Intellectual Property and Digital Technology

Latest News

FCC Issues Notice of Proposed Rulemaking on the Broadcast Flag
FCC Press Release | Notice of Proposed Rulemaking | EFF posting from their BPDG Blog

EU Nations to Implement European Community Directive on Harmonizing Copyright
Read materials on UK implementation, including a call for public comment, due October 31.

Rep. Howard Berman (D-Hollywood) Introduces P2P Hacking Bill
Bill enables media owners to engage in vigilantism, breaking any law to protect their content.
See EFF coverage and EFF Acion Alert.

Senate Judiciary Comments Page
The Senate Judiciary Committee has posted a page on protecting digital content, where you can submit comments electronically and read others' comments, along with links to legislation, hearings, and related sites.

Find out more about joining the Intellectual Property Working Group and helping CPSR's voice to be heard on these important issues.

CPSR Activities

CPSR Submits Amicus Brief in Bunner v. DVD-CCA
"DVD-CCA, the organization that licenses DVD technology for Hollywood movie studios, originally filed the lawsuit in December 1999 and obtained a lower court injunction in January 2000 against defendant Andrew Bunner for publishing DeCSS software that decrypts DVDs. When an appeals panel overruled the lower court injunction last November, DVD-CCA then appealed to the California Supreme Court to challenge the appeals panel ruling. " (EFF Media Release)

CPSR submitted an amicus brief (pdf), prepared substantially by our summer legal intern Wen-Hsin Lin, for submission to the California Supreme Court.

CPSR Joins Artists and Technologists in Eldred v. Ashcroft Brief
Eric Eldred, a publisher of free online versions of books that are in the public domain (see Eldrich Press), is the lead plaintiff in a lawsuit to overturn the Sonny Bono Copyright Term Extension Act. This lawsuit is now before the U.S. Supreme Court. CPSR and numerous other groups and individuals representing artists and computer technologists filed an amicus brief (pdf) in support of Eldred's case on May 20. Read more about the case at http://eldred.cc/.

CPSR Joins EPIC, Other Groups in SonicBlue Amicus Brief
Several television studios have sued SonicBlue, the maker of the ReplayTV video recording device, claiming that it infringes on their copyrights by allowing users to record and share digital copies of TV shows, in addition to making it very easy to skip commercials. The judge in that case had ruled that SonicBlue be required to track its customers' viewing and recording habits in minute detail -- which would only be possible if they modified the software in the ReplayTV device and violated their stated privacy policy. On May 13, CPSR and a coalition of civil liberties and consumer organizations submitted an amicus brief in this case, asking the court to overrule this enforced surviellance. Read the amicus brief (pdf).

On May 31, the court ruled that SonicBlue did not have to comply with this order, as it would require them to create information that they don't currently maintain, possibly at great cost. The privacy implications were not discussed in the ruling. For more details, see EPIC's page on the ReplayTV case.

CPSR Briefing Paper on DRM Issues
On Tuesday, April 30th, the Internet Caucus Advisory Committee held a panel discussion and luncheon entitled "Digital Rights Management: Whose Rights Are Being Managed?" An expert panel moderated by Jim Lucier of Prudential Securities included Rick Lane of News Corp., Gigi Sohn of Public Knowledge, and other representatives from the computer and electronics industries, the library community and the content industry. CPSR prepared a one-page briefing paper on DRM issues, which was included in a briefing book presented to the caucus. For more details, see the Advisory Committee web page on the event, which includes audio, video, panelist biographies, and all submitted briefing papers.

CPSR/NetAction Letter Opposing CBDTPA
Senator Hollings (D-SC), Chairman of the Senate Commerce Committee, has introduced the Consumer Broadband and Digital Television Promotion Act (CBDTPA). CPSR has joined with NetAction to submit a letter in opposition to this legislation to the senators and representatives most involved in these issues. A companion bill is likely to be introduced in the house, and while passage appears unlikely, it is still a cause for concern. Read more....

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If you need to join/renew your membership, use our membership form or call 650-322-3778 in the U.S. to pay by credit card.

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Overview

Digital communications and global online systems are having a substantial effect on our copyright and trademark laws. There is considerable debate over whether laws that were designed to protect the copying of physical objects can be enforced in an environment where copying is cheap, easy, instantaneous and perfect. Because the information industries are the fastest growing segment of the U.S. economy, there is a great deal of economic interest in finding both legal and technical ways to protect the information product in the digital environment.

