On September 8, 2014, the Association of Research Libraries joined a broad coalition of seventy-six technology companies as well as privacy and public interest organizations in sending a letter to Senate Majority Leader Harry Reid (D-NV) and House Majority Leader Kevin McCarthy (R-CA) urging reform of the Electronic Communications Privacy Act (ECPA). Both the Senate and House have considered bills to update ECPA and ensure that Fourth Amendment privacy protections extend to the online communications. The House version of ECPA reform, H.R. 1852 reached a milestone of 218 co-sponsors on June 17, 2014 representing a majority of the House and the bill enjoys broad bipartisan support. Since that date, additional co-sponsors have been added to H.R. 1852 and more than 260 Members have joined in their support of this bill. The Senate bill, S. 607, also enjoys bipartisan support and was introduced by Senators Leahy (D-VT) and Lee (R-UT) and was approved by the Senate Judiciary Committee in 2013.
ECPA reform is necessary to ensure that the Fourth Amendment guarantees of privacy apply equally to digital information as it does to physical property. ECPA, enacted in 1986, has not kept pace with evolving technologies and allows government agencies to access online communications that are older than 180 days without obtaining a warrant, thereby affording digital information, such as that which is stored in the cloud, less protections than data stored locally in a home or office. The bills considered by Congress would require warrant-for-content, a standard that the U.S. Department of Justice already follows. Civil regulatory agencies want an exception, however, allowing the collection of content directly from third-party service providers. The letter states clear opposition to a “carve-out of regulatory agencies or other rules that would treat private data differently depending on the type of technology used to store it.”
As libraries and universities increasingly used cloud-based services and more communications take place online, ensuring that the Fourth Amendment extends to information in the digital world becomes critical. ECPA reform would avoid the current absurdity that currently affords online communications and information less protection than physical documents.
On September 4, 2014, the Association of Research Libraries joined a coalition of 43 civil liberties, human rights and public interest organizations sent a letter to Senate leadership supporting swift passage of the USA FREEDOM Act (S. 2685) and expressing concerns regarding the Cybersecurity Information Sharing Act of 2014 (CISA, S. 2588).
The letter urges the Senate to pass the S. 2685 in its current form, noting that this version of the USA FREEDOM Act would end bulk collection of records under Section 215 of the USA PATRIOT Act, a provision known as the “library records” or “business records” provision,” as well as under National Security Letter authorities. As the letter explains, S. 2685 also provides for other significant reforms including enhanced transparency, appointing of a special panel of civil liberties and privacy advocates to the FISA court, and limiting the purpose for which call detail records collected under Section 215 may be used.
Given these improvements, the signatories to the letter are “eager for Congress to pass this legislation swiftly and without weakening the bill.” As these groups previously expressed, Congress should not weaken the USA FREEDOM Act through consideration of new mandatory data retention requirements. The letter urges the Senate to make passage of the USA FREEDOM Act (S.2685) a legislative priority for September.
The letter then notes its opposition to and concerns regarding the CISA, pointing out that “Ironically, just as Congress is struggling to pass meaningful surveillance reform to rein in the NSA, the Senate Select Committee on Intelligence has approved a problematic bill that would give the NSA even more access to American’s data.” Advocacy groups have previously written to Congress and the President opposing CISA because the bill would pose serious threats to privacy by allowing information to automatically be disseminated to the NSA and other government agencies.
The letter concludes:
We therefore urge the Senate to swiftly pass the USA FREEDOM Act (S. 2685) without any amendments that would weaken its protections or create any new data retention mandates, and without taking up the Cybersecurity Information Sharing Act (S. 2588 in its current form. The Senate cannot seriously consider controversial information-sharing legislation such as CISA without first completing the pressing unfinished business of passing meaningful surveillance reform.
