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November 17, 2004, 9:00 AM ET, Alert No. 1,020.
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Opponents of IPPA Urge Delay Until 109th Congress

11/16. A collection of groups wrote a letter to Sen. Orrin Hatch (R-UT) and the other Senators urging them not to pass the bill titled "Intellectual Property Protection Act", or IPPA, in the remaining days of the 108th Congress.

On October 9, 2004, the Senate Judiciary Committee approved a package of copyright bills. This composite bill is titled the "Intellectual Property Protection Act of 2004". See, text of bill [44 pages in PDF], and text of bill, in HTML, with hyperlinked table of contents, and U.S. Code hyperlinks. Much of the content of this bill has also been passed by the House. See, story titled "Senate Judiciary Committee Approves Large Collection of Copyright Bills" in TLJ Daily E-Mail Alert No. 994, October 11, 2004.

This bill is numbered HR 2391. However, HR 2391 EH, which has been approved by the House, is a patent bill. The Senate Judiciary Commitee made the content of HR 2391 EH a part of the IPPA.

The signatories of the letter include the Consumer Electronics Association (CEA), the Digital Future Coalition (DFC), and Public Knowledge.

The other signatories are the American Association of Law Libraries, American Conservative Union (ACU), American Library Association (ALA), American Research Libraries, Computer & Communications Industry Association (CCIA), Computer Professionals for Social Responsibility, Electronic Frontier Foundation (EFF), and Free Press.

The signatories, and their members, tend to support limited intellectual property rights regimes, and weak intellectual property rights protections. The IPPA is supported by groups that represent copyright industries, and especially, the music, movie and interactive game industries.

The signatories of this letter wrote that they have "grave concerns about several titles" of the IPPA. They added that "the IPPA contains provisions that, while intended to aid in the protection of intellectual property, may harm the market for and hinder the development of new technologies and may harm long-established user rights. Unfortunately, many of the provisions of the bill did not receive the legislative scrutiny they require."

The letter does not, however, identify any of the sections or titles of the IPPA that the signatories of the letter find objectionable.

They conclude that "we request that the IPPA not be considered during the lame-duck session, but instead be carried over into the new Congress when its controversial provisions can be studied and debated in regular order."

In addition, representatives of many of these groups held a press conference on Friday, November 12, 2004, in which they articulated the nature of their opposition to the IPPA with more specificity.

Consumer Education. Will Rodger of the CCIA stated that the IPPA is "part of a basic pattern of pushing back fair use" and "freedom to innovate through all society".

He also said that "one of the most chilling things is the copyright education program".

§ 205 of the IPPA creates a public education program at the DOJ, to "educate the general public concerning the value of copyrighted works and the effects of the theft of such works on those who create them".

Civil Actions by the DOJ. Stacie Rumenap of the ACU stated that "the biggest problem we have with 2391 is the PIRATE Act".

Title III of the IPPA is the "Protecting Intellectual Rights Against Theft and Expropriation Act of 2004", or "PIRATE Act". One of its provisions would allow the Department of Justice (DOJ), which can already bring criminal actions, to bring civil actions based upon the same conduct.

§ 302 would authorize the DOJ to bring civil actions for copyright infringement for conduct that already constitutes criminal copyright infringement under 17 U.S.C. § 506. This would accomplish two things. It would make it easier to prevail, because, among other things, the civil action would have a lower burden of proof. It would also provide a less punitive action for youthful P2P music pirates.

"It is plain wrong to make the Department of Justice Hollywood's law firm", said Rumenap. It "expands the role of government".

She also read the text of an ad that is being placed by the ACU that builds upon its conservative members' longstanding dislike for the movie industry. It states that "Right Now, Hollywood is trying to ram this flawed bill -- a handout for Tinsel Town fat cats -- through Congress without hearings or debate."

She also explained that the ACU's analysis of the Inducing Infringement of Copyrights Act is similar to their analysis of some gun control proposals. That is, she reasoned that just as it is criminals rather than guns that commit crimes, it is infringers rather than technologies that pirate music and movies. She said that in both arenas, the government should regulate behavior, not technologies.

Public Knowledge's Objections. Gigi Sohn of Public Knowledge, which hosted the press conference, identified several provisions of the IPPA. First, the bill includes, as Title II, the "Piracy Deterrence and Education Act of 2004", which is a revised version of HR 4077 EH, which includes the "Family Movie Act". The House has approved HR 4077 EH as a stand alone bill. She argued that this part of the bill "drastically lowers the standards for what constitutes a criminal copyright violation. The standards are far too vague and could include as targets for prosecution material passively stored on computers or shared on networks."

