2004 Copyright News
23 December
Congress Passes Intellectual Property Bill
On December 8, 2004, in the closing hours of the 108th Congress, the Senate passed H.R. 3632, the Intellectual Property Protection and Courts Amendments Act of 2004. H.R. 3632 had passed the House of Representatives on September 21.
H.R. 3632 [link to PDF file] as enacted consists of two earlier bills: H.R. 3632, the Anti-Counterfeiting Amendments Act of 2004; and H.R. 3754, the Fraudulent Online Identity Sanctions Act. The anti-counterfeiting amendments now constitute Title I of the legislation, while the online identity provisions constitute Title II. (Title III contains minor amendments to Title 28 of the U.S. Code, adding additional places of holding court in Colorado and the Northern District of New York.)
TITLE I: Anti-Counterfeiting Provisions
Prior to the amendments, 18 U.S.C. § 2318 prohibited the knowing trafficking in a counterfeit label affixed or designed to be affixed to a phonorecord or a copy of a computer program or motion picture. Counterfeit label was defined as an identifying label that appears to be genuine but is not. Traffic meant to transport, transfer, or otherwise dispose of, to another, as consideration for anything of value. A violation of § 2318 was subject only to criminal penalties.
· Title I of H.R. 3632 broadens § 2318 significantly. First, it provides a private right of action for violations of § 2318. The action may be brought by any copyright owner who is injured, or threatened with injury, by a violation. The court can award the injured party actual damages and additional profits of the violator, or statutory damages. Actual damages are calculated by multiplying the retail value of a copy of the work to which the unlawful label is attached by the number of copies to which unlawful labels are affixed. Statutory damages can range from $2,500 to $25,000 for each violation. The damages can be trebled for repeat violators.
· Second, H.R. 3632 extends § 2318 to all literary, pictorial, graphic, sculptural, or visual art works, in addition to phonorecords, computer programs, and motion pictures.
· Third, H.R. 3632 applies to a new kind of unlawful label - an illicit label - which is defined as a genuine certificate or similar labeling component that is used by the copyright owner to verify that a copy of work is not counterfeit or infringing of any copyright and that is distributed with a copy to which it is not authorized to be affixed.
TITLE II: Fradulent Online Identity
Title II of H.R. 3632 amends the Lanham and Copyright Acts to create a rebuttable presumption of willful infringement if the infringer provided materially false contact information when registering a domain name used in the infringement. The purpose of the amendment is to encourage the creation of accurate "WHOIS" databases maintained by domain name registrars and registries.
1 December
S 3021 “Family Entertainment and Copyright Act of 2004
At the very end of the session, the Senate passed S. 3021, the “Family Entertainment and Copyright Act of 2004.” The bill was introduced by Sen. Hatch (R-UT) on November 20th, as an alternative to a large and controversial omnibus bill, H.R. 2391 (the “Intellectual Property Protection Act”) that the Senate had been considering. The new bill was passed the same day by Unanimous Consent.
The titles of the Act include: illegally recording movies in theaters; creating an exemption from copyright infringement for devices that permit an individual to skip over content in a motion picture being viewed at home; fostering the preservation of so-called "orphaned" copyrighted works; and tougher anti-counterfeiting laws related to physical goods and fake labels.
An amendment by Sen. McCain (R-AZ) was added to the bill, relating not to copyright, but to the Professional Boxing Safety Act. It is unclear whether this amendment makes the entire bill unacceptable and/or whether there will be time for the House to act on it before adjournment.
September 1
S. 2560, the Inducing Infringement of Copyrights Act of 2004 (“INDUCE Act”), was introduced in June 2004 by Sen. Orrin Hatch (R-UT). Aimed at companies that offer peer-to-peer file-trading software, the bill would allow a copyright holder to sue a manufacturer based on the technology if the product is merely capable of being used to engage in copyright infringement. The bill was co-sponsored by Senators Leahy (D-VT), Frist (R-TN), Daschle (D-SD), Graham (R-SC), and Boxer (D-CA).
At a Senate hearing on the bill in July, opponents argued that the bill would undermine the legal precedent of the 20-year-old U.S. Supreme Court decision in Sony v. Universal Studios, in which the Court held that the manufacturer of the Betamax video cassette recorder was not liable for copyright infringement.
Though the bill appeared to be on a fast track to the Senate floor, both proponents (primarily entertainment industries) and opponents have met with Senate staff since the July hearing to air concerns. On August 24, fair use advocates and a number of companies and associations in the content and information technology industries submitted an alternative legislative proposal on applying secondary liability to entities encouraging infringement.
The proposed alternative to S. 2560 would establish a new subsection of the Copyright Act that would impose liability on any person who actively distributes in commerce a computer program that is specifically designed for use by individuals to engage in the indiscriminate, mass infringing distribution to the public of copyrighted works with the intent to reap financial gain by doing so. The draft bill provides complete exemptions from liability for ISPs, venture capitalists, credit card companies, banks, advertising agencies, IT help desks, and others for providing routine services for their customers and librarians for serving their patrons. The signers of the August 24th letter to the Senate have stated that they do not see a need for new copyright legislation, but have offered an alternative for further discussions.
