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June 26, 2003, 9:00 AM ET, Alert No. 688.
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Representatives Introduce Public Domain Enhancement Act

6/25. Rep. Zoe Lofgren (D-CA) and Rep. John Doolittle (R-CA) the "Public Domain Enhancement Act", a bill to allow abandoned copyrighted works to enter into the public domain after fifty years.

The bill would add a new Section 306 to the Copyright Act providing for a "Maintenance fee for published United States works". The bill provides that "The Register of Copyrights shall charge a fee of $1 for maintaining in force the copyright in any published United States work. The fee shall be due 50 years after the date of first publication or on December 31, 2004, whichever occurs later, and every 10 years thereafter until the end of the copyright term. Unless payment of the applicable maintenance fee is received in the Copyright Office on or before the date the fee is due or within a grace period of 6 months thereafter, the copyright shall expire as of the end of the grace period."

Rep. Zoe Lofgren

Rep. Lofgren (at right) announced the introduction of the bill at an event on Capitol Hill on June 25. She stated that "The public domain has always been a vital source for creativity and innovation. But with the advent of the Internet, it is now more important than ever. No longer are out-of-print books or forgotten songs automatically sentenced to the ash-heaps of our cultural history. The emergence of digital technology and the World Wide Web has created a way to reawaken these hidden treasures, and has empowered more and more of us to become creators in our own right."

She praised the dissenting opinion of Justice Breyer in the case Eldred v. Ashcroft. On January 15, 2003, the Supreme Court issued its opinion [89 pages in PDF], upholding the constitutionality of the Copyright Term Extension Act (CTEA), which retroactively extended the maximum duration of copyrights from 75 to 95 years. See, TLJ story titled "Supreme Court Upholds CTEA in Eldred v. Ashcroft", January 15, 2003.

Lofgren stated that "Justice Breyer hit the problem right on the head. He found that only 2 percent of works between 55 and 75 years old retain commercial value. Yet under the law that was upheld by a majority of the Supreme Court, these abandoned works will not enter the public domain for many years. This prevents commercial entities and the public from building upon, cultivating and preserving abandoned works."

The bill recites in its findings that "the existing copyright system functions contrary to the intent of the Framers of the Constitution in adopting the copyright clause and the intent of Congress in enacting the Copyright Act. Neither is intended to deprive the public of works when there is no commercial or copyright purpose behind their continued protection. It is, therefore, necessary to establish a mechanism by which abandoned American copyrights can enter into the public domain."

Lawrence Lessig, a law professor at Stanford University who represented the plaintiffs in the Eldred case, appeared with Rep. Lofgren to announce the introduction of the bill. He made several points about the limited nature of the bill.

First, he stated that it only applies to works that are 50 years old, or older. Second, it only applies to published works. Hence, authors would not be required to disclose or deposit with the Copyright Office works that they wish to keep private. Third, it only applies to United States works. Lessig explained that this limitation means that the bill would not violate the United States' obligation under the Berne Convention.

The bill is supported by Public Knowledge and several library groups, including the American Library Association, the Association of Research Libraries, and the American Association of Law Libraries.

Commentary: Lofgren Bill Could Prompt Copyright Office to Update Registration Regulations for Internet Media

6/25. Rep. Zoe Lofgren (D-CA) and Rep. John Doolittle (R-CA) introduced the "Public Domain Enhancement Act", a bill to allow abandoned copyrighted works to enter into the public domain after fifty years, if the copyright holder does not submit a $1 fee and form prescribed by the Copyright Office (CO). The bill would also require the CO to write regulations. This may also prompt the CO to update its existing registration regulations, which are out of date, to the extent that they do not reference the internet, web, e-mail, or works published in any digital media.

Registration of a copyright with the CO is not required under the Copyright Act. However, registration is a prerequisite for bringing a lawsuit for infringement. See, 17 U.S.C. § 411. The Act also provides certain basic requirements for the registration of copyrights. See, 17 U.S.C. §§ 408 and 409. The CO has promulgated detailed and lengthy regulations governing how to register different types of works, forms for different types of registrations, deposits required for different types of registrations, and fees. See, 37 CFR § 202.3. For example, there are the Form TX, Form PA, Form VA, Form SR, Form SE, Form SE/Group, and so forth.

