Part-Time Policy Wonk

ABSTRACT:

The rise of the information economy has caused copyright law to become a new actor in the intellectual property rights and standards debate because standard-setting organizations (SSOs) increasingly claim copyrights in standards and charge substantial fees for access to and rights to use standards such as International Organization for Standardization (ISO) country, currency, and language codes and standard medical and dental procedure codes promulgated by the American Medical Association (AMA) and the American Dental Association (AMA).

This article will consider whether standards such as these, especially those whose use is mandated by government rules, should be eligible for copyright protection as a matter of U.S. copyright law. Part I reviews several lawsuits that have challenged copyrights in numbering systems devised to enable efficient communication and will argue that the decisions upholding copyrights in the AMA and ADA codes were incorrectly decided in light of past and subsequent caselaw, the statutory exclusion of systems from copyright, and various policy considerations. Part II considers copyright caselaw and policies that have persuaded courts to exclude standards from the scope of copyright protection under the scenes a faire and merger of idea and expression doctrines. It also considers whether government mandates to use certain standards should affect the ability to claim copyright in those standards. Part III assesses whether SSOs need copyright incentives to develop and maintain industry standards they promulgate and whether arguments based on incentives should prevail over other considerations. It will also identify some competition and other public policy concerns about allowing private entities to own standards, particularly those whose use is required by law.

SUGGESTED CITATION:
Pam Samuelson, "Questioning Copyright in Standards" (June 22, 2006). Berkeley Center for Law and Technology. Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology). Paper 22.
Download the Paper (114 K, PDF file)

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First, Destroy the Archives

Buried and half buried in the ruins of the Ministry of the Interior were hundreds of thousands of file cases and documents--birth and death certificates, identification records, passports and other travel documents, ledgers of hand written information--a heritage of historical information about Nablus residents that covered more than 100 years of successive Palestinian occupations under the Ottoman Empire, the British Mandate, the Jordanian kingdom, and the current Israeli regime.

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H.R. 5319: Deleting Online Predators Act of 2006

Official Title: To amend the Communications Act of 1934 to require recipients of universal service support for schools and libraries to protect minors from commercial social networking websites and chat rooms.

Jul 26, 2006: This bill passed in the House of Representatives by roll call vote. The vote was held under a suspension of the rules to cut debate short and pass the bill, needing a two-thirds majority. The totals were: 410 Ayes, 15 Nays, 7 Present/Not Voting.

http://www.govtrack.us/congress/bill.xpd?bill=h109-5319

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Freedom of Information Act: Preliminary Analysis of Processing Trends Shows Importance of Improvement Plans

According to data reported by agencies in their annual reports, the public continues to request and receive increasing amounts of information from the federal government through FOIA; however, excepting one case—the Social Security Administration (SSA)—the rate of increase has flattened in recent years. (SSA reported an additional 16 million requests in 2005, dwarfing those for all other agencies combined, which together total about 2.6 million; SSA attributed this rise to an improvement in its method of counting requests. However, Justice officials have suggested that SSA consider treating the bulk of these requests as non-FOIA requests and thus not include them in future reports.) When SSA’s numbers are excluded, data reported by the other 24 major agencies show that the number of requests received increased by 27 percent from fiscal year 2002 to 2005, but by only about 2.5 percent from fiscal year 2004. As more requests come in, agencies also report that they have been processing more of them—25 percent more from 2002 to 2005 (but only about 2.0 percent more than from 2004). Despite processing more requests, agencies have not kept up with the increase in requests being made: the number of pending requests carried over from year to year has been steadily increasing, rising to about 200,000 in fiscal year 2005—43 percent more than in 2002. The rate of increase in requests pending is also growing: the increase from fiscal year 2004 to 2005 is 24 percent, compared to 11 percent from 2003 to 2004.

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From the Washington Post:

The Bush administration pressed Congress on Wednesday to ease decades-old restrictions on surveillance to catch up to Internet-age technology.

As lawmakers debate whether the president's domestic spying program is legal, the CIA director said the 1978 law covering such monitoring is behind the times.

