Section 215 “Library Records” Provision Set to Expire on June 1

Last week, Senator Rand Paul (R-KY) engaged in a filibuster designed to stall consideration of a vote on the USA FREEDOM Act as well as Senator McConnell’s bill which would grant a clean reauthorization of certain expiring provisions of the PATRIOT Act, including the controversial Section 215, also known as the “library records” or “business records” provision.  Section 215 has been used by the National Security Agency (NSA) for bulk collection of phone metadata, a program which was recently ruled unlawful by the Court of Appeals for the Second Circuit.

The filibuster had bipartisan support and, due to its timing, could result in expiration of Section 215 which will sunset beginning on June 1.  In the early hours of Saturday, May 23, just before the Senate adjourned, a vote to move forward with the USA FREEDOM Act (a bill which ARL has supported) failed, as did McConnell’s reauthorization bill.  While Senator McConell’s bill initially proposed reauthorization for 5 years, he advanced attempts to reauthorize PATRIOT Act provisions for much shorter periods of two months, eight days, five days, three days and two days, ostensibly to give the Senate more time to craft a compromise on surveillance reform before expiration of Section 215 and other provisions.  Each of these attempts failed.

Senator McConnell is expected to call for another vote on Sunday, May 31, hours before provisions of the PATRIOT Act will expire.  It is unclear whether such a vote would be held for short-term reauthorization or on the USA FREEDOM Act, which fell just three votes shy of the 60 needed for cloture. Passing the USA FREEDOM Act in its current form, which has already been approved by the House of Representatives, is the only option that might completely avoid a sunset of Section 215 and other provisions. Even if Senator McConnell collects enough votes to approve a short-term reauthorization, it does not appear that the House will be able to hold a vote on such reauthorization. Likewise, if any amendments are made to the USA FREEDOM Act, the House would need to vote to approve these amendments. Because the House of Representatives is not scheduled to return until the afternoon of June 1, should a vote be required in the House, Section 215 as well as several other provisions will likely expire, even if it is for just a short period.

Reauthorization following a sunset of Section 215 would be therefore be seen as a new grant of authority rather than extension of existing authority.  Politically, this distinction could be an important one and policymakers must carefully consider whether a new grant of authority to allow broad surveillance practices is warranted and, if so, what privacy and civil liberty protections are in place.  ARL encourages members of Congress to protect privacy and civil liberty and ensure that meaningful reform of current surveillance practices are achieved in any new grants of authority.

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Canadian Author’s Collective, Access Copyright, Dealt Major Blow; Future Uncertain

*This is a guest blog post by Bobby Glushko, Head of the Scholarly Communications and Copyright Office for the University of Toronto Libraries*

On May 22, 2015, the Copyright Board of Canada certified a surprisingly low tariff for copying undertaken by the full time professional staff of provincial governments, such as legislators, aides, and other provincial employees. The tariff, 11.56¢ per employee, per year, for the 2005- 2009 period and 49.71¢ per employee, per year, for the 2010-2014 period, is vastly lower than the $15 tariff initially proposed by Access Copyright. In its decision, the Board supported several interesting copyright theories which may have long term significance for libraries in Canada.

It has long been the custom that Canadian institutions would hold licenses with one or many of the various rightsholder collectives to cover their uses of copyrighted content. These licenses were generally paid on a per employee basis, and were set by either negotiation or through the operation of the Copyright Board of Canada, an administrative body established by Parliament to, among other things, issue tariffs for the use of copyrighted content. One of the major collectives issuing these licenses is Access Copyright, a collective representing authors, publishers, and visual artists. Over the past decade, the costs of the Access Copyright license, a license which allows for institutions to copy significant portions of published works in their licensing repertoire, and the price of the tariff have risen dramatically, from a low of $3 per employee to as high as a proposed $45 per employee. With such uncertainty in the market, and a substantial realignment of the law, Canadian universities and colleges have been forced to re-examine the value of the Access Copyright license, and many of them have chosen to forgo purchasing a license or accepting the tariff, choosing instead to handle rights clearances in house, often in their libraries, and to license content on a transactional basis where necessary.

