US Dept. of Justice rejects role in civil enforcement of IP

As has been reported elsewhere, the US Department of Justice responded rather critically to S.3325. The EFF has a copy of the letter. There are two principle complaints: first, that the DoJ has better things to do with public funds than provide pro bono legal representation for rights holders in enforcement actions; and second, that the mandated U.S. Intellectual Property Enforcement Coordinator (IPEC) office "constitutes a legislative intrusion into the internal structure and composition of the President's Administration."

The letter concludes: "It is our hope that changes will be made so that the President's senior advisors can recommend that the President support the measure." This is, of course, a veto threat. The fact that the letter was co-signed by Lilly Fu Claffee, General Counsel of the US Department of Commerce, can only be seen to underline the force of this threat. This was a strong signal from the administration that the bill would not be acceptable in that form.

The US Senate responded to the first complaint, by dropping that section entirely. The amended S.3325, now called the Prioritizing Resources and Organization for Intellectual Property Act of 2008, no longer authorizes the Attorney General to pursue civil actions on behalf of the rights-holders. This amended bill passed unanimously in the Senate on Friday, September 26, 2008, and now has been moved over to the House of Representatives, where it is on the suspension calendar as a postponed suspension vote and thus could potentially be passed in a matter of minutes, under the procedural rules. (Exactly how this bill qualifies for suspension under the $100 Million threshold, when it contains, by my count, $275 M of appropriations in Title IV and an unbounded ("such sums as may be necessary to carry out this title") appropriation in Title III, isn't clear to me. But then that threshold is not in the House rules; it's something the parties impose on themselves.)

The amended bill does nothing to address the second complaint, and is presumably still "objectionable on constitutional separation of powers grounds" to the Bush administration. Whether this is sufficient on its own to doom this version of the bill remains to be seen. Naturally, the other parts of the bill also remain, including the seizure powers, the increased statutory damages, and the $125 M appropriation for the enhancement of local enforcement activities. RIAA Chairman and CEO Mitch Bainwol is reportedly pleased with this, saying "Additional tools for intellectual-property enforcement are not just good for the copyright community but for consumers who will enjoy a wider array of legitimate offerings."

Public Knowledge issued a statement, saying in part "At a time when the entire digital world is going to less restrictive distribution models, and when the courts are aghast at the outlandish damages being inflicted on consumers in copyright cases, this bill goes entirely in the wrong direction." The comment about the courts is presumably a reference to the recent appeal decision ordering a new trial for Jammie Thomas, which described the statutory damage award in that case as "unprecedented and oppressive," and noted that "it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit in the securities market." (my emphasis) (See also Howard Knopf's comments on this case here.)

From the Canadian perspective it is worth pointing out that one of the stated purposes of the IPEC office would be to pressure foreign governments to "establish international standards and policies for the effective protection and enforcement of intellectual property rights." Notably, sec. 303(a)(7)(C) would mandate "building a formal process for consulting with companies, industry associations, labor unions, and other interested groups in other countries with respect to intellectual property enforcement." Clearly, the opinions of citizens (of any country) are of little importance, except to the extent that they belong to "interested groups". And groups that would advocate for user's rights--like the Canadian Library Association, for example--are of secondary concern at best.

UPDATE: S.3325 was passed by the House of Representatives, shortly after 4:30 pm, in a vote of 381 yeas to 41 nays (11 not voting). It remains to be seen whether President Bush will sign it, or whether the two-thirds majority support (which is currently present in both houses of Congress) would still be there to override a veto.

Copyright expansion pressure at work in the US

Declan McCullagh had an interesting piece on The Iconoclast yesterday morning, talking about some copyright bills that are working their way through the US Congress, at the moment. One, the Enforcement of Intellectual Property Rights Act of 2008 (S.3325), which was approved by the Senate Judiciary Committee yesterday, would empower the Justice Department to pursue civil lawsuits against "any person who engages in conduct constituting an offense under section 506". Section 506 is the "Criminal Offenses" section, so it's not quite every copyright infringement; McCullagh is wrong on that point, as I read the bill. (But I admit I haven't read it thoroughly, so I may well have missed something.) But it does reduce the standard of proof required to the more relaxed "preponderance of evidence". This is important, since a lot of copyright infringements are difficult to prove beyond a reasonable doubt.