At issue is the balance between public and private interests. Strict copyright laws may protect the interests of companies selling intellectual property products, but these same laws could limit public access to information. CPSR supports copyright legislation that protects the public's ability to pursue ideas through the assertion of fair use rights.

Consumer Broadband and Digital Television Promotion Act (CBDTPA)

On March 21, Sen. Fritz Hollings (D-SC) introduced CBDTPA (formerly known as the Less than a week later, Rep. Adam Schiff (D-CA), the Burbank representative, introduced companion legislation in the House. Senator Patrick Leahy, Chair of the Senate Judiciary Committee, has promised that CBDTPA will not pass this year.

CPSR and NetAction jointly submited a letter opposing CBDTPA to the Senate Judiciary Committee, the co-sponsors of the bill, and key House members. USACM submitted a similar letter to Senator Hollings. The Senate has called for comments on Digital Rights Management and CBDTPA. Read about the Senate and EFF calls for comments above.

More information about CBDTPA:

• Bill Summary & Status Page (Thomas)
• Senate Judiciary Committee solicits citizen comments on "Protecting Creative Works in a Digital Age"
• Politech's CBDTPA page with links to the text, statements, and many news articles;
• Digitalconsumer.org is an effort by the computer and electronic industries to organize opposition to CBDTPA and other overzealous copyright legislation. They propose a Consumer Technology Bill of Rights as well as action alerts to oppose legislation.
• A Mickey Mouse Bill by David Banisar
• Stop the Copying, Start a Media Revolution by Andy Oram
• Lessig on the Future of the Public Domain by Richard Koman (O'Reilly.net)
• Creative Commons
• Bleak future looms if you don't take a stand by Dan Gillmor (San Jose Mercury News)
• U.S. prepares to invade your hard drive by Paul Boutin (salon.com)
• Operation Enduring Valenti by Richard Forno (The Register)

Digital Millenium Copyright Act (DMCA)

In 1998, Congress passed and the president signed the Digital Millenium Copyright Act (DMCA), which it claims updates copyright laws to address the realities of digital technology. Among other things, it criminalized the creation, sharing, or selling of any technology that can be used to defeat copy protection technology. CBDTPA goes even further, but there are many problems with DMCA as well.

Several cases have tested this aspect of the DMCA. Edward Felton was threatened with legal action if he released academic research pointing out problems with music-protection technology that is under development. 2600 magazine has been prevented from linking to source code for software (called deCSS) that breaks the CSS encryption of DVDs, but which also enables one to play a DVD under the Linux operating system. Finally, a Russian programmer, Dmitri Skylarov, was arested, and his company, Elcomsoft, is being prosecuted, for creating and distributing software to decrypt eBook files, enabling them to be copied and played on devices that don't support the encrypted format.

Another recent development related to DMCA implementation, the Copyright Arbitration Royalty Panel (CARP), a body appointed by the Library of Congress/U.S. Copyright Office, issued a set of recommendations for implementing mechanical royalties for streaming music over the Internet. Besides making it twice as expensive to stream music if you don't also have an over-the-air station, the new proposal seems to make it extremely difficult for a new business to break into internet radio. This will kill all the new and innovative net broadcasters, and preserve this new medium for existing radio stations, which is exactly the opposite of a policy that would encourage diversity of ideas and expression. Final rulemaking on this proposal is expected in May 2002.

• CPSR Comments on DMCA Implementation and First Sale Doctrine, which were submitted pursuant to a study prepared by the U.S. Copyright Office on the effects of the DMCA.
• Save Internet Radio.org
• S-O-S Save Our Streams
• Web radio's last stand - A new ruling involving the Digital Millennium Copyright Act is set to wipe out independent online music stations. By Katharine Mieszkowski (salon.com)
• Business Week published a critique of the CARP proposals that favor established over innovative webcasters, and proposes an alternative royalty of 5% of gross revenues that might enable all sizes of operations to survive.
• Webcasting Legally by Jamie Zawinski (DNA Lounge)

Uniform Computer Information Transactions Act (UCITA)

The National Conference of Commissioners on Uniform State Laws (NCCUSL) voted to promulgate UCITA by a vote of 43 to 6, with 2 states obstaining. UCITA will now become state law in each state that passes it. Look for your state legislators to place this bill on their dockets this fall. Although opposed by many state attorneys general, numerous influential organizations and industries, UCITA could become law.

CPSR has prepared a UCITA Fact Sheet that contains more information about the implications of UCITA and who the players are. Infoworld also maintains an informative UCITA Opposition Page.

