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March 23, 2011, Alert No. 2,207.
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Orphan Works and the Court's Rejection of the Google Book Deal

3/23. On March 22, 2011, the U.S. District Court (SDNY) denied the motion to approve the class action settlement in the Google Books litigation. See, opinion [48 pages in PDF] and story titled "District Court Rejects Google Books Class Action Settlement" in TLJ Daily E-Mail Alert No. 2,206, March 22, 2011.

The District Court denied the motion without prejudice, and urged the parties to revise the proposed settlement and seek court approval of that.

Another alternative, particularly on the orphan works issues, would be for the Congress to legislate.

The proposed settlement would not only settle the controversy between the parties to the lawsuits: it would also determine rights of non-parties, and in effect substitute a court settlement for policy making by the Congress. To the extent that the parties are attempting to impose a private deal as a universally applicable legal regime, legislative action would be the more appropriate avenue.

One of the objections to the proposed settlement agreement pertained to orphan works. The District Court wrote that "The questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties." (See, opinion at page 23.)

The District Court continued that the settlement "would grant Google control over the digital commercialization of millions of books, including orphan books and other unclaimed works. And it would do so even though Google engaged in wholesale, blatant copying, without first obtaining copyright permissions. While its competitors went through the ``painstaking创 and ``costly创 process of obtaining permissions before scanning copyrighted books, ``Google by comparison took a shortcut by copying anything and everything regardless of copyright status.创 ... As one objector put it: ``Google pursued its copyright project in calculated disregard of authors' rights. Its business plan was: 'So, sue me.'创" (See, opinion at pages 26-27. Footnotes and citations to Professor Pamela Samuelson, Microsoft, and others omitted.)

John Bergmayer, a staff attorney at the Public Knowledge (PK), wrote in an untitled piece for the PK web site that "It's great the the Judge recognized that Google and the Authors Guild (and the rest of the plaintiffs) were trying to use his court to set public policy, rather than to settle a dispute between parties." (Parentheses in original.)

"Hundreds of authors, academics, librarians, companies, and even foreign governments filed objections to the settlement," wrote Bergmayer, that "if approved, would give Google monopoly control of orphan works. The public deserves access to these works, but it should come through a change to the law, rather than a private agreement that locks in just one supplier."

"There were a lot of problems with the deal. It purported to settle the claims any authors might have against Google --even ones who didn't sue Google, or belong to any groups who did. The effect of this was that the agreement essentially rewrote copyright law for Google and Google only. It would give Google the right to sell copies books it didn抰 have the rights to -- ``orphan works创 that are still under copyright, but where the copyright owner can抰 be found."

Bergmayer concluded, "As for orphan works, Congress needs to act. The law needs to be fixed to allow orphan works to be used in reasonable ways while respecting that they抮e still under copyright."

Similarly, Ryan Radia of the Competitive Enterprise Institute (CEI) stated in a release that the District Court's order "should serve as a wake-up call that orphan works legislation should also be a top priority for lawmakers".

Radia continued that "millions of expressive works cannot be enjoyed by the general public because their copyright owners cannot be found. This amounts to a massive black hole in copyright, severely undermining the public interest."

Actually, Representatives worked diligently in the 109th and 110th Congresses to pass orphan works legislation. And, many interest groups, including the PK, advocated passage of such legislation.

However, the bills were overbroad. These bills not only would have addressed copying of old, out of print, and abandoned works. These bills would also have had the effect of substantially removing the enforceability of copyrights, particularly in certain visual works, that are recently created, commercially valuable, and the licensing of which is relied upon by the creators for their livelihood.

That is, orphan works legislation to date has not only addressed enabling the use of old and unclaimed works: it has also proposed to undermine copyright protection, and incentives for creation, of certain new and claimed works.

The introduction of legislation followed the Copyright Office's (CO) release of its report [133 pages in PDF] titled "Report on Orphan Works" in January of 2006. See, story titled "Copyright Office Recommends Orphan Works Legislation" in TLJ Daily E-Mail Alert No. 1,302, February 2, 2006. The primary author of the report, Jule Sigall, subsequently went to work for Microsoft. See, story titled "Jule Sigall Joins Microsoft" in TLJ Daily E-Mail Alert No. 1,510, December 27, 2006. Maria Pallante, then employed by the Guggenheim Museum, and now the acting Register of Copyright, also advocated passage of orphan works legislation.

