Senator Tillis Holds Secret Meeting With IP Maximalists To Discuss A Single US 'IP' Agency

from the that-would-be-a-problem dept

Senator Thom Tillis is chock full of bad ideas about copyrights and patents -- mostly focused on making things worse for the public by expanding the monopoly powers granted to patent and copyright holders. So I guess it comes as little surprise that he held a secret meeting that appears to have only been attended by copyright maximalists to talk about trying to merge the Copyright Office into the US Patent & Trademark Office.

In a previously unreported meeting Friday, staffers from the office of Sen. Thom Tillis, the ranking member of the Senate Judiciary Subcommittee on Intellectual Property, met with representatives from across the content industries to discuss consolidating America’s three main IP regulators into one sprawling, catch-all agency.

“I think we could look at the organizational structure and ask questions about what’s the most effective way of doing it,” Tillis told National Journal on Tuesday. “At the end of the day, I want a fair, predictable, and lean IP apparatus—whether it’s patents, trademarks, copyrights.”

Tillis spokesperson Adam Webb said in a statement that the senator “hosted initial meetings on creating a unified, independent intellectual-property agency and on how to resolve online copyright piracy.” Webb said 35 participants attended the two Friday meetings, which he stressed were preliminary in nature and not guaranteed to result in new legislation.

It seems weird that, if you were exploring such a thing that you wouldn't bring in folks outside of the copyright maximalist industries, but apparently that's of less interest to Tillis?

The idea of "consolidating" the Copyright Office into the PTO has long been a dream for many copyright maximalists -- mainly because they're extraordinarily upset that the Copyright Office is a part of the Library of Congress, and they hate the fact that the Librarian of Congress sometimes wants to actually live up to the mission of making sure that copyright is there to "promote the progress" of learning. They'd much rather it be connected with the USPTO, which is under the Commerce Department and clearly designed to be in the interests of the big companies that control it.

It's already kind of a travesty that the PTO is one agency for both patents and trademarks, since those two things serve extraordinarily different purposes. Trademarks, again, are supposed to be a form of consumer protection -- making sure that when you're buying something from a certain company, you're aware of who really made it, and aren't being tricked into buying a copycat. Patents, on the other hand, are supposed to be (though rarely are) about incentivizing innovation. Copyright is supposed to be for the encouragement of learning. It's just that over the centuries, certain industries have bastardized all three to pretend that they're about helping a few giant businesses collect as much monopoly rent as possible. Tillis shouldn't be helping that.

About the only reassuring quote in the piece comes from Mitch Glazier, who now runs the RIAA, but got his initial job at the RIAA just months after he snuck four words into an unrelated piece of legislation that effectively took away the ability of musicians to get control over their works (enabling the RIAA to have much greater control). In the article, Glazier worries that a consolidated agency would focus too much on patents at the expense of copyrights:

Glazier said his office is “agnostic” about the notion of a unified IP agency, but noted it could kick off a turf war between the three agencies. He also said a single agency could end up focusing largely on patents—far and away the greatest moneymaker—to the detriment of key copyright issues.

Still, there's literally no need for this move to happen at all, and I don't understand why Tillis is exploring the idea, nor why he is holding secret meetings with the copyright industry to try to get their buy in.

Filed Under: copyright, copyright office, hollywood, library of congress, maximalists, thom tillis, uspto
Companies: mpa, riaa

Senator Tillis To President Biden: How Dare You Nominate To The FCC Someone Prepared To Protect The Public

from the he-doth-protest-too-much dept

Senator Tillis penned a letter to President Biden this week that is breathtaking in its obtuseness. In it, he demanded that the President withdraw the nomination of Gigi Sohn to the FCC for having championed the longstanding ability of the public to receive over-the-air signals on public airwaves. Or, in other words, for having done exactly what we should want an FCC commissioner, tasked with the stewardship of the nation's spectrum, to do.

In his outrage at how fit for purpose her career has been for this role, Tillis betrays how badly his own office has abandoned the same public interest she has long protected. In particular, by overstating the upshot of a single court's never-reviewed decision, and making other unfounded, scurrilous accusations against her, Tillis falsely suggests it was she who has somehow done wrong in supporting Locast. And by taking the side of the plaintiffs he gladly turns a blind eye to the actual wrong that has been committed against the public by the broadcasters who, in suing Locast, have succeeded in robbing the public of the benefit of its own broadcast spectrum.

It's a serious deprivation that Senator Tillis seems all too eager to condone, because what he conveniently ignores is that spectrum licenses aren't supposed to be gifts to licensees for them to monopolize for their own self-interest. Rather, the quid-pro-quo behind the licensing of this public resource is to make sure that, by letting broadcasters use the spectrum for their programming, the public will then get the benefit of that programming. If there's no benefit to be had, then there's no point in the public ever licensing the spectrum to broadcasters in the first place.

Yet that's where we are, with much of the public now cut off from their own public airwaves and the programming they are supposed to be able to receive. Because for the many people who live in areas with poor reception, or who don't have rabbit ears (when's the last time you saw a tv sold with a set?), or who can't afford (or are not interested in affording) the hefty monthly charge needed for a cable subscription in order to get access to the over-the-air stations they should otherwise be able to watch, it was only with the antenna-renting services like Locast that they could finally enjoy the programming to which they are entitled. But now, thanks to certain broadcasters misusing copyright law and their privileged position as incumbent public spectrum licensees to shut these services down, they can't.

