1 cptwg meeting #96 april 18, 2006 legislative/regulatory update jim burger [email protected]...
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CPTWG MEETING #96CPTWG MEETING #96
April 18, 2006April 18, 2006
Legislative/Regulatory UpdateLegislative/Regulatory Update
Jim BurgerJim [email protected]@dowlohnes.com
CPTWG MEETING #96CPTWG MEETING #96
April 18, 2006April 18, 2006
Legislative/Regulatory UpdateLegislative/Regulatory Update
Jim BurgerJim [email protected]@dowlohnes.com
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OverviewOverviewOverviewOverview LegislationLegislation
Audio Broadcast Flag Licensing Act (H.R. 4861)Audio Broadcast Flag Licensing Act (H.R. 4861) Perform Act (draft)Perform Act (draft) House Commerce Committee Hearing: House Commerce Committee Hearing: Digital Digital
Content and Enabling Technology: Satisfying the Content and Enabling Technology: Satisfying the 21st Century Consumer21st Century Consumer
French Implementation of EU Copyright French Implementation of EU Copyright DirectiveDirective
LitigationLitigation Static Control v. LexmarkStatic Control v. Lexmark Arista Records v. Flea WorldArista Records v. Flea World
LegislationLegislation Audio Broadcast Flag Licensing Act (H.R. 4861)Audio Broadcast Flag Licensing Act (H.R. 4861) Perform Act (draft)Perform Act (draft) House Commerce Committee Hearing: House Commerce Committee Hearing: Digital Digital
Content and Enabling Technology: Satisfying the Content and Enabling Technology: Satisfying the 21st Century Consumer21st Century Consumer
French Implementation of EU Copyright French Implementation of EU Copyright DirectiveDirective
LitigationLitigation Static Control v. LexmarkStatic Control v. Lexmark Arista Records v. Flea WorldArista Records v. Flea World
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Audio Broadcast Flag Licensing Act Audio Broadcast Flag Licensing Act of 2006 (H.R. 4861)of 2006 (H.R. 4861)
Audio Broadcast Flag Licensing Act Audio Broadcast Flag Licensing Act of 2006 (H.R. 4861)of 2006 (H.R. 4861)
Would give FCC authority to require that:Would give FCC authority to require that: Licenses prohibit unauthorized copying or redistribution Licenses prohibit unauthorized copying or redistribution
via broadcast flag or similar technologyvia broadcast flag or similar technology Digital audio technologies be licensed on reasonable and Digital audio technologies be licensed on reasonable and
nondiscriminatory termsnondiscriminatory terms Permits performing and mechanical rights Permits performing and mechanical rights
organizations to:organizations to: Circumvent technological measures to monitor use of Circumvent technological measures to monitor use of
their copyrighted workstheir copyrighted works Obtain free license from the digital audio providers to Obtain free license from the digital audio providers to
undertake such monitoringundertake such monitoring
Would give FCC authority to require that:Would give FCC authority to require that: Licenses prohibit unauthorized copying or redistribution Licenses prohibit unauthorized copying or redistribution
via broadcast flag or similar technologyvia broadcast flag or similar technology Digital audio technologies be licensed on reasonable and Digital audio technologies be licensed on reasonable and
nondiscriminatory termsnondiscriminatory terms Permits performing and mechanical rights Permits performing and mechanical rights
organizations to:organizations to: Circumvent technological measures to monitor use of Circumvent technological measures to monitor use of
their copyrighted workstheir copyrighted works Obtain free license from the digital audio providers to Obtain free license from the digital audio providers to
undertake such monitoringundertake such monitoring
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Perform ActPerform ActPerform ActPerform Act Sen. Feinstein draft; Not Yet Introduced Sen. Feinstein draft; Not Yet Introduced Requires Satellite Radio Providers toRequires Satellite Radio Providers to
Avoid conduct that permits users to record audio contentAvoid conduct that permits users to record audio content Use “reasonably available technology” to prevent copying of audio Use “reasonably available technology” to prevent copying of audio
contentcontent ““Reasonable Recording” ExceptionReasonable Recording” Exception
Recording of audio content permissible only where technology Recording of audio content permissible only where technology permits permits ““automatic recording,” or automatic recording,” or playback based on specific programs, time periods, or channelsplayback based on specific programs, time periods, or channels
Exception does Exception does notnot apply to devices that apply to devices that enable recording or playback based on specific songs, artists, enable recording or playback based on specific songs, artists,