One might ask (and indeed some are asking) why it would be a good idea to spend public funds on civil litigation when the rights holders are demonstrably capable of pursuing their own suits. RIAA alone has launched over 30,000 file-sharing lawsuits in the US, over the past 5 years.

There is more in this bill: provisions about importation and transshipment; provisions about forfeiture and seizure; creation of a new "Intellectual Property Enforcement Coordinator" position within the Executive branch. Much of it seems rather similar to what the RIAA has allegedly proposed be enshrined in the ACTA. This is presumably not coincidental. And yes, it is the kind of thing that gets people talking about whether their iPods will be seized at the border:

Importation into the United States, transshipment through the United States, or exportation from the United States, without the authority of the owner of copyright under this title, of copies or phonorecords, the making of which either constituted an infringement of copyright or would have constituted an infringement of copyright if this title had been applicable, is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under sections 501 and 506.

A second bill, the International Intellectual Property Protection and Enforcement Act (S.3464) may also be of interest to Canadians. It proposes what amount to unilateral trade sanctions against countries that remain on the USTR's Special 301 Report priority watch list for more than one year, and who don't meet the benchmarks of an "Action Plan" designed to "achieve—(I) adequate and effective protection of intellectual property rights; and (II) fair and equitable market access for United States persons that rely upon intellectual property protection."

In 2008, that could be all of the countries on the priority watch list except Pakistan: China, Russia, Argentina, Chile, India, Israel, Thailand, and Venezuela. At least they have all been on the list for more than a year. Canada has been on the (lower priority) watch list for years, and both the MPAA and RIAA have lobbied to have Canada added to the priority list. The sanctions, which could include a ban on US Federal Government procurement of goods or services, cancellation of any preferential trade treatment, as well as restriction of various import/export and development funding programs, would not be automatic. They would be at the discretion of the President.

This bill is being sponsored by Max Baucus (Democrat, Montana) and Orrin Hatch (Republican, Utah). Baucus doesn't seem to have much of a history in IP-related issues. Hatch does. He was behind the controversial INDUCE Act, which critics claimed could outlaw the VCR, the iPod, and even the PC. Also, in a slightly surreal moment from 2003, he suggested remotely destroying people's computers for copyright infringement, while using unlicensed software on his web site.

A number of Canadian critics of the now-defunct Bill C-61 commented on the role that US pressure played in its creation. Clearly the Baucus-Hatch bill demonstrates that the US may be increasing the amount of pressure it applies to its trading partners to conform to its desires in the IP realm. And the Enforcement of IP Rights Act suggests the direction where those desires may be heading. All of which suggests that, whatever the make-up of the next Canadian Parliament, the copyright reform issue will not go away.

Shine on, you crazy physics experiment...

It's official, the LHC beam works. And the world didn't end. Not that you'd expect it to--the various doomsday scenarios involving micro-black holes, strangelets or cosmological phase transitions don't come into play until they start colliding the beams. All they did today was verify that they can power the beam up to its injection energy of 450 GeV and steer it around the accelerator. It will be a few weeks before they generate collisions and it will probably be a year or more before they have ramped up to full energy.

While we wait for data (or the end of the world), one way to occupy ourselves is to consider what weight should be applied to those doomsday scenarios? They're not entirely without merit--mostly they're based on reasonable theoretical possibilities. But they've been considered, more than once, already. There was the Relativistic Heavy Ion Collider review, for one. CERN has published its own safety assessment of the LHC, specifically. At some point, one has to find the basic counter-argument reasonably persuasive: particle accelerators don't do anything that nature doesn't already do, and the universe, such as it is, survives just the same.