If these broadcasters are no longer interested in providing over-the-air programming to the public, that's a choice they can make. In finding it so offensive that services like Locast would help their over-the-air programming actually reach public audiences it would appear that's a decision they have indeed made. But then they should have to relinquish the spectrum so that it can be reallocated to someone who does want to make use of the spectrum license to provide over-the-air programming to the public. In any case they should NOT be able to cut the public off from ALL broadcast programming just because they don't want to reach the public that way anymore themselves. Yet that's what they have done, because with no more Locast, and no more Aereo, it's not just their programming that the public has lost access to but the programming of every other broadcaster, including those who depend on over-the-air reception for their stations to survive, since now the public has no way of receiving their channels either.

It's a deplorable state of affairs out of step with the spirit, if not also letter, of public spectrum licensing, as well as the constitutional purpose of copyright law to promote the progress of knowledge and culture, which has now been physically obstructed by the loss of these antenna-renting services. And it's about time we had someone in Washington ready, willing, and able to stand up for the public and do something about it. It shouldn't just be Gigi Sohn of course – Congress itself needs to be a better steward of the public interest in situations like these where it has been so conspicuously subordinated – but she's a great start.

Filed Under: copyright, fcc, gigi sohn, public spectrum, thom tillis
Companies: locast

Senators Tillis And Leahy Raise The Alarm About Judge Albright's Patent Forum Selling In Waco

from the good-for-them dept

At times I've been at odds with Senators Pat Leahy and Thom Tillis regarding their view on intellectual property (though Leahy has a good history on patent law -- Tillis... not so much). However, kudos to both of them for recognizing a very, very real problem in the way in which Judge Alan Albright has been engaged in what's been called jurisdiction selling.

If you don't recall, Judge Albright, who was a patent litigator before being appointed to the bench in Waco, Texas, went on tour advertising that patent plaintiffs should file in his district court (where he is the only judge). And, this resulted in a ton of cases all being filed there. And despite Supreme Court precedent that says judges need to be willing to transfer patent cases to proper venues, Albright has been thumbing his nose at higher courts and seeming to do everything he can to keep cases in his court.

And now, both Tillis and Leahy are ringing appropriate alarm bells over Albright's activities. Leahy and Tillis together have sent a letter to Supreme Court Chief Justice John Roberts to call out Judge Albright's behavior. It is not often that you see two Senators (who lead the IP subcommittee, no less) sending a letter to the Chief Justice to accuse a district court judge of being up to no good. It's quite a letter.

We write you to express our concern about problems with forum shopping in patent litigation. Our understanding is that in some judicial districts, plaintiffs are allowed to request their case be heard within a particular division. When the requested division has only one judge, this allows plaintiffs to effectively select the judge who will hear their case. We believe this creates an appearance of impropriety which damages the federal judiciary's reputation for the fair and equal administration of the law. Worse still, such behavior by plaintiffs can lead individual judges to engage in inappropriate conduct intended to attract and retain certain types of cases and litigants.

We are particularly concerned with this problem in the context of patent litigation. In the last two years our nation has seen a consolidation of a large portion of patent litigation before a single district court judge in Texas. In 2016 and 2017, this single district court heard only, on average, one patent case per year. Last year, however, nearly 800 patent cases were assigned to one judge in this district. This year, this district appears to be on track to have more than 900 cases. This means that roughly 25% of all the patent litigation in the entire United States is pending before just one of the nation’s more than 600 district court judges.

The concentration of patent litigation is no accident. We understand that a single judge in this district has openly solicited cases at lawyers’ meetings and other venues and urged patent plaintiffs to file their infringement actions in his court. Our understanding is that this single judge has also repeatedly ignored binding case law and abused his discretion in denying transfer motions. This has resulted in a flood of mandamus petitions being fled at the Federal Circuit. The Federal Circuit has been compelled to correct his clear and egregious abuses of discretion by granting mandamus relief and ordering the transfer of cases no fewer than 15 times in just the past two years.

The extreme concentration of patent litigation in one district and the unseemly and inappropriate conduct that has accompanied this phenomenon are, in our view, the result of an absence of adequate rules regulating judicial assignment and venue for patent cases within a district. While we do not know of similar problems occurring in other single-judge districts, it is not hard to imagine similar scenarios arising under a set of rules that allows a plaintiff to effectively choose a particular judge to hear their case. In order to correct these issues, we request that you direct the Judicial Conference to conduct a study of actual and potential abuses that the present situation has enabled. Additionally, we ask that such a study consider and implement appropriate reforms that you can take to address this issue. Finally, we ask that such a report provide legislative recommendations to ensure this problem does not arise in the future.

While simply asking for a study and exploring reforms may not seem like a big deal, it does seem like a warning shot. If something isn't done to fix this by the Judicial Conference, then Congress may need to step in.

