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December 21, 2005, 8:00 AM ET, Alert No. 1,277.
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Sensenbrenner and Conyers Introduce Analog Content Protection Bill

12/16. Rep. James Sensenbrenner (R-WI) and Rep. John Conyers (D-MI) introduced HR 4569 [35 pages in PDF], the "The Digital Transition Content Security Act of 2005". This bill would regulate audio and video products and devices in a manner that may have the effect of preventing copyrighted analog format content from being converted into digital format, and then copied and distributed in violation of copyright law.

The bill would require, among other things, that certain video products and devices incorporate Copy Generation Management System for Analog (CGMS-A) and Video Encoded Invisible Light (VEIL) technologies.

Rep. Sensenbrenner is the Chairman of the House Judiciary Committee (HJC). Rep. Conyers is the ranking Democrat on the HJC.

Rep. James SensenbrennerRep. Sensenbrenner (at right) stated in a release [PDF] that "This legislation is designed to secure analog content from theft that has been made easier as a result of the transition to digital technologies. Although many of those who convert analog content into digital form are not engaging in any illegal conduct, there are a good number of criminals who take advantage of existing weaknesses in legislation and technology to obtain copyrighted content and then redistribute for profit at the copyright owner’s expense. This practice is nothing short of theft."

Rep. Conyers stated in the same release that "it is important that we protect the content community from unfettered piracy. One aspect of that fight is making sure that digital media do not lose their content protection simply because of lapses in technology. This bill will help ensure that technology keeps pace with content delivery."

This bill contains several prohibitions in its § 101.

First, it provides in § 101(1), subject to exceptions, that no person shall "manufacture, import, offer to the public, provide or otherwise traffic in any --- (A) analog video input device that converts into digital form an analog video signal that is received in a covered format, or an analog video signal in a covered format that is read from a prerecorded medium, unless any portions of that device that are designed to access, record, or pass the content of the analog video signal within that device --- (i) detect and respond to the rights signaling system with respect to a particular work by conforming the copying and redistributing of that work to the information contained in the rights signaling system for that work in accordance with the compliance rules set forth in section 201 and the robustness rules referred to in section 202; and (ii) pass through or properly reinsert and update the CGMS-A portion of the rights signaling system or coding and data pertaining to CGMS-A, and pass through the VEIL portion of the rights signaling system, in accordance with such compliance rules and robustness rules".

Second, it provides, subject to exceptions, that no person shall "manufacture, import, offer to the public, provide or otherwise traffic in any --- (B) analog video input device that does not convert into digital form an analog video signal that is received by that device in a covered format, or an analog video signal in a covered format that is read from a prerecorded medium, unless that device --- (i) preserves, passes through, or properly reinserts the CGMS-A portion of the rights signaling system or coding and data pertaining to CGMS-A, and passes through the VEIL portion of the rights signaling system, in accordance with the compliance rules set forth in section 201 and the robustness rules referred to in section 202; (ii) outputs the analog video signal in a covered format".

Third, it provides in § 101(2), subject to exceptions, that no person shall "manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that --- (A) is primarily designed or produced for the purpose of modifying or causing an analog video input device to no longer conform to the requirements set forth in paragraph (1); (B) has only limited commercially significant purpose or use other than to modify or cause an analog video input device to no longer conform to the requirements set forth in paragraph (1); or (C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in modifying or causing an analog video input device to no longer conform to the requirements set forth in paragraph (1)."

The bill would exempt from these requirements two classes of products and devices.

First, it would exempt a product or device that "was legally manufactured and sold as new before the effective date of this title and is subsequently offered for sale or otherwise trafficked in, if such product or device has not been modified, after such effective date, so that the product, if in compliance with section 101 before the modification, is configured so that the product or device is no longer in compliance with that section".

Second, it would exempt "a device capable solely of displaying programs and cannot be upgraded or readily modified so as to incorporate transmission, redistribution, or recording capabilities."

The bill then provides in § 103 that "No person shall encode a program, or cause a program to be encoded, using the rights signaling system", unless such encoding meets several requirements. For example, "The rights signaling system may be encoded so as to prevent or limit copying, redistribution, or both, of prerecorded media, video on demand, pay-per-view, subscription-on-demand, and undefined business models that are comparable to any such defined business model."

The bill also requires in § 104 that "Any person making a transmission of a live event or an audiovisual work protected by copyright shall, upon the request of an owner or authorized licensee of the live event or copyrighted work, include in its transmission the rights signaling system for the transmission and shall not, without the authorization of such owner or licensee, deactivate or alter the rights signaling system."

The bill provides both civil and criminal remedies for violations of the requirements contained in § 101 of the bill.

The bill does not identify which Title of the U.S. Code would be amended by the bill. The bill contains no findings of fact, or statement of purposes.

The sponsors of this bill state that their purpose is to protect analog content from digital piracy.

