Intellectual Property
Agency Criticizes Copyright Office Stance On DMCA
by Drew Clark
The head of the National Telecommunications and Information Agency (NTIA) criticized the Copyright Office on Monday for what she called a higher burden than necessary on individuals and organizations seeking exemptions from digital copyright law.
In a letter to Register of Copyrights Marybeth Peters, NTIA administrator Nancy Victory said the high burden of proof demanded by the Copyright Office is "inconsistent with the opportunity that Congress intended to afford the user community."
The Copyright Office is trying to determine whether any exemptions from the 1998 Digital Millennium Copyright Act (DMCA) should be granted. The law imposed criminal penalties for breaking copyright-control technologies. That bar applies even when people are engaged in "fair use" of copyrighted material and hence not infringing upon copyrights.
As a result of criticism from copyright-user groups, Congress included in the DMCA a provision that requires the Copyright Office to conduct an inquiry every three years to determine whether anti-piracy technologies are adversely affecting individuals' ability to make non-infringing use of copyrighted works.
The Library of Congress, of which the Copyright Office is a part, formally grants the exemptions, but the statute also requires the register to consult with the NTIA chief.
Victory's comments, made in her last week as NTIA administrator, echoed those made in December by public-interest groups critical of the DMCA and of the Copyright Office's interpretation of the statute.
Spearheaded by Gigi Sohn, president of Public Knowledge, the groups said in a letter to Peters that they had "deep concern over the extremely narrow scope" of the Copyright Office's latest DMCA inquiry. The Electronic Frontier Foundation, Consumers Union and the American Foundation for the Blind co-signed the letter.
"The plain language of the statute does not support incorporation of the qualifier 'substantial' to define the level of harm to be demonstrated" by those people seeking exemptions, Victory added in her letter. "Given these concerns, NTIA believes that the [Copyright Office's] 'refinement' should be abandoned and a standard more consistent with [the DMCA] should be adopted."
On Wednesday, Sohn praised Victory's stance and reiterated her view that the Copyright Office has set the hurdle for DMCA exemptions "much too high."
"By adding a word here and there, the Copyright Office has rendered the exemption nearly unattainable," Sohn said, adding that "we hope that this letter will motivate key congressional leaders to give the Copyright Office guidance in carrying out the intent of Congress."
The interest groups' basic complaint is that the Copyright Office limited its inquiry by focusing only on technology tools that block "access" to copyrighted works and not those that stop "copying." In the notice announcing the rulemaking, the office said that is because the DMCA does not bar circumvention for the purpose of copying but only for the purpose of access.
Intellectual Property
Report: Digital Media Industry Needs New Business Model
by Drew Clark
The current market for digital media products like movies, music and television is unstable, and content owners, technology companies and consumers will need to collaborate to find sustainable business models, according to a report released Wednesday.
The report, "Copyright and Digital Media in the Post-Napster World," was released by the consultancy GartnerG2 and the Berkman Center for Internet and Society at Harvard University's law school, and the groups said they want to curb rhetoric and stimulate dialogue about "practical solutions" for the future.
"We are in this enormously important transition from physical to digital media, and this transition is blowing up virtually every business model that the media companies held dear," said Mike McGuire, a media industry research director for GartnerG2 and a co-author of the report.
The dawn of file sharing over peer-to-peer (P2P) computer networks like Napster and its heirs has confronted media companies with a loss of control, he said, and they are "trying to use technology to reaffirm it or re-establish it."
"That is going to be a losing proposition over time" because of the quick evolution of technology and because of the aggressive efforts of computer programmers to circumvent content-scrambling tools like encryption, he said.
Moreover, strict copy-protection technologies -- also referred to as digital-rights management (DRM) -- rub consumers the wrong way because it undermines their expectations of being able to make copies of content for personal and family use, he said.
That is one reason why the report describes the April announcement of Apple's pay-per-download iTunes service as "the biggest development in the online music-distribution space." ITunes imposes less-restrictive copy-protection technology than recording labels originally deployed.
