11/2. The Department of Labor's (DOL) Bureau of Labor Statistics (BLS) released employment data for the U.S. for the month of October 2012.

The BLS stated in a release that the seasonally adjusted unemployment rate in the US in October was 7.9%. This is unchanged from September. (The BLS reported one month ago that the unemployment rate for September was 7.8%. It then revised this to 7.9%.)

The BLS stated in this release that "the unemployment rate was essentially unchanged at 7.9 percent". It also stated that Hurricane Sandy did not affect this rate because it is based upon data collected prior to the hurricane.

Table A-1, which is based on household surveys, shows that the seasonally adjusted total labor force grew from 155,063,00 to 155,641,000, and that the labor force participation rate rose from 63.6% in September to 63.8% in October. This same table shows that total employment rose from 142,974,000 to 143,384,000, and that total unemployment rose from 12,088,000 to 12,258,000.

Table B-1, which is based upon business surveys, reveals employment trends in various industry sectors, including information and communications technology (ICT) sectors. The BLS's categories do not facilitate precise analysis of trends in ICT. Nevertheless, the data set out in the table below contains ICT related categories.

The table below contains ICT related excerpts from the BLS table titled "Table B-1. Employees on nonfarm payrolls by industry sector and selected industry detail". This is the seasonally adjusted data.

While overall employment grew by 410,000 in October, ICT employment changed little.

The one bright spot in ICT employment is the category of "Computer systems design and related services". Total employment in this category is up for the month and for the year. Employment in "Telecommunications services" was up too in October, but this is a short term aberration. The long term trend in this category is downwards, regardless of economic cycles.

The government collects data from two sources -- households (that is, its survey of individuals) and establishments (reports from businesses that employ people). The unemployment rate (7.9%) is based on household data.

The household data also reveals that many people entered the workforce, and that the work force participation rate grew. Both are signs of economic strength. And, both the number of persons with jobs, and without jobs, increased. However, the participation rate remains lower than in recent years.

11/2. On October 31 the Department of State (DOS) submitted to the International Telecommunications Union (ITU) for next month's World Conference on International Telecommunications (WCIT) its filing [17 pages in PDF] titled "Additional Proposals for the Work of the Conference".

This filing consists largely of a marked up copy of the existing treaty with the proposed additions and deletions of the U.S.

The conference will be held on December 3-14, 2012 in Dubai, United Arab Emirates.

This is the second filing by the DOS. See, first filing [6 pages in PDF], and story titled "US Submits Proposals to ITU for WCIT" in TLJ Daily E-Mail Alert No. 2,421, August 5, 2012.

The DOS stated in a release on November 1 that these proposals "focus on creating an enabling environment for increased investment in global telecommunication infrastructure by promoting competition, transparency, and consumer choice".

It added that this filing reaffirms "the U.S. view that competition and commercial agreements -- not regulation -- is the best model for exchanging international telecommunications traffic".

Federal Communications Commission (FCC) Chairman Julius Genachowski stated in a release that "The proposals would eliminate regulatory burdens and recognize that international arrangements between telecommunications providers should be based on commercial agreements, which is the reality in 98% of the market today. Global telecommunications markets have thrived under this approach, which provides incentives for investments in telecommunications infrastructure, particularly in developing countries. The U.S. contribution also specifically encourages such investment, recognizing that improved connectivity around the world will maximize the benefits of 21st century communications to consumers everywhere."

On August 2, the House passed HConRes 127 regarding this upcoming WCIT. See, stories titled "House Approves Resolution Opposing International Internet Regulation" and "Ambassador Kramer Addresses Upcoming WCIT" in TLJ Daily E-Mail Alert No. 2,420, August 4, 2012.

On October 25 the DOS released the U.S. Delegation List for the WCIT. It lists both government and private sector members.

On November 2 the Center for Democracy and Technology (CDT) submitted a filing [7 pages in PDF] to the ITU. It criticizes the ITU for conducting the WCIT in a non-transparent, non-multi-stakeholder manner.

The CDT also criticizes proposals to amend the term "telecommunication" by adding either "data processing" or "ICT(s)", and to change the definition of "recognized operating agencies" to "operating agencies" so as to subject internet content and service providers to the provisions of the International Telecommunication Regulations (ITR)s.

The CDT also criticizes proposals to impose restrictions on the routing of internet communications, to impose a sender pays interconnection model, and to harmonize laws that contain data retention mandates.

10/22. The Copyright Office (CO) published a notice in the Federal Register (FR) that requests comments regarding "orphan works".

The deadline to submit initial comments is 5:00 PM on January 4, 2012. The deadline to submit reply comments is 5:00 PM on February 4, 2013. See, FR, Vol. 77, No. 204, October 22, 2012, at Pages 64555-64561. See also, CO web page for submitting comments.