Some critics of the bill, such as the EFF, refer to proposals, such as those contained in this bill, as technology mandates and lockware, and argue that such proposals would enable copyright holders to control use of their content, as well as restrict infringement.

Rep. Sensenbrenner has a record of introducing legislation, not solely for the purpose of enacting it into law, but also for the purpose of prodding interested parties into negotiations. Rep. Sensenbrenner stated that "I urge all interested parties to continue to negotiate to see if a private sector solution can be fully developed to secure analog content from theft. This issue is simply too important for parties to avoid negotiations. Nonetheless, I look forward to working on this legislation next year".

The bill assigns rulemaking authority to the U.S. Patent and Trademark Office (USPTO), in consultation with the Copyright Office (CO). The USPTO has not publicly commented on this. However, the USPTO possesses considerable expertise in patent and trademark matters, but not copyright. Moreover, its expertise in new technologies relates to patenting, not regulating.

The Federal Communications Commission (FCC) previously wrote broadcast flag rules, without an express statutory grant of rulemaking authority from the Congress. The U.S.Court of Appeals (DCCir) overturned these rules. See, May 6, 2005, opinion [34 pages in PDF] in American Library Association v. FCC. The Congress has not since enacted legislation that confers such rulemaking authority, although the Motion Picture Association of America (MPAA) has lobbied for such legislation. See also, story titled "DC Circuit Reverses FCC's Broadcast Flag Rules" in TLJ Daily E-Mail Alert No. 1,113, May 9, 2005.

Were the bill to give rulemaking authority to the FCC, that would give the House Commerce Committee (HCC) a claim to jurisdiction over the bill, and oversight over the rulemaking process. The HCC in recent years has aggressively sought to expand its turf to include intellectual property issues previously handled by the HJC. Hence, by giving rulemaking authority to the USPTO, Rep. Sensenbrenner and Rep. Conyers may seek to avoid HCC involvement. On the other hand, they could have delegated rulemaking authority to the Library of Congress, or to the Department of Justice, both of which have attorneys with expertise in copyright law and new technologies.

OMB Releases Report on E-Government

12/16. The Office of Management and Budget (OMB) released a report [12 pages in PDF] titled "Expanding E-Government: Improved Service Delivery for the American People Using Information Technology". This report provides only limited information. However, it does state that "Our goal is to be the best manager, innovator and user of information, services and information systems in the world."

Clay Johnson, Deputy Director for Management for OMB, stated in a release [PDF] that "The E-government initiative is making the Federal government more efficient and effective, and is improving program results. By setting high goals and working closely with agencies, we are delivering better value for taxpayers".

Rep. Tom Davis (R-VA), Chairman of the House Government Reform Committee, stated in a release that "Prior to the E-Government Act, the federal government moved at an Old Economy speed in realizing the true potential of information technology. Agencies developed E-gov projects in isolation, according to agency jurisdiction rather than integrated cooperatively according to function, and more specifically, the need of the citizen. The passage of the E-Government Act of 2002, which I authored, has helped unleash the information revolution in Washington and bring an analog government into the digital age."

Rep. Davis added that "I'm quite pleased with the federal government's success in implementing E-government initiatives. As we continue to move forward, Congress must ensure that our government is utilizing the latest technologies to improve operational efficiencies and streamline the delivery of services. We've accomplished much these past three years, but we can and should do more, especially in the area of cyber-security. If the government continues to use technology to its advantage, it will prove to be the best vehicle we have for the creation and maintenance of good government."

The OMB also released a memorandum [6 pages in PDF] for the heads of executive departments and agencies regarding "Improving Public Access to and Dissemination of Government Information and Using the Federal Enterprise Architecture Data Reference Model".

Washington Tech Calendar
New items are highlighted in red.
Wednesday, December 21

The House is not scheduled to meet.

The Senate will meet at 9:00 AM. It will resume consideration of the conference report on accompany S 1932, the omnibus deficit reduction bill.

10:30 AM. Secretary of Homeland Security Michael Chertoff and Attorney General Alberto Gonzales will hold a news conference to discuss the USA Patriot Act. The DHS notice states that "Media wishing to attend must present valid press credentials and arrive no later 10:15 a.m.  For more information please contact DHS Public Affairs at 202-282-8010 or DOJ Public Affairs 202-514-2007." Location: Department of Justice, Attorney General's Conference Room (5th Floor), 950 Pennsylvania Avenue, NW.   

12:00 NOON. The Patent Office Professional Association (POPA) will host its annual meeting at 12:00 NOON, and a reception for retiring President Ron Stern at 1:00 PM. Location: Madison Building Auditorium, North 600 Dulany Street, Alexandria, VA.