The groups outline five scenarios for digital media: maintaining the status quo, imposing stricter copyright enforcement, regulating content like a utility, taxing digital devices, or widely deploying DRM technologies.
McGuire said Gartner teamed with the Berkman center because of the need to establish a firm legal footing for its discussion of new business models and potential technological tools. The groups plan to explore the five scenarios at a Sept. 18 conference at Harvard.
While the report does not favor one approach over another, McGuire touted a concept he called "perfectly portable content," which is "intended to balance the need for access versus control of digital content distributed on the Web."
"Perfectly portable content allows copyrighted content to move from device to device without copying," the report says. That means consumers could e-mail a digital music file to a friend -- and have it e-mailed back when the friend is done listening.
Such a technology could help preserve copyright law's "first sale" doctrine, which lets consumers who purchase books, tapes and digital videodiscs share with or give or sell their copies to others.
E-Commerce
Global Body Seeks Consensus On Narrow Issues Like Spam
by William New
A global organization of top technology industry executives has elected to narrow its focus this year to issues most likely to get consensus from its members, such as unsolicited commercial e-mail, or spam, a spokesman said.
The Global Business Dialogue on E-Commerce (GBDe), a private sector group that involves key government officials in its policymaking, has for several years worked toward consensus views on various tech issues. Members work during the year and finalize their views at an annual meeting. This year's meeting will be Nov. 6 in New York.
Last year in Brussels, Belgium, the group wrestled with subjects like improving consumer confidence by protecting personal data, securing online payments and addressing cyber ethics. Members also talked about how to increase demand for high-speed Internet services, manage spectrum and telecommunications licensing, and boost cyber security.
The GBDe issued recommendations on intellectual property rights, information technology investment, taxation and trade policy -- including a commitment to work on how to classify goods and services delivered online, a sticking point at the World Trade Organization.
But after a closed GBDe meeting with government officials from the United States, Japan, Canada and the European Union on July 23 in Washington, the group decided that spam "seems to be the hot issue this year," the spokesman said.
The meeting, which involved U.S. officials from the FTC and the Commerce, Justice and State departments, was intended to create a government "wish list" on issues that need to be addressed internationally rather than through a single-country approach.
"We're much more tightly focused" compared to past years, the spokesman said.
The group is looking at constructing a framework for addressing spam and also continues to study the future of the Internet. Work previously done by the group still stands.
For instance, the recommendations on classifying electronically delivered items remain valid because the WTO has not moved on the issue, the spokesman said. On intellectual property rights, the group reached a point where it felt "further consensus would be difficult," he said.
At the November meeting, the group also hopes to announce an agreement alternative dispute resolution, or ways to resolve legal disputes outside of court, with Consumers International. A deal could become the basis for a global agreement, he said, and would provide guidelines for businesses and consumers to defuse potential disputes before they reach litigation.
At the Brussels meeting, executives criticized the poor turnout from the U.S. tech sector. This year, Stratton Sclavos, chairman and CEO of VeriSign, replaced former AOL Time Warner Chairman Steve Case as GBDe co-chair for the Americas.
Michelle O'Neill, the U.S. deputy assistant Commerce secretary for information technology industries, told National Journal's Technology Daily last week that spam is "an issue that will require a global solution, so we're glad that a private-sector group like the GBDe is willing to take it on."
Budget
Appropriators Differ Over Allocation Of Broadband Funds
by Teri Rucker
House and Senate appropriators have approved programs that would help fund infrastructure expansion for high-speed Internet services, but House appropriators specifically noted that they shortchanged the broadband programs by eliminating funding for loans.
Democratic appropriators in the House criticized that move in their comments on the overall bill, H.R. 2673, which would fund the Agriculture Department in fiscal 2004.
