July Washington E-Bulletin

July 1, 2015

The July issue of the Washington E-Bulletin is available now on AALLNET.

Special Annual Meeting Edition
IN THIS ISSUE
Vol. 2015, Issue 07

A LOOK AHEAD

ACT NOW

AALL IN THE STATES

ROUNDUP AND REVIEW


Copyright Office’s New Orphan Works Report Contains Flawed Legislative Proposal

June 23, 2015

By Emily Feltren

On June 4, the Copyright Office released its new Orphan Works and Mass Digitization report, updating its 2006 and 2011 reports on the same topic. The new report analyzes past orphan works legislation, recent legal developments (including the Authors Guild v. Google and Authors Guild v. Hathi Trust), international models, public comments, and discussions from recent roundtables. A major section of the report is dedicated to the Copyright Office’s recommendation for orphan works legislation. While AALL generally favors a legislative solution to the orphan works problem, we oppose the draft as written primarily because of the strict definition of a qualifying search and the notice of use requirement.

The Copyright Office’s proposal is a modified version of the Shawn Bentley Orphan Works Act (S. 2913) as passed by the Senate in 2008. It includes a requirement for limited remedies when a user of an orphan work has conducted a diligent, good faith search for a rights holder and reasonable compensation for rights holders with a special provision for noncommercial actors (including libraries) engaged in noncommercial use of orphan works. The draft also includes an important fair use savings clause, stating that it does not affect any right, limitation, or defense to copyright infringement, including fair use, under Title 17.

However, the definition of a good faith diligent search has many required elements that AALL finds troubling. The search requirements include, at a minimum, a search of Copyright Office records on the Internet, sources containing authorship and ownership information, technology tools, databases, and even Copyright Office records that are not available on the Internet. We object to this definition, which mirrors that included in the Senate version of the Shawn Bentley Orphan Works Act of 2008, because we believe its requirements would be too resource-intensive for law libraries. As AALL stated in our comments on the 2012 Notice of Inquiry concerning orphan works and mass digitization, we believe search requirements must be flexible, reasonable, and inexpensive. We stated, “Institutions working with orphan works will have differing resources that they can employ to undertake searches and, particularly in the area of mass digitization projects, mandatory steps could lead to a cost prohibitive per-work analysis and documentation process. Like fair use, use of orphan works requires flexibility.”

The draft also includes an onerous notice of use requirement, which states that a user must file a notice with the Copyright Office for each orphan work. The filing must include (1) the type of work used; (2) a description of the work; (3) a summary of the qualifying search conducted; (4) any other identifying indicia available to the user; (5) the source of the work (e.g., library or website where work was located, publication where work originally appeared); (6) a certification that the user performed a qualifying search; and (7) the name of the user and a description of how the work will be used. These notice of use filings would be retained by the Copyright Office in a “Notice of Use Archive.”  AALL believes the notice of use requirement would be much too time and resource intensive for law libraries, particularly those wishing to use larger collections of orphan works. The notice of use requirement would be especially problematic for those wishing to use unpublished works or other ephemera. Even the Copyright Office itself acknowledges that “filing a Notice of Use for each use of an orphan work may place a significant burden on users […].” AALL urges the Copyright Office to reconsider this element of their proposal.

In addition to its orphan works draft legislation, the report also includes a proposal for dealing with mass digitization, suggesting an extended collective licensing (ECL) model as the solution. AALL has concerns about an ECL model, which was opposed by most participants during the March 2014 roundtables. We will have further analysis of this proposal in a future blog post.


Amid Appropriations Challenge, Net Neutrality Rules To Go Into Effect Friday

June 11, 2015

Update 4:30pm: The U.S. Court of Appeals for the District of Columbia Circuit has denied the stay of FCC Title II reclassification.

By Elizabeth Holland

The Federal Communications Commission’s (FCC) new Open Internet Order will go into effect on Friday, June 12. That is, unless Congressional Republicans have something to do with it. Today, the Financial Services Subcommittee of the House Appropriations Committee approved by voice vote an appropriations bill that would cut the FCC’s funding and block net neutrality rules from being implemented. If passed, the bill would act as a sort of legislative stay (likely, ex post facto), until the U.S. Court of Appeals weighs in.

From the House Appropriations Committee press release:

The bill contains $315 million for the FCC – a cut of $25 million below the fiscal year 2015 enacted level and $73 million below the request. The legislation prohibits the FCC from implementing net neutrality until certain court cases are resolved, requires newly proposed regulations to be made publicly available for 21 days before the Commission votes on them, and prohibits the FCC from regulating rates for either wireline or wireless Internet service.