Outline of this Story:

Background.
Alignment of Interests.
Legislative History.
Recent Litigation Developments.
Questions Asked.
Questions Not Asked.

Background. This notice begins with the presumptions that there exists a problem, that a solution needs to be found, and that its 2006 proposal for legislation should serve as the starting point for discussion.

The CO has no statutory authority to write "orphan works" regulations. Hence, this notice of inquiry (NOI) is not a prelude to a rule making proceeding. This and subsequent NOIs may assist the CO in writing another repot to the Congress that recommends "orphan works" legislation.

The Congress has not enacted legislation that directs the CO to conduct this NOI. Moreover, the term "orphan works" does not appear in the Copyright Act. Also, the judiciary has not created any "orphan works" law via published opinions.

However, many large companies and their trade groups seek amendment to copyright law to reduce the ability of certain copyright holders to enforce their exclusive rights in "orphan works". The CO recommended passage of legislation in 2006, and some members of Congress then tried, but failed, to enact "orphan works" legislation in the 109th and 110th Congresses. Some members have continued to state that legislation remains a goal. Yet, there has been little activity or effort in the 111th and 112th Congresses.

The CO is neither new to this issue, nor an impartial investigator or neutral arbitrator. It is an enthusiastic advocate of "orphan works" legislation. It acts as an agent of "orphan works" law proponents, particularly certain members of the House Judiciary Committee (HJC) and Senate Judiciary Committee (SJC). Moreover, the current Register of Copyright, in her previous employment, testified in support of "orphan works" legislation in 2006 before a HJC Subcommittee.

This CO notice defines an "orphan work" as a work "for which a good faith, prospective user cannot readily identify and/or locate the copyright owner(s) in a situation where permission from the copyright owner(s) is necessary as a matter of law". The CO's 2006 recommendation, and subsequent bills, all provided that copyright holders' remedies for infringement of such works would be so diminished as to make legal action to enforce copyrights futile.

This CO notice states that "the problem of orphan works is pervasive", and that the "problem was exacerbated by a series of changes in U.S. copyright law", such as the elimination of the registration requirement in the Copyright Act of 1976.

None of the bills contained a definition of the term "orphan works". The use of the term by the CO is misleading.

The term is based upon a metaphor. That is, authors are parents. The books that they write, and the other works that they create, are their children. And, just as when parents die intestate and without surviving relatives their children become orphans, so too when authors die intestate and without relatives their copyrighted works become orphans. To this point, the metaphor is descriptive.

However, the goal of the CO and other backers of "orphan works" legislation is that it should extend beyond works created by now dead authors who left no heirs. The CO would extend the "orphan works" defense to any infringement action in which the infringer meets some minimal burden of proof regarding its own subjective belief that it cannot locate the rights holder. Works of recent creation, that have been registered with the CO, which have a living rights holder, and which are available for licensing or sale, which are not accurately described as "orphan", would nevertheless be affected by the CO's notion of "orphan works".

Moreover, the CO's notion of "orphan works", if enacted into statute, would have a devastating economic effect on many individuals and small businesses, and especially photographers, illustrators, and other visual artists, as well as some writers. It would also undermine the Constitutional goal of incenting authorship.

But, the CO's notice states that the lack of an "orphan works" exception "is difficult if not impossible
to reconcile with the objectives of the copyright system".

This CO notice also states that the "Sonny Bono Copyright Term Extension Act of 2008", which the Congress enacted in 1998, "extended the duration of copyright and increased the likelihood that some copyright owners would become unlocatable". That Act, which is also known as the CTEA, extended the maximum term from 75 to 95 years. See, Public Law No. 105-298.

Although, the proposed "orphan works" bills' effect would not be limited to either older works, or unregistered works.

It might be noted that Rep. Zoe Lofgren (D-CA) introduced a bill in 2003 that would have moved most works that are 50 years old into the public domain. Only those rights holders who made a filing and paid a $1 fee would have maintained their copyright. See, HR 2601 (108th Congress), the "Public Domain Enhancement Act", and story titled "Representatives Introduce Public Domain Enhancement Act" in TLJ Daily E-Mail Alert No. 688, June 26, 2003.

That bill was proposed by Professor Lawrence Lessig, who fought a long but unsuccessful constitutional challenge to the CTEA.

The CO and interest groups that lobby for "orphan works" legislation show no interest in Rep. Lofgren's proposal. Instead, they seek a bill that would affect works that are made today, that are registered, and that are on sale or available for licensing by their living owners.

In January of 2006, the CO released of its lengthy report [133 pages in PDF] titled "Report on Orphan Works", which advocated passage of a bill. 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. His LinkedIn profile now lists him as "Assistant General Counsel -- Copyright".

