|Representatives Introduce Public Domain
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. 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
[89 pages in PDF], upholding the constitutionality of the
Term Extension Act (CTEA), which retroactively extended the maximum duration
of copyrights from 75 to 95 years. See,
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
The bill is supported by Public
Knowledge and several library groups, including the
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. §§
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
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
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
6/25. The Annenberg Public Policy Center
released a study titled "Americans & Online Privacy: The System is Broken". See,
full study with graphics [1.5 MB in PDF], and
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,
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
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. Stamps.com filed a complaint in
California Superior Court (Los Angeles County) against
PayPal alleging breach of contract, breach of the implied covenants of
good faith and fair dealing, interference with contract, and other claims.
Stamps.com stated in a
release that in June 2002 "Stamps.com and PayPal agreed that Stamps.com 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
6/25. The Recording Industry Association of
America (RIAA) stated in a
"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
Rep. Bob Goodlatte (R-VA), a senior member of the
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,
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
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
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
(Stanford Institute of Economic Policy Research),
Joseph Farrell (University
of California at Berkeley), and David Scheffman (Bureau of Economics, Federal
Trade Commission). See,
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
(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
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,
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
firstname.lastname@example.org or 202 418-7046 or Linda
Senecal at email@example.com or 202 418-7044.
|Wednesday, July 2
Deadline to submit comments to the National
Institute of Standards and Technology (NIST) regarding its
[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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