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From USA Today:

The federal government sued two members of the Missouri Public Service Commission on Tuesday to stop them from seeking information about customer records that telephone companies may have given to the National Security Agency.

The lawsuit, filed in U.S. District Court in St. Louis, claims disclosure of any information the Missouri regulatory body wants to obtain could cause "exceptionally grave harm to national security."

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From the Washington Post:

Citing national security, a federal judge Tuesday threw out a lawsuit aimed at blocking AT&T Inc. from giving telephone records to the government for use in the war on terror.

"The court is persuaded that requiring AT&T to confirm or deny whether it has disclosed large quantities of telephone records to the federal government could give adversaries of this country valuable insight into the government's intelligence activities," U.S. District Judge Matthew F. Kennelly said.

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From Secrecy News:

A new legislative initiative (S. 2590) would require the government to disclose and to publish online all federal contracts, grants, and other forms of spending.

"I like to think of this bill as 'Google for Government Spending'," said Senator Tom Coburn (R-OK).

"The concept behind the bill is really quite simple: Put information on government spending out there for all to see and greater accountability will follow. It will also change the expectations of those receiving funds that they will know in advance that the information will be public," he said.

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From MSNBC:

A powerful Republican committee chairman who has led the fight against President Bush’s signing statements said Monday he would have a bill ready by the end of the week allowing Congress to sue him in federal court.

“We will submit legislation to the United States Senate which will...authorize the Congress to undertake judicial review of those signing statements with the view to having the president’s acts declared unconstitutional,” Judiciary Committee Chairman Arlen Specter, R-Pa., said on the Senate floor.

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Paperwork Reduction Act: Increase in Estimated Burden Hours Highlights Need for New Approach

Americans spend billions of hours each year providing information to federal agencies by filling out information collections (forms, surveys, or questionnaires). A major aim of the Paperwork Reduction Act (PRA) is to minimize the burden that responding to these collections imposes on the public, while maximizing their public benefit. . .

. . .After 2 years of slight declines, OMB reports that paperwork burden grew in fiscal year 2005 and is expected to increase further in fiscal year 2006. Estimates in OMB's annual report to Congress show that the total paperwork burden imposed by federal information collections increased last year to about 8.4 billion hours--an increase of 5.5 percent from the previous year's total of about 8.0 billion hours.

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From the Daily Yomiuri Online:

Fourteen arts and cultural organizations have agreed that the protection period for copyrighted works of literature, music, arts and photographs should be extended to 70 years from the current 50 years after the creators' deaths, The Yomiuri Shimbun learned Saturday.

The organizations plan to submit a joint statement about the issue to the Cultural Affairs Agency by the end of September.

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From News.com:

A coalition of civil liberties groups and technology companies, including Pulver.com and Sun Microsystems, is appealing a federal court ruling that forces Internet service providers to create backdoors for government wiretapping.

The coalition on Friday asked the full U.S. Court of Appeals in Washington, D.C., to review a June 9 ruling that sided with the Bush administration.

That 2-1 ruling said that Internet providers must rewire their networks and follow a complex scheme of eavesdropping regulations. The deadline is set for May 2007.

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The American Bar Association has released their report on President Bush's signing statements.
[34 pages, PDF]

RESOLVED, That the American Bar Association opposes, as contrary to the rule of law and our constitutional system of separation of powers, the issuance of presidential signing statements that claim the authority or state the intention to disregard or decline to enforce all or part of a law the President has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress

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From the Electronic Frontier Foundation:

A federal judge today denied the government's motion to dismiss the Electronic Frontier Foundation's (EFF's) case against AT&T for collaborating with the NSA in illegal spying of millions of ordinary Americans. This allows the case to go forward in the courts.

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Press Release:

Rep. Heather Wilson, chair of the House Subcommittee on Technical and Tactical Intelligence was joined today by Reps. James Sensenbrenner, chairman of the House Judiciary Committee, and Pete Hoekstra, chairman of the House Permanent Select Committee on Intelligence, in introducing the Electronic Surveillance Modernization Act of 2006, an update to the outdated Foreign Intelligence Surveillance Act.