Alignment of Interests. There are many large companies and interest groups that often seek amendments to copyright law, and oppose amendments sought by others. One might recall, for example, the significant efforts of both proponents and opponents of the PROTECT IP Act and SOPA earlier in this Congress.  Similar divisions occur across a wide variety of copyright legislative issues.

However, the line up of the major organized interests on "orphan works" proposals has been much different. All of the most powerful copyright interests have either advocated "orphan works" legislation, or sat out the debate. If Congress were as influenced by money and organized interests as its critics often assert, an "orphan works" bill would have been enacted in 2006.

Opposition has come from groups with substantially less financial resources and organization in Washington DC. Many members of Congress and their staff had likely not previously heard of some of the groups that opposed "orphan works" legislation in 2006 -- such as groups representing photographers, medical illustrators, visual artists, and others.

Large companies, universities, and other entities who business models (profit or non-profit) rely on the use of works created by others have an interest in diminishing the enforceability of copyrights in works that they use. Hence, entities such as Google and the University of Michigan seek a new "orphan works" legal regime.

Companies that hold copyrights in works that are famous have little to fear from an "orphan works" defense because an infringer could not credibly assert that he could not locate the rights holder. For example, an infringer could not credibly assert that he did not know that Microsoft held the copyrights in its Windows operating systems. An infringer could not credibly assert that he did not know that a movie studio held the copyrights in its block buster movies. Nor could an infringer credibly assert that he did not know who held the copyright to the latest John Grisham best seller.

The same would be the case for the famous works distributed by the major record labels, electronic games companies, and other large owners, aggregators, and distributors. These companies, and their trade groups, have little reason to oppose legislation.

Yet, many of the products of these companies copy and incorporate the copyrighted photos, text, code or other components created by others. Hence, even though these companies are copyright holders themselves, they may stand to benefit from diminishing the rights of other copyright holders.

It is the copyright holders who are trying to make a living from creating works, and selling copies, or licensing use of, their works, and that would be deprived of enforcement rights when infringers copy their works without permission, and then hide behind an "orphan works" defense, that oppose, or seek to narrow, "orphan works" legislation.

Works that are not inherently subject to text based searches, such as photographs, are particularly vulnerable. Works from which authorship and ownership information can be stripped, and then republished on the internet without identifying data, are also vulnerable. Also, following the University of Michigan's assertion last year that numerous in print books and books with living rights holders are "orphan works" made all books vulnerable. The rights holders for such vulnerable works would suffer substantial loss from enactment of a statute such as that proposed by the CO in 2006.

Legislative History. Promptly after release of this recommendation, Rep. Lamar Smith (R-TX), introduced, in the 109th Congress, HR 5439, the "Orphan Works Act of 2006". Another version of this bill 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, stories 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.

Those bills failed in part because they were overbroad. That is, the bills would have affected far more than old works for with the creator died, without heirs. They would have impacted works that are available for purchase or licensing. Photographers, visual artists, and others made their views known to members of Congress. Consequently, the bills stalled.

While proponents have continued to lobby, and some members of Congress have continued to express an interest in legislation, there has been no effort serious effort to move bills through the Congress in the current or previous Congress. In addition to the failures the two previous Congresses, proponents outside the Congress pursued to alternative avenues for creating "orphan works" law. In the past month, both of these avenues reached dead ends.

Recent Litigation Developments. The CO's just released notice follows two recent developments. First, on October 4, 2012, Google and the Association of American Publishers (AAP) announced that they settled the copyright infringement action filed by five AAP members in 2005. See, story titled "Google and Five Book Publishers Settle 2005 Copyright Infringement Action" in TLJ Daily E-Mail Alert No. 2,464, October 18, 2012.

Google, the AAP and Authors Guild had attempted to use this litigation to impose a broad class action settlement agreement that was legislative in scope upon book publishing and digitization. It addressed many things, including "orphan works". However, it exceeded the proper role of class action litigation, the Department of Justice (DOJ) criticized it, and the U.S. District Court (SDNY) rejected it.

Google and the AAP gave up on finding a class action solution that could satisfy the District Court, and so reached a private settlement that does not require court approval, and creates no "orphan works" law.

Second, the same District Court (but a different Judge) issued an decision on October 10 in Authors Guild v. HathiTrust. Judge Baer dismissed a copyright infringement action against universities. Universities had announced a program that would make available online for free books under copyright that the universities designated as "orphan works". In essence, these universities asserted the authority to terminate exclusive rights of authors academic fiat.

The defendants acted as if there were an "orphan works" exception to the exclusive rights of copyright, or as if they sought to create such an exception. The Authors Guild sought a declaratory judgment that the defendants' program constitutes copyright infringement. It promptly marshaled evidence that the defendants had falsely declared as "orphan works" many books that have rights holders, are in print, and on sale. The defendants, likely foreseeing a judicial defeat, suspended their efforts to declare works as "orphan works".

