analoghole

Boucher, Doolittle float "FAIR USE" Act

The EFF have posted a draft of a new bill from Reps. Boucher and Doolittle, the "Freedom And Innovation Revitalizing U.S. Entrepreneurship Act of 2007" or "FAIR USE" Act.  As of February 28, it hasn't been introduced and is not yet up on Thomas, but the draft text is available on the EFF site.  The bill does the following:

- Specifies that courts may award statutory damages for secondary copyright infringement only where the plaintiff proves that "no reasonable person could have believed" the conduct constituting secondary infringement was lawful under the circumstances.  Sec. 2(b)
- Codifies a Sony-ish standard for hardware makers:  No liability for infringement for the design, manufacture, or distribution of a device capable of "substantial, commercially significant noninfringing use." Sec. 2(b).
- Codifies the latest round of DMCA exemptions from the Copyright Office (November 2006) in Sec. 3(a) and adds a few more (in Sec. 3(b) that exempt certain types of circumvention of access controls from liability under 17 USC Sec. 1201(a)(1), including:

- extracting clips from a work in a library for a compilation for classroom educational use
- skipping past objectionable content (similar to what was provided in the Family Entertainment and Copyright Act of 2005)
- transmitting over a local or home network, accessing a public domain work in a compilation of mostly-public-domain works
- accessing a work "of substantial public interest" solely for purposes of comment, criticism, news reporting, scholarship, or research
- circumvention by libraries in order to engage in archiving authorized by statute in the Copyright Act

A couple things of note.  First, the home/personal network exception may not be sufficient to allow the kind of space-shifting that many consumers (and indeed, lawmakers) seem to think should be allowed -- like ripping a DVD to a laptop hard drive or iPod for portable viewing.  BoingBoing reader Trevor Fiatal points out that the exception appears to apply only to streaming, not copying.  While the bill certainly doesn't make this clear, I tend to think this exception may be broad enough to allow space-shifting, at least in theory, in some circumstances.  By allowing circumvention in order to "transmit" to a home network, the bill is sufficient to allow a user to get encrypted content to a local device.  At this point, it becomes a question of regular copyright law (as opposed to the DMCA) whether the making of a tangible copy (like a copy on an iPod) is infringing or not.  But I agree that the bill doesn't make this clear, and might be read (or intended to be read) more narrowly.

Second, those with some familiarity with the DMCA may note that the listed exemptions apply only to acts of circumvention under Sec. 1201(a)(1) (and thus not to 1201(b)).  The problem with the current exemption process through periodic rulemaking by the Librarian of Congress is that the exemptions apply only to the act of circumvention, and don't address the general prohibitions on distribution of tools for circumvention (under Secs. 1201(a)(2) and 1201(b)).  So people who wish to engage in permitted circumventions may be unable to obtain a tool that would allow them to do so.  At first blush, the FAIR USE Act's exemptions suffer the same limitations -- they allow circumvention, but don't do anything to permit the development or sale of devices one would need in order to engage in such permitted conduct.   The exemption in Sec. 2 for hardware devices capable of non-infringing uses may have been intended to get at this problem, but as the bill is currently drafted, it doesn't fix it.  Sec. 2(b) exempts the makers of such devices from liability for "copyright infringement," but does not address the question of whether the maker of a device capable of (or even specifically designed for the sole purpose of) engaging in permitted categories of circumvention would be liable under the DMCA.

Even though the bill falls short of the sweeping DMCA reform many have called for, it's still likely to be controversial.  The codification of a Sony-ish standard for secondary liability for copyright infringement would seem to undo the Grokster standard, or at least muddy the waters even more, and I don't think the content folks are going to be too happy about that.

Boucher to float a new version of DMCRA

According to National Journal, Rick Boucher (D-VA) said last week (the NJ's piece is dated "Friday, January 20, 2007, which is a bit odd, since there isn't one) that he planned to reintroduce legislation to reform the DMCA, or as NJ puts it, "repeal a ban against circumventing anti-piracy technologies on digital content."  Of course, that characterization of the bill overstates its effects a bit.  Boucher's bill from the last Congress, the Digital Media Consumers' Rights Act or DMCRA (the cleverly-numbered H.R. 1201 (PDF)) basically would have created a non-infringing use exception to the anti-circumvention provisions of the DMCA (i.e. 17 U.S.C. Sec. 1201), along with expanding some of the other existing exceptions.  Some of the bill's opponents (like the MPAA, RIAA, PFF) claimed the bill would effectively repeal the DMCA, but that's not how the bill's text actually read or its author's stated goals in introducing the bill.

The last time around, H.R. 1201 had over a dozen cosponsors, on both sides of the aisle, including Joe Barton (R-TX) and John Doolittle (R-CA).  Of course, Boucher had also previously introduced nearly identical bills in the 108th Congress (H.R. 107, with 24 cosponsors) and in the 107th (H.R. 5544, with 3 cosponsors).  So far, none have made it out of committee.  In 2005 and 2003, Boucher was also a cosponsor of Zoe Lofgren's (D-CA) "Benefit Authors without Limiting Advancement or Net Consumer Expectations" or BALANCE Act (H.R. 4536 in the 109th, H.R. 1066 in the 108th) which also would have added a "noninfringing use" exception to the DMCA.

Although Boucher did not end up chairing the House IP subcommittee this year, as some had speculated/hoped he would, perhaps the change in House leadership, along with recent developments in the tech landscape (such as the popularity of Apple's "video" iPods, to which lots of people would love to be able to download video from their own legally-purchased DVDs, but can't under the DMCA), will give Boucher's bill some more legs this time, although it's hard to tell at this point.

EFF on WIPO's January broadcast treaty meetings

EFF's Deep Links has an update on developments at last week's WIPO meetings on a broadcast treaty.

Sununu's new (new!) broadcast flag bill in the works

Meant to post this with the news of the PERFORM Act's resurrection, but didn't.  Sen. John Sununu (R-NH) has announced (Jan. 8) he is working on a bill that would prohibit the FCC from implementing or imposing broadcast flag mandates.  Arstecnica has a little more.  No actual bill has been introduced yet, though.

The NO INNO(vation) Act

That was quick.  We're only a week into the 100th, and two "flag"-related bills have been introduced already. Last Thursday (Jan. 11), Dianne Feinstein reintroduced the "Platform Equality and Remedies for Rights Holders in Music Act of 2007" or PERFORM Act, S.447, that would reconfigure the current statutory licensing scheme under 17 U.S.C. Sec. 114 for audio webcasting and digital "radio" via satellite/cable radio.  The bill text looks to be unchanged from the version of the PERFORM Act introduced in the last Congress (in April 2006, also sponsored by Feinstein, plus Frist, Biden, and Graham on the Senate side, with Howard Berman and Mary Bono sponsoring a House version).

Basically, what the bill does is to impose a laundry list of new restrictions on webcasters and satellite radio who want to qualify for the statutory royalty rate for streaming audio.  Generally speaking, that royalty rate is assumed to be substantially lower than what record labels would demand in the "market," although it's difficult to assess what that market would be, since U.S. copyright law doesn't include a general "public performance right" for sound recordings, and has only included a digital performance right since 1996.  For an idea of what the statutory rates are, see this SoundExchange page.  The rates are currently being renegotiated, but in the last go-round, rates were about $0.000762 per performance, i.e. less than one tenth of a cent per performance.  So a webcaster who streamed 1000 songs would owe 76 cents in royalties.  (There are a ton of caveats, but that's the gist.)  The two satellite radio companies, XM and Sirius, operate under a separately-negotiated deal, and pay 10% of gross revenues.  (Incidentally, these royalties are for performance of the sound recording, as opposed to the underlying musical composition -- royalties for performance of which are dealt with by older agencies like ASCAP/BMI -- and are supposed to be split by recording labels and artists.)  There are lower rate scales available for non-commercial webcasters.

