Politics and Law

Nearly two years ago, the Bush administration sided with the major record labels in their civil lawsuit against an alleged and briefly famous Kazaa user named Jammie Thomas. Now the Obama administration is doing so as well.

In a legal brief filed Friday, the U.S. Department of Justice said the whopping $1.92 million fine that the Recording Industry Association of America slapped on Thomas was perfectly constitutional.

Federal prosecutors argue the relevant law is "carefully crafted" and consistent with "due process" and part of a necessary "regime to protect intellectual property. Under current law, copyright holders can sue for up to $150,000 per work (such as an MP3 file, DVD, or book).

Their brief adds: "Congress took into account the need to deter the millions of users of new media from infringing copyrights in an environment where many violators believe that they will go unnoticed." It does not take a position on issues other than the constitutional ones.

In the case of Jammie Thomas--now Jammie Thomas-Rasset--a jury decided that she had willfully infringed copyrights on 24 songs and awarded the RIAA a total of $222,000. Her lawyers successfully argued for a new trial, in which the RIAA won $80,000 per song in damages, or a total of $1.92 million.

Now her lawyers are asking for a third trial on grounds that the total fine is unreasonably, and even unconstitutionally, high.

Jammie Thomas

(Credit: Jammie Thomas)

Thomas' attorneys' brief filed last month says the up-to-$150,000-per-song statutory damages "bear no reasonable relation to the actual injury suffered by the plaintiffs. The damages awarded are grossly in excess of any reasonable estimate of that injury...An award of statutory damages of $1.92 (million) for 24 songs assessed as punishment, not compensation, shocks the conscience and must be set aside."

The Obama Justice Department's arguments echo the ones made by the Bush Justice Department in a December 2007 brief, which said: "Congress has crafted a statute that serves as a deterrent to those infringing parties who think they will go undetected in committing this great public wrong."

Friday's filing wasn't exactly unexpected; for one thing, the Justice Department is generally tasked with defending acts of Congress from legal challenges. It sided with the RIAA in a recent Massachusetts case, and in an unrelated peer-to-peer case in New York.

The RIAA has said it's willing to settle its Minnesota case against Thomas for far less than the seven-figure sum it's now owed. "It was a jury of regular folks who rendered this decision," Jonathan Lamy, a spokesperson for the RIAA, said in June. "We do not seek any specific damage awards. For the few existing cases, this verdict is a reminder of the clarity of the law. With any case, including that of Ms. Thomas-Rasset, we seek to settle these out of court. We stand ready and willing to talk settlement with Ms. Thomas-Rasset or anyone. We think that's most beneficial for everyone involved."

One of the RIAA attorneys in the Thomas case was Donald Verrilli of Jenner and Block in Washington, D.C. In February, Obama named Verrilli to a senior Justice Department post as associate deputy attorney general.

The Pirate Party UK, which is dedicated to technology and copyright-law reform, has become an official political party.

The party was registered by the Electoral Commission this week, the party's leader Andrew Robinson told ZDNet UK.

"We're still in the early stages of forming the party," Robinson said Thursday. "We're still very small."

The U.K. organization has around 250 active members, Robinson said.

Electoral Commission registration allows the party to raise funds and list Pirate Party UK candidates at the next general election, which must take place before June 2010. Similar parties elsewhere have won election victories: the Swedish Pirate Party gained a seat in the European parliament in May, while the German Pirate Party has an elected MP.

The Pirate Party UK intends to campaign before the next general election on issues such as patent and copyright reform, and freedom from excessive electronic surveillance.

It is proposing an exemption from copyright law for noncommercial file-sharing, which is essentially an extension of fair use. Under U.K. copyright law, fair use allows organizations such as schools and news agencies to use parts of a copyrighted work.

In May, government advisers estimated there were 7 million file-sharers in the UK. The government's Digital Britain report, released in June, put forward a statutory maximum fine of 50,000 pounds ($83,000) for copyright infringement.

"The government is saying that there are 7 million people that share files in Britain, and that file-sharers should be punished with a maximum fine of 50,000 pounds," said Robinson. "The fact that the government has threatened to bankrupt up to 10 percent of the population shows the need for a party that understands technology."

The party will press for the length of the copyright on works to be reduced from the life of the owner plus 70 years to a shorter term, said Robinson. Its membership has not yet voted on what the shorter copyright term should be.

One major campaign platform will be the reform of patent law to prevent one company building up significant market power in products such as medicines. "Monopolies maintained by companies producing life-saving drugs mean people are dying, as they can't afford (treatment)," said Robinson.