"The bill eliminates all funding for this [broadband] program, which provides loans and grants to small rural communities to help them get high-quality data lines," according to the minority views in the House Appropriations Committee report on the measure. "This is particularly shortsighted, as the foundation of economic development in our society is increasing technology."
The legislation, passed by the House on a 347-64 vote on July 14, would allocate $42.1 million in fiscal 2004 for the distance learning, telemedicine and broadband program, $14.5 million less than provided in fiscal 2003.
Democrats also called attention to the proposed $24 million cut in "grants for distance learning and telemedicine and broadband."
By comparison, the competing Senate bill, S. 1427, would provide $59.1 million for those programs, an increase of $2.5 million. That amount would include $10 million for grants to support broadband transmission and local dial-up Internet services in rural areas.
The Senate measure, approved by the panel's Appropriations Committee on July 17, recommends that Agriculture consider funding several specific programs, including the Alaska Federal Heath Care Access Network, the Rural Information Technology Cooperative in Iowa and the National Rural Telework Institute of Appalachia in Ohio.
The Senate panel also tagged $15 million of the $59 million for grants to help educational television stations that serve rural areas convert from analog broadcast signals to digital ones.
The House bill would limit the funding for Agriculture's chief information officer (CIO). The measure includes nearly $15 million, the same as allocated in fiscal 2003 but $16.3 million less than the amount the Bush administration requested. The Senate budgeted $15.7 million for the CIO office, including $500,000 for the CIO to study the feasibility of using a non-federal entity to electronically store data related to food-safety programs.
Agriculture must use computer systems in a way that boosts efficiency, productivity and client services, and it does so under the moniker of the "common computing environment." The House legislation would allocate $133.2 million for that project, $44.6 million less than requested; the Senate bill would allocate $119.3 million, or $13 million less than in fiscal 2003.
The House measure also contains tidbits like offering $3.4 million for "high-priority information technology investments and evaluation of carcass technology," and touts programs such as the West Texas Pilot Project that used broadband wireless services to improve the operations of Agriculture service centers.
The Senate bill, meanwhile, would allocate $100,000 for Alaska to hire an IT specialist and a clerical support person in a Farm Service Agency center, noting that the state "lacks the necessary staff to adequately support an area one-fifth the size of the United States."
Budget
House, Senate Chart Different Paths On Digital Mapping
by Ted Leventhal
The House and Senate appear ready to back the Interior Department's plans in fiscal 2004 for a digital "national map," a database of geographic information available online for government purposes such as environmental protection, homeland security and disaster management.
On July 17, the House passed an Interior Department spending bill, H.R. 2691, that would provide money for the project. The vote was 268-152. The Senate Appropriations Committee, meanwhile, approved a similar measure, S. 1391, on July 10.
The House rejected the nearly $9 million in cuts for the program that the Bush administration had proposed and increased funds for data collection and outsourcing. The total spending under the House bill would be about $130.2 million.
The Senate recommended a slightly smaller budget for the project, sharply criticizing Interior's outsourcing of jobs in general and noting that outsourcing projects were funded at the expense of critical management and maintenance projects.
Interior's U.S. Geological Survey oversees the digital-mapping project and intends to create a central repository of data that could be used by any federal agency for mapping purposes.
The agency already houses the world's largest collection of satellite imagery. Combining that database with other geographic statistics in advanced computer models is expected to produce high-resolution topographical maps; chart the flow of rivers and waterways; outline buildings, government districts and public lands; and classify surface areas according to population density.
Collecting and mapping such geospatial data supports one of the White House Office of Management and Budget's 24 e-government initiatives: the "geospatial one-stop portal." The information it would provide could be vital in an emergency, especially if it becomes necessary to evacuate an entire community.
The extra money that the House approved would go toward expanding public/private data-collection projects, plus $1.2 million toward an additional outsourcing venture designed to enhance the map's data integration.
