2/15. The Library of Congress (LOC) published a notice in the Federal Register announcing that its Section 108 Study Group will hold two public round table meetings, in Washington DC and Los Angeles, California. The LOC notice further requests public comments regarding possible changes to Section 108 of the Copyright Act to address copying in digital media.

The notice does not mention Google by name, or any lawsuits for copyright infringement currently pending against Google. However, while the Section 108 Study Group is examining several issue areas, one of these relates to the Google Print for Libraries (GPL) program.

See, Federal Register, February 15, 2006, Vol. 71, No. 31, at Pages 7999-8002.

Background on Section 108. 17 U.S.C. § 108, titled "Limitations on exclusive rights: Reproduction by libraries and archives", provides exemptions from liability for infringement for libraries and archives. Section 108 applies to "libraries and archives" and employees acting within the scope of their employment. Neither Section 108, nor Section 101, the definitional section of the Copyright Act, define either "library" or "archive".

The Section 108 Study Group adopted a Mission Statement in May of 2005 that states that its purpose "is to conduct a reexamination of the exceptions and limitations applicable to libraries and archives under the Copyright Act, specifically in light of the changes wrought by digital media. The group will study how Section 108 of the Copyright Act may need to be amended to address the relevant issues and concerns of libraries and archives, as well as creators and other copyright holders. The group will provide findings and recommendations on how to revise the copyright law in order to ensure an appropriate balance among the interests of creators and other copyright holders, libraries and archives in a manner that best serves the national interest. The findings and recommendations will be submitted by mid-2006 to the Librarian of Congress." See, LOC release.

The LOC published in its web site a paper [32 pages in MS Word] titled "Overview of the Libraries and Archives Exception in the Copyright Act: Background, History, and Meaning". It is dated April 14, 2005.

Its authors are Mary Rasenberger (Policy Advisor for Special Programs in the Office of Policy and International Affairs of the Copyright Office and Office of Strategic Initiatives, LOC) and Chris Weston (Attorney-Advisor, Copyright Office and Office of Strategic Initiatives, LOC). Rasenberger and Weston are also identified on the LOC's notice in the Federal Register.

The paper contains a long and detailed history, and then concludes that "the provisions of section 108 were the product of extensive negotiations among the various interests, all prior to the full advent of digital media as we know it today".

The use of the word "full" in this sentence should not be overlooked. The Congress has addressed exemptions for libraries in the context of digital media.

Section 108 was amended by the Digital Millennium Copyright Act (DMCA). The debates leading up to enactment of the DMCA focused on digital copyright issues. Section 108 now includes three exemptions that apply to digital reproduction of copyrighted works. For example, subsection 108(b)(2) gives libraries permission to make digital reproductions for preservation purposes.

Also, the Library of Congress, as instructed by the DMCA, issued a report on updating the distance education exemption in the context of internet and digital media. This exemption is codified at 17 U.S.C. § 110(2). The LOC report recommended that the Congress pass legislation, which the Congress ultimately did. This was S 487 (107th Congress), the "Technology, Education, and Copyright Harmonization Act of 2001" (TEACH Act). It was enacted as a part of HR 2215 (107th Congress). It is now a part of Public Law No. 107-273. However, in the process, the Congress rejected efforts by the library lobby to expand Section 110(2) to include libraries.

There are provisions in the Copyright Act, and in the LOC's implementing regulations, that fail to provide any guidance for how those provisions apply to digital and internet based copying. But, Section 108 is not one of them. In is current form, it was written after the advent of digital media. However, it was written before the "full advent" of digital media, to the extent that it does not address certain manners of digital copying, such as Google's book scanning and search program.

Background on Google's Digital Copying. Google began as a company that provides web search. It now has a Google Print for Libraries (GPL) program that involves the scanning of books in the collections of five large libraries: University of Michigan (UM), Oxford, New York Public Library (NYPL), Harvard and Stanford.

The UM has stated that it will make available for scanning all books, including those under copyright. UM wrote in its web site that "We get a copy of the digital files with no significant constraints on our ability to use them in ways that are consistent with copyright law." Oxford and the NYPL have stated that they will allow Google to scan only those works that are in the public domain.

On October 19, 2005, five book publishing companies filed a complaint [35 pages in PDF] in U.S. District Court (SDNY) against Google alleging that its GPL infringes copyrights. The plaintiffs are McGraw Hill, Pearson Education, Penguin, Simon & Schuster, and John Wiley & Sons. All are members of the Association of American Publishers (AAP).