The party will also campaign to reform electronic surveillance laws, which will include defining which types of deep packet inspection and surveillance are allowed. Robinson offered Google Street View and behavioral ad-monitoring company Phorm as examples of technology not covered by U.K. law.

"Current law isn't taking into account advances in technology such as Street View," said Robinson. "There's no law to say it's OK to take pictures of streets, but not the inside of houses. Phorm is too much like surveillance. We're saying there needs to be a set of laws to handle technology such as Phorm and Street View."

Surveillance by government agencies, including the proposed Interception Modernisation Programme, must be made as transparent as possible, according to the Pirate Party UK. "We would like to expand the Freedom of Information Act so government information is published by default, unless there are security issues," said Robinson.

At the moment, the Pirate Party UK is recruiting members and seeking donations, and it aims to field as many candidates as it can at the next general election, Robinson said. The party leader intends to stand for election in either the Worcester or West Worcestershire constituencies.

The Pirate Party UK has no formal connection with similar parties around the world. "There are very informal links--we talk to each other," said Robinson. "We are structurally and financially independent."

There are 24 Pirate Party organizations around the world.

Tom Espiner ZDNet UK reported from London.

Bassem Al Rousan, Jordan's Minister of Information and Communications Technology, in his office in Amman.

(Credit: Declan McCullagh)

AMMAN, Jordan--Even by the extremes of the Middle East, Jordan is an unusual place.

Unlike its neighbors to the south and east, it enjoys no vast oil wealth. It shares the region's longest border with Israel, about 150 miles, and signed a peace treaty with its neighbor in 1994. Although the northern third of the country benefits from a Mediterranean climate, the rest is largely desert.

That leaves outsourcing and other businesses as one obvious bright spot, and Jordan is hoping to enlist computer technology and the Internet to fight an unemployment rate that probably hovers around 30 percent, thanks in part to the hundreds of thousands of Iraqi and Palestinian refugees the country has taken in.

Embracing the Internet also means trying to reconcile its rollicking, unruly culture of free expression with a population that's about 92 percent Muslim and a society that's far from as strict as neighboring Saudi Arabia -- but nevertheless conservative enough to prompt most women to follow the dictates of the hijab by wearing head scarves.

Jordan has had flare-ups of offline and online censorship, including imprisoning a female member of Parliament (since pardoned by King Abdullah) and encouraging bloggers to self-censor. Reporters Without Borders says that even though a law providing for prison terms for press offenses was canceled, journalists remain under pressure.

Then there are the less expected obstacles, like a proposed tax earlier this year of about 1.5 cents per minute on wireless calls, with the proceeds going to the livestock industry to subsidize animal feed.

CNET News recently met with His Excellency Eng. Bassem Al Rousan, minister of information and communications technology of Jordan, in his offices in Amman, to talk about outsourcing, DVD piracy, Internet taxes, open source, and other topics.

Q: If a Jordanian company opens an office in Lebanon, it can't easily send Jordanian engineers to work there. And company in Lebanon can't easily send engineers here. Is there any interest in eliminating some of these legal barriers?
Al Rousan: In Jordan now the unemployment rate is about 12 percent... It is not difficult for technical jobs, marketing jobs. It's easy to come and work in Jordan.

I started working in the private sector in 1997. I saw very easy movement from Jordan to Egypt, Lebanon, Pakistan, the Gulf. Also Pakistanis coming to Jordan. It's easy because we consider those jobs vital for the development of businesses. The movement for skilled jobs is easy.

If Internet access is more expensive in Jordan than Europe in absolute terms, and far more expensive in relative terms, what's the best way to bring down the monthly cost? Does the government need to subsidize it, or encourage competition instead?
Al Rousan: To increase the penetration, there are some obstacles we have to overcome. One of those is the language and the content. Just last week we had a talk with Google about Jordan investing in Arabization for the content. (Editors' note: Al Rousan's aide said afterward that this involved sharing of knowledge and was not a financial investment.)

Another thing is the price of computers. We started in the government a new initiative, what we called a laptop for every university student. He can buy a laptop with no taxes on it. He can pay for this computer for four years, about 15 dollars a month.

When it comes to the Internet, we used to have a monopoly in the fixed network. Now we are working on this... Last week a company named Meta launched their services -- WiMax, based on Motorola. And the prices are OK now. Comparing the prices of 2007 and now, they're less than 50 percent of what they used to be. The government also reduced the sales tax on the Internet from 16 percent to 8 percent. I have a meeting with the minister of finance -- next week I will meet with him to try to get him to reduce it to zero. Also the tax on computers will be zero.