The District Court issued no ruling on the merits. Rather, it held that this since the defendants suspended the program, this claim is not ripe for adjudication. Hence, it did not issue a ruling that creates any "orphan works" exception or defense. See, related story in this issue titled "District Court Disposes of Authors Guild's Book Scanning Case Against Universities".

Following the failure of various parties to create "orphan works" law by a back door legislative process, and the failure of universities to create "orphan works" law by court ruling, the CO is now returning to legislative efforts.

Questions Asked. The CO notice runs over seven thousand words, but asks few questions. The notice is mostly a history of recent administrative, legislative and judicial developments related to "orphan works", and the CO's interpretation of the issue. This notice restates the CO's arguments in favor of an "orphan works" legal regime, a summary of its 2006 report, a legislative history of the failed bills in the 109th and 110th Congresses, and the CO's narrative of the court cases against Google and its university partners.

This notice asks, "what has changed in the legal and business environments during the past few years" and "how has the legal landscape or legal thinking evolved in the past four years?"

It divides its questions into two subjects -- "mass digitization" of works under copyright, such as that underway by Google and certain universities, and "occasional or isolated use".

It should be noted that the recent litigation largely addressed mass digitization and books. In contrast, legislative efforts stalled in the 109th and 110th Congresses in significant part because of the opposition of individuals and small businesses concerned with the bills' impact upon copyrighted photographs and other visual works. The CO notice dismissively refers to this infringement as "occasional or isolated use".

With respect to "occasional" copying, the CO restates its proposal for legislation, and then states, "Please comment on the continued viability of the above framework in the case of occasional uses of orphan works. If there are other possible approaches, including approaches that might best be described as interim approaches, please explain the benefits and supporting legal authority in sufficient detail."

With respect to "mass digitization", the notice states, "Please comment on potential orphan works solutions in the context of mass digitization. How should mass digitization be defined, what are the goals and what, therefore, is an appropriate legal framework that is fair to authors and copyright owners as well as good faith users? What other possible solutions for mass digitization projects should be considered?"

The CO notice adds, "In responding to these questions, a party may wish to discuss a number of relevant topics, including for example: The merits of limiting remedies; the interplay between orphan works and fair use, section 108, section 121, or other exceptions and limitations; the role of licensing; the types of orphan works that should be implicated; the types of users who should benefit; the practical or legal hurdles to forming or utilizing registries; international implications; and the relative importance of the Register's plans to improve the quality and searchability of Copyright Office records."

Questions Not Asked. This CO notice does not ask certain pertinent questions.

For example, when revisions to the Copyright Act are enacted, it is usually in response, in whole or in part, to specific events, such as court cases in which huge damages have been awarded in situations that members of Congress find excessive, or courts have issued opinions that members of Congress finds in conflict with their own views. Such judgments and opinions evidence and define a problem for the Congress.

This notice does not ask commenters to identify the specific judgments or opinions that demonstrate the nature of the purported problem. That is, the CO does not ask commenters to name cases in which they have been ordered to pay huge damage awards for copyright infringement after they had conducted a diligent search for the rights holders, found none, copied, but still got sued.

As another example, the notice does not ask about the potential interaction of implementation of both an "orphan works" limitation on liability, and a new procedure that would divert certain copyright infringement claims into a new small claims litigation process.

The CO has open NOI proceedings on both "orphan works" and small copyright claims. The CO is examining various proposals for shifting small copyright claims -- many of which would also likely face "orphan works" affirmative defenses -- to a process without pretrial discovery or compulsory process, and decisions made in whole or in part on the basis of affidavits and pleadings.

This is significant because, if a defendant were to assert an "orphan works" defense, all of the information regarding that assertion would lie in the hands of the defendant. Without pretrial discovery, compulsory process, and adversarial trials, assertions of the "orphan works" defense would likely become unrebuttable. This would encourage both unauthorized copying of works of locatable authors, and bad faith assertions of the "orphan works" defense.

As another example, the CO notice does not ask about the availability of insurance policies that provide for defense of, and indemnification in, claims of copyright infringement involving purported unlocatable rights holders. Nor does it ask about the role of searches for copyright holders in such policies. Nor does it ask about the role of insurance companies in advising insureds regarding conducting searches for copyright holders. Nor does it ask how insurance has changed since the CO issued its 2006 report. Nor does it ask why legislation is warranted if insurance is available.

This CO notice solicits information that may aid the CO in advocating Congressional enactment of an "orphan works" limitation. This CO notice does not solicit information that might be used to rebut the CO's "orphan works" advocacy.

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The Senate will meet at 11:00 AM in pro forma session. The House will meet at 10:00 AM in pro forma session.

