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November 25, 2003, 9:00 AM ET, Alert No. 786.
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Senators Introduce Bill to Increase Protection of Pre-Released Movies and Other Unpublished Works

11/22. Sen. John Cornyn (R-TX), Sen. Dianne Feinstein (D-CA) and others introduced S 1932, the "Artists' Rights and Theft Prevention Act (ART Act)". The two Senators announced, but did not release, the bill at a press conference on November 13. They introduced the bill on Saturday, November 22.

Statutory provisions relating to criminal copyright infringement are found in both Title 18 (criminal code) and Title 17 (copyright act). 17 U.S.C. 506 contains the criminal prohibition on certain acts of copyright infringement. 18 U.S.C. 2319 provides penalties for violations of 17 U.S.C. 506.

First, this bill would add a new Section 2319B to the criminal code prohibiting the unauthorized recording of motion pictures in a motion picture exhibition facility. Second, the bill would revise both 18 U.S.C. 2319 and 17 U.S.C. 504 to make it easier to prosecute, and obtain civil remedies for, certain acts of copyright infringement.

Currently, Section 2319 provides, in part, that "Any person who commits an offense under section 506(a)(1) of title 17 -- (1) shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution, including by electronic means, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, which have a total retail value of more than $2,500". S 1932 would make it easier to prove distribution of "at least 10 copies".

Sen. Dianne FeinsteinSen. Feinstein (at right) and Sen. Cornyn held a press conference on November 13, 2003. Sen. Feinstein stated that "the bill makes it easier for prosecutors to convict individuals who put pre-released material on the Internet or for aggrieved parties to file lawsuits. This would include songs that have not yet been released to the public, movies still in theaters, software not yet in stores, and so on." See, statement.

She continued that "Current law requires that a prosecutor, or plaintiff in a civil suit, prove ten illegal downloads or $2,500 in damages. But this is difficult to prove, and often prevents charges from being brought. This legislation says that anyone who uploads pre-released, copyrighted material should clearly know that it might be downloaded ten, a hundred - even millions of times, for an incalculable cost. By removing the proof of damages requirement from the law, we make it easier to catch and punish those individuals who are stealing pre-released material and giving it to the public for free."

Videotaping in Movie Theaters. Section 3 of the bill would add to Title 18 a new Section 2319B, that provides, in part, that "Whoever, without the consent of the copyright owner, knowingly uses or attempts to use an audiovisual recording device in a motion picture exhibition facility to transmit or make a copy of a motion picture or other audiovisual work protected under title 17, United States Code, or any part thereof, in a motion picture exhibition facility shall (1) be imprisoned for not more than 3 years, fined under this title, or both".

Criminal Infringement of a Commercial Prereleased Copyrighted Work. Section 4 of the bill would add a new subsection to 18 U.S.C. 2319, which is the section of the criminal code that provides penalties for criminal copyright infringement, as provided in 17 U.S.C. 506.

The bill would provide that "in the case of a computer program, a non-dramatic musical work, a motion picture or other audio-visual work, or a sound recording protected under title 17, United States Code, that is being prepared for commercial distribution, it shall be conclusively presumed that a person distributed at least 10 copies or phonorecords of the work, and that such copies or phonorecords have a total retail value of more than $2,500, if that person -- (A) distributes such work by making it available on a computer network accessible to members of the public who are able to reproduce the work through such access without the express consent of the copyright owner; and (B) knew or should have known that the work was intended for commercial distribution."

Civil Remedies for Commercial Prereleased Copyrighted Work. Section 5 of the bill would add similar language to 17 U.S.C. 504, which provides remedies for copyright infringement in a civil action.

Both Section 4 and 5 of the bill also address what constitutes a work that is prepared for commercial distribution. The copyright owner must have "a reasonable expectation of substantial commercial distribution" and the work has not yet been so distributed.

The movie videotaping section would create a narrow prohibition. It would apply only to movies and other "audiovisual works", as defined in 17 U.S.C. 101. The expansion of the concept of distribution would only apply to a "computer program, a non-dramatic musical work, a motion picture or other audiovisual work, or a sound recording".

Nevertheless, while this bill, at bottom, expands protections of unpublished works, the original underlying purpose of the Copyright Act was to incent the creation and publication of works by protecting published works.

