|Senate May Consider Intellectual Property Bill
11/18. Numerous intellectual property bills and proposals are being considered
by the Congress. Most pertain to copyright, but some address patent, trademark
and other topics. Some bills have already been approved by one or both bodies. Last
month the Senate Judiciary Committee approved an omnibus bill that incorporates
numerous stand alone bills. Another omnibus bill, that overlaps the previous
one, is being circulated among Senate offices.
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", or IPPA. See,
text of bill
[44 pages in PDF], and
bill, in HTML, with hyperlinked table of contents, and U.S. Code hyperlinks.
titled "Senate Judiciary Committee Approves Large Collection of Copyright Bills"
in TLJ Daily E-Mail
Alert No. 994, October 11, 2004.
The IPPA is numbered HR 2391. However, HR 2391 EH, which has been approved
by the House, is a patent bill. The Senate Judiciary Committee made the content
of HR 2391 EH a part of the IPPA.
The current draft, which has not been introduced, states that it would be sponsored by
Sen. Orrin Hatch (R-UT), the Chairman of
the Senate Judiciary Committee. The original cosponsors
would be Sen. Patrick Leahy (D-VT),
Sen. John Cornyn (R-TX), and
Sen. Joe Biden (D-DE).
Title I: ART Act. This title of the current draft is titled the
"Artists' Rights and Theft Prevention Act of 2003", or ART Act. It is a revised
version of S 1932,
which the full Senate approved as a stand alone bill on June 25, 2004.
This title includes, among other provisions,
criminalization of certain unauthorized recording of motion pictures in a motion
picture exhibition facility. §
208 of the IPPA, and § 108 of
the "Piracy Deterrence and Education Act of 2004", which the House approved on
September 28, 2004, contain similar language. It 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.
Title II: ClearPlay Bill. This title of the current draft contains a
much revised version of the "Family Movie Act", which is also known as
the ClearPlay bill.
§ 212 of the IPPA (§ 112 of HR 4007 EH) contains another
version of the "Family Movie Act". This provision, which is included with
the ClearPlay technology in mind, adds a new ¶ 11 to
17 U.S.C. § 110 (which provides exceptions to the exclusive rights of
The current draft contains a content skipping exception. The exact wording is
as follows: "the
making imperceptible, by or at the direction of a member of a private household,
of limited portions of audio or video content of a motion picture during a
performance in or transmitted to that household for private home viewing, from
an authorized copy of the motion picture, or the creation or provision of a
computer program or other technology that enables such making imperceptible and
that is designed and marketed for such use at the direction of a member of a
private household, if no fixed copy of the altered version of the motion picture
is created by such computer program or other technology".
current draft does not include the IPPA's language regarding ad skipping. That
is, the IPPA provided that the new exception applies only if "no
changes, deletions or additions are made by such computer program or other
technology to commercial advertisements, or to network or station promotional
announcements, that would otherwise be performed or displayed before, during or
after the performance of the motion picture".
Title III. This title includes the "National Film Preservation
Act of 2004" and the "National Film Preservation Foundation Reauthorization
Act of 2004". Both of these are in the IPPA.
Title IV. This title includes the "Preservation
of Orphan Works Act". This too is in the IPPA.
Title V. This title includes the "Anticounterfeiting
Act of 2004" and "Fraudulent Online Identity Sanctions Act".
Title VI: CREATE Act. This title is the "Cooperative Research
and Technology Enhancement (CREATE) Act of 2004". This is HR 2391, which has
been approved by the House, and
which has been approved by the Senate. The language of these bills is also in
Provisions Not In the Current Draft. Notably, two of the titles of the IPPA
are not in the current draft. The current draft does not include
Title III of the IPPA, which is the "Protecting Intellectual Rights Against
Theft and Expropriation Act of 2004", or PIRATE Act.
The PIRATE Act would authorize the Department of
Justice (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. This is
of the IPPA. This provision would not make any conduct illegal that is not
already illegal. Nevertheless, some of the groups that oppose effective
protection of copyrights adamantly oppose this provision.
Nor does the current draft include
Title VI of the IPPA, which is the "Enhancing Federal Obscenity
Reporting and Copyright Enforcement Act of 2004", also known as the EnFORCE Act.
This is S 1933.
Also, there are many other intellectual property bills that that are not in
the current draft, the IPPA, or HR 4077 EH.
None of these bills includes S 2560, the "Inducing Infringement of Copyrights
Act of 2004", a bill that responds to the opinions of the U.S. District Court
and the U.S. Court of Appeals (9thCir) in MGM v. Grokster. It would
create a new cause of action for "intentional inducement of infringement".
the "Digital Media Consumers' Rights Act of 2003".
HR 3261, the "Database and Collections of Information Misappropriation Act",
or HR 3872,
the "Consumer Access to Information Act of 2004",
bills related to databases
And, none include
the "United States Patent and Trademark Fee Modernization Act of 2004". The
House passed this bill on March 3, 2004 by a vote of 379-28. See,
Roll Call No. 38. See
tiled "House Passes USPTO Fee Bill" in
TLJ Daily E-Mail
Alert No. 849, March 4, 2004. HR 1561 contains increases in user fees that
implement the U.S. Patent and Trademark Office's
(USPTO) 21st Century
Strategic Plan. It also provides for U.S. outsourcing of patent searches,
and an end to the diversion of user fees to subsidize other government programs.
|Congress Considers Video Voyeurism
11/17. The Senate agreed to a House request to return
S 1301, the
"Video Voyeurism Prevention Act of 2003", The House approved its version of the
bill on September 21, 2004. The Senate approved a different version on September
Sen. George Allen (R-VA) stated in the
Senate on November 17, "I ask unanimous consent that the Senate agree to the
request of the House regarding the papers relating to S. 1301". There being no
objection, it was so ordered. There was no discussion or debate. See,
Congressional Record, November 17, 2004, at Page S11398.
