Transcript cptwg.org

CPTWG MEETING #99
October 4, 2006
Legislative/Litigation Update
Jim Burger
[email protected]
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Overview

Legislative/Regulatory Issues
Copyright Modernization Act of 2006 (H.R. 6052)
 IP Enhanced Criminal Enforcement Act of 2006 (H.R.
5921)
 Other U.S. Copyright Developments
 WIPO Broadcasting Treaty
 Australian Copyright Reform
 European Developments


Litigation
Arista Records LLC et al. v. Lime Wire LLC
 Cablevision Suits (Twenty Century Fox & Cartoon Network)
 MGM Studios v. Grokster
 Atlantic Recording Corp. v. XM Satellite Radio
 CBC Distribution v. Major League Baseball Advance Media
 In re Rambus, Inc.

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Legislative/Regulatory
Issues
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Copyright Modernization Act of 2006
(H.R. 6052)

Introduced Sept. 12 by Rep. Lamar Smith;
combines three pending copyright measures

Section 115 Reform Act of 2006 (SIRA)
 Would
establish compulsory license for distribution of
digital music via download or streaming
 Goal is to streamline process of licensing digital music

Orphan Works Act of 2006
 Eliminates
copyright infringement liability where user
made diligent effort to locate author

Copyright Protection Resources Authorization Act
of 2006
 Creates
IP task force to assist in international
prosecution of IP infringement
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Copyright Modernization Act of 2006 (cont.)

SIRA most controversial of the three measures

Consumer groups, IT companies, broadcasters have
issues with SIRA; Sept. 13 letter to Sensebrenner
 Signatories
included CEA, EFF, HRRC, NAB, Sirius
and XM Radio
 Argued bill would limit consumers’ rights to copy
digital music for personal use
 Need license for every digital copy, even cache and
buffer copies with no independent economic value
 Satellite radio providers would incur additional license
fees for devices that record programming
 Bill is “backhanded technology mandate” that will limit
fair use

Bill has been unable to gain momentum; Smith
shelved it on Sept. 27th for remainder of session
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Intellectual Property Enhanced
Criminal Enforcement Act of 2006

Ch. Sensebrenner Introduced in July

Increase criminal penalties for copyright infringement




Longer prison sentences for unauthorized trafficking in musical
recordings and unauthorized recording of movies
Criminalizes “attempts” to traffic in circumvention devices that
violate DMCA
Authorizes additional funding for DOJ to create IP theft
unit, and for FBI and DOJ to investigate computer
crimes
Bill referred to House Judiciary Committee, unlikely to
pass in current session; may be reintroduced next year
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Other U.S. Copyright Developments

CEA, RIAA recently addressed copyright issues with Rep.
Boucher



RIAA sent letter stating CPTWG wasn’t “appropriate forum” to
discuss digital radio content protection issues and wouldn’t
participate
CEA response: RIAA’s letter refusing to participate confirms that
it has nothing to propose; RIAA simply wants to stop consumers
from making personal copies of musical works
Music Publishers threatens musicians with suit




MPA & NMPA wants to shut down guitar tablature websites,
where musicians exchange tips about how to play popular songs
 Claim postings are derivative works of original compositions
Music publishers say losing royalties from sale of sheet music
Suits have been threatened, none filed to date
Several sites shut down
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WIPO Broadcasting Treaty



Ten Year Series of Meetings
Rome versus Section 325
February 8, 2006 Draft
 Right
of Fixation
 Right of Reproduction
 TPM
 50-year Term


Chairman of May SCCR – Calls for DipCon
General Assembly – October 2
– Two SCCR meetings & if consensus
on signal-based approach, DipCon in Nov ‘07
 Decision
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Australian Copyright Reform




Australian AG circulated draft legislation Sept. 4th & 22nd
designed to create new liability for circumventing
technological protection measures
Certain activities carved out as exceptions:
 Reproducing software to make interoperable products
 Reproduction of copyrighted materials by educational
institutions
 Inclusion of sound recordings for broadcasting purposes
 Circumvention where TPM is obsolete, damaged, defective,
malfunctioning or unusable, or where necessary to repair the
TPM
 Circumventing regional coding on DVDs and video games
Violations could result in up to 5 years in prison and/or fine of
up to US $45,000
Comment period ended Sept. 22; bill expected to be
introduced in Parliament in October
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European Developments