What we're doing is infrastructure, building a fiber-optic network that will reach all the schools. We will use it to provide Internet service to the villages. We will ask the ISP operator: Go to these schools and use it as a connection point that you can distribute to the houses in the village.

What's the status of 3G wireless, which has been delayed a few times?
Al Rousan: The regulatory body for telecommunications is conducting an auction for the spectrum, for 3G. Hopefully by the end of (April) they will finish this process and they will be able to distribute the spectrum for the operators. It could be new operators or existing operators using it.

We've also started talking to some techical companies, like Qualcomm, about a computer that costs less than $100, which connects to 3G wireless. You have a keyboard only and it connects to the television and you can be connected to the Internet. It's cloud computing -- subscribers can use it instead of having a sophisticated computer.

"Watchmen" and other pirated DVDs are on sale in Amman, Jordan, for a little over $1 each

(Credit: Declan McCullagh)

If I have my numbers right, Jordan's official goal is to have an Internet penetration rate of 50 percent by 2011. Are you on track?
Al Rousan: As of 2008, penetration of the internet is over 24 percent. Revenue in the sector is over $2 billion. The number of employees working in this sector is about 22,000.

I know you've attracted investment from companies like Microsoft, and as of 2005, at least, foreign direct investment was around $100 million. What's your plan to increase this?
Al Rousan: What we are doing actually is the cabinet agreed to have a new (free-trade zone) for the telecommunication and IT, which starts by next year. They're started to develop it. In Amman, we think that having such an area will be very attractive especially now if you're comparing Jordan to the other countries around us, in many aspects from manpower, education, security, the price of real estate, and so on. The other thing which is very important is that most of our engineers work outside Jordan in the Gulf area. Now our plan is to bring them back, and instead of sending them there, have business come to Jordan.

We are now focusing on more businesses like call centers, for instance, which will serve banks, insurance companies, in the whole area, in the Gulf.

Will these be in Arabic or English?
Al Rousan: Both. And in Spanish. One company has a section that serves the Spanish language.

One of the biggest advantages in Jordan is the accent. In English and Arabic, we have a neutral accent. Here, especially in the Gulf area, our accent is almost the same as their accent. The other area we focus on is technical support and maintenance, having a technical center here in Jordan that will support companies and products like Cisco, for instance. They have a tech center here that employs about 80 IT engineers supporting the Gulf area. And part of southern Europe.

I believe the U.S.-based Web site ArabTimes.com is blocked because of its political content. How do you reconcile this with a liberal approach to Internet regulation-- will sites like ArabTimes.com continue to be censored by the government?
Al Rousan: There is a new law for telecommunications and audio visual services. The two entities will be in one law. According to the law there will be no censoring of the Internet.

When will this take effect?
Al Rousan: It is already in the law that the Internet is not censored. I think most of the government knows they cannot block it. It's a waste of time and money. This is what our policy is, not to try to do this. The problem we are facing is to convince many of the families, many parents don't want the Internet because they're afraid for their children. They want to guide their children and to tell them what to do or not to do.

But tomorrow or the day after they will go to their friends or an Internet cafe. It's better to have it in the house. The family and the government, we cannot stop those things. We have to deal with it in a different way. If you're a family, you have to educate your children.

Now we have a political Web site where they write many things, much of it good, much of it bad, depending on rumors. Nothing solid. There is no law which will excuse them for publishing such things on the Web site. Should these journalists be prosecuted? There's a debate over whether the law should apply.

The Wall Street Journal and the Heritage Foundation publish an annual index of economic freedom. The survey says Jordan doesn't have a higher rank because it's too difficult to start a business, too difficult to close a business, the size of the government is too large, and there are restrictions on foreign investments over 50 percent in many sectors. Is this a reasonable criticism?
Al Rousan: The government tries to do their best to make this easier. There's a Parliament -- how do you deal with a Parliament that imposes taxes on telecommunications to support animal feed? They want to impose a tax on telecommunications to support animal feed. We managed to stop that. I'm trying to make you understand that Jordan is still a new country, historically. We're still not that educated about business and what it can do. So it's not always easy to make things happen.

You mentioned that foreign investors can't own more than 50 percent of a company. Yes, they can. They can go through the Cabinet. Every month we approve some. According to the law it's 50 percent unless the Cabinet approves, and we do that. The government is in favor of making things easier but the Parliament -- there are two forces opposing one another.

I agree with you, to start a business it's difficult. But once you're in the system it's smooth.

And this will be easier with the free zones, less regulation in general?
Al Rousan: Exactly. This will be used for industry, shielded from bureaucracy.

Store in Amman offering just-over-$1 pirated DVDs for sale.

