Innovation Policy Post

Breadth and Depth: Expand the Number of TPP Countries and Promote Internet Trade

Today, CCIA sent letters to the United States Trade Representative (USTR) expressing our desire to see Canada, Japan and Mexico�s unconditional participation in the Trans-Pacific Partnership (TPP) talks.

Twitter�s Difficult Choice: The Unenviable Position of U.S. Internet Companies

Yesterday, Twitter announced that it had created a targeted solution to removing locally �illegal� material on a country-by-country basis. Perhaps understandably, the company has been accused of abetting censorship, particularly because Twitter is one of the online platforms that has played such an important role in empowering traditionally silenced minority groups, democracy activists and protestors around the world.

CCIA's Response To EC's Data Protection Proposal

Yesterday the European Commission released their proposal for a new data protection law for the European Union. While CCIA is glad to see the EU working on updating the old Data Protection Directive from 1995, there are some aspects of the proposal that are serious cause for concern and we believe must be addressed if the new regulation is going to be an effective balance between the privacy rights of users and the innovation that drives new business on the Internet.

A few of our biggest concerns have to do with a blanket opt-in requirement, the concept of a �right to be forgotten,� and a 24 hour notice requirement in cases of data breaches. These elements have the potential to seriously disrupt expected web browsing experiences, place wildly disproportionate burdens on data collectors, or present a serious conflict with freedoms of expression.

State of the Union From a Tech Perspective

Tech industry advocates could easily spot some longstanding items from the innovation agenda within President Obama�s State of the Union address Tuesday night.

President Obama said �innovation demands basic research.� He warned Congress not to gut these programs when they balance the budget. Obama reminded them that federal research is what led to innovations like the computer chip and the Internet.

Supreme Court Rules Against GPS Tracking Without Warrants

The Supreme Court today issued an opinion

in the case of United States v. Jones,

concerning whether the police needed a warrant before they placed a GPS tracking device on the underside of a suspect�s car. In a unanimous decision, the Court upheld the DC Circuit�s opinion holding that the police should have had a valid warrant, but gave a different rationale.

CCIA is glad to see the Court uphold the important idea of location privacy, however we would rather have seen the majority opinion deal with the inherent questions of location tracking, rather than the particulars of physical trespass. We are happy to see, however, that at least five of the Justices were interested in taking a broader view, and found at least some privacy right in locational data, regardless of how it was collected.

Congress Puts PIPA, SOPA On Hold After Internet User Uprising

Some citizens, Congress members, and organizations have been fully aware of the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA) and the threats they pose for months now.

CCIA Joins PIPA/SOPA Blackout

The Computer & Communications Industry Association blacked out its website Wednesday, along with a countdown clock to the Senate's planned vote on its flawed legislation January 24.

European Commission Presents E-Commerce Action Plan

On 11 January 2012 the Commission presented its Communication on e-commerce. The Communication sets out an action plan to double online sales and the share of the Internet economy in EU GDP by 2015. To this end, the Communication aims to address the still fragmented nature of Europe�s digital market and highlights five policy priorities:

- Develop legal and cross-border offers of onlineproducts and services

- Improve operator information and consumer protection

- Reliable and efficient payment and delivery systems

- Combat abuse and resolving disputes more effectively

- Deploy high-speed networks and advanced technological solutions

DOJ Investigating Verizon Cable Deal

One day after the AT&T�s takeover bid for T-Mobile collapsed, now it�s the other Bell that�s trying to eliminate competition. Verizon is as aggressively ambitious as AT&T � it�s proposing to work with the cable monopolies to significantly curtail competition in both the wireless and fixed broadband markets.

According to Bloomberg, Verizon�s recent deals to acquire spectrum from cable companies are under investigation by the Department of Justice.

Startup Act Could Unleash the Power of Entrepreneurship

Last week, Sen. Jerry Moran (R-KS) and Sen. Mark Warner (D-VA) introduced S. 1965 (the Startup Act). CCIA applauds the bill as a farsighted proposal to unleash the power of U.S. entrepreneurs and harness it for the creation of jobs. In particular, CCIA commends Sen. Moran and Sen. Warner for their focus on attracting and retaining entrepreneurial talent, and for including provisions on conditional visas for advanced STEM degree holders and immigrant entrepreneurs.

