In other IP news, indications from House leaders are still that the rogue websites legislation is expected to be introduced this week, as early as today. There has been a recent push by opponents of the legislation to stall it’s introduction, including a meeting last week with Cmte. staff where concerns about the potential implications of the bill were discussed.

On the cybersecurity front, the White House held a classified briefing with key Senate leaders last week. The meeting, including representatives from the FBI, DHS, NSA and bipartisan leadership of the Senate committees with jurisdiction over cybersecurity, was part of a continued effort by the White House to advance comprehensive cybersecurity legislation this year. While the meeting participants broadly agreed about the urgent need to address growing cybersecurity threats, there are several key issues that remain unresolved. To state the obvious, the clock is beginning to run out on 2011.

The FTC staff report on privacy is scheduled for release before the end of the year, but it is possible, and even likely, that issuance will go to the beginning of next year. The final report is likely to be very similar to the draft report. It will not be a major overhaul and will not contain any earth-shattering departures from the structure set out earlier. The major issues in play appear to be the definition and role of commonly accepted business, the role of data minimization, the application of privacy framework to both the online and off-line contexts and the distinction between first party and third party providers of online advertising. The report is likely to touch on the multi-stakeholder process that the Commerce Department is looking to establish and be consistent with it, but will focus more on principles and implementation rather than the process of developing self-regulatory codes of conduct. It is not yet clear whether the report will recommend legislation.

And as of last week, “cloud computing” is officially defined. That is, after a long time of working and reviewing, NIST last week released a FINAL version of their official definition of cloud computing, also known as SP 800-145. SIIA has worked with NIST throughout this process, and concur that this is a very solid definition, one that is widely referenced around the world. Of course, it’s breadth underscores why “cloud computing” is so challenging to define for policymaking purposes.

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.

Also on the cybersecurity front on Wednesday, the House Republican Cybersecurity Task Force released their formal recommendations. The Task Force was created by House Republican Leadership on June 24th, and asked to provide recommendations to Leadership. As expected, the Recommendations favor many SIIA priorities, such as a narrow definition of “critical infrastructure,” incentive-based approach, rather than regulations, as international collaboration, heavy engagement with the private sector, and providing public awareness regarding threats and existing solutions and best practices. SIIA put out a statement supporting the recommendations and highlighting some of our key priorities.

Importantly, the Recommendations also reiterated the House Republican’s belief that a large, “comprehensive” bill is practical, rather stressing the need for relevant committees to consider legislation separately through regular order. Consistent with this approach, Rep. Goodlatte indicated this week that he will soon introduce a proposal to enhance enforcement of cybercrime.

Also last week, the Supreme Court heard on Wednesday heard oral arguments in Golan v Holder. Before the court was the issue of whether Congress can restore copyright protection to a work whose copyright protection had previously expired and was therefore in the public domain. The court will decided whether the Copyright Clause and/or the First Amendment of the U.S. Constitution prohibit Congress from taking works out of the public domain. SIIA included a detailed summary of the oral arguments in our IP Policy Update.

Last week, SIIA joined the Future of Privacy Forum’s (FPF) Application Privacy Working Group and became a sponsor of the FPF project, ApplicationPrivacy.org, an effort to help develop voluntary privacy principles and best practices for mobile software applications.  SIIA joined the project out of the conviction that the industry does not need government regulation, but rather to help focus the industry’s voluntary adoption of transparent practices regarding collection, use and protection of consumer data.  SIIA strongly believes that a trusted environment for users is critical to ensure continued growth and innovation in the mobile marketplace.

Also last week, SIIA submitted comments to the European Commission’s (EC) cloud computing consultation, a public inquiry to develop a European cloud computing strategy that the Commission will present in 2012.  While this is a laudable objective to stimulate a European cloud industry, SIIA’s comments highlighted the challenges associated with trans-border data flows and urged caution regarding the development of harmful approaches like cloud-specific policies and localization requirements.

