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.


Senate Committee approves reathorization of ESEA

Last Thursday, the U.S. Senate HELP (education) Committee approved a bill to reauthorize the Elementary and Secondary Education Act (ESEA), updating the current No Child Left Behind Act. The bill has been stalled for years, though minimal bipartisan support allowed it to move forward at this time with expectations for significant amendment if/when it gets to the Senate floor.

Among the approved amendments were two on the technology. The first, supported by a broad coalition, would add the Achievement through Technology and Innovation Act, providing direct support to states and schools around technology acquisition, implementation and professional development. The second, generally supported by SIIA, would create an ARPA-ED research agency within the U.S. Department of Education focused on learning technology R&D advancement. SIIA will advocate for further infusion of digital learning in ESEA moving forward.

Mark Schneiderman is Senior Director, Education Policy at SIIA.

Do Computing Clouds Have a Green Lining?

You’re probably already aware of the myriad of benefits that flexible cloud computing is contributing to businesses across the country. The cloud can save you money; the cloud can save you space… but can the cloud save the Earth?

Recent research suggests that as cloud computing is adopted globally and data centers become more efficient, carbon emissions and energy usage can be dramatically reduced. Pike Research recently published a report demonstrating that cloud computing could cut almost a third of data center energy consumption by 2020. As companies adopt cloud computing, they’ll be able to outsource their IT needs and discard some of the costly, energy-chomping servers that have long been an essential part of the computerized office. The numbers will only improve as manufacturers design consumer equipment to optimize with cloud computing networks.

Another research firm, Verdantix, predicts that cloud computing will save 85.7 million metric tons of CO2 emissions by 2020, saving up to $12.3 billion in energy expenses. That’s the equivalent of 200 million barrels of oil not being burned off into the atmosphere.

With that said, there are caveats. An IEEE paper suggests that some intensive or repetitive tasks consume extra energy in switching and transmission. But data centers are constantly working to minimize their energy usage. Like any other business, they want to manage the costs, which may be the greatest benefit for companies looking to reduce their carbon emissions.

CEOs can choose to completely overhaul on-site data and energy usage – a hugely complex and expensive project that can become outmoded quickly with advances in technology — or they can connect to the cloud, and reap the benefits of reduced energy use.

Other Handy Links:
Four Reasons Why Cloud Computing is Energy Efficient
Cloud Computing Meets Energy Management

Tracy Carlin is a Communications and Public Policy Intern at SIIA. She is also a first year graduate student at Georgetown University’s Communication, Culture and Technology program where she focuses on intersections in education, video games and gender.

In the midst of Hill privacy buzz, Obama Administration and EU are moving forward

Despite Capitol Hill continuing to dominate news headlines regarding data privacy, the work and policy proposals pending from the Obama Administration and the European Commission are more significant at this time.

Here in the U.S., both the Federal Trade Commission and the Dept. of Commerce are readying to release their long-awaited reports on Commercial Data Privacy, seeking to conclude parallel processes launched in late 2010. The Commerce Report will echo the Administration’s call for legislation to provide for baseline privacy regulation, and to propose a framework for establishing a voluntary codes of conduct to be developed through a multi-stakeholder process, specifying how these basic principles should be implemented for a specific industry sector. A promise to abide by the code would be enforceable by the FTC.

On the other side of the Atlantic, the EU is working on revising the EU Data Protection Directive, with proposed revisions expected to be released in the first quarter of 2012. Key issues under consideration include the so-called “right to be forgotten,” “privacy by design” and an accountability framework.

The accountability framework is the way in which the EC is proposing to relax restrictions on cross-border data flows. Instead of further attempts to clarify what an “adequate” legal framework for privacy might be, the proposed EU directive would look to representations by companies regarding their privacy practices. This might create substantial efficiencies compared to negotiating separate arrangements with data protection authorities. The U.S. Government is actively talking with their EU Commission and national officials to move this accountability framework from concept to practical implementation.

Meanwhile, there is not a consistent understanding of what would be required for implementation of the mandatory opt-in consent for cookies. This is already part of the EU ePrivacy Directive, but it has not been implemented by most EU countries.

For a more detailed report on US and EU privacy, visit the recent SIIA 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.

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.