France’s “Law on Author Rights and Related Rights in the
Information Society”
 Enacted by French Parliament June 30
 Requires
manufacturers to make their devices play music
regardless of DRM format
 French iPod users will be able to play music downloaded from
other services
 Users of other devices will be able to play music from iTunes
 But Apple not required to share all information about its DRM
technology


UK, Sweden, Denmark, Norway and Poland considering
measures similar to French law
 Apple currently negotiating with Scandinavian
governments over proposed laws
UK’s national library also recently called for updating of
UK copyright law to restrict the use of DRMs that goes
beyond protection of copyrights
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Litigation
Arista Records LLC et al. v.
Lime Wire LLC


LimeWire operates file sharing service
Record labels brought suit in SDNY Aug. 4 alleging
secondary copyright infringement, including Grokster
inducement




Labels allege that LimeWire encourages users to
“generously” share music files
LimeWire can review users’ searches and should know of
infringing activity and know what is being shared
LimeWire knows its users infringe because it has targeted
users of other P2P services
Answer and counterclaims filed Sept. 25; LimeWire
alleges that labels are colluding to create monopoly over
distribution of digital music
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Cablevision Suits

Parties filed cross motions for summary judgment in both cases Sept. 5
 Plaintiffs
 By “retransmitting” content to subscribers, remote DVR makes
“public performance” that requires a license
 Service also violates plaintiffs’ exclusive right to make copies of
their copyrighted works
 Sony is distinguishable: Cablevision, unlike Sony, would have
“continuing involvement” in providing the service
 Cablevision
 Under Sony, provider of devices used to make copies not liable
for direct copyright infringement; plaintiffs must show indirect
infringement
 Works provided via remote DVR are not “public
performances”
 Cablevision is not “performing” works because Customer, not
Cablevision, operates the DVR
 Customers’ personal uses of programs are not “public”
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Atlantic Recording Corp. v.
XM Satellite Radio

XM filed motion to dismiss July 17

Argues inno device is protected under AHRA

AHRA prohibits infringement claims based on manufacture, sale or
consumer use of digital audio recording device
 Inno is digital recording device, but not digital download service

Plaintiffs filed opposition to motion on August 31

XM’s license permits “evanescent public performances;” does
not authorizes users to make permanent copy

Inno users can listen to recorded music without listening to live
broadcast; makes inno equivalent to download service
 Such use “cannibalizes” authorized market for digital downloads

AHRA does not immunize XM’s conduct

Only applies to claims based on the act of manufacturing, importing or
distributing digital audio recording devices
 Also immunizes users of these devices, and manufacturers that sell
them
 XM is not engaging in any of these types of conduct, and therefore
cannot rely on AHRA
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MGM Studios v. Grokster


StreamCast sole remaining defendant after
remand from Supreme Court to district court
District court (C.D. Cal.) granted studios’ motion
for summary judgment Sept. 27th

Under Grokster inducement standard, StreamCast
distributed its software with intent of encouraging
infringement
 StreamCast targeted original Napster users
 Provided technical assistance to
users to play
copyrighted content downloaded using StreamCast
software
 StreamCast knew system could search for copyrighted
content; it even had a “Top 40” songs category
 Business model depended on mass infringing use
 StreamCast took no steps to avoid infringement (e.g.,
filtering technology)
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In re Rambus


Background
 Rambus, develops computer memory technologies, joined
standard setting organization (SSO) for such technologies
 SSO’s rules obligated members to disclose relevant IPR, which
only could be included in the standard if licensed on RAND
terms
 Rambus did not disclose certain patents; once the standard was
adopted, sued members who practiced standard for infringement
 FTC brought charges for anticompetitive conduct and unfair
competition
Decision (FTC)
 SSO disclosure requirements involve implied duty to operate
cooperatively and in good faith


Ambiguous statements from Rambus about its IPR therefore were
deceptive and misleading
Rambus’s failure to disclose denied members opportunity to
negotiate against excessive royalties
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