Of course, the likelihood of such a partisan policy rider passing is incredibly slim. Subcommittee member Rep. José Serrano (D-N.Y.) called the net neutrality caveat “excessive” and one that would make the bill unpassable from the Democratic view. Most of the additional funds requested, he pointed out, would enable to FCC to move to a new headquarters that Chairman Tom Wheeler has said will save money in the long-run. And because net neutrality rules don’t have their own line item, reducing funding for the FCC as a whole would jeopardize the agency’s ability to inform important functions like ensuring the 9-1-1 system, rural call completion, and preventing harmful interference to wireless communications.

Several Internet Service Providers (ISPs), the plaintiffs in the lawsuits filed, have requested a judicial stay to delay the June 12 implementation of Title II regulations. The FCC has already rejected such a request. Both parties agree, however, that the court should expedite hearing of the underlying case if a stay is not granted.

AALL strongly opposes this House Appropriations subcommittee bill and urges full funding for the FCC. We believe a legislative solution to enshrine the FCC’s net neutrality rules would be less likely to be tested in court, would settle jurisdictional questions between the FCC and the Federal Trade Commission, and would bring finality to net neutrality rules. We urge Congress to take action to codify this important principle.

To learn more about law librarians’ stake in the net neutrality debate, join Government Relations Committee Chair Leslie Street and others in Philadelphia at Hot Topic: Net Neutrality and Law Librarians: It’s a Good Thing on Tuesday, July 21 at 11:00 am.


Congress Passes Historic Surveillance Reform

June 2, 2015

By Elizabeth Holland

AALL applauds the Senate passage of the USA FREEDOM Act (H.R. 2048) today, without amendment, by a vote of 67-32. The USA FREEDOM Act will end the bulk collection of Americans’ communications records under Section 215 of the USA PATRIOT Act, the Foreign Intelligence Surveillance Act (FISA) pen register authority, and National Security Letter (NSL) statutes. Under the legislation, all significant constructions or interpretations of law by the FISA court must be made public. The bill will also create a panel of amicus curie to provide guidance on matters of privacy and civil liberties, communications technology, and other technical or legal matters. President Obama is expected to sign the bill into law, ushering in the most significant reduction in the government’s surveillance authorities since the 2001 passage of the USA PATRIOT Act.

AALL was pleased to see the Senate decisively reject all three weakening amendments offered to the USA FREEDOM Act by Senate Majority Leader Mitch McConnell (R-Ky.). These amendments would have unnecessarily extended the government’s authority to collect Americans’ communications records in bulk by an extra six months, required service providers receiving an order for production of call detail records to notify the Attorney General if they intend to retain call detail records for less than 18 months, and weakened the amicus provision. A fourth amendment to strike disclosure of FISA Court opinions to the public was tabled by the Majority Leader.

AALL and our members have long advocated for reforms to the USA PATRIOT Act that protect the privacy of library users and all Americans, including changes to Section 215 and the NSL authorities. As our Government Relations Policy states, “AALL supports a comprehensive national and state framework for privacy protection to safeguard the rights of all Americans. We oppose any current or future legislation, regulation, or guideline that erodes the privacy and confidentiality of library users or that has the effect of suppressing the free and open exchange of ideas and information.” The enactment of the USA FREEDOM Act is an important and significant step forward in limiting overbroad government surveillance. Thank you to all members of AALL who have helped to usher in this historic reform!


June Washington E-Bulletin

June 1, 2015

The June issue of the Washington E-Bulletin is available now on AALLNET.

IN THIS ISSUE
Vol. 2015, Issue 06

A LOOK AHEAD

ACT NOW

AALL IN THE STATES

ROUNDUP AND REVIEW


Section 215: The Final Countdown

May 29, 2015

By Elizabeth Holland

Having failed to address the expiring provisions of the USA PATRIOT Act, the Senate will convene this Sunday afternoon with hopes of striking a deal just hours before the June 1 deadline. With the clock ticking, both chambers of Congress must scramble to address the surveillance reform supported by over 80 percent of Americans or risk sunsetting existing authorities.