Background on Uniform Commercial Code & Shrink Wrap Licenses

Originally, the Proposed Law on Software Transactions (Uniform Commercial Code article 2B) was proposed to strengthen the legal standing of "shrink-wrap" licenses. Arguments against this draft are provided by the Consumer's Union. Arguments in support of the draft article can be found on the pages of the Software Industry Association.

Wide-spread protest against UCC2B has caused its proponents to change tactics. UCC2B is no longer being proposed. Instead, UCITA (Uniform Computer Information Transaction Act) is the new name for Article 2B, and has a less visible legal standing.

Trademark

NTIA requested comments on the assignment of domain names, which are located at this address.

Current U.S. Legislation

S. 2048 - Consumer Broadband and Digital Television Promotion Act (CBDTPA)

Introduced by Sen. Ernest Hollings (D-SC) to expand the protections afforded by the Digital Millenium Copyright Act (DMCA), by requiring anyone who distributes any digital media technology to include sanctioned copy-protection technology. CPSR thinks this is a bad idea that could threaten the very advancement of computer and internet technology, and plans to oppose this legislation. Stay tuned for more details.

H.R. 2724 - Music Online Competition Act (MOCA)

Introduced by Chris Cannon (R-UT) and Rick Boucher (D-VA) to restore the balance in copyright laws to favor creators and innovators in digital music, where they had been overlooked by previous legislation.

H.R. 1858 - Consumer and Investor Access to Information Act of 1999

Introduced by Bliley, this bill states that it is "To promote electronic commerce through improved access for consumers to electronic databases, including securities market information databases." The bill is supported by members of the Digital Future Coalition. A detailed comparison of H.R.1858 and H.R. 354 is available at the Database Data site.

H.R. 354 - Collections of Information Antipiracy Act

This bill would give special protection to databases, although the latter is broadly worded as "collections of information." Opponents feel that this bill would allow database compilers to lock up facts or charge for their use. Among the opponents are many universities and research organizations.
Coalition letter opposing H.R. 354

Recent Legislation

S. 1121 - Digital Millenium Copyright Act (DMCA)

Passed, October, 1998. This bill is the US implementation of the WIPO treaty on protection for digital materials. Through major efforts of groups like the Digital Future Coalition, the final version of this bill was much improved, but it still contains sections prohibiting certain technologies that could be used to break through copy protection schemes.

Some earlier CPSR position papers

• Article by CPSR member Andy Oram for American Reporter.
• CPSR Urges Internet Community Support of Ashcroft Legislation

International Activities

• WIPO Copyright Treaty of December 20, 1996.

Background Materials

These documents provide background information to current U.S. activiites in the copyright arena.

• "The White Paper on Copyright". This (long) document, issued by the Working Group on Intellectual Property of the National Telecommunications and Information Agency, analyzes copyright in the digital age and makes recommendations for changes to the U.S. copyright law.

Commentary

Interesting articles and talks about current copyright issues. Easier reading than the official documents.

• Samuelson, Pamela. The Copyright Grab. Wired, 4.01.
• Litman, Jessica. The Exclusive Right to Read, 13 Cardozo Arts & Entertainment Law Journal 29 (1994).

• The Home Recording Rights Coalition , an organization that supports the rights of individuals to record broadcasts and performances for personal use.
• The Web site of Negativland, a U.S. band that has had many legal disputes over sampling.

Intellectual Property Online

• The Electronic Frontier Foundation has provided legal support for Dmitri Skylarov, 2600 magazine, and Edward Felton in legal challenges to DMCA, and regularly issues Action Alerts to encourage citizen participation in the process. Campaign for Audiovisual Free Expression (CAFE) concentrates on the impacts of copyright legislation on creativity and diversity of ideas and modes of expression.
• The Digital Future Coalition, a coalition of educational, public interest and professional organizations seeking to promote the public's rights in the copyright law.
• International Federation of Library Associations Copyright and Intellectual Property Pages. IFLA provides an excellent site that gathers many articles and Net resources on the topic.
• The Future of Music Coalition is an organization of artists seeking to ensure that creativity and freedom of expression are fostered and not inhibited by intellectual property laws and their enforcement.
• The Association of Computing Machinery USACM Intellectual Property Library is a good resource covering current issues and their impacts.

General Resources

• U.S. Copyright Office
• U.S. Patent and Trademark Office
• World Intellectual Property Organization

Updated April 24, 2002, by Paul Hyland.