(Credit: Declan McCullagh)

In downtown Amman yesterday, I found pirated DVDs of movies such as the Watchmen on sale in storefronts for 1 Jordan dinar (about US$1.41). My relatives here in Jordan told me I overpaid and could have found them elsewhere for about half a dinar. What's the government's view on commercial sale of pirated videos?
Al Rousan: You can read in the newspaper there's a raid, that they've confiscated these products. We signed an agreement with Microsoft, signed an agreement with Oracle...

What about not software licensing inside government agencies, but enforcement of copyright laws in general?
Al Rousan: Not just in the government, but outside as well. Now we're trying to establish an IT industry here. This is very important for us also. The law is very strict on these things. One way or another you cannot stop people from importing these...

Are you talking about imports from Syria?
Al Rousan: Syria and other places. You can also download them over the Internet. But the government is very strict: we get hundreds of millions of aid every year from the United States.

Under Jordanian law, is there a difference between pirated software and pirated DVDs?
Al Rousan: No, it's the same. It protects both. It's like the drug trade. You can try to stop it, but you cannot do it. There's always a way to get around it.

Is Jordan planning to adopt open-source software in government agencies?
Al Rousan: It will cost you more, by the way. We are working in the hospital sector, using open source. I think that in the beginning, the cost will be higher. In the long run it could be better.

You have to develop software to interface with the open source, which will cost you more. A country like Jordan cannot afford such things.

Any last thoughts?
Al Rousan: I think here in Jordan, the seeds are here. It needs somebody who can use it to get to harvest. A company whose operations in an area are very expensive, they can come to Jordan and find everything they need. In jordan, we have more than 6,000 graduates a year in information technology. Jordan doesn't have natural resources, so we depend on people. Software is one of the things that can succeed in Jordan.

Editors' note: This is a guest post. See Michael Songer's bio below.

Throughout the 1990s and 2000s, we have seen a number of well-known legal disputes: legality of peer-to-peer services such as Napster and Grokster, cybersquatting, laws (trying) to regulate porn, even "veejay" Adam Curry trying to use the MTV domain name.

As we head into 2010 and beyond, here are some legal issues that are likely to careen through cyberspace in the next few years.

1. Lawsuits related to stupid/silly conduct shown on the Internet.
The assimilation of broadband brought with it those "viral videos": Star Wars Kid, Numa Numa Dance, Aleksey "Impossible is Nothing" Vayner, and the like. The latest fad seems to be taking videos of crude behavior and posting it for all to see--think of the two girls bathing in the Kentucky Fried Chicken kitchen, or the Domino's employees creating a "special" meal for a customer.

Someone will be offended, someone will sue. In some cases, the lawsuits make sense (violating health codes for the KFC and Domino's videos); in other cases, they don't (Star Wars Kid sued, and Aleksey Varner threatened a suit, though the legal basis for these is shaky).

Expect to see a rise in these types of lawsuits related to conduct shown on the Internet and calls for Congress to do something. What, exactly, can be done is less clear; it's hard for the legal system to regulate conduct that, while not breaking the law, is merely stupid. But that won't stop people from trying and lawyers from garnering headlines.

2. Lawsuits related to social media.
The last few years have seen a number of lawsuits brought against Facebook and MySpace for conduct occurring on those sites--think of the Megan Meier case (Megan Meier was the teenager who committed suicide after a woman pretended to be her friend, and then turned on her).

The government prosecuted the offender in that case, though the legal basis for the prosecution is less than clear, and an appeal is under way. And there have been calls for regulating what you can and cannot do (no sock puppets!) on these sites.

These are likely to continue for the simple reason that more and more people are using these new technologies. With that increased use comes the increase in libelous statements, crude conduct, even illegal activity (think prostitutes using Craigslist to advertise their services).

I'm sure--if it hasn't already happened--that someone will sue over some "tweet" in the next year. Expect more of these lawsuits.

3. The next battle in the copyright wars.
The $1 billion battle between Google's YouTube and Viacom is churning away, with no end in sight. At issue is the liability of sites like YouTube for hosting content posted by others.

Like the earlier Napster decision, this case has major ramifications for content on the Internet. However, just as Napster begat legal file sharing (iTunes), consumer demand might work out a solution faster than the courts.

YouTube recently announced a deal with Sony to stream movies, with television shows on the horizon. But whatever the final outcome of the YouTube lawsuit, nagging copyright issues associated with liability and fair use of content uploaded into social sites will not go away.

Recently, the Associated Press threatened to sue aggregators and clamp down on the use of their articles, and others are sure to follow this path. Expect more content owners to use copyright lawsuits to shape what we view and read on the Internet.

