ARL Policy Notes
Observations from House Judiciary Committee Hearing on Surveillance and FISA Reforms

On February 4, 2014, the House Judiciary Committee held a hearing on “Examining Recommendations to Reform FISA Authorities.” The written testimony of the six witnesses and the statement of Chairman Goodlatte (R-VA) are available here. Ranking Member Conyers’ (D-MI) opening statement is available here.

The witnesses were divided into two panels. The first panel included James Cole (Department of Justice), Peter Swire (President’s Review Group on Intelligence and Communications Technology), and David Medine (Privacy and Civil Liberties Oversight Board). The second panel included Steven Bradbury (Dechert, LLP), Dean Garfield (Information Technology Industry Council) and David Cole (Georgetown University Law Center). The vast majority of the time and questioning from Members of Congress was spent on the first panel.

The focus of the hearing was on Section 215 of the PATRIOT Act (the section known as the library records provision under which the NSA claimed authority to collect bulk data of telephone records; this provision could also be used to obtain other “business records” including library records). Some questions also covered the Section 702 program, which targets non-U.S. persons. The majority of the Committee members appeared to support reforms to the program, with numerous members pointing to their support for the USA FREEDOM Act. Several members also focused on the need to restore trust amongst the American people.

During opening statements, Chairman Goodlatte noted that President Obama had not articulated how the bulk collection of telephony metadata had thwarted terrorist plots. He also questioned the President’s proposal to transfer the storage of bulk data to private companies, pointing to recent security breaches of Target and Yahoo!.

Ranking Member Conyers called the Section 215 bulk collection program ineffective, inconsistent with American values and inconsistent with the statutory language. He pointed out that Section 215 of the PATRIOT Act is scheduled to sunset on June 1, 2015 and if the bulk collection issue is not addressed, the Government risks losing Section 215 in its entirety. Conyers praised H.R. 3361, the USA FREEDOM Act, which has 130 House Members supporting the bill with an even split between Democrats and Republicans (Senator Leahy introduced an identical bill in the Senate), a point reiterated by several other members of the Judiciary Committee. The bill, among other things, would amend Section 215 to prohibit bulk collection and require showing a nexus between the business records sought and the person targeted.

First Panel

James Cole, Deputy Attorney General at the U.S. Department of Justice (DOJ), statement focused on President Obama’s January 17, 2014 speech laying out proposed reforms, including having third party storage of the bulk data, establishing an independent voice before the FISA courts, and establishing greater transparency. He also argued that the bulk collection of telephony metadata was constitutional and permitted under the PATRIOT Act.

Several members questioned Cole regarding the value of the bulk collection of telephone data and the appropriate metric in assessing its benefits. He repeatedly asserted that the program was useful and that pointing to the number of terrorist plots thwarted was not an appropriate metric in assessing the value of the Section 215 program, though Cole did not provide an alternative metric other than to call the program “helpful.”

Peter Swire of the President’s Review Group (PRG) gave an overview of the makeup of the review group and the scope of their report. He noted that while the Privacy and Civil Liberties Oversight Board had done legal analysis around the statutory language of Section 215 and the First and Fourth Amendments, this analysis was not undertaken by the President’s Review Group.

In response to criticisms regarding the risks of permitting third parties to house the bulk data, particularly in light of security breaches, Swire pointed out that the NSA has had leaks and all databases are at risk. He also noted that telephone companies already collect the data and requiring them to store such data would not create any new harms.

David Medine, Chairman of the Privacy and Civil Liberties Oversight Board (PCLOB), gave an overview of the conclusions of the recently issued report on Section 215, noting that PCLOB would be issuing a separate report on Section 702 in the coming months. He pointed to the PCLOB’s majority conclusion that the Section 215 program violated the statutory parameters of the PATRIOT Act, but also raised serious concerns regarding the First and Fourth Amendments. He noted that the benefits of bulk collection were “modest at best” and such benefits were outweighed by the concerns regarding civil liberties and privacy. The Board recommended termination of the Section 215 bulk collection program.

Medine also pointed out that the Administration’s interpretation of Section 215 takes an overly expansive view of the term “relevant.” He noted that Congress intended to put limits on Section 215 when it was created, but that these limits were ignored with an interpretation that “relevant” covered everything.

Representative Sensenbrenner (R-WI) pointed out that he was the principal author of the PATRIOT Act as well as its two reauthorizations (Sensenbrenner also introduced the USA FREEDOM Act into the House) and that the revelations about how Section 215 was being used were a shock, a sentiment later echoed by Representative Lofgren (D-CA). Sensenbrenner asserted that there was no way that the PATRIOT Act, as interpreted by the Administration, would have been approved or reauthorized if debated in Congress and that no fair reading of the Act could support the bulk collection of telephony metadata. When Cole stated that the DOJ had not taken a position on the USA Freedom Act, Sensenbrenner suggested that the DOJ quickly take a position because the Government is faced with a choice between the USA Freedom Act or having no authority when June 1, 2015 comes around and Section 215 expires. These sentiments were echoed by Representative Nadler (D-NY)

Representative Bachus (R-AL) seemed to be one of the few Committee members that did not want to see changes made to the program. He cited a letter by Judge John Bates, which expressed concerns in allowing a public advocate participate in FISA Court hearings.