Authorization for Appropriations. Finally, the bill would authorize the appropriation to the Department of Justice (DOJ) "an additional $5,000,000 for each of fiscal years 2005, 2006, 2007, 2008, and 2009 to prosecute violations of section 2319 of title 18, United States Code."

Critics of recent copyright related bills have argued that imposing new responsibilities on the DOJ to prosecute copyright infringers, or perform other copyright related responsibilities, would diminish the DOJ's resources for prosecuting other crimes. This section responds to those criticisms.

The other original cosponsors of the bill are Sen. Orrin Hatch (R-UT), Sen. Gordon Smith (R-OR), Sen. Lamar Alexander (R-TN), and Sen. Lindsey Graham (R-SC).

Mitch Bainwol, Ch/CEO of the Recording Industry Association of America (RIAA), praised the bill and its sponsors in a release. He also stated that "Just this week, two major artists have been forced to release their albums earlier than planned because Internet ripping groups distributed their music in pre-release form worldwide."

"Artists work day and night to get their music just right. Releasing an album before it is intended for sale to the public scoops the legitimate market for that work and damages a crucial sales period", said Bainwol. "The findings in this bill reflect the effects that piracy has had on record sales over the past three years. Sales in the music industry are down 31 percent. In 2000, the ten top selling albums sold 60 million units, in 2001 they sold 40 million units and in 2002 the top ten selling albums sold only 34 million units."

Bills Introduced

11/21. Rep. Christopher Shays (R-CT), Rep. Jay Inslee (D-WA), Rep. David Price (D-NC), and Rep. Mark Green (R-WI) introduced HR 3630, the "Congressional Research Accessibility Act", a bill to make available to the public, on the internet, Congressional Research Service products. The bill was referred to the House Administration Committee. See also, Shays release.

11/21. Rep. Bud Cramer (D-AL) introduced HR 3590, a bill to amend the Internal Revenue Code to allow employers a credit against income tax to encourage them to have their employees provide volunteer services that aid science, mathematics, and engineering education in grades K-12. The bill was referred to the House Ways and Means Committee.

11/21. Sen. Charles Grassley (R-IA) and Sen. Jeff Sessions (R-AL) introduced S 1921, a bill to amend 28 U.S.C. S 44, to provide for 11 circuit judges on the U.S. Court of Appeals for the District of Columbia. Section 44 currently provides for 12 judges. The bill was referred to the Senate Judiciary Committee.

People and Appointments

11/24. President Bush nominated Jane Boyle to be a Judge of the U.S. District Court for the Northern District of Texas. She is currently the U.S. Attorney for the Northern District of Texas, which includes most of the Dallas Ft Worth metropolitan area. From 1990 through 2002 she was a Magistrate Judge. Before that she was an Assistant District Attorney for Dallas County, and an Assistant U.S. Attorney. See, White House release.

11/24. Steven Berry was named SVP, Governments Relations of the National Cable & Telecommunications Association (NCTA), effective January 2, 2004. Berry has been SVP of Government Affairs at the Cellular Telecommunications & Internet Association (CTIA) since 1997. He has also been Chief Counsel and Director of International Operations and European Affairs for the Senate Foreign Relations Committee, Assistant Secretary of State for Legislative Affairs at the Department of State, Republican Chief of Staff for the House Foreign Affairs Committee, and Republican Counsel for the House Permanent Select Committee on Intelligence. See, NCTA release.

11/17. Michael Schroeder was elected to the Board of Directors of EchoStar. See, EchoStar release.

11/21. DirecTV announced that Roxanne Austin, its President and Chief Operating Officer, will leave the company "upon completion of The News Corporation's acquisition of 34 percent of HUGHES common stock. DIRECTV is a unit of HUGHES." See, DirecTV release.

11/24. Mary McDowell joined Nokia as SVP and General Manager, Enterprise Solutions, and member of the Nokia Group Executive Board, effective January 1, 2004. She previously worked for Hewlett Packard. See, Nokia release.

More News

11/24. The Senate Judiciary Committee cancelled its executive business meeting, scheduled for Monday, November 24. The agenda had included numerous non technology related bills, and several judicial and Department of Justice (DOJ) nominations.

11/24. Federal Communications Commission (FCC) Commissioner Kathleen Abernathy issued advice [PDF] for consumers on wireless local number portability, and a related brochure [2 pages in PDF].