These changes have not gone unchallenged, however.   In April 2013, Access Copyright sued York University, claiming that by operating without an Access Copyright license or working under a tariff, York was “authorizing and encouraging copying that is not supported by the law.” In their claim, Access Copyright argued that due to the presence of copyright infringement at York, the University needed to be subject to the Board’s tariff, and could not operate outside a license arrangement. A similar suit was brought by Copibec, the comparable author’s collective from Quebec, against Université Laval as well.

While the litigations are still ongoing, this recent action by the Board calls into question their viability and even the continued existence of Access Copyright. Projected revenues from the proposed tariff were around twenty-five million dollars over the covered period; the issued tariff provides for approximately three hundred seventy thousand dollars over the same period, an amount that will likely not even cover the cost of Access Copyright’s action before the Board to obtain the tarriff. As devastating as the financial loss is, the loss on substantive legal arguments appears to be even worse. While the Board’s rationale is not binding on the courts, judges have tended to give deference to the Board as a finder of fact. In this current tariff proceeding, the Board ruled against Access Copyright on several legal arguments, two of which are expanded upon below.

First, the Board rejected the argument that Access Copyright had the capacity to license all published works from which it was not explicitly excluded from licensing, even in the absence of a formal arrangement with a rightsholder. While this may seem obvious in a non-extended licensing jurisdiction, that is, a jurisdiction where all types of published works are subject to a non-voluntary licensing regime, it was in fact a longstanding claim by Access Copyright that they had the capacity to do this. By rejecting this argument, the Board dealt a huge blow to any litigation involving Access Copyright’s repertoire, and essentially posed an existential threat to the organization.

Second, and equally as important, the Board flatly rejected Access Copyright’s interpretation of the scope of fair dealing in Canada. Since the Supreme Court of Canada’s series of rulings on copyright law in 2012, which have been termed the Copyright Pentalogy, the scope of fair dealing has been subject to a fairly fierce debate. Nearly all Canadian universities have adopted fair dealing guidelines which state that the copying of 10% or one chapter of a book, or one article from a journal issue, would generally tend to be fair for the purposes of education, teaching, or private study, given the assumption that the other fair dealing factors do tend towards fairness in the context of higher education. In this action before the Board, Access Copyright advanced a theory of the scope of fair dealing that was far more limited; a theory which the Board wholeheartedly rejected in favour of a scope of fair dealing closely aligned with the commonly adopted university guidelines. The implications of this for the ongoing litigation are tremendous, as a rejection of the fair dealing guidelines adopted across Canada is an essential element of Access Copyright’s legal strategy.

Given the current climate, where most Universities and Colleges are choosing to operate outside of a tariff or a license with Access Copyright, the Board’s decision comes as yet another huge setback in what has been a series of losses for the collective. Perhaps this decision, rather than being the next chapter for Access Copyright, may be an indication that its long story is coming to an end.

If you’re interested in these issues, come join us at the Copyright in Canada Conference on October 2nd 2015 in Toronto, Ontario.

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Senator Rand Paul (R-KY) Filibusters USA FREEDOM Act; Future of Section 215 Uncertain

On Wednesday, May 20, 2015, Senator Rand Paul (R-KY) took the Senate floor to filibuster the USA FREEDOM Act.  While the Senate was considering a bill on trade promotion authority or “fast track” legislation, Senator Paul’s filibuster was intended to stall consideration of a vote of the USA FREEDOM Act.  Senate procedural rules mean that the Senate would not be able to take a procedural vote on the USA FREEDOM Act or Senator McConnell’s bill to allow clean reauthorization of Section 215 until at least Saturday, unless there is an agreement to shorten the addition 30 hours of debate permitted.

