Digital Discourse / Policy / Policy - Intellectual Property

SIIA and The McGraw Hill Companies Voice Support for Strong IP Protection in Latest Round of Trans-Pacific Partnership Talks

September 11, 2012 By
Dan Duncan

Dan Duncan, The McGraw Hill Companies

The latest round of the Trans-Pacific Partnership (TPP) talks are happening in SIIA’s backyard in Leesburg, VA until Friday, and SIIA and several member companies have attended to voice support for the protection and effective enforcement of intellectual property rights.

SIIA member The McGraw Hill Companies spoke to the value of copyright and knowledge expansion in a presentation before delegates on Sunday. Dan Duncan, Senior Director for Government Affairs at The McGraw Hill Companies, explained that strong IP protections are an essential element in fostering the growth of new content services that will continue to spur innovative technologies and information products.

As online theft of content and software becomes more sophisticated and widespread throughout the world these innovative new products and services are increasingly at risk and the companies that create them are finding it more difficult to continue investing in existing products and funding new ones. Because online piracy has become a global epidemic that is not limited to just one or two countries, it is important for nations across the globe to join together to create a strong, common foundation of adequate and effective copyright protection and enforcement.

The adoption of strong IP protections by all countries in the TPP will more widely promote economic and social benefits for all nine countries partnering in the TPP.

View Dan’s slides:

Laura Greenback is Communications Director at SIIA. Follow the SIIA Public Policy team at @SIIAPolicy.

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Filed Under: Content, Policy, Policy - Intellectual Property Tagged With: ,

SIIA Tells Supreme Court that ‘First Sale Doctrine’ Should Not Apply to Copies of Copyrighted Works Made Abroad & Resold in U.S.

September 7, 2012 By

SIIA today filed an amicus brief in Kirtsaeng v. John Wiley & Sons, Inc. – a hotly contested case that could undermine U.S. publishers’ competitiveness in the global marketplace.

The case involves the legality of purchasing copyrighted works that are made and sold overseas and reselling them into the U.S. without authorization from the publisher. SIIA believes strongly that the “First Sale Doctrine” should not apply to cases where the copyrighted material has been manufactured and sold abroad. The First Sale Doctrine is a legal principle that allows a person who buys (rather than licenses) a copy of a copyrighted work to resell or distribute the copy in the U.S. without permission. If the First Sale Doctrine were to apply to materials made and sold overseas, it would severely undermine U.S. companies’ ability to compete in foreign markets.

In this global economy, it’s essential that our laws support and encourage U.S. publishers operating worldwide. SIIA has taken the lead in previous court filings to defend the flexibility for publishers to employ the most effective and efficient market strategies by controlling their content and price structures from country to country. This business strategy allows for targeted discounts for senior citizens and students, and increases the availability and quality of content and software for all consumers.

In our amicus brief, we argue that there are a variety of beneficial reasons for a publisher to prevent copies made for sale abroad from entering the United States. This practice of market segmentation is a vital business strategy that offers many benefits to publishers and consumers, such as “providing incentives for the creation of new copyrighted works…lower domestic prices, expansion and investment in U.S. companies, and employment.”

Both publishers and consumers will face direct harm if our markets are allowed to be flooded with copyrighted material that was intended for purchase overseas. American consumers will be defrauded into buying products that may be inferior or otherwise very different from those intended for U.S. markets, while confronting higher prices in the long run. Meanwhile, consumers and students abroad will lose access to valuable U.S. resources that were created for them.

Kirtsaeng v. John Wiley & Sons, Inc. centers around an individual who purchased textbooks from Thailand and sold them at a profit in the U.S. without authorization from the publisher. The case will be argued before the Supreme Court on October 29. Read the SIIA amicus brief.

Keith Kupferschmid is General Counsel and SVP, Intellectual Property Policy & Enforcement at SIIA. Follow the SIIA public policy team on Twitter at @SIIAPubPolicy

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This Week in IP Enforcement

September 5, 2012 By

Cambodia to Deport Pirate Bay Co-Founder Sought by Sweden (Reuters)
Cambodia will deport Pirate Bay co-founder Gottfrid Svartholm Warg, who was convicted and sentenced to prison in Sweden for breaking copyright laws. Warg was arrested in Phnom Penh where he had been living for several years.

Oracle Appeals SAP Case, Seeks $1.3 Billion Jury Award (Information Week)
Oracle is appealing the outcome of the five-year-old court case involving copyright infringement by SAP’s TomorrowNow services business, seeking the $1.3 billion jury award over the $306 million settlement already in place.