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Bush Signs Defense Authorization Act

11/24. President Bush signed HR 1588, the "National Defense Authorization Act for Fiscal Year 2004," which authorizes defense and military appropriations for fiscal year 2004. See, White House release.

The House passed the conference report on November 7, 2003, by a vote of 362-40. See, Roll Call No. 617. The Senate passed the conference report on November 12 by a vote of 95-3. See, Roll Call No. 447.

Some of the provisions of the bill are technology related. First, the bill authorizes the appropriation of $11,029,557,000 for fiscal year 2004 for "the Defense Science and Technology Program, including basic research, applied research, and advanced technology development projects."

This bill also requires the Department of Defense (DOD) to conduct research and development on network centric operations, requires the DOD to conduct a "Global Research Watch" program, requires the Defense Advanced Research Projects Agency (DARPA) to prepare biennial reports, and expands the authority of the DOD to support and pay for math, science, engineering and technology (MSET) education.

Network Centric Operations. Section 234 of the bill provides that "The Secretary of Defense shall carry out a program of research and development to promote the development of high-speed, high-bandwidth communications capabilities for support of network-centric operations by the Armed Forces."

This section provides that its purposes are "(1) To accelerate the development and fielding by the Armed Forces of network-centric operational capabilities (including expanded use of unmanned vehicles, satellite communications, and sensors) through the promotion of research and development, and the focused coordination of programs, to achieve high-speed, high-bandwidth connectivity to military assets. (2) To provide for the development of equipment and technologies for military high-speed, high-bandwidth communications capabilities for support of network-centric operations."

The bill also enumerates some areas of research and development, including "improved spectrum access through spectrum-efficient communications for support of network-centric operations", "high-speed, high-bandwidth communications", "networks, including complex ad hoc adaptive network structures", "communications devices, including efficient receivers and transmitters", and "computer software and wireless communication applications, including robust security and encryption".

Global Research Watch Program. The bill also requires the DOD to carry out a Global Research Watch program to "monitor and analyze the basic and applied research activities and capabilities of foreign nations in areas of military interest, including allies and competitors" and to "provide standards for comparison and comparative analysis of research capabilities of foreign nations in relation to the research capabilities of the United States."

This program is also required to "establish and maintain an electronic database on international research capabilities, comparative assessments of capabilities, cooperative research opportunities, and ongoing cooperative programs".

DARPA Biennial Strategic Plan. Section 232 of the bill requires the Defense Advanced Research Projects Agency (DARPA) to prepare a strategic plan every two years.

MSET Education. Section 233 of the bill amends 10 U.S.C. 2192, to enhance the authority of the Secretary of Defense to support mathematics, science, engineering and technology education. This bill adds the authority to make grants to support other entities, including other federal agencies, state agencies, and private sector entities.

Notice
The TLJ Daily E-Mail Alert will not be published on Thursday, November 27.
Washington Tech Calendar
New items are highlighted in red.
Tuesday, November 25

The House is scheduled to meet at 12:00 NOON.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding digital low power television and television translator stations. This is FCC 03-198, in MB Docket No. 03-185. See, notice in the Federal Register, September 26, 2003, Vol. 68, No. 187, at Pages 55566 - 55573.

Wednesday, November 26

4:00 PM. Deadline for the Federal Communications Commission's (FCC) to file with the U.S. Court of Appeals (DCCir) its response to the U.S. Telecom Association's (USTA) and CenturyTel's emergency motion for stay of the FCC's number portability rules.

Deadline to submit nominations to the Department of Commerce's (DOC) Technology Administration (TA) of individuals for appointment to the National Medal of Technology Nomination Evaluation Committee (NMTNEC). The TA states that "Typically, Committee members are present or former Chief Executive Officers, former winners of the National Medal of Technology; presidents or distinguished faculty of universities; or senior executives of non-profit organizations." See, notice in the Federal Register, October 27, 2003, Vol. 68, No. 207, at Page 61190.

Deadline for the Federal Communications Commission's (FCC) Media Security and Reliability Council (MRSC) to complete voting on recommendations regarding prevention and restoration measures to ensure the continued operation and security of media facilities in the face of a national emergency. These recommendations were presented at the biannual meeting of the MRSC on November 6, 2003. See, FCC release [PDF].