Senator Paul has been a sharp critic of government surveillance, including under Section 215 of the PATRIOT Act which is also known as the “library records” or “business records” provision.   This provision has been relied upon by the National Security Agency (NSA) to engage in bulk collection of telephone metadata, though the Second Circuit recently ruled that such bulk collection was unlawful under Section 215.  While the USA FREEDOM Act provides for new safeguards, Senator Paul has opposed the extension of Section 215 and other provisions of the PATRIOT Act.  Although he opposes the current text of the USA FREEDOM Act, Paul has announced his intention to offer several amendments to the legislation.

Senator Paul’s filibuster was supported by Senators Daines (R-MT), Lee (R-UT), Heinrich (D-NM), Coons (D-DE), Tester (D-MT), Cantwell (D-WA), Blumenthal (D-CT), Wyden (D-OR) and Manchin (D-WV).

paul-speech-wordle

Image: Word Cloud of Senator Paul’s Filibuster of USA FREEDOM Act, Joseph Hall (CC-BY)

Additionally, while Senator McConnell has now filed motions to proceed on the USA FREEDOM Act and his reauthorization bill, both would still need to clear the hurdle of 60 votes for cloture.  It is not clear whether there are enough votes for either bill.  While there have been suggestions that Congress could pass a very short-term reauthorization — for example, a two-moth reauthorization — to provide time to forge compromise legislation, the House may not be able to consider such legislation before the June 1 sunset.  There is, therefore, a possibility that Section 215 of the PATRIOT Act might sunset, which could greatly change the dynamic of the discussions on surveillance reform.  Should Section 215 sunset, any reform legislation would essentially be seen as granting or reinstating authorization for surveillance under this provision once again rather than simply extending existing authorities, thus changing the political dynamic and potentially creating a basis for stronger reform to protect privacy and civil liberties.

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House of Representatives Passes USA FREEDOM Act; Senate To Act Quickly

On Wednesday, May 13, 2015, the U.S. House of Representatives voted in favor of the USA FREEDOM Act, legislation that bans bulk collection under Section 215 of the USA PATRIOT Act as well as other authorities, such as the Foreign Intelligence Surveillance Act (FISA) pen/trap statute and national security letters (NSL) by an overwhelming majority of 338 to 88. ARL is pleased that the House of Representatives has passed stronger reform than its 2014 version and considers this development a step forward in surveillance reform.

Since 2006, the National Security Agency (NSA) has engaged in the practice of bulk collection of phone records under Section 215 of the USA PATRIOT Act, also known as the “library records” or “business records” provision. The 2015 USA FREEDOM Act, backed by the White House, specifically addresses this issue and prohibits bulk collection, only permitting limited surveillance orders that focus on a specific selection term. The Court of Appeals for the Second Circuit also addressed this issue recently, ruling that the NSA’s practice of bulk collection exceeded the authority under Section 215 and therefore unlawful.

The 2015 version of the USA FREEDOM Act passed by the U.S. House of Representatives also includes several amendments to the Foreign Intelligence Surveillance Court (FISC) and transparency measures, representing an improvement over the version passed during the last Congress. The bill will now go to the Senate and must be considered quickly, given the upcoming expiration date of certain provisions of the PATRIOT Act, including Section 215.

While the version passed today by the House of Representatives includes better reforms to surveillance practices than in the 2014 bill, the USA FREEDOM Act is just one step forward in a series of necessary reforms. The Court of Appeals for the Second Circuit’s recent unanimous decision that the NSA’s bulk collection practices exceeded the scope of authority granted under Section 215 demonstrates the egregiousness of the NSA’s interpretation of its authority and the willingness of FISC to approve such broad application of the law. Congress should take care to ensure that provisions under USA FREEDOM Act are not similarly interpreted in an overly-broad manner by the NSA to infringe on the privacy rights of those in the United States. ARL looks forward to continuing to work with Congress to ensure that privacy rights are respected and hopes that additional reforms will be made.