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From Information World Review:

Nuclear physics authors can opt to pay for their articles to be published in six physics journals published by Elsevier under a new Sponsored Articles scheme which the company insists is very different from open access.

Six Elsevier physics journals have adopted the Sponsored Articles programme, which allows authors to pay a fee to ensure that their article is available for free on the Elsevier online service ScienceDirect . Only articles that have already been accepted for publication will be offered the sponsored option.

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From the New York Times:

Movie and song copiers beware: use an Internet discussion site in Hong Kong to violate copyrights and you may be turned in to law enforcement authorities by an 11-year-old Boy Scout.

Starting this summer the Hong Kong government plans to have 200,000 youths search Internet discussion sites for illegal copies of copyrighted songs and movies, and report them to the authorities. The campaign has delighted the entertainment industry, but prompted misgivings among some civil liberties advocates.

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From News.com:

A federal judge has postponed a key ruling in a lawsuit against Google brought by Agence France-Presse that alleges Google's popular news search feature violates copyright laws.

U.S. District Judge Gladys Kessler said Tuesday that she was not prepared to rule on Google's request to dismiss the case, and instead granted both sides more time to try to reconstruct Google News pages from randomly chosen dates in 2003 and 2004.

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From the Washington Post:

President Bush personally blocked a Justice Department investigation of the anti-terror eavesdropping program that intercepts Americans' international calls and e-mails, Attorney General Alberto Gonzales said Tuesday.

Bush refused to grant security clearances for department investigators who were looking into the role Justice lawyers played in crafting the program, under which the National Security Agency listens in on telephone calls and reads e-mail without court approval, Gonzales told the Senate Judiciary Committee.

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From FindLaw.com:

This summer, the Senate Judiciary Committee has held hearings on President Bush's uses and abuses of signing statements. Technically, these are statements by the President accompanying his signing of legislation. In this Administration, however, signing statements have been used as a dodgy practice of telling the Congress to go to hell. . .

. . . In truth, Bush himself does not have a clue about what he is doing, for this ploy is being guided by Vice President Cheney's office; I am told it is David Addington leading the way. Though carried out by Bush, it is best seen as another of Cheney's undertakings to enhance presidential power by neutering Congress. And it is working.

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Treasury's Terrorist Finance Program's Access to Information Held by the Society for Worldwide Interbank Financial Telecommunication (SWIFT)

Recent press reports have raised questions about the Department of the Treasury’s Terrorist Finance Tracking Program’s access to information on international financial transactions held by the Society for Worldwide Interbank Financial Telecommunication (SWIFT), a Brussels-based organization owned by banks in many countries, which serves as a hub for international funds transfers. Its records contain names, addresses, and account numbers of senders and receivers of international wire transfers between banks and between securities firms, thus providing a useful source for federal officials responsible for following money trails across international borders. On June 29, 2006, the House of Representatives passed H.Res. 895 voicing support for the Treasury program as fully compliant with all applicable laws; condemning the unauthorized disclosure of classified information; and calling upon news media organizations not to disclose classified intelligence programs. H.Res. 904 was introduced to discourage government censorship of the press. This report addresses these issues and will be updated as legislative events merit.

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From Rediff News:

Bloggers in India are getting together to protest against the sudden blocking of popular Google-owned blog-hosting site Blogger by some Internet Service Providers (ISPs) like Spectranet, Mahanagar Telephone Nigam Limited (MTNL), Reliance Powersurfer, Airtel Broadband and Sify. . .

. . . J Grewal, Spectranet's Delhi representative at the National Internet exchange of India, told this reporter that, on July 15, the Department of Telecommunications (DoT) had sent ISPs a list of sites to be blocked. R H Sharma, senior engineer with MTNL, said the list ran into some 22 pages.