See also, story titled "Major Book Publishers Sue Google for Digitizing Copyrighted Books" in TLJ Daily E-Mail Alert No. 1,237, October 20, 2005. This case is McGraw Hill Companies, Inc., Pearson Education, Inc., Penguin Group (USA) Inc., Simon & Schuster, Inc. and John Wiley & Sons, Inc. v. Google Inc., U.S. District Court for the Southern District of New York, D.C. No. 05-CV-8881.

On September 20, 2005, the Author's Guild and others filed a similar complaint in the same District Court against Google alleging copyright infringement in connection with the same GPL. The plaintiffs in that action seek class action status. See, stories titled "Author's Guild Sues Google for Copyright Infringement" in TLJ Daily E-Mail Alert No. 1,218, September 21, 2005, and "University Publishers Accuse Google of Systematic Infringement of Copyright on a Massive Scale" in TLJ Daily E-Mail Alert No. 1,142, May 25, 2005.

Neither the UM, nor the other libraries, are named as defendants.

See also, story titled "Google, Publishers and Authors Debate Google's Print for Libraries Program" in TLJ Daily E-Mail Alert No. 1,239, October 25, 2005.

LOC Seeks Comments on Google Type Programs. The LOC notice asks for comments on questions regarding whether the library partners of Google should qualify for Section 108 immunity, and whether Google itself should qualify.

For example, the LOC notice asks, "Should non-physical or ``virtual´´ libraries or archives be included within the ambit of section 108?"

The library partners of Google are not providing the digitization and organization of their works. They are outsourcing this to Google. Although, they will receive digital copies. Hence, the LOC notice asks, "How can the issue of outsourcing be addressed? Should libraries and archives be permitted to contract out any or all of the activities permitted under section 108? If so, under what conditions?"

The notice also asks, "Should further definition of the terms ``libraries´´ and ``archives´´ (or other types of institutions) be included in section 108, or additional criteria for eligibility be added to subsection 108(a)?" It also asks "Are there other types of institutions that should be considered for inclusion in section 108?"

It also asks, "Should eligible institutions be limited to nonprofit and government entities for some or all of the provisions of section 108?"

Web Site Copying. Another issue addressed by the LOC notice is copying of entire web sites, and software associated with the operation of the web site, without authorization of the copyright holder.

The notice asks, "should a special exception be created to permit the online capture and preservation by libraries and archives of certain website or other online content?"

It also asks "If libraries and archives are permitted to capture online content, should there be any restrictions on public access?"

Finally, it asks, "Should there be an opt-out provision, whereby an objecting site owner or rights-holder could request that a particular site not be included?" The notice does not inquire about opt-in programs.

Dates and Deadlines. On March 8, 2006, from 8:30 AM - 4:00 PM PST, the LOC's Section 108 Study Group will hold the first of two round table meetings at the UCLA School of Law, Room 1314, Los Angeles, California.

On March 16, 2006, from 9:00 AM - 4:30 PM, the LOC's Section 108 Study Group will hold the second of two round table meetings in Room 2237 of the Rayburn Building on Capitol Hill.

Public comments are due by 5:00 PM on April 17. The LOC also asks that comments not be submitted until March 17. That is, it does not want to receive written comments before the two round table meetings.

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The House will not meet. See, Republican Whip Notice.

The Senate will return from its Presidents' Day recess at 2:00 PM. At 3:00 PM it will resume consideration of consider S 2271, the "USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006".

POSTPONED. 12:30 PM. New York Governor George Pataki will give a speech. See, notice. Location: Ballroom, National Press Club, 529 14th St. NW, 13th floor.

2:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee will meet to prepare for meetings of the Organization for Economic Co-operation and Development (OECD) Committee for Information, Computer & Communications Policy (ICCP). See, notice in the Federal Register, February 15, 2006, Vol. 71, No. 31, at Page 8041. Location: Verizon Communications, 1300 Eye St., NW.

The House will return from its President's Day District Work Period. It will meet at 2:00 PM for legislative business. It will consider several non-technology related items under suspension of the rules. Votes will be postponed until 6:30 PM. See, Republican Whip Notice.

8:30 AM - 4:45 PM. Day one of a two day conference hosted by the National Telecommunications and Information Administration (NTIA) titled "Improving Spectrum Management through Economic or Other Incentives". See, notice. Deputy Secretary of Commerce Anthony Sampson will give opening remarks. Location: National Academy of Sciences, Lecture Room, 2101 Constitution Ave., NW. The entrance at 2100 C St.