Although, she and others participants at the press conference expressed support for the part of HR 4077 EH and the IPPA that is known as the "Family Movie Act". § 212 of the IPPA was written with the ClearPlay technology in mind. It adds a new ¶ 11 to 17 U.S.C. § 110 (which provides exceptions to the exclusive rights of copyright). It provides that certain DVD filtering technology is not a violation of copyright.

Second, Sohn argued, as did many other participants at the press conference, that the IPPA's provision giving the DOJ authority to bring civil actions is inappropriate.

Third, she criticized S 1932 and the ART Act. She said that "The problem we have here is that fair use protections under traditional copyright law would be eliminated."

§ 208 of the IPPA criminalizes using camcorders to copy movies in motion picture exhibition facilities, such as movie theatres. This is aimed at those who take camcorders into movie theatres and surreptitiously copy movies, thereby enabling pirates to obtain and market copies of movies as soon as they are shown in theatres. This language is in HR 4077 EH, which has passed the House. It is also in § 3 of S 1932, the "Artists' Rights and Theft Prevention Act of 2004", or ART Act, which was approved by the Senate on June 25, 2004.

Fourth, she argued that the "Family Movie Act" should also allow consumers to skip over ads.

Gary Shapiro of the CEA discussed the legislative process. He said that "our strategy is clearly going to be focusing on the Senate".

He also said that while "Sen. Hatch has been very favorable to the content community ... Sen. Specter's record has been far more balanced".

Sarah Deutsch of Verizon also participated in the press conference.

Several participants also criticized the inducement bill, which is not a part of the IPPA. Rodger of the CCIA also criticized legislative proposals to provide statutory protections for collections of data. None of these are a part of the IPPA.

Summary of Briefs in MGM v. Grokster

11/16. On August 19, 2004 the U.S. Court of Appeals (9thCir) issued its opinion [26 pages in PDF] in MGM v. Grokster, affirming the District Court holding that Grokster's and Streamcast's peer to peer (P2P) file copying networks do not contributorily or vicariously infringe the copyrights of the holders of music and movie copyrights. See story titled "9th Circuit Holds No Vicarious Infringement in Grokster Case" in TLJ Daily E-Mail Alert No. 963, August 20, 2004.

The petitioners include Metro Goldwyn Mayer Studios Inc., other movie studios, record companies, and music publishers and songwriters. The respondents are Grokster, Ltd. and StreamCast Networks, Inc. The 9th Circuit's opinion is reported at 380 F.3d 1154. The Supreme Court case number is 04-480.

Petition for Writ of Certiorari. On October 8, 2004 the petitioners filed their petition for writ of certiorari [46 pages in PDF]. See also, story titled "Movie and Music Industry Entities File Cert Petition in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 994, October 11, 2004.

The petitioners argue that "This is one of the most important copyright cases ever to reach this Court. Resolution of the question presented here will largely determine the value, indeed the very significance, of copyright in the digital era."

They argue that "The Ninth Circuit's refusal to hold Grokster and StreamCast accountable under these circumstances is a radical departure from principles of secondary liability recognized ``in virtually all areas of the law,´´ including copyright." (Quoting from Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).

They continue that "The Ninth Circuit read Sony-Betamax not as endorsing but as rejecting those established principles, and as instead imposing ``limitations´´ and ``higher standards´´ for contributory infringement that foreclose liability here."

The petitioners argue that there is a conflict between the Ninth Circuit and the U.S. Court of Appeals (7thCir), based upon its opinion [23 pages in PDF] in In Re Aimster Copyright Litigation, 334 F.3d 643. On June 30, 2003, the 7th Circuit issued its opinion affirming the District Court's preliminary injunction affecting the Aimster (aka Madster) file copying system. See, story titled "7th Circuit Affirms Preliminary Injunction in Aimster Case" in TLJ Daily E-Mail Alert No. 691, July 1, 2003.

The petitioners argue that "Review is urgently needed not only to resolve the conflict between the Ninth and Seventh Circuits, but more importantly to clarify the standards for secondary liability applicable to Internet-based services that facilitate copyright infringement. The infringement Grokster and StreamCast foster is inflicting catastrophic, multibillion-dollar harm on petitioners that cannot be redressed through lawsuits against the millions of direct infringers using those services. Left undisturbed, the Ninth Circuit’s decision will effectively insulate Grokster and StreamCast from suit nationwide, leaving these harms unremedied."