The Department of Labor's (DOL) Bureau of Labor Statistics (BLS) is scheduled to release its October 2012 unemployment data.

9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. See, Public Notice (DA 12-1616) and notice in the Federal Register, Vol. 77, No. 201, October 17, 2012, at Pages 63831-63832. Location: FCC, Commission Meeting Room, Room TW-C305, 445 12th St., SW.

11:00 AM - 12:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "To Trademark or Not to Trademark: That is the Question". The speakers will be Mary LaFrance (University of Nevada law school), Jonathan Rubens (Javid Rubens), Sherin Sakr (Kahala Corporation), and Peter Snell (Gowling Lafleur Henderson). Prices vary. CLE credits. See, notice.

12:00 NOON - 1:30 PM. The DC Bar Association will host a presentation titled "Blogging for Lawyers". The speaker will be Tasha Coleman. Free. No CLE credits. See, notice. For more information, call Daniel Mills at 202-626-1312. The DC Bar has a history of barring reporters from its events. Location: DC Bar Conference Center, 1101 K St., NW.

Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding the complaint (request for consultations) filed with the World Trade Organization (WTO) by the People's Republic of China (PRC) against the US alleging that US investigations, determinations and orders regarding countervailing duties violate WTO obligations. See, notice in the Federal Register, Vol. 77, No. 180, September 17, 2012, at Pages 57181-57182.

The House will not meet. It is in recess, except for pro forma sessions, until after the November elections.

The Senate will not meet. It is in recess, except for pro forma sessions, until November 13, 2012.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Northern Valley Communications v. FCC, App. Ct. No. 11-1467. This is petition for review of an order of the FCC regarding access charges for completing long distance calls. AT&T, Verizon, Sprint and Qwest have intervened. Northern Valley, a small local exchange carrier in northeastern South Dakota, wants to change long distance companies to complete calls its non-paying customers, contrary to FCC rules (47 C.F.R. § 61.26). See, FCC brief [77 pages in PDF]. Judges Garland, Kavanaugh and Randolph will preside. This is the only item on the Court's agenda. Location: USCA Courtroom, 5th floor, Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. The Supreme Court will hear oral argument in Comcast v. Behrend, Sup. Ct. No. 11-864. The question presented is "Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis." See, Supreme Court docket. Location: Supreme Court, 1 First St., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications Committee will host a brown bag lunch titled "A Discussion on International Telecommunications Trade Issues". The speaker will be Jonathan McHale, Deputy Assistant USTR for Telecommunications and E-Commerce Policy. Free. No CLE credits. Location: Latham & Watkins, 10th floor, 555 11th St., NW.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "How the Smartphone Wars Are Changing the IP Landscape". The speakers will be Ray Alderman (VITA Standards Organization), Jorge Contreras (American University law school), Claudia Garcia (Research in Motion), and David Newman (Arnstein & Lehr). Prices vary. CLE credits. See, notice.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to it notice of proposed rulemaking (NPRM) regarding changes to patent fees. See, notice in the Federal Register, Vol. 77, No. 173, September 6, 2012, at Pages 55027-55085. See also, story titled "USPTO Releases Patent Fees NPRM" in TLJ Daily E-Mail Alert No. 2,441, September 5, 2012.

Extended deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice in Federal Register (FR) requesting comments regarding its proposed changes to its rules of practice in patent cases to implement the changes to the conditions of patentability, to implement the first inventor to file system provisions of the Leahy Smith America Invents Act, and to eliminate the provisions pertaining to statutory invention registrations. See, original notice in the FR, Vol. 77, No. 144, July 26, 2012, at Pages 43742-43759, and story titled "USPTO Announces First Inventor to File NPRM and Roundtable" in TLJ Daily E-Mail Alert No. 2,430, August 16, 2012. See also, extension notice in the FR, Vol. 77, No. 197, July 26, 2012, at Page 61735.

Extended deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice in Federal Register (FR) requesting comments regarding its proposed changes to its examination guidelines to implement the first inventor to file system provisions of the Leahy Smith America Invents Act. See, original notice in the FR, Vol. 77, No. 144, July 26, 2012, at Pages 43759-43773. See also, extension notice in the FR, Vol. 77, No. 197, October 11, 2012, at Page 61735.

Election Day.

The Senate will meet at 11:00 AM in pro forma session. The House will meet at 10:00 AM in pro forma session.

2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division's (AD) Economic Analysis Group (EAG) will host a presentation titled "Direct Licensing, PROs and Competition". The speaker will be Kevin Murphy (University of Chicago business school). For more information, contact Gloria Sheu at gloria dot sheu at usdoj dot gov or 202-532-4932, or Nathan Miller at nathan dot miller at usdoj dot gov or 202-307-3773. Location: Liberty Square Building, EAG conference room, LSB 9429, 450 5th St., NW.