Meanwhile, on the same day Tillis sent another letter (without Leahy) to the current commissioner for patents at the USPTO calling out a separate issue involving Judge Albright. This gets a bit deep into the weeds, but, as we've covered, there have been ongoing fights over the whole inter partes review process. This is where certain patents can be challenged before a special patent review board -- the Patent Trial & Appeal Board (PTAB) -- which is charged with determining whether or not the original patent was granted in error. Patent holders hate hate hate hate the PTAB/IPR process and have been looking to kill it for some time. A key part of their argument is often that it involves two different processes -- sometimes in parallel for killing a patent. The patent can be challenged both in court during a case, and before the PTAB via IPR. Last year, in the Apple v. Fintiv case, a rule was put forth that the PTAB would deny the IPR process to cases that were far enough along, to prevent two parallel challenges to the patent (with possibly opposing outcomes) happening at the same time.

This new letter from Tillis highlights how Albright appears to be using this ruling to block PTAB IPR challenges by scheduling unrealistic trial dates, which are then used to block the PTAB from going forward with an IPR.

As you know, Fintiv instructs the PTAB not to institute an Inter Partes Review (“IPR”) procedure to challenge a patents validity if the panel deems it to be more efficient to allow parallel district court litigation to proceed based on a balancing test comprising six non-dispositive factors. Again, while I strongly support the policies underlying Fintiv, my concern relates to the PTAB’s application of the second of these factors: the proximity of the court's trial date to the PTAB’s projected statutory deadline for a final written decision. Specifically. I am concerned that the PTAB’s historical practice of crediting unrealistic trial schedules. This has not only produced outcomes that are untethered from the policy underpinnings of the Fintiv rule, but it has also created harmful incentives for forum shopping and inappropriate judicial behavior.

The negative consequences are most pronounced in the Waco Division of the U.S. District Court for the Western District of Texas. The sole judge in that division schedules very early trial dates for all patent cases assigned to him. Often, these dates prove to be not just unrealistic, but they [sic] impossible to fulfill as multiple conflicting trials are frequently scheduled to occur on the same date before the same judge in the same courtroom. However, because PTAB panels interpret Fintiv to require scheduled trial dates to be taken at face value, panels have regularly exercised discretion to deny institution of IPRs in deference to litigation pending before that district.

Tillis doesn't hold back that this is mostly because of Judge Albright:

To be clear, Ibelieve judicial conduct is partly to blame for this situation. Once a case has been filed in the Waco Division, many defendants have found it all but impossible to persuade the division's sole judge to transfer the case to a more appropriate venue. In denying such transfers, the court has repeatedly ignored binding case law and abused his discretion. This misconduct has resulted in a flood of mandamus petitions being filed at the Federal Circuit, The Federal Circuit has been compelled to correct his clear and egregious abuses of discretion by granting mandamus relief and ordering the transfer of cases no fewer than 15 times in just the past two years.

Notably, in granting these petitions, the Federal Circuit has cast grave doubt on the reliability of the Waco Division's trial schedules and claims regarding efficiency of adjudication. The appellate court has strongly criticized the division's improper reliance on purportedly greater “congestion” in transferee courts in attempting to justify inappropriate denials of transfers under 28 U.S.C. § 1404(a). More specifically, the Federal Circuit has refused to credit the division's overly optimistic assumptions regarding the time-to-trial in cases, admonishing the division's judge that a “proper analysis” considers “the actual average time to trial rather than aggressively scheduled trial dates." Moreover, the circuit court has also implicitly questioned whether even amore accurate “proper analysis” based on precise caseload counts and the accurate time-to-trial statistics produces a reliable assessment of relative court congestion, characterizing this analysis as mere “speculation.”

Tillis concludes by basically saying that the PTAB should ignore trial dates set by Albright in doing a Fintiv analysis:

Based on the facts currently available to me, it is difficult to imagine any plausible justification for the continued reliance on the demonstrably inaccurate trial dates set by the Waco Division. I therefore ask that you undertake a study and review of this matter and consider whether Fintiv should be modified to account for unrealistic trial scheduling. I ask that you complete this review and implement appropriate reforms based on your findings by no later than December 31, 2021.

It's pretty incredible for a single judge to get this much attention, let alone two separate letters calling out his behavior. Of course, seeing as he's done little to change his behavior despite the Federal Circuit continuing to push back on his activities, it's unclear if any of this will change how Judge Albright acts.

Filed Under: alan albright, forum selling, forum shopping, inter partes review, ipr, john roberts, pat leahy, patents, ptab, thom tillis, uspto

Why Is A Congressional Staffer Teaming Up With A Hollywood Lobbyist To Celebrate Expansion Of Criminal Copyright Laws?

from the this-just-seems-blatantly-corrupt dept

Late last year, we wrote about how bizarre it was that Senator Thom Tillis was trying to force through a felony streaming bill by attaching it to an end-of-the-year appropriations bill. There were so so many problems with this both in terms of what the bill would do, and in the procedural way it was done. First, Tillis got it attached to the "must pass" appropriations bill before he'd even introduced it. That meant that there was no debate and no direct votes on his bill.

You can kinda maybe (but not really?) see where that might make sense for uncontroversial bills, but the felony streaming bill... was not that. Long time readers of Techdirt will know that Hollywood has been pushing for a felony streaming bill for over a decade, and it was originally set to be attached to the infamous SOPA/PIPA bill until the internet rose up and made it clear that it would not accept Congress passing such a dangerous bill. Given that, you'd think that any one who had an honest reason for pushing such a bill would open it up to debate, rather than hide it away in a giant bill. That should give you one giant hint as to why Tillis pushed it the way that he did.

