Washington Brief - December 2004

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Washington Brief
By Mary Alice Baish

Dateline: October 7, 2004

Update on the INDUCE Act
Members of Congress are working through the weekend before heading home for the election recess, which for many of us here in the nation's capital cannot come a minute too soon. Congressmen leave town with much work undone, including agreeing to the 13 FY 2005 appropriations bills. A continuing resolution will keep the federal government running until they return on November 15th for the lame-duck session. One thing we know for sure is that there will be an omnibus copyright bill this year that will include various bills that have passed in either the House or Senate--leaving open the opportunity for much mischief in the waning days of the 108th Congress.

We were threatened twice during the past week with possible mark-ups of S. 2560, the Inducing Infringement of Copyrights Act (INDUCE Act) and action alerts were posted to the AALL Advocacy listserv and law-lib. If enacted, S. 2560 would make companies and other Internet service providers liable if their software or technology "induces" users to violate copyright laws. We believe strongly that the solution is not to ban technology simply because it can be used to "induce" consumers to make illegal copies. The bill is so broadly drafted that it has many unintended consequences far beyond targeting those who infringe copyright. Thanks to all of you who responded with calls and emails to your senators. We heard from some congressional staff after the first alert that they had received more calls from constituents opposing S. 2560 than they've received on any other issue thus far during the 108th Congress. That was heartening news for a job well done!

Senate Judiciary Chairman Orrin Hatch was not pleased with the postponement of the September 30th mark-up. He quickly convened negotiating sessions every day between a small group of representatives from both the content and technology/ISP communities, in effect locking them in a room until they could agree to a consensus bill. Despite long days of negotiations and daily new drafts, the two sides are farther apart than ever. From our perspective, the latest version--which Hatch was hoping to take to mark-up today--is even worse than the original bill. Late yesterday afternoon, Hatch postponed today's mark-up but we're not out of the woods since the Senate now is working through the weekend. The danger is that Hatch will quietly pull together a quorum off the Senate floor and get the bill reported out--with no public debate. We are working very hard to stop that from happening and law librarians everywhere have helped our efforts enormously. Thanks again!

New Litigation Regarding the Broadcast Flag
On October 5, 2004 AALL joined eight other public interest groups in filing a brief with the U.S. Court of Appeals for the D.C. Circuit stating that the Federal Communications Commission (FCC) had exceeded its authority by imposing a "broadcast flag" regime for over-the-air digital television. The "flag" is a small amount of data added to a digital TV signal that determines how the programming may be used by devices other than the TV set. The FCC's new rules require that all TV sets, computers and other devices capable of directly receiving digital TV signals be required to follow the "flag" instructions, thus limiting the distribution of digital programs. This new technology mandate promoted by the Motion Picture Association of America and other content owners allows them to control current and future digital media devices.

The brief argues that the FCC has no authority to regulate digital TV sets and other digital devices unless specifically granted by Congress, and that the Communications Act and a 1962 law, the All Channel Receivers Act, deliberately put limits on the FCC authority. In addition, it argues that the broadcast flag rule overstepped the bounds of copyright law, and that the FCC adopted it without any evidence that there was a problem in redistribution of digital content. Among our concerns with the flag is that Congress enacted legislation in 2002 allowing for use of copyrighted works for distance education. The FCC through the broadcast flag would prevent schools from using an entire category of those works--high definition television programs--in distance education. The case is American Library Association et al. v. FCC.

AALL Signs onto Geneva Declaration on the Future of WIPO
On October 4, 2004, the General Assembly of the World Intellectual Property Organization (WIPO) agreed to adopt a proposal offered by Argentina and Brazil that calls on WIPO to focus more on the needs of developing countries and to view intellectual property as one of many tools necessary for development. AALL had earlier endorsed this important effort by signing onto the Geneva Declaration on the Future of WIPO. We agree that WIPO must recognize the importance of intellectual property for the future of humanity while stressing the importance of balance in the laws and policies governing such intellectual property.

In a joint press release with ALA, ARL and SLA, we noted that WIPO must move beyond its original agenda of simply protecting intellectual property to develop a new agenda that promotes both international development and establishes new approaches to supporting innovation and creativity. We believe that recent efforts to expand intellectual property rights have gone too far and must be brought back into balance. The development of a new agenda will give WIPO the opportunity to take a leadership role in re-crafting the necessary balance between the rights of creators and the rights of users. This may call for the rollback of recent expanded protections or the development of new user rights to counterbalance them. We also urged WIPO to deal creatively with the issues raised by digital technology to provide appropriate levels of protection while also supporting the rights of users to effectively use the new technologies.

Mary Alice Baish
Associate Washington Affairs Representative
Edward B. WIlliams Law Library
111 G Street, N.W.
Washington, DC 20001-1417
202/662-9200 * FAX:202/662-9202


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