Digital Policy Roundup: Takeaways from Viacom v. YouTube, Admin. Trumpets IP Protection, and ICANN Application Process Moves Forward

The Roundup was off last week for spring break. While Congress is still on recess another week, there’s been plenty going on off the Hill:

SIIA Comments on NTIA Multistakeholder Privacy Process, Calls for Collaboration Instead of Legislation

On April 2nd, SIIA submitted comments to the Department of Commerce regarding the National Telecommunications and Information Administration (NTIA) “Multistakeholder Process to Develop Consumer Data Privacy Codes of Conduct.” In our comments, SIIA applauded the NTIA’s process of bringing together relevant parties in order to gather the collective expertise, and reiterated its call for a collaborative, rather than legislative, approach to addressing consumer data privacy. SIIA believes that the proposed multistakeholder process can contribute significantly to the mutual recognition of data privacy regimes, including the European Union proposed data protection regulations.

Appeals Court Rules in Viacom v. YouTube

Last Thursday, the U.S. Court of Appeals for the Second Circuit issued a decision in Viacom v. YouTube — the well-publicized copyright infringement case brought by several motion picture companies. The Second Circuit reversed portions of a 2010 decision by the lower court that held YouTube was not liable for copyright infringement and sent the case back to lower court for trial on the basis that “a reasonable jury could find that YouTube had actual knowledge or awareness of specific infringing activity on its website.” The three key takeaways from this case are:

(1) under the DMCA, ISPs can be liable if they either “subjectively” know of the specific infringements or they were subjectively aware of facts that would have made the specific infringement “objectively” obvious to a reasonable person, but cannot be liable for having a mere general awareness that the service was being used for infringing purposes;

(2) in an issue of first impression, the doctrine of willful blindness (defined as engaging in “‘conscious avoidance’ amounting to knowledge where the person was aware of a high probability of the fact in dispute and consciously avoided confirming that fact,”) “may be applied, in appropriate circumstances, to demonstrate knowledge or awareness of specific instances of infringement under the DMCA;” and

(3) for an ISP to be held liable under the DMCA’s “right and ability to control” standard “requires something more than the ability to remove or block access” but the copyright owner need not go so far as to prove that the ISP has specific knowledge, item by infringing item, in order to control the activity.

ICANN gTLD Application Period to Close Thursday

The application period for new gTLDs closes this Thursday, April 12. At least 859 applicants have created accounts in the applications system, and many of them have submitted multiple applications. In all, indications are that several THOUSAND applications have been, or will be submitted. On Monday, SIIA provided a policy update for members on this ongoing process and SIIA/industry engagement, and we’ll continue to update with further developments.

Administration Released IP Enforcement Report, Prepares for IP Economic Report Tomorrow

On March 30th, White House IP Enforcement Coordinator Victoria Espinel released the 2011 U S Intellectual Property Enforcement Coordinator’s (“IPEC”) Annual Report on Intellectual Property Enforcement, highlighting the steps the administration took in 2011 to enforce IP rights and crack down on the sale of pirated American products, and announcing plans to work with Congress to ensure law enforcement has the right tools to cut down on online counterfeiting and piracy. Among the highlights for 2011, the Report lists the voluntary best practices between payment processors and rights holders to reduce infringement, enhanced U S law enforcement efforts to fight counterfeiters and pirates, and the March 2011 release of the Administration’s White Paper on Intellectual Property Enforcement Legislative Recommendations.

Additionally, tomorrow the Administration will unveil a new Commerce Department report on the role intellectual property plays in the economy. The event will feature DOC Secretary John Bryson, Victoria Espinel and PTO Director David Kappos, and we’ll provide further update on details next week.

SIIA Facts & Findings
IP Report – On March 30th, White House IP Enforcement Coordinator Victoria Espinel released the 2011 U S Intellectual Property Enforcement Coordinator’s (“IPEC”) Annual Report on Intellectual Property Enforcement, steps the administration took in 2011 to enforce IP rights and crack down on the sale of pirated American products, and announcing plans to work with Congress to ensure law enforcement has the right tools to cut down on online counterfeiting and piracy.

Admin Big Data Initiative – On March 29th, the Obama Administration released a “Big Data Research and Development Initiative.” By improving our ability to extract knowledge and insights from large and complex collections of digital data, the initiative is intended to help accelerate the pace of discovery in science and engineering, strengthen U.S. national security, and transform teaching and learning.

EU Data Protection – On March 23rd, the EC Article 29 Working Party adopted an Opinion on ECs data protection law reform proposals, including the draft Regulation that is of particular importance for businesses. The Working Party’s Opinion serves as the national data protection authorities’ contribution to the legislative process before the European Parliament and the European Council. Hunton & Williams has provided a summary.

For SIIA policy updates including upcoming events, news and analysis, subscribe to SIIA’s weekly policy email newsletter, Digital Policy Roundup.


David LeDuc is Senior Director, Public Policy at SIIA. He focuses on e-commerce, privacy, cyber security, cloud computing, open standards, e-government and information policy.

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