Cloud season continues on Hill, data security headlines Committee focus

Cloud computing season continues on the Hill. Last week’s hearing on cloud computing in the House Science Sbcmte. on Technology and Innovation didn’t generate any major headlines, which is largely a good thing. Next week the House Homeland Security Sbcmte. on Cybersecurity is planning to hold an informational hearing on cloud computing security. Most importantly, but least officially, rumor has it that Sen. Klobuchar is still seeking to introduce her draft cloud computing legislation.

In other cloud news, NIST has officially scheduled their fourth Cloud Computing Roundtable and Workshop for Nov. 2-4, at which time they plan to unveil their Cloud Computing Roadmap guidance document for federal agencies.

Also of note last week, the Sen. Judiciary Cmte. approved — along party lines — three bills seeking to establish uniform rules for data security and breach notification. As we reported last week, these were held over from the previous week due to a lack of Republican members for a quorum. While attendance was sufficient this time around, Sen. Grassley again voiced serious reservation with all of the bills, stating that they would create an unnecessary burden on businesses of all sizes. And while Sen. Commerce Cmte., Chair Rockefeller still has not provided word on when the Cmte. will proceed with the pending markup of his bill, the House E&C Cmte. staff has indicated that it’s likely to revisit the issue this fall.

Finally, President Obama last Friday announced a sweeping set of federal NCLB education waivers states and school districts can apply for in the areas of testing/accountability, school improvement, use of funds and teacher quality/effectiveness. Most significantly, the waivers will provide some flexibility in how student, teacher and school performance is measured, as well as to the nature of school improvement remedies (e.g., Title I Supplemental Educational Services tutoring will likely see a large reduction) and the targeting of limited improvement resources. SIIA will provide members with further information and analysis on this in the near future, particularly considering how this is likely to affect education technology.

The Social Costs of Patent Trolls

President Obama heralded the patent reform bill’s prospects for stimulating innovation when he signed the bill last week. SIIA concurs. The new law, which represents the first major reform the patent laws in 60 years, makes critical, necessary patent improvements that will drive our country’s continued leadership in the software and information industries. SIIA has continually called for patent reform, and we are pleased to see U.S. patent law move in the right direction. Enactment of the America Invents Act will enhance patent quality and encourage growth in sectors that are poised to create jobs and renew our economy.

While there is no question that the new law is a substantial improvement over the status quo, many fear it might not bring an end to abusive patent litigation that stifles innovation and hinders job growth.

A new study by James Bessen and Mike Meurer on the social costs of patent trolls in the years 2000-2010 sheds some light on the magnitude of the patent troll problem.

They conclude that patent lawsuits from entities that hold patents but do not produce goods or services “are associated with half a trillion dollars of lost wealth to defendants from 1990 through 2010, mostly from technology companies. Moreover, very little of this loss represents a transfer to small inventors. Instead, it implies reduced innovation incentives.”

The idea that patent litigation is creating disincentives for innovation is not new. Bessen and Meurer’s 2008 book, Patent Failure, summarized here, came to a similar conclusion that during the 1990s the net benefits of patents were negative for public companies outside the pharmaceutical and chemical industries. The news is that things did not improve in the first decade of the 21st century.

Abusive patent litigation has been a staple of recent press coverage. An August report by NPR highlighted the problem of unproductive litigation by non-practicing entities. A piece by Timothy B. Lee in the current National Review underscored the same problem. Tech entrepreneur Mark Cuban pointed out in his August blog post that patent litigation risk from non-practicing entities is “unlimited,” which forces companies to set aside resources for patent litigation that would otherwise be used for further investment and job creation. Companies within SIIA report that infringement suits are on the rise, significantly, within the last year. This problem is especially severe for mobile app developers and platforms, leading some offshore app developers to shun the U.S. market for fear of patent infringement suits. Major companies such as Apple, Google and Microsoft are amassing large portfolios of patents to improve their strategic position in the coming patent litigation wars.

The new law will make some improvements. It will allow the U.S. Patent and Trademark Office to keep more of revenue it collects, thereby reducing the problem of bad patents, and it will make it easier to challenge bad patents after they have been granted.

But the new law applies only to new patents, and it does nothing to limit the risk of patent litigation by limiting damages from non-practicing entities. So the problem of abusive patent litigation will likely be with us for some time – along with the social costs outlined in the new Bessen and Meurer study.

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