With two very positive developments, this is a great week for intellectual property protection and efforts to fight software piracy. First, the Anti-Counterfeiting Trade Agreement (ACTA) was ratified this weekend when it was signed by the U.S. and seven other countries. The treaty represents a major advancement in international cooperation around enforcement of intellectual property laws, as it will encourage and empower nations to work together to stop those who use the Internet to profit from counterfeiting of software. The agreement will also extend SIIA’s reach and ability to thwart counterfeiting – especially operations taking place on foreign websites.
Second, on Monday the U.S. Supreme Court handed a monumental victory on Monday in refusing to hear the Vernor v. Autodesk case. In declining to review the case, the High Court upheld 9th Circuit ruling that the first sale doctrine should not apply to Autodesk’s software because it was licensed — thus Vernor is not permitted to sell “used” copies on eBay. In January 2010, SIIA filed an amicus brief in the Ninth Circuit that advocated for this outcome, and it is now officially confirmed that a one-time payment and/or ability to keep possession of the disk (media) do not transform a software transaction into a “sale.” The copyright owner’s reservation of title and imposing restrictions inconsistent with ownership confirm that it is a license, not a sale.
In other news, Congress’ return means more focus on privacy and cybersecurity on the Hill. Most notably, the House E&C Subcommittee on Commerce and Trade will hold a hearing on Wednesday on the FTC’s proposed revisions to COPPA, and then another hearing on privacy next week focused on consumer expectations. On Thursday the House Homeland Security Committee will Hold a Thursday hearing on cloud computing, with an emphasis in evaluating the security for Federal use of cloud computing.
Finally, the U.S. Senate HELP (i.e., education) committee has announced its plans to mark-up legislation October 18 to reauthorize the No Child Left Behind Act following several years of hearings and internal discussions. The base-bill is expected to be only a basic package of those issues where there is bipartisan agreement, with other issues and programs left to an extensive amendment process. SIIA expects an amendment to be offered to authorize the Achievement through Technology and Innovation (ATTAIN) Act (S.1178), legislation long-championed by SIIA. Despite the bipartisan support for the legislation, the outlook is still murky, especially now that the Obama Administration’s waivers have relieved some of the pressure.