However, neither the statute nor the CO registration rules have yet been updated to take into account the invention of the internet, the web, e-mail, and the many media in which digital content can be stored. The regulations address daily newspapers and other printed serials, nondramatic literary works such as novels and poetry, visual arts such as photographs and charts, works of the performing arts such as plays and movies, and other types of works. However, except for a reference to microfiche, there is nothing in the regulations that Calvin Coolidge would not understand.

The regulations make no reference to new media. And hence, there is uncertainty as to how to register these new works. For example, the regulations address how to register a printed daily newspaper. But, the regulations say nothing about how to register the online version of a newspaper. Is it already covered by registration of the print version? What about additional content published only online? Can it be registered daily? What if it is updated hourly?

Must all web publishers make an additional registration every time a web site is altered? How does one submit a copy of an electronic work for deposit with the CO? Does one register the page view or the source code of a web page? If one registers the source code of a web page that displays a nondramatic literary work, must this be registered under the rules for software programs?

The unanswered questions are legion. These questions create uncertainty as to how to register new media works, and whether existing registrations will be sufficient to maintain an action for infringement.

CO officials periodically speak at legal, policy, and professional conventions and panel discussions. They generally state that the registration rules are out of date, and provide little guidance for how to register new media works.

The CO has not conducted any public rule making proceeding to update its regulations to bring them into the age of the internet. However, on March 7, 2002, the (CO) published a notice in the Federal Register announcing that it amended its Rule 202.3, regarding registration of copyrights. The change was limited to registering a group of contributions to a periodical. The CO did not invite public comment. That is, it was a secret proceeding. See, Federal Register, March 7, 2002, Vol. 67, No. 45, at Pages 10329.

The Lofgren Doolittle bill does not expressly state that the CO must update its registration regulations. What it requires is payment of $1 for maintaining in force the copyright in any published United States work. The fee is due 50 years after the date of first publication.

However, the bill also requires the copyright holder to submit a form prescribed by the CO. Moreover, the bill requires that the CO provide for electronic submission, which is not currently a part of the registration regulations. Also, the bill requires the CO to establish procedures for this purpose.

Finally, a critical clause in the bill provides that the form for paying the $1 maintenance fee "may be used to satisfy the registration provisions of sections 408 and 409 ..." Hence, the filing required by the Lofgren/Doolittle bill will double as a copyright registration, and the CO must conduct a rule making proceeding regarding this registration process.

If this bill becomes law in its present form, this rule making proceeding just might be the mechanism by which the CO finally brings its registration regulations into the age of the internet.

Finally, the bill contains another notable clause. It requires that the information contained in these forms be "easily accessible to the public". Requiring the CO to make the information in all of these forms available, and to the public, will require a substantial modernization of the CO's systems.

More News

6/25. The Annenberg Public Policy Center released a study titled "Americans & Online Privacy: The System is Broken". See, release [PDF], full study with graphics [1.5 MB in PDF], and study without graphics [137 KB in PDF]. Annenberg recommends that the Congress pass legislation. The Progress and Freedom Foundation (PFF), which has conducted its own study, argued in rebuttal that the "privacy practices of commercial web sites are improving in response to consumer concerns." It recommends against legislation. See, PFF release.

6/25. Federal Communications Commission (FCC) Chairman Michael Powell stated in a release that "I am pleased that Fox has joined the other major networks by committing to high definition programming. I’ve often said that content is the engine that will drive the DTV transition forward. This announcement is the latest indication that the transition is beginning to shift into overdrive. I look forward to the launch of Fox’s high-definition programming at the earliest possible date."

6/25. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register regarding its decision to disseminate all future editions of the Official Gazette of the United States Patent and Trademark Office -- Trademarks (OG-T) solely in electronic format. See, Federal Register, June 25, 2003, Vol. 68, No. 122, at Page 37803.

6/24. Sen. Charles Schumer (D-NY) introduced S 1322, a bill to require states to make certain information regarding sexually violent predators accessible on the internet. It was referred to the Senate Judiciary Committee, of which Sen. Schumer is a member.

6/24. filed a complaint in California Superior Court (Los Angeles County) against eBay and PayPal alleging breach of contract, breach of the implied covenants of good faith and fair dealing, interference with contract, and other claims. stated in a release that in June 2002 " and PayPal agreed that technology would be made available to allow PayPal users to buy and print postage online from their PayPal accounts", and that "PayPal did not live up to its contractual obligations in the agreement". eBay announced in July of 2002 that it would purchase PayPal. It completed the transaction in October of 2002.