- Draft Bill [pdf]
- Letter to Senators [pdf]
June 22:
ALA joins major library associations, high tech firms, universities and public interest groups in forming the Personal Technology Freedom Coalition. The coalition is committed to repairing recent damage to balanced copyright protection and will press for consumer protections in the use of digital music and movies, including working to ensure that consumers can legally use and have access to digital content they have purchased.
June 22:
Sen. Hatch (R-UT) introduced S. 2560, the Inducing Infringement of Copyrights Act of 2004 (INDUCE Act). The bill would allow a copyright holder to sue a manufacturer based on the technology if the product is merely capable of being used to engage in copyright infringement. The bill undermines twenty years of legal precedent by undermining the 20-year old Supreme Court decision in the Sony v. Universal Studios ("Betamax") decision. The bill is co-sponsored by Senators Leahy (D-VT), Frist (R-TN), Daschle (D-SD), Graham (R-SC), Boxer (D-CA) and is on a fast track to the Senate floor.
May 18
AFFECT sends a letter to the sponsor of the UCITA legislation in the U.S. Virgin Islands. Bill # 25-0198 was introduced by Sen. Lorraine Berry as part of an omnibus crime bill.
[http://www.ucita.com/pdf/Virginislandltr.pdf]
May 13:
ALA Legislative Counsel, Miriam Nisbet, testified on May 12, 2004, at the House Energy and Commerce Committee’s Commerce, Trade and Consumer Protection Subcommittee hearing on H.R. 107, the Digital Media Consumers’ Rights Act. Speaking on behalf of ALA, AALL, ARL, SLA, and MLA, Ms. Nisbet pointed out the ways that the current prohibitions resulting from passage of the 1998 Digital Millennium Copyright Act (DMCA) stifle a library’s ability to make fair use of digital materials, to preserve and archive digital content and to take advantage fully of the other library exceptions provided by federal copyright law.
[testimony pdf file]
March 31:
The House Judiciary Committee Subcommittee on Courts, the Internet and Intellectual Property held a markup hearing on H.R. 3632, "Anticounterfeiting Amendments of 2004," the House version of S. 2242. Introduced by Rep. Lamar Smith (R-TX), S. 3632 also prohibits trafficking in illicit authentication features, counterfeit documentation and packaging that is attached to a computer program, motion picture or audiovisual work. Both versions of the bill could inadvertently apply to legitimate electronic distribution of copyrighted works.
Also:
H.R. 4077, the "Piracy Deterrence and Education Act of 2004." Introduced by Rep. Lamar Smith (R-TX), H.R. 4077 would enhance enforcement of copyright laws and require the Justice Department to educate the public about copyright infringement. In addition, the bill makes it an offense to record, transmit or make copies of a motion picture in a theater with an audiovisual recording device. The bill would also amend the Copyright Act to allow criminal prosecution of someone who "makes available" one work worth $10,000 or more, or 1,000 or more works of undetermined value.
March 29:
ALA, ARL, AALL and SLA sent comments to the U.S. Trade Representative regarding the proposed U.S.-Andean Free Trade Agreement and the U.S.- Panama Free Trade Agreement. [See: Bi-Lateral Free Trade Agreements]
March 26:
Sen. Biden (DE-D) introduced S. 2242, the "Anticounterfeiting Act of 2004," a bill that prohibits trafficking in illicit authentication features, counterfeit documentation and packaging that is attached to or embedded in a record, CD, computer program, motion picture or other audiovisual work or its packaging. This bill is the 2004 version of a similar bill introduced by Sen. Biden in 2003 (S. 731) and is supported by the motion picture and recording industries.
March 25:
Sen. Leahy (VT-D) and Sen. Hatch (UT-R) co-sponsored the introduction of S. 2237, the "Protecting Intellectual Rights Against Theft and Expropriation Act of 2004," the "PIRATE Act." S.2237 amends Copyright Law to allow the government to seek civil penalties as well as criminal penalties for willful copyright infringement.
March 2:
Rep. Stearns (R-FL) and 18 co-sponsors introduced H.R. 3872, the Consumer Access to Information Act of 2004, a new version of database protection legislation. The House Energy and Commerce Committee approved the alternative bill and unfavorably reported out H.R. 3261, the Database and Collections of Information Misappropriation Act that the House Judiciary Committee had already favorably recommended. [See ALAWON 5 March 2004]
February 9:
Joint library associations' testimony to the Science and Technology Committee of the United Kingdom Parliament [pdf file]
January 30:
Libraries and other public interest and consumer organizations filed a petition with the U.S. Court of Appeals for the D. C. Circuit to review the Federal Communication Commission (FCC) rulemaking issued on November 4, 2003. The Rulemaking requires that all digital electronic devices and PCs include code (known as "broadcast flag") that accompanies DTV signals to prevent redistribution of the digital content over the Internet. The petition for review argues that the FCC acted both in excess of its statutory authority and contrary to the factual evidence in the record, and asks the Court to set aside the FCC's order.
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