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A new Congressional Research Service report:

This report provides background with respect to previous legislative efforts to criminalize the unauthorized disclosure of classified information; describes the current state of the laws that potentially apply, including criminal and civil penalties that can be imposed on violators; and some of the disciplinary actions and administrative procedures available to the agencies of federal government that have been addressed by federal courts. Finally, the report considers the possible First Amendment implications of applying the Espionage Act to prosecute newspapers for publishing classified national defense information.

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From Information World Review:

Microsoft has moved further into searching copyright material with its Windows Live Books Publisher Program . Launched in May, the program will be expanded within the coming weeks to accept submissions in digital form, in addition to the print material currently being processed.

This follows Microsoft’s recent move into searching copyrighted content within journals with the Windows Live Academic Search service.

Microsoft has worked hard to avoid the barrage of criticism Google faced when it launched the Google Books Library project to digitise copyright material. Microsoft’s Clifford Guren, director of partner evangelism, Windows Live Books, said: “To be clear, we are only scanning and indexing in-copyright books with the expressed permission of the rights holder.”

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From LLRX.com:

The problem with making a law in the 1970s and then ignoring the fact that technology, commerce and government operations have all changed completely from the time the law was passed, is illustrated by the fee waiver provision for members of the media as set forth in the FOIA.

The FOIA grants fee waivers to "representatives of the news media, 5 U.S.C. § 552a(4)(A)(ii)(II). At the time the law came into being, the news media was either print (newspapers and magazines) or electronic (radio and TV). Today the landscape has completely changed. While news is still produced by the traditional print and electronic sources, it is also produced by an increasing amount of independent internet sites, bloggers and other entities (public and non-public), publicizing their findings on their own websites.

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From the Economist:

Publish or perish runs the adage. The publication of research is the bedrock of scientific careers and the foundation of grant applications. But for many years people have questioned the system's fairness.

The normal mechanism is that scientists offer the fruits of their research—often bankrolled by the taxpayer—for nothing to publishers. Those publishers then charge money to people who wish to read their journals. Publishers have been making handsome profits from this arrangement. But change is afoot. Open-access publishing, in which papers are freely available immediately upon publication, is sweeping the dusty corridors. The catch is that the sponsors of research will have to fork out more money to pay for it.

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From the Center for Democracy and Technology:

Contrary to press reports of a White House compromise on NSA legislation, Senator Specter has agreed to a bill that would shield the Administration from accountability for its illegal warrantless wiretapping. The bill has been erroneously described as requiring judicial review of the President's warrantless wiretapping program. In fact, the bill retroactively guts the Foreign Intelligence Surveillance Act by making judicial review of the program by the Foreign Intelligence Surveillance Court optional. It would also allow electronic surveillance in violation of the Fourth Amendment's requirements of probable cause and individualized suspicion.

• Draft of Specter Compromise [PDF]

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From the Washington Post:

U.S. digital entertainment company Gracenote on Thursday said it obtained licenses to distribute lyrics as music publishers mulled legal action against Web sites that provide them without authorization.

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From the Boston Herald:

Reeling from growing outrage over the deadly tunnel disaster, the Big Dig has thrown a shroud of secrecy over previously public inspection reports and other documents that could show who is to blame for the tragedy.

Officials at both the state Turnpike Authority and Federal Highway Administration yesterday refused to release even basic information about the work done on the I-90 Seaport connector. . .

. . .“My greatest fear is that the federal government is merely rubberstamping decisions by the contractors and then by the state of Massachusetts,” Amey said.

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From News.com:

China sentenced reporter Li Yuanlong to two years in jail on Thursday, adding to its list of writers imprisoned for expressing themselves through the country's expanding but tightly censored Internet.

Li, who worked on the Bijie Daily in the southwestern province of Guizhou, was detained in September and charged in February with issuing essays that "fabricated, distorted and exaggerated facts, incited subversion of the state and (sought) to overthrow the socialist system".

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From the Guardian:

The government is threatening to sue former ambassador Craig Murray for breach of copyright if he does not remove from his website intelligence material that was censored out of his newly published memoirs.

Mr Murray has posted full texts of all passages the Foreign Office ordered deleted from the book version of Murder in Samarkand, the former Tashkent ambassador's account of alleged British complicity in torture by the despotic Uzbekistan regime. His book contains links to the website.

