The direction of the Copyright Office’s study of the Digital Millennium Copyright Act Section 512’s notice-and-takedown process and the section’s safe harbors remains highly fluid ahead of the conclusion of the first of CO’s two planned roundtables on Section 512, multiple participants in the first sessions said in interviews. The first roundtable, which began Monday and is to conclude Tuesday, is at the Thurgood Marshall U.S. Courthouse in New York. The CO is planning a second event May 12-13 at the James Browning U.S. Court of Appeals Building in San Francisco.
Congressional, industry and advocate scrutiny has just begun on a controversial DOJ proposal to alter the Federal Rule of Criminal Procedure 41 to expand federal judges’ ability to issue warrants for remote searches of computers outside their jurisdictions, stakeholders agreed in interviews Friday. At least one legislative challenge in the Senate is already likely. Opponents of the proposed Rule 41 revision said further attention will come, but may take time. The Supreme Court approved DOJ’s proposal Thursday as part of a larger set of changes to Federal Rules of Criminal Procedure that the court received from the U.S. Judicial Conference’s Committee on Rules of Practice and Procedure. The Supreme Court forwarded the suggested revisions to Congress, which has until Dec. 1 to give its opinion on the proposals. The suggested revisions will automatically take effect if Congress doesn’t act to block them by then (see 1604280074).
Switzerland is now on the Office of the U.S. Trade Representative's lower-tier watch list for copyright and other IP rights violations, USTR said Wednesday in its annual Special 301 report on the global status of IP rights enforcement. China and India remain on USTR's mid-tier priority watch list, which includes nine other countries, because ongoing IP rights enforcement problems outweigh efforts to reform both nations' IP laws. USTR again chose not to include any countries on its higher-tier priority foreign country list.
The House Judiciary Committee plans to identify in the coming weeks which issues in its Copyright Act review that the committee believes have “a likelihood of potential consensus and circulate outlines of potential” revamp legislation on those items, said Chairman Bob Goodlatte, R-Va., in a video Tuesday. Goodlatte released the video as part of a joint Copyright Office-Copyright Alliance event marking World IP Day. He used a similar CO event in 2013 to announce the start of House Judiciary's copyright review (see report in the April 25, 2013, issue). Several copyright stakeholders told us they believe the CO's IT and operational issues may be one of Goodlatte's top priorities, but said it's not clear whether there's a true consensus solution yet to those items or other areas of copyright law. House Judiciary's copyright review has targeted a wide range of issues, including the fair use doctrine, music licensing and Digital Millennium Copyright Act Section 512's notice-and-takedown framework.
Several Supreme Court justices appeared to agree that no single factor for determining copyright fee-shifting cases as set in Fogerty v. Fantasy should outweigh other factors, during oral argument Monday on its review of Kirtsaeng v. John Wiley & Sons. Two supporters of Kirtsaeng who attended the argument told us they are unsure how that position will translate into a court ruling. Thai citizen Supap Kirtsaeng sought a review of the 2nd U.S. Circuit Court of Appeals' 2015 ruling that Kirtsaeng wasn’t entitled to receive attorney’s fees from textbook company Wiley after winning a 2013 Supreme Court case that extended the scope of the first-sale doctrine (see 1601190071).
The Supreme Court’s review of Kirtsaeng v. John Wiley & Sons is likely to turn on whether the justices believe additional factors need to be considered in copyright fee-shifting cases beyond the precedent set in the Supreme Court's 1994 Fogerty v. Fantasy ruling, said attorneys supporting both Kirtsaeng and Wiley in interviews. The Supreme Court is set to hear oral argument on the case Monday. Thai citizen Supap Kirtsaeng sought a review of the 2nd U.S. Circuit Court of Appeals' 2015 ruling that Kirtsaeng wasn’t entitled to receive attorney’s fees from textbook company Wiley after winning a 2013 Supreme Court case (see 1601190071). The court had ruled Kirtsaeng’s resale and import of textbooks from Thailand to the U.S. was covered by the first-sale doctrine (see report in the March 20, 2013, issue).
Lobbying on encryption policy increased significantly in Q1, while interest in copyright and other tech sector policy issues remained largely on par with previous quarterly filings. At least 60 companies and groups lobbied on encryption issues and specific pieces of legislation during Q1, compared with just seven entities during the same period last year and 24 entities during Q4, according to available lobbying filings. Apple and Google reduced their lobbying expenditures in Q1 from the same period in 2015, while Amazon and Facebook posted significant increases (see 1604200036).
Librarian of Congress nominee Carla Hayden wouldn't address Wednesday whether she believes the Copyright Office should separate from the Library of Congress. Instead, she told the Senate Rules Committee Wednesday that her priority would be to “work with Congress and to examine how we can really make sure” the CO has all of the support it needs to properly function. Most of Senate Rules members' discussion on the LOC-CO relationship during Hayden's confirmation hearing centered on plans to modernize IT within the CO and the LOC, as expected (see 1604190051). Senate Rules Chairman Roy Blunt, R-Mo., and other committee members highlighted Hayden's qualifications, leading an industry lobbyist to tell us he believes Hayden's nomination is on track to “sail through” the Senate.
The Senate Rules Committee’s confirmation hearing Wednesday on Librarian of Congress nominee Carla Hayden will likely include at least a partial focus on issues of interest to the copyright community, but controversial topics like Copyright Office modernization probably won’t be a factor, copyright stakeholders said in interviews. Hayden was considered largely a blank slate on copyright policy issues, but the copyright community lauded Hayden’s work as CEO of Baltimore's Enoch Pratt Free Library system to update that system's technologies (see 1602240054 and 1603080063). The Senate Rules hearing is set to begin at 2:15 p.m. in 301 Russell.
The Supreme Court denied the Authors Guild's petition for a writ of certiorari seeking a review of the 2nd U.S. Circuit Court of Appeals' ruling in the Google Books case, as expected (see 1601040063). Justice Elena Kagan “took no part in the deliberation or decision of this petition,” the Supreme Court said Monday in its brief order denying the guild petition. The guild sought a review of the 2nd Circuit's ruling that the Google Books project to digitize portions of the world’s books is a “transformative” example of fair use, arguing there was a split among circuit courts on how to interpret the fair use doctrine.