Second, there have been multiple reports about just how much Hollywood has invested in Senator Tillis. And we've heard from multiple people now that Tillis bristles at the idea that he's somehow owned and operated by Hollywood lobbyists. Of course, it would help if he didn't repeat their talking points at every turn, and turn around and introduce massive copyright reform that was basically an early Christmas gift for Hollywood.

But if Tillis wants to claim that he's not just doing Hollywood's billing, you'd think he would not have allowed this to happen. His chief staffer working on these copyright bills, Brad Watts, teamed up with Fox's chief DC lobbyist, Gail Slater, to write an article patting each other on the back for getting the felony streaming bill passed.

I've spoken to multiple DC policy folks both inside and outside of Congress and literally none can think of any other example when a Congressional staffer and a top corporate lobbyist teamed up to write an op-ed together. It's literally unprecedented. More than one person I spoke to expressed complete bewilderment that this op-ed even came to be. "How did no one in Tillis' office not realize that this was a bad idea?" was the quote a staffer in another Senate office told me. "It's shocking."

But even worse than this out-and-out admission that Tillis does what Hollywood asks him to do, is the content of this article, which is not just revisionist history, but actually celebrates the sneaky way in which Watts (and apparently Slater!) helped sneak this bill through.

Some public policy issues are solutions in search of a problem, but unlawful streaming of copyrighted content is emphatically not one of those issues. U.S. Senators Thom Tillis (R-N.C.) and Patrick Leahy’s (D-Vt.) Protecting Lawful Streaming Act of 2020 (PLSA) became law in December 2020 as part of the Consolidated Appropriations Act, 2021. The importance of this law cannot be overstated. Not only did the PLSA modernize criminal copyright law in a long-overdue and positive direction, but it may also signal a new model for legislating digital copyright law going forward.

First of all, I call bullshit that this was "long overdue," or that "the importance cannot be overstated." The article notes, rightly, that legal streaming has become more common, but takes it on faith that "illegal streaming" somehow "costs the U.S. economy nearly $30 billion per year." Their support for that is... a link to a CNN article quoting Tillis. So, Tillis's staffer, who is in charge of all of his copyright efforts, is quoting his boss giving a citation that this same staffer almost certainly told his boss to say in the first place. Nifty.

The COVID-19 pandemic further exacerbated the harm from unlawful streaming as worldwide lockdowns led to a surge in online streaming. Not surprisingly, this surge in streaming included an aggressive uptick in unlawful streaming. According to analytics firm Muso, the unlawful streaming of films alone increased by 33 percent globally during lockdowns. The rise was even higher in the United States at an eye-popping 41 percent increase in unlawful streaming during lockdowns.

I mean, I don't want to make too many assumptions here, but maybe (just maybe) the reason for the uptick in illegal streaming was because millions of people lost their jobs, had no money because Senator Thom Tillis tried to block stimulus packages, and are stuck at home because there's a global freaking pandemic going on. So, maybe it's not like those people have the spare cash to sign up for authorized streaming services at this moment, and it's not exactly a priority given everything else going on.

The article goes on to falsely claim that streaming not being a felony was "a loophole." It was not. As was discussed when this first came up a decade ago, there were legitimate reasons why Congress chose not to make infringing streaming a felony offense. Indeed, there are strong arguments that copyright should solely be a civil offense, and never a criminal one. Making it criminal basically is making US law enforcement the private tort enforcer for Hollywood, which represents a massive subsidy to those industries, such that they no longer have to get their own hands dirty (or spend their own money) on taking infringers to court.

Then, the article engages in some incredibly historical revisionism regarding the original attempt at making streaming a felony, and what happened with SOPA/PIPA.

Despite careful crafting by the legislation’s sponsors, PIPA and SOPA were met with opposition from a range of legitimate stakeholders representing internet and consumer equities. Their advocacy against PIPA/SOPA culminated in over 5 thousand petitions per minute to the U.S. Congress, about 4 million tweets on the legislation, and petitions submitted to Congress containing 8 million signatures.

Concerns about the felony streaming provisions in PIPA/SOPA centered on the perception that, as drafted, it could lead to criminal prosecution of individual artists who regularly used platforms such as YouTube to upload their performances.

Ultimately, the sheer intensity of the opposition to PIPA/SOPA culminated in the legislation being withdrawn from consideration. This opposition took creative content industries and legislators by surprise and resulted in an unwillingness, for many years, to address what was perceived as such a controversial, complicated, and even unfixable issue. 

I mean, just the very idea that SOPA/PIPA were crafted "carefully" is laughable for anyone who knows the real story, in which Lamar Smith did a Leroy Jenkins move, yanking the bill away from Rep. Bob Goodlatte (who had tried to write a more carefully constructed bill) and lit it up like a Tillis-style Christmas tree for Hollywood.

Then there's this fun bit of nonsense:

So, What Changed? Why Now? In the years since PIPA/SOPA, the entire internet and digital copyright ecosystem has changed. Simultaneously, traditional lines dividing content creator industries and tech-heavy startups have blurred, creating more shared interests and equities. Several internet platforms have evolved their business models and are now original content creators themselves.