On July 29, 2014, Senator Leahy (D-VT) re-introduced a new version of the USA FREEDOM Act, co-sponsored by Senators Lee (R-UT), Durbin (D-IL), Heller (R-NV), Franken (D-MN), Cruz (R-TX), Blumenthal (D-CT), Udall (D-NM), Coons (D-DE), Heinrich (D-NM), Markey (D-MA), Hirono (D-HI), Klobuchar (D-MN), and Whitehouse (D-RI). ARL supports this version, which includes major improvements over the version passed in the House (H.R. 3361) on May 22, 2014, including more effective language to end bulk collection and protect civil liberties and strengthened transparency provisions. ARL has signed on to two letters supporting the new version of the USA FREEDOM Act, including one that focuses on the enhanced transparency provision and one that addresses the bill more comprehensively. Both letters urge Congressional leadership to act swiftly and pass the new version, without any dilution or amendment.
The version that passed the U.S. House of Representatives represented a significantly watered down version after changes were made by the House Rules Committee on the eve of the floor vote on the bill. Although the House passed the bill, half of the original House co-sponsors to the USA FREEDOM Act withdrew their support and opposed the weakened version because it did not go far enough in curtailing the Government’s ability to conduct bulk collection and failed to protect privacy and civil liberties in the same manner as prior versions. Organizations that originally supported the USA FREEDOM Act withdrew support for the House version and urged the Senate to ensure meaningful reform.
Leahy’s version narrowly defines a “specific selection term” in an effort to effectively curb bulk collection. It clearly prohibits the collection of broad swaths of information under Section 215—the provision known as the “business records” or “library records” provision—such as all information related to a broad geographic region (such as a city, state, zip code or area code). It also enhances minimization procedures, requiring the government to delete data it has collected on individuals that are not targets of the investigation or contacts of such individuals and limits the purpose for which call detail records may be generated.
The new version of the bill would also make several reforms to the FISA Court, such as requiring that unclassified summaries of FISC opinions include information necessary to understand the impact on civil liberties. It would also require disclosure of FISC opinions of “new construction or interpretation of the term ‘specific selection term.’” It provides further protections by providing for a Special Advocate position charged with protecting privacy and civil liberties and requires that the Office of the Special Advocate has access to relevant legal precedent and materials necessary to participate in FISC proceedings.
Finally, Leahy’s new version improves on the House version through enhanced transparency provisions. It requires the government to report on the number of U.S. persons whose information was collected and number of searched conducted under Section 215. It reduces the time a company must wait after receiving a FISA order before reporting on it from two years to one year.
A detailed comparison between the House-passed version and Senator Leahy’s new version is available through the Center for Democracy and Technology.
On July 24, 2014, the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet continued its copyright review with a hearing on copyright remedies. Witnesses at this hearing include Mr. David Bitkower, Acting Deputy Assistant Attorney General in the Criminal Division, U.S. Department of Justice; Mr. Steven M. Tepp, President and Chief Executive Officer, Sentinel Worldwide; Mr. Matt Schruers, Vice President for Law and Policy, Computer & Communications Industry Association; Mr. Sherwin Siy, Vice President of Legal Affairs, Public Knowledge; and Ms. Nancy E. Wolff, Partner, Cowan DeBaets, Abrahams & Sheppard LLP.
The Library Copyright Alliance filed a statement for the hearing, focusing on the problems with statutory damages. The statement notes that the existing safe harbor requiring a court to remit statutory damages when a library, archive, educational institution or public broadcasting entity believed and had reasonable grounds to believe that its use constituted fair use applies only to the reproduction right. The statement recommends an update to reflect the digital era so that this safe harbor applies to any type of use, including those implicating performance, display, distribution or derivative work rights.
On July 18, 2014, ARL, together with ten other library and higher education groups filed comments with the FCC on net neutrality. These comments largely expand on the points made in the Net Neutrality Principles jointly filed by library and higher education groups on July 10, 2014, going into greater detail and making specific suggestions to strengthen the proposals made in the FCC’s Notice of Proposed Rulemaking.