They conclude that "the Ninth Circuit’s decision threatens the very foundations of our copyright system in the digital era. The ease with which copyrighted works in digital form can be unlawfully copied and distributed millions of times over on the Internet makes it especially important that traditional principles of secondary copyright liability apply to enterprises that, like respondents, brazenly encourage and profit from infringement. Unless respondents and those like them can be held accountable, copyright will soon mean nothing on the Internet, and the incentives on which our copyright system rests will be imperiled."

Respondents' Opposition Brief. On November 8, 2004, the respondents filed their brief [54 pages in PDF] in opposition. It was prepared by Mark Lemley (Keker & Van Nest, attorney for Grokster) and Cindy Cohn (for Streamcast).

The respondents argue that "Congress is the body the Constitution charges with determining what is ``just and economically rational,´´ Pet. 12, in striking the balance between the interests of copyright holders and technology innovators. Congress, moreover, is at this moment considering the very question Petitioners pose to this Court -- whether and how copyright law should be altered to address the challenges and opportunities created by new internet technologies, including peer-to-peer (``P2P´´) file sharing. Congress’ judgment will be informed by the essential facts that Petitioners ask this Court to brush aside -- that the technology in question has substantial noninfringing uses, and that the prospect of massive and unpredictable liability for innovators under Petitioners’ theory would cast a pall over the nation’s technology sector.

They continue that the "Petitioners ask this Court to preempt the legislative process and substitute judicial policy-making: ``A court must assess a system’s actual and probable potential infringing and noninfringing uses, and then must balance the costs and benefits to accommodate the interests of copyright holders in preventing infringement while protecting the right of the public to use products for noninfringing uses.´´"

But, they argue, the Supreme Court rejected this invitation in the Sony case. They wrote that the Sony case announced "a rule of deference to Congress that has served copyright owners, innovators and the public well for twenty years. In turn, Congress has repeatedly amended the Copyright Act to address new technologies and to craft balanced, nuanced statutory solutions to accommodate the competing interests of these two critical sectors of the American economy, as well as ``society’s . . . interest in the free flow of ideas, information and commerce.´´"

The Senate Judiciary Committee has considered, but not approved, S 2560, the "Inducing Infringement of Copyrights Act of 2004", a bill that responds to the 9th Circuit's holding in MGM v. Grokster.

The respondents also argue that the Appeals Court correctly decided the case, and correctly applied the Sony case.

Amicus Briefs in Support of Granting Certiorari. The Supreme Court has also received numerous amicus briefs in support of granting certiorari.

See for example, amicus curiae brief [12 pages in PDF] of the Progress and Freedom Foundation (PFF), dated November 8, 2004. See also, story titled "PFF Urges Supreme Court to Grant Certiorari in MGM v. Grokster" in TLJ Daily E-Mail Alert No.1,014, November 9, 2004.

Also, 41 states file an amicus curiae brief [34 pages in PDF] that also focuses on P2P pormography. It states that P2P networks "are increasingly becoming havens for non-copyright-related criminal activity. Of particular concern to the Amici is the widespread use of P2P technology to disseminate pormography, particularly unlawful child pormography, and the deliberate choice of some P2P networks to disable control devices that might be effective in tracking and prosecuting this predatory practice."

The states' brief adds that "As part of an ongoing effort to keep pace with emerging technologies that are being used to commit, facilitate, and conceal Internet crimes against children, federal, state, and local law enforcement officials have joined forces as part of a nationwide initiative to combat the large volume of child pormography being distributed through P2P networks."

The brief also argues that states are harmed by the illegal copyright infringement that takes place on P2P systems by the loss of jobs, loss of sales, and loss of state and local tax revenues.

There is also the amicus curiae brief [14 pages in PDF] of the American Intellectual Property Law Association (AIPLA), dated November 8, 2004. It is titled "in support of neither party". However, it urges the Supreme Court to grant certiorari. It further argues that there is a split between the Ninth Circuit and the Seventh Circuit, and that the Sony standard is ambiguous.

It states that the Ninth Circuit in the MGM v. Grokster reads the Sony case to require that the device be capable of substantial noninfrining uses. It states that the Seventh Circuit in the Aimster case held that for a product to avoid contributory liability under the Sony test, it must be more than merely capable of substantial noninfringing uses. There must be evidence of actual noninfringing uses.

It states that the split caused by the Grokster and Aimster cases "plagues important sectors of the economy with confusion and uncertainty."