No, what changed this time was that you refused to introduce it through the normal process, kept it hidden until after it was already lumped into the must pass appropriations bill that was being debated contentiously for other reasons between Congress and a lame duck President in the middle of a pandemic (and an insane propaganda campaign to undermine the results of an election). That's what changed.

Senator Tillis and Leahy’s bill evaded the criticisms that the felony streaming provision in PIPA/SOPA received and does not capture individual internet users or legitimate businesses and content creators, including, likely to some people’s disappointment, Justin Bieber.

Members of Congress and copyright stakeholders across the board were invited to the negotiating table on an equal footing. Negotiations proceeded in good faith and no stone was left unturned as stakeholders gamed out the real-world implications of the draft legislative text.

No, this is not what happened. At all. I spoke to stakeholders from consumer rights groups and internet platforms, and they said that they were just as blindsided by this bill as we were. Again, if this was all about getting all the stakeholders together and coming up with a workable bill for everyone why didn't Tillis just release it as normal? Why did he get it stuffed into the appropriations bill, and not even release the text of the bill until it was clear that there would never be an up-and-down vote on the bill itself?

And that's also why this bill "evaded criticism." Because it was done in a way and at a time when so much other stuff was going on.

That's only underlined by the fact that Tillis' top copyright staffer felt he could reveal "the sausage making process" in combination with one of Hollywood's top lobbyists, without anyone blinking an eye. The fix was in, and that fix sure looks corrupt. At the very least, this is the kind of "soft corruption" that we've talked about before. Even if everything was legitimate, just the fact that Watts and Slater know they can co-author an article about how they got this controversial bill approved gives the public the impression of corruption, and supports the idea that Tillis is completely in the tank for Hollywood.

It damages public trust in government, as it underlines the idea that Senators like Tillis are there to serve the desires of their funders, and not the public he was elected to represent.

Filed Under: appropriations, brad watts, copyright, felony streaming, gail slater, pipa, sopa, streaming, thom tillis
Companies: fox

Senators Leahy And Tillis -- Both Strongly Supported By Hollywood -- Ask Merrick Garland To Target Streaming Sites

from the because-of-course dept

As you'll likely recall, at the very end of last year, Senator Thom Tillis, the head of the intellectual property subcommittee in the Senate, slipped a felony streaming bill into the grand funding omnibus. As we noted at the time, this bill -- which was a pure gift to Hollywood -- was never actually introduced, debated, or voted on separately. It was just introduced and immediately slipped into the omnibus. This came almost a decade after Senators had tried to pass a similar bill, connected to the SOPA/PIPA. You may even recall when Senator Amy Klobuchar introduced such a bill in 2011, Justin Bieber actually suggested that maybe Senator Klobuchar should be locked up for trying to turn streaming into a felony.

Of course, this whole thing was a gift to the entertainment industry, who has been a big supporter of Senator Tillis. With the flipping of the Senate, now Senator Leahy has become the chair of the IP subcommittee. As you'll also likely recall, he was the driving force behind the PIPA half of SOPA/PIPA, and has also been a close ally of Hollywood. So close, in fact, that they give him a cameo in every Batman film. Oh, and his daughter is literally one of Hollywood's top lobbyists in DC.

So I guess it's no surprise that Tillis and Leahy have now teamed up to ask new Attorney General Merrick Garland to start locking up those streamers. In a letter sent to Garland, they claim the following:

Unlawful streaming services cost the U.S. economy an estimated $29 billion per year. This illegal activity impacts growth in the creative industries in particular, which combined employ 2.6 million Americans and contribute $229 billion to the economy per year. In short, unlawful streaming is a threat to our creative industries and the economic security and well-being of millions of Americans.

If you've been following these stories long enough, you know where this number comes from. It's from a report put out by the US Chamber of Commerce's "The Global IP Center" and written by NERA Consulting. The US Chamber of Commerce has always been a huge backer of stronger copyright -- mainly because the MPA pays them to be -- and NERA Consulting releases reports for Hollywood all the time. This report is not nearly as bad as some of their earlier reports, but it still makes a ton of assumptions about consumption that seem unlikely to be anywhere close to reality.

Either way, Tillis and Leahy want Garland to get down to doing exactly what Hollywood wants:

Now that have you been confirmed, will you commit to making prosecutions under the PLSA a priority? If so, what steps will you take during your first one hundred days to demonstrate your commitment to combating copyright piracy?

How quickly do you intend to update the U.S. Attorneys manual to indicate prosecutors should pursue actions under the PLSA?

Hurry up and throw streamers in jail!

As if recognizing just how bad this looks, they did include one final point as a sort of nod towards the fact that the DOJ probably shouldn't be going after ordinary everyday streamers.

When updating the U.S. Attorneys manual, what type of guidance do you intend to provide to make clear that prosecutions should only be pursued against commercial piracy services? Such guidance should make clear that the law does not allow the Department to target the ordinary activities of individual streamers, companies pursuing licensing deals in good faith, or internet service providers (ISPs) and should be reflective of congressional intent as reflected in our official record.

Just the fact that they need to include this certainly suggests that they know how dangerous the law they passed was, and how it could easily be misinterpreted and/or abused to go after such individuals or companies.