On October 8, 2004 the House approved
which provides that "the Clerk of the House of Representatives request the
Senate to return to the House the bill (S. 1301) entitled `An Act to amend title
18, United States Code, to prohibit video voyeurism in the special maritime and
territorial jurisdiction of the United States, and for other purposes.´"
The House approved
S 1301, the
"Video Voyeurism Prevention Act of 2003", by voice vote, on September 21, 2004.
It criminalizes conduct such as surreptitious use of small digital cameras to
capture and publish via the internet privacy invasive images and video. See,
story titled "House Approves Video Voyeurism Prevention Act" in
TLJ Daily E-Mail
Alert No. 981, September 22, 2004.
This bill, if enacted into law, would have limited impact. It only applies in
"the special maritime and territorial jurisdiction of the United States". That
is, it only applies on federal property, and within federal jurisdiction.
However, many states already have enacted similar or related laws. This bill may
provide model language for states to follow.
|People and Appointments
11/18. Sen. Orrin Hatch (R-UT),
the outgoing Chairman of the Senate
Judiciary Committee, announced in a
release that on January 4, 2005, the Republican members of the Committee
intend to vote for Sen. Arlen Specter
(R-PA) to be Chairman of the Committee. See also,
statement by Sen. Specter.
Senate Commerce Committee held a hearing on several pending nominations,
including that of
Jonathan Adelstein to be a Commissioner of the
Federal Communications Commission (FCC). He
stated in his
prepared testimony [2 pages in PDF] that he will "put the communications
needs of our public safety and national security communities at the forefront".
He also said that he will "preserve and advance" universal services programs.
He said that "It is vital that these programs remain on solid footing. Increasingly,
voice, video, and data will flow to homes and businesses over broadband platforms. In
this new world, we must promote a comprehensive rollout to all Americans". He also
said that the "airwaves belong to the American people", and quoted from
Red Lion v. FCC, 395 U.S. 367 (1969).
11/18. The Board of Directors of Sirius
Satellite Radio named Mel Karmazin to be the new Chief Executive
Officer (CEO). He will replace
Joseph Clayton, who will remain as Chairman of the Board of Directors.
Until recently, Karmizin was P/CEO of Viacom. Clayton stated in a
release that "I am very confident that Mel will accelerate the very positive
momentum that we have established at SIRIUS in the past two years. Our recent
announcement of the signing of Howard Stern, our exclusive relationship with the
National Football League and the partnerships with automakers such as
DaimlerChrysler, Ford and BMW are all indications that satellite radio has a
central role in the future of broadcast media. We fully expect to achieve the
subscriber projections we have given to Wall Street for this year."
|Washington Tech Calendar
New items are highlighted in red.
|Friday, November 19
The House may meet at 10:00 AM. See,
Republican Whip Notice.
On November 18, when the House recessed at 11:15 AM, the Speaker announced that
the next meeting is subject to the call of the Chair.
The Senate will meet at 9:30 AM for morning business. It will
then take up
HR 1047, the "Miscellaneous Trade and Technical Corrections
Act of 2004".
9:00 AM - 4:00 PM. The
Federal Communications Commission's (FCC) Consumer
Advisory Committee will meet. The
[5 pages in PDF] includes presentations titled "Accessibility in Broadband
Content", "Wireless Solutions for People Who Are Blind or Visually Impaired",
"Navigating and Linking to the FCC Website", "Report & Recommendations of the
Competition Policy Working Group", "Report of Consumer Complaints, Outreach,
Education and Participation Working Group", "Report & Recommendations of
Homeland Security Working Group", and "Report & Recommendations of BroadBand
DTV Working Group". See also,
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).
9:00 AM. Day two of a two day conference hosted by the
American Bar Association's (ABA) Section of Antitrust Law titled "Fall
Forum". At 9:15 - 9:45 AM, Thomas Barnett (Deputy Assistant Attorney General,
Antitrust Division) will give a speech. At 9:45 - 11:00 AM, there will be a panel on
non-merger matters; the speakers will include Susan Creighton (Director of the FTC's
Bureau of Competition), Bruce McDonald (Deputy Assistant Attorney General, Antitrust
Division), and others. See,
event web site.
Location. National Press Club, 529 14th St. NW,
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 PPIEvents@dlcppi.org. 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.
Zittrain (Harvard Law School) will give a lecture titled "Free Software and
the Future of the Internet" as part of the
Colloquium on Intellectual Property & Technology Law. For more information,
contact Julie Cohen at 202 662-9871 or
firstname.lastname@example.org, 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.
|Friday, November 26
There will be no issue of the TLJ Daily E-Mail Alert.
|Monday, November 29
Court will return from the recess that it began on Monday, November 25, 2004. See,
List [14 pages in PDF] at page 14.
6:00 - 9:15 PM. The DC Bar Association
will host a continuing legal education (CLE) program titled "How to Litigate
an Intellectual Property Case Series, Part 3: How to Litigate a Patent Case".
The speaker will be Patrick Coyne (Finnegan Henderson). See,
Prices vary from $70 to $115. For more information, call 202 626-3488. Location: D.C.
Bar Conference Center, B-1 Level, 1250 H St., NW.
Deadline to submit reply comments to the
Federal Communications Commission (FCC) in response to its notice of proposed
rulemaking (NPRM) regarding the Emergency Alert System (EAS). The FCC adopted this NPRM
at its August 4, 2004 meeting, and released it on August 12, 2004. This NPRM is FCC
04-189 in EB Docket No. 04-296. See,
notice in the Federal Register, August 30, 2004, Vol. 69, No. 167, at
Pages 52843 - 52847.
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