Importance of Net Neutrality for Libraries and Higher Education
The comments point out that library and higher education organizations depend on the open Internet, or net neutrality, to carry out their missions and ensure the protection of freedom of speech, education achievement and economic growth. It notes that the essential character of the Internet is an open platform, promoting “the open exchange of information, intellectual discourse, research, free speech, technological creativity, innovation and learning.” The comments recommend that the FCC’s final order recognize the value of net neutrality for education, research and freedom of speech.
Specifically, the comments note that public libraries provide Internet access to their patrons, a particularly necessary service for the approximately one-third of the population that do not have broadband access at home but rely on such access for homework assignments, to locate e-government services, find health information, apply for jobs, share digital content and other activities. Higher education institutions make Internet access available to their students, faculty, researchers and administration. Many students today are also involved in distance learning—including MOOCs—or hybrid courses and therefore depend on the availability of high-bandwidth Internet access. Degradation of Internet transmission speeds would detrimentally impact these populations and activities.
The comments also provide seven specific examples of projects and services by libraries and higher education institutions that provide important access to information and culture but depend on net neutrality to disseminate. Three of these examples include:
Specific Proposals to Strengthen the Proposed Rules
The joint comments lay out several specific proposals to strengthen those proposed rules published in the FCC’s NPRM. The FCC could strengthen the rules and address the concerns of libraries and higher education by:
Legal Basis for the FCC’s Actions
The comments clearly note that if the FCC reclassifies broadband Internet service as a Title II “common carrier” service, it would provide valuable certainty in the market place and ensure that the goal of prohibiting discrimination. However, if the FCC chooses not to reclassify and use its Title II authority, it may act under its Section 706 authority.
The comments recommend, however, that should the FCC exercise its Section 706 authority rather than choosing to reclassify broadband Internet services, the agency should use an “Internet reasonable” standard rather than a “commercially reasonable” standard because “a ‘commercially reasonable’ approach could be interpreted to allow any broadband and edge provider to reach a contract to provide “paid prioritization”. If the two companies reach an agreement that they mutually believe to be in their commercial interests, it might be found “commercially reasonable” even if it has the effect of degrading the Internet service used by other parties (such as higher education institutions and libraries) sharing the same network.”
The comments note that an “Internet reasonable” standard would recognize the Internet’s unique character and propose four rebuttable presumptions that the FCC could use to evaluate the reasonableness of an Internet provider’s actions. The following four activities should be considered presumptively unreasonable: 1) requiring approval to carry lawful content, applications or services; 2) allowing paid prioritization; 3) undermining the open architecture of the Internet; and 4) degrading the level of service provided and discouraging investment in greater bandwidth to a non-prioritized party.
The written testimony of four of the five witnesses speaking at the July 15, 2014 House Judiciary Subcommittee Hearing on Moral Rights, Termination Rights, Resale Royalty and Copyright Term, address the issue of copyright term. Notably, none of these witnesses suggest that the current term be extended further and Professor of Law Michael Carroll argues that the current term of protection is too long. Although the other witnesses did not propose extension of copyright, it should be noted that Rick Carnes, President of the Songwriters Guild of America, asserts that the current copyright term in the United States is appropriate and should not be shortened. Although he devotes only a single paragraph to the issue of copyright term, his written testimony nonetheless contains statements that are misleading or untrue.
Myth 1: The current copyright term represents the international standard. Mr. Carnes’ written testimony asserts that “suggestions that the United States should break with the rest of the world to reduce the current term of copyright protection (designed specifically to allow creators to address the economic welfare of their families for a time period limited basically to the lives of their grandchildren) in order to stimulate ‘faster growth of the public domain’ should be rejected outright.”
Fact: The copyright term in the United States extends well beyond the Berne Convention’s standard and beyond the term of protection in the majority of countries. Many countries’ copyright terms are set by the international agreements to which they are bound. The Berne Convention sets the minimum copyright term as the life of the author plus fifty years. The current term of protection in the United States is set at a period of the life of the author plus an additional seventy years. For corporate works or “works for hire,” the period of protection is set at ninety-five years. These terms far exceed what is required by international law.