Thursday, November 27

Thanksgiving Day. The Federal Communications Commission (FCC) and other government offices will be closed. The National Press Club will be closed. There will be no issue of the TLJ Daily E-Mail Alert.

Friday, November 28

The National Press Club will be closed.

Deadline to submit comments to the National Intellectual Property Law Enforcement Coordination Council (NIPLECC) regarding the agenda and mission of the NIPLECC. See, notice in the Federal Register, October 28, 2003, Vol. 68, No. 208, at Pages 61398-61399.

Monday, December 1

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding its Fourth Notice of Proposed Rulemaking [49 pages in PDF] in which it proposes to make spectrum available to federal users that will be displaced from the 1710-1850 MHz band to make it available for advanced wireless services. See, notice in the Federal Register September 2, 2003, Vol. 68, No. 169, at Pages 52156 - 52168. See, also stories titled "FCC Releases NPRM Regarding Allocating Spectrum to DOD to Replace Spectrum Allocated for 3G Services" in TLJ Daily E-Mail Alert No. 694, July 9, 2003, and "FCC Sets Deadlines for Comments Regarding Spectrum Reallocations Relating to 3G Services" in TLJ Daily E-Mail Alert No. 731, September 3, 2003. This is ET Docket No. 00-258 and WT Docket No. 02-8.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Intergraph v. Intel, No. 03-1153. Location: Courtroom 203, 717 Madison Place, NW.

10:30 AM - 3:00 PM. The Federal Communications Commission (FCC) will hold a forum on Voice over Internet Protocol (VOIP) issues. Subsequently, it will issue a Notice of Public Rule Making (NPRM) "to inquire about the migration of voice services to IP-based networks and gather public comment on the appropriate regulatory environment for these services". See, FCC release of November 6, 2003. See also, agenda released on November 24, 2003.

Tuesday, December 2

9:00 AM - 4:30 PM. The Executive Office of the President's (EOP) Office of Science and Technology Policy's (OSTP) President's Council of Advisors on Science and Technology (PCAST) will hold a meeting that is open to the public. The PCAST's notice in the Federal Register states that the agenda includes the following: "(1) Discuss and, pending the discussion, approve a draft report from its information technology manufacturing competitiveness subcommittee; (2) discuss the preliminary observations and draft recommendations of its workforce education subcommittee; and (3) continue its discussion of nanotechnology and its review of the federal National Nanotechnology Initiative." The notice states both that the meeting will be on December 2 and December 3. Stan Sokul, Executive Director of the OSTP, states that the meeting is on December 2. For more information, contact Stan Sokul at 202 456-6070 or ssokul@ostp.eop.gov. Location: Monticello Ballroom (lower level), Wyndham Washington Hotel, 1400 M Street, NW.

9:00 AM - 12:00 NOON. The Potomac Institute for Policy Studies (PIPS) will host a panel discussion titled "Enabling New Information Technologies in the War on Terrorism -- And Protecting Our Privacy at the Same Time". The scheduled speakers include Robert Popp (DARPA), Dan Gallington (PIPS), Michael Scardaville (Heritage Foundation), Jeff Jonas, and Kim Taipale. To register, contact 703 525-0770 or jgatchalian@potomacinstitute.org. Location: Room 106, Dirksen Building.

10:15 AM. The Markle Foundation's Task Force on National Security in the Information Age will hold a press briefing on its report titled "Creating a Trusted Information Network for Homeland Security". At 11:30 AM there will be a panel discussion. RSVP to: rsvp@neted.org or 202 638-4370. For more information, contact Todd McGovern at tmcgovern@markle.org or 212 713-7633. Location: Russell Caucus Room (SR-325), Russell Building.

4:00 PM. Deadline for the U.S. Telecom Association's (USTA) and CenturyTel to file with the U.S. Court of Appeals (DCCir) their reply to the Federal Communications Commission's (FCC) response to their emergency motion for stay of the FCC's number portability rules.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to SBC Communications' petition requesting that the FCC forbear from applying the terms of 47 U.S.C. 271(c)(2)(B) to the extent, if any, those provisions impose unbundling obligations on SBC that this FCC has determined should not be imposed on incumbent local exchange carriers pursuant to 47 U.S.C. 251. See, FCC notice [PDF]. This is WC Docket No. 03-235.