One can argue about whether these rates are too low or too high, but it's clear that in general, they are far lower than what record labels would demand if a webcast were considered the making of a copy, i.e. a reproduction of the sound recording, rather than a "broadcast" or performance.  No webcaster (who is broadcasting music owned by major labels, anyway) could afford to stay in business if, each time they played a song, they basically had to buy a copy of that song for each of their listeners.  So, to qualify for these webcast/broadcast rates, a webcaster has to jump through a lot of hoops under current law to make sure the webcast acts more like a traditional radio broadcast than the iTunes store.  It has to be non-interactive.  Listeners aren't allowed to select particular songs to play right now, and there are limits on how broadcasters can pre-announce songs, or play entire albums, etc.

The PERFORM Act would add several other restrictions.  The two most controversial are that webcasters would have to wrap their webcasts in DRM, and not take an affirmative steps to allow recording.  In the words of the bill (subsection (c), content protection) a webcaster can only qualify if:

the transmitting entity takes no affirmative steps to authorize, enable, cause or
induce the making of a copy or phonorecord by or for the transmission recipient and uses
technology that is reasonably available, technologically feasible, and economically
reasonable to prevent the making of copies or phonorecords embodying the transmission
in whole or in part, except for reasonable recording as defined in this subsection;’’

So, essentially, webcasters couldn't webcast in MP3.  They'd have to use some sort of DRMed format (and in most cases, they'd end up paying royalties for the use of that, too).  This is an exceedingly expensive "fix" for what is, in reality, a tiny problem for the recording industry.  Sure, some people out there record streaming music so that they can keep, effectively making copies out of streams -- a digital equivalent of taping songs off the radio.  But the restrictions on streaming (to make it non-interactive) are already so onerous that a would-be "music pirate" isn't going to waste time getting songs this way.  They'd just go to the myriad P2P networks available andf grab the song there (after its been ripped from a CD by someone, somewhere).  On the other hand, forcing webcasters to encrypt just makes it a huge pain for those people who want to webcast or listen to streaming audio.  If you're a webcaster, you have to implement some sort of locked down DRM, which costs time and money.  And if you're a listener, you have to hope the client app is good (and you have to have a bevy of client apps to listen to the myriad DRM flavors out there).  Oh, and if you want to listen to your webcast on something other than the lowest-common-denominator Windows PC running XP (like a Mac, or a smartphone, or some sort of home media appliance) then you'd better hope there's a client available (although there probably isn't).

The part about not taking affirmative steps to enable the making of a copy appears squarely targeted at XM Radio, and its Inno device (a sort of iPod-sized Tivo for XM, which lets users record audio to the device and play it again later, although they can't transfer the digital files off the device), over which the record labels are engaged in heated litigation with XM.  I'm sure the RIAA really appreciate Senator Feinstein's help.  (For what it's worth, the tv/movie/music industry contributed about a quarter mil  this election cycle.  While this is a lot of money, it's only natural that they'd give big to a senior California senator.  (And entertainment was only the 4th highest industry sector in Feinstein contributions.)  California rep Howard Berman, the previous House sponsor of the PERFORM Act last year, and incoming IP subcommittee chair, got $173,000 from the entertainment industry for the 2006 cycle, which (relatively speaking, for House member) is a lot more (and his #1 industry sector).

New criminal IP bill

A new IP criminal enforcement bill -- a draft of which was floating around last spring -- has been introduced in the House.  H.R.5921 (sponsored by Rep. Sensenbrenner).  Highlights include (1) redefining "trafficking" for certain IP offenses to include import, export, and possession with intent to distribute (tracking the new definition of "traffic" for counterfeiting cases added as part of the Stop Counterfeiting in Manufactured Goods Act in March 2006); (2) a bunch of new forfeiture provisions; (3) attempt and conspiracy provisions for criminal copyright infringement; and (4) big increases in maximum sentences (which are generally doubled).  One notable change from the previous draft circulated in April is the absence of any new wiretapping authority for IP crimes (which had been in Sec. 16 of the April draft).