Hopefully, AG Garland realizes that he's got more important things to do than being Hollywood's latest cop on the beat.

Filed Under: copyright, felony, felony streaming, justin bieber, merrick garland, pat leahy, priorities, streaming, thom tillis

The Digital Copyright Act: We Told Senator Tillis Not To Do This, But He Did It Anyway. So We Told Him Again.

from the deaf-ear dept

Back in December, the Copia Institute submitted comments to Senator Tillis, who wanted feedback on making changes to the DMCA. It was a tricky needle to thread, because there's a lot about the DMCA that could be improved and really needs to be improved to be constitutional. At the same time, having protection for platforms is crucial for there to be platforms, and we did not want to encourage anything that might lead to the weakening of the safe harbors, which are already flimsy enough. So our advice was two-fold: address the First Amendment problems already present with the DMCA, and check what assumptions were driving the reform effort in order to make sure that any changes actually made things better and not worse.

None of that happened, however. The draft legislation he proposed earlier this year, called the Digital Copyright Act, or DCA, is so troubling we haven't even had a chance to fully explain how. But at least he invited public comments on it, so last week we submitted some.

In short, we repeated our original two points: (1) as Mike wrote when it was originally unveiled the DCA, with its "notice and staydown" regime, has an even bigger First Amendment problem than the DMCA already does, and (2) the proposed DCA legislation is predicated on several faulty assumptions.

One such assumption is that the DCA appears to regard Internet service providers as little more than parasitic enterprises that must only be barely tolerated, rather than the intrinsically valuable services that have given artists greater opportunities for monetization and developing audience reach. Indeed, it was the recognition of their value that prompted Congress to try to protect them with the safe harbor system in the first place, whereas the DCA would all but slam the door on them, crushing them with additional burdens and even weaker liability protections. Sure, the proposed legislation offers to throw them a few bones around the edges, but in major substance it does little more than put them and the expression they facilitate in jeopardy.

And for little reason, because another significant misapprehension underpinning the DCA is that it helps creators at all. The DCA strengthens the power of certain copyright holders, certainly, but it doesn't follow that it necessarily helps creators themselves, who are often not the actual copyright holders. In fact, in certain art forms, like music, it is frequently the case they are not, and we know this from all the termination litigation where creators are having to go to great effort to try to recover the copyrights in their own works—and are not always succeeding.

As we pointed out:

Over the years we have evolved a system where creators can get—and in certain art forms like music often have gotten—locked out of being able to exploit their own works for decades. In fact, thanks to term extensions, they may be locked out for longer than they ever would have expected. As a result of getting locked out of their works, not only can they not economically exploit these works directly but they cannot even manage their overall relationship with their market: their fans. Even when it would be in their interests to give their fans a freer hand to interact with their works online, they cannot make that decision when the conglomerates and billionaires who own those rights are the ones sending takedown notices targeting their fans' postings, or, worse, their entire accounts. The DCA only further entrenches the power that these strangers can have over creators, their works, and their audiences and yet somehow presumes it will incentivize further creativity from the very people the system makes powerless.

In sum, the DCA is a mistake that Congress should not further pursue. It does nothing to help creators profit from their work, or help us do anything that will help get us more. It just gives certain people more power to say no to innovation and expression, which is exactly the opposite of what copyright law is for.

Filed Under: 1st amendment, copyright, dmca, free speech, notice and takedown, safe harbors, thom tillis

Why Is Congress Pushing For Locking Up More Culture?

from the seems-backwards dept

In a weird bit of performative nonsense, Senators Thom Tillis and Pat Leahy, along with Representatives Hakeem Jeffries and Nancy Mace, have come together to... try to help kids lock up culture under copyright. Specifically, they want a bill that would allow kids to register a copyright for free for participants in the Congressional Art Competition and the Congressional App Competition. It is not at all clear why this is necessary, other than to perpetuate the myth that you need a copyright to be creative.

First, to be clear, any such unique and original artwork is already covered by copyright. For better or for worse (by which I mean, for worse), the US now says that copyright is automatic from the time the work is "fixed" in a tangible medium (and if you try to point out that computer code is not a tangible medium, it gets them very, very angry, so don't bother...). So no one needs to register their copyright to be protected. Not registering does limit the ability of the copyright holder to sue or to get statutory damages. But if anyone creating works for a Congressional Art Competition is seeking to sue others, well, that seems like a bigger problem right there.

But here's the key point: copyright is supposed to be there solely as an incentive for creation. The entire setup and basis for copyright in the Constitution is so that Congress can create incentives to promote the progress of science and the useful arts (and, copyright was meant for the "science" part, patents are the "useful arts"). I can pretty much assure you that no one creating artwork or apps for a Congressional competition is doing so because they're incentivized by the copyright. They're doing so because of the competition itself and the desire to express themselves (and maybe get some attention for what they've done).

So encouraging locking these things up is bizarre and counterproductive. More to the point, why aren't these elected officials suggesting that the artists and developers entering these competitions explore the many Creative Commons options to help get their works more widely known?