Response To Attack On Opponents Of SOPA

While we join with Net Coalition in providing legislative language responses to H.R. 3261, we feel it is also important to separately clarify our industry�s view of itself and our role in the process of finding intelligent, balanced approaches to the challenges and opportunities resulting from the rapidly changing and often confusing digital and Internet world.

CCIA, our member companies, and many others in our industry are deeply proud that at the core, our businesses also serve extremely important public interests.

CCIA to Congress: Don't Restrict FCC Spectrum Auction Authority

Last night the House of Representatives passed HR 3630 - legislation extending payroll tax cuts. Tucked into the bill is authority for the FCC to conduct incentive auctions of wireless spectrum.

privacy and our antiquated thinking

SOPA Markup This Thursday: What You Can Do Now To Save the Internet

What�s at stake and why should I care?

Rebecca MacKinnon�s recent editorial in the New York Times says it well:

�Compliance with the Stop Online Piracy Act would require huge overhead spending by Internet companies for staff and technologies dedicated to monitoring users and censoring any infringing material from being posted or transmitted. This in turn would create daunting financial burdens and legal risks for start-up companies, making it much harder for brilliant young entrepreneurs with limited resources to create small and innovative Internet companies that empower citizens and change the world.�

Clinton Says Countries Must Prioritize Internet Openness, Freedom

Secretary Hillary Clinton told audiences connected in online broadcasts throughout the world Thursday that Internet freedom is a human rights issue and keeping the Internet open is a top diplomatic priority for the United States. The Netherlands hosted the Internet freedom event in the Hague along with a panel discussion at the Newseum in Washington DC.

Online Taxes On House Agenda

Online taxes has become a focus on Capitol Hill with various competing bills and last week the House Judiciary Committee held a hearing on �Constitutional Limitations on States� Authority to Collect Sales Taxes in E-Commerce.� CCIA member eBay�s Vice President and Deputy General Counsel Tod Cohen was among those testifying before the Committee.

European Court delivers Crucial Anti-Filtering Judgment

After the encouraging opinion of Advocate General Cruz Villal�n in the Scarlet vs SABAM case delivered in April 2011, the Court of Justice of the European Union (CJEU) gave its final judgment on 24 November. One can say that the judgment is crucial for the Internet economy in general and for Internet Service Providers (ISPs) in particular, in two important ways. First, it clarifies and strengthens the �no general obligation to monitor� provision enshrined in the e-Commerce Directive and, second, it makes clear that filtering measures raise concerns under a couple of fundamental rights, which have to be reconciled as much as possible. But let�s first turn to the facts of the case.

Growing Opposition Renders SOPA DOA

Days after an unbalanced Congressional hearing on a bill to crackdown on online copyright infringement, a government cybersecurity expert has written to Congress warning H.R. 3261 would �negatively impact� cybersecurity -- and not be effective at the stated goal of reducing piracy.

So far House Judiciary Chairman Lamar Smith has not responded to news media inquiries about the warning letter from the director of Sandia National Laboratories.

CCIA Testifies On China Internet Censorship

CCIA President & CEO Ed Black told a joint Congressional committee on China Thursday that the government must do more to combat the burdens on US businesses from Internet censorship in China.

European Parliament adopts Resolution on Net Neutrality

A week after the U.S. Congress considered repealing its open Internet rules, the European Parliament stressed the importance of a neutral and open Internet at its November plenary session.To this end, it adopted a non-legislative Resolution �on the open internet and net neutrality in Europe,� which calls on the Commission to ensure a uniform enforcement of the existing regulatory framework for communications and to enhance transparency in current traffic management practices.

Thai for Two?

What do the MPAA, the RIAA, the U.S. Congress, and the perennially human-rights-challenged Thai government have in common? A similar taste in misguided regulations with draconian flair.