New York Times Tangles With Patent Trolls (paidContent)
Two “patent trolls” are targeting media companies like The New York Times for licensing fees, but the Times is fighting back and asking the U.S. Patent Office to re-examine some of the patents at issue.

U.S. Government Dismisses Piracy Case Against Rojadirecta Site (The Hill)
The U.S. government dismissed its piracy case against Spanish website Rojadirecta, after authorities seized the sites last year as part of its “Operation in our Sites” effort.

Chinese Firms Put Intellectual Property Lawsuits to Work (The Washington Post)
U.S. companies have long accused the Chinese of stealing their intellectual property, but now the Chinese are turning it around and filing patent and trademark infringement lawsuits in Chinese courts against U.S. firms like Apple.

Keith Kupferschmid is General Counsel and SVP, Intellectual Property Policy & Enforcement at SIIA.

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Filed Under: Anti-Piracy, Policy - Intellectual Property

Update on Recent Computer Fraud and Abuse Act Cases

September 5, 2012 By

The summer of 2012 featured several cases that interpreted the scope and application of the Computer Fraud and Abuse Act (CFAA). The CFAA was passed in 1984 in response to hacking and emerging computer crime. Recent cases include:

August 21:
The U.S. District Court for the Western District of Oklahoma held that an employee who downloaded shareware from the Internet in violation of company policy may be liable under the CFAA for using the downloaded software to obtain confidential company documents. In Musket Corp. v. Star Fuel of Oklahoma LLC, the court held that anyone who is authorized to use a computer for certain purposes but goes past those limitations is considered to have “exceeded authorized access” under the CFAA.

August 2:
The U.S. District Court for the Northern District of California held that a defendant was in violation of the CFAA for knowingly and intentionally circumventing Craigslist’s security features after agreeing to Craigslist’s Terms of Use. The defendant in Craigslist v. Kerbel continued the conduct despite receiving cease and desist letters.

July 26:
The U.S. District Court for the District of South Carolina adopted a narrow interpretation of the CFAA terms “without authorization” and “exceeds authorized access” in WEC Carolina Energy Solutions LLC v. Miller. The court held that the terms only apply in a criminal context when someone obtains or alters information they weren’t authorized to obtain or alter.

June 29:
The U.S. District Court District of New Hampshire held that its defendants could not be sued under the CFAA even though they violated use restrictions. Because the defendants in Wentworth-Douglass Hosp. v. Young & Novis Prof’l Ass’n were provided access passwords by the system owner, they could not have “illegally accessed” the system.

Keith Kupferschmid is General Counsel and SVP, Intellectual Property Policy & Enforcement at SIIA.

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This Week in IP Enforcement

August 29, 2012 By

Court Affirms $675,000 Penalty in Music-Downloading Case (CNET)
A Massachusetts federal court upheld a $675,000 damages award against Joel Tenenbaum, who was accused of illegally downloading and distributing 31 songs over a two-year period

Genius or Troll? Patent Owner Sues Dozens Over Anti-Piracy Method (GigaOM)
A Miami man who says he invented a form of cryptography to fight online piracy is suing Google, Shazam and dozens of others that use common digital water-marking techniques to prevent copyright infringement.

New Yorker Pleads Guilty in Virginia Criminal Copyright Case (Bloomberg Businessweek)
Dennis Newsome entered a guilty plea in federal court in Virginia to four counts relating to criminal copyright infringement. Newsome allegedly sold illegal copies of computer software and training materials from John Wiley & Sons and CBT Nuggets.

RapidShare: We’ll help Hollywood, but ‘not at all costs’ (Q&A) (CNET)
Daniel Raimer, general counsel of media-hosting site Rapidshare, talked to CNET about the techniques the company uses to detect and curb piracy.

Jury Awards $1 Billion to Apple in Samsung Patent Case (The New York Times)
A jury found that Samsung infringed on a series of Apple’s patents on mobile devices, and awarded Apple more than $1 billion in damages in a decision that could force smartphone makers to redesign their products to be less Apple-like.

Samsung Case Puts Apple Closer to Google Fight (The New York Times)
Though Apple has not directly pursued Google, and instead sued the cellphone makers that use Android in their products, the jury verdict against Samsung puts apple closer to a Google fight.

Keith Kupferschmid is General Counsel and SVP, Intellectual Property Policy & Enforcement at SIIA.