4. Blogger liability for the comment section.
Currently, bloggers cannot be sued for libelous statements posted in the comment section of their blogs. Something called "section 230" (after the particular legal code) immunizes bloggers from legal harm caused by another's comments (bloggers, however, can be sued for libelous statements that they post).

This immunity was enacted in the mid-'90s and was designed to protect the "publishers" on the Internet at that time: the AOLs, CompuServes, and ISPs that enabled Internet access. The law never contemplated the explosion of bloggers, MySpace authors, and other "social publishers." And the law never contemplated the accompanying (usually anonymous) comments to those posts, as well as the ill will associated with the all-too-common flame wars.

Several courts have expressed dissatisfaction with the blogger immunity--particularly when the blogger knows that the comments are defamatory or wrong. Expect more challenges to this immunity, and perhaps calls for Congress to roll back section 230.

5. The taxman cometh.
Anyone who has read a phone bill has seen a dizzying array of taxes, assessments, and special charges. Your Internet access is free from such taxes until at least 2014, due to Congress and the Internet Tax Freedom Act. The law, passed in 1998 and extended by the Bush administration, prohibits federal, state, and local governments from taxing access to the Internet, and it bans "Internet-only" taxes such as bandwidth or e-mail taxes.

States remain free to tax sales on the Internet.) Of course, that was before the current economic crisis, and the general rise in taxes on everything from mobile phones to cigarettes. A bill has been introduced to make the tax ban permanent, but nothing is "forever" with Congress. Expect to see calls for Congress to tax these areas before 2014.

Of course, given a steady pace of new Internet technologies that allow different ways for humans to interact with one another, more unique, complex, and downright strange events will occur that give rise to legal disputes. (Think "upskirt" cams.)

The legal system is flexible and has dealt with much over the last 10 years, in many instances driving Internet growth in ways both good and bad. The next 10 years promise much of the same.

SAN FRANCISCO--A federal judge sealed a courtroom on Friday after attorneys for the Motion Picture Association of America and another Hollywood group claimed that confidential information might be disclosed during testimony about DVD-encryption technology.

U.S. District Judge Marilyn Patel kicked the public out of the courtroom at around 2:30 p.m. PDT, overruling objections from CNET News and RealNetworks, which also said it opposed the unusual request.

An attorney for the DVD Copy Control Association, which is involved in a lawsuit here over DVD-backup software sold by RealNetworks, said details about the technology used to encrypt DVDs justified the request to give the public the boot during witness testimony--which, according to legal precedent, should be reserved only for rare cases.

"I find that this does meet the requirements for a trade secret," Patel said. "We're going to protect what needs to be protected. I'm ordering everyone not signed off on a confidentiality agreement to leave the courtroom."

"The MPAA is trying to seal proprietary specifications," said DVD-CCA attorney Reginald Steer. He added: "This is critical to our presentation."

Steer said the trade secrets related to licensing technology and CSS, or Content Scrambling System, which is an algorithm used to encrypt DVDs. DVD-CCA once filed a lawsuit against programmer Jon Johansen, who wrote a DVD-descrambling utility that circumvented CSS--a suit that had the unintended consequence of publicizing the code widely, including on ties, T-shirts, and at least one haiku poem.

Corynne McSherry, an attorney at the Electronic Frontier Foundation who has been following this case and was in the courtroom, said Patel chose an unfortunate procedure when barring the public from the room on Friday.

"She implied that we should have filed a motion preemptively," McSherry said. "If that's true, the public shouldn't have to go to court to make the courtroom stay open...Presumably the plaintiffs had known for months that they were planning to close this hearing. This is not the right way to do it."

CNET News contacted the MPAA in advance and asked if the group would attempt to close the courtroom on Friday; the MPAA replied earlier this week it would not seek to do so.

The MPAA, the lobbying group for the six largest film studios, alleges that RealDVD violates the Digital Millennium Copyright Act (DMCA) because it bypasses the copy protection built into DVDs. The DMCA generally restricts companies from developing products that circumvent antipiracy protections, but Real says that its RealDVD product complies with the law.

When arguing for the courtroom to be cleared of anyone that was bound by a non-disclosure agreement, attorneys for the DVD-CCA acknowledged that some of its technology had been cracked and published on the Web. But, they said, that information represented only a small fraction of the keys, algorithms and other trade secrets which have never been appeared publicly.

Details about CSS and Johansen's DeCSS code --which was the subject of an injunction nine years ago by a court in New York--is widely distributed including through a online gallery published by a Carnegie Mellon University researcher. In addition, programs like the DVD-descrambling utility Handbrake are in common use.

