SIIA Calls for Legislation in the Fight Against Patent Trolls

SIIA today called on congressional leaders to enact legislation that provides more safeguards to prevent the economic and consumer harm caused by abusive patent lawsuits. In a letter sent to the Congressional leaders who led the passage of patent reform last year, SIIA joined with several other trade associations in issuing a call for action against the abusive patent lawsuits.

Abusive patent lawsuits from patent trolls are a tremendous blight innovation and entrepreneurship in our country. With The America Invents Act, Congress took an effective first step in addressing the problem of abusive patent litigation by trolls. Despite this important initial effort, patent trolls continue to damage the economy, hurt America’s tech industry, and threaten innovation. We’re calling on Congress to continue its work on this vital issue by enacting legislation that protects legitimate companies and innovators from misuse of the patent system.

SIIA has outlined a specific proposal, which was articulated in the joint letter to congressional leaders, for legislation that would help address this problem. Under today’s system, the patent troll business model is to make litigation as expensive and disruptive as possible, forcing legitimate and law-abiding companies to settle regardless of the merits of the case. The troll requests millions of documents through the discovery process–much of which is entirely irrelevant to the suit.  Because the patent troll has few, if any, documents to produce in discovery, they can do this with impunity.

The point of the troll’s action is not to achieve legal justice, but simply to  place an enormous burden on legitimate companies and give them little choice but to settle the case. SIIA’s proposed legislation would address this imbalance by shifting the discovery burden to the patent troll for any information over and above the core documentation that is essential to the merits of the case. By doing so, SIIA’s proposal will help protect legitimate companies from being bullied into settlements when patent trolls request millions of documents that are not actually needed in a patent lawsuit.

This proposal will disrupt a damaging and expensive litigation tactic: the abusive use of discovery to drive up litigation costs for the purpose of forcing settlements. Meanwhile, it will do nothing to curtail the rights of legitimate patent holders that are seeking to have their day in court.


Ken WaschKen Wasch is President of SIIA.

FTC on Privacy, EU on Net Freedom and Copyright, and More.

FTC Active on Children’s Privacy and Comprehensive Online Tracking

Amidst broad expectations of a looming vote to finalize proposed revisions to COPPA. The basic conclusion of the Report is the lack of significant progress in addressing privacy concerns for children, which coincided with the Commission’s announcement that it has opened investigations into whether some of the apps had violated the law. Together, the pending COPPA Rule revision, the new Report and formal launch of investigations should serve as a very clear warning that the FTC will aggressively police the children’s app market.

And last week, the FTC held its long-anticipated Workshop on “comprehensive data collection,” an event that went well beyond looking at privacy issues around behavioral advertising, stretching the focus to much more complex data uses, going as far as to explore deep packet inspection. As articulated by FTC Commissioner Bill in her opening keynote, the Workshop’s goal was largely for the FTC to explore whether the Internet “data collection ecosystem” is “just a continuum, or are there bright lines that differentiate some from others.”

Discussions throughout the day revealed broad agreement among academics, industry representatives and regulators that data presents significant opportunities for businesses and users, and that policies should be technology neutral and harm must be better defined. But there were also very significant disagreements and open questions about the need for new policies and the role of regulators. The FTC opened the door on this discussion when it released its comprehensive Privacy Report earlier this year. With this workshop, they demonstrated that the door is wide open.

Hill Continues to Consider Location Privacy and Talk “Data Brokers”

The Senate Judiciary Committee last week postponed voting on a bill require app providers to seek affirmative “opt-in” consent from consumers before using their location information. Committee Chairman Patrick Leahy (D-VT) is planning to resume consideration of the bill, the Location Privacy Protection Act of 2011 (S.1223), this Thursday with the hopes of amendments that could garner bipartisan support. In anticipation of the Committee action last week, SIIA released a call to lawmakers to give the ongoing voluntary multistakeholder process more time to address needed transparency in mobile privacy.

Meanwhile, on the House side, the bipartisan Privacy Caucus will hold a briefing on Thursday morning on “data brokers,” with expected participation from FTC Commissioner Julie Brill and a wide range of industry representatives.

Administration Patent Conference Highlights

The FTC and DOJ held a joint workshop yesterday on the impact of patent trolls on the economy, where FTC Chairman Jon Leibowitz made it clear that he fully understands the damaging effect of PAE’s (aka patent trolls) and is concerned with their impact on competition and American innovation. The Chairman went so far as to say that we may be driving off a patent cliff that could stifle intellectual property innovation and competition. In response to the Workshop, SIIA issued a statement of support, expressing our concern about the “patent cliff” and applauding Chairman Leibowitz for making such a strong statement about the significance of the problem.

While there were no direct outcomes of the Workshop, SIIA and other key stakeholders can remain hopeful that coming out of the workshop, all parties–including the FTC, DOJ and Congress–will work together for sensible changes that allow America’s technology industry to thrive.