9:30 - 11:30 AM. The American Enterprise Institute (AEI) will host a panel discussion titled "Former SEC Division Directors Give Their Views on Regulatory Reform". The speakers will be Barry Barbash, Kathryn McGrath, Paul Roye, and Marianne Smythe. See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

9:30 AM. The Senate Judiciary Committee (SJC) will hold another hearing to examine the legal authority of the President and the National Security Agency (NSA) to conduct extra-judicial surveillance. This hearing is titled "Wartime Executive Power and the NSA’s Surveillance Authority II". The scheduled witnesses include James Woolsey (VP of the Global Strategic Security Division at Booz Allen Hamilton), Harold Hongju Koh (Dean of the Yale Law School), Ken Gormley (Duquesne University School of Law), Doug Kmiec (Pepperdine University School of Law), Bruce Fein (Fein & Fein), Robert Turner (University of Virginia law school), Robert Levy (CATO Institute). Press contact: Blain Rethmeier (Specter) at 202 224-5225 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "USF Contributions". The witnesses will be Glenn Post (CEO of Century/Tel), Tom Simmons (Midcontinent Communications), Trent Boaldin (Epic Touch Co.), Bonnie Cramer (AARP Board of Directors), Paul Garnett (CTIA). See, notice. Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. The hearing will be webcast by the SCC. Location: Room 562, Dirksen Building.

12:00 NOON - 1:15 PM. The DC Bar Association will host a panel discussion titled "Patent Law Update: Impact Of Recent Federal Circuit Decisions On Crafting Patent Applications". The speaker will be Dale Lazar (DLA Piper Rudnick Gray Cary). The price to attend ranges from $10-$30. For more information, call 202 626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

1:00 - 6:30 PM. The Federal Communications Bar Association's (FCBA) will host a continuing legal education (CLE) seminar titled "Communications Law 101". Location: Wiley Rein & Fielding, 1776 K St., NW.

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing titled "USF Distribution". The witnesses will be Jeff Mao (Maine Department of Education), Shirley Bloomfield (National Telecommunications Cooperative Association), Carson Hughes (Cellular South), Tony Clark (North Dakota Public Service Commission, and Chairman of NARUC's Telecommunications Committee Department), and Ben Scott (Free Press). See, notice. Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. The hearing will be webcast by the SCC. Location: Room 562, Dirksen Building.

5:00 PM. Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division regarding its Draft Special Publication 800-73-1, titled "Interfaces for Personal Identity Verification". See also, summary [3 pages in PDF] titled "Proposed Changes to SP 800-73".

6:30 - 8:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Happy Hour".  For more information, contact Jason Friedrich at jason dot friedrich at dbr dot com or Natalie Roisman at natalie dot roisman at fcc dot gov. Location: Restaurant Kolumbia, 1801 K Street, NW.

The House will meet at 10:00 AM for legislative business. It may consider S 2271, the "USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006". See, Republican Whip Notice.

8:30 AM - 5:00 PM. Day two of a two day conference hosted by the National Telecommunications and Information Administration (NTIA) titled "Improving Spectrum Management through Economic or Other Incentives". See, notice. Location: National Academy of Sciences, Lecture Room, 2101 Constitution Ave., NW. The entrance at 2100 C St.

8:30 AM - 1:00 PM. The Information Technology Association of America (ITAA) will host an event titled "Enterprise VoIP: From Communication to Collaboration". For more information, contact Eerik Kreek at ekreek at itaa dot org. See, notice. Location: Ritz Carlton Pentagon City, Arlington, VA.

9:30 AM. The Senate Judiciary Committee (SJC) may hold a hearing on judicial nominations. The SJC frequently cancels or postpones hearings without notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

10:00 AM. The House Judiciary Committee (HJC) will meet to mark up numerous items, including HR 4709, the "Law Enforcement and Phone Privacy Protection Act of 2006" and HR 2955, the "Intellectual Property Jurisdiction Clarification Act of 2005". The meeting will be webcast by the HJC. Press contact: Terry Shawn at 202 225.2492. Location: Room 2141, Rayburn Building.

10:30 AM. The Senate Appropriations Committee's Subcommittee on the Legislative Branch will hold a hearing on the FY 2007 budget for the Library of Congress (LOC), Government Accountability Office (GAO), and other entities. Location: Room 138, Dirksen Building.

