The U.S. Department of Justice is set to join ICANN and the government of Iran Thursday in arguing before the U.S. Court of Appeals for the D.C. Circuit that country code top-level domains (ccTLDs) aren’t the property of national governments and therefore can’t be garnished as assets in a lawsuit judgment. Judge Royce Lamberth ruled in a consolidated 2014 district court opinion on Weinstein v. Iran and six similar cases that “a ccTLD, like a domain name, cannot be conceptualized apart" from registry managers and was therefore not eligible for garnishment under the Foreign Sovereign Immunities Act and the Terrorism Risk Insurance Act (see 1411130055).
The Supreme Court’s grant of certiorari Friday in Kirtsaeng v. John Wiley & Sons sets the court up to potentially change the standards for awarding attorney’s fees to the prevailing party in copyright lawsuits, copyright lawyers and stakeholders told us in interviews. The Supreme Court granted certiorari in response to Thai citizen Supap Kirtsaeng’s petition for a review of the U.S. Court of Appeals for the 2nd Circuit’s ruling in May that Kirtsaeng wasn’t entitled to receive attorney’s fees from textbook company Wiley after winning a 2013 Supreme Court case. The court had ruled Kirtsaeng’s resale an import of textbooks from Thailand to the U.S. that was covered by the first-sale doctrine (see report in the March 20, 2013, issue).
House supporters of the Consumer Review Freedom Act (HR-2110) are going through a “balancing act” to ensure the bill currently being considered by the House Commerce Committee’s Commerce Subcommittee broadly protects consumers’ right to free speech while also providing the right exceptions for companies, said Rep. Darrell Issa, R-Calif., during a Congressional Internet Caucus Advisory Committee event Friday. Issa introduced HR-2110 in April as the House companion to S-2044, which the Senate passed in December (see 1512150012). If enacted, CRFA would prevent businesses from using “gag clauses” included in terms of service or other contracts with consumers to prevent consumers from posting negative reviews of goods or services online. Stakeholders generally praised HR-2110 and S-2044 at the Friday event.
The combined debate over whether to keep a permanent extension of the Internet Tax Freedom Act (ITFA) in the conference Trade Facilitation and Enforcement Act (HR-644) and a proposal to attach the controversial Marketplace Fairness Act to HR-644 has been “the big hold-up” delaying Senate consideration of HR-644, said U.S. Chamber of Commerce Executive Vice President-Government Affairs Bruce Josten after a news conference Thursday on the industry group's business priorities for 2016. Supporters of keeping the permanent ITFA extension in HR-644 are seeking support for overriding an expected point of order from Sen. Lamar Alexander, R-Tenn., and Senate Democratic Whip Dick Durbin, D-Ill., that would challenge the provision as being outside HR-644's intended scope (see 1601130071). Although it would be “pretty easy” for everyone to support a permanent extension of ITFA, Durbin's quest to pair MFA with the ITFA extension has “complicated” the process, Josten told reporters. MFA passed the Senate last Congress but it's “never been considered” in the House, even via the House Judiciary Committee, Josten said. MFA “needs to be socialized” in the House and “dealt with through regular order, and it hasn't been,” he said.
Fundamental change is needed to fix the Digital Millennium Copyright Act's (DMCA) Section 1201 because the process for seeking exemptions to the section's ban on circumvention of technological protection measures (TPMs) has become increasingly burdensome, said several parties who backed Section 1201 exemptions during the Copyright Office's most recent triennial review of proposed exemptions. The Library of Congress granted 10 CO-proposed exemptions to Section 1201 in October that combined elements of 22 of the 27 exemptions that parties originally proposed, including an expanded exemption for jailbreaking and unlocking mobile devices and an exemption for circumventing TPMs on vehicle software to allow a car's owner to repair or otherwise legally modify a vehicle (see 1510270056).
Supporters of a permanent extension of the Internet Tax Freedom Act (ITFA) are working to ensure an ITFA extension remains a part of the Trade Facilitation and Trade Enforcement Act despite a plan by Sen. Lamar Alexander, R-Tenn., and Senate Democratic Whip Dick Durbin, D-Ill., to seek a point of order that an ITFA extension is outside the bill's scope. Alexander and Durbin are both supporters of combining the permanent ITFA extension with the more controversial Marketplace Fairness Act (MFA). The Senate is expected to turn back to consideration of HR-644 later this month, after stalling on the bill in December. The House passed HR-644 Dec. 11 with the permanent ITFA extension language included as part of conference negotiations (see 1512110058).
About 65 percent of a tested set of 10,000 domain names registered in ICANN’s Whois system passed all of the contact operability requirements included in ICANN’s 2009 registrar accreditation agreement (RAA), ICANN executives said during a webinar Tuesday. ICANN did a second round of testing of sampled domain names in the Whois system to evaluate what percentages of domain names adhere to both the operability and syntax requirements in the RAA. Almost 84 percent of all sampled domains from North America met all 2009 RAA syntax requirements, while about 30 percent of all sampled domains from Africa met the requirements, ICANN said. Results from an initial round of testing released in August, which focused solely on adherence to the RAA’s syntax requirements, found that about 70 percent of the 10,000 domain names analyzed in that round passed all syntax requirements (see 1508250041).
New legislation that would repeal the Cybersecurity Act information sharing language included in the FY 2016 omnibus spending bill isn’t likely to gain much traction, but its introduction signals that critics of the Cybersecurity Act will continue pushing for further privacy and civil liberties protections as federal agencies begin writing new information sharing program rules, stakeholders said in interviews. Rep. Justin Amash, R-Mich., filed his repeal bill (HR-4350) Friday as expected (see 1512290044). Congress retained the Cybersecurity Act in the FY 2016 omnibus despite concerns from digital rights groups and privacy advocates that the legislation didn’t retain the same level of privacy and civil liberties protections included in earlier House and Senate legislation (see 1512160068).
A proposed set of changes to ICANN’s accountability mechanisms is in question again amid continued work by the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability) to address concerns raised in public comments on the latest draft of its accountability proposal, stakeholders said in interviews. Most parties that submitted feedback about the latest CCWG-Accountability draft supported the draft proposals. But they raised significant concerns about recommendations on how the ICANN board should handle Governmental Advisory Committee consensus advice after the planned Internet Assigned Numbers Authority (IANA) transition and stakeholders’ rights to inspect ICANN documents (see 1512220040).
The Copyright Royalty Board’s nascent proceedings to decide the 2018-2022 rates for statutory mechanical royalties and royalties for public performances of sound recordings via satellite digital radio and pre-existing subscription services (PSS) are likely to be contentious, stakeholders said in interviews. The CRB published notices in Tuesday's Federal Register that open both proceedings, along with one to set royalty rates for performances via public broadcasters and other noncommercial broadcasters (see 1601040069 and 1601050034). The public broadcasting proceeding has historically been noncontroversial because noncommercial rates are much lower and tend to be much harder to successfully litigate than those on mechanical and satellite/PSS royalties, said Wilkinson Barker broadcast attorney David Oxenford.