Patel's initial response in the morning seemed skeptical. She joked that if DVD-CCA and the MPAA wanted to close the courtroom, "You should have gotten yourself a private judge. This is an open forum."

Under long-standing U.S. law, courtrooms are open by default. The 9th Circuit Court of Appeals, which is binding on Patel, has said that judges considering closing a courtroom or sealing records "must provide sufficient notice to the public and press to afford them the opportunity to object or offer alternatives. If objections are made, a hearing on the objections must be held as soon as possible."

Once that hearing is held, the courtroom can only be closed if specific conditions are met, including that there are no alternatives that are practical. Also, the judge must "make specific factual findings," and not just claim it was necessary.

A CNET News reporter objected to the courtroom closure. CNET News' publisher, CBS Interactive, is weighing its options in terms of a legal challenge. CNET intervened last year in federal court in a case pitting Facebook against ConnectU to unseal documents, a dispute that ended up before the 9th Circuit Court of Appeals.

Updated 12:55 p.m. PDT to add more background.

Updated 3 p.m. PDT to note the courtroom had been closed.

Vice President Joe Biden lauded Hollywood at a gala dinner in Washington, D.C. on Tuesday evening, assailed movie piracy, and promised film executives that the Obama administration would pick "the right person" as its copyright czar.

Just days after four Pirate Bay defendants were found guilty in Sweden, Biden warned of the harms of piracy at a private event organized by the Motion Picture Association of America in the sumptuous, newly renovated Great Hall of the National Portrait Gallery in Washington, D.C.

"It's pure theft, stolen from the artists and quite frankly from the American people as consequence of loss of jobs and as a consequence of loss of income," Biden said, according to a White House pool report.

Biden blasted China, saying its intellectual property laws remain "largely ineffective" and will end up "strangling their own creative juices," and compared it to what he described as India's more effective anti-piracy regime. He singled out Canada, a close U.S. ally, as needing stronger laws; it never signed the treaty that led to the Digital Millennium Copyright Act, and a proposal to adopt anti-circumvention restrictions was never adopted.

He also addressed President Obama's forthcoming decision about who will be named the intellectual-property enforcement coordinator, better known as the copyright czar. Copyright industry lobbyists sent a letter Monday to the president asking him to pick someone sympathetic to their concerns, while groups that would curb copyright law sent their own letter urging the opposite approach.

We "will find the right person for intellectual property czar," Biden said.

Under a law approved by the U.S. Congress last October, Obama is required to appoint someone to coordinate the administration's IP enforcement efforts and prepare annual reports.

Senators attending the MPAA gala included Richard Durban (D-Illinois); Sheldon Whitehouse (D-R.I.); Frank Lautenberg (D-N.J.), Judd Gregg (R-N.H.); Amy Klobuchar (D-Minnesota); Patrick Leahy (D-Vermont); Roger Wicker (R-Mississipi); and Ben Nelson (D-Nebraska).

An unspoken reason for the MPAA event--which included a symposium earlier in the day with remarks from top House Democrats and Commerce Secretary Gary Locke--was the loss of $246 million in tax breaks when the Senate revised the economic stimulus bill earlier this year. An MPAA report released Tuesday appears designed to avoid a repeat of that setback, listing the number of movies being filmed in each state.

Earlier in the day, Locke also talked up more government action against peer-to-peer piracy. "The recent revelation that an illegal copy of the upcoming movie "Wolverine" had been posted on the Internet prior to its theatrical release underscores the problem the industry faces...As a former prosecutor, I believe in the full and impartial enforcement of the law," he said.

On copyright, President Obama has signaled a more pro-industry approach than his predecessor, which has alarmed advocates of less restrictive laws.

The president chose as top Justice Department officials the music industry attorney who pulled the plug on Grokster and another longtime Recording Industry Association of America ligitator. The Obama administration recently sided with the RIAA in a file-sharing suit, and Biden was a staunch RIAA and MPAA ally as a U.S. senator.

"I think sometimes you underestimate the impact you have, and not just entertaining but uplifting," Biden told the audience at the MPAA event. "I wish I could inspire the way you do."

As industry and public interest groups wait for the president to fill the remaining positions in his administration, such as the new position of intellectual-property enforcement coordinator, opposing sides of the copyright debate are speaking up.

The Copyright Alliance, along with 40 other groups representing intellectual-property holders, sent a letter (PDF) to President Obama on Monday arguing that intellectual-property protection stimulates creativity and creates jobs.

The letter was sent in response to an earlier letter, sent by 19 different groups, that urged the president to choose administration officials who "reflect the diversity of stakeholders affected by IP policy."