RIAA Announces Plans to Sue Individual P2P Infringers

6/25. The Recording Industry Association of America (RIAA) stated in a release that "Starting tomorrow," it "will begin gathering evidence and preparing lawsuits against individual computer users who are illegally offering to ``share´´ substantial amounts of copyrighted music over peer-to-peer networks."

The RIAA added that it "expects to use the data it collects as the basis for filing what could ultimately be thousands of lawsuits charging individual peer-to-peer music distributors with copyright infringement. The first round of suits could take place as early as mid-August."

Cary Sherman, President of the RIAA, stated in this release that "The law is clear and the message to those who are distributing substantial quantities of music online should be equally clear --- this activity is illegal, you are not anonymous when you do it, and engaging in it can have real consequences ... We'd much rather spend time making music then dealing with legal issues in courtrooms. But we cannot stand by while piracy takes a devastating toll on artists, musicians, songwriters, retailers and everyone in the music industry."

The RIAA also explained how it will gather information for its lawsuits. It "will be using software that scans the public directories available to any user of a peer-to-peer network. These directories, which allow users to find the material they are looking for, list all the files that other users of the network are currently offering to distribute. When the software finds a user who is offering to distribute copyrighted music files, it downloads some of the infringing files, along with the date and time it accessed the files."

Also, the RIAA "can then serve a subpoena on the ISP requesting the name and address of the individual whose account was being used to distribute copyrighted music. Under the Digital Millennium Copyright Act (DMCA), ISPs must provide copyright holders with such information when there is reason to believe copyrights are being infringed."

Rep. Bob Goodlatte (R-VA), a senior member of the House Judiciary Committee and its Subcommittee on Courts the Internet and Intellectual Property, stated in a release that "Rampant online music piracy deprives the artists of today of a fair return for their work, and it especially hurts the artists of tomorrow. Record labels’ artist development budgets are being slashed, and the real losers are music fans who expect and enjoy great new music. The music community understands it must get a handle on the piracy epidemic.  The record companies’ announced plan to bring lawsuits against peer to peer users who are illegally offering their music collection to millions of others is a much needed response."

Jack Valenti, P/CEO of the Motion Picture Association of America (MPAA) stated in a release that "There is no question that the activities of those being targeted by the RIAA are illegal. It is not a step taken casually, but enforcement is an essential component of any broader approach to staving the tide of piracy. The creative industries cannot sit by idly while under siege by digital thieves who are undermining the creation of new, exciting choices for the majority of honest fans. Ignoring this threat would be to cheat the hundreds of thousands of working people in the music and movie industries who have kids to send to college and mortgages to pay and who rely on the legitimate purchase of their creations for their livelihood."

Thursday, June 26

The House will meet at 10:00 AM for legislative business. See, Republican Whip notice.

Last scheduled conference of the Supreme Court in the October 2002 term. See, court calendar [PDF].

9:30 AM. The Senate Commerce Committee will meet to mark up several bills. The agenda includes S 1264, the FCC reauthorization bill, which also contains a large number of significant changes in substantive law. For example, it contains provisions pertaining to media ownership rules, e-rate fraud, FCC enforcement, private causes of actions against common carriers, lobbying by former FCC officials, and the effect of bankruptcy on spectrum auctions. See, story titled "Sen. McCain Introduces Telecom Bill" in TLJ Daily E-Mail Alert No. 681, June 16, 2003. The agenda also includes HR 1320, the "Commercial Spectrum Enhancement Act", which the House has already passed. See, story, titled "House Passes Commercial Spectrum Enhancement Act" in TLJ Daily E-Mail Alert No. 679, June 12, 2003. Press contact: Rebecca Hanks (McCain) 202 224-2670 or Andy Davis (Hollings) at 202 224-6654. Location: Room 253, Russell Building.

The Senate Judiciary Committee will hold an executive business meeting. The agenda includes consideration of the nominations of William Pryor to be a Judge of the U.S. Court of Appeals (11thCir) and Thomas Hardiman to be a Judge of the U.S. District Court (WDPenn). Press contact: Margarita Tapia at 202 224-5225. Location: Room 226, Dirksen Building.

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. The agenda [2 pages in PDF] includes consideration of an Eighth Report regarding the status Commercial Mobile Services (CMS) competition (WT Docket No. 02-379), a Third Report and Order and Second Further Notice of Proposed Rulemaking regarding issues raised by proposed revisions to satellite and earth station license application forms (IB Docket Nos. 02-34 and 00-248), and a Report and Order regarding it rules regulating unsolicited advertising by telephone and facsimile machine (CG Docket No. 02-278). The meeting will be webcast. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

10:00 AM. The Senate Finance Committee will hold a hearing to examine the nominations of Josette Shiner to be a Deputy United States Trade Representative, and James Jochum to be an Assistant Secretary of Commerce. Location: Room 215, Dirksen Building.