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Court of Appeals Issues Landmark Ruling Against NSA Bulk Collection Practices

On May 7, 2015, the Court of Appeals for the Second Circuit ruled on the legality of the National Security Agency’s (NSA) bulk collection of telephone metadata. In a unanimous opinion, the court ruled that the NSA’s bulk collection of telephone records exceeds the authority granted under Section 215 of the USA PATRIOT Act, also known as the “library records” or “business records” provision.

The Second Circuit begins by recognizing that while telephone metadata does not reveal the content of the calls, this fact “does not vitiate the privacy concerns arising out of the government’s bulk collection of such data’ which can reveal a “startling amount of detailed information.” Telephone metadata

might reveal that an individual is: a victim of domestic violence or rape; a veteran; suffering from an addition of one type or another; contemplating suicide; or reporting a crime. Metadata can reveal civil, political, or religious affiliations; they can also reveal an individual’s social status, or whether and when he or she is involved in intimate relationships.

The court also notes that the more metadata collected, the more it can reveal private information.

The court then turned to the facts of the case and summarized the background of the NSA’s bulk collection practices. The NSA has conducted bulk collection of telephone metadata under Section 215 since at least May 2006. The government had collected the data and made “queries” on particular phone numbers that it believed to be associated with a foreign terrorist organization, as well as three “hops,” meaning that the contacts of the contacts of contacts of the original number queried were also looked at. In January 2014, the government limited the number of “hops” from three to two. Additionally, the government required a Foreign Intelligence Service Act Court (FISC) to make a determination that a reasonable articulable suspicion standard had been met, rather than allowing designated NSA officials to determine whether this suspicion existed. The Privacy and Civil Liberties Oversight Group concluded in a 2014 report that the NSA’s program “was inconsistent with §215, violated the Electronic Communications Privacy Act, and implicated privacy and First Amendment concerns.”

After finding that the plaintiffs in the case had standing and the court was not precluded from hearing the case, the Second Circuit turned to the merits of the case and focused on the argument that the program exceeded the authority granted to the government by Section 215.

Section 215 permits the government to apply for “an order requiring the production of any tangible things” provided that they are “relevant to an authorized investigation (other than a threat assessment) . . . to protect against international terrorism or clandestine intelligence activities.” The Second Circuit ruled that while Section 215 “sweeps broadly,” the NSA practices ignore the provision’s statutory limits.

First, while the Second Circuit agreed that the “relevance” standard is generous and Section 215’s use of the term is analogous with the term “relevance” used in the context of a grand jury subpoena, this term is not without its limits. With the NSA’s current bulk collection practices, “The records demanded are all-encompassing; the government does not even suggest that all of the records sought, or even necessarily any of them, are relevant to any specific defined inquiry.” The government argued that the records are “relevant” because they may allow the NSA to identify information that is relevant in the future, but “such an expansive concept of ‘relevance’ is unprecedented and unwarranted.” The court summarizes the government’s argument that “there is only one enormous ‘anti-terrorism’ investigation and that any records that might ever be of use in developing any aspect of that investigation are relevant to the overall counterterrorism effort.”

The Second Circuit points out that warrants and subpoenas for other programs are limited to particular individuals or corporations under investigation as well as specific time periods in stark contrast to the NSA’s program which do not have similar limits:

The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects, or of people or businesses that have contact with others who are in contact with the subjects – they extend to every record that exists, and indeed to records that do not yet exist, as they impose a continuing obligation on the recipient of the subpoena to provide such records on an ongoing basis as they are created. The government can point to no grand jury subpoena that is remotely comparable to the real-time data collection undertaken under this program.

The Second Circuit further notes that term relevant “does not exist in the abstract” and that “§215 does not permit an investigative demand for any information relevant to fighting the war on terror, or anything relevant to whatever the government might want to know.” Instead, it applies only to documents “relevant to an authorized investigation.” Allowing the NSA’s practices to proceed would “require a drastic expansion of the term ‘relevance.’”

Section 215 not only limits collections to what is relevant to an authorized investigation, but also provides that such investigation must not be a “threat assessment.” Thus, the court states, “Congress clearly meant to prevent §215 orders from being issued where the FBI, without any particular, defined information that would permit the initiation of even a preliminary investigation sought to conduct an inquiry to identify a potential threat in advance.” The NSA’s practices are “‘irreconcilable with the statute’s plain text.’”