genres or other user preferences, or genres or other user preferences, or allow users to play songs other than in original broadcast orderallow users to play songs other than in original broadcast order
Performing Rights Organization to Have Similar Performing Rights Organization to Have Similar Circumvention and Licensing as H.R. 4861Circumvention and Licensing as H.R. 4861
Sen. Feinstein draft; Not Yet Introduced Sen. Feinstein draft; Not Yet Introduced Requires Satellite Radio Providers toRequires Satellite Radio Providers to
Avoid conduct that permits users to record audio contentAvoid conduct that permits users to record audio content Use “reasonably available technology” to prevent copying of audio Use “reasonably available technology” to prevent copying of audio
contentcontent ““Reasonable Recording” ExceptionReasonable Recording” Exception
Recording of audio content permissible only where technology Recording of audio content permissible only where technology permits permits ““automatic recording,” or automatic recording,” or playback based on specific programs, time periods, or channelsplayback based on specific programs, time periods, or channels
Exception does Exception does notnot apply to devices that apply to devices that enable recording or playback based on specific songs, artists, enable recording or playback based on specific songs, artists,
genres or other user preferences, or genres or other user preferences, or allow users to play songs other than in original broadcast orderallow users to play songs other than in original broadcast order
Performing Rights Organization to Have Similar Performing Rights Organization to Have Similar Circumvention and Licensing as H.R. 4861Circumvention and Licensing as H.R. 4861
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Digital Content and Enabling Technology: Digital Content and Enabling Technology: Satisfying the 21st Century Consumer (House Satisfying the 21st Century Consumer (House
Commerce Committee Hearing)Commerce Committee Hearing)
Digital Content and Enabling Technology: Digital Content and Enabling Technology: Satisfying the 21st Century Consumer (House Satisfying the 21st Century Consumer (House
Commerce Committee Hearing)Commerce Committee Hearing)
Congress Needs to Content Balance Protection with Congress Needs to Content Balance Protection with Fair Use RightsFair Use Rights
Testimony From MPAA, TiVo, Sling Media, Testimony From MPAA, TiVo, Sling Media, Entertainment Software AssociationEntertainment Software Association MPAA, ESA MPAA, ESA
DMCA and DRM add comfort to deploying media in DMCA and DRM add comfort to deploying media in new formatsnew formats
TiVo, Sling MediaTiVo, Sling Media Extensive fair use rights necessary to achieve innovationExtensive fair use rights necessary to achieve innovation
Congress Needs to Content Balance Protection with Congress Needs to Content Balance Protection with Fair Use RightsFair Use Rights
Testimony From MPAA, TiVo, Sling Media, Testimony From MPAA, TiVo, Sling Media, Entertainment Software AssociationEntertainment Software Association MPAA, ESA MPAA, ESA
DMCA and DRM add comfort to deploying media in DMCA and DRM add comfort to deploying media in new formatsnew formats
TiVo, Sling MediaTiVo, Sling Media Extensive fair use rights necessary to achieve innovationExtensive fair use rights necessary to achieve innovation
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Law on Author Rights and Related Law on Author Rights and Related Rights in the Information SocietyRights in the Information Society
Law on Author Rights and Related Law on Author Rights and Related Rights in the Information SocietyRights in the Information Society
French implementation of EU Copyright Directive Technical Measure Providers Must Share “Information
Essential to Interoperability” of DRM Formats “Information” includes technological documentation and
programming interfaces essential to interoperability” “Interested Parties” can decompile to obtain information
Goal is to Ensure Consumers can Play Any Downloaded Song on Any MP3 player E.g., Apple must disclose DRM code so other digital music
players can play iTunes files
French implementation of EU Copyright Directive Technical Measure Providers Must Share “Information
Essential to Interoperability” of DRM Formats “Information” includes technological documentation and
programming interfaces essential to interoperability” “Interested Parties” can decompile to obtain information
Goal is to Ensure Consumers can Play Any Downloaded Song on Any MP3 player E.g., Apple must disclose DRM code so other digital music
players can play iTunes files
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Law on Author Rights and Related Law on Author Rights and Related Rights in the Information Society (cont.)Rights in the Information Society (cont.)