The April 2 letter, signed by groups including Public Knowledge, the American Library Association, and the Consumer Electronics Association, said that, "To date, several of (Obama's) appointees to positions that oversee the formulation and implementation of IP policy have, immediately prior to their appointments, represented the concentrated copyright industries."

The president has, in fact, filled out some high-level Justice Department positions with lawyers favored by the copyright industry, including attorneys who have represented the Recording Industry Association of America and the Business Software Alliance. The signatories of the April 2 letter said the Justice Department's intervention last month in favor of a record label in a file-sharing case heightens their concern.

"We ask you to consider that individuals who support overly broad IP protection might favor established distribution models at the expense of technological innovators, creative artists, writers, musicians, filmmakers, and an increasingly participatory public," the letter said. "Overzealous expansion and enforcement of copyright, for example, can quash innovative information technologies, the development and marketing of new and useful devices, and the creation of new works, as well as prohibit the public from accessing and using its cultural heritage."

The letter also asks the president to create new offices in agencies like the State Department dedicated to promoting innovation, to counter the enforcement-focused IP enforcement coordinator position.

The letter sent Monday by groups like the Directors Guild of America, the Entertainment Software Association, and Time Warner countered that "enforcement of copyrights and patents and protecting the freedom to create and be compensated for it are essential components of promoting the progress of sciences and arts, as articulated so clearly by our Founding Fathers in the U.S. Constitution."

IP protection and promoting innovation are not mutually exclusive, the letter continued.

"Intellectual property drives innovation and creativity, from the production of new creative works to the development of consumer electronics and medicine," it said.

The letter sites research indicating that the creative industries employ 38 million U.S. workers and points out that copyright and patent protections apply to a number of different businesses including movies, visual arts, video games, computer software, and pharmaceuticals.

The intellectual property holders said in their letter that Obama's administration is diverse in experience and perspectives and that the president's appointees so far have been solid choices.

"We have every confidence these hallmarks will be demonstrated in your future IP policy appointments," their letter said.

Corrected April 13: An earlier version of this story incorrectly characterized the source of Consumer Watchdog's revenue.

A proposed settlement in a copyright lawsuit involving Google's book search has drawn applause, envy, and from a handful of critics, an attempt to derail the deal.

The settlement covers orphan works, meaning books that are still copyrighted but whose copyright holders can't be located. Google would like to scan in and digitize those books as part of its efforts to create a digital library of impressive breadth and scale.

Millions of orphaned works are currently hidden away in library stacks, sometimes ignored because anyone who attempts to digitize them may be subject to copyright infringement. It's unclear whether the owners of these works will ever resurface.

For books, Congress has tried--and failed--to address those concerns for individuals interested in using material from copyrighted but orphan works. Now, under the terms of its settlement related to its Google Books Library Project, the Mountain View, Calif., company is essentially trying to adopt the whole orphanage.

For advocates of free online access to books, the Google Books initiative, which is digitizing the works of several major libraries, may seem like an entirely positive development. Google faced lawsuits from publishers and authors, however, for allegedly "massive" copyright infringement, and eventually agreed last year to a settlement.

While most groups concerned with Google's singular access to orphan works are considering filing briefs with the court before a June 11 hearing, at least one group, Consumer Watchdog, is asking the Justice Department to intervene and plans a meeting on Monday with department officials.

"Google's going to have an unfair advantage against any competitor because they will have already settled this issue," said Consumer Watchdog President Jamie Court. (Consumer Watchdog is a California-based advocacy group that opposes what it calls "big business" lobbyists; its budget was about $3 million in 2007.)

In addition, an article at Wired.com last month noted that a group at New York Law School that plans to file legal objections is bankrolled by Google arch-rival Microsoft.

The future of orphan works was left unsettled last year when the Orphan Works Act of 2008, which passed in the Senate, failed to make it out of committee in the House of Representatives. The bill would have enabled individuals or entities to use orphan work material under certain terms, given they made a diligent attempt to first find the rightful owner.

The issue has fallen by the wayside in Congress as politicians focus on President Obama's priorities, and the House and Senate judiciary committees focus on patent reform. The proposed settlement has made the topic timely again, though, for those interested in seeing orphan works made available for online consumption.

Complicated Terms
Because the settlement resolves a class action suit, authors have the right to "opt out" of the agreement. If the authors do not come forward, however, the terms of the settlement say Google has the right to digitize their work. So while Google will be free from liability if it chooses to digitize these works, other groups interested in using them will still face the risk of violating copyright.