Reducing the copyright term to the Berne standard would not “break with the rest of the world” as suggested by Mr. Carnes. The vast majority of countries use the Berne standard of life plus fifty years; there are almost twice as many countries with a period of protection shorter than the current term in the United States than there are countries with a period of life plus seventy years or greater.
Myth 2: The U.S. Copyright Office considers the current copyright term as proper. Mr. Carnes’ written testimony asserts that the “U.S. Copyright Office, Congress and the United States Supreme Court have considered this issue on numerous occasions and determined that the current term of copyright protection established under Article I Section 8 of the U.S. Constitution is not only proper, but serves the dual purpose of supporting the marketplace of ideas by encouraging professional creativity and bolstering the U.S. economy and balance of trade as well.”
Fact: The U.S. Copyright Office has questioned the value of a lengthy copyright term. As noted in the LCA statement, Register of Copyrights Maria Pallante has suggested that the current copyright term in the United States may not be beneficial. Ms. Pallante noted in a 2013 speech:
The benefits of a lengthy term are meaningless if the current owner of the work cannot be identified or cannot be located. Often times, this is complicated by the fact that the current owner is not the author or even the author’s children or grandchildren. As the Copyright Office recognized in one of its key revision studies of the 1950s, it seems questionable whether copyright term should be extended to benefit remote heirs or assignees, “long after the purpose of the protection has been achieved.”
The Copyright Office has clearly expressed its concerns regarding copyright terms extending well beyond the life of the author and Mr. Carnes’ assertion that the Copyright Office has determined that a period of life plus seventy years is appropriate is simply untrue.
Further, in recognition of the harms that the 1998 Copyright Term Extension Act has caused, Ms. Pallante has proposed the reintroduction of formalities for the last twenty years of protection.
Myth 3: The Supreme Court has determined the current copyright term is proper. Mr. Carnes also asserts that the Supreme Court has endorsed the present copyright term as proper, a misreading of Eldred v. Ashcroft.
Fact: The Supreme Court never addressed the question of whether a period of protection of life plus seventy years was appropriate. The Court only upheld the power of Congress to set the term and extend the term retroactively. The majority opinion in Eldred, while upholding the Copyright Term Extension Act, never addressed the propriety or benefits of the extension itself. Instead, the court addressed “the authority the Constitution assigns to Congress to prescribe the duration of copyrights.” As Justice Stevens’ dissent further points out, the question of “whether the extraordinary length of the grants authorized by the 1998 Act are invalid because they are the functional equivalent of perpetual copyrights is a question that need not be answered in this case because the question presented by the certiorari petition merely challenges Congress’ power to extend retroactively the terms of existing copyrights.”
The Court, by a 7-2 margin, interpreted the term “limited Times” as meaning “confined within certain bounds, “restrained,” or “circumscribed” and found that extending the copyright term by twenty years did not exceed this prescription. The majority then noted that on the question of whether the extension was a “rational exercise of legislative authority conferred by the Copyright Clause … we defer substantially to Congress.” The Court went on to state that the act “reflects judgments of a kind Congress typically makes, judgments we cannot dismiss as outside the Legislature’s domain.” Justice Stevens’ dissent notes that, “Fairly read, the Court has stated that congress’ actions under the Copyright/Patent Clause are, for all intent and purposes, judicially unreviewable.”
Notably, the Court states that in finding that the extension was a rational exercise of authority, “we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be.” The majority never decides whether the extension to the present term of life plus seventy is appropriate and could, arguably, be interpreted as suggesting that the extension might be unwise.
While neither the majority nor Justice Steven’s dissent address the appropriateness of the copyright term extension, Justice Breyer’s dissent vigorously opposes the extension as violating the Constitutional rationale of the intellectual property system:
The economic effect of this 20-year extension—the longest blanket extension since the Nation’s founding—is to make the copyright term not limited, but virtually perpetual. Its primary legal effect is to grant the extended term not to authors, but their heirs, estates or corporate successors. And most importantly, its practical effect is not to promote, but to inhibit, the progress of “Science”—by which word the Framers meant learning or knowledge.
