Digital Discourse / Policy

Supreme Court Supports State’s Right to Restrict Access to Data

May 7, 2013 By

On April 29, in what was a very disappointing ruling for the information industry, open government advocates and proponents of data-driven innovation, the U.S. Supreme Court unanimously upheld Virginia’s citizens-only restriction on public records access.  In the case, McBurney v. Young, the Court found that the effect of the “citizen restriction” on commerce was merely “incidental” since the state created the market for the information through a monopoly, it could discriminate against noncitizens who want to access that information. Huh?

As disappointing and surprising as the Court’s ruling is, the notion that a state would fail to recognize the benefits of maximizing the availability of data is perhaps even more troubling.  As the case was headed to the Supreme Court, SIIA joined in filing a brief with the court arguing that a state’s restriction of access to public data is a violation of the Constitution’s commerce clause and would have a chilling effect on the flow of critical public records data and the innovation that can be derived from them.  As we pointed out in an a related blog, Virginia’s efforts to restrict access to data flies in the face of forward-thinking states looking to leverage public-private partnerships to enhance services to citizens while minimizing cost.  Such was the conclusion of a 2012 Report from the National Association of State CIOs (NASCIO) citing the opportunity for states in data analytics:

State government may be described as an enormous data generation engine. And the sky is the limit in terms future data generation based on the growth in mobile applications, sensors, cloud services and the growing public-private partnerships that must be monitored for performance and service levels. The challenge is that many state government agencies are still being run as islands of information versus members of a single state government enterprise. The result is state government is not fully exploiting the data it has at hand.

So at a time when states should be capitalizing on the benefits of the data they collect, this ruling gives the Commonwealth of Virginia the ability to continue as an island of information.  It is a disservice to US citizens everywhere and to data-driven innovation.

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. Follow the SIIA public policy team on Twitter at @SIIAPubPolicy.

Share|
Filed Under: Data-Driven Innovation, Policy

NAS Study Urges Empirical Basis for IP Reforms

May 7, 2013 By

On Monday May 2, the National Academies of Science officially released its long-awaited study of  “copyright in the digital age.” The paper spends considerable time discussing and praising the important role that empirical data from various patent studies played in consideration and passage of the American Invents Act.  We could not agree more.  The data from these studies demonstrated the need for patent reform to address the significant problems caused by patent trolls.  The AIA was an essential step in addressing these problems but the problems have gotten worse and have morphed– and the data has backed this up.  In a 2011 study, James Bessen and Mike Meurer concluded that that lawsuits by patent trolls are associated with half a trillion dollars of lost wealth to defendants from 1990 through 2010.  In a study in 2012, they estimate the direct costs to defendants arising from patent troll litigation at $29 billion in 2011. The GAO study on the economic effects of patent trolls – mandated by Congress in the AIA will be released soon.  It is likely that this study will also demonstrate that additional patent reforms are needed to address the troll problem.

There does not appear to be any “silver bullet” solution to this problem.  SIIA and its members are looking at a variety of different approaches to address the problem.  But the need for such reforms is solidly supported by neutral empirical economic research.

The NAS paper is not about patent reform.  It’s about the need for empirical data on copyright.  We support the conclusions of the NAS paper – that more empirical data on import at copyright issues is needed.  It is imperative that such data be generated by unbiased neutral parties.  Empirical data on such issues as licensing efficiencies, enforcement problems and data and text mining, to name just a few, would go a long way to providing a better understanding of the role that copyright plays in these issues and whether and what type of copyright reforms might be necessary or appropriate.  As House Judiciary Committee Chairman Bob Goodlatte considers a series of hearings to explore the extent of possible reforms, SIIA urges that comprehensive changes be based to the greatest extent possible an empirical foundation.

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

Share|
Filed Under: Anti-Piracy, Policy - Intellectual Property

Intellectual Property Roundup

May 1, 2013 By

USTR Releases Piracy ‘Watch List’ (The Hollywood Reporter)
The Office of the United States Trade Representative released its annual “Special 301″ report, intended to highlight which countries raise concern over intellectual property practices.

Players Who Pirated ‘Game Dev Tycoon’ See Their Virtual Studios Hit By Piracy (The Verge)
Greenheart Games took a novel approach to its piracy problem; the indie studio released a “cracked” version of its game so that players would experience the struggles of piracy first-hand when their own virtual studios were hit by piracy.

China Court Fines Apple $118K for Copyright Breach (ZDNet)
A Beijing court has ordered Apple to compensate three Chinese writers for selling their works via its app store without first getting their permission.

Artist Richard Prince Didn’t Infringe Photo Copyrights (Reuters)
In a closely watched case in the art world, American artist Richard Prince won a federal appeals court order holding that he did not infringe the copyrights of a photographer by incorporating his images into 25 paintings and collages.