EU Announces Copyright Initiative. Endorses Digital Freedom Strategy

On December 5, the European Commission announced that it would begin an initiative to modernize European copyright for the digital economy. The initiative has two parallel processes. The first is a series of stakeholder meetings to begin in early 2013 which will focus on “six issues where rapid progress is needed: cross-border portability of content, user-generated content, data- and text-mining, private copy levies, access to audiovisual works and cultural heritage.” The second process focuses on the medium term and will result in a decision on whether to table legislative reforms in 2014. It will focus on four issues: “mitigating the effects of territoriality in the Internal Market; agreeing appropriate levels of harmonisation, limitations and exceptions to copyright in the digital age; how best to reduce the fragmentation of the EU copyright market; and how to improve the legitimacy of enforcement in the context of wider copyright reform.” Some informative reactions from different interested parties can be found here.

More detail on the proposed topics of the review can be found in this background document.

And today, the European Parliament endorsed by a large majority the first Digital Freedom Strategy in EU foreign policy, setting out concrete points of action to be incorporated in EU trade and development policies. The measure contains a large number of policy statements ranging from net neutrality to digital arms embargoes. It specifically endorses the flow of information across borders as a goal of EU trade policy, thereby potentially putting this issue on the table for EU-US trade negotiations. You can find the report here.

White House Shoots Key Message during Heart of Global Internet Conference

During the World Conference on International Telecommunications (WCIT) in Dubai that began last week, the United Arab Emirates, Russia and China announced their intention to introduce a proposal that would explicitly give the ITU authority over the Internet, a move that the US delegation, civil society and business groups oppose. An ITU spokesperson later announced that the proposal had been withdrawn. Similar proposals are possible before the WCIT conference ends Friday. Today the White House released a blog post urging that the “WCIT should be about updating a public telecommunications treaty to reflect today’s market-based realities — not a new venue to create regulations on the Internet, private networks, or the data flowing across them.”


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.

DOJ/FTC Workshop Will Help Create Momentum to Curtail ‘Patent Trolls’

SIIA applauds the Federal Trade Commission (FTC) and Department of Justice (DOJ) for their Joint Workshop on Patent Assertion Entity Activities (PAE). SIIA says today’s event is important for drawing attention to the economic and consumer harm caused by abusive patent lawsuits.

FTC Chairman Leibowitz made it clear that he fully understands the damaging effect of PAE’s and is concerned with their impact on competition and American innovation. The Chairman went so far as to say that we may be driving off a patent cliff that could stifle intellectual property innovation and competition. We share the ‘patent cliff’ concern and applaud Chairman Liebowitz for making such a strong statement about the significance of the problem.

SIIA has been a leading advocate for patent reform, and we believe a vital step forward was made in 2011 with the America Invents Act. But the fact is, patent trolls continue to damage the economy, hurt America’s tech industry and threaten innovation. Today’s workshop is important for drawing attention to the problem and we encourage the FTC and DOJ to continue to spotlight the harmful effects of patent trolls. We are hopeful that, coming out of the workshop, all parties – including the FTC, DOJ and Congress – will work together for sensible changes that allow America’s technology industry to thrive.


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

This Week in Public Sector Innovation

OMB to push Strategic Sourcing: This week OMB issued a memorandum expanding the use of strategic sourcing to include commodity IT purchases. In addition the memo establishes Strategic Sourcing Accountable Officers within the CFO Act agencies to be appointed by January 15, 2013. It also establishes a Strategic Sourcing Leadership Council (SSLC), chaired by OFPP, with representatives from DoD, Energy, HHS, DHS, VA, GSA and NASA and requires the SSLC to submit to OMB a set of recommendations for management strategies for goods and services to insure the government receives the most favorable offer. Lastly it requires the SSLC to identify at least 5 products or services for which new government-wide acquisition vehicles or management approaches are needed and requires GSA to implement 5 new government-wide strategic sourcing solutions in each of FY13 and FY14 and increase transparency of prices paid for common goods. Read the memo here.

GSA pulls the plug on Apps.gov: The federal government pulled the plug on Apps.gov this week. The cloud application storefront, which was the brainchild of former Federal CIO, Vivek Kundra, was intended to provide a one-stop-shop for cloud apps for the federal government and make it easier for federal IT personnel to acquire cloud services. The initiative never took off as intended. GSA didn’t give a reason for decommissioning the initiative, but noted that everything that was available through Apps.gov, would still be available through Schedule 70. Information Week has a story.

NextGov Prime highlights procurement reform, big data: NextGov held its first-ever Prime Conference at the Ronald Reagan Building this week. The event included a keynote panel featuring Rep. Darrell Issa (R-CA) chairman of the House Oversight and Government Reform Committee and Rep. Gerry Connelly (D-VA), ranking member of the panel’s Technology Subcommittee, two leaders pushing an update to the 1996 Clinger-Cohen Act. The intent of the legislation, which SIIA has been tracking closely and which is expected to be introduced early in the next Congress, is to improve the speed and efficiency of federal IT purchasing. FCW has the wrap up. The event also had a heavy focus on big data and how data analytics can make the government more effective. FCW covers that angle as well.