Representative Lofgren (D-CA) asked what data, other than telephone data, could be collected. She asked whether credit card information or Internet browser cookies could be collected. Cole argued that not everything could be collected, only what was “necessary.”

Both Lofgren and Representative Issa (R-CA) asked whether the telephony metadata of Members of Congress had been collected. Swire said that to his knowledge, nothing had been screened out. Cole agreed that there was no reason to think otherwise, but argued that because the data had been collected into a database did not mean that it had been looked at. Issa also asked whether telephony metadata of the Executive Branch, including the President’s, as well as the records of the numerous embassies in the United States, had also been collected and Cole stated that he believed every phone number’s metadata was included in the database.

Representative Poe (R-TX) asked Cole to name a criminal case that had been filed as a result of the metadata program. Cole stated that there may be one material support case, but argued that the point of the statute was not to pursue criminal cases but to gather foreign intelligence.

Second Panel:

Steven Bradbury, attorney at Dechert, LLP and former head of the Office of Legal Counsel at the DOJ, argued that the NSA programs did not violate any statutory or constitutional laws. He argued that numerous FISA court judges had upheld the programs. He also asserted that all Members of Congress were informed about or had the opportunity to be briefed on the details of the Section 215 and 702 programs during their reauthorizations. He stated that the programs were critically important and argued against any changes, expressing disappointment with President Obama’s proposals to reform the programs.

Dean Garfield, President and CEO of the Information Technology Industry Council, pointed to the impacts that the revelations about bulk collection of data have had on the information and communications technology sector. He stated that the revelations about the programs had eroded trust in U.S. companies and the security of the data they collect. He also warned that forcing localized storage could result in “Balkinization” of the Internet. He advocated for greater transparency and oversight, as well as clarification of what Section 215 permits.

Some members raised concerns about how U.S. companies could be disadvantaged globally as a result of the NSA revelations, a point on which Garfield agreed. He noted that concerns included cost, storage concerns, and the public lack of trust, including the perception that companies are not independent from the U.S. Government.

David Cole, Professor of Constitutional Law and National Security at Georgetown University Law Center, expressed support for the USA FREEDOM Act. He pointed out that because of evolving technology, privacy law must be adapted in light of the increased ease of collecting massive amounts of data. He also argued against defenders of the NSA collection practices by pointing out that the former NSA general counsel had stated that metadata can reveal an enormous amount about a person’s life and with enough metadata, content is unnecessary.

Chairman Goodlatte questioned Bradbury, pointing to concerns about privacy when bulk data is collected. Bradbury responded that there were hypothetical concerns about abuse, but these concerns did not match the reality of the programs. He also pointed out that the Securities and Exchange Commission, Federal Trade Commission and Consumer Financial Protection Bureau also collect massive amounts of data and that the NSA should not be singled out.

Lofgren raised concerns regarding the expectations of privacy in the modern world. In response, Cole stated that the defining question is how to preserve the right to privacy in the face of new technologies and that it was the responsibility of Congress to address these issues. He said that without Congressional action, there is a risk of surrendering privacy to the digital age.

Representative Nadler called the FISA court a “kangaroo court” because of its one-sided and secretive nature. He pointed out that while technology evolves and metadata is collected, people still have an expectation of privacy. Cole then pointed out that the metadata collection programs were the same as issuing a general warrant.

Observations from House Judiciary Subcommittee Hearing on Fair Use

The House Judiciary Committee Subcommittee on Courts, Intellectual Property and the Internet continued its copyright review and held another hearing on Tuesday, January 28th. This hearing focused exclusively on the scope of fair use and the Library Copyright Alliance (LCA) submitted a written statement in advance of the hearing.

Fair use, originally a common law doctrine, is codified under Section 107 of the Copyright Act and permits reproduction and other uses of copyrighted works for purposes such as criticism, comment, news reporting, teaching, scholarship and research. The statute includes four factors for consideration, including the character of the use, the nature of the work, the amount used in proportion to the whole, and the impact on the market for the work. Failure to meet all four criteria, however, does not bar a finding of fair use. Fair use is flexible and determinations for qualification under this doctrine are made on a case-by-case. Many of the statements made during the hearing, as well as the questions from Members, focused on the first factor, in particular the proper interpretation and application of whether a use has been “transformative.”

The hearing included five witnesses: Professor Peter Jaszi (American University); Professor June Besek (Columbia University); Naomi Novik (Author and co-founder of Organization for Transformative Works); David Lowery (Singer/Songwriter and Lecturer, University of Georgia); Kurt Wimmer (General Counsel of the Newspaper Association of America). For the most part, the witnesses did not recommend any statutory changes to Section 107 of the Copyright Act, even when they did not agree with particular court rulings regarding fair use. All witnesses seemed to agree that the courts are in the best position to determine whether a use is fair. Below are some brief observations from the hearing.