For the 109th Congress, see HR 5439, the "Orphan Works Act of 2006". Another version of it was made a part of HR 6052, the "Copyright Modernization Act of 2006". However, neither bill became law. See also, stories titled "House CIIP Subcommittee Holds Hearing on Orphan Works" in TLJ Daily E-Mail Alert No. 1,326, March 9, 2006, "Rep. Smith Introduces Orphan Works Act of 2006" in TLJ Daily E-Mail Alert No. 1,377, May 24, 2006, and "House CIIP Subcommittee Approves Orphan Works Act of 2006" in TLJ Daily E-Mail Alert No. 1,378, May 25, 2006.

For the 110th Congress, see HR 5889 [LOC | WW], the "Orphan Works Act of 2008", and S 2913 [LOC | WW], the "Shawn Bentley Orphan Works Act Of 2008". Neither bill became law. See also, story titled "House IP Subcommittee Approves Orphan Works Bill" in TLJ Daily E-Mail Alert No. 1,762, May 7, 2008, "Senate Judiciary Committee Amends and Approves Orphan Works Bill" in TLJ Daily E-Mail Alert No. 1,767, May 15, 2008, and "Orphan Works Bills Discussed" in TLJ Daily E-Mail Alert No. 1,798, July 23, 2008.

Senate Judiciary Committee Continues to Consider Cameras and Mics in Courtrooms

3/17. The Senate Judiciary Committee (SJC) held an executive business meeting on March 17, 2011, at which it held over S 410 [LOC | WW], the "Sunshine in the Courtroom Act". This bill is again on the agenda for the meeting of March 31.

Sen. Charles Grassley (R-IA) and others introduced this bill on February 17. They have endeavored unsuccessfully for years to pass legislation that would enable trial and appellate court judges to allow cameras and microphones, and broadcasters and webcasters, into their courtrooms.

There were similar bills in the 111th Congress. See, S 657 [LOC | WW] and HR 3054 [LOC | WW], both titled the "Sunshine in the Courtroom Act of 2009". There were similar bills and in the 110th Congress. See, S 352 and HR 2128. There were similar bills in the 109th Congress. See, S 829 and HR 2422.

S 410 provides, in part, that "the presiding judge of an appellate court of the United States may, at the discretion of that judge, permit the photographing, electronic recording, broadcasting, or televising to the public of any court proceeding over which that judge presides".

It further provides that "the presiding judge of a district court of the United States may, at the discretion of that judge, permit the photographing, electronic recording, broadcasting, or televising to the public of any court proceeding over which that judge presides", but that "upon the request of any witness (other than a party) in a trial proceeding, the court shall order the face and voice of the witness to be disguised or otherwise obscured in such manner as to render the witness unrecognizable to the broadcast audience", and the "presiding judge shall not permit the photographing, electronic recording, broadcasting, or televising of any juror in a trial proceeding, or of the jury selection process." (Parentheses in original.)

The bill also provides that "There shall be no audio pickup or broadcast of conferences which occur in a court proceeding between attorneys and their clients, between co-counsel of a client, between adverse counsel, or between counsel and the presiding judge, if the conferences are not part of the official record of the proceedings."

Sen. Grassley stated on March 17 that "Allowing cameras in federal courtrooms is consistent with the Founders intent that trials be held in front of as many people as choose to attend. The First Amendment supports the notion that court proceedings be open to the public and, by extension, the news media and broadcast coverage. Openness is the heart of our government, and by providing sunshine into the courtroom, we open up the courts the same way CSPAN opened the Congress to the public."

He continued that "Our bill will help the public become better informed about the federal judiciary and the judicial process. The bill will increase public scrutiny of our federal judiciary and bring greater accountability to a system that includes Judges with lifetime tenure."

Rule 53, Federal Rules of Criminal Procedure, provides that "Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom."

The Judicial Conference and the Administrative Office of the U.S. Courts have also been hostile to cameras in courtrooms, and the legislative proposals of Sen. Grassley and others.

See also, story titled "1st Circuit Rejects Webcasting of Civil Motions Hearings in District Court" in TLJ Daily E-Mail Alert No. 1,930, April 21, 2009.

FCC Releases Tentative Agenda for April 7 Meeting

3/17. The Federal Communications Commission (FCC) announced a tentative agenda for its event on April 7, 2011, titled "Open Meeting".

