Tech-sector stakeholders urged the Senate Judiciary Committee Wednesday to reject the federal government's proposal for an exemption to some provisions in a possible revamp of the 1986 Electronic Communications Privacy Act, with Google Director-Law Enforcement and Information Security Richard Delgado telling the committee that agencies' objections to current revamp proposals are ultimately “really just distractions.” Department of Justice, FTC and SEC officials continued to oppose provisions in current ECPA revamp bills like the ECPA Amendments Act (S-356) that they believe will hinder law enforcement efforts. The Wednesday hearing was Senate Judiciary's first on ECPA legislation since 2011, though the committee advanced an earlier version of the ECPA Amendments Act in 2013 (see report in the April 26, 2013, issue). Senate Judiciary ranking member Patrick Leahy, D-Vt., previously proposed attaching S-356's language as an amendment to the controversial Cybersecurity Information Sharing Act (S-754).
Two recent disputes over the use of popular 1980s rock songs during Republican-led rallies are increasing the visibility of perennial issues with music licensing for political events, stakeholders said in interviews. R.E.M. frontman Michael Stipe responded via Twitter to oppose the use of “It's the End of the World as We Know It (And I Feel Fine)” at a Sept. 9 rally against the U.S.’s Iran nuclear deal that involved GOP presidential candidates Ted Cruz and Donald Trump.
ICANN’s board proposed its alternative for guaranteeing enhanced powers to the ICANN community Friday. The nonprofit told the Cross Community Working Group on Enhancing ICANN Accountability’s (CCWG-Accountability) that the board’s “Multistakeholder Enforcement Mechanism” (MEM) would deliver “on the objective of the community to create an enforcement mechanism.” CCWG-Accountability had been collecting comments through Saturday on its revised proposal for changes to ICANN’s accountability mechanisms, which include giving the ICANN community the power to veto board-passed budgets and to recall board members. The ICANN board has repeatedly raised concerns about CCWG-Accountability’s proposed single member model for enforcing the proposed new community powers (see 1509030025).
The 9th U.S. Circuit Court of Appeals said the Digital Millennium Copyright Act (DMCA) “requires copyright holders to consider fair use before sending a takedown notification,” in Lenz v. Universal, affirming a U.S. District Court ruling against motions for a summary judgment in the case. “Failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law,” said Judge Richard Tallman in the three-judge panel’s opinion Monday. Judges Mary Murguia and Milan Smith also heard the case.
The House Judiciary Committee’s planned “listening tour” of copyright stakeholders is likely to expand the committee’s access to opinions within the music and other industries, but the effectiveness of those sessions will depend on how House Judiciary focuses the sessions and how they communicate the next steps in their ongoing Copyright Act review, industry officials told us. The committee’s first roundtable, Sept. 22 in Nashville, is meant to gauge copyright legislative priorities within the music industry (see 1509100041). The Sept. 22 roundtable and any future sessions are meant to be part of Judiciary’s new round of meetings with copyright stakeholders to follow up on earlier committee hearings on copyright policy, said a committee aide.