Of course the details are rather more complicated, if you want to do a thorough evaluation. Which you probably do when the unlikely scenario has potential consequences that involve eating planets. This lesson is often illustrated in Science Fiction literature--in particular I always think of Larry Niven's "The Hole Man" (Hugo winner for Best Short Story, 1975) when these ideas come up. Vonnegut's Cat's Cradle, with it's Ice-Nine is apropos as well. But real life provides lots of examples of unlikely catastrophes that nonetheless happen. So there's clearly some value in reflecting carefully on poorly-understood risks. Here's an interesting discussion contrasting the RHIC report with LA-602, a Manhattan Project paper considering the possibility of runaway thermonuclear fusion in the atmosphere, ignited by a fission bomb.

Still, if you were really concerned about the possibility of the LHC destroying the world, would your response be to file a lawsuit complaining that the Environmental Impact Assessment hadn't been filed? I don't think that would be mine. Granted that I have never read the NEPA, but it doesn't seem likely that complying with its requirements in the first place would have resulted in anything but some paperwork. I would guess that an environmental impact assessment, had it considered the doomsday scenarios, would have concluded that expert opinion mostly suggests they are too implausible to be treated as significant impacts. So the relief being sought, namely an injunction preventing the operation of the LHC, doesn't seem justified. And that's without considering the obvious jurisdiction problems in applying a statute that deals with US Federal Government actions to a project that is under European direction. (Those are being argued, currently.)

Green Party v. Broadcast Consortium?

The Leaders Debate Broadcast Consortium has announced that, once again, the Green Party of Canada will not be invited to participate in the nationally-televised leaders debates during this federal election campaign. The stated reason for this decision is that three (of the four) leaders of other parties objected to Green Party representation and were threatening not to participate, and that "it is better to broadcast the debates with the four major party leaders, rather than not at all."

One wonders what might happen if that bluff was called. Would the major parties really choose not to have any televised debates rather than share a stage with Elizabeth May? This seems unlikely.

The Greens have been preparing for this possibility, which only seems sensible, since it has happened before. Just a few days previously they retained Toronto lawyer Peter Rosenthal and that they "will not hesitate to go to the courts to defend democracy in Canada".

One also wonders how they would propose to do that. This case has been tried, and lost, a few times now. In Trieger v. Canadian Broadcasting Corp. in National Party of Canada v. Canadian Broadcasting Corp. and in Natural Law Party of Canada v. Canadian Broadcasting Corp., the courts have consistently refused to intervene to "dictate to the broadcast networks what they should cover and what they should not cover as a matter of newsworthy public political debate during an election campaign."[McKeown J. in Natural Law Party] Campbell J. goes on a some length:

What the applicants are really asking this court to do is to dictate the content and the agenda of the political debate in the forthcoming federal general election. It is for the leaders of the various political parties to decide of their own free will and accord, without any coercion from this court, whom they want to debate and when and on what terms such debates should take place. It is not for this court to dictate the agenda of political debate. It is not for this court, certainly on an interlocutory application of this nature without full opportunity as at trial to canvas the facts and the legal issues, to interfere with the freedom of speech and expression of the various party leaders by dictating the debate format, content or participants. Neither is it up to this court to dictate in any way to broadcast editors what is news and what is not news, subject of course to non-publication orders in criminal cases and a few other exceptional cases. It is up to broadcasters and editors to decide what they wish to publish. Their decisions to cover a particular event or not to cover it are matters, to use the words of the U.S. Supreme Court in Columbia Broadcasting System, Inc. v. Democratic Nat. Committee; Federal Communications Com'n v. Business Executives' Move for Vietnam Peace; Post-Newsweek Stations v. Business Executives' Move for Vietnam Peace; American Broadcasting Companies Inc. v. Democratic Nat. Committee, 412 U.S. 94 at p. 118 (1973), "within the area of journalistic discretion". Those editorial decisions do not amount to the carrying out of any government function.

This would seem to offer a rather broad discretion to the broadcasters and the political parties to negotiate whatever terms for the debates they choose.