Access to Poles, ROW, and Wireless Sites. The FCC is scheduled to adopt an order regarding utility pole attachments, and a Notice of Inquiry (NOI) regarding access to rights of way (ROW) and wireless facility siting.

The FCC's tentative agenda state that the pole attachments order "reforms the Commission's access, rates, and enforcement rules for utility pole attachments, reducing barriers to deployment and availability of broadband and other wireline and wireless services, and promoting competition."

The National Cable & Telecommunications Association (NCTA) stated in a release that it supports the "efforts to establish appropriate and more uniform pole attachment rates that will provide much-needed regulatory certainty and will encourage providers to extend broadband networks to unserved communities."

Data Roaming. The FCC is also scheduled to adopt a Second Report and Order (2ndR&O) regarding data roaming.

Julius Genachowski, Chairman of the FCC, gave a speech on March 22 in which he stated that "Right now we're moving forward on broadband data roaming, with a vote scheduled at our next Commission meeting."

Julius GenachowskiGenachowski (at left) continued that "Voice roaming has promoted competition and has been an important spur to the dramatic uptake in mobile devices and investment in mobile networks. Consumers everywhere want the ability to roam anywhere, and they want it for all of their basic mobile services, whether it抯 a voice call, an online check of out-of-town scores, or access to web job postings or health information. Many mobile providers need roaming arrangements to be competitive."

He added that "While we're still working through details of a data-roaming framework, I believe the core proposition is beyond dispute: healthy competition produces greater innovation and investment, lower prices, and better service."

The NCTA stated in a release that "We commend Chairman Genachowski for moving forward on the important issue of wireless data roaming. As new entrants look to expand consumer choice for wireless Internet access service using licensed spectrum, enforceable roaming rights enable competitors to offer a nationwide service and compete with incumbent providers."

This proceeding is WT Docket No. 05-265.

Other Agenda Items. The FCC is also scheduled to adopt a Declaratory Ruling (DR), Notice of Proposed Rulemaking (NPRM), and Order regarding signal boosters.

The FCC is also scheduled to adopt a R&O adopting rules regarding fraud and abuse in the provision of video relay service (VRS), and a Further NPRM that "proposes to require all VRS providers to obtain certification from the FCC under new, tighter certification procedures in order to receive compensation from the TRS Fund".

Finally, the FCC is scheduled to adopt a NOI regarding "existing reliability standards for communications networks, including broadband networks, and ways to further strengthen the reliability and continuity of communications networks to avoid disruptions of service during major emergencies, such as large-scale natural and man-made disasters".

People and Appointments

3/23. Joe Waz will retire from Comcast. See also, statement by Kyle McSlarrow (NCTA) and statement by Gigi Sohn (Public Knowledge).

3/23. Bertrand Serlet, Apple抯 SVP Mac Software Engineering, will leave Apple after 22 years. He will be replaced by Craig Federighi. See, Apple release.

3/23. Marvin Ammori joined the New America Foundation (NAF) as a Legal Fellow. See, NAF release. On March 23, 2011 he published two pieces in his personal web site on the denial by the U.S. District Court (SDNY) on March 22 of the motion to approve the class action settlement in the Google Books litigation. See, piece titled "Google Books Settlement: Copyright, Congress, and Information Monopolies" and piece titled "Google Book Settlement Rejected: Initial Summary".

More News

3/22. Federal Communications Commission (FCC) Chairman Julius Genachowski gave a speech at the CTIA convention in Orlando, Florida, on March 22, 2011. He stated that the "explosion in demand for spectrum is putting strain on the limited supply available for mobile broadband, leading to a spectrum crunch", and that the FCC is moving forward aggressively. He referenced "freeing up" and "unleashing" spectrum, dynamic spectrum sharing, secondary markets for spectrum, white space spectrum, and the potential for voluntary spectrum auctions. Spectrum, Genachowski asserted, "is at the top of my agenda".

3/17. The Association of American Publishers (AAP) stated in a release that "Figures for the first month of the new year show that E-book net sales increased by 115.8% vs January 2010 (from $32.4 Million to $69.9M). Sales of Downloadable Audio Books also rose by 8.8% vs the previous year ($6.0M to $6.5M)."