"[A]rchived data are critical to federal, state and local governments for protecting the homeland, natural-disaster assessments and understanding global climate change," the House committee report on the bill states. "With emerging technologies, the volume of collected, archived and distributed data at the electronic data center (EDC) is growing exponentially."
The report also targets the mapping project as fertile ground for outsourcing. In 1996, 60 percent of federal mapping jobs were outsourced, and the report said the quality of work has remained high.
The Senate bill, however, would provide $128.8 million for the project and reinstate nearly all of the administration's planned cuts, including $6.6 million in information technology cuts.
That cut "exceeds the IT savings proposed for much larger agencies and bureaus, such as the Forest Service or the National Park Service," the report notes. "The committee has not been given information that would substantiate such a large reduction and, therefore, has restored all but [$1.05 million] to the program."
The Senate measure also added $1 million to create a digital map of Senate Appropriations Committee Chairman Ted Stevens' home state of Alaska.
Today's Feature:
International Roundup
Elected officials in the United States and Europe who make Internet issues a priority have a growing "sense" that they need a more formal way to communicate about policy developments. Meanwhile, some U.S. legislators seeking remedies for domestic economic woes have targeted the flow of jobs and contracts to foreign workers either in the United States or overseas.
Every Wednesday, read the International Roundup by Senior Writer William New
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E-briefs
Security: The Senate Governmental Affairs Committee on Wednesday released a Democratic staff report criticizing the Bush administration for not adequately supporting state and local homeland security officials and "first responders" to emergencies. The report acknowledges some progress but concludes that the administration's promises for increased information sharing among federal, state and local officials have not been fulfilled. The report found that there is no systematic way for communicating with federal officials, either to get information to them or from them. In many cases, states also cannot share information with each other. "This is not an easy task, but so far I haven't seen the kind of leadership from the administration that is necessary to break down barriers, cut through deeply ingrained cultures and build the partnerships that are absolutely critical to homeland security," said committee ranking Democrat Joseph Lieberman of Connecticut, a potential challenger to President Bush in 2004. In other news, the Progressive Policy Institute recently released a study detailing the development of successful state anti-terrorism plans.
Telecom: The MCI telecommunications firm on Wednesday announced the hiring of Richard Roscitt as president and chief operating officer. He has a 30-year record in the telecom industry, serves on the board of the Telecommunications Industry Association (TIA) and is a member of the technology trade group TechNet. Roscitt's association with TIA and TechNet, groups that endorsed loosening regulations on the regional Bell telephone companies' offering of high-speed Internet services, brought questions during a conference call Wednesday about whether his membership is at odds with MCI's opposite policy goals. "TechNet wants to make sure broadband is very widely available," Roscitt said, noting that MCI shares that goal. "I will continue to champion broadband in a big way." CEO Michael Capellas also noted that the company hired a former FCC commissioner to help analyze MCI call-routing practices that have criticized recently. Capellas said the name of that former official would be revealed soon.
E-Government: The department responsible for managing information technology at U.S. attorneys offices nationwide has not defined management policies and procedures for IT enterprise architecture, investments, information security and system acquisition, according to a report by the General Accounting Office. In particular, GAO noted that the group's enterprise architecture "was not developed in accordance with certain best practices." GAO added that the Executive Office for United States Attorneys is not following key security practices, that IT policies have not been an agency priority, are not guided by plans and are not receiving adequate resources. The attorney general should make these goals a priority, GAO recommended, and develop plans to address the weaknesses. The group agreed with the findings and said while it had made progress, it would resolve the problems in the future.
Intellectual Property: World Intellectual Property Organization (WIPO) members soon will "enter into an analysis" of issues surrounding "open source" software but are "unlikely" to hold a meeting on the topic, a senior WIPO official said on Wednesday. Open-source software code can be viewed and changed, and that has made it an appealing product to many businesses and governments. WIPO nations soon will begin planning activities for the next two years, according to Assistant Director General Francis Gurry, and while the organization is unlikely to hold a meeting on open source because it has become so politicized, he said it might be debated within other contexts at WIPO. "The last thing WIPO wants to do is buy into a trade dispute," Gurry said. The group simply thanked James Love, president of the Washington-based Consumer Project on Technology, for his recent interest in a meeting on "new and open models for innovation."
Trade: Five "big ideas" are transforming the global economic environment, the president of the National Association of Manufacturers said this week. Speaking to the Australian Industry Group in Sydney on Monday, Jerry Jasinowski endorsed a U.S.-Australian free-trade agreement, which negotiators are trying to finish by year's end. The big ideas that he cited include fostering innovation and addressing the impact that the emergence of global terrorism is having on the free flow of goods and services. The other ideas involve China's compliance with World Trade Organization rules, currency values and the impact of free trade on developing countries. "We have gone about as far as we can with a global growth model that depends on an overvalued U.S. dollar and a rapidly growing U.S. economy to provide the economic engine for the rest of the world," Jasinowski said.
Intellectual Property: During a visit to Latin America last week, Rep. Bob Goodlatte met with Chilean Undersecretary of the Economy Alvaro Diaz to discuss the U.S.-Chile free-trade agreement and the need for enforcing anti-piracy provisions of the deal. Goodlatte, R-Va., is co-chairman of the Congressional Internet Caucus and follows e-commerce and intellectual property issues closely. "In my visit to the Chilean capital of Santiago, we saw firsthand evidence of pirated material abounding on the streets," Goodlatte said in a release. "Naturally this is cause for tremendous concern." He added that enforcing the anti-piracy provisions of the law "is imperative." The Chilean Congress is expected to consider the trade agreement in September.
Trade: Eliminating tariffs would boost developing economies, according to a background paper released on Tuesday by the National Foreign Trade Council. The paper, by Dartmouth College professor Matt Slaughter, examines the major concerns of developing countries that have been raised since the council issued a March 2001 proposal calling for the gradual elimination of industrial tariffs as a centerpiece goal of ongoing World Trade Organization negotiations. With the WTO set to meet in Cancun, Mexico, next month, the background paper "provides further evidence of the major benefits to developing countries of multilateral tariff liberalization," Mary Irace, the council's vice president for trade and export finance, said in a statement. The study looks at three frequent concerns -- potential government revenue loss, erosion of trade preferences and competition without tariff protection -- and attempts to show that those concerns are misplaced. Representing 350 companies, the council advocates an open trading system.
Telecom: Government officials on Wednesday endorsed the concept of using private providers to implement a system that links the Internet and telephony platforms through a single identifier but outlined issues that must be considered when working with the private sector. The ENUM Forum, which is involved in the debate about creating an electronic-numbering standard that would allow a single identifier for telephone and Internet communications, is considering using a limited-liability company to manage providers of the linking service. "It is imperative that any process that is chosen would ensure competition among providers and operators, allow for [communication among] alternative deployments, encourage innovative services and products, and protect the privacy and security of all ENUM users," said a letter signed by David Gross, coordinator of international communications and information policy at the State Department; FCC Chairman Michael Powell; and Nancy Victory, head of the National Telecommunications and Information Administration.
Intellectual Property: The Electronic Frontier Foundation (EFF) and the Stanford University law school's Center for Internet and Society Cyberlaw Clinic on Tuesday launched a Web site aimed at assisting those people targeted by DirecTV for allegedly stealing the satellite firms television signals via "smart cards." The site, DirecTV Defense, will provide scientists, researchers, innovators and their lawyers with information on the legal use of multi-purpose technology. "The DirecTV Defense Web site provides resources to help technology purchasers who aren't doing anything wrong stand up to DirecTV's intimidation tactics because simply using smart-card technology is not a crime," EFF staff attorney Jason Schultz said. DirecTV launched a nationwide campaign to curtail allegedly illegal signal theft, but Jennifer Granick, director of the Stanford center, called the argument "baseless."
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