Testimony from Witnesses

Professor Peter Jaszi spoke first and gave background to the fair use doctrine, noting that the “transformative use” test was considered “unified field theory.” He also spoke on how courts have applied fair use in ways that both foster future innovation and serve the public interest. He suggested that, despite criticisms to the contrary, the jurisprudence on fair use is fairly predictable and coherent. He opposed reform to fair use, but suggested that the doctrine could use support, such as through changes in the statutory damage regime.

Professor June Besek went next and argued that fair use has been expanding. She criticized the application of fair use that has allowed new business models, rather than just new works of authorship. She suggested that “transformative use” has caused confusion with derivative works and argued that the pendulum has moved too far in the direction of the users.

Naomi Novik spoke next, beginning with her background as a New York Times bestselling author who, prior to writing her first novel, wrote fan-fiction and was a remix artist. She analogized fan-fiction to telling stories around a campfire. She also argued that licensing is unrealistic for both the writers of fan-fiction as well as the original authors because of the time, money and legal concerns. She suggested that Congress should lower damages in order to make fair use less frightening for the everyday person. She also proposed an exemption for non-commercial uses, such as those telling their stories around a metaphorical campfire.

David Lowery, a singer/songwriter, followed and clearly stated that fair use is working for the music industry. He raised concerns, however, about two particular areas where he felt that there were efforts to expand fair use to uses he did not think were covered under the statute. These areas include remixing and lyric websites. He noted that some music genres, such as hip hop, continue to flourish under licensing and fair use need not be expanded to promote these works. He also asserted that lyric websites that include annotations of the lyrics are not fair use and argued that it is not hard to ask for permission.

Kurt Wimmer, the final witness on the panel, serves as general counsel of the Newspaper Association of America. He noted that newspapers are rightholders, but also are reliant on fair use. He noted that while he does not agree with every fair use decision, the courts are in the best position to make these determinations. He expressed some concerns about the breadth of recent court decisions regarding transformative uses, but cited his support for the Swatch v. Bloomberg case that came down in favor of Bloomberg’s fair use argument just the day prior.

Questions From Members

Following witness statements, several Members posed questions to the witnesses. These questions covered a wide range of issues, including, among others, how to define “transformative,” whether exporting the doctrine of fair use to other countries is appropriate, and whether fair use is currently working for all groups.

Conclusion

In general, it seemed that all witnesses agreed that the fair use doctrine should continue to be interpreted and applied by the courts and the proposed solutions to perceived areas of concerns could be done outside the scope of Section 107 (such as recalibration of damages). Although there was some disagreement between witnesses over whether particular uses would, or should, qualify as fair use, the witnesses agreed on the importance of this doctrine.

Fair use, of course, has been of critical importance in supporting libraries’ key functions and allowing it to serve its patrons. Although specific limitations and exceptions exist elsewhere in the Copyright Act, many of which libraries frequently use, fair use allows libraries to act where these specific exceptions are too narrowly drawn, where no exceptions exist, or when technological advances outpace the law. Although the Members at the hearing seemed to take a keen interest in fair use, given the testimony of witnesses, hopefully Congress will agree that fair use generally works well.

LCA Statement on House Judiciary Hearing on Scope of Fair Use

On Tuesday, January 28, 2014, the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held another hearing on copyright review. This hearing focused on the scope of fair use and included five witnesses: Professor Peter Jaszi (American University); Professor June Besek (Columbia University); Naomi Novik (Author and co-founder of Organization for Transformative Works); David Lowery (Singer/Songwriter and Lecturer, University of Georgia); Kurt Wimmer (General Counsel of the Newspaper Association of America).

Fair use, originally a common law doctrine, is codified under Section 107 of the Copyright Act and permits reproduction and other uses of copyrighted works for purposes such as criticism, comment, news reporting, teaching, scholarship and research. The statute includes four factors for consideration, including the character of the use, the nature of the work, the amount used in proportion to the whole, and the impact on the market for the work. Failure to meet all four criteria, however, does not bar a finding of fair use. Fair use is flexible and determinations for qualification under this doctrine are made on a case-by-case.

In advance of the hearing, the Library Copyright Alliance (LCA) submitted a written statement discussing how libraries rely on fair use in order to serve their users and meet their mission; how the federal government relies on fair use for photocopying and in the patent examination process; and how rights-holders rely on fair use in developing new works. The statement concludes that no changes are needed to the fair use doctrine.

Fair Use and Libraries

The LCA statement begins by noting the numerous areas where fair use allows libraries to achieve their missions and serve library patrons, including “the preservation of and providing access to our cultural, historical, local and scientific heritage; supporting and encouraging research, education, literacy and lifelong learning; and providing a venue for community engagement on a host of issues.” The statement recognizes fair use as “the most important limitation on the rights of the copyright owner – the most important ‘safety valve’ of U.S. copyright law for the public.”

