President Donald Trump’s nomination of House Judiciary Committee Senior Majority Counsel Vishal Amin as the White House’s Intellectual Property Enforcement Coordinator provides a new opportunity for the Trump administration to shape IP rights enforcement policy, but it’s unclear whether there will be a fundamental shift in how the coordinator affects policy, stakeholders told us. The coordinator handles the White House’s legal policy portfolio on copyright, patent and trademark issues, including the executive branch’s three-year strategic plan for IP rights enforcement. Previous Coordinator Daniel Marti submitted the most recent three-year plan in December (see 1612120062).
Jimm Phillips
Jimm Phillips, Associate Editor, covers telecommunications policymaking in Congress for Communications Daily. He joined Warren Communications News in 2012 after stints at the Washington Post and the American Independent News Network. Phillips is a Maryland native who graduated from American University. You can follow him on Twitter: @JLPhillipsDC
The Performance Royalty Owners of Music Opportunity to Earn (Promote) Act's introduction last week stirred up the copyright community's long-simmering debate over proposals to require most terrestrial radio stations to begin paying performance royalties, lawyers and lobbyists told us. But the music industry treated HR-1914's underlying proposals with a behind the scenes response that has ranged from tepid to concerned, officials said. As filed by House IP Subcommittee Chairman Darrell Issa, R-Calif., and Rep. Ted Deutch, D-Fla., the bill would give performing artists the ability to opt out of having their music played by terrestrial broadcasters if the artist isn't being paid an agreed-upon royalty. The bill would require terrestrial royalties paid to artist be “identical” to those paid by nonsubscription digital services (see 1704060066).
The path for the Register of Copyrights Selection and Accountability Act has become more complicated amid jurisdictional fights and ongoing criticism from HR-1695 critics, said several officials in interviews. The bill would make the register a presidentially appointed, Senate-confirmed position with a 10-year term (see 1703230068). The House Judiciary Committee cleared HR-1695 in March 27-1 and it was believed to be on track for a possible House floor vote this week (see 1703290066). The House adjourned Thursday without voting on the bill and isn't expected to vote again on legislation until after its Monday to April 21 recess.
The International Trade Commission should highlight foreign countries' data localization laws as a top barrier to digital trade in a forthcoming report, telecom and tech officials said Tuesday during an ITC hearing. The commission began an investigation in February at the Office of the U.S. Trade Representative's request into developments in the digital trade market and how laws in the U.S. and “key foreign markets” are affecting digital trade. The ITC is examining laws in the EU, Brazil, China, India, Indonesia and Russia. The commission is expected to release the first of three reports on the investigation by Aug. 29, with the other two reports to be released in 2018 and 2019.
Music industry entities' Thursday launch of ValuetheMusic.com appears aimed at influencing simultaneous examinations of the Digital Millennium Copyright Act's Section 512 on Capitol Hill, at the Copyright Office and the EU, lawyers and lobbyists said in interviews. The RIAA-led website directly criticizes Google-owned YouTube's use of Section 512's safe harbor provisions at a time when Google is under fire for its placement of advertising next to objectionable content (see 1703240004).
Stakeholder comments set to be filed through late Thursday on the Copyright Office’s nascent study on how existing U.S. law protects the moral rights of attribution and integrity are likely to mirror previous discussions, stakeholders said in interviews. The CO kicked off the study in January, noting that it would examine whether changes in U.S. law are needed to protect moral rights as defined in the Berne Convention (see 1701230061). The CO began its examination at the behest of House Judiciary Committee ranking member John Conyers, D-Mich. (see 1604180069).
The House Judiciary Committee voted 27-1 Wednesday to advance the Register of Copyrights Selection and Accountability Act (HR-1695) over opposition from Rep. Zoe Lofgren, D-Calif. The bill, filed last week, would make the register a presidentially appointed, Senate-confirmed position with a 10-year term (see 1703230068). The lopsided vote in favor buoyed forecasts by the bill's supporters that it will pass easily on the House floor, but others told us the bill's future isn't preordained, particularly in the Senate.
The Department of Homeland Security missed its deadline last week to submit a new departmental cybersecurity strategy to Congress and will need months to vet it with officials from President Donald Trump’s administration, said acting National Protection and Programs Directorate Deputy Undersecretary-Cybersecurity Jeanette Manfra during a Tuesday House Homeland Security Cybersecurity Subcommittee hearing. DHS was mandated by the FY 2017 National Defense Authorization Act to submit the report to Congress by Thursday, but House Homeland Security members hadn't received it, said Subcommittee ranking member Cedric Richmond, D-La. DHS needs additional time to “ensure that the new administration has an opportunity to review and provide guidance on what that strategy should look like,” Manfra told the subcommittee: “We are working very hard on it, and this is something that we recognize as critical to our success and the next evolution for DHS cybersecurity.” Manfra said DHS has “made significant progress over the past year” on its cybersecurity programs, including its Continuous Diagnostics and Mitigation (CDM) and “Einstein” National Cybersecurity Protection System programs. GAO Director-Information Security Issues Gregory Wilshusen said the department made some progress in addressing GAO’s earlier concerns about the department’s implementation of CDM and Einstein. Lawmakers “need to ensure that these programs are agile enough to keep pace with the cybersecurity needs of federal agencies,” said Chairman John Ratcliffe, R-Texas. “We need to ensure DHS is properly leveraging private sector innovation and is able to quickly adopt cutting-edge technologies.”
Some Supreme Court justices appeared to struggle during oral argument Monday in TC Heartland v. Kraft Foods Group Brands over how much they're willing to rewrite existing rules on the venue for patent infringement lawsuits. Heartland Food Products Group asked the top court to review 28 U.S. Code Section 1400(b), which requires a plaintiff to bring a patent infringement suit only in a U.S. District Court where the defendant resides or has an “established place of business.” The tech sector has taken a substantial interest because of the case's potential to restrict movement of patent cases to Texas' Marshall and Tyler-based district court and others perceived as friendly to plaintiffs (see 1701170066). Justice Stephen Breyer directly questioned how concerns about the Marshall/Tyler district court's oversized role in patent law affected the Heartland case, which involved a transfer of a suit from Delaware to Indiana. Chief Justice John Roberts indicated he was in favor of Heartland's argument. The Electronic Frontier Foundation, Public Knowledge and many top tech firms supported Heartland via amicus briefs. ACT|The App Association, BSA|The Software Alliance and the Software & Information Industry Association were among Heartland's tech backers. The sector strongly supported Heartland's petition to the Supreme Court for writ of certiorari (see 1610140042). House Judiciary Committee Chairman Bob Goodlatte, R-Va., said in February he would re-evaluate whether to include language in future patent legislation aimed at revamping rules for placement of patent infringement suits in federal courts depending on the Heartland ruling (see 1702010069). The Supreme Court “has a chance to help rein in decades of misuse of the patent system by taking away a key tool for patent trolls -- venue shopping,” said Computer & Communications Industry Association President Ed Black in a statement. “We hope they use it.”
Content-side stakeholders took to Capitol Hill Monday to decry federal courts' expansion of the fair use doctrine, saying during a Copyright Alliance/News Media Alliance event that the over-application of fair use to include the transposing of content to other forms of media erodes copyright protections. The criticism of fair use doctrine precedent involves recent cases like Authors Guild v. Google (see 1604180027) and Oracle v. Google (see 1702130043) in which they believe too much emphasis was placed on examining whether a claimed fair use was “transformative.”