1 CPTWG MEETING #92 October 26, 2005 Legislative/Regulatory Update CPTWG MEETING #92 October 26, 2005 Legislative/Regulatory Update Jim Burger [email protected].

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CPTWG MEETING #92CPTWG MEETING #92

October 26, 2005October 26, 2005

Legislative/Regulatory UpdateLegislative/Regulatory Update

CPTWG MEETING #92CPTWG MEETING #92

October 26, 2005October 26, 2005

Legislative/Regulatory UpdateLegislative/Regulatory Update

Jim BurgerJim Burger

[email protected]@dowlohnes.com

Jim BurgerJim Burger

[email protected]@dowlohnes.com

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OverviewOverviewOverviewOverview

LegislatureLegislature Senate Judiciary Oversight CommitteeSenate Judiciary Oversight Committee Broadcast Flag/Digital Audio Broadcast Flag/Digital Audio

Broadcast?Broadcast? Other developments Other developments

StorageTek v. CHEStorageTek v. CHE

LegislatureLegislature Senate Judiciary Oversight CommitteeSenate Judiciary Oversight Committee Broadcast Flag/Digital Audio Broadcast Flag/Digital Audio

Broadcast?Broadcast? Other developments Other developments

StorageTek v. CHEStorageTek v. CHE

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Senate Judiciary HearingsSenate Judiciary HearingsSenate Judiciary HearingsSenate Judiciary Hearings

Asked for Recommendations from Industry for Asked for Recommendations from Industry for Congressional Action post-Congressional Action post-GroksterGrokster

Chairman Spector Expressed Preference for Chairman Spector Expressed Preference for Legislative Rather than Judicial SolutionsLegislative Rather than Judicial Solutions

However, Witness Disagreed: No New However, Witness Disagreed: No New Legislation NeededLegislation Needed

Feinstein Seemed Frustrated, Repeatedly Asked Feinstein Seemed Frustrated, Repeatedly Asked U.S. Attorney for CD CA What Tools Needed U.S. Attorney for CD CA What Tools Needed To Stop Widespread PiracyTo Stop Widespread Piracy

Asked for Recommendations from Industry for Asked for Recommendations from Industry for Congressional Action post-Congressional Action post-GroksterGrokster

Chairman Spector Expressed Preference for Chairman Spector Expressed Preference for Legislative Rather than Judicial SolutionsLegislative Rather than Judicial Solutions

However, Witness Disagreed: No New However, Witness Disagreed: No New Legislation NeededLegislation Needed

Feinstein Seemed Frustrated, Repeatedly Asked Feinstein Seemed Frustrated, Repeatedly Asked U.S. Attorney for CD CA What Tools Needed U.S. Attorney for CD CA What Tools Needed To Stop Widespread PiracyTo Stop Widespread Piracy

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Spector Concluded Saying:Spector Concluded Saying:Spector Concluded Saying:Spector Concluded Saying:

“So we will continue to study them and at least in the short term I think we will carry out the wishes of those who wish us to do nothing – which we are very good at … until Senator Feinstein tells us precisely what to do”

“So we will continue to study them and at least in the short term I think we will carry out the wishes of those who wish us to do nothing – which we are very good at … until Senator Feinstein tells us precisely what to do”

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Broadcast Flag/Digital Audio Broadcast Flag/Digital Audio BroadcastBroadcast

Broadcast Flag/Digital Audio Broadcast Flag/Digital Audio BroadcastBroadcast

Earlier This Year DC Circuit Found FCC Earlier This Year DC Circuit Found FCC Didn’t Have Jurisdiction to Implement Didn’t Have Jurisdiction to Implement Broadcast FlagBroadcast Flag

Many Rumors of Legislation to Delegate Many Rumors of Legislation to Delegate Authority to FCC for Flag, for More?Authority to FCC for Flag, for More?

Also, Reportedly RIAA Asking for Also, Reportedly RIAA Asking for Delegation to FCC for Encrypting Digital Delegation to FCC for Encrypting Digital Audio Broadcast and Digital Satellite Audio Broadcast and Digital Satellite RadioRadio

Earlier This Year DC Circuit Found FCC Earlier This Year DC Circuit Found FCC Didn’t Have Jurisdiction to Implement Didn’t Have Jurisdiction to Implement Broadcast FlagBroadcast Flag

Many Rumors of Legislation to Delegate Many Rumors of Legislation to Delegate Authority to FCC for Flag, for More?Authority to FCC for Flag, for More?