Craigslist Wins Early Legal Victory Against PadMapper, 3Taps (CNET)
Craigslist has won the first round in its federal lawsuit against PadMapper and two other companies, in which Craigslist alleged a slew of unlawful acts, including terms of use violations, copyright violations, trespass, and civil violations of the Computer Fraud and Abuse Act.

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

Share|
Filed Under: Anti-Piracy, Policy, Policy - Intellectual Property

SIIA’s Perspective on Open Educational Resources

April 30, 2013 By

Last month, SIIA released a Guide to Open Educational Resources (OER) to help inform the field about the benefits, challenges and total costs that must be considered around the funding, development and adoption of educational resources, including OER. Included in the Guide was an SIIA editorial sharing our perspective and public policy recommendations.  

SIIA views open educational resources (OER) as one of many appropriate models for the development and distribution of content needed to meet the needs of students and educators. SIIA expects that future educational needs will be addressed by a mix of instructional materials, including OER, and that there is a critical, though perhaps evolving role for commercial partners and proprietary models. 

SIIA recognizes that interest in OER among government agencies and education decision makers, as well as many non-profit entities and foundations, appears driven largely by the goals of reducing costs, improving access, providing quality, and supporting educator/student customization of their content.  SIIA urges the community of OER investors (e.g., legislators and education officials) and users to consider the following:

  • Even in an age of common learning standards, the need to personalize learning will continue to require a robust choice of curricular resources – proprietary and OER – and related technology tools and services. Investments by government authorities or other organizations based on the assumption they can simply ‘build it once’ could inappropriately limit options. No single resource or set of resources will be sufficient to meet the wide range of educational needs.
  • The principles of academic freedom and personalization of learning require that government agencies and educational institutions continue to support educational choice. They should not in the future limit the use of funds to only the development/adoption of OER, but instead should continue ensuring grant and other funding for acquisition/implementation of any and all resources that meet the particular educational need, whether OER or proprietary.
  • To meet diverse and evolving educational needs, the nation’s education sector demands an environment that encourages R&D investment – public and private, for-profit and non-profit – to ensure ever more innovative and effective resources. Education leaders should strive for a sector that encourages investment and competition, provides resource choice, and rewards innovation.
  • Educational resources, including OER, require not only the initial investment, but as importantly must budget for the total, long-term cost of development and use. These ongoing and recurring costs include user training/support, as well as content hosting and maintenance, content updates, and technology updates that, according to some SIIA members, can often require as much as an additional 20% annual cost. 
  • When making cost-benefit calculations and comparisons, it is important to consider these total initial and ongoing costs of development and adoption. Comparisons require both short-term and long-term factors, as well as recognition of both individual use and systemic impact.
  • Institutional, local, or state adoptions of content should use the same review standards, criteria, and process when the content is of the same or similar type – e.g., core, supplemental, etc. – no matter whether OER, commercial or other license.
  • To the degree that public funds are invested in the development of (open) educational resources, they are best targeted to address gaps where quality resources are not currently available to meet educational needs. In addition, such public investments should consider the benefits of public-private partnerships or related models that ensure an ongoing user commitment and a recurring revenue stream needed to update, support, and sustain the resource over time.
  • To the degree that government funds are invested in the development of OER, those resources should be available through a CC BY license allowing third parties to revise, reuse, remix and redistribute the resource, including commercially. An NC license – prohibiting others from using the work for commercial purposes – would be counter to the public policy goal of leveraging public funds to have the widest impact on innovation, cost-savings, access, and diversity of resources.

SIIA looks forward to working further with all stakeholders to consider the opportunities and challenges of OER and other ways to ensure the availability of ever more choice of innovative and effective resources to meet evolving educational needs. SIIA’s Ed Tech Industry Summit next week in San Francisco will inlcude a panel discussion about OER impact and opportunities for SIIA members that will include the SIIA Guide co-authors and Creative Commons CEO Cathy Casserly.

Mark SchneidermanMark Schneiderman is Senior Director of Education Policy at SIIA.

Share|
Filed Under: Digital Policy Roundup, Ed Tech Business Forum, Education, Education Policies, Education Policy, Policy, Postsecondary, Uncategorized Tagged With: , , , , , , , ,

SIIA Supports COPPA’s Extension of Schools as Consent Providers

April 26, 2013 By

The Federal Trade Commission yesterday released its updated FAQs clarifying the amended rule implementing the Children’s Online Privacy Protection Act (COPPA) released in December, 2012. Included are several clarifications long championed by SIIA regarding the intersection of COPPA and children’s online activities in the school setting.

For those not familiar, in short, COPPA requires parental consent under certain conditions for the online collection of personal information from children under age 13. SIIA has long supported this important law for helping protect children’s privacy and safety, and has also worked with the FTC and other stakeholders to ensure COPPA implementation does not bring inappropriate or unintended consequences that limit technology innovation and the user experience.