For its part, Google said on Friday that it stands behind its letter to the U.S. Copyright Office from 2005, in which it laid out suggested rules for orphan works, including that a "reasonable search" for the owner should limit liability for infringement under copyright law.

"We strongly support an approach to orphan works that would truly remove legal and practical deterrents for good faith re-users to move archival treasures off of dusty shelves and into circulation for the public's benefit," Google lawyer Alex Macgillivray said in a statement Friday to CNET News. "Effective orphan works legislation should provide a clear, 'objective' standard for defining a diligent search, so that users who meet this standard can rest assured of their safe harbor without undue legal uncertainty."

The settlement still needs to receive court approval, and a number of parties may raise concerns with the court over the far-reaching, and somewhat surprising, terms of the settlement. Concerns about public access to orphan works may be of no concern to the court, however. Judge Denny Chin of the Southern District Court of New York is responsible for approving a settlement that is fair to the class that brought forth the suit--not a settlement that meets what some advocacy groups say is a more compelling, broader public interest.

"There's a deep cleverness" to the settlement, said Pamela Samuelson, a professor at the University of California at Berkeley and co-director of the Berkeley Center for Law and Technology. "Google is getting something that no one else can get."

So what does this mean for the future public access of orphan works?

A handful of scenarios could play out that would impact access to the books. Antitrust authorities could intervene in the settlement, or Congress could pass legislation to allow for other mass digitization projects.

Other companies could try to replicate Google's strategy of undertaking a digitization project and working out a settlement. Or the judge could reject the settlement, and Google could press on with its fair use case.

Consumer Watchdog is appealing to the Justice Department on the grounds that the orphan works situation, along with another provision of the settlement, both create barriers for other companies interested in digitization efforts. The group believes the department could potentially ask a court to compel Google to sub-license the orphaned works if the settlement is approved.

Could Congress interfere?
While Consumer Watchdog's Court thinks the Justice Department may be the most likely entity to intervene, he said "if Congress wants to step up, it would certainly level the playing field."

The Orphan Works Act of 2008, as well as its earlier versions, could not have been practically applied to a mass digitization project such as Google's, since it required the user to seek out the rights holder for every work in question.

The Authors Guild, a group representing more than 8,000 authors that was a party in the settlement, said it would likely favor legislation that would give other entities the same access to orphan works as Google will acquire in the settlement.

"It would depend on the details," said Paul Aiken, executive director of the Authors Guild. "There are a lot of things built into the Google agreement, such as security protocols, no-download rules, that protect the rights holders of orphan works."

While there's no indication any such legislation will be introduced, Aiken said it may be more easily pursued, thanks to the settlement.

"We'd have a template for a way that it can work in which rights holders' interests are protected and yet works are made available," he said.

Legislators should wait for authors to come forward, though, to claim their potential earnings from the settlement. He said the number of orphan works has already begun to shrink, thanks to the settlement.

"Eventually you wind up with a group (of books) that really are orphans, even with the incentive of the settlement," he said. "Those are the works that something may have to be done about and probably are the proper subject of legislation."

Google, not surprisingly, strongly supported orphan works legislation in the past.

However, "one has to wonder if they acquire this settlement whether or not this level of interest will continue," said Peter Brantley, the director of access for Internet Archives, a nonprofit founded to build an Internet library, which is opposed to the settlement. (Google on Friday reiterated that it has "long supported and continues to support" such a law.)

"There's a complex mix of renewed interest (in orphan works) but an attenuation of interest in major actors like Google because they got what they want," Brantley said.

Of course, there is the possibility the settlement could be rejected.

"If it were up to me, I'd rather have Google win the fair use case," said Samuelson. "Then other mass digitization efforts could happen. I think they had a pretty good shot at it."

The French parliament on Thursday voted down an Internet piracy law, which had largely been expected to pass.

(Credit: Assemblee Nationale)

The "Creation and Internet" law, which won the preliminary approval of the parliament last week, would compel Internet service providers to take graduated actions against customers accused of illegally downloading copyrighted material. After warning a customer against such actions for a third time, an ISP could suspend the person's Internet access for up to a year.

Because the bill was expected to pass, few members of parliament were present for the final vote on the bill, according to the Associated Press. Opponents of the legislation, led by the Socialist party, rejected the measure by a vote of 21 to 15.

The legislation had the support of the ruling UMP party, to which President Nicolas Sarkozy belongs, as well as the support of the Recording Industry Association of America. Backers of the bill intend to re-introduce an amended version within the coming weeks, according to reports.

The entertainment industry has suggested to the United States' Congress that it should consider adopting European methods of combating copyright infringement. The United States, members of the European Union, and other countries may also consider making ISPs liable for infringement through international treaties.