Michael Hettinger is VP for the Public Sector Innovation Group (PSIG) at SIIA. Follow his PSIG tweets at @SIIAPSIG.

Mobile Privacy: Congress Should Give Multistakeholder Discussions More time

Today,  the Senate Judiciary Committee is scheduled to consider legislation sponsored by Senator Al Franken (D-MN), the Location Privacy Protection Act of 2011 (S.1223), that would require app providers to seek affirmative “opt-in” consent from consumers before using their location information.

As with all consumer privacy issues, users trust in mobile app privacy is absolutely critical.  Without consumer trust, demand stalls, innovations is stifled and neither businesses nor users interests are served.  Straight-up, a lack of trust is a lose-lose. However, multistakeholder discussions have been ongoing since June of this year, engaging a wide range of industry and civil society in an effort, led by the Department of Commerce NTIA, to develop a voluntary code of conduct for mobile app transparency in information collecting.

This flexible, consensus process is also better able to ensure that policies are not technology or platform specific.  That is, at a time of increasing convergence, where “applications” are seamlessly offered across a wide range of devices, fixed laws such as this would stifle technological evolution by creating a distinct privacy regime based on a specific type of device.

SIIA is very supportive of the effort and confident that it can succeed if given time.  Consumers and businesses are in this together, dependent on each other as this new mobile ecosystem continues to evolve.  With the right consensus-driven framework, mobile app privacy can be a win-win for users and businesses.

Rather than considering rigid legislative mandates on the mobile app industry, Congress should continue to explore how to support this industry.  The House Energy and Commerce Committee did just that earlier this year by holding a hearing focused on this innovative industry and how it can spur economic and job growth.

Recommendations are good.  Consumer self-help is good.  But the world is looking to us to show that self-regulation can work as a viable alternative to government mandates.  To allow the multistakeholder efforts on mobile transparency to falter now would confirm their belief that only the government can set the rules of the road in this area.  It is time for the industry to step up and make progress on setting its own rules of the road. If we don’t we have only ourselves to blame if state, national or international governments feel compelled to step in to protect the public.


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.

This Week in IP Enforcement

Publishers Brace for Authors to Reclaim Book Rights in 2013 (paidContent)

A copyright law that lets authors break contracts after 35 years will start taking effect in January. These so-called “termination rights” could provide yet another disruption for traditional publishers who may face the loss of their back lists as authors begin using the Copyright Act to reclaim works they assigned years ago.

BPI Requests UK Pirate Party Shut Down Pirate Bay Proxy (Ars Technica)

The British Phonographic Industry sent a letter demanding the UK Pirate Party shut down their Pirate Bay proxy service that was launched earlier in the year when ISPs began blocking access to the original Pirate Bay site.

“Six Strikes” Copyright Enforcement Postponed Until 2013 (Ars Technica)

The Center for Copyright Information announced that the rollout of the “six strikes” warning system will be delayed until early 2013 due to damage from Hurricane Sandy, which affected their testing schedules.


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

SIIA Welcomes Signing of U.S. Safe Web Act

Yesterday President Obama signed into law a bill that would reauthorize the Federal Trade Commission’s authority to clamp down on cross-border fraud, providing greater assurances for US customers and business who want to shop, transact and earn a living on the Internet. The measure was spearheaded by Commerce, Manufacturing, and Trade Subcommittee Chairman Mary Bono Mack (R-CA), who is retiring. The bill, the U.S. Safe Web Act, allows the FTC to share information about cross-border online fraud with foreign law enforcement authorities and cooperate with them in tracking down and eliminating Internet scam artists.

At a time when many lament that partisan gridlock seems to prevent the enactment of good public policy, this bi-partisan reaffirmation of the FTC’s authority to go after cross-border crooks is a welcome sign that our policymaking institutions can still produce sensible policies that protect the public.

This law was first adopted in 2006 and has been an effective tool to combat cross-border spam, spyware and fraud. Fraudsters do not recognize national borders, and law enforcement efforts must be similarly global. Effective international cooperation on law enforcement investigations is crucial for providing consumers and businesses with the trust and confidence with each other online.
Hugh Stevenson, Deputy Director for International Consumer Protection at the Federal Trade Commission, has been leading FTC efforts to use the authority in this law to combat Internet scams, fraudulent telemarketing, spam, spyware, and other cross-border misconduct that harms US consumers. In his testimony in front of the Energy and Commerce Committee in July, he made it clear that reauthorization was needed to allow the FTC “to continue its current cross-border enforcement efforts and deal with new threats to U.S. consumers emanating from a growing number of jurisdictions.”

The Congress agreed and the legislation received bi-partisan support all the way through the process. The House approved the measure by voice vote on September 11 and the Senate followed suit and passed the measure on November 14. The President signed it on December 4.


Mark MacCarthy, Vice President, Public Policy at SIIA, directs SIIA’s public policy initiatives in the areas of intellectual property enforcement, information privacy, cybersecurity, cloud computing and the promotion of educational technology.