According to the new COPPA FAQ:

  • “COPPA does not preclude schools from acting as intermediaries between operators and parents in the notice and consent process, or from serving as the parent’s agent in the process of collecting personal information online from students in the school context.”
  • “COPPA does not apply where a school has contracted with an operator to collect personal information from students for the use and benefit of the school, and for no other commercial purpose.”

These provisions are important to minimize the barriers to student access to instructional technologies and digital learning within the school context. Both extend on the role of schools as trusted agents of student learning, privacy and safety, including that governed by the Family Educational Rights and Privacy Act (FERPA) as well as by Acceptable Use Policies (AUPs) signed between parents and schools. They help provide for student’s seamless access to online teaching and learning opportunities in the timely manner needed to address their educational needs under the guidance of their teacher and school, and governing local school board policies. The alternative of requiring parental consent in each case would present a significant administrative barrier, potentially put certain students at an educational disadvantage when consent cannot be secured in a timely manner, and would often leave students and teachers unable to take advantage of a “teachable moment.”

While the continuation of these school provisions is welcome, the updated FAQs do include some new guidance that will require further analysis and consideration. For example, the FTC guidance now requires that: “. . . the operator must provide the school with full notice of its collection, use, and disclosure practices, so that the school may make an informed decision.” And the FTC separately describes what information a school “should” seek from an operator, including “What are the operator’s data retention and deletion policies for children’s personal information?”

SIIA members can review a more detailed summary and analysis on new COPPA regulations and guidance. [Updated May 9, 2013]

SIIA looks forward to working further with public officials, families, educators and digital learning providers to ensure that children have access to critical online learning opportunities and applications in an appropriately safe and secure manner. This includes SIIA’s ongoing work around FERPA (the Family Educational Rights and Privacy Act), which governs educational institutions and agencies through the U.S. Department of Education and is referenced in the COPPA FAQ.

Mark SchneidermanMark Schneiderman is Senior Director of Education Policy at SIIA.

Share|
Filed Under: Data-Driven Innovation, Digital Policy Roundup, Ed Tech Government Forum, Education, Education Policies, Education Policy, Personalized Learning, Policy, Policy - Privacy Tagged With: , , , , , ,

SIIA Applauds Senate for Moving ECPA Forward; Calls for Action to Keep Bill Moving Forward

April 25, 2013 By

Following the Senate Judiciary Committee passage of S. 607, the Electronic Communications Privacy Act (ECPA) Amendments of 2013, SIIA urged members of Congress to move swiftly to approve the important legislation.  I issued the following statement:

ECPA is outdated and badly in need of reform, and today’s action gets us one important step closer to that goal. The technological advances in communications and computing since the bill’s original passage in 1986 have been nothing short of revolutionary.  As such, the legal framework provided by this statue leaves both providers and users of remote computing with a complex, baffling, and outdated set of rules.

The reforms approved by the Senate Judiciary Committee will end the current law’s double-standard that provides for a lower level of privacy for communications stored remotely, or ‘in the cloud.’  The legislation will even the playing field for law enforcement access to electronic content, setting a warrant as the consistent standard, regardless of how or where the content is stored.  We urge the full Senate to now move this bill forward, so that Americans can be assured that information stored in the cloud gets the same protection as the information stored in their homes.

Ken WaschKen Wasch is President of SIIA. Follow the SIIA Software team on twitter at @SIIASoftware.

Share|
Filed Under: Policy, Policy - Intellectual Property, Policy - Privacy

Intellectual Property Roundup

April 24, 2013 By

YouTube Prevails in Huge Copyright Suit with Viacom (Los Angeles Times)
A federal judge in New York sided with YouTube, once again, in the long-running $1 billion copyright infringement suit brought by Viacom in 2007.

US Digital Public Library Launches Free Online Access (Intellectual Property Watch)
The Digital Public Library of America has partnered with a number of institutions such as the National Archives and Records Administration, the Smithsonian Institution, the New York Public Library, and Harvard University to provide free public access to content of all libraries, universities, and museums in the United States.

Pirate Bay Cofounder Indicted on Hacking Charges (Wired)
The Pirate Bay cofounder Gottfrid Svartholm was indicted today on hacking charges unrelated to his one-year prison sentence for running the world’s most notorious and illicit file-sharing service.

Google Loses Autocomplete Defamation Suit in Japan (CNET)
Google was ordered to change its autocomplete function and pay damages to a Japanese man who sued saying his name was being linked to crimes.

UMG Wins Copyright Ruling in Case Against Grooveshark (Variety)
A five-judge panel of the New York Supreme Court’s appellate division, in a ruling issued on Tuesday, concluded that pre-1972 song recordings are not covered by safe harbor provisions of the DMCA.

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

Share|
Filed Under: Anti-Piracy, Policy, Policy - Intellectual Property
« Older Posts
Newer Posts »