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New copyright protection bills likely in 2005
By Grant Gross

Online copyright protection, including bills focused on peer-to-peer (P-to-P) file-trading, will likely be on the U.S. Congress' agenda as lawmakers gear up for their 2005 session this month.

Telecommunications reform may command a significant amount of attention from tech-focused lawmakers this year, but congressional observers also expect a push for new legislation that would focus on discouraging file trading using P-to-P software.

While some lawmakers remain interested in ways to punish the makers of P-to-P software, other lawmakers and public interest groups predict that a much-debated bill that would have allowed copyright holders to sue P-to-P vendors will not gain traction in 2005.

The so-called Induce Act, sponsored by Senator Orrin Hatch, failed to move out of the Senate Judiciary Committee in late 2004 after the Utah Republican couldn’t reach a compromise with technology and civil liberties groups that opposed the bill. Critics said the bill, aimed at those who “induce� copyright violations, was worded so broadly that it would allow the music and movie industries to sue many groups, including venture capitalists who invest in new technologies and journalists who review digital recording products.

A spokeswoman for Hatch declined to detail his specific plans for copyright legislation in 2005.

“Senator Hatch fully intends to continue to be active in his ongoing efforts to protect intellectual property rights,� the spokeswoman said in an e-mail. “He strongly believes that Congress should work to ensure that intellectual property rights are protected and that, as technology develops and changes, the federal patent, trademark, and copyright laws should -- to the extent necessary -- be updated to reflect these changes.�

Other lawmakers predict legislation similar to the Induce Act will have a tough time in 2005 because of the lack of support for the bill last year. The “barely supported� bill attracted opposition from a wide range of technology and civil rights groups, noted Representative Rick Boucher, a Virginia Democrat.

Boucher, who has generally opposed bills that strengthen digital copyright law, said he plans to again push for legislation that would allow customers to make personal copies of copyrighted digital products, including movies and music. Boucher’s Digital Media Consumers' Rights Act, introduced in 2003, gained support from several consumer rights groups and technology companies, but it didn’t make it out of the House Energy and Commerce Committee last year.

The committee is likely to take a longer look at any similar legislation this year. Representative Joe Barton, a co-sponsor of the Boucher bill, was named chairman of the committee in February 2004. Barton, a Texas Republican, has said he plans to push for a digital consumer rights bill.

Many other voices will call for tougher copyright laws, however. This month, the Business Software Alliance (BSA), a trade group representing major software vendors, issued a white paper focused on the group’s legislative priorities, including patent reform and copyright protections.

While trading software over P-to-P networks doesn’t get as much attention as music and movies, BSA officials call software piracy a major problem for their members. BSA’s legislative priorities white paper doesn’t recommend specific legislation Congress should adopt, but it calls for U.S. law enforcement agencies to step up enforcement of existing copyright laws and for Congress to ensure that copyright laws fight piracy without deterring technology companies from developing “innovative new products.�

Congress needs to look at the growth of P-to-P services and ask whether Internet service providers (ISPs) are providing law enforcement officials with enough information to prosecute copyright violation cases, said Robert Holleyman, BSA’s president and chief executive officer. Some ISPs, including Verizon Internet Services Inc., have fought efforts by the recording industry to subpoena names of their subscribers using a provision in the 1998 Digital Millennium Copyright Act.

“Some of the goals Congress intended may not be fully met,� Holleyman said. “We believe Congress needs to examine the question, but we’ve stopped short of calling for legislation.�

Holleyman suggested the Induce Act didn’t strike the right balance between the need for copyright protection and the ability for technology companies to bring new products to market.

Despite strong opposition to the Induce Act, P2P United, a trade group representing P-to-P vendors, expects more bills this year that attempt to strengthen existing copyright law, said Adam Eisgrau, executive director of the group.

Eisgrau expects few bills addressing P-to-P file trading to be introduced before the U.S. Supreme Court rules on a case in which the music and movie industries sued P-to-P vendors Grokster Ltd., StreamCast Networks Inc. and MusicCity.com Inc. Lower courts have ruled that the P-to-P vendors aren’t liable for their users’ copyright violations, and the Supreme Court is expected to rule in mid-2005.

“The very powerful copyright interests have sought in every Congress to sufficiently lower the bar for prosecutions,� Eisgrau said. “P2P United has every expectation that the powerful interests that backed that (Induce Act) legislation will do everything they can to keep the issue front and center.�

The Recording Industry Association of America didn’t respond to requests for its legislative agenda for 2005.

Other likely tech-related issues in Congress in 2005 include the following:

• Spyware: Representative Mary Bono, a California Republican, has reintroduced a bill that would allow fines of up to US$3 million for makers of software that steals personal information from a user's computer or highjacks its browser. The bill passed the House in 2004, but failed to pass the Senate. Bono’s original bill created a broad definition of spyware as software that changes a user’s computer without explicit permission, but after antivirus and other software vendors complained, the bill was amended to outlaw actions associated with spyware, instead of defining spyware.
• Spam: Congress isn’t likely to pass new legislation that would add to the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act, which went into effect in January 2004. But committees may hold hearings on the effectiveness of the law, which critics say has done little to reduce the amount of unsolicited commercial e-mail.
• Cybersecurity: Legislation mandating private businesses to take cybersecurity action isn’t likely, but Congress could tweak existing laws such as Sarbanes-Oxley to include IT security in its corporate-controls reporting requirement.

Posted January 19, 2005 09:51 PM |