It further states that "Copyright holders need practical protection from rampant infringement of their works, and software and equipment suppliers need predictable boundaries for the marketing of lawful products." However, it does not offer the Supreme Court an argument as to how it should resolve the ambiguity and provide certainty.

See also, amicus curiae brief [9 pages in PDF] of the Recording Artists Coalition (RAC) and of various individual rock and country music recording artists, dated November 8, 2004, and prepared by Thomas Corcoran, Jr. (Berliner Corcoran & Rowe).

And see, amicus curiae brief [26 pages in PDF] of various music industry associations, dated November 8, 2004, and prepared by Jon Baumgarten (Proskauer Rose) and Joel Katz (Greenberg Traurig). The amici who joined in this brief are the National Academy of Recording Arts and Sciences (NARASA), American Federation of Musicians of the United States and Canada, American Federation of Television and Radio Artists, The Country Music Association, Inc., The Gospel Music Association, The Hip-Hop Summit Action Network, Jazz Alliance International, Inc., and The Rhythm & Blues Foundation.

Other briefs in support of granting certiorari were filed on November 8, 2004.

Briefs in Opposition to Granting Certiorari. See, amicus curiae brief [32 pages in PDF] of the Computer and Communications Industry Association (CCIA) and Internet Archive, dated November 8, 2004. It was prepared by Peter Jaszi (American University) and Laura Quilter (UC Berkeley).

Washington Tech Calendar
New items are highlighted in red.
Wednesday, November 17

The House will meet at 10:00 AM. The House may consider HR 1417, the "Copyright Royalty and Distribution Reform Act of 2004", under suspension of the rules. The Senate approved this bill on October 6, 2004. See, story titled "Senate Approves Copyright Royalty and Distribution Reform Act" in TLJ Daily E-Mail Alert No. 992, October 7, 2004. See, Republican Whip Notice.

12:00 NOON. The National Emergency Number Association (NENA) will host a press conference regarding its Next Generation E-911 [PDF] initiative. For more information, contact Michelle Jones at 703 812-4600. Location: Lisagor Room, National Press Club, 529 14th St. NW, 13th Floor.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. Jon Cody, Legal Advisor to FCC Chairman Michael Powell, will speak. For more information, contact Location: Mintz Levin, 701 Pennsylvania Ave., NW.

1:30 PM. House and Senate conferees will hold a closed meeting on HR 4548, a bill to authorize appropriations for FY 2005 for intelligence related activities. Location: Room S-407, Capitol Building.

2:30 PM. Outgoing Attorney General John Ashcroft will speak at the Executive Office of U.S. Attorneys (EOUSA) Director's Awards Ceremony. Location: International Trade Center Amphitheater, Ronald Reagan Building, 1300 Pennsylvania Ave., NW.

Thursday, November 18

The House will meet at 10:00 AM. The House may consider HR 1417, the "Copyright Royalty and Distribution Reform Act of 2004", under suspension of the rules. The Senate approved this bill on October 6, 2004. See, story titled "Senate Approves Copyright Royalty and Distribution Reform Act" in TLJ Daily E-Mail Alert No. 992, October 7, 2004. See, Republican Whip Notice.

9:00 AM - 3:00 PM. The Department of Commerce's (DOC) Bureau of Industry and Security (BIS) will host an event titled "U.S. India High Technology Cooperation Group Dialogue on Defense Technology, Data Privacy, and Export Licensing". See, invitation [PDF], registration form, and agenda. Location: DOC 1401 Constitution Ave., NW.

9:00 AM - 5:30 PM. Day one of a two day conference hosted by the American Bar Association's (ABA) Section of Antitrust Law titled "Fall Forum". See, event web site. Location. National Press Club, 529 14th St. NW, 13th Floor.

9:30 AM. The Senate Commerce Committee will hold a hearing on pending nominations. Press contact: David Wonnenberg at 202 224-2670 or david_wonnenberg Location: Room 253, Russell Building.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in USTA v. FCC, No. 03-1414. This is petition for review of a final order of the FCC pertaining to number portability. See, brief [47 pages in PDF] of the FCC. Judges Sentelle, Randolph and Garland will preside. Location: Courtroom 20, Prettyman Courthouse, 333 Constitution Ave., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Ctrl TX Tele Coop v. FCC, No. 03-1405. Judges Sentelle, Randolph and Garland will preside. Location: Courtroom 20, Prettyman Courthouse, 333 Constitution Ave., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Covad Communications Co. v. Bell Atlantic Corp., No. 02-7057. Judges Ginsburg, Rogers and Tatel will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

11:00 AM. The Federal Communications Bar Association's (FCBA) Legislation Committee will host an event. The speaker will be Gregg Rothschild (Democratic Counsel, House Commerce Committee). He will speak on legislative issues. RSVP to Helene Marshall at Location: Wiley Rein & Fielding, 1776 K St., NW.