Turning to the argument that Congress “ratified” the NSA’s practices by reauthorizing Section 215 in 2010 and 2011, the court noted that “Congressional inaction is already a tenuous basis upon which to infer much at all, even where a court’s or agency’s interpretation is fully accessible to the public . . .But here, far from the ordinarily publicly accessible judicial or administrative opinions that the presumption contemplates, no FISC opinions authorizing the program were made public prior to 2013.” Thus, “Congress cannot reasonably be said to have ratified a program of which many members of Congress – and all members of the public – were not aware.” The Second Circuit rejected the argument that Congress “ratified” the bulk collection practices because “these circumstances would ignore reality . . . it is a far stretch to say that Congress was aware of the FISC’s legal interpretation of §215 when it reauthorized the statute in 2010 and 2011.”

Finding that the program was not permitted under Section 215, the Second Circuit declined to rule on whether the NSA’s bulk collection also violated the Fourth Amendment. The court does, however, point to the “seriousness of the constitutional concerns.” It also notes that Congress has been debating the program and that a new version of the USA FREEDOM Act has been introduced into the U.S. House of Representatives and Senate but, “we do not purport to express any view on the constitutionality of any alternative version of the program.”

 

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ARL Joins Coalition Letters Supporting USA FREEDOM Act, Opposing Clean Reauthorization of “Library Records” Provision

On May 6, 2015, ARL joined two broad coalition letters to the leadership of the U.S. Senate and House of Representatives, one supporting the USA FREEDOM Act while the other opposes straight reauthorization of Section 215 of the PATRIOT Act.

On April 28, the USA FREEDOM Act (S.1123, H.R. 2048) was re-introduced in the Senate and House.  ARL joined a letter with 26 other groups to express support for the USA FREEDOM Act because it “enhances privacy rights, transparency, and accountability.”  ARL supports swift passage of this bill because it would provide meaningful reform of current NSA surveillance practices, particularly the bulk collection of data taking place under Section 215 of the USA PATRIOT Act, also known as the “library records” or “business records” provision.  The letter notes that while this version of the USA FREEDOM Act “is not as comprehensive or protective of civil liberties as we would prefer . . . we believe the bill would significantly improve the status quo.  We urge Congress to consider USA FREEDOM to be but one step towards reform. . .”  Section 215 is set to expire on June 1st, 2015.  CDT has a great comparison chart of the 2014 version of the USA FREEDOM Act that passed the House, the 2014 version that fell just two votes shy of cloture in the Senate, and the 2015 version.

ARL also joined a letter opposing “straight reauthorization” of Section 215.  Senator McConnell proposed reauthorization through 2020 which provides no amendments to this provision that has been used by the NSA for bulk collection of telephone records.  The letter, signed by 52 diverse groups, points out that “bulk surveillance programs raise serious constitutional concerns, erode global confidence in the security of digital products, and are unnecessary for national security.”  Additionally, the letter points out that “In the absence of meaningful reform, it is unacceptable to rubber stamp reauthorization of any authority that the government has used to spy on millions of innocent Americans.”

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What’s Missing from the Register’s Proposals

*Guest post by Jonathan Band, policybandwidth*

In her wrap-up testimony yesterday in the House Judiciary Committee’s two-year Copyright Review, Maria Pallante, the Register of Copyrights, identified three categories of policy issues: those that are ready for legislative process, those that warrant near-term study and analysis, and those that warrant further attention. Unfortunately, what many perceive to be the Copyright Act’s greatest flaw, the existing structure of statutory damages, received just a passing reference in the third “warrant attention” category. As numerous witnesses testified during the course of the Copyright Review, the threat of statutory damages of $150,000 per work infringed chills investment in innovative technologies and allows copyright trolls to extort settlements that greatly exceed the actual harm caused.

