The Senate Judiciary Committee is developing its first significant piece of copyright-specific legislation since its House counterpart began an ongoing Copyright Act review more than three years ago. Development of Senate Judiciary's Copyright Office modernization bill hasn't gotten beyond consultations on draft principles. Committee leaders told us last week they're planning during the 115th Congress to ramp up the committee's role in influencing the debate over copyright legislation. More active Senate Judiciary participation in crafting copyright legislation would be a shift from the committee's largely behind-the-scenes role on copyright policymaking during the House Judiciary Committee review of copyright law, copyright stakeholders told us.
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
NTIA Administrator Larry Strickling defended ICANN’s Internet Assigned Numbers Authority transition plans during an episode of C-SPAN’s The Communicators set to have been televised this weekend. He cited successful completion of a joint ICANN-Verisign 90-day test of a parallel version of the root zone file to ensure the file would remain reliable after the IANA transition. ICANN and Verisign began testing the parallel version of the root zone file in late April to verify that data contained in the Root Zone Management System-produced (RZMS) file will remain reliable after the IANA transition (see 1604110038). ICANN confirmed Thursday that the parallel testing period concluded successfully earlier this month. The test resulted in “zero unexplained differences” between the live version of the root zone file and the parallel testing version of the file that didn’t include NTIA’s authorization, ICANN said in a news release: “This result confirms that the production RZMS and parallel test system produce an identical output for every root zone file published, which was a key step to ensuring the continued security and stability of the Internet's root zone” after the IANA transition. The success of the parallel testing shows the “new system by which ICANN will transmit changes to the root zone directly to Verisign has now been proven to work exactly the same as the current system does,” Strickling said. “The one technical change that has to occur as part of the transition has now been proved to be fully operational and implementable.” Strickling recently pushed back against proposals to delay the IANA transition to allow for further evaluation of the governance changes resulting from ICANN’s transition plans. He said a transition delay not sought by ICANN stakeholders has the potential to damage U.S. credibility and international support for multistakeholder internet governance (see 1606280062 and 1607140084).
House Homeland Security Committee Chairman Michael McCaul, R-Texas, is “hoping” for a September Senate Homeland Security Committee markup of the Senate version of his Digital Security Commission Act (HR-4651/S-2604), which would allow House Homeland Security to “take it from there,” said committee General Counsel Joan O'Hara during a Thursday Internet Governance Forum USA conference. HR-4651/S-2604 would create the 16-member National Commission on Security and Technology Challenges (NCSTC) to analyze the encryption landscape and provide recommendations to Congress on possible consensus legislation. House Homeland Security's Republican staff issued a report last month that pointed to HR-4651 as a compromise “third way” of addressing the encryption debate (see 1606290069). McCaul believes there's “good bipartisan support” for creating NCSTC and the commission would allow for a “robust, honest conversation” on encryption issues, O'Hara said. If the commission forms, its members may be able to “think outside of the box” on encryption policy, she said. Senate Homeland Security didn't comment.
Reps. Hakeem Jeffries, D-N.Y., and Tom Marino, R-Pa., bowed their Copyright Alternative in Small-Claims Enforcement Act. As expected (see 1606080068), the bill mirrors a 2013 Copyright Office recommendation for establishing a voluntary process for adjudicating small copyright infringement claims. HR-5757 would establish the three-member Copyright Claims Board within the CO to “serve as an alternative forum in which parties may voluntarily seek to resolve certain copyright claims, regarding any category of copyrighted work.” The librarian of Congress would appoint the CCB's three members to a six-year term based on the register of copyrights' recommendation. The CCB's initial appointees would have shorter terms under HR-5757 to allow future board appointments to be staggered, with one CCB member having only a four-year term and one a five-year term. The bill would require CCB members to have at least seven years of legal experience. HR-5757 would mandate that at least two of the three CCB members have “substantial experience in the evaluation, litigation, or adjudication of copyright infringement claims and, between them, shall have represented or presided over a diversity of copyright interests, including those of both owners and users of copyrighted works.” The CCB also would include at least two full-time copyright claims lawyers under HR-5757. The bill requires the CCB lawyers to have at least three years of copyright-related legal experience. “It is time” for the House Judiciary Committee to “start moving forward with legislative measures that reflect the lessons we have learned in the context” of the committee's Copyright Act review, Marino said in a statement. “Providing a voluntary process to resolve small copyright disputes will result in increased registration, proper licensing and less infringement. This is good for our economy, it is good for the creative community, and it is good for” the CO. “Federal litigation is simply out of reach for many individual creators and small businesses, leaving them a right without a remedy,” said Copyright Alliance CEO Keith Kupferschmid in a Wednesday statement. “We are ... grateful for their willingness to look for ways to help individual creators who lack the resources to use the federal court system to enforce their copyrights.” Newspaper Association of America President David Chavern said in a letter the bill “will be particularly helpful for many of those individual creators and small businesses who face copyright issues, yet find federal litigation to be out of reach. The hard work of individuals who create content can be put in jeopardy, and many times they are left without a remedy.”