In This Issue
This issue contains the following items:
  Orphan Works and the Court's Rejection of the Google Book Deal
  Senate Judiciary Committee Continues to Consider Cameras and Mics in Courtrooms
  FCC Releases Tentative Agenda for April 7 Meeting
  People and Appointments
  More News
Washington Tech Calendar
New items are highlighted in red.
Wednesday, March 23

The House will be in recess Monday, March 21 through Friday, March 25. It will next meet on Tuesday, March 29.

The Senate will be in recess Monday, March 21, through Friday, March 25. It will next meet at 2:00 PM on Monday, March 28.

9:00 AM - 12:00 NOON. Day two of a two day meeting of the Department of Energy's (DOE) Advanced Scientific Computing Advisory Committee (ASCAC). See, notice in the Federal Register, February 22, 2011, Vol. 76, No. 35, at Pages 9765-9766. Location: American Geophysical Union, 2000 Florida Ave., NW.

10:00 - 11:30 AM. The Heritage Foundation will host a panel discussion titled "Do Rare Earths Require Congressional Action?". The speakers will be Robert Jaffe (MIT), Michael Levi (Council on Foreign Relations), Derek Scissors (Heritage) and Walter Lohman (Heritage). See, notice and registration page. This event is free and open to the public. Location: Heritage, 214 Massachusetts Ave., NE.

10:30 AM - 12:00 NOON. The New America Foundation (NAF) will host a panel discussion titled "Measurement Lab: Advancing Network Research and Visualizing Broadband Measurement Data". The speakers may include be Vint Cerf (Google), Sacha Meinrath (NAF), Aneesh Chopra (EOP), Anne Neville (NTIA), and Taylor Reynolds (OECD). See, notice and registration page. Location: NAF, Suite 400, 1899 L St., NW.

12:15 - 1:45 PM. The DC Bar Association will host an event titled "An End to the Kludge?: Potential Issues in the Transition to IPv6". The speakers will be Robert Cannon (FCC), Bobby Flaim (FBI), Doug Montgomery (NIST Advanced Network Technologies Division), and Bill Woodcock (Packet Clearing House). See, notice. The DC Bar sometimes excludes reporters. The price to attend ranges from free to $15. For more information, call 202-626-3463. Location: Dow Lohnes, 8th floor, 1225 New Hampshire Ave., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Homeland Security and Emergency Communications Committee will host a brown bag lunch titled "Public Safety Interoperability".  The speakers will include Robert Pavlak (Office of the Chief Technology Officer, District of Columbia), Genaro Fullano (FCC's Public Safety and Homeland Security Bureau), Chris Essid (Director of the DHS's Office of Emergency Communications), and Morgan Wright (Alcatel-Lucent). Reporters are excluded from this event. Location: Mintz Levin, Suite 900, 701 Pennsylvania Ave., NW.

Thursday, March 24

12:00 NOON. The Cato Institute will host a panel discussion titled "Beyond Exports: A Better Case for Free Trade". The speakers will be Daniel Ikenson (Cato), Scott Lincicome (White & Case), Donald Boudreaux (George Mason University), Brandon Arnold (Cato). See, notice and registration page. This event is free and open to the public. Lunch will be served. Location: Room B-369, Rayburn Building.

Friday, March 25

Supreme Court conference day (discussion of argued cases, and decision on cert petitions). Closed.

Saturday, March 26

12:00 NOON - 6:00 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Wine Tasting Adventure". For more information, contact Justin Faulb at Faulb at Lojlaw dot com or Mark Brennan at Mark dot Brennan at hoganlovells dot com.

Monday, March 28

The House will not meet.

The Senate will return from its March recess. At 2:00 PM it will resume consideration of S 493 [LOC | WW], the "SBIR/STTR Reauthorization Act of 2011".

8:00 AM - 5:30 PM. Day one of a two day meeting of the National Science Foundation's (NSF) National Science Board's (NSB) Task Force on Data Policies. The agenda for this meeting includes discussion of "Data-Intensive Science" and "High Performance Cyberinfrastructure". See, notice in the Federal Register, March 21, 2011, Vol. 76, No. 54, at Pages 15349-15350. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [31 pages in PDF] regarding how dynamic access radios and techniques can provide more intensive and efficient use of spectrum. The FCC adopted and released this NOI on November 30, 2010. It is FCC 10-198 in ET Docket No. 10-237. See, notice in the Federal Register, December 28, 2010, Vol. 75, No. 248, at Pages 81558-81559. See also, story titled "FCC Adopts NPRM and NOI on Spectrum Innovation" 2,168, December 4, 2010.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding extending to June 30, 2012, the current freeze of jurisdictional separations category relationships and cost allocation factors. This NPRM is FCC 11-34 in CC Docket No. 80-286. The FCC adopted and released it on March 1, 2011. See, Federal Register, March 14, 2011, Vol. 76, No. 49, at Pages 13576-13579.