The Register paid more attention to the Digital Millennium Copyright Act’s prohibition on the circumvention of technological protection measures, 17 U.S.C. § 1201, which appears on the first two lists. While the Register’s recognition of Section 1201’s flaws is welcome, the Copyright Office has the power to address some of these deficiencies itself without additional Congressional action.

Register Pallante correctly observes that a wide range of stakeholders support “mak[ing] it easier to renew exemptions that have previously been adopted and are in force at the time of the triennial rulemaking proceeding.” She states that “the Copyright Office agrees that the process of renewing existing exemptions should be adjusted to create a regulatory presumption in favor of renewal.” Accordingly, she feels that “it would be beneficial for Congress to amend Section 1201 to provide that existing exemptions will be presumptively renewed during the ensuing triennial cases where there is no opposition.”

However, the Copyright Office need not wait for Congressional action to make the renewal process easier. The Register asserts that “the Section 1201 statutory framework requires that, to continue an existing exemption, proponents must bear the legal and evidentiary burden of justifying the exemption anew .…” In fact, Section 1201 itself imposes no such burden. It simply states that the Librarian must make a determination in a rulemaking proceeding whether to grant an exemption to users of a certain class of works and that the exemption lasts for three years. The statute says nothing about how the Librarian should handle renewals of existing exemptions.

The notion that a proponent must justify an exemption de novo every three years derives from a single sentence in a single committee report issued during the legislative process that resulted in the DMCA. This sentence states that the Librarian’s “assessment of adverse impacts on particular categories of works is to be determined de novo.” The Copyright Office in its administration of the rulemaking is not bound by this report language. Thus, it could decide to create a rebuttable presumption in favor of renewal.

Moreover, even if the Office chooses to give weight to this language, the language only states that the Librarian must take a fresh look at whether users of a class of works are likely to be adversely affected by Section 1201’s prohibition. It does not say that proponents must create a new legal and evidentiary record in support of renewal of the exemption. Instead, the Copyright Office and the Librarian could just review the record created in the previous rulemaking, as supplemented by interested parties in the current rulemaking. If opponents of renewal do not offer substantial evidence that renewal would harm the market for or value of their works, see § 1201(a)(C)(iv), the Librarian is likely to reach the same conclusion he reached three years earlier. In short, the Copyright Office could significantly lighten the burden of renewal by indicating that it will incorporate the record created in the previous rulemaking.

Additionally, in the category of policy issues that warrant near-term study and analysis, the Register identifies numerous other potential problems with Section 1201. She notes that some of the permanent exceptions may be too narrow in scope, and that the exemptions created under the rulemaking apply only to the act of circumvention, and not the development and distribution of circumvention tools.

Further, she observes that some stakeholders have suggested “a disconnect between the original purpose of Section 1201—protecting access to creative works—and its effect on a wide range of consumer goods that today contain copyrighted software.” (This was the subject of a DisCo post earlier this year.) She adds that “consumers have voiced discomfort that Section 1201 prevents them from engaging in activities, such as the repair of their automobiles and farm equipment, which previously had no implication under copyright law.”

It is true that the Copyright Office cannot change the scope of the existing permanent exceptions, nor extend the exemptions to the trafficking in circumvention tools. It is also true that the Copyright Office cannot unilaterally solve the problem of the application of Section 1201 to embedded software essential to the operation of larger devices and machines.

At the same time, the Copyright Office could take a more pragmatic approach toward exemptions for embedded software. For example, it could consider, and ultimately grant, a broad exemption for all software essential to the operation of hardware in the lawful possession of the user. Regrettably, in this rulemaking cycle the Copyright Office has gone in the opposite direction, drawing up classes as narrowly as possible. For the unlocking of devices from wireless networks, the Copyright Office has identified five separate classes for five different kinds of devices. It has done the same for the “jailbreaking” of devices so that they can access alternate lawful content. For circumvention of TPMs on vehicle software, for the purpose of diagnosis and repair, or after-market customization, the Copyright Office is considering only land vehicles, when the same issue obviously will apply to boats and aircraft.