9:00 AM. Day one of a two day meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee. The November 7 portion of this meeting is open to the public. See, notice in the Federal Register, Vol. 77, No. 204, October 22, 2012, at Page 64464. Location: DOC, Hoover Building, Room 3884, 14th Street between Constitution and Pennsylvania Avenues, NW.

9:30 AM - 4:00 PM. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) will hold one in a series of meetings regarding consumer data privacy in the context of mobile applications. See, notice in the Federal Register, Vol. 77, No. 149, Thursday, August 2, 2012, Pages 46067-46068. Location: Auditorium, DOC, Hoover Building, 14th Street and Constitution Ave., NW.

10:00 AM. The Supreme Court will hear oral argument in Already v. Nike, Sup. Ct. No. 11-982. The question presented is "Whether a federal district court is divested of Article III jurisdiction over a party's challenge to the validity of a federally registered trademark if the registrant promises not to assert its mark against the party's then-existing commercial activities." See, Supreme Court docket. Location: Supreme Court, 1 First St., NW.

10:00 AM - 3:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (NCOHIT) HIT Policy Committee will meet. See, notice in the Federal Register, Vol. 77, No. 207, October 25, 2012, at Page 65191. Location: Omni Shoreham Hotel, 2500 Calvert St., NW.

12:00 NOON. The World Wide Web Consortium's (W3C) Tracking Protection Working Group will meet by teleconference. The call in number is 1-617-761-6200. The passcode is TRACK (87225).

1:00 - 5:00 PM. The Department of Homeland Security's (DHS) Data Privacy and Integrity Advisory Committee will meet. See, notice in the Federal Register, Vol. 77, No. 191, October 2, 2012, at Pages 60131-60132. Location: Ronald Reagan Building, Room B 1.5-10, 1300 Pennsylvania Ave., NW.

2:00 - 4:00 PM. The National Science Foundation's (NSF) Networking and Information Technology Research and Development National Coordination Office's Large Scale Networking Coordinating Group's Middleware and Grid Interagency Coordination Team will meet. See, notice in the Federal Register, Vol. 77, No. 183, September 20, 2012, at Pages 58416. Location: NSF, 4201 Wilson Boulevard, Arlington, Virginia.

8:15 AM - 5:00 PM. The American Bar Association (ABA) will host a conference titled "2012 Antitrust Fall Forum". The speakers and other participants will include Judge Douglas Ginsburg (USCA/DCCir), Judge Dianne Wood (USCA/7thCir), Renata Hesse (DOJ/AD), Lynda Marshall (DOJ/AD), Leslie Overton (DOJ/AD), Deirdre McEvoy (DOJ/AD), Thomas Rosch (FTC Commissioner), Maureen Ohlhausen (FTC Commissioner), Howard Shelanski (Director of the FTC's Bureau of Economics), David Vladeck (Director of the FTC's Bureau of Consumer Protection), Reilly Dolan (FTC), Zachary Katz (Chief of Staff to FCC Chairman Genachowski), Jake Sullivan (Department of State), Lucy Morris (CFPB), Scott Hemphill (Chief of the Antitrust Bureau, New York), and Carlos Ragazzo (Superintendent of the Council for Economic Defense, Brasilia, Brazil). Prices vary. CLE credits. See, event web site and agenda. Location: National Press Club, 13th Floor, 529 14th St. NW.

9:00 AM. Day two of a two day meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee. The November 8 portion of this meeting is closed to the public. See, notice in the Federal Register, Vol. 77, No. 204, October 22, 2012, at Page 64464. Location: DOC, Hoover Building, Room 3884, 14th Street between Constitution and Pennsylvania Avenues, NW.

9:30 - 11:00 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "The Impact of Cloud Computing On Developing Economies". The speakers will be Robert Atkinson (ITIF), Peter Cowhay (UC San Diego), Bernard McKay (Intuit), and Ken Zita (Network Dynamics). See, notice. Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.

TIME? The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "Kirtsaeng v. John Wiley & Sons, A Post Supreme Court Oral Argument Review".

5:00 PM. The University of Maryland's (UM) Cyber Security Center will host a presentation by Wenke Lee (Georgia Tech School of Computer Science). This event is free, and open to the public, but registration is required. See, notice. Location: UM, Computer Science Instructional Center, Room 1115, MD.

6:30 - 10:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "23rd Annual Charity Auction". For more information, contact Brendan Carr at brendantcarr at gmail dot com or Kerry Loughney at kerry at fcba dot org. Location: Capital Hilton, 1001 16th St., NW.