Giving a few specific examples, the LCA statement first points to the importance of fair use for mass digitization of works, including for purposes of creating full-text searches, preservation, and providing access to users with disabilities. Libraries also rely on fair use to ensure digital preservation and provide tailored access programs to orphan works, those works where it is difficult or impossible to identify and locate the rightholder. Fair use also permits libraries to improve accessibility for person who are visually impaired or have other disabilities.

The statement also explains that the “Code of Best Practices in Fair Use for Academic and Research Libraries,” has identified eight situations where the library community has expressed a consensus regarding acceptable practices for fair use in these circumstances:

Supporting teaching and learning with access to library materials via digital technologies; using selections form collection materials to publicize a library’s activities, or to create physical and virtual exhibitions; digitizing to preserve at-risk items; creating digital collections of archival and special collections materials; reproducing materials for use by disabled students, faculty, staff and other appropriate users; maintaining the integrity of works deposited in institutional repositories; creating databases to facilitate non-consumptive research uses (including search); and collecting material posted on the world wide web and making it available.

Fair Use and the U.S. Government

The LCA statement points out that libraries are not the only entities that rely on fair use and federal agencies have relied on this doctrine in the patent examination process and for photocopying materials. A 2012 opinion issued by the general counsel of the U.S. Patent and Trademark Office (USPTO) concluded that copying and distribution of non-patent literature for use in providing those copies to applicants during the examination process; providing entire copies of the patent histories to the public; and applicants copying non-patent literature for submission to the USPTO were all covered by fair use. Similarly, a 1999 opinion issued at the request of the Department of Commerce noted that fair use was a critical component in supporting the constitutional rationale of copyright. It found that the public interest could be advanced through the use of government photocopying and was therefore relevant to the fair use inquiry. It cautioned the Department of Commerce and other federal agencies against negotiating license deals to permit photocopying where such photocopying was covered by fair use and therefore not infringing.

Fair Use and Rights-Holders

In addition to libraries and the federal government, content producers and rights-holders also rely on fair use. As noted in the LCA statement, two recent cases where infringement suits were brought against rights-holders, these rights-holders asserted that fair use was critical in promoting the progress of science and protecting the First Amendment.

In Bouchat v. Baltimore Ravens, for example, the Fourth Circuit found that “Fair use …is crucial to the exchange of opinions and ideas. It protects filmmakers and documentarians from the inevitable chilling effects of allowing an artist too much control over the dissemination of his or her work for historical purposes.” Furthermore, in its amici brief, film associations noted the importance of fair use in the creation of new content, noting that “Much creative culture is iterative; new works often do not arise in a vacuum, but rather are influenced by and draw upon the creative works that came before. As the Supreme Court held in Campbell, highly transformative works lie at the heart of fair use’s protection: they are the new expression that copyright law is meant to promote.”

Similarly, the LCA statement points to the case White v. West Publishing, where large publishers relied on fair use after creating a database product calling the doctrine a “necessary tool to further the goals of copyright law.”

Conclusion

The LCA statement recommends against changes to Section 107 of the Copyright Act, noting that the fair use doctrine has been successfully relied upon by diverse constituencies, including libraries, students, teachers, government agencies, patent applicants, artists and media companies.

Power to the People: Five Reasons Fair Use Best Practices Are Changing the World

by guest bloggers Patricia Aufderheide, University Professor, American University School of Communication; Brandon Butler, Practitioner-in-Residence at the Glushko Samuelson IP Clinic, American University Washington College of Law; and Peter Jaszi, Professor of Law and Faculty Director of the Glushko-Samuelson Intellectual Property Clinic, American University Washington College of Law

Copyright Week is the perfect occasion to celebrate fair use, certainly the most dynamic and arguably the most important doctrine in copyright law. The last 15 or 20 years have seen a remarkable series of developments that make fair use, now more than ever, the most vital protection of the public interest in the Copyright Act. For Copyright Week, we wanted to highlight a part of the fair use landscape that, perhaps more than any other, puts fair use in the hands of practitioners who need it most: the Fair Use Best Practices movement.

With a little help from a team of researchers at American University, an ever-growing cadre of communities has identified where their work necessarily encounters copyright and the kinds of fair uses that are essential to the communities’ continued flourishing and success. Each code (read them all here) contains a short but powerful description of fair use’s broad history and meaning, followed by a set of principles that describe situations where fair use may apply accompanied by limitations that describe the outer bounds of community consensus. The effects of these documents can be dramatic. Documentary filmmakers came first, and had great success, but they’ve been joined by educators, scholars, poets, online video makers, journalists, and (most importantly for this blog) librarians. As more and more people need fair use to continue getting things done, best practices are an idea whose time has come.

So, without further ado, we give you five reasons fair use best practices are changing the world:

  1. They’re based on solid legal footing. Specifically, path-breaking research by copyright scholar Michael Madison. Madison surveyed over a century of fair use decision making and found that, over and over again, courts determining whether a use was fair inquired into the mission and values of the communities standing before them to vindicate their fair use rights. Uses firmly grounded in the socially beneficial mission of a practice community were much more likely to be blessed as fair.