By balkanizing the embedded software problem in this manner, the Copyright Office places a much greater burden on the applicants of each narrow class to meet the evidentiary standard the Office imposes. Section 1201 certainly does not require the identification of such narrow classes.

Obviously these measures will not address all the ills of Section 1201. Legislation along the lines of the Unlocking Technology Act, H.R. 1587, or the Breaking Down Barriers to Innovation Act, S. 990 and H.R. 1883, are necessary to do that. But the Copyright Office could adopt these measures now, without Congressional action.

The Register’s testimony raises too many other issues to be examined here. But one proposal merits attention. In the category of issues that warrant near-term study and analysis, the Register recommends a “formal and comprehensive study” of the safe harbors in Section 512 “to ensure that it is properly calibrated for the internet as we know it today.” Frankly, the Section 512 safe harbors have been studied to death. They have been the subject of numerous Congressional hearings and were a major focus of the Commerce Department Internet Policy Task Force report on Copyright Policy, Creativity, and Innovation in the Digital Economy. As the Register’s testimony acknowledges, the Internet Policy Task Force’s report led to a year-long process to produce best practices for the notice and takedown system. The safe harbors have been examined in law review articles, economic studies, and Congressional Research Service reports. The Register asserts that “it is time to take stock of Section 512.” In fact, Congress, the Copyright Office, the PTO, the copyright owners, the Internet service providers, and public interest groups have been taking stock of Section 512 continuously since its enactment.

A far better use of government resources would be a formal and comprehensive study of statutory damages, “to consider what is working and what is not, along with possible legislative improvements…to…ensure that it properly calibrated for the internet as we know it today.”

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USA FREEDOM Act Reintroduced in House and Senate; ARL Urges Swift Passage

On April 28, 2015, members of the U.S. House of Representatives and Senate introduced new versions of the USA FREEDOM Act. This legislation would put an end to the current bulk collection practices of the National Security Agency (NSA) taking place under Section 215 of the USA PATRIOT Act, also known as the “library records” or “business records” provision. ARL supports meaningful and effective surveillance reform, such as that provided by the USA FREEDOM Act of 2015.

Section 215 is currently set to sunset on June 1, 2015. However, Senator McConnell (R-KY) introduced a bill last week that would reauthorize Section 215 through 2020 with no amendments to protect privacy or limit bulk collection of data. Bipartisan efforts have been underway to promote meaningful reform to Section 215 and other provisions of the USA PATRIOT Act that impact civil liberties.

The current version of the USA FREEDOM Act represents a better version of the bill that passed the U.S. House of Representatives in the last Congress. In May 2014, the House of Representatives passed a bill that had been severely watered down twice and resulted in many co-sponsors, as well as civil society organizations and associations including ARL, withdrawing their support for the bill. The Senate version of USA FREEDOM Act in the last Congress represented meaningful reform and would have advanced further transparency measures, but fell two votes shy of the necessary 60 votes for cloture. The current version of the USA FREEDOM Act is essentially a compromise between the House and Senate versions from the last Congress.

ARL supports this version of the USA FREEDOM Act because it would effectively end bulk collection of records under Section 215 and other authorities. It also provides some measure of transparency, providing for government reporting and declassification or summaries of FISA Court decisions. While the current version could go further in protecting civil liberties, as the 2014 Senate version did, the current USA FREEDOM Act still represents effective and meaningful reform and is highly improved from the version that passed the House of Representatives last year. ARL urges Congress to move swiftly to pass the USA FREEDOM Act of 2015, restore privacy and civil liberties, and ensure that bulk collections are no longer permitted.

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ARL Joins New Re:Create Coalition to Promote Balanced Copyright

*Cross-posted from ARL News*

Today, April 28, 2015, ARL joined US technology companies, trade associations, and civil society organizations in the launch of Re:Create, a coalition that promotes balanced copyright policy. A balanced copyright system depends on limitations and exceptions, such as fair use. As technology advances, it is imperative that the copyright law is responsive to these changes, balancing the interests of creators of copyrighted information and products with the interests of users of those products.