12:00 NOON - 1:30 PM. The DC Bar Association will host a presentation titled "iPad for the Litigating Attorney". The speaker will be Judge Herbert Dixon (D.C. Court's Technology Enhanced Courtroom Pilot Project). Free. No CLE credits. For more information, call Daniel Mills at 202-626-1312. The DC Bar has a history of barring reporters from its events. Register by sending an e-mail to dmills at dcbar dot org. See, notice. Location: DC Bar Conference Center, 1101 K St., NW.

5:00 PM. Deadline to submit comments to the Department of Commerce's (DOC) National Oceanic and Atmospheric Administration's (NOAA) Science Advisory Board regarding its draft report [21 pages in PDF] titled "A Review of NOAA’s Future Satellite Program: A Way Forward". See, notice in the Federal Register, Vol. 77, No. 196, October 10, 2012, at Page 61573.

10/10. The U.S. District Court (SDNY) issued its opinion in Authors Guild v. HathiTrust. one of several cases involving the mass scanning and digitization of books by university libraries and Google.

The District Court held that mass copying of library books for the purposes of full text searches, preservation, access for people with certified print disabilities, constitutes fair use. This is a defeat for book authors.

The District Court also held that the plaintiffs' claims regarding the defendants' planned full text free access publication of purported "orphan works" are not ripe for adjudication. Thus, there will be no court made law at this time regarding the creation of an "orphan works" exception to the exclusive rights of copyright.

Outline of this Story:

Background.
Complaint.
Court Opinion.
Reaction.
Data Security.

Background. This is the copyright infringement action filed by the Authors Guild (AG) and others on September 12, 2011, against the University of Michigan, University of California, the University of Wisconsin, Indiana University, and Cornell University.

The five universities are involved in mass book digitization programs pursuant to contracts with Google. Google scans books held by the defendant universities. Google retains digital copies, and gives digital copies to the universities. The HathiTrust is a name used by these universities, and others, for their aggregation of these and other digital copies.

Google is not a defendant in this action. However, there is a separate action brought by the AG against Google that is still pending.

Google has copied physical books in the defendants' collections, millions of which are under copyright, in many cases, without permission of the copyright holders.

Complaint. The original complaint [26 pages in PDF] alleged "systematic, concerted, widespread and unauthorized reproduction and distribution of millions of copyrighted books and other works". The complaint alleged that "approximately 73%" of the HathiTrust's collection is under copyright, and that this is "one of the largest copyright infringements in history".

An amended complaint added additional parties, including the New York based Authors League Fund. (The plaintiffs also include foreign author groups, and several individual authors, including James Shapiro, one of the leading scholars and authors on Shakespeare and other dramatic works.)

The complaint also alleged that four of the defendant universities have announced an "Orphan Works Project" to make available online "so called ``orphan works´´ -- works that are protected by copyright but whose rights holders theoretically cannot be located by procedures established by the HathiTrust".

The plaintiffs sought declarations that the "Defendants' systematic digitization and distribution of copyrighted materials without authorization constitutes unlawful copyright infringment", and "Defendants' distribution and display of copyrighted works through the HathiTrust Orphan Works Project will infringe the copyrights of Plaintiffs and others likely to be affected".

The complaint also sought an injunction barring the defendants from "systematically reproducing, distributing and/or displaying" plaintiffs' copyrighted works, from "providing to Google for digitization copyrighted works without authorization", and from "proceeding with the HathiTrust Orphans Work Project, including without limitation, from displaying, distributing or otherwise making available any so-called orphan work protected by copyright".

The complaint also sought impoundment of "all unauthorized digital copies of works protected by copyright".

The complaint did not seek damages. Four of the five defendants are political subdivisions of states, and therefore have 11th Amendment immunity from claims for damages for copyright infringement, pursuant an unfortunate series of Supreme Court's opinions. (See, 1999 Rehnquist opinion in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627, invalidating the Patent and Plant Variety Protection Remedy Clarification Act, and 1999 Scalia opinion in College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, invalidating the Trademark Remedy Clarification Act.)

Court Opinion. Judge Harold Baer wrote a sweeping decision in which he came down on the side of the universities on numerous issues.

He wrote that the defendants make available digital works in the HathiTrust for "full text searches" that do not provide access to the copyrighted text, for "preservation", and for "access for people with certified print disabilities". And, for the works labeled "orphan works" by the defendants, "for full view". He added that after the filing of the complaint the "orphan works" program was "temporarily suspended".

The opinion does not disclose that the University of Michigan (UM) had published a list of works that its deemed to be "orphan works", only to be confronted by evidence that it had improperly listed numerous works, under copyright, with a living rights holders, there were available for sale. The UM promptly withdrew the list from its web site, and published short statement in which it acknowledged "a number of errors, some of them serious".

Judge Baer added that the "UM has not yet provided a new process for identifying Orphan Works, or even a timeline for when that might happen".