    Each code starts from that insight, together with the dominant paradigm of “transformative use” that informs court decisions in fair use. The community norms developed on this foundation are then further shored up by a legal review by five independent experts from diverse backgrounds who certify that the Code represents a reasonable application of fair use law to the practice area. Practices consistent with the Documentary Filmmakers Code have been blessed by federal courts, as have practices identified as fair in the #Librarianscode. Indeed, between Georgia State and HathiTrust, the practices described in four of the eight principles in the #librarianscode have been blessed by federal courts.

  2. They clear away the crud. Anyone who engages with copyrighted material for more than a few minutes will encounter a dizzying array of so-called ‘guidelines,’ rules of thumb, ‘negotiated’ agreements, and urban myths and legends that proliferate around copyright. The goal of best practices is to identify the best approaches to recurring fair use scenarios, rather than to measure the lowest common denominator of the status quo and freeze it in amber forever. Therefore, developing best practices is an opportunity for communities to step back and question current practice in light of the latest developments in fair use law and the broadest, deepest understanding of the mission of the community. Librarians, for example, categorically rejected the arbitrary numerical limits in the 1976 Classroom Photocopying Guidelines. On reflection, they were simply impossible to justify in light of the actual needs of librarians and the contours of modern fair use law.

  3. They make the law less alien, and rights less scary. By grounding fair use choices in practices and norms that are native to a community, best practices change attitudes toward fair use. People with a Code go from a kind of grudging, fearful “compliance” with an alien copyright law imposed from above to a unified exercise of core First Amendment rights that emerges from their own values. Teachers, librarians, filmmakers, and poets who used to feel like they were acting alone in the face of an intimidating body of law come to understand that they are actually engaged collectively in legitimate, lawful acts that are normal, indeed essential, for their profession.

  4. They help you get things done. The bottom line for any group with a shared mission and goals is whether they are able to advance mission and achieve goals. Where myth, misinformation, fear, uncertainty, and doubt dominate, any number of important projects and practices can be suppressed, driven underground, or stymied altogether. Films don’t get made, or they don’t get distribution; poems aren’t written or published; works languish in archives inaccessible to remote or print-disabled researchers. Best practices are relentlessly pragmatic and mission-centered; through them, practitioners articulate fair use solutions to real, live problems. When the community takes best practices seriously, real work gets done—work that might otherwise have been inconceivable.

  5. They help you get management on board. Almost everyone has a supervisor, counselor, or other gatekeeper who decides what projects they can pursue, whether their work will see the light of day, and so on. Whether it’s a Dean, a TV producer, or a publishing agent, sooner or later you’ve got to convince someone else that what you’re doing is legit. Understandably, gatekeepers are often expected (forced, even) to play the role of “copyright cop,” saying “no” to any project that looks like it might raise an eyebrow.

    Before best practices, each practitioner would face these folks alone, often as non-lawyers, and try to convince them to take a risk based on, well, who knows what. But with best practices in hand, practitioners can go to their Deans, their publishers, their producers, whomever, and say, “What I’m doing is normal. It’s grounded in the values of my community. And it’s in line with a document that’s been vetted by experts and endorsed by leading organizations in my field.” That’s powerful stuff! No wonder the Documentary Filmmakers code has been so transformative, as has the #Librarianscode, and many many others.

So, there you have it. As Copyright Week winds down and we contemplate the copyright system we have, and the opportunities for change and improvement, we submit that fair use best practices are, by far and away, the most accessible, effective, and powerful tool in the hands of the public.

For more information, check out the full roster of best practices at the Center for Media and Social Impact and check out Pat and Peter’s book, Reclaiming Fair Use.

ARL Disappointed with Court Ruling on Network Neutrality

ARL has issued a statement expressing disappointment with the DC Circuit’s January 14, 2014 ruling overturning the Federal Communications Commission’s (FCC) Open Internet Order’s anti-discrimination and anti-blocking rules. Research libraries, as providers of content and services on the Internet, research libraries and their parent institutions have long relied on and supported open and non-discriminatory access. The court’s ruling could result in prioritized delivery for those willing to pay to promote their content, advancing commercial interests over research library and higher education interests. ARL’s full statement is available here.

Carol Pitts Diedrichs, president of ARL stated, “The intellectual freedom that libraries, colleges, and universities have long championed would be threatened if network operators act as gatekeepers, bar access to competing or nonprofit voices, or relegate unpopular or non-commercial expression to the Internet’s slow lanes. We look forward to working with the FCC in considering the avenues available to ensure effective network neutrality and open Internet rules going forward.”

Notably, the DC Circuit did uphold the FCC’s broad authority to regulate broadband services, leaving open the possibility of further FCC action to promote net neutrality. The court noted that the FCC “reasonably interpreted section 706 [of the Telecommunications Act of 1996] to empower it to promulgate rules governing broadband providers’ treatment of Internet traffic, and its justification for the specific rules at issue here—that they will preserve and facilitate the ‘virtuous circle’ of innovation that has drive the explosive growth of the Internet—is reasonable and supported by substantial evidence.”