The answer, tragically, is as obvious as it is cynical. This is all driven by the legacy copyright industries who keep trying to push the myth that copyright = creation. And these are their favorite elected officials. Hollywood backed Tillis strongly in the last election, in which he was expected to lose, so he clearly owes them. Leahy has always been extremely close to Hollywood. Beyond being the Senate supporter of SOPA (his version was PIPA), Hollywood always rewards Leahy by giving him small roles in every Batman film. His daughter is also a Vice President and top lobbyist for the Motion Picture Academy, Hollywood's top lobbying body.

On the House side, the legacy copyright industry has been cultivating a close relationship with Jeffries for a while now, including setting up a neat fundraiser for him in which if you just pay him (and Jerry Nadler) $5k each you get to hang out with Jeffries at the Grammies. Nice work if you can get it. Nancy Mace is new to Congress, so she may just be along for the ride here.

The problem with all of this is just how cynically corrupt this seems. Even if it's in the form of "soft corruption," the connection of a few Senators and Representatives pushing a misguided line of thinking -- that completely undermines the very basis for copyright law -- in favor of the myth pushed by Hollywood and the legacy recording industry, it just makes everyone actually respect copyright even less.

This isn't what copyright is for, and it's shameful that these elected officials are pushing the myth forward.

Filed Under: congress, congressional app competition, congressional art competition, copyright, copyright office, copyright registration, culture, hakeem jeffries, nancy mace, pat leahy, thom tillis

Senator Tillis Releases Massive Unconstitutional Plan To Reshape The Internet In Hollywood's Image

from the bad-ideas dept

Yesterday, Senator Thom Tillis helped ram through a gift for Hollywood: getting the felony streaming copyright bill that he'd only released a week earlier included in the must-pass omnibus funding bill despite literally no discussion or debate about the problems with the bill.

This morning, he really doubled down. As announced last month, Tillis has now released a draft of his DMCA overhaul, which appears to be exactly what he had hinted at last month -- meaning he appears to have ignored the advice and suggestions of many of us who warned Tillis of the dangers of simply buying into Hollywood's vision of copyright reform. I wonder why he would do such a thing?

Of course, it also makes you wonder why he had to hide the felony streaming bill in yesterday's must pass omnibus. Since he was going to be working on a big copyright reform bill, why not put it in there in order to have an actual debate and discussion about it?

Anyway, Tillis notes that this current version is just a discussion draft and he'll release the actual bill next year once the new term begins. He's asking people for their edits. In fact, he (somewhat hilariously) asks YouTubers to send in their own redlines and, well, careful what you ask for:

Senator Tillis is inviting all interested stakeholders - large and small, individuals and companies, YouTubers, and independent creators - to submit redline edits and comments to this discussion draft by close of business on March 5th. Comments should be submitted to Intellectual_Property@tillis.senate.gov.

There is going to be plenty to discuss about this bill. It's 53 pages long. Tillis has put out a summary document of what's in it as well, though I'd argue some of it is misleading. There are certainly a few tiny things in here that would improve the DMCA in very minimal ways. This is so Tillis can say it's a "compromise" bill that "upsets everyone." But that's garbage. Most of this bill is a huge gift to Hollywood.

For this post I'm going to focus in on the most problematic idea in the bill: the notice-and-staydown provision. We'll discuss other problems at a later date. The notice-and-staydown provision has many, many problems. To be fair, Tillis tried to make the notice-and-staydown slightly less problematic by saying it only applies to "complete or near complete cop[ies] of a copyrighted work already identified in a notification of claimed infringement or list of unauthorized works...." It's the complete or near complete part that he thinks makes this less bad. He's wrong. First of all, he undermines this immediately in the next section by also saying that the notice-and-staydown applies to "any portion of a copyrighted work already identified in a notification of claimed infringement... if the service provider derives its commercial value predominantly from short-form media." So it's not just complete, or nearly complete works.

It's difficult to see how a notice-and-staydown regime is even remotely Constitutional. It's basically prior restraint, telling companies that they cannot host certain speech. That's quintessential prior restraint -- especially since other uses may not be infringing.

The basic problem is this: contrary to what Hollywood would like you to believe, content is not infringing. It's the specific use that may be infringing. But notice-and-staydown acts as if it's the content itself that must be infringing. But that's not how you determine whether or not something is infringing. You have to look at how it's used. And notice-and-staydown totally ignores that and assumes that there are no uses that are permitted. That's wrong. And Tillis' "complete or near complete copy" language doesn't fix that either, because courts have said multiple times that a full copy can be fair use even when used in a commercial way.

But a notice-and-staydown provision would ignore that.

Also, for many works such as photographs, memes, etc, most fair uses will involve using the entire work. But the notice-and-staydown ignores all of this.

As we saw in the EU context, this is a recipe for censorship filters. And censorship filters have follow-on effects as well. Beyond the 1st Amendment concerns, they would basically destroy small companies that cannot afford to put in place such filters. YouTube has spent over $100 million to build ContentID and it still sucks. Yet under Tillis' bill, everyone would need to buy or build their own contentID to avoid running afoul of the notice-and-staydown provisions. This would lock in internet giants and destroy the ability for smaller websites to host any 3rd party content at all.

Even the Copyright Office, in its terrible and one-sided review of the DMCA recommended against notice-and-staydown. So what possible reason does Tillis have for putting it in this bill?