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From the Mercury News:

Justice Department lawyers asserted a rarely used "state secrets'' privilege in federal court Thursday morning in arguing for the dismissal of a lawsuit that alleges AT&T improperly handed over massive amounts of phone records to the government.

Deputy Assistant Attorney General Carl Nichols said that AT&T won't be able to defend itself against the allegations because the government is invoking the secrets privilege, which effectively shuts down any confirmation or denial of allegations in the suit.

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From the NY Times:

The White House has agreed to allow limited judicial review of the eavesdropping program run by the National Security Agency, Senator Arlen Specter, the chairman of the Senate Judiciary Committee, and a White House spokeswoman said today.

Mr. Specter, a Pennsylvania Republican who has sharply questioned the propriety of the program since it was disclosed several months ago, said the White House had agreed to a bill that provides for the highly secret Foreign Intelligence Surveillance Court to “consider the program as a whole and to make a decision on it.”

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From the Washington Post (Scroll halfway down):

The Library of Congress has notified 29 employees at the Congressional Research Service that their jobs will be abolished on Sept. 29.

The layoffs are believed to be the first in the 92-year history of CRS, the division of the library that tracks legislative issues and collects data for members of Congress. The workers being eliminated perform clerical, technical and audio-visual duties.

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From the San Jose Mercury News:

MySpace.com and other immensely popular social networking sites on the Internet were portrayed Tuesday as emerging playgrounds for sexual predators as lawmakers considered a measure to restrict their access in publicly funded schools and libraries.

"This is the hottest issue of the day," Texas Attorney General Greg Abbott told reporters after testifying before a House subcommittee examining possible new federal restrictions to protect young Internet users from pedophiles.

A bill by Rep. Mike Fitzpatrick, R-Pa., would require schools and libraries that get federal funds to limit or ban access to social networking sites that could expose minors to sexual advances from adults.

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Masters Thesis by Stephen Francoeur, Hunter College, 2006 (PDF; 452 KB)

This essay will analyze how library organizations, such as the American Library Association, and individual librarians responded to the pressure placed on libraries during the McCarthy era to deal with alleged subversion. Although libraries have always been the target of censors, it was during the first decade of the Cold War that those Americans most fearful of Communist subversion swept up large numbers of their fellow citizens in a crusade to rid libraries of Communist influence. That effort by the self-proclaimed “loyal Americans” to save libraries put more than just library collections under the microscope. The librarians themselves were scrutinized to ensure that they harbored no troubling past or present connections to radical political groups. Pressure groups examined library services closely as well, keeping an eye out for subversion in library exhibits or making sure that controversial books were only available by request, not on open shelving.

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Information Today reports:

In June 2005, the Research Councils UK (RCUK) issued its draft policy for public comment on Open Access (OA) for publicly funded research. At the time, the RCUK seemed poised to mandate OA across its eight research councils. A year later, on June 28, 2006, the RCUK released its updated position paper, which now only strongly encourages that a substantial portion of its funded research must be OA.

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From San Francisco Bay View:

More branch libraries in the San Francisco Public Library system could open on Sundays. That is the effect of the Budget and Finance Committee’s action Thursday to place $480,000 on reserve for new Sunday hours at branches that are currently closed on that day.

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Thanks to Free Government Information for calling my attention to these 2 stories:

Invisible Men: Did Lindsey Graham and Jon Kyl mislead the Supreme Court?

It's not within the Supreme Court's power to decide the constitutional challenges brought by Salim Ahmed Hamdan, the Guantanamo detainee whose case will be argued before the court tomorrow, say Sens. Lindsey Graham, R-S.C., and Jon Kyl, R-Ariz. In a brief they filed with the Supreme Court, they argue that Congress kicked Hamdan's current case out of court when it passed the Detainee Treatment Act last December.

