Digital Policy Roundup: Copyright Office Declares Priorities, Cybersecurity and Cloud Computing Still a Focus for the Hill

Today, Maria Pallante, the U.S. Register of Copyrights, released a report outlining the Priorities and Special Projects of the U.S. Copyright Office through 2013. The Report articulates 17 priorities in the areas of copyright policy and administrative practice, as well as 10 new projects designed to improve the quality and efficiency of the U.S. Copyright Office’s services in the 21st century. This is the first time in recent history that the Office has published such a document. It provides an excellent roadmap for the most significant legislative, international and administrative copyright issues facing copyright holders and the Office now and into the immediate future.

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.

 

DOC/DHS Push for Notice on Botnets and Malware, Supreme Court Hearing Major Copyright Protection Case

At an event hosted by CSIS last week, Cam Kerry, General Counsel of the Commerce Department and Howard Schmidt, Cybersecurity Coordinator for the Obama Administration, emphasized the importance of their recently launched initiative to develop models to advance voluntary corporate notification to consumers regarding the illicit use of computer equipment by botnets and related malware. DHS and DOC/NIST recently issued a notice on the issue, seeking comment on a range of issues relating to how various actors could participate in a multi-stakeholder process designed to reduce these security threats. SIIA is looking to file comments in this proceeding and is seeking input from members. Comments are due on November 4.

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.


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’s IP enforcement headlines

Google Counters Ads for Counterfeit Goods (Information Week)
Google announced in the second half of 2010 it shut down 50,000 accounts for advertising counterfeit goods, and will continue to take additional steps to combat advertising of counterfeit goods through its advertising programs.

Chinese Writers Slam Baidu for Copyright Infringement (Reuters)
China’s top search engine, Baidu Inc., is being accused of copyright infringement by a group of Chinese authors who claim the search engine allows users to post their works online without their consent.

Some More Bad News for Copyright-Enforcer Righthaven (Paid Content))
Righthaven loses a second fair use ruling in a lawsuit against an Oregon non-profit in which U.S. District Judge James Mahan ruled the non-profit’s posting of a full copy of a news article from the Las Vegas Review-Journal was “fair use.”

Court Rejects Google Books Settlement (CNET)
A New York federal district court has rejected a controversial settlement in a class-action lawsuit brought against Google Books by the Authors Guild, in which Google was granted the right to continue a six-year book-scanning project.

Time Warner Cable may be getting itself into a licensing dispute with content providers over its new iPad app, which allows subscribers to view live television channels via the iPad. (PC Mag)
Does Time Warner Cable iPad App Violate its Content Licensing Deals?

Trademark Battles Over “App Store” Continue, as Apple Sues Amazon (Paid Content)
Apple sues Amazon over the use of the phrase “App Store,” which it sees as its trademark and not just a common descriptor.



Court dismisses software reseller’s counterclaim against SIIA and Adobe

Earlier this year, SIIA and Adobe met victory when a district court in California dismissed a man’s claim that he was protected by copyright law when he sold illegal software on eBay and elsewhere.

When Tony Kornrumpf was sued by SIIA on Adobe’s behalf for illegally selling authentic software, he filed a counterclaim asserting that Adobe and SIIA were liable for copyright misuse for overstepping the rights granted under the Copyright Act. Kornrumpf claimed that he was protected by the first sale doctrine, which allows the owner of a lawfully-made copy of a copyrighted work to dispose of that work as he or she see fits (For example, by reselling it, throwing it in the trash, lending it to a friend etc.) As its name implies, the first sale doctrine only applies where there is a first sale — not where the software is licensed.

On January 19, the U.S. District Court for the Northern District of California dismissed his counterclaim because he could not prove that he owned the copies of software he sold, or that SIIA and Adobe were misusing Adobe’s copyrights. Since the first sale defense did not apply, the court concluded that Adobe and SIIA were totally within their rights to sue Kornrumpf for copyright infringement for illegally selling the software, even though the copies he was selling were authentic.

Unfortunately, Kornrumpf is not alone in mistakenly believing that the copyright law allows licensed software to be resold online. He is one of many people who have learned this lessen the hard way through an SIIA lawsuit or other enforcement action.

The lesson here is to check the software license before attempting to resell any software online. Many software companies allow their licensees to resell their software under certain conditions. If you don’t check the license and comply with any conditions for resale (if allowed) you may find yourself at the wrong end of an SIIA enforcement action, like Mr. Kornrumpf.

Just released: Don’t Copy That 2 – School Version

Don't Copy That Floppy 2 - School Version

For today’s tech-savvy youth, software piracy can be an easy and tempting option. But it’s an option that’s not only wrong–it’s illegal. That’s why it’s so important to reach out to kids and teens about the ethical and legal use of copyrighted materials.

SIIA created Don’t Copy That 2–School Version to educate 6 through 12th grade students about the use of copyrighted materials, such as software, books, articles, music, and movies. The program includes classroom resources and a rap video that addresses the dangers of engaging in piracy and the importance of respecting the creative output of others.

The acommpanying classroom resources include support materials for the video, lesson plans for middle and high school teachers, a glossary, and other resources that can be helpful to educators in teaching these complex and important concepts. The course materials include many of the same concepts for middle and high school students, but use age-appropriate methods. The lesson plans serve as models that educators can customize to their students’ needs. The learning materials have been designed as a series of presentations, discussions, and student activities.

Watch the Don’t Copy That 2–School Version video to learn more about copyright compliance: