Book publishers Elsevier and Hachette, the American Society of Journalists and Authors (ASJA), a group of writers and the Copyright Alliance were among parties filing amicus briefs supporting the Authors Guild’s petition to the Supreme Court for a writ of certiorari seeking review of the 2nd U.S. Circuit Court of Appeals’ ruling in the Google Books case, the guild said Tuesday. It petitioned the Supreme Court in December to review 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, saying the 2nd Circuit’s ruling “fundamentally remakes” the fair use doctrine and conflicts with other courts’ fair use rulings. Copyright legal experts have told us they believe the Supreme Court is unlikely to grant the petition (see 1601040063). Elsevier and Hachette jointly argued in their brief that the 2nd Circuit took an “overly expansive view of the meaning and consequences of transformativeness, which displaces the statutory full factorial analysis Congress intended.” The 2nd Circuit’s ruling also “infringes and jeopardizes” authors’ exclusive rights to control their right to reproduce their copyrighted works, Elsevier and Hachette said. ASJA’s brief argued, as expected, that the 2nd Circuit failed to do a required “qualitative analysis of the portions of a work used by the defendant ... and instead it opted in favor of a quantitative analysis that makes no sense in the context of Google’s ‘snippet view’ product.” The 2nd Circuit also “erred by considering ‘transformativeness’ in a manner completely detached from ‘justification’ or fairness,” ASJA said. The Copyright Alliance said the 2nd Circuit’s ruling “employed a fair use analysis that is far removed from” the existing fair use precedent in Campbell v. Acuff-Rose Music, which found commercial parody to be fair use. The ruling also “necessarily ignored numerous important interests and considerations, many of which were reflected” in the Copyright Office’s 2011 mass digitization study, the Copyright Alliance said. Stephen Sondheim and a coalition of other major authors and dramatists jointly argued that the fair use doctrine wasn’t intended “to permit a wealthy for-profit entity to digitize millions of works and to cut off authors’ licensing of their reproduction, distribution, and public display rights.” Google’s deadline for filing its opposition brief to the Supreme Court is March 1.
The House Homeland Security Committee’s aim to make the Department of Homeland Security’s plan to reorganize the National Protection and Programs Directorate its first cybersecurity focus of 2016 is a reflection of timing rather than an indication that NPPD reorganization is a higher priority than other cybersecurity issues, cybersecurity-focused executives and lobbyists told us. But early consideration of the NPPD reorganization plan may be necessary, given ongoing industry concerns about the plan, executives and lobbyists said. DHS began seeking legislation last year to codify its planned reorganization of NPPD, which would rename it the Cybersecurity and Infrastructure Protection division (see 1509170038). House Homeland Security plans to file a bill on NPPD reorganization this spring (see 1601290058).
The House Homeland Security Committee’s first cybersecurity priority for 2016 will be to continue examining possible legislation related to the Department of Homeland Security’s planned restructuring of its National Protection and Programs Directorate (NPPD), which leads much of the department’s cybersecurity work, a committee aide told us Friday. House Homeland Security Chairman Michael McCaul, R-Texas, alluded in a blog post last week to plans for an ambitious 2016 cybersecurity agenda beyond conducting oversight of implementation of the Cybersecurity Act as enacted in the FY 2016 omnibus spending bill (see 1601270044). House Homeland Security began looking last year at DHS' plans for reorganizing NPPD and renaming it the Cybersecurity and Infrastructure Protection division (see 1509170038). McCaul eventually paused work on legislation to authorize the NPPD reorganization amid lawmakers’ questions about the reorganization and the increased focus on conference negotiations on information sharing legislation that resulted in the Cybersecurity Act, an industry lobbyist told us. House Homeland Security plans to meet with DHS officials in the coming weeks and anticipates filing a bill on NPPD reorganization at some point this spring, a committee aide said.
The Department of Commerce’s Internet Policy Task Force (IPTF) recommended Congress pass legislation that would amend guidance to courts for determining statutory damages in copyright infringement cases. The IPTF white paper, developed by NTIA and the Patent and Trademark Office (PTO), opposed using legislation to address remixes’ status within the fair-use doctrine and digital transmissions’ place in the existing first-sale doctrine. Private sector stakeholders should find solutions to both of those issues, the IPTF said. The task force said it supports creating a “streamlined procedure” for adjudicating “small claims” copyright infringement cases and urged “further consideration” of the Copyright Office’s 2013 proposal to establish a small claims copyright court (see report in the Oct. 1, 2013, issue). A small claims court “could help diminish the risk of disproportionate levels of damages against individual file-sharers,” the IPTF said.
The federal government should take enforcement action against Amazon for violations of traditional antitrust statutes, leaders of the Author's Guild, New America and other anti-Amazon publishing interests said Wednesday. Many of the groups speaking at a New America event Wednesday previously urged action against Amazon, including a direct appeal in July by the American Booksellers Association, the Author's Guild and two other authors' advocacy groups for a Department of Justice Antitrust Division investigation (see 1507130065). A book pricing deal Amazon reached in 2014 resolved the e-book pricing dispute between the online retailer and Hachette (see 1407100037). The larger antitrust issues highlighted in the dispute have “not gone away,” Authors United President Doug Preston said. Amazon and Justice didn't comment.
ICANN’s Governmental Advisory Committee said it hasn’t reached a consensus on whether to support several controversial parts of the Cross Community Working Group on Enhancing ICANN Accountability’s (CCWG-Accountability) draft proposal for changes to ICANN’s accountability mechanisms. GAC’s lack of consensus on some parts of the CCWG-Accountability proposal and earlier Generic Names Supporting Organization (GNSO) feedback show the working group still needs to address significant issues in an expected supplementary draft of its proposal, ICANN stakeholders told us. The CCWG-Accountability proposal has become the main focus of the debate over the Internet Assigned Numbers Authority transition, other ICANN stakeholders said Monday during a State of the Net conference panel.
Almost all top communications Internet and tech firms, related industry groups and privacy groups remained as engaged in lobbying Capitol Hill on cybersecurity issues in Q4 as they had during the same period in 2014, while more entities from other industries lobbied on those issues during Q4 than had the previous year. The number of overall firms lobbying on cybersecurity issues increased more than 20 percent year-over-year in Q4 2015, while the number of major telecom and Internet entities lobbying on those issues remained nearly flat. Both communications and tech firms’ telecom expenditures were a mixed bag in Q4. AT&T was among the communications firms that increased their lobbying expenditures during the quarter (see 1601200061), while Amazon and Microsoft were among the tech firms that increased their spending (see 1601210034).
A three-judge U.S. Court of Appeals for the D.C. Circuit panel focused on whether to rule on whether country code top-level domains (ccTLDs) can be considered attachable property for garnishment purposes or on the bigger issue of whether ccTLDs can be considered the property of national governments at all in claims brought under the Foreign Sovereign Immunities Act (FSIA), during oral argument Thursday in Weinstein v. Islamic Republic of Iran. The D.C. Circuit is reviewing Judge Royce Lamberth’s 2014 district court decision on Weinstein and six similar cases involving attempts to garnish ownership of the ccTLDs for Iran, North Korea and Syria as partial damages compensation following successful lawsuits against those nations’ governments (see 1601200063 and 1411130055). Lamberth didn’t rule in 2014 on whether a ccTLD could be considered government property. D.C. Circuit Judges Merrick Garland and Raymond Randolph actively questioned the merits of Weinstein while Judge Karen LeCraft Henderson observed.
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).