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Filed Under: Anti-Piracy, Policy - Intellectual Property

ICANN Update: Changes to the gTLD Evaluation Process, Comment Deadline is Extended, and More

August 29, 2012 By

SIIA has been tracking the details of how new generic top level domains (gTLDs) will operate under ICANN’s new program to expand the number of gTLDs, with an eye toward intellectual property rights protection mechanisms, Whois database implementation, and other considerations. There have been many new developments since ICANN announced the 1,930 applications for new top level domains. Here’s the latest:

Changes to the gTLD Evaluation Process
ICANN’s original plan to “batch” applications into groups of 500 for prioritizing evaluation is dead. All 1930 applications will be part of a single, initial evaluation for technical and financial capability, with all results announced at the end of that process. In lieu of batching, ICANN apparently will use some “metering” process for handling the applications, but at this time we are not clear on what such a metering process would entail.

Comments on new gTLD applications extended
The deadline for submitting comments on the new gTLDs to the ICANN evaluation panels was postponed by ICANN until September 26th. SIIA will be filing comments on many of the applied-for strings at that time.

ICANN Names New CEO
New ICANN CEO, Fadi Chehade, will take office in October (until then, current COO Akram Attalah will be CEO).

Cost of Take Down Process Examined
ICANN announced that it would convene a group to seek possible alternatives to the Uniform Rapid Suspension System (URS), in light of the providers’ (WIPO, ICC and ICDR) statements that they cannot do it for $300 per complaint as promised in the Guidebook. The URS is intended to be a cheap, quick take down process for brand owners to file a claim against a domain and have it taken down (much like WIPO’s existing UDRP). In response, several gTLD applicants stated that they would implement their own URS if ICANN failed to provide one by the time they were ready to launch. Others applicants suggested that ICANN should fund any difference in cost out of the $350 million in gTLD application fees it recently collected.

Timing of new gTLDs
Due to several delays and complications, the new gTLD evaluation and comment/objection process will extend well into 2013, and likely 2014 for some contested applications. As a result, new gTLDs will likely not go “live” until at least mid to late 2013. (Some reasons for the delay include: the GAC has informed the ICANN Board that it will not be ready to issue “Consensus Advice” on any applications until April 2013 – thus presumably no applications will be formally approved before then. Also, as mentioned above, ICANN’s announcement of anticipated cost overruns of the URS trademark enforcement tool, as well as the Trademark Clearinghouse, prompted some members of the ICANN community, notably the registries and registrars, to call for alternatives or, in the case of the Trademark Clearinghouse, ability to participate in technical development. New gTLDs cannot launch until these issues are resolved.).

ICANN Awarded IANA Contract
On July 2, the U.S. Commerce Department’s National Telecommunications and Information Administration (NTIA) announced that it has awarded the Internet Assigned Numbers Authority (IANA) Functions Contract to the Internet Corporation for Assigned Names and Numbers (ICANN). This is not a new role for ICANN, which manages the current IANA Functions Contract that is set to expire on September 30, 2012. The contract will run from October 1, 2012 to September 30, 2015, and has two 2-year option periods, for a total contract period of seven years.

Keith Kupferschmid is General Counsel and SVP, Intellectual Property Policy & Enforcement at SIIA.

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Filed Under: Policy, Policy - Intellectual Property Tagged With: ,

This Week in IP Enforcement

August 22, 2012 By

Pirated mobile Android and Apple apps getting hacked, cracked and smacked (Network World)
Arxan study claims 90% of top 100 paid Android and iOS apps ending up criminalized in hackers’ hands

Federal Courts Order Seizure of Three Website Domains Involved in Distributing Pirated Android Cell Phone Apps (DOJ Criminal Division)
First Time Website Domains Involving Cell Phone App Marketplaces Are Seized

Plagiarism, defamation and the power of hyperlinks (GIGAOM)
If Fareed Zakaria and Jonah Lehrer had spent more time linking to the original sources of content they used in their writing, they wouldn’t have faced accusations of plagiarism. Their cases and a recent defamation lawsuit against Gawker Media help reinforce the value of the hyperlink.

Germany: Google book deal violates copyright law (Reuters)
Google Inc’s plan to digitize millions of books would violate German copyright law and the country’s privacy protections for Internet users, the German government said in a U.S. court filing.

Google: We are so over patents, especially in their current form (The Washington Post)
After fighting the patent battle of the decade in court with Oracle, Googlers are getting publicly fed up with software patents as a whole. Conceptually, they just don’t jive with innovation, two prominent Googlers have said recently.

Apple, Samsung patent case headed to jury (The Washington Post)
The much-watched patent case between Apple and Samsung is headed to jury, after executives failed to agree on a resolution in a final phone conference.

Keith Kupferschmid is General Counsel and SVP, Intellectual Property Policy & Enforcement at SIIA.

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Filed Under: Anti-Piracy, Policy - Intellectual Property
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