2:00 PM. The House Homeland Security Committee's (HHSC) Subcommittee on Emergency Preparedness, Science, and Technology will hold a hearing titled "The State of Interoperable Communications: Perspectives from State and Local Governments". Location: Room 311, Cannon Building.

2:00 PM. The House Appropriations Committee's Subcommittee on Science, the Departments of State, Justice, and Commerce, and Related Agencies will hold a hearing on the FY 2007 budget for the Federal Communications Commission (FCC). Location: Room H-309, Capitol Building.

RESCHEDULED FROM FEBRUARY 14. 6:30 PM. The House Armed Services Committee will meet to mark up HRes 645, which requests the Bush administration "to transmit to the House of Representatives all information in the possession of the President or the Secretary of Defense relating to the collection of intelligence information pertaining to persons inside the United States without obtaining court-ordered warrants authorizing the collection of such information and relating to the policy of the United States with respect to the gathering of counterterrorism intelligence within the United States". Location: Room 2118, Rayburn Building.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the notice of proposed rulemaking (NPRM) portion of its Report and Order (R&O) and NPRM of August 5, 2005 regarding regulation of information services. The R&O classified wireline broadband internet access services as information services. The NPRM proposes to impose new regulatory burdens on information services. This item is FCC 05-150 in WC Docket No. 05-271, CC Docket No. 02-33, CC Docket No. 01-337, CC Docket Nos. 95-20 and 98-10, and WC Docket No. 04-242. See, story titled "FCC Classifies DSL as Information Service" in TLJ Daily E-Mail Alert No. 1,190, August 8, 2005. The FCC released the text [133 pages in PDF] of this item on September 23, 2005. See, notice in the Federal Register, October 17, 2005, Vol. 70, No. 199, at Pages 60259 - 60271.

The House will meet at 10:00 AM for legislative business. It may consider S 2271, the "USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006". See, Republican Whip Notice.

9:30 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The SJC frequently cancels or postpones meetings without notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

10:00 AM. The House Appropriations Committee's Subcommittee on Science, the Departments of State, Justice, and Commerce, and Related Agencies will hold a hearing on the FY 2007 budget for the National Science Foundation (NSF). Location: Room H-309, Capitol Building.

10:00 AM. The House Appropriations Committee's Subcommittee on Labor, Health and Human Services, Education, and Related Agencies will hold a hearing on the FY 2007 budget for President Bush's American Competitiveness Agenda. Location: Room 2358, Rayburn Building.

MOVED TO MARCH 14. 10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Wireless Issues / Spectrum Reform". See, notice. Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. The hearing will be webcast by the SCC. Location: Room 562, Dirksen Building.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Voice over Internet Protocol". See, notice. Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. The hearing will be webcast by the SCC. Location: Room 562, Dirksen Building.

10:00 AM. The Senate Banking Committee will hold a hearing on the implementation of the Exon-Florio Amendment and the Committee on Foreign Investment in the U.S. (CFIUS) for protectionist and political purposes. This hearing will focus on the acquisition of by Dubai Ports World of P&O. See, notice. Location: Room 538, Dirksen Building.

12:00 NOON. The Parents Television Council (PTC) will host a news conference regarding a PTC report on children's television. For more information, contact Kelly Oliver at 703 683-5004 koliver at crc4pr dot com. Location: Murrow Room, National Press Club, 529 14th St. NW, 13th Floor.

The Republican Whip Notice states that "no votes expected in the House".

9:00 AM. There will be an event titled "eBay Media Roundtable". For more information, contact Jean Shim at 202 295-4114 or jshim at foley dot com. Location: National Press Club, 529 14th St. NW, 13th Floor.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Wireless Committee will host a lunch. The topic will be "Consumer Litigation in the Wireless Industry". The speakers will be Laura Buckland (T-Mobile USA), Sue Haller (Sprint), and Michael Altschul (CTIA). The price to attend is $15. Registrations and cancellations are due by 12:00 NOON on February 28. See, registration form [PDF]. Location: Sidley Austin, 1500 K Street, 6th Floor.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Ethics and the Internet". The speaker will be J.T. Westermeier (DLA Piper Rudnick Gray Cary). The topics to be covered include web based advertising, unauthorized practice of law, formation of attorney client relationships, attorney client confidentiality, online referral services and directories, online bids for legal services, and class action communications. The price to attend ranges from $70-$125. For more information, call 202 626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.