The Solicitor General filed a brief with the Supreme Court on Friday that is good news for anyone who likes the idea of being able to record digital television without having to acquire and install a digital video recorder (DVR) box in the home. More importantly, the brief significantly reduces the chances of a decision that could cast a legal cloud over a wide range common network and computing technologies.
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The Copyright Office recently held its triennial hearings on exemptions to the Digital Millennium Copyright Act’s prohibition on circumventing technical protection measures for copyrighted works.  The Office is charged under the DMCA with issuing exemptions for specific classes of works where non-infringing uses will be adversely affected by the prohibition.  For most of the classes of works under consideration this year, it seems the Copyright Office would be in familiar territory, focusing on users’ ability to read, view, listen, or interact with creative works.  However, with one class—cell phone unlocking—the questions raised seem more at home in telecommunications and network neutrality policy than copyright policy.

The Office is reconsidering an exemption it granted in 2006 that protected individuals from liablity for breaking a firmware lock on a cell phone and using it on another phone network. At that time, no one opposed the exemption in time for their objections to be considered; this time, CTIA – The Wireless Association, Virgin Mobile, and others have voiced opposition, in part because of copyright-related concerns, but primarily to preserve a business model built around recouping hardware subsidies that some argue limits consumer choice.

While it’s true that phone–network locks do protect copyrighted firmware, I have a hard time seeing a compelling copyright interest in their use.  There is hardly a market for such firmware independent of the handsets themselves that circumvention would undermine.  Moreover, the 2006 exemption narrowly applies to those cases when the circumvention is only accomplished to use a phone on a particular network that it has been locked out of.

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We’ve been saying for a while now that negotiations on ACTA — the proposed Anti-Counterfeiting Trade Agreement — suffer from a serious transparency deficit. Today, USTR took the helpful step of releasing a summary of the structure of ACTA and the items that may be included in it.

The biggest positive here is the apparent recognition by USTR that greater transparency is needed. Hopefully USTR’s action today today won’t be a one-off thing, but rather will be the start of a new effort to provide information on an ongoing basis. As for the summary itself, it’s still quite high-level. Some of the items — improving international cooperation, fostering expertise towards more effective enforcement — appear perfectly sensible. Most of CDT’s potential concerns relate to Chapter Two, the section on the legal framework. For example, the summary says there is a discussion about what constitutes sufficient damages/remedies. And above all, from CDT’s perspective, there is a section on “Intellectual Property Rights Enforcement in the Digital Environment,” which raises such issues as “the possible role and responsibilities of internet service providers in deterring copyright and related rights piracy over the Internet.”

These are topics for which the details matter. The summary’s brief (two-sentence) paragraph on enforcement challenges in the digital and Internet environment doesn’t yet enable CDT or any other outside observer to offer much substantive commentary. But the summary also says that no draft proposal has been tabled yet in this area, so there may still be time. The main thing is for USTR to embrace the principle that this terrain is too tricky and potentially affects too many stakeholders to unveil the specifics only at the last minute, when the entire thing has been nailed down and there’s no going back. Let’s hope today’s summary is just a down payment, with more specific information to come as the negotiation process moves forward.

In a rather complicated story last week, CNET News reported that Amazon had sent a cease-and-desist letter to the moderator of an online discussion forum dedicated to eBooks, alleging violations of the Digital Millennium Copyright Act (DMCA), which prohibits the circumvention of technological protection measures (TPM or digital rights management – DRM) included in digital copyrighted works. Several posts on the site had linked to a script and instructions that allowed eBooks downloaded from libraries or purchased at sites other than Amazon.com to be displayed on Amazon’s popular Kindle reader. With respect to the Kindle itself, I question whether there is really a DMCA violation here, in that the script in question doesn’t exactly remove or circumvent any Kindle-based TPM, but rather enables the Kindle to display DRM-protected eBooks that the device doesn’t natively support. Ultimately, the script on its own is used not to violate any copyrights, but simply to allow legally purchased eBooks (just not from Amazon.com) to be read on the Kindle, a use that is arguably socially beneficial in terms of interoperability, competition, and innovation.
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When President Obama signed a Transparency and Open Government memo as well as a Freedom of Information Act memo on his first day in office, we were very heartened to see transparency made a key element of the start of this administration. In his first day in office, the President revoked Bush-era policies of data secrecy and returned the federal government to a presumption of openness, and we lauded him. We could not say it any better than the memos did: “In the face of doubt, openness prevails. The government should not keep information confidential merely because public officials might be embarrassed by disclosure,� and “openness will strengthen our democracy and promote efficiency and effectiveness in Government.�

Unfortunately, the office of the U.S. Trade Representative seems to have missed these memos. Last week, the USTR denied a FOIA request for information about the Anti-Counterfeiting Trade Agreement (ACTA). This trade agreement, which contrary to its name is expected to cover a potentially broad range of copyright issues with no connection to actual “counterfeiting,� has been the subject of a variety of fears and rumors during its largely secret negotiations. CDT has expressed concern about this lack of transparency. Unfortunately, instead of embracing the new era of openness in action, USTR denied the FOIA request using the same non-specific national security exemptions that were used in the Bush administration.