Do or Die Time for Stevens Bill

Art Brodsky of Public Knowledge has a nice write up in TPM Cafe of the current state of the "net neutrality" bill proposed by Ted "Series of Tubes" Stevens.  Of course, it's not really a "net neutrality" bill, and it's also much more than that, as it's been loaded up with a smorgasboard of cable and IP regs: franchising issues, boadcast flag, audio flag, etc.

Not clear which way it's headed.  But either way, there are only 21 legislative days left in the Senate.

Flag burning amendment fails, but video and audio flag apparently still sacred ...

This week the Senate rejected a proposed Constitutional amendment that would allow Congress to prohibit "desecration" of the American flag, in what has become a biannual ritual.  The Senate Commerce Committee also rejected (11, and 12-10, respectively) two Democratic proposals (one based on the Dorgan-Snowe bill, the other by Daniel Inouye) on net neutrality.  But the Comittee did manage to pass (15-7) the Stevens (R-Alaska) proposal on net neutrality, S.2686.  The Stevens pan doesn't do much on net neutrality, but it does include  video and audio flag regulations almost identical to those floated months ago.  Given that some on the Hill are voicing doubts about the (broadcast) flag provisions, and the dissatisfaction of many with the lukewarm neutrality provisions of the Stevens bill, it's unlikely to speed through.
Still, the Senators (on the Commerce Committee at least) seem intent on protecting the "sanctity" of *some* kind of flag this term.  Might we suggest that instead of imposing requirements on all electronics manufacturers and consumers to worship at the altar of the broadcast flag, they could come up with a less onerous and silly bill to protect that *other* flag.  How about a law requiring all manufacturers of the stars and stripes to make them fire-retardant?

Bush signs H.R. 32 "Stop Counterfeiting in Manufactured Goods Act"

President Bush signed H.R.32, the "Stop Counterfeiting in Manufactured Goods Act," today.  Basically, it rephrases the current criminal law prohibiting trade in counterfeit goods to also prohibit trading in counterfeit labels.  Although it deals primarily with trademark counterfeiting (18 U.S.C. 2320), there are some miscellanous IP-related items in it.  Bush doesn't make too many public comments on IP (or even use the word "intellectual" much), so it's interesting to see this video of his signing speech. "One of the problems we have is that people feel comfortable, at times, in trying to take a shortcut to success in the business world."  Indeed.

Audio BF Bill Introduced in House

According to Billbord Radio Monitor, Mike Ferguson (R-NJ-7th), has introduced a bill, the "Audio Broadcast Flag Licensing Act of 2005," that would require makers of HD and satellite receiving hardware to recognize and honor a broadcast flag (standard TBD, apparently).  Cory Doctorow on Boingboing says the bill was introduced March 1 and is numbered H.R. 4861, but it hasn't shown up on Thomas yet.)  [Update: Here it is.  It was introduced on March 2.]
  Also according to BB, the bill would require the BF implementation to allow "customary uses."  Not sure what that might mean in the context of digital radio, which hasn't been around long enough to develop customary uses.  With analog radio, the customary uses are that listeners can record to their hearts' content.  For the BF rule to mean anything, it probably doesn't mean that.

[Update:  The bill would grant the FCC authority to license devices for satellite and HD radio reception, with special conditions, including that "such licenses shall include prohibitions against unauthorized copying and redistribution of transmitted content through the use of a broadcast flag or similar technology, in a manner generally consistent with the purposes of other applicable law ...."  Limitations on the licensing/regulating authority state that they should not make obsolete any existing receivers, and "shall not be inconsistent with the customary use of broadcast content by consumers to the extent such use is consistent with the purposes of this act and other applicable law."  Still, it's hard to say what this "customary use" exception means.  Customary uses consistent with "other applicable law" would seem to include things like copying for purposes of timeshifting (and perhaps "device-shifting" as well), but since "this act" includes a provision calling for the broadcast flag to "prohibit[] ... unauthorized copying..." perhaps copying for time-shifting purposes would not be allowed as a "customary use."