Re:Create promotes and defends the important balance of copyright. ARL’s member institutions, as well as the general public, depend on balanced copyright that includes robust limitations and exceptions. A balanced system ensures that copyright does not limit or impede new and valuable technologies and uses.

Fair use is responsive to the quickly evolving technology and has been called the “safety valve” of US copyright law. Fair use also accommodates the First Amendment right to freedom of expression, ensuring that copyright does not prevent freedom of speech. As ARL has shown in an infographic (PDF), fair use is a right, vitally important, for everyone and everywhere. This important doctrine is vital to the economy, innovation, new creativity, learning and education.

Deborah Jakubs, president of ARL said, “The mission of Re:Create squarely comports with the Constitutional rationale for copyright: ‘to promote the progress of science and useful arts.’ ARL is proud to be a member of this coalition, which will work to ensure that copyright law supports this rationale and ensure that the copyright system provides an appropriate balance.”

The Re:Create Coalition launched with the following members: American Library Association, Association of Research Libraries, Center for Democracy & Technology, Computer & Communications Industry Association, Consumer Electronics Association, Electronic Frontier Foundation, Media Democracy Fund, New America’s Open Technology Institute, Public Knowledge, and R Street Institute.

For more information, visit http://www.recreatecoalition.com/.

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Canada’s Budget Proposes Extension of Copyright Term for Sound Recordings, Ratification of Marrakesh Treaty

On April 21, 2015, Canada released its 500-page budget plan, which includes several references to intellectual property.

Among its copyright proposals, Canada’s Economic Action Plan 2015 proposes to amend the Copyright Act to extend the copyright term of sound recordings and performances from 50 years to 70 years.  The budget states,

The mid-1960s were an exciting time in Canadian music, producing many iconic Canadian performers and recordings.  While songwriters enjoy the benefits flowing from their copyright throughout their lives, some performers are starting to lose copyright protection for their early recordings and performances because copyright protection for song recordings and performances following the first release of the sound recording is currently provided for only 50 years.

Canada currently follows the international standard of providing 50 years of protection for sound recordings.  Canada is involved in the negotiations of the Trans-Pacific Partnership Agreement (TPP), a regional trade agreement with a total of 12 currently negotiating parties including the United States.  The United States has proposed a copyright term of life plus 70 years, or 95 years for published corporate works such as sound recordings.  Other countries with pre-existing bilateral free trade agreements (FTA) with the United States (Australia, Chile, Peru and Singapore)  have pushed back against the extension to 95 years, instead advocating for a period of 70 years, the term that has been agreed to in previous US FTAs.  While the Canadian budget applies only to sound recordings, the proposal could indicate an intention to support the same term in the TPP.

On a more positive note, the new budget includes a number of proposals on “Helping Canadians With Disabilities,” including introducing implementing legislation for the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.  The budget calls to improve access to print materials for those who are visually impaired:

The Government will propose amendments to the Copyright Act to implement and accede to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. The ability to access printed information is essential to prepare for and participate in Canada’s economy, society and job market. According to Statistics Canada, approximately 1 million Canadians live with blindness or partial sight. The Government will propose amendments to the Copyright Act to implement and accede to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (the Marrakesh Treaty). Aligning Canada’s copyright limitations and exceptions with the international standard established by the Marrakesh Treaty would enable Canada to accede to this international agreement. Once the treaty is in force, as a member country, Canadians would benefit from greater access to adapted materials.

This proposal is a welcome one and ARL urges Canada to move toward swift ratification.  Implementation of the Marrakesh Treaty would greatly improve access to accessible format works.  The Marrakesh Treaty allows for the cross-border exchange of accessible formats, allowing countries to avoid duplication of efforts as they can import existing accessible copies from other countries.  The Marrakesh Treaty currently has 8 ratifications and will need 12 more for entry into force.

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