Last weekend, the Senate narrowly voted down cloture on the USA FREEDOM Act (H.R. 2048) before adjourning for the Memorial Day recess. At the same time, members of both parties also rejected four efforts by Majority Leader Mitch McConnell (R-Ky.) to extend the expiring USA PATRIOT Act provisions in the short-term. In the week since the failed votes, Senate Intelligence Committee Chairman Richard Burr (R-N.C.) and Ranking Member Dianne Feinstein (D-Calif.) have each floated “compromise” legislation to address the expiring surveillance laws. Both bills contain flaws and omissions that are incompatible with the goal of stopping domestic bulk collection, as AALL stated in a coalition letter sent to Senate leadership today. Meanwhile, Reps. Justin Amash (R-Mich.) and Thomas Massie (R-Ky.) have watched over their chamber’s pro forma sessions this week to ensure that GOP leaders didn’t extend expiring portions of the law without their consent.

There are several possible scenarios that could play out in Sunday’s Senate session. The Burr, Feinstein, or another yet-unknown compromise bill may be introduced and brought for consideration. Senator McConnell could drop his vocal opposition to the House-passed USA FREEDOM Act and allow another vote, with amendments. The Majority Leader may also attempt to pass another short-term extension and call on the House to act immediately, but it’s far from guaranteed that the House would agree to an extension, even a short one. With no clear path forward, the possibility that the PATRIOT Act provisions will sunset on Sunday at midnight is considerable.

AALL will be watching the Senate proceedings closely. We continue to urge passage of the USA FREEDOM Act and oppose any weakening amendments or extension of the PATRIOT Act that does not end bulk collection of Americans’ records. For the latest developments, follow us on twitter at @AALL_GRO and be sure to contact your members of Congress if you have not already done so.


Surveillance Reform Update: On Filibusters, Sunsets, and Reauthorization

May 21, 2015

By Elizabeth Holland

Yesterday afternoon, Senator Rand Paul (R-Ky.) took to the Senate floor to lambast government surveillance programs. Over the course of 10.5 hours, he was joined by members from both parties who spoke at length about their opposition to the USA PATRIOT Act and called for substantial reform to protect Americans’ privacy from government intrusion.

Whether Senator Paul’s talk-a-thon qualified as a true filibuster is unclear; though his control of the floor prevented Senate Majority Leader Mitch McConnell (R-Ky.) from filing cloture on both the AALL-supported USA FREEDOM Act (H.R. 2048) and a bill to extend the expiring provisions of the USA PATRIOT Act for two months (S. 1357),  it’s not certain that Sen. McConnell ever intended to do so on Wednesday. Nonetheless, Sen. Paul’s extended floor speech came as the Senate comes down to the wire, making the chance of a clean reauthorization of the expiring USA PATRIOT Act  provisions before the June 1 deadline increasingly improbable.

Senators are now scrambling to avoid a sunset of Section 215 of the USA PATRIOT Act (the “library records” provision). This morning, McConnell filed cloture on H.R. 2048 and S. 1357, setting up a probable Saturday vote. However, the House has already adjourned for its Memorial Day recess, meaning the provisions will expire before their scheduled return unless the Senate passes the House-approved USA FREEDOM Act. House Speaker John Boehner (R-Ohio) held his ground today saying, “The House has acted. It’s time for the Senate to act. If they act, we’ll take a look at what they do and make a decision on how to proceed.”  If the Senate passes a short-term reauthorization, the out-of-town House would need to agree to it next week under unanimous consent during its pro forma session.

As the clock ticks, more Senators have announced their support for the USA FREEDOM Act, which would effectively end the National Security Agency’s bulk collection of Americas’ telephone data, including Senator Bill Nelson (D-Fla.), the lone Democrat to oppose the bill last year when it fell two votes shy of cloture. A report released today by the Department of Justice’s Office of the Inspector General shows the expiring Section 215 of the PATRIOT Act has been used by the Federal Bureau of Investigation to collect “telephone records of U.S. persons who were not the subject of or associated with the subjects of authorized investigations.” The Second Circuit Court of Appeals already ruled the program unconstitutional and an April 2015 poll commissioned by the ACLU shows Americans believe the USA PATRIOT Act should not be reauthorized in its current form by nearly a 2:1 margin (60 percent modify, 34 percent preserve).

AALL urges the Senate to pass the USA FREEDOM Act, without weakening amendment, before the upper chamber leaves town for the Memorial Day recess. Use our Legislative Action Center to contact your members of Congress in support of privacy reform and urge your Senators and Representative to oppose any legislation that extends the USA PATRIOT Act without amendment.

The timing and strategy of Congressional action on this issue are in flux and subject to change. Stay tuned to the Washington Blawg and follow us on Twitter @AALL_GRO for the latest.


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