Friday, June 27

The House will meet at 9:00 AM for legislative business. See, Republican Whip notice.

9:00 AM. The Progress and Freedom Foundation (PFF) will host a conference titled "Net Neutrality: Consumer Protection or Commercial Ploy?". At 9:00 AM, Nancy Victory, Director of the National Telecommunications and Information Administration (NTIA), will give the opening keynote address. At 9:30 AM, there will be a panel titled "Industry Perspectives on the Need for Regulating Broadband Networks". The participants will include Paul Misener (Amazon), Robert Sachs (National Cable & Telecommunications Association), Tom Tauke (Verizon), and Jeffrey Campbell (Cisco Systems). At 10:45 AM, there will be a panel titled "Economic and Public Policy Perspectives on the Need for Regulating Broadband Networks". The participants will include Bruce Owen (Stanford Institute of Economic Policy Research), Joseph Farrell (University of California at Berkeley), and David Scheffman (Bureau of Economics, Federal Trade Commission). See, PFF notice. Location: J.W. Marriott Hotel.

Day long meeting of the Federal Communications Commission's (FCC) Consumer Advisory Committee.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed changes to its rules of practice to implement the inter partes reexamination provisions, and other patent related provisions, of HR 2215 (107th Congress), the 21st Century Department of Justice Appropriations Authorization Act, which President Bush signed on November 2, 2002. For more information, contact Kenneth Schor at 703 308-6710. See, Federal Register, April 28, 2003, Vol. 68, No. 81, at Pages 22343 - 22353.

Monday, June 30

The House will be in recess from June 30 through July 4 for the Independence Day District Work Period. The Senate will be in recess also.

The Securities and Exchange Commission's (SEC) rule changes that require that reports by insiders disclosing their securities holdings be filed electronically with the SEC become effective. The SEC stated in an April 24 release that it "voted to mandate the electronic filing of beneficial ownership reports filed by officers, directors and principal security holders under Section 16(a) of the Securities Exchange Act of 1934, and to require issuers with corporate websites to post these reports. Electronic filing and website posting of these reports will result in earlier public notification of insiders' transactions and wider public availability of information about those transactions. The new rules and amendments implement the requirements of Section 16(a)(4), as amended by Section 403 of the Sarbanes Oxley Act of 2002."

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rule making regarding regulation under the Patent Cooperation Treaty. The USPTO published a notice in the Federal Register stating that it proposes to "amend the rules of practice to conform them to certain amendments made to the Regulations under the Patent Cooperation Treaty (PCT) that will take effect on January 1, 2004. These amendments will result in the addition of a written opinion in PCT chapter I, as well as a simplification of PCT designations and the PCT fee structure. In addition, the Office is proposing to adjust the transmittal, search, and international preliminary examination fees for international applications filed under the PCT ..." See, Federal Register, May 30, 2003, Vol. 68, No. 104, at pages 32441 - 32448.

Tuesday, July 1

8:30 AM - 5:15 PM. The U.S. Department of Commerce will host a one day conference on the U.S. India high tech cooperation titled "Financing Innovation Forum". The speakers will include Phil Bond (Under Secretary of Commerce for Technology), Kenneth Juster (Under Secretary of Commerce in charge of the Bureau of Industry and Security), and Sam Bodman (Deputy Secretary of the Department of Commerce). See, notice and agenda. Location: Ronald Reagan Building International Trade Center.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding News Corp.' proposed acquisition of an interest in DirecTV. See, FCC notice [7 pages in PDF], and story titled "FCC Sets Deadlines for Comments on News Corp.'s DirecTV Deal" in TLJ Daily E-Mail Alert No. 664, May 19, 2003. This is MB Docket No. 03-124. For more information, contact Marcia Glauberman at or 202 418-7046 or Linda Senecal at or 202 418-7044.

Wednesday, July 2

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its draft publication [PDF] titled "Guideline for Identifying an Information System as a National Security System". This is NIST Draft Special Publication 800-59. It provides guidelines for identifying an information system as a national security system consistent with applicable requirements for national security systems as specified in Title III to Public Law 107-347, the Federal Information Systems Management Act of 2002 (FISMA). Send comments to William Barker at

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