The FCC defended its regulations by arguing, “Internet openness … spurs investment and development by edge providers, which leads to increased end-user demand for broadband access, which leads to increased investment in broadband network infrastructure and technologies, which in turn leads to further innovation and development by edge providers.” Broadband providers provide high-speed communications technologies whereas edge providers provide content, services or applications over the Internet.

The DC Circuit agreed with the FCC’s assessment that broadband providers might abuse their power and discriminate against certain types of Internet traffic. The court noted that, “Because all end users generally access the Internet through a single broadband provider, that provider functions as a ‘terminating monopolist,’ with power to act as a ‘gatekeeper’ with respect to edge providers that might seek to reach its end-user subscribers … this ability to act as a ‘gatekeeper’ distinguishes broadband providers from other participants in the Internet marketplace—including prominent and potentially powerful edge providers such as Google and Apple—who have no similar ‘control [over] access to the Internet.’” In fact, the FCC provided evidence of four prior instances where broadband providers had utilized their “gatekeeper” function.

In rejecting the FCC’s anti-blocking and anti-discrimination regulations, the court pointed to the fact that the FCC classified broadband providers as “information service” rather than “telecommunications service.” This classification exempts providers in this category from the same obligations of “common carriers,” or traditional communication services such as landline telephone lines. It stated, “the Commission would violate the Communications Act were it to regulate broadband providers as common carriers” and ultimately concluded that these regulations amounted to common carrier obligations. The court therefore left open the possibility of the FCC reclassifying broadband providers as a “telecommunication service,” a category subject to common carrier regulations. Alternatively, the FCC could redraft its rules in accordance with the DC Circuit’s ruling to ensure that the principles of net neutrality are maintained.

LCA Hearing Statement for House Judiciary Committee Hearing on Copyright Reform

On January 14, 2014, the House Committee on the Judiciary Subcommittee on Courts, Intellectual Property and the Internet held another hearing on the issue of copyright reform, this one focusing on the broadcast right, the making available right, and state laws and building codes under copyright. In advance of the hearing, the Library Copyright Alliance (LCA) submitted a statement addressing all three issues. The full statement can be found here.

Broadcast Right

The World Intellectual Property Organization (WIPO) has considered proposals to create a broadcast treaty that would create a new intellectual property protection for broadcasters. This new right would create a right to control broadcasts and would exist in addition to the copyrights held by the creators of the programming shown, thereby creating an additional layer of rights to contend with for users of broadcasted content. The LCA statement notes that it has seen “no compelling public policy reason for a broadcast treaty” at the WIPO and, likewise, sees no justification for a broadcast right in the United States. In particular, LCA has concerns that a broadcast right could impact libraries by limiting classroom instruction, particularly for distance education; educational and research uses that are currently permitted by the Copyright Act; and public disclosure of news, public affairs programs, and public domain materials, particularly on the Internet.

Making Available Right

LCA also has concerns regarding the creation of a making available right, an exclusive right to authorize or prohibit communication of works or the “making available” of the work through interactive networks, a right that could expand the distribution and public performance rights that currently exist under U.S. law. LCA has particular concerns regarding a making available right and its impact on the three-year statute of limitations found in 17 U.S.C. §507(a). The concerns arise from courts’ interpretation of the distribution right in Hotaling v. Church of Jesus Christ of Latter-Day Saints and Diversey v. Schmidly. In these cases, the courts circumvented the three-year statute of limitations by distorting the meaning of the distribution right and finding that the mere availability of an unauthorized copy to the public qualifies as distribution, even where no patron ever borrowed the copy. The statement warns that, “A making available right has the potential to eviscerate the statute of limitations in copyright cases in the digital age. Accordingly, Congress should proceed in this area with great caution.”

A making available right could impact a wide range of activities and create liability even where an unauthorized copy of a work was never downloaded, used or truly distributed. For example, “an image [could be] included in a PowerPoint presentation that was archived on the website of a library association after the presentation was delivered. The image could be detected more than three years later by a company that crawls the web for an image-licensing firm, such as Getty or Corbis.” However, even if that presentation had never been downloaded in three-years, the creation of a making available right could overcome the three three-year statute of limitations and create liability. The LCA statement notes that “There is no policy justification for imposing strict liability for statutory damages simply because the potential existed during the three year limitation period for a person to have viewed the image, just as there is no policy justification for a library to be liable for infringing the distribution right with respect to a copy that was never borrowed.”

State Laws and Building Codes

LCA continues to oppose copyright protection for state laws in building codes and supports the Fifth Circuit’s 2002 decision in Veeck v. Southern Building Code Congress that “‘the law’ whether articulated in judicial opinions or legislative acts or ordinances, is in the public domain and thus not amenable to copyright.”

Veeck reflects the strong public policy that the public must have free access to the laws, in order to understand the legal rules to which they are subject. Notably, Veeck’s ruling was limited and applied only to reproduction of enacted model laws, not the model codes themselves, thereby continuing to provide the drafters of such codes the ability to protect their model laws or regulations through copyright.