Tillis claims that he's open to hearing concerns on this bill -- and I hope that's true. There are many, many problematic aspects to the bill, and notice-and-staydown is a massively dangerous and unconstitutional idea. The fact that Tillis thought it was worth including even in the discussion draft does not bode well for how this process is going to go.

Filed Under: 1st amendment, censorship filters, copyright, copyright reform, dmca, dmca 512, fair use, filters, notice-and-staydown, prior restraint, thom tillis

Congress (Once Again) Sells Out To Hollywood: Sneaks CASE Act And Felony Streaming Bill Into Government Funding Omnibus

from the but-why? dept

As we warned about earlier this month, it appears that Congress has in fact put two very controversial copyright provisions into the government funding "omnibus" bill that will be voted on later today. As you may have heard, last night Congress worked out a "deal" on both a $900 billion Covid relief/stimulus package and the giant $1.4 trillion omnibus government funding bill, which is being voted on today. There had been concerns raised all month about how -- under pressure from Hollywood -- Congress might try to sneak two dangerous copyright provisions and one trademark provision into the omnibus.

Since the "deal" was announced last night, people have been scrambling to find out what's actually in the fucking bill which is being voted on shortly. It's just come out that, indeed, all three controversial copyright and trademark provisions are in the bill. The CASE Act will supercharge copyright trolling exactly at a time when we need to fix the law to have less trolling. And the felony streaming bill (which was only just revealed last week with no debate or discussion, includes provisions that are so confusing and vague no one is sure if it makes sites like Twitch into felons.

The fact that these are getting added to the must pass government funding bill is just bad government. And Congressional leadership should hear about this.

The full omnibus bill is over 3,000 pages long, so you can search through it for your favorite bit of nonsense. Felony streaming is on page 72. The CASE Act starts on page 77.

There's a reason that copyright is generally controversial. Small changes can not only have a massive impact, that impact can be on the public's ability to express themselves. The idea that two such bills should be jammed through in this manner is a total and complete travesty. People should be mad about this and should hold the Congressional leadership of both parties responsible. This is not good governance. This is sucking up to Hollywood at the expense of the public.

Filed Under: case act, congress, copyright, felony streaming, free speech, omnibus, small claims, thom tillis

Tillis Release Details Of His Felony Streaming Bill; A Weird Gift To Hollywood At The Expense Of Taxpayers

from the and-why-through-omnibus dept

Earlier today, we wrote about reports detailing the latest attempt to push through a bill to make streaming copyright-covered works online a possible felony, this time being pushed by Senator Thom Tillis, who wanted to attach it to the federal spending omnibus bill. As we noted, Tillis was pushing back on some of the criticism, saying that the bill is very narrowly tailored and wouldn't be used to criminalize random people. Of course, the response to that is twofold: (1) if this is the case, why haven't you released the text and (2) why are you shoving it onto a must-pass funding bill without any of the normal debate and discussion?

This afternoon Tillis dealt with the first part of this by finally releasing the text of the bill. And he's somewhat correct in noting that the bill is narrowly tailored. That doesn't make it good or necessary. The key bit is this:

PROHIBITED ACT.—It shall be unlawful to willfully, and for purposes of commercial advantage or private financial gain, offer or provide to the public a digital transmission service that

‘‘(1) is primarily designed or provided for the purpose of publicly performing works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law;

‘‘(2) has no commercially significant purpose or use other than to publicly perform works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law; or

‘‘(3) is intentionally marketed by or at the direction of that person to promote its use in publicly performing works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law.

So, the argument is that the "narrow" tailoring here is such that it only applies to websites, not users, if that site is "primarily" engaged in streaming unlicensed copyright-covered works, has no significant purpose other than that, and intentionally markets itself as such.

And, to Tillis' credit, this is much more narrowly tailored than previous such bills. It still doesn't explain why the text is only just being released now or (more importantly) why this has to be added to a must-pass Christmas Tree government funding bill.

To some extent, the thinking behind this bill is that it's focused on a very specific set of circumstances. There have been websites out there that stream content they host, and those already faced felony charges for the hosting -- but this seems to extend that to sites that stream the content that is hosted elsewhere. Of course, there is a much bigger question of why is this a criminal issue in the first place? It is yet another example of Hollywood trying to pass off what should be a civil issue, where the movie studios and record labels have every right and ability to sue these companies in court, and turn them into an issue that the US taxpayer now has to deal with? It's basically a giant subsidy to Hollywood, taking a private dispute and putting it on the public dime.

As Public Knowledge says in its response to the bill's release, "we do not see the need for further criminal penalties for copyright infringement." Indeed.

The end result is that this bill is not as horrific as past felony streaming bills, and is, in fact, narrowly tailored. However, that does not change the fact that moving copyright issues away from civil disputes to be handled by copyright holders, to the federal government, is something that we should not support. Indeed, it should be seen as somewhat odd that a Trump-supporting Republican, who claims to be for keeping government out of business, is directly subsidizing Hollywood by having the federal government and US taxpayers take over their own civil legal dispute by turning them into criminal issues.

And, more importantly, none of this explains why the bill should be released at the last moment, and then dumped into the must-pass federal spending bill. It's a bad idea. If Tillis really thinks this bill is good and necessary, he should have to defend it as such through the regular process bills go through.

Filed Under: copyright, criminal copyright, felony streaming, platforms, streaming, thom tillis