On July 15, 2014, the House Committee on the Judiciary Subcommittee on Courts, Intellectual Property and the Internet continued its copyright review with a Hearing on Moral Rights, Termination Rights, Resale Royalty and Copyright Term. The Library Copyright Alliance (LCA) filed a statement addressing the topic of copyright term, noting the negative effects that lengthy copyright terms have on the public domain.
The statement notes that the Constitutional rationale for intellectual property protection is “to promote the Progress of Science and useful Arts, by security for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The Supreme Court has interpreted this rationale as having an “ultimate aim … to stimulate creativity for the general public good.”
The statement then goes through the history of copyright term in the United States, which was initially a limited period of fourteen years, with the possibility of renewal for an additional fourteen years, a period far shorter than the current term of the life of the author plus an additional seventy years. It also points out that while patents and copyrights originally had similar periods of protection, the patent term has increased by only 43 percent while the copyright term has increased by almost 580 percent.
Copyright term extensions hinder the goal of “stimulat[ing] creativity for the general public good” by shrinking the public domain. The public domain is essential to allowing access to books and texts, and also promoting future creativity by providing raw materials upon which artists and authors can build. Longer copyright terms escalate the costs of access to knowledge by requiring licenses for a greater period of time and increasing the resources that must be devoted to finding the rightsholder.
The statement also points out that a copyright term that extends beyond the life of the author exacerbates the orphan works problem. Maria Pallante, Register of Copyrights, has noted that the Copyright Office recognized in a study “it seems questionable whether copyright term should be extended to benefit remote heirs or assignees, ‘long after the purpose of the protection has been achieved.’”
Additionally, the statement calls for evidence based copyright policy. It points to the independent Hargreaves report commissioned by the United Kingdom as well as an article published in the Review of Economic Research on Copyright Issues, both of which point out that the economic evidence does not support copyright term extensions, including the current lengthy term that exists in the United States.
Finally, the statement recommends that Congress explore ways to shorten the present term or mitigate its harms, for example, by considering Ms. Pallante’s proposal to reintroduce formalities for the final twenty years of copyright protection.
On July 8, 2014, the Library Copyright Alliance filed an amici brief in the Court of Appeals for the Second Circuit in Authors Guild v. Google in favor of Google’s transformative use in creating Google Book Search (GBS). The Southern District of New York previously ruled in favor of Google, finding that GBS provided significant public benefits and constituted fair use.
The brief notes that GBS has become an essential research tool for LCA members and includes numerous examples and quotations—both in the text of the brief and accompanying appendix—from librarians explaining the value of the snippet display provided by Google. The snippet display allows librarians and researchers to identify materials that are hard to find, conduct research, developing curricula and collections, make determinations on whether to request particular books through interlibrary loans, and checking citation.
The snippet display is a critical function that makes GBS a valuable research tool yet does not substitute for the full text, displaying only three short snippets in response to a query. The brief notes that the Appellants in the case negotiated and agreed to a settlement (ultimately rejected by Judge Chin, leading to this continuing litigation) which would have allowed Google to provide a free “Preview” service that would have allowed display of up to twenty percent of the book’s text—far more than the GBS snippet display. The brief points out that “If display of 20 percent of a book did not cannibalize sales of the book, then surely display of a few snippets of a book would not do so either.”
The third section of the brief discusses the relationship between Section 108 and fair use, addressing the argument made by the amici for Authors Guild . The brief points out that the Second Circuit’s own ruling just a month prior in Authors Guild v. HathiTrust rejected the argument that the existence of Section 108 forecloses reliance on fair use. Section 108 not only includes an explicit savings clause, but the legislative intent clearly demonstrates that specific exceptions codified in the Copyright Act “do not limit the availability of fair use for conduct that does not fall within its scope.” Legislative history in both the Senate and the House discuss the relationship between Section 108 and fair use, noting that Section 108 was designed to give libraries a safe harbor and rights in addition to fair use.