CANCELLED. The Federal Communications Bar Association's (FCBA) will host a breakfast. The speaker will be Jeff Carlisle, Chief of the Federal Communications Commission's (FCC) Wireline Competition Bureau.

Friday, November 19

The House may meet at 10:00 AM. See, Republican Whip Notice.

9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. The agenda includes receiving a report and recommendations from its broadband working group with regard to digital television and the FCC's DTV outreach campaign, receiving a report and recommendations from its consumer complaints, education and outreach working group, receiving a report and recommendations from its competition policy working group regarding consumer issues in competition policy, and receiving a report and recommendations from its homeland security working group regarding emergency communications. See, FCC notice [PDF] and notice in the Federal Register, October 29, 2004, Vol. 69, No. 209, at Pages 63152 - 63153. Location: FCC, 445 12th St. SW, Room TW-C305 (Commission Meeting Room).

9:30 -11:00 PM. The Progressive Policy Institute (PPI) will host a program titled "The Japanese Broadband Miracle: Are There Lessons for the United States?". The speakers will be Yasu Taniwaki (Economic Counselor and Telecommunications Attaché, Embassy of Japan) and Rob Atkinson (Director of the PPI's Technology and New Economy Project). A light breakfast will be served. RSVP to 202 547-0001 or Location: 600 Pennsylvania Ave., SE, Suite 400.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to advise the DOS on policy and technical issues with respect to the International Telecommunication Union (ITU), and in particular, the December 15-17, 2004 meeting of ITU's Telecommunications Development Advisory Group (TDAG) in Geneva, Switzerland. See, notice in the Federal Register, November 5, 2004, Vol. 69, No. 214, at Page 64620. Location: DOS, Room 2533A.

TIME? Jonathan Zittrain (Harvard Law School) will give a lecture titled "Free Software and the Future of the Internet" as part of the Georgetown Law Colloquium on Intellectual Property & Technology Law. For more information, contact Julie Cohen at 202 662-9871 or, or Jay Thomas at 202 662-9925. Location: Georgetown University Law Center, 600 New Jersey Ave., NW.

Monday, November 22

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Minnesota Christian Broadcasters, Inc v. FCC, No. 03-1439. This case pertains to an auction for a construction permit for a new commercial FM station. Judges Edwards, Sentelle and Garland will preside. See, brief [26 pages in PDF] filed by the FCC on July 27, 2004. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

Deadline to submit reply comments to the Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) in response to Geophysical Survey Systems, Inc.'s (GSSI) request for a waiver of Part 15 of the FCC's rules to permit the higher power operation of ultra-wideband (UWB) non-contact ground penetrating radars (GPRs). See, FCC notice [2 pages in PDF]. This is ET Docket No. 04-374.

Tuesday, November 23

8:30 AM - The National Science Foundation's (NSF) President's Committee on the National Medal of Science will hold a meeting that is closed to the public. See, notice in the Federal Register, November 5, 2004, Vol. 69, No. 214, at Page 64596. Location: Room 1235, NSF, 4201 Wilson Blvd., Arlington, VA.

Thursday, November 25

Thanksgiving Day.

The Federal Communications Commission (FCC) and other federal offices will be closed. See, Office of Personnel Management's (OPM) list of federal holidays.

There will be no issue of the TLJ Daily E-Mail Alert.

People and Appointments

11/16. President Bush announced his intent to nominate Condi Rice, his current National Security Advisor, to be Secretary of State. If confirmed by the Senate, she will replace Colin Powell. President Bush announced his intent to make Steve Hadley his National Security Advisor. See, transcript of White House event.

11/16. The Senate Judiciary Committee held a hearing on the nominations of Thomas Griffith (to be a Judge of the U.S. Court of Appeals for the District of Columbia), Paul Crotty (Southern District of New York), and Michael Seabright (District of Hawaii). Sen. Orrin Hatch (R-UT), the Chairman of the Committee, praised Griffith in his prepared statement. Sen. Patrick Leahy (D-VT), the ranking Democrat, alleged that he practiced law without a license, and should not be confirmed by this Congress. See, statement.

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