Digital Discourse / Policy

This Week in IP Enforcement

November 7, 2012 By

High Court Hears Key Copyright Case

While Hurricane Sandy battered the region, the Supreme Court proceeded to hear arguments in Kirtsaeng v. John Wiley & Co. on Monday, Oct. 29th. The issue in this hotly contested case is whether the copyright law’s “First Sale Doctrine” allows someone who purchased copyrighted works overseas may sell them here in the U.S. without authorization from the publisher. SIIA’s amicus brief in the case defended the view that these purchases violate U.S. copyright law, since the first sale doctrine does not apply to a work made and sold abroad. The Kirtsaeng case will likely be a monumental case for both the content publishing and software industries — it will affect the distribution, market segmenting, and licensing practices on which their businesses are significantly built. Within the Supreme Court, the Justices seem fairly split on the issues (see full transcript). SIIA has been actively pushing our position on this issue in the press, releasing press statements and publishing various blog posts on the topic. Additionally, SIIA’s Keith Kupferschmid participated in a panel discussion last week on HuffPo Live. Read more here.

IP News

Hosting Site Found Liable for SumoTorrent’s Infringement (PCMag)
A Dutch court found that hosting company XS Networks is liable for the activity of SumoTorrent, a torrent site it hosted.

New Twitter Policy Lets Users See Tweets Pulled Down for Copyright (GigaOM)
Twitter is changing the way it responds to DMCA copyright notices. Instead of removing tweets, it is “withdrawing” them in order to help show when and why tweets go missing, and bring transparency to the DMCA process.

Porn Downloader Ordered to Pay $1.5 Million Fine in BitTorrent Decision (Forbes)
A Virginia man was ordered by an Illinois federal court to pay $1.5 million to adult film company Flava Works. In the default judgment entered last week, the judge set the maximum penalty of ten times statutory damages, the biggest penalty to date in a BitTorrent case.

Donuts’ Grab for Domains Raises Fears of Cybersquatting (Bloomberg)
A little-known company called Donuts Inc. is making a grab for valuable new domain names, a move that opponents say could fuel the practice of stealing website identities. A lawyer representing TLD holders is asking ICANN to investigate the company.

Two Members of Piracy Group IMAGINE Get Prison Terms (CNET)
Two members of a group that wanted to be known for being first to release the latest Hollywood films to the Web were sentenced to prison and ordered to pay thousands in restitution.

Piracy Cuts Into Paid App Sales (Bloomberg)
Pirates are turning to apps and making a significant dent in mobile-app store sales, which researcher Yankee Group expects to generate $10.1 billion this year. While app stores are trying to beef up security, startups are also producing software to help developers thwart piracy.

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

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Filed Under: Anti-Piracy, Policy - Intellectual Property

NYT Says: Don’t Let Importers Undercut U.S. Publishers’ Sales

November 6, 2012 By

The New York Times published an excellent editorial yesterday that explains how a landmark Supreme Court copyright case could undercut the U.S. information industry. The Times breaks down Kirtsaeng v. Wiley as follows:

At stake in this important and knotty case is whether copyright holders — publishers, filmmakers, musicians and creative artists of all sorts — can sell their copyrighted works abroad at prices different from what they charge in the American market and rely on copyright law to help maintain the separate pricing without having importers profit from the difference.

The case establishes whether the U.S. Copyright Act can be interpreted to allow copyright holders to use sensible market segmentation strategies. SIIA hopes the justices agree that publishers should be able to set lower prices in less-developed countries, without importers snatching their products up and using them to undercut American sales.

This isn’t a new notion–it’s already codified in the Copyright Act. The Times explains:

… the Copyright Act prohibits anyone from importing into the United States copyrighted works without the copyright holder’s approval. That provision would be seriously limited if copies of a work made abroad could be resold by importers in this country without constraint.

When importers exploit discounts that are meant for poor students in undeveloped nations, they aren’t just denying those students an education–they are threatening American publishers’ ability to do business abroad.

For more information, read SIIA’s amicus brief in the case, which defends the view that these purchases violate U.S. copyright law, since the first sale doctrine does not apply to a work made and sold abroad.

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

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

SIIA’s Keith Kupferschmid Weighs in on Kirtsaeng v. Wiley on HuffPo Live

October 30, 2012 By

SCOTUS was undeterred by Hurricane Sandy yesterday, holding arguments in Kirtsaeng v. Wiley while most of Washington hunkered down for the storm. The landmark case involves the legality of purchasing copyrighted works overseas and selling them here in the U.S. without authorization from the publisher. SIIA’s Keith Kupferschmid joined HuffPo Live to explain how the case threatens the U.S. information industry–wrapping up his segment just minutes before losing power.

Watch the full segment:

The justices seemed fairly split on the case during the argument. Wiley’s counsel, Ted Olson, reiterated a critical point made in SIIA’s amicus brief – that there are many of exceptions in the Copyright Act, including the Fair Use Defense, which can be used to prevent the concerns raised by the appellant.