The LCA statement supports the Fifth Circuit reasoning in _Veeck _that copyright is unnecessary to incentivize the creation of model laws or codes. As the statement notes, “The private sector spends literally billions of dollars each year lobbying legislative bodies. The notion that industry groups would stop drafting model laws that benefit them if they did not receive copyright revenues is, frankly, absurd. Certain groups might have to change their business models, but at the end of the day, the private sector will find a way to fund model law drafting activities because they simply are too important to the affected industries.”

Copyright Week: Transparency and the TPP

Transparency in government is a fundamental aspect of a democratic society. Citizens have the right to be informed and have access to information regarding political affairs and the laws and regulations that will impact them. Without access to information, the public is disadvantaged in its ability to make substantive commentary, challenge and influence public policy, or participate in the political process in a meaningful way.

For the past four years, the United States has been involved in secretive negotiations for a large, regional trade agreement known as the Trans-Pacific Partnership Agreement (TPP). Over the course of negotiations, the membership has grown and now includes twelve negotiating parties including Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam, covering a trading area that comprises forty-percent of the world’s GDP. Eventually, the agreement is intended to cover the entire APEC region.

The intellectual property chapter has been one of the most controversial chapters in the TPP. Over the course of the four-year negotiations, no government has officially released any of the negotiating text. The only reason that the public is aware of the proposals that have been drafted results from leaked text, primarily a March 2011 leak of the United States’ proposal for the chapter and a November 2013 leak of the consolidated intellectual property chapter which reflected each country’s negotiating position. The negotiations themselves take place behind closed doors and observers are not permitted. Although stakeholders are often permitted to make presentations, there is no guarantee that the relevant negotiators will attend such presentations. Further, it can be difficult to give meaningful presentations when the texts are kept secret. As ARL and other groups have noted previously with respect to the TPP and other agreements, transparency is key to the ability to comment on the negotiating text and “will ensure the forging of an agreement that does not unfairly prejudice any stakeholders.” With respect to the Free Trade Area of the Americas Agreement (FTAA), after the consolidated negotiating text was made public and comments invited, numerous library associations wrote positively regarding the open process for reviewing and commenting on the draft text.

The standards set in the TPP will create new global norms and it is important that those who will be affected by these standards have access to information about the agreement. Substantive and meaningful engagement can take place only with full knowledge and understanding of what provisions are at stake in the agreement. Without transparency, the negotiations lack legitimacy and represent a highly undemocratic process.

Unbalanced Access to Information

It should be noted that while the general public must rely on the possibility of leaks in order to gain substantive information about the agreement, hundreds of “cleared advisors” on the International Trade Advisory Committees (ITAC) have had access to the United States’ negotiating positions and texts throughout the process. ITAC-15, the committee on intellectual property rights, currently has seventeen members, all of whom represent corporate interests.

Not only is the general public kept in the dark, but there have also been reports that USTR has denied access to the text to Congressional staffers.

Members of Congress have criticized the secrecy of the agreement. Senator Sanders (I-VT), for example, in a December 1, 2011 letter to USTR concluded, “I firmly believe that the public has a right to monitor and express informed views on proposals of such magnitude as the TPP. While I recognize that some opportunity has been provided for the public to make presentations to delegates, I urge you to make the negotiating text of the TPP available to the public for review and comment. Without access to the actual texts being discussed, in my view the effective input and informed participation of the public is severely curtailed.”

After the November 2013 leak of the consolidated intellectual property chapter, Representative Zoe Lofgren (D-CA) criticized the copyright provisions, noting in a December 5, 2013 press statement that the agreement “is something that is backdooring, through a trade agreement, that which could not be obtained in Congress.” Numerous organizations and individuals have decried such “policy laundering.”

The final text of the TPP will bind all members to the agreement and make any changes extremely difficult. Even where the United States’ proposals do not seek to change current law, many of the provisions could be harmful by locking in standards and preventing reform. The inclusion of a chapter on investment in the TPP, including strong investor-state provisions by the United States, means the agreement has strong enforcement mechanisms. Not only can one TPP member country sue another for violations of the provisions of the agreement, but a corporation may sue the government directly for failure to implement the text of the TPP.

Locking in lengthy copyright terms

The United States tabled the copyright term that currently exists domestically, a period of the life of the author plus an additional seventy years. For corporate works, the period of protection is ninety-five years for published works or one-hundred-and-twenty years for unpublished works. The United States and the four countries with which it has existing bilateral trade agreements have supported this proposal of life plus seventy. By contrast, other countries have proposed the international standard of life plus fifty years.

The effect of including the life plus seventy copyright term in the TPP would be to lock in a lengthy term of protection that shrinks the public domain. In advance of the December 2013 TPP ministerial meeting, 29 organizations—including library and archival associations such as ARL, The American Library Association (ALA), the Australian Library and Information Association (ALIA), and the International Federation of Library Associations (IFLA), and the American Archivists (SAA)—and 71 individuals signed a letter directed to the trade ministers that warned that “The primary harm from the life + 70 copyright term is the loss of access to countless books, newspapers, pamphlets, photographs, films, sound recordings and other works that are ‘owned’ but largely not commercialized, forgotten and lost. The extended terms are also costly to consumers and performers, while benefiting persons and corporate owners that had nothing to do with the creation of the work.”