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

Judge Rules “Locker” Site is Not Direct Copyright Infringer (Ars Technica)
A federal judge in Miami has dismissed direct copyright infringement charges against online locker service Hotfile, but is allowing the case to proceed over the secondary liability charge to determine whether Hotfile is guilty of inducing its users to infringe copyrights.

Entertainment Companies Create New Website to Promote Anti-Piracy Effort (Los Angeles Times)
A coalition of major media companies and entertainment labor unions has launched a new website called Creative America to educate the public about content theft and promote anti-piracy legislation.

SAP to Argue for New Trial in Oracle Lawsuit (Computerworld)
SAP is seeking a new trial and a reduction of the $1.3 billion jury award it was ordered to pay.

2.) Another Judge Threatens to Dismiss Righthaven Copyright Suits (Vegas Inc)
U.S. District Judge Larry Hicks in Reno is the fifth judge dismissing or threatening to dismiss Righthaven copyright suits, giving Righthaven ten days to show cause why ten lawsuits he is handling should not be dismissed for lack of standing.

3.) New Attacks Launched on Righthaven Litigation Campaign (Vegas Inc)
Three more defendants are fighting back against Righthaven’s litigation campaign, each filing new or updated motions to dismiss.

4.) Alki David Drops CNET Lawsuit; Vows to Bring ‘Expanded’ Action (paidcontent.org)
FilmOn founder Alki David dropped his copyright infringement lawsuit against CBS and its CNET division after it could only produce six works it says was infringed by CNET, but David says other artists and copyright owners will be joining him in an expanded lawsuit.

5.) Apple Receives Mised Ruling on S3 Patent Violation (San Francisco Chronicle)
U.S. International Trade Commission Judge James Gildea said Apple violates two S3 patents, and was found to not have violated two others. The judge’s ruling is subject to review by the ITC, which will decide within 60 days whether or not to review the decision.

2.) Top ISPs Poised to Adopt Graduated Response to Piracy (CNET)
Top ISPs, including AT&T, Comcast and Verizon, are close to striking a deal with media and entertainment companies that would require the ISPs to take a tougher stance against customers who refuse to stop using the network to infringe on others’ intellectual property.

3.) Academic Publisher Steps Up Efforts to Stop Piracy of Its Online Products (The Chronicle)
After finding cheap, illegal access being sold to its online databases, academic publisher SciFinder is focusing its anti-piracy efforts on higher education, given a majority of the stolen or leaked SciFinder passwords are from accounts of college students and professors.

4.) Viacom Files Another iPad Streaming Lawsuit, This Time Against Cablevision (paidContent.org)
Similar to the dispute Viacom is having with TimeWarner, Viacom is now pursuing a claim against Cablevision over iPad streaming.

5.) Clark County Man Sentenced for Counterfeit Software Scheme (The Seattle Times)
Wayne Chih-Wei Shu of Clark County was sentenced to three years in prison and ordered to pay $687,633 in restitution for selling counterfeit Microsoft software and failing to file income tax returns.

On the cybersecurity front, last week House Speaker John Boehner appointed a 12-member Republican task force to assess the state of cybersecurity, including the Administration’s proposal, and provide recommendations by October. Rep. Mac Thornberry (R-TX), who was appointed to lead on this issue earlier this year, will lead the task force, joined by Reps. Aderholt (R-AL), Chaffetz (R-UT), Coffman (R-CO), Goodlatte (R-VA), Hurt (R-VA), Latta (R-OH), Lungren (R-CA), McCaul (R-TX), Murphy (R-PA), Stivers (R-OH) and Terry (R-NE).

Also last week, the Supreme Court decided a case that looks to be a major victory for data publishers. In the case Sorrell vs. IMS Health the Court confirmed an appeals court decision that a Vermont law prohibiting the use of physician prescribing data for marketing purposes. While Justice Kennedy’s majority opinion expressed concerns about the “serious and unresolved” issues with respect to personal privacy, the ruling confirmed that the law unfairly imposed a first Amendment burden “based on the content of speech and the identity” of pharmaceutical manufacturing companies. In short, the ruling holds that such commercial speech is equally entitled to the protections of the First Amendment.