Also, Reportedly RIAA Asking for Also, Reportedly RIAA Asking for Delegation to FCC for Encrypting Digital Delegation to FCC for Encrypting Digital Audio Broadcast and Digital Satellite Audio Broadcast and Digital Satellite RadioRadio

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StorageTek v. CHE – BackgroundStorageTek v. CHE – BackgroundStorageTek v. CHE – BackgroundStorageTek v. CHE – Background Federal Circuit Court of Appeals DecisionFederal Circuit Court of Appeals Decision Found CHE not guilty of DMCA because it Found CHE not guilty of DMCA because it

did not violate copyright or facilitate did not violate copyright or facilitate copyright infringementcopyright infringement

Relied on Chamberlain v. Skylink (garage Relied on Chamberlain v. Skylink (garage door opener case):door opener case):

““[Congress] chose to create new causes of [Congress] chose to create new causes of action for circumvention and for trafficking action for circumvention and for trafficking in circumvention devices. Congress did not in circumvention devices. Congress did not create new property rights.”create new property rights.”

Federal Circuit Court of Appeals DecisionFederal Circuit Court of Appeals Decision Found CHE not guilty of DMCA because it Found CHE not guilty of DMCA because it

did not violate copyright or facilitate did not violate copyright or facilitate copyright infringementcopyright infringement

Relied on Chamberlain v. Skylink (garage Relied on Chamberlain v. Skylink (garage door opener case):door opener case):

““[Congress] chose to create new causes of [Congress] chose to create new causes of action for circumvention and for trafficking action for circumvention and for trafficking in circumvention devices. Congress did not in circumvention devices. Congress did not create new property rights.”create new property rights.”

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StorageTek File Petition for Rehearing En BancStorageTek File Petition for Rehearing En Banc Argued that Improper for Court to Require Argued that Improper for Court to Require Copyright Violation to Find 1201(a)(1) DMCA Copyright Violation to Find 1201(a)(1) DMCA ViolationViolation Both text and statutory construction confirmBoth text and statutory construction confirm No need for required rulemaking to determine No need for required rulemaking to determine

exemptions from DMCA for noninfringing usesexemptions from DMCA for noninfringing uses Majority opinion would render 1201(a)(2) duplicative of Majority opinion would render 1201(a)(2) duplicative of

1201(b) explicitly tied to infringement1201(b) explicitly tied to infringement Noted that Noted that Universal v. Corley Universal v. Corley cited by the court cited by the court

explicitly rejected infringement as an element of 1201(a)explicitly rejected infringement as an element of 1201(a)

StorageTek File Petition for Rehearing En BancStorageTek File Petition for Rehearing En Banc Argued that Improper for Court to Require Argued that Improper for Court to Require Copyright Violation to Find 1201(a)(1) DMCA Copyright Violation to Find 1201(a)(1) DMCA ViolationViolation Both text and statutory construction confirmBoth text and statutory construction confirm No need for required rulemaking to determine No need for required rulemaking to determine

exemptions from DMCA for noninfringing usesexemptions from DMCA for noninfringing uses Majority opinion would render 1201(a)(2) duplicative of Majority opinion would render 1201(a)(2) duplicative of

1201(b) explicitly tied to infringement1201(b) explicitly tied to infringement Noted that Noted that Universal v. Corley Universal v. Corley cited by the court cited by the court

explicitly rejected infringement as an element of 1201(a)explicitly rejected infringement as an element of 1201(a)

StorageTek v. CHE - PetitionStorageTek v. CHE - PetitionStorageTek v. CHE - PetitionStorageTek v. CHE - Petition

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StorageTek v. CHE - AmiciStorageTek v. CHE - AmiciStorageTek v. CHE - AmiciStorageTek v. CHE - Amici MPAA, RIAA and Others Filed Amici Brief MPAA, RIAA and Others Filed Amici Brief

Supporting the PetitionSupporting the Petition Also Argued Wrongly DecidedAlso Argued Wrongly Decided

Also points to statutory exemption processAlso points to statutory exemption process Render that process senselessRender that process senseless Would make any infringement defense a defense Would make any infringement defense a defense

to circumvention liabilityto circumvention liability Congress did not import certain defenses, Congress did not import certain defenses,

including fair use, instead provided specific including fair use, instead provided specific defenses, defenses, e.g.e.g., reverse engineering, reverse engineering

Distinguished Distinguished ChamberlainChamberlain “accused device that “accused device that enables only uses that copyright law explicitly enables only uses that copyright law explicitly authorizesauthorizes

MPAA, RIAA and Others Filed Amici Brief MPAA, RIAA and Others Filed Amici Brief Supporting the PetitionSupporting the Petition

Also Argued Wrongly DecidedAlso Argued Wrongly Decided Also points to statutory exemption processAlso points to statutory exemption process Render that process senselessRender that process senseless Would make any infringement defense a defense Would make any infringement defense a defense

to circumvention liabilityto circumvention liability Congress did not import certain defenses, Congress did not import certain defenses,

including fair use, instead provided specific including fair use, instead provided specific defenses, defenses, e.g.e.g., reverse engineering, reverse engineering

Distinguished Distinguished ChamberlainChamberlain “accused device that “accused device that enables only uses that copyright law explicitly enables only uses that copyright law explicitly authorizesauthorizes