Law on Author Rights and Related Law on Author Rights and Related Rights in the Information Society (cont.)Rights in the Information Society (cont.)
Also “Cracks Down” on P2PAlso “Cracks Down” on P2P Illegal to “knowingly publish” software that Illegal to “knowingly publish” software that
facilitates unauthorized distribution of copyrighted facilitates unauthorized distribution of copyrighted worksworks
Authorized penalties:Authorized penalties: Fines of up to 300,000 eurosFines of up to 300,000 euros Up to 3 years in jailUp to 3 years in jail
Bill Passed France’s National Assembly March 21Bill Passed France’s National Assembly March 21 Senate Commission of Cultural Affairs Approved Senate Commission of Cultural Affairs Approved
Amended Version April 14Amended Version April 14 Full Senate will consider in MayFull Senate will consider in May
Also “Cracks Down” on P2PAlso “Cracks Down” on P2P Illegal to “knowingly publish” software that Illegal to “knowingly publish” software that
facilitates unauthorized distribution of copyrighted facilitates unauthorized distribution of copyrighted worksworks
Authorized penalties:Authorized penalties: Fines of up to 300,000 eurosFines of up to 300,000 euros Up to 3 years in jailUp to 3 years in jail
Bill Passed France’s National Assembly March 21Bill Passed France’s National Assembly March 21 Senate Commission of Cultural Affairs Approved Senate Commission of Cultural Affairs Approved
Amended Version April 14Amended Version April 14 Full Senate will consider in MayFull Senate will consider in May
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Static Control v. LexmarkStatic Control v. LexmarkStatic Control v. LexmarkStatic Control v. Lexmark BackgroundBackground
Static Control makes aftermarket laser printer toner cartridgesStatic Control makes aftermarket laser printer toner cartridges Lexmark uses authentication process to prevent third party Lexmark uses authentication process to prevent third party
cartridges from working in its printerscartridges from working in its printers Static reversed engineered process; Lexmark sued claiming Static reversed engineered process; Lexmark sued claiming
copyright infringement and DMCA violationcopyright infringement and DMCA violation DC found for Lexmark, 6DC found for Lexmark, 6thth Cir. Reversed, Petition for Cir. Reversed, Petition for
Rehearing En Banc deniedRehearing En Banc denied StatusStatus
Lexmark positioning itself for Certiorari PetitionLexmark positioning itself for Certiorari Petition Parties stipulated to summary judgment against Lexmark on Parties stipulated to summary judgment against Lexmark on
DMCA claims on Feb. 23, 2006 DMCA claims on Feb. 23, 2006 Lexmark has right to petition SC for cert. once trial court enters Lexmark has right to petition SC for cert. once trial court enters
judgment on all remaining issuesjudgment on all remaining issues
BackgroundBackground Static Control makes aftermarket laser printer toner cartridgesStatic Control makes aftermarket laser printer toner cartridges Lexmark uses authentication process to prevent third party Lexmark uses authentication process to prevent third party
cartridges from working in its printerscartridges from working in its printers Static reversed engineered process; Lexmark sued claiming Static reversed engineered process; Lexmark sued claiming
copyright infringement and DMCA violationcopyright infringement and DMCA violation DC found for Lexmark, 6DC found for Lexmark, 6thth Cir. Reversed, Petition for Cir. Reversed, Petition for
Rehearing En Banc deniedRehearing En Banc denied StatusStatus
Lexmark positioning itself for Certiorari PetitionLexmark positioning itself for Certiorari Petition Parties stipulated to summary judgment against Lexmark on Parties stipulated to summary judgment against Lexmark on
DMCA claims on Feb. 23, 2006 DMCA claims on Feb. 23, 2006 Lexmark has right to petition SC for cert. once trial court enters Lexmark has right to petition SC for cert. once trial court enters
judgment on all remaining issuesjudgment on all remaining issues
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Arista Records, Inc. v. Flea World, Arista Records, Inc. v. Flea World, Inc.Inc.