SOPA Hearing Demonstrates Need For More Expertise

The Stopping Online Piracy Hearing began Wednesday morning with six witnesses -- 5 supporting the bill to hold Internet companies and other intermediaries liable for copyright infringing material on their website.

Supreme Court Hears GPS Tracking Case

The Supreme Court heard oral arguments yesterday in the case of United States v. Jones, which questions whether the police must have a valid warrant in order to place a GPS tracking device on a person�s car and track their movements all day every day for a month. The government argues that they should not, but we believe the judicial oversight of a probable cause warrant is essential to control against abuses of modern technology that have the potential to reveal enormous amounts of information about us all.

CCIA Files FCC Comments On DISH National Broadband Network

CCIA filed Reply Comments with the FCC Thursday advocating that DISH Network be permitted to move forward with its planned launch of a nationwide wireless broadband network.

Initial Thoughts On House Online Piracy Bill

On initial glance H.R. 3261, the Stop Online Piracy Act, introduced in the House this week, is twice was long as its Senate counterpart the PROTECT IP Act and proposes broad, sweeping Internet regulation.

Privacy Panel Caps Week Of Events Marking ECPA's 25th Anniversary

Today marked the end of around ten days of events surrounding the 25th anniversary of the Electronic Communications Protect Action, though by no means is it the end of our reform efforts. It was a week full of press conferences, panels, and even a party, all of which served to highlight the problems in the law and the need for reform.

Today�s panel continued that trend, bringing together a group of people that many may have thought opposed to the proposals to reform ECPA, but who clearly see the need for reform. As if to emphasize that need, Google this week released its latest set of data on the requests for information that it receives from governments around the world. The sharp increase in requests during this period is just one example of the importance of reform.

The Premier League Case � Opportunities For The Single Digital Market

At the beginning of this month the Court of Justice of the European Union (CJEU) handed down its judgment on the long-awaited �Premier League rights� case. The legal dispute arose in the UK involving exclusive broadcasting licenses for the live transmission of Premier League soccer games that prohibit the use of decoder cards bought from foreign broadcasters. The FA Premier League (FAPL), the licensor of Premier League live matches, licenses these transmission rights on a country-by-country basis under terms and conditions that vary widely across the EU. By engaging in simple price arbitrage some pubs obtained cheaper decoder cards from abroad circumventing the exclusive licensing structure operational on UK territory.

Continued Concerns about the Senate�s PROTECT IP Bill, with a House Bill Likely to be Introduced Soon

There may not be extensive overlap between the beliefs and values of members of the Tea Party and the tech sector, but the threat of excessive government regulation and control over the Internet, posed by the PROTECT IP Act, now appears to have united them on at least this front. Rep. Michele Bachmann (R-Minn.) recently sent out a letter stating: �While I understand the importance of safeguarding Americans' intellectual property rights, I have serious concerns about government getting involved in regulation of the internet, and about ambiguities in this legislation which could lead to an explosion of destructive, innovation-stalling lawsuits.� Any attention being drawn to the dangerous authority this bill grants is useful, adding to the variety of stakeholders opposing PROTECT IP. The tech industry has also sent a letter asking members of Congress to block this harmful bill.

The PROTECT IP Act has not been introduced yet in the House, but is expected to be introduced as early as this week.

CCIA Thanks USTR For China Query

CCIA sent a letter of thanks to United States Trade Representative Ron Kirk Thursday for sending China a set of detailed questions about its Internet restrictions. The inquiry could be a step towards a formal WTO complaint if it is determined that China's restrictions violates its trade commitments.

Privacy Rules 25 Years Old Today

Today marks 25 years since President Ronald Reagan signed the Electronic Communications Privacy Act into law in 1986. In those years, technology has advanced at a rapid pace, and has given the government countless new tools to investigate and prosecute crime.

Another Bill To Tax Online Sales Introduced In House

Last week saw the introduction in the U.S. House of Representatives of another bill aimed at requiring online retailers to collect sales taxes from customers regardless of whether they have