If the final text of the agreement includes a period of protection of life plus seventy years, such a term would be very difficult to change and would require re-negotiation with all TPP members. While Maria Pallante, Register of Copyrights, has suggested that the current term should be re-thought and that formalities should be re-introduced for the last twenty years of protection, the United States will be unable to amend its law to include formalities without violating the TPP.

Preventing reform of technological protection measures (TPMs)

The United States proposal includes highly prescriptive provisions on TPMs. The proposal makes the very act of circumvention of a TPM an independent cause of action, apart from any copyright infringement that may occur. The United States proposal uses a narrow and closed list of limitations and exceptions to anti-circumvention measures. The proposal also includes a three-year rulemaking procedure for additional limitations and exceptions, modeled after Section 1201 of the DMCA. The new limitations and exceptions are valid only for a three-year period and then must be renewed. If included in the final text of the agreement, new permanent limitations and exceptions could not be added without violating the TPP.

Several proposals have been made in Congress to add new permanent exceptions to permit the unlocking of cell phones after outrage over the Librarian of Congress’ refusal to renew such an exception. The Unlocking Technology Act of 2013, introduced by Representatives Zoe Lofgren (D-CA), Thomas Massie (R-KY), Anna Eshoo (D-CA) and Jared Polis (D-CO), goes beyond the cell phone issue and would permit all circumvention of TPMs for all non-infringing uses. However, because such legislation would create new permanent exceptions, it would violate the TPP if approved as currently drafted under the United States’ proposal. Thus, new permanent exceptions to allow unlocking of cell phones, or for example, to permit persons who are visually impaired or blind to overcome TPMs designed to limit access to the text-to-speech function on e-readers, would not be permitted.

Conclusion

The agreement is reportedly in its final stages. Although many areas of the intellectual property chapter remain controversial with little agreement, trade ministers met in Singapore in December to try to come to a deal. It is expected that the United States will make concessions regarding market access on sugar, dairy, textiles, and automobiles in exchange for other countries’ concessions to the United States’ demands on intellectual property.

In the next few weeks, another meeting of the TPP trade ministers will take place and is expected to take place in late January or early February. As with the last ministerial meeting, stakeholders will likely not be invited to attend, present, or meet with ministers. After the last ministerial, the ministers released a short statement with little substantive information regarding any agreements or offers that had been made.

The stakes for the TPP are high, creating new global norms and locking in provisions of United States law that may be controversial and in need of repeal or reform. The general public must have access to the negotiating texts in order to understand how the TPP will affect them and to contribute meaningful and substantial commentary regarding the proposals.

Copyright Week

This week, the Electronic Frontier Foundation (EFF) is hosting "Copyright Week" with each day devoted to a different issue. Copyright Week will last six days, ending on Saturday, January 18, the anniversary of the SOPA/PIPA blackouts. The week has many participants, including ARL.

Here is the lineup for Copyright Week:

Day 1: Transparency Copyright policy must be set through a participatory, democratic and transparent process. It should not be decided through back room deals or secret international agreements.

Day 2: Building and Defending a Robust Public Domain The public domain is our cultural commons and a public trust. Copyright policy should seek to promote, and not diminish, this crucial resource.

Day 3: Open Access The results of publicly funded research should be made freely available to the public online, to be fully used by anyone, anywhere, anytime.

Day 4: You Bought It, You Own It Copyright policy should foster the freedom to truly own your stuff: to tinker with it, repair it, reuse it, recycle it, read or watch or launch it on any device, lend it, and then give it away (or re-sell it) when you’re done.

Day 5: Fair Use Rights For copyright to achieve its purpose of encouraging creativity and innovation, it must preserve and promote ample breathing space for unexpected and innovative uses.

Day 6: Getting Copyright Right A free and open Internet is essential infrastructure, fostering speech, activism, new creativity and new business models for artists, authors, musicians and other creators. It must not be sacrificed in the name of copyright enforcement.

Analog or digital, no work will have much influence if it doesn’t stick around to be cited or argued with. The technological advances that make digital-humanities work possible also put it at risk of obsolescence, as software and hardware decay or become outmoded. Somebody—or a team of somebodies, often based in academic libraries or digital-scholarship centers—has to conduct regular inspections and make sure that today’s digital scholarship doesn’t become tomorrow’s digital junk.

Librarians know what many copyright wonks don’t: digital materials may be capable of infinite perfect copying, but that doesn’t mean they’ll last forever.

Born Digital, Projects Need Attention to Survive - Technology - The Chronicle of Higher Education

None of the 14 reports for Reed Elsevier and 18 reports for Pearson identified copyright infringement as a risk factor.
Jonathan Band and Jonathan Gerafi, in their latest policy report, explaining that expert equity advisors, the people expert investors trust to give an accurate picture of the risks that companies face, almost never cite copyright infringement as a relevant risk to any of the major content companies. Infringement Risk in Copyright-Intensive Industries » infojustice