In their press release, the Green Party notes that Mr. Rosenthal "won the Figueroa case on election law at the Supreme Court of Canada." This was the case that overturned the 50 candidate rule under the Canada Elections Act. The court, in that case, did hold that the restrictions under that rule "undermine[s] the capacity of some individuals to participate in the political process" and "is inconsistent with the values of Canadian democracy."[Iacobucci J. in Figueroa] But there's an important distinction: this case was about a structural barrier to participation that existed in a Federal law. But the Canada Elections Act specifically exempts political debates from the rules covering "election advertising", and as noted above, the courts have held that they are not a "government function".

So, while it's probably a good opportunity to generate some press, it seems unlikely that a court challenge against the Broadcast Consortium's decision would be successful. Legally, that's probably the right outcome in my opinion, but it's a shame since I would have preferred to see Ms. May participate in the debate.

5 Questions (for candidates) about Copyright

Recently there has been some discussion on a mailing list I'm a member of about questionnaires to solicit candidates' positions on copyright reform, now that the election campaign is officially underway. After contributing my suggestions, I noted that I should probably just go ahead and send my questions off to my local candidates, regardless of what the other participants in the conversation decided to do. So I did. Here's what I sent, minus a short introduction:

1. Do you agree with the Supreme Court of Canada that "[i]n order to maintain the proper balance between the rights of a copyright owner and users’ interests, [fair dealing, among the other exceptions in the Act] must not be interpreted restrictively." [CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13]?
2. Do you believe that Canada should implement and ratify the WIPO Internet treaties (the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty)?
3. If the answer to 2. is "yes", do you agree that the Article 11 WCT obligation (and similar obligation under Article 18 of the WPPT) can, and should, be satisfied without imposing a blanket prohibition on tools and/or technologies that may have both infringing and non-infringing uses?
4. Do you believe that the current private copying regime for audio recordings defined by Part VIII of the Copyright Act, including the associated levy and collective society is basically fair to both rights-holders and users of recordings?
5. Do you believe that a creator's right to control their creation includes the right to control or limit a consumer's private enjoyment of property?

I don't really view any of these questions as no-brainers. While one can treat them as a simple yes/no scorecard, there's plenty of room for interesting discussion within these parameters. So I'm curious to see what, if any, response I get from the candidates.

Class action waiver unconsionable in State of Washington

Groklaw is reporting on an appellate court decision from Washington State that upholds a trial court's denial of a motion by AT&T to compel arbitration, under the terms of its Consumer Services Agreement.

I particularly like this sentence from the ruling:

Courts will not be easily deceived by attempts to unilaterally strip away consumer protections and remedies by efforts to cloak the waiver of important rights under an arbitration clause.

The discussion on Groklaw mentions, among other things, that the standard for demonstrating unconscionability vary from state to state in the US. In particular in this case the court didn't have to rule on the question of whether unilateral changes of contract terms were procedurally unconscionable, because in Washington, it's sufficient to demonstrate substiantive unconscionability alone. The court notes:

However, having held below that the entire dispute resolution provision is substantively unconscionable, we find it unnecessary to reach the issue of procedural unconsionablity.

It is worth noting that, in Ontario, where I live, this question probably wouldn't come up anymore--at least not in an analogous context. The Consumer Protection Act specifically provides that:

Without limiting the generality of subsection (1), any term or acknowledgment in a consumer agreement or a related agreement that requires or has the effect of requiring that disputes arising out of the consumer agreement be submitted to arbitration is invalid insofar as it prevents a consumer from exercising a right to commence an action in the Superior Court of Justice given under this Act. 2002, c. 30, Sched. A, s. 7 (2).

and

A consumer may commence a proceeding on behalf of members of a class under the Class Proceedings Act, 1992 or may become a member of a class in such a proceeding in respect of a dispute arising out of a consumer agreement despite any term or acknowledgment in the consumer agreement or a related agreement that purports to prevent or has the effect of preventing the consumer from commencing or becoming a member of a class proceeding. 2002, c. 30, Sched. A, s. 8 (1).

So, under Ontario law, I believe that the original class action suit would have been explicitly authorized, and the provision in the contract that required arbitration would be unenforceable. (The usual "I'm not a lawyer; this isn't legal advice" disclaimer applies, naturally.)