Judge Baer first held that the "Associational Plaintiffs have satisfied Article III standing requirements and that the issues pertaining to the rights of their members are therefore justiciable. As a matter of statutory standing under the Copyright Act, however, the domestic Associational Plaintiffs are precluded from enforcing those rights."

Judge Baer next held that all of the claims regarding the HathiTrust "Orphan Works Project" are not ripe.

He wrote that "The claims here are not fit for adjudication. Were I to enjoin the OWP, I would do so in the absence of crucial information about what that program will look like should it come to pass and whom it will impact."

Given that there is no "orphan works" exception to the exclusive rights of copyright, under either the Copyright Act, or court created rule, there is no sets of facts under which the defendants could have prevailed on a asserted "orphan works" exception. Hence, Judge Baer could have both found ripeness, and granted summary judgment, on the "orphan works" issue.

However, one of the key consequences of this decision is that a ruling regarding the possible existence of some sort of "orphan works" exception to infringement will not come about in the near future, if at all, in this case. This eliminates one reason for the Congress to put off consideration of "orphan works" legislation. Some members of Congress are reluctant to consider legislation on a matter presently before a court. Some members of Congress seize upon a pending court action as a pretext for not considering related legislation.

Next, Judge Baer rejected the argument that the availability of Section 108 (an exception to the exclusive rights of copyright that allows libraries to make a copies of certain works for specified purposes) precludes a finding that Section 107 (an exception to the exclusive rights of copyright for fair use) allows infringement.

Then, Judge Baer made the most critical ruling -- that copying for the purposes of full text searches, preservation, and for access for people with certified print disabilities, constitutes fair use.

Judge Baer's decision on fair use appears to be based upon his policy objectives. He praised the defendants' activities, especially as they pertained to disability access. He then tailored his fair use analysis to meet policy goals.

For example, one of the four prongs of the fair use defense, which is codified at 17 U.S.C. § 107, is "the amount and substantiality of the portion used in relation to the copyrighted work as a whole". The book scanning program involves copying the entirety of books. Nevertheless, Judge Baer did not even find that this prong weighs in favor of the plaintiffs.

Reaction. The AG stated in a release "We disagree with nearly every aspect of the court's ruling. We're especially disappointed that the court refused to address the universities’ ``orphan works´´ program, which defendants have repeatedly promised to revive. A year ago, the University of Michigan and other defendants were poised to release their first wave of copyright-protected, digitized books to hundreds of thousands of students and faculty members in several states. The universities had deemed the authors of these books to be unfindable."

The AG continued that "Within two days of filing our lawsuit last September, Authors Guild members and staff found that the “orphans” included books that were still in print, books by living authors, books whose rights had been left to educational and charitable institutions in the U.S. and abroad, books represented by literary agents, and books by recently deceased authors whose heirs were easily locatable."

Paul Aiken, Executive Director of the AG, stated in this release that "The so-called orphan works program was quickly shown to be a haphazard mess, prompting Michigan to suspend it ... But the temptation to find reasons to release these digitized books clearly remains strong, and the university has consistently pledged to reinstate the orphan works program. The court’s decision leaves authors around the world at risk of having their literary works distributed without legal authority or oversight."

The defendant universities issued a statement praising the court's decision.

Data Security. Judge Baer wrote a few perfunctory and uninformed sentences about data security.

His opinion allows the scanning of books under copyright, and retention by the defendant universities of digital copies on internet connected servers. Moreover, Judge Baer's decision presumes that the defendants' statements regarding their purposes, intentions and security are sufficient to protect this collection of digital copies from theft by hackers or insiders.

If digitized works are stolen, and distributed via the internet by some entity that operates beyond the jurisdiction of the U.S. courts, the economic value of these works to the rights holders could be substantially destroyed.

First, university libraries lack expertise in cyber security. The mission of these libraries is to make stuff available, to many people, without any meaningful screening -- not to protect, exclude and secure.

Second, the defendants lack the incentive to protect digitized works from unauthorized access, copying, and further distribution. It is not their property. They do not stand to loose sales or licensing revenues if works are stolen.

Third, universities are vulnerable to insider theft. For example, the Massachusetts Institute of Technology (MIT), one of the world's leading technology universities, demonstrated its inability to stop a long running insider data theft scheme in 2010 and 2011. See, story titled "Grand Jury Returns Indictment for Unauthorized Downloading of 4.8 Million JSTOR Articles" in TLJ Daily E-Mail Alert No. 2,264, July 20, 2011.

Moreover, the history of the defendant universities' "orphans works" program bodes ill for the security of scanned books. The defendants asserted that numerous books that are in fact are in print and on sale are "orphan works". Many of these assertions were promptly proven to be false.

Nevertheless, Judge Baer has allowed mass digitization, and not imposed any data security regime.