The senators base their argument on the "legislative history" of the DTA—the official statements that members of Congress make about a bill leading up to its passage, as captured in the Congressional Record. In other words, Graham and Kyl cite themselves: in particular, an "extensive colloquy" between the two that appears in the Record on Dec. 21, 2005, the day of the DTA's passage. Justice Department lawyers for the Bush administration rely on the same colloquy as evidence that "Congress was aware" that the DTA would strip the Supreme Court of jurisdiction to hear "pending cases, including this case" brought by the Guantanamo detainees.

The problem is that Kyl and Graham's colloquy didn't actually happen on Dec. 21. It was inserted into the Congressional Record just before the law passed, which means that the colloquy did not alert other members of Congress to the views it contains. Inserting comments into the Record is standard practice in Congress. What's utterly nonstandard is implying to the Supreme Court that testimony was live when it wasn't. The colloquy is evidence of what Kyl and Graham thought about the meaning of the DTA. But it doesn't show that any other member of Congress shared their understanding. Everything else in the record that directly addresses whether the DTA forces the Supreme Court to toss Hamdan comes from Levin or another Democrat—and explicitly states that the DTA leaves Hamdan alone.

Senators Kyl and Graham's Hamdan v. Rumsfeld Scam: The Deceptive Amicus Brief They Filed in the Guantanamo Detainee Case

The Bush/Cheney Administration has been doing everything possible to keep its treatment of purported terrorist detainees out of the federal courts, particularly the Supreme Court. To assist the Administration, Republican Senators Lindsey Graham of South Carolina and Jon Kyl of Arizona engaged in a blatant scam that was revealed during the briefing of Hamdan.

Senators Graham and Kyl not only misled their Senate colleagues, but also shamed their high offices by trying to deliberately mislead the U.S. Supreme Court. Their effort failed. I have not seen so blatant a ploy, or abuse of power, since Nixon's reign.

Posted by Anne at 08:36 PM | Permalink | Comments (0) | TrackBacks (0)

From the Salt l.ake Tribune:

After a bitter three-year legal battle involving Utah companies that sanitize movies on DVD and VHS tape, a federal judge in Denver ruled Thursday that such editing violates U.S. copyright laws and must be stopped. In a ruling in the case involving CleanFlicks vs. 16 of Hollywood's hottest directors, U.S. District Judge Richard P. Matsch found that making copies of movies to delete objectionable language, sex and violence hurts studios and directors who own the movie rights.

Posted by Anne at 08:22 PM | Permalink | Comments (0) | TrackBacks (0)

From the Wall Street Journal:

Microsoft will offer free software that will let Word, Excel and PowerPoint handle documents in the rival OpenDocument Format promoted by Sun Microsystems, IBM and others. Microsoft has been promoting a format called Open XML. Over the past year, the company's rivals have sparked a debate over the two technologies, arguing that documents, such as government archives, that need to be saved for many decades and beyond shouldn't be entrusted to a technology owned by a single company such as Microsoft.

Posted by Anne at 08:20 PM | Permalink | Comments (0) | TrackBacks (0)

The Project On Government Oversight (POGO) today urged House and Senate appropriations committee members to demand that the Department of Homeland Security (DHS) stop designating information that is not crucial to national security as “sensitive.”

In a letter to the appropriators, POGO stressed that a provision in the House version of the DHS appropriations bill that would change how the agency classifies information as “Sensitive Security Information” (SSI) needs to become law. The Congressional Research Service (CRS) and the Government Accountability Office have found that DHS, specifically the Transportation Security Administration (TSA), has labeled even widely available information as SSI to cover up embarrassing information.

Posted by Anne at 09:04 PM | Permalink | Comments (0) | TrackBacks (0)

From the Coalition of Journalists for Open Government:

The federal government continues to fall further behind in getting information to people seeking public records under the Freedom of Information Act.

The backlog of requests, a critical indicator of information delays, rose from 20 percent in 2004 to 31 percent in 2005, despite a decline in the volume of requests, according to a survey of 22 agencies and departments by the Coalition of Journalists for Open Government. Had these departments and agencies maintained their 2004 level of processing requests, there would have been no significant backlog.

Agencies also said "no" more often—and spent more to do so.

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