We believe that the First Sale Doctrine should not apply to materials made and sold overseas. It threatens to severely undermine U.S. companies’ ability to compete in foreign markets. Ultimately, we hope that the Court will be convinced by the very real argument that 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.

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

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

SIIA Weighs in on Supreme Court Arguments in ‘First Sale’ Case – Kirtsaeng v. John Wiley & Co.

October 29, 2012 By

Today, the U.S. Supreme Court held arguments in Kirtsaeng v. John Wiley & Co. – a hotly contested case that threatens the U.S. information industry. Last month, SIIA filed an amicus brief in the case, which involves the legality of purchasing copyrighted works overseas and selling them here in the U.S. without authorization from the publisher.

We believe that, 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. At today’s Supreme Court argument, the Justices seemed fairly split on the issues. Wiley’s counsel, Ted Olson, reiterated a critical point made in SIIA’s brief – that there are many of exceptions in the Copyright Act, including the Fair Use Defense, which can be used to prevent the concerns raised by the appellant.

Ultimately, we hope that the Court will be convinced by the very real argument that 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.

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

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

This Week in IP Enforcement

October 24, 2012 By

ISP Piracy Warnings Launching Within Weeks (PC Mag)
The Center for Copyright Information says participating ISPs expect to begin rolling out the new Copyright Alert System over the next two months, but exact launch dates will be up to each ISP.

Brands Cry Foul Over Unauthorized Sellers on Amazon (Reuters)
Amazon is grappling with a problem that eBay has struggled with for years – the proliferation of unauthorized third-party sellers that undercut the world’s top consumer brands.

Massachusetts Fines Thai Seafood Company Over Pirated Software (The Boston Globe)
Massachusetts’s fined the Narong Seafood Co. $10,000 over the use of pirated Microsoft software, marking the first time the state has ever used laws intended to combat unfair business practices against a company for illegally obtaining software.

BuzzFeed Lawsuit Over Celeb Photos Raises Copyright Questions (GigaOM)
At a time when online media is increasingly image-based, a $1.3 million lawsuit brought by a so-called “copyright troll” over BuzzFeed’s publication of nine celebrity photos raises questions about current copyright law.

Publishers Fight Back Against Schoolbook Piracy (The Village Voice)
With textbook piracy on the rise (spurred by rising costs of course materials and proliferation of tablets and e-readers), publishers have quickly embraced new technology to fight the growing piracy problem.

Cloud No Cover for Software Pirates, Claims FAST (CloudPro)
The Federation Against Software Theft (FAST) denounced the Pirate Bay’s move to the cloud as useless, saying measures already exist for governments to access cloud data in cross-border criminal investigations.

Retailers, Libraries, and Internet Companies Join “Owners Rights” Coalition (Publishers Weekly)
With ownership rights at issue in the Kirtsaeng vs. Wiley case, a new coalition of businesses and libraries has formed to advocate for ownership rights while educating consumers, businesses, and policymakers.

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

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Filed Under: Anti-Piracy, Policy - Intellectual Property

FTC Settles Web Tracking Case, SIIA Testifies on Personalized Learning and Rebuts Cloud Enviro Criticisms

October 23, 2012 By

The FTC Announces Settlement with Web Tracking Company

The FTC announced yesterday that it has settled a case filed against market research company Compete, Inc., on the grounds that it deceived consumers and failed to safeguard consumers’ sensitive data. If accepted, the settlement would resolve a Federal Trade Commission complaint charging Compete with deceiving users by failing to reveal its broad data collection practices, and it would hold Compete from misrepresenting its data collection and security practices in the future and lock the company into biennial audits for the next 20 years.

FTC’s settlement outlines the charges against Compete for distributing software, including a browser toolbar, that offered users the chance to learn about the Web sites they visited, without providing a fair and full disclosure of “the full extent of data collected through tracking software.” In bringing the case, the FTC alleged that the collection of data such as credit card numbers, security codes, expiration dates, SSNs, and other information entered by consumers at various web sites , without adequate notice, constitutes a “deceptive” practice and therefore covered by the Commissions Sec. 5 authority. The case also charged Compete on a range of data security failures, including failure to remove PII before transmitting and failure to provide reasonable and appropriate data security and failure to design and implement reasonable safeguards to protect consumers’ data; and failed to use readily available measures to mitigate the risk to consumers’ data.

As always, FTC settlements provide parameters for companies regarding practices that are NOT acceptable to federal privacy regulators under current law.

SIIA Testifies Before NY Education Reform Commission, Calls for Personalized Learning through Technology

On Oct. 16, Mark Schneiderman testified before the New NY Education Reform Commission, a group appointed by NY Governor Andrew Cuomo to study and make recommendations for the reform and improvement of the state’s education system. In his testimony, Mark submitted a comprehensive vision for redesigning education to personalize learning through technology and made dozens of recommendations around each of the Commission’s seven proposed objectives. In general, SIIA agrees with the Commission that, Future generations of students cannot compete unless we dramatically reform our education system. Read more on SIIAs Digital Discourse Blog.

