is not enough,” the filing read. “Facebook is in a relentless pursuit to expand its reach on humanity and bring an ever-increasing number of people under its influence.”

To that end, the filings stated that “Cambridge Analytica used the Facebook Platform—in a way that Facebook and Zuckerberg encouraged—to influence and manipulate the outcome of a United States presidential election.”

As co-founder, CEO, chairman, and majority voting shareholder (Zuckerberg holds 60 percent of Meta’s voting shares according to the filings), Racine stated that Zuckerberg “maintains an unparalleled level of control over the operations of Facebook,” and thus bears the responsibility for its actions.

FCC Commissioner Carr says NTIA broadband infrastructure details picks “winners and losers”

Federal Communications Commissioner Brendan Carr released a statement expressing concern that the application details for broadband funding under the infrastructure bill released this month prioritizes one technology over others.

“[The notices of funding opportunity] will prevent states from funding projects that could quickly bridge the digital divide using those high-speed technologies in nearly all cases—putting too much of a thumb on the scale for fiber builds that provide robust service but can take years to build out in certain cases,” Carr said in a statement Thursday, but added, “I have no doubt that fiber projects would demonstrate their value in the lion’s share of cases.”

The week prior, the National Telecommunications and Information Administration’s released those funding details, which included an answer to a question about its technology preference for the builds. “With respect to the deployment of last-mile broadband infrastructure, the Program prioritizes projects designed to provide fiber connectivity directly to the end user,” the Commerce agency said in the 98-page NOFO.

Carr stated that this will “undoubtedly waste taxpayer dollars and leave families waiting on the wrong side of the digital divide.”

The Republican commissioner also condemned what he perceived as rate regulation and overbuilding.

“In the end, the Administration’s decision to pursue those political goals—rather than focusing on connecting the largest number of people as quickly as possible—will exacerbate the supply chain challenges and workforce shortages that already pose a hurdle to getting the job done.”

Vermont governor announces fiber grants

On Monday, Vermont Republican Gov. Phil Scott announced broadband grants totaling more than $16 million.

The grants will be focused on deploying more than 9,000 miles of fiber across Bolton and several other towns in the northeast corner of Vermont.

Scott was set to be joined by Vermont’s at-large congressional representative Democratic Rep. Peter Welch at 12 noon ET in Jericho, Vt., to formally unveil the project in question.

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