NTIA Administrator Larry Strickling worked Thursday to “correct the record” on claims made by Internet governance stakeholders who are skeptical of the Internet Assigned Numbers Authority (IANA) transition. He again pushed back against calls for NTIA to delay the transition by extending the agency's existing contract with ICANN to administer the IANA functions. Strickling told Sen. Marco Rubio, R-Fla., and four other GOP senators in late June that NTIA sees “no tangible benefit” to seeking a transition delay (see 1606280062). Extending the IANA contract “will not be effective” in protecting internet freedom despite what some transition skeptics claim, Strickling said during an Internet Governance Forum USA conference.
The Senate confirmed Librarian of Congress nominee Carla Hayden Wednesday 74-18, ending a weeks-long delay of floor consideration brought about by an unidentified Senate Republican's hold (see 1607120080). Hayden, currently head of Baltimore's Enoch Pratt Free Library system, will have a 10-year term as LOC head. She is to take over from acting Librarian David Mao at “a date to be determined and is expected to assume her duties soon,” the LOC said in a news release. Hayden has largely avoided taking a position on policy issues on the Copyright Office but said during an April hearing she will prioritize working with Congress and examining “how we can really make sure” the CO has all of the support it needs to properly function (see 1604200053).
Opponents of DOJ Antitrust Division's preliminary decision on its review of the department's American Society of Composers, Authors and Publishers and Broadcast Music Inc. consent decrees are more likely to protest the decision in comments to DOJ than propose changes to the Justice's implementation of the decision, several music industry lawyers and lobbyists told us. DOJ has been briefing stakeholders on its decision not to alter the existing ASCAP/BMI consent decrees and to clarify that 100 percent licensing, in which any partial owner of a song would be allowed to fully license that song, is required under music licensing rules. The department is seeking comments through Friday on the preliminary decision and has said it's mostly interested in hearing about specific implementation issues rather than formal objections (see 1607010065 and 1607070040).
The federal government needs to be more transparent on its discovery of software vulnerabilities and more frequently disclose vulnerabilities, security experts said Monday during a Congressional Internet Caucus Advisory Committee event. DOJ's standoff with Apple over an attempt to force the company to help the FBI unlock an iPhone 5c (see 1602170068 and 1603290059) raised new questions about government use of vulnerabilities and vulnerability disclosure standards, said Rapid7 Public Policy Director Harley Geiger.
NTIA Associate Administrator Fiona Alexander cautioned Friday against Congress using its legislative powers to delay the Internet Assigned Numbers Authority transition. Congressional intervention against the wishes of ICANN stakeholders could result in “inherent distrust” in multistakeholder internet governance, she said at an R Street Institute event. NTIA began openly pushing back in late June against Capitol Hill Republicans’ calls for the agency to delay the transition by extending the agency’s existing contract with ICANN to administer the IANA functions past the current Sept. 30 expiration date (see 1606280062). Congress also is considering legislation to delay or outright halt the IANA transition, including a proposed extension to an existing rider in the Department of Commerce’s budget that bars NTIA from using its funds on the transition through the end of FY 2016. It’s unclear how and whether Congress will move to intervene on the transition, but that debate is likely to reach a crescendo when legislators return from their August recess, officials told us.
Only a “limited window of time” remains for Congress to intervene to stop the Internet Assigned Numbers Authority (IANA) transition from occurring as scheduled Sept. 30, said Sen. Ted Cruz, R-Texas, during a Heritage Foundation-TechFreedom event Thursday. Cruz has led Senate skeptics of the IANA transition, most recently by bowing the Protecting Internet Freedom Act (S-3034) last month. S-3034 and its House companion (HR-5418) would prohibit NTIA from allowing the IANA transition unless Congress “expressly grants” the NTIA administrator the authority to allow it (see 1606080044).