SIIA Rebuts NYT Enviro. Criticism of Cloud Computing Data Centers

Last week SIIA provided a rebuttal to James Glanz’s recent New York Times series on the perceived energy waste of data centers. The rebuttals focused on three key reasons why cloud computing is actually good for the environment. First, large data centers are more efficient than distributing the same computing power over many more small or medium-sized centers. Second, the transition to tablets and smartphones equipped with cloud computing access means less energy needs for devices. Finally, companies like Oracle, Adobe, and IBM are devoting their considerable resources to sustainable computing practices, and this trend will only increase as they continue to work to make data centers more efficient and clean. While green practices must be taken into consideration as our society becomes increasingly dependent on technology, pointing the finger at data centers is looking at cloud computing from the wrong perspective. Read more on SIIAs Digital Discourse Blog.

Mobile App. Transparency Discussion Moves to Substance

As we had anticipated and hoped, the NTIA-led multistakeholder discussion on mobile app. transparency did indeed take a turn to substantive discussion after months of talking around the edges and broad disagreement between consumer groups and industry. In what was stark contrast to previous meetings, the discussion last Tuesday led to significant agreement around process and foundation for defining what types of information collection require transparency, beginning a discussion based on existing examples of what a “short form” notice might look like, and even a tentative agreement on what a “mobile app.” means in this context. Of course, it was just one meeting, and the agreement was around mainly process and vague examples and definitions, but it was quite encouraging none the less. SIIA is continuing actively participating on the working groups on behalf of members and the industry.

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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Filed Under: Digital Policy Roundup

This Week in IP Enforcement

October 17, 2012 By

Court Holds that Associations do not have Standing to Bring Copyright Suits in their Name on Behalf of their Members

On October 10th, in Authors Guild Inc. v. HathiTrust, the U.S. District Court for the Southern District of New York held that, under the Copyright Act, associations do not have standing to bring copyright infringement actions on behalf of their members. The court did say that because the U.S. constitution does not prevent associations from bringing suit, foreign associations might have standing, if such standing is provided for under their home countries’ copyright laws. The case involves a lawsuit between various authors and university libraries over the mass digitizing the authors’ copyrighted works through the Google Book Search program. Under this program, Google made arrangements with several of the world’s largest libraries to digitize the entire contents of their collections to create an online searchable database, and to provide the libraries with copies of the digitized versions of their collections. In 2011, a group of libraries that participated in this program established a new service, called the HathiTrust digital library, to which the libraries would contribute their digitized collections. According to HathiTrust, this database of copies is to be made available for full-text searching and preservation activities. It is also intended to offer free access to works to individuals who have “print disabilities.” For works under copyright protection, the search function would return only a list of page numbers that a search term appears on and the frequency of such appearance. The suit was brought by The Authors Guild and several other parties (including many foreign authors associations and several individual authors) against the HathiTrust, as well as the participating universities (the University of Michigan, the University of California, the University of Wisconsin, Indiana University, and Cornell University).

In addition to addressing the associational standing issue the court also denied the Plaintiff author associations’ motion to prevent the HathiTrust from asserting a defense of fair use. The Plaintiffs argued that Section 108 of the Copyright Act, which allows libraries to make limited copies of certain works for specified purposes, precluded libraries from arguing that their activities constituted fair use under Section 107 of the Copyright Act. However, the court held “Section 108 provides rights to libraries in addition to fair-use rights that might be available.” The court then considered the four fair use factors and determined that the uses of digitized works pursuant to the HathiTrust book digitization project might constitute fair use and therefore Defendants fair use defense should not be dismissed. The decision in this case should not be confused with the pending copyright infringement case between the Authors Guild against Google.

Other IP News

AT&T Starts Six-Strikes Anti-Piracy Plan Next Month, Will Block Websites (Torrent Freak)
A set of leaked internal AT&T training documents reveal that the ISP will start sending anti-piracy warning notices to its subscribers on November 28, under the new copyright alert system. The documents show AT&T decided to implement a targeted website blockade and a copyright course as punishment for repeat infringers.

Korean Pirate Sentenced to Over Three Years in Prison (The Enumclaw Courier-Herald)
Sang Jin Kim, an undocumented Korean immigrant living in Everett, Washington, was sentenced to 40 months in prison and ordered to forfeit $409,776 for operating websites that distributed pirated software, movies, and videos. Kim had plead guilty in July to two counts of criminal copyright infringement.

Music Publishers Win $6.6 Million in Song Lyrics Copyright Case (Sacramento Bee)
In a first of its kind case establishing liability for posting unlicensed song lyrics on a website, a U.S. District Court judge awarded $6.6 million in statutory damages to a group of leading music publishers.

FBI in DC Creates Intellectual Property Squad (ABC News)
The FBI’s Washington field office has created an intellectual property squad dedicated to investigating all corners of intellectual property and economic espionage.

Study: Trolls Account for 40 Percent of Patent Lawsuits (GigaOM)
A study of 500 patent lawsuits found that those brought by patent trolls almost doubled in size from 2007 through 2011, and accounted for nearly 40 percent of the cases brought in 2011.

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

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Filed Under: Anti-Piracy, Policy
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