It's been less than 24 hours since President Bush gave his State of the Union address, but IP legislation is already on the fast track in Congress. The Senate Tuesday passed a package of bills that Lamar Smith (R-Texas) plans to take up in the House -- legislation I believe is a solid balance between ensuring IP protection and supporting fair use -- but several senior Senate staffers today said the hottest IP issue on Capitol Hill right now isn't even in Congress. It's in the courts, and it's called Grokster.

Speaking at a D.C. Bar IP conference, these staffers seemed to agree that until the Supreme Court rules on the case likely in late June (oral arguments are March 29th) there likely won't be any secondary liability legislation considered on the Hill, unlike the Induce Act debate last year. But they also appeared to agree that it's inevitable that the debate will continue on the Hill once the decision comes down, regardless of what that decision is. I've been making the same argument, which is why I'm seeking those in favor of a middle ground.

But that debate is months away. Congress is acting now on IP legislation is essentially four pieces of legislation that ran out of time in the last Congress. The "Family Entertainment and Copyright Act of 2005" or S-167 is sponsored by Senators Orrin Hatch (R-Utah), Patrick Leahy (D-Vermont), John Cornyn (R-Texas) and Dianne Feinstein (D-California). It cleared the Senate by unanimous consent Tuesday and will soon be marked up by Smith and Howard Berman (D-California) in their IP subcommittee in the House.

As I said above, this legislation is a nice balance of IP protection and fair use. I'll break out the four parts, relying both on Leahy's statement in the Congressional Record and an analysis of the legislation by David Carney in Tech Law Journal (subscription required).

Title I is the ART Act, which outlaws camcorders in movie theaters, a no-brainer in my opinion. This supplements some existing state laws.

Title II is the Family Movie Act, or the ClearPlay Act as some call it. This Utah-based company allows subscribers to have their DVD player automatically skip sex, violence and profanity (what some would say is the good stuff). Hollywood has sued ClearPlay over this and the case is pending. I have to say, though, that when my daughter was young I used to fast-forward past the death of Simba's father in The Lion King to spare her such a horrible sight. By doing so I don't believe I was infringing on Disney's intellectual property. If there's a technology that makes that easier and it doesn't actually record anything or redistribute anything, that sounds like fair use, not infringement.

Title III is the Film Preservation Act, which will help the Library of Congress to preserve aging films and make them available to researchers and the public. I'm shocked that this legislation is moving forward and the groups that claim to be fighting for the public domain are eerily quiet. Shouldn't they be shouting praise for this bill to the rooftops and urging their supporters to press Congress for passage?

Title IV is along the same lines as Title III, but the Preservation of Orphan Works Act modifies the Sonny Bono Copyright Term Extension Act -- the law upheld by the Supreme Court in Eldred v. Ashcroft -- by permitting libraries to create copies of orphan works that are in their last 20 years of their copyright term, are no longer commercially exploited, and are not available at a reasonable price. I welcome better preservation of and access to orphan works. I know public domain groups do too. I was talking to the head of one the other day, and this individual told me that the Preservation of Orphan Works Act doesn't go far enough. That's probably true. Maybe the Copyright Office in its Notice of Inquiry will expand access beyond this Act. But again, why isn't this individual and this individual's allies rallying support for this bill, at least as a first step?

I worked on the Hill for two years, was married to a Hill counsel for another 6, then covered it for years after that as a reporter. Congress doesn't usually act as quickly as this on anything. These bills are the start, I believe, of that middle ground. They do nothing to combat P2P piracy and don't address the issues at stake in Grokster. But perhaps they'll let all sides in this debate see there are some things everyone can agree on, and we can move forward from there.

posted by Patrick Ross @ 3:31 PM | Legislation and Legislators

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