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

Top Headlines:

1.) Video Head-to-Head: Newspapers vs. PRs & Meltwater (paidContent.org)
In November, a UK High Court held that operators and customers of paid digital news monitor services should pay newspapers for crawling their stories. Months later, the parties gathered at a debate to discuss the future of content.

2.) John Steinbeck Heirs Lose Bid for Supreme Court to Hear Copyright Dispute (Fox News)
The Supreme Court denied further review of a legal dispute over publication rights to many of Steinbeck’s legendary works in a case brought by Steinbeck’s only surviving son and sole grandchild.

3.) Barclay, BofA Can’t Block Flyonthewall.com Reports on Stocks, Court Rules (Bloomberg)
A federal appeals court in a ruling Monday clarified the law governing the publication of hot news, overturning a lower court ruling that blocked Theflyonthewall.com from reporting the upgrades or downgrades of stocks for two hours or until half an hour after the opening of the NYSE.

4.) Oracle Seeking Billions in Damages From Google in Android Patent Infringement Suit (paidContent.org)
Oracle announced it is seeking billions in damages from Google in a suit over whether the Android operating system infringes patents Oracle bought from Sun Microsystems.

5.) Bloggers Mull Legal Action Against Righthaven (Wired)
Former Righthaven defendants who settled with them are now mulling their legal options after a judge ruled that Righthaven did not have legal standing to bring such lawsuits.

The new gTLD program, as currently formulated, represents a significant challenge to trademark and copyright owners. While SIIA favored a targeted approach to address specific gTLD needs, such as non-latin script gTLDs, ICANN’s approved program is extremely broad. Intellectual property owners will need to familiarize themselves quickly with the Rights Protection Mechanisms in the gTLD Applicant Guidebook, and expend even more resources and time in enforcing their rights against cybersquatters and infringers.

The top news on the data security front is the upcoming Commerce Sbcmte. legislative hearing on Data Security/Data Breach scheduled for Wednesday morning. Earlier this week, Chairwoman Bono Mack (R-CA) released a discussion draft of the legislation, and a memo summarizing key differences from the legislation that passed the House in the 111th Congress.

On the Administration cyber front, the Dept. of Commerce last week released a report entitled, “Cybersecurity, Innovation and the Internet Economy.” SIIA issued a statement in support of the effort to more clearly define the line between “covered critical infrastructure” and the other parts of the Internet economy, and expressing our commitment to work with the Department to refine this definition.

Also out of the Administration last week, NIST held a workshop in conjunction with a NOI seeking feedback on a governance structure to advance their Trusted Identities in Cyberspace Initiative (NSTIC). More about that here.

Privacy

There are two noteworthy privacy bills in the works in the Senate. Sen. Franken (D-MN) is drafting a mobile privacy bill, and Sen. Pryor (D-AR) is expected to introduce a bill regarding children’s privacy online prior to the July 4th recess. While there may be a Senate Commerce Committee  a legislative hearing on the Kerry-McCain privacy legislation, the Commercial Privacy Bill of Rights Act (S. 799), as soon as next week, discussions are ongoing within the Committee regarding the official legislative vehicle for advancing Chairman Rockefeller’s (D-WV) priorities in this area, which also include a focus on “tracking” and children’s privacy.

Patent Reform

The House patent reform bill (H.R. 1249) is expected to be considered on the floor later this week. While support for the House bill is broad and bipartisan, budget issues and various amendments could cause the bill to be defeated or striped it of key elements, including the provision allowing the PTO to keep its user fees, and the “first to file” provision.

ICANN

ICANN is expected to vote on the new gTLD Applicant Guidebook on June 20. If the Guidebook is approved, the process for introducing hundreds of new gTLDs to the Internet will likely begin sometime next year. Also, the NTIA issued a Further Notice of Inquiry seeking comments on a Draft Statement of Work regarding the IANA functions (the contract for which currently is assigned to ICANN but is up for review). More about that here.

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