Despite these alleged national security concerns, lobbyists and advisors all over the world have been given access to ACTA documents. According to Knowledge Ecology International, anyone on a USTR advisory committee gets access to the ACTA materials. However, the representatives from major industries who serve on these committees are not the only stakeholders in the international copyright debate; consulting with only a few handpicked partners will likely lead to a narrow, slanted, and incomplete understanding of the policy issues at stake. The proposed treaty could touch on a wide range of issues, but no draft text has been released. The lack of transparency creates a serious risk that controversial provisions could be adopted with no meaningful opportunity for input or debate from groups representing users and advocating the greater public interest. With respect to copyrighted works, readers, watchers, and listeners might well be more likely to respect policies they feel are developed with some consideration of their legitimate interests in an open and balanced debate.

There is no substitute for a transparent process that allows for careful scrutiny and input by the full range of potentially interested parties. The negotiators of ACTA, in particular USTR, need to open up the process. If the USTR thinks that it is receiving a diverse and representative set of opinions from a limited set of privileged advisors, then its conception of copyright’s stakeholders is as pinched and outdated as its Bush-era approach to FOIA requests.

CDT joined EFF and Public Knowledge in a legal brief yesterday arguing that data that is fleetingly held in RAM shouldn’t be subject to discovery, the process by which parties to litigation can demand access to records and documents. Sound arcane? Maybe. But the principle is actually pretty simple.

Litigants have to share relevant records with each other. These days, many records are electronic. So in 2006, the rules of civil procedure were amended to state specifically that electronically stored information must be shared as well. That’s all well and good, for electronic data that is truly stored — if you have a word processing document stored on your computer, it should of course be subject to discovery just like a paper document stored in a file cabinet.
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Yesterday’s Senate passage of its version of the big economic stimulus bill sets the stage for final negotiations between the House and Senate to come up with a final bill. As is often the case with major packages of legislation, there’s a risk of eleventh-hour additions for which the policy implications have not been clearly thought out.

Case in point: content filtering by ISPs. The Senate’s provisions to stimulate broadband deployment say that recipients of federal assistance should comply with interconnection and nondiscrimination requirements. Senator Feinstein has been pushing hard to add language specifying that ISPs may engage in “reasonable network management” — and here’s the kicker — “such as” efforts to combat illegal activity like “child pornography and copyright infringement.”
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Yesterday, Apple made a major but not entirely unexpected announcement that likely amounts to the last goodbye to digital rights management in the for-purchase digital music market. Beginning immediately (the full transition will take into the early spring), Apple will offer all iTunes tracks in the high-quality DRM-free format it calls “iTunes Plus.� Until now, the only major label supplying tracks in this format was EMI, under a deal struck in the spring of 2007. With the advent of iTunes Plus for EMI tracks and the launch of the AmazonMP3 and other DRM-free digital music outlets, it has been apparent for some time that the days of DRM in digital music purchases were numbered. However, while the removal of DRM from iTunes – still far and away the dominant digital music retailer – is certainly significant, it does not signal by any means the end of DRM in general, forms of which might indeed be more appropriate (and be met with less resistance) in other contexts.
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Shortly before Christmas it was reported that RIAA will greatly reduce its filing of lawsuits against unlawful file sharers. Instead, under a deal brokered by NY A.G. Andrew Cuomo, RIAA will work with ISPs to send notices to suspected file sharers, with the ISPs eventually taking action to limit or even terminate subscribers who don’t change their behavior. It sounds a bit like an effort to create a process analogous to the DMCA’s notice-and-takedown regime for Internet-hosted content, but this time targeting P2P file sharing.

At this point, many details remain unclear. It’s not known which ISPs plan to participate, or just how firm or specific the reported “agreement in principle” really is. So it’s hard to say at this point just what this all means. But here are some initial thoughts, questions, and concerns.
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Google, the Authors Guild, and the Association of American Publishers announced a tentative settlement yesterday in the class action lawsuit over Google’s efforts to create a search engine for books. It’s a long settlement and there is plenty to read through and analyze. But on first blush, it appears that there is a lot to be enthusiastic about from a public interest standpoint. The public will get broader online access to books, including not just search capability, but also more substantial excerpts to browse and the option to purchase full text. Libraries and universities will be able to offer full text electronic access to patrons and students. And book authors and publishers should enjoy new revenue opportunities in connection with new ways for readers to find and access their work. A new entity called the Book Rights Registry will collect and distribute the revenues. A great deal of this is not possible today, and would not have been possible even if Google had litigated this case to the end and won an outright victory. Of course, forestalling an actual legal decision also means that the fair use questions at the heart of the lawsuits won’t get resolved. Details regarding the settlement can be found at the author’s guild Web site and that of Google Book Search.

In broad strokes, the lawsuit was about whether the inclusion of books in Google’s search database should be subject to opt-in or opt-out choice on the part of rights holders. Authors and publishers argued that Google needed to get affirmative permission from the individual copyright holders before including each book in the database. Google said that was so cumbersome it would sink the project. It wanted to include books unless and until the relevant copyright holders asked for them to be excluded. Under the settlement announced yesterday, there’s a sort of compromise.
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