Arista Records, Inc. v. Flea World, Arista Records, Inc. v. Flea World, Inc.Inc.
BackgroundBackground Defendants operate flea market in NJDefendants operate flea market in NJ Vendors at market sold pirated and counterfeit Vendors at market sold pirated and counterfeit
CDsCDs RIAA sued on contributory and vicarious RIAA sued on contributory and vicarious
copyright infringement theoriescopyright infringement theories U.S. Dist. Ct. for Dist. N.J. found defendants U.S. Dist. Ct. for Dist. N.J. found defendants
liableliable
BackgroundBackground Defendants operate flea market in NJDefendants operate flea market in NJ Vendors at market sold pirated and counterfeit Vendors at market sold pirated and counterfeit
CDsCDs RIAA sued on contributory and vicarious RIAA sued on contributory and vicarious
copyright infringement theoriescopyright infringement theories U.S. Dist. Ct. for Dist. N.J. found defendants U.S. Dist. Ct. for Dist. N.J. found defendants
liableliable
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Arista Records v. Flea World (cont.)Arista Records v. Flea World (cont.)Arista Records v. Flea World (cont.)Arista Records v. Flea World (cont.) Vicariously liabilityVicariously liability
Defendants had ability to supervise and control vendorsDefendants had ability to supervise and control vendors Financial benefit: sale of infringing CDs draws consumersFinancial benefit: sale of infringing CDs draws consumers
Contributory liability – Defendants Argued Not Guilty Contributory liability – Defendants Argued Not Guilty Under Under Sony/Grokster Sony/Grokster TestTest Defendants knew vendors sold infringing productsDefendants knew vendors sold infringing products Grokster Grokster inducement standard not applicableinducement standard not applicable
Products in Products in GroksterGrokster capable of non-infringing uses; capable of non-infringing uses; defendants had no control once in commercedefendants had no control once in commerce
Flea market exhibits continuous control over vendorsFlea market exhibits continuous control over vendors Defendants “materially contributed” to infringement by Defendants “materially contributed” to infringement by
providing facilities and servicesproviding facilities and services GroksterGrokster “promoting” infringement standard irrelevant; flea “promoting” infringement standard irrelevant; flea
market conduct not analogous to putting item in commercemarket conduct not analogous to putting item in commerce
Vicariously liabilityVicariously liability Defendants had ability to supervise and control vendorsDefendants had ability to supervise and control vendors Financial benefit: sale of infringing CDs draws consumersFinancial benefit: sale of infringing CDs draws consumers
Contributory liability – Defendants Argued Not Guilty Contributory liability – Defendants Argued Not Guilty Under Under Sony/Grokster Sony/Grokster TestTest Defendants knew vendors sold infringing productsDefendants knew vendors sold infringing products Grokster Grokster inducement standard not applicableinducement standard not applicable
Products in Products in GroksterGrokster capable of non-infringing uses; capable of non-infringing uses; defendants had no control once in commercedefendants had no control once in commerce
Flea market exhibits continuous control over vendorsFlea market exhibits continuous control over vendors Defendants “materially contributed” to infringement by Defendants “materially contributed” to infringement by
providing facilities and servicesproviding facilities and services GroksterGrokster “promoting” infringement standard irrelevant; flea “promoting” infringement standard irrelevant; flea
market conduct not analogous to putting item in commercemarket conduct not analogous to putting item in commerce