Finally, the brief notes that the copies Google made available to partner libraries constituted fair use. Quoting the district court, the brief points out that “the purpose of the library copies is to advance the libraries’ lawful uses of the digitized books consistent with the copyright law.” Even if the Second Circuit evaluates Google’s purpose, rather than the libraries’ purpose, the brief points out that GBS did not affect the market because libraries would not have paid licensing fees to digitize books in their collections; libraries do not have the budgets to pay for digitization licenses for legacy materials nor is there an efficient mechanism to pay for such licensing. The brief emphasizes that a potential market for extended collective licensing agreements are speculative and do not constitute existing or potential traditional markets.
On July 9, 2014, ARL joined thirty-four other organizations in sending a letter to ministers of the Trans-Pacific Partnership (TPP) negotiating parties opposing the copyright term of life plus seventy years proposed by the United States. These organizations, representing libraries, archives, authors, educators, students, digital rights advocacy groups, and technological innovators, note that this extended copyright term threatens the public domain. The letter notes that “the extension of the copyright term results in a net welfare loss to society, and effectively amounts to a transfer of wealth to a small number of multinational copyright-holding companies … This transfer of welfare in favor of large corporate copyright owners will come at the cost of those who depend upon access to copyright works that would otherwise be in the public domain—libraries, students, artists, writers, and millions of other people.”
TPP negotiators are currently meeting behind closed doors in Ottawa, Canada, in an effort to finalize negotiations for the large regional trade agreement which now has twelve negotiating parties: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States.
On July 3, 2014, the District Court for the Southern District of New York issued its memorandum and order in White v. West Publishing following its grant of summary judgment for the defendants in February 2013 finding in favor of fair use. The case involved a claim by attorneys Edward White and Kenneth Elan who claimed copyright infringement after West Publishing and Reed Elsevier placed legal briefs written by White and Elan into their Westlaw and Lexis databases.
In creating the databases, West Publishing and Reed Elsevier converts the filed legal documents into a text-searchable electronic file and is tagged with metadata to allow users to find and retrieve documents more easily. The editors also link the document to decisions and other filings in related cases and create links to authorities cited.
In finding in favor of fair use, Judge Rakoff evaluated the four statutory fair use factors:
In examining each of these factors, the district court found that three of the four weighed in favor of fair use, while one factor was neutral.
On the first factor, the district court found that the use of the briefs was transformative because the use of the briefs in the database was to create an interactive legal research tool, a “sharply different objective” than the original purpose of the briefs. Additionally, the district court noted that the converting, coding and linking of the documents “add something new, with a further purpose or different character” than the original. The district court pointed out that while the use was commercial, the highly transformative nature of the use diminished the importance of the character of the use.
With respect to the second factor, the district court noted that the briefs represented presentations of fact and law and therefore this factor weighed in favor of fair use.
The district court noted that with regard to the third factor, West and Lexis copied the entire work. However, the “defendants only copied what was reasonably necessary for their transformative use, and … the third factor is therefore neutral.”
Finally, on the fourth factor, the district court found no market harm because the databases do not provide a substitute for the original market. The court stated, “West’s and Lexis’s usage of the briefs is in no way economically a substitute for the use of the briefs in their original market: the provision of legal advice for an attorney’s clients … Furthermore, no secondary market exists in which White could license or sell the briefs to other attorneys, as no one has offered to license any of White’s motions, nor has White sought to license or sell them.” The district court also rejected the idea that a potential market exists to license briefs.
Although the district court does briefly reference potential markets, it focuses on the market effect on the original market thereby following the recent Second Circuit opinion in Authors Guild v. Hathitrust which stated that the analysis of the fourth factor “is concerned with only one type of economic injury to a copyright holder: the harm that results because the secondary use serves as a substitute for the original work.” A limited focus on the harm to the market for the original work suggests that lost licensing revenue is not relevant in the fair use analysis when the use is transformative and does not impact the original market.