NAB and Sirius XM were among the nine entities or groups of law professors to file proposed amicus briefs with the 9th U.S. Circuit Court of Appeals through Thursday on behalf of Pandora in the company's appeal of a February U.S. District Court ruling in Los Angeles. The lower court said Pandora had to pay performance royalties on pre-1972 recordings owned by Flo & Eddie, who own the copyright to The Turtles' “Happy Together” and the rest of that band's music library. Sirius XM and the other six filers on behalf of Pandora argued that District Judge Philip Gutierrez incorrectly interpreted California copyright law. The other pro-Pandora filers included the Association for Recorded Sound Collections, Computer & Communications Industry Association (CCIA), Electronic Frontier Foundation, Public Knowledge and three groups of law school professors. Pandora and six of the nine filers previously filed in the 2nd Circuit on Sirius XM's behalf in that company's appeal of earlier U.S. District Court rulings in New York that relied on state copyright law in finding Flo & Eddie had a right to performance royalties on the Turtles' pre-1972 recordings (see 1508060052). Gutierrez essentially said the statute is "a living servitude on not only intangible products but also previously sold goods, one which would grow over time as new rights evolved,” CCIA said in its proposed brief. Gutierrez's “creation of a performance right in contravention of the Legislature’s plain intent violates the settled principle that where, as here, the declaration of a right would dramatically alter the common law and affect the interests of competing stakeholders, it must be a matter of legislative judgment and discretion,” Sirius XM said in its proposed brief. “Even assuming that California may regulate the use of pre-1972 sound recordings within its own borders, it cannot regulate in such a manner that prohibits the use of such sound recordings elsewhere in the nation,” CCIA said. “In such circumstances, the burden on interstate commerce -- including potential commerce involving members of amicus CCIA -- would be 'clearly excessive in relation to the putative local benefits.'” Gutierrez's ruling “creates an unbounded set of exclusive rights never recognized by California or Congress, and thus risks creating problematic restrictions on valuable speech activities,” Public Knowledge said in its proposed brief.
There has been no evidence the data stolen during the recent Office of Personnel Management data breach has been used yet “in a nefarious way,” meaning the breach can't be classified as a cyberattack, said Director of National Intelligence James Clapper during a House Intelligence Committee hearing Thursday. The OPM breach, revealed in June, has since been found to have exposed the Social Security numbers for 21.5 million people along with other personally identifiable information (see 1507090049). The data appears to have been stolen via “passive intelligence collection activity, just as we do,” Clapper testified. Rep. Chris Stewart, R-Utah, questioned Clapper's assessment of the OPM breach, saying “we don’t really know what has been the effect of this being taken.”
ICANN stakeholders generally approved of the Internet Assigned Numbers Authority Stewardship Transition Coordination Group’s (ICG) draft IANA transition proposal, in comments due Tuesday. They urged the ICG to further refine the proposal before submitting it for final approval. The draft proposal ICG submitted for comment in July (see 1507310060) combined elements of earlier proposals submitted by the Cross Community Working Group to Develop an IANA Stewardship Transition Proposal on Naming Related Functions (CWG-Stewardship), the Consolidated Regional Internet Registries IANA Stewardship Proposal (CRISP) Team and the Internet Engineering Task Force’s IANAPLAN working group. The ICANN board commented that there are “some implementation details and foreseen complexities” ICG will need to clarify. The board said it doesn’t believe “any of these issues poses a threat to” the ICG proposal’s viability.
The Library of Congress (LOC) was able to restore all U.S. Copyright Office (CO) systems over the weekend, after more than a weeklong outage, but stakeholders told us the outage may be a visible reminder of existing LOC IT deficiencies that some have highlighted as a reason for spinning off the CO as an independent agency. Most public LOC websites went offline late Aug. 28 for a scheduled power outage at the library’s data center, but LOC wasn’t able to reboot several key systems, including most CO systems, when the outage was scheduled to end (see 1509010062 and 1509040011). The prolonged outage was due to an "equipment failure that occurred during startup," a LOC spokeswoman said. LOC staff were able to bring CO systems back online by Sunday morning. Library and CO staff “worked around the clock to assess problems and solutions and ensure the ongoing integrity of Copyright Office data,” CO said in a statement.
The NTIA-led multistakeholder process to create a set of common principles and best practices for security vulnerability information disclosures is to convene Sept. 29, NTIA said Friday in a planned Federal Register notice. The NTIA-led multistakeholder process, originally announced in July (see 1507090053), is one of several cybersecurity-related multistakeholder processes the Department of Commerce’s Internet Policy Task Force is seeking to convene (see 1504090049). The Sept. 29 multistakeholder meeting is to run 9 a.m.-3 p.m. PDT at the University of California-Berkeley School of Law.