Friday, December 23

Informal deadline to submit comments to Rep. Lee Terry (R-NE) and/or Rep. Rick Boucher (D-VA) regarding their discussion draft [31 pages in PDF] of a bill to be titled the "Universal Service Reform Act of 2005". See, story titled "Reps. Terry and Boucher Propose New Internet Taxes" in TLJ Daily E-Mail Alert No. 1,257, November 21, 2005.

Sunday, December 25

Christmas.

Hanukkah begins at sundown.

Monday, December 26

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.

Tuesday, December 27

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

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding whether its roaming requirements for commercial mobile radio service (CMRS) providers should be modified, expanded, or eliminated. This NPRM is FCC 05-160 in WT Docket Nos. 05-265 and 00-193. See, notice in the Federal Register, September 28, 2005, Vol. 70, No. 187, at Pages 56612 - 56620.

People and Appointments

12/20. Jeffrey Schmidt was named Director of the Federal Trade Commission's (FTC) Bureau of Competition. He will replace Susan Creighton, who will leave the FTC. Schmidt has been the Deputy Bureau Director since February of 2005. He previously worked for the law firm of Pillsbury Winthrop Shaw Pittman. Creighton went to work at the FTC as Deputy Bureau Director in August of 2001. She was named Director in July of 2003. See, FTC release.

12/20. President Bush released a document titled "Memorandum for the Director of National Intelligence" regarding "Designation of Officers of the Office of the Director of National Intelligence To Act as Director of National Intelligence". It pertains to the order of succession at the Office of the Director of National Intelligence in the event that the DNI (currently John Negroponte) and the Principal Deputy DNI (currently General Michael Hayden) die, resign, or become unable to perform their duties.

12/20. Patrick Ross was named Senior Fellow at the Progress and Freedom Foundation (PFF). He has been the PFF's VP-Communications & External Affairs for over one year. He will retain that title. Before joining the PFF, he worked for Warren Communications News, which publishes Communications Daily and Washington Internet Daily. Ross writes about technology related issues. See, for example, December paper titled "Content Regulation Without Frontiers: Why the EU is Indeed Regulating the Internet"; November 16 paper titled "Video Satellite Regulation in an On-Demand World"; and October 6 opinion piece in CNET titled "Here's a surefire way to stifle innovation".

12/19. Laurie Knight will join the National Association of Broadcasters (NAB) as SVP of Government Relations. She was previously Director of Government Affairs at the National Beer Wholesalers Association. See, NAB release.

More News

12/20. The Department of Justice (DOJ) issued a release that asserts the conference report on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005", contains "more than 30 new significant civil liberties safeguards". The House, but not the Senate, has approved this conference report. See, text of conference report [PDF].

12/19. Michael Gallagher, head of the National Telecommunications and Information Administration (NTIA), gave a speech in Washington DC titled "The United States and Europe: Engines for World Growth". See, presentation slides [10 pages in PDF].

12/16. The Federal Communications Commission (FCC) adopted and released an Order Extending Effective Date [3 pages in PDF] in its proceeding titled "In the Matter of Children's Television Obligations Of Digital Television Broadcasters". The order extends the effective date of the requirements imposed by the FCC's September 9, 2004, order regarding the obligation of television licensees to provide educational programming for children and the requirement that television licensees protect children from excessive and inappropriate commercial messages. The FCC adopted that Report and Order and Further Notice of Proposed Rulemaking at its September 9, 2004 meeting. It released the text on November 23, 2004. That item is FCC 04-221 in MM Docket 00-167. See also, story titled "FCC Adopts Report and Order Re Children's Programming Obligations of DTV Broadcasters" in TLJ Daily E-Mail Alert No. 975, September 13, 2004. There are pending petitions for reconsideration. The just released order extends the September 9, 2004, order's effective date until 60 days after publication in the Federal Register of the FCC's order on reconsideration. This just released order is FCC 05-211 in MM Docket No. 00-167.

12/16. President Bush released a document titled "Memorandum for the Heads of Executive Departments and Agencies" regarding "Guidelines and Requirements in Support of the Information Sharing Environment". President Bush also released a shorter document titled "Message to the Congress of the United States on Information Sharing".

12/16. The Office of Management and Budget (OMB) released a memorandum [45 pages in PDF] for the heads of executive departments and agencies regarding "Final Information Quality Bulletin for Peer Review". It states that it "establishes government-wide guidance aimed at enhancing the practice of peer review of government science documents".

12/12. The U.S. District Court (DNJ) entered final judgments against John Bratten and Charles Elliott in the civil action, SEC v. Lucent Technologies Inc., et al. Bratten and Elliott are employees of Lucent Technologies. The Securities and Exchange Commission (SEC) states that Bratten and Elliott committed securities fraud in violation of Section 10b of the Securities Exchange Act of 1934, and Rule 10b5 thereunder, and other violations, in connection with violation of GAAP by improperly recording revenue and operating income. See, SEC release. This case is D.C. No. 04-2315 (WFW) (MF).

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