Tuesday, March 29

The House will return from its March recess.

8:30 AM - 12:30 PM. Day one of a two day meeting of the National Science Foundation's (NSF) National Science Board's (NSB) Task Force on Data Policies. The agenda for this meeting includes discussion of "Data-Intensive Science" and "High Performance Cyberinfrastructure". See, notice in the Federal Register, March 21, 2011, Vol. 76, No. 54, at Pages 15349-15350. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division will host a presentation titled "Coordinated Effects in the 2010 Horizontal Merger Guidelines". The speaker will be Bob Marshall (Penn State) co-author of a paper [PDF] with the same title. For more information, contact Thomas Jeitschko at 202-532-4826 or atr dot eag at usdoj dot gov. Location: Liberty Square Building, 450 5th St., NW.

4:00 - 6:30 PM. The House Intelligence Committee (HIC) will hold a closed hearing. Location: Room HVC-304, House Visitor Center.

The Federal Communications Commission (FCC) will commence Auction 91, regarding certain FM Broadcast Construction Permits. See, September 21, 2010, FCC Public Notice (DA 10-1711 in AU Docket No. 10-183) and notice in the Federal Register, October 6, 2010, Vol. 75, No. 193, at Pages 61752-61756.

Deadline to submit comments to the Copyright Office (CO) in response to its Request for Information regarding commercial television broadcast stations that qualify as as specialty stations. See, notice in the Federal Register, January 28, 2011, Vol. 76, No. 19, at Pages 5213-5214.

Wednesday, March 30

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Oversight of the Federal Bureau of Investigation". The witness will be Robert Mueller (FBI Director). The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

12:30 - 2:00 PM. The DC Bar Association will host a lunch. The speaker will be Austin Schlick, General Counsel of the Federal Communications Commission (FCC). This event is closed to reporters. See, notice. The price to attend ranges from free to $209. For more information, call 202-626-3463. Location: DC Bar Conference Center, 1101 K St., NW.

1:00 - 4:00 PM. The Federal Communications Commission's (FCC) Technological Advisory Council will meet. See, notice in the Federal Register, March 15, 2011, Vol. 76, No. 50, at Pages 14009-14010. Location: FCC, Commission Meeting Room, 445 12th St.,  SW.

2:00 PM. The House Appropriations Committee's (HAC) Subcommittee on Financial Services and General Government will hold a hearing on the Federal Communications Commission (FCC) FY 2012 budget request. The witness will be Julius Genachowski, FCC Chairman. See, HAC schedule for week of March 28. Location: Room 2359, Rayburn Building.

2:00 PM. The House Appropriations Committee's (HAC) Subcommittee on Homeland Security will hold a hearing on the Department of Homeland Security (DHS) science and technology FY 2012 budget request. The witness will be Tara O扵oole, Under Secretary for Science & Technology Science & Technology. See, HAC schedule for week of March 28. Location: Room 2362-A, Rayburn Building.

2:00 PM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Nominations". The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

2:30 PM. The Federal Trade Commission's (FTC) Bureau of Competition will host a presentation titled "Bye, Bye, Miss American Pie? The Supply of New Recorded Music since Napster". The speaker will be Joel Waldfogel (University of Minnesota), author of a paper [PDF] with the same title. For more information, contact Loren Smith at lsmith2 at ftc dot gov or Tammy John at tjohn at ftc dot gov. Location: Room 8089, 1800 M Street Building.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Spectrum Valuation Issues in the Context of The FCC抯 National Broadband Plan". The speakers will include Rebecca Hanson (FCC's Media Bureau). The price to attend ranges from $25 to $150. CLE credits. See, notice. Location: Covington & Burling, 1201 Pennsylvania Ave., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [71 pages in PDF] regarding changes to the Form 477 data program. The FCC adopted and released this NPRM on February 8, 2011. It is FCC 11-14 in WC Docket Nos. 07-38, 09-190, 10-132, 11-10. See, notice in the Federal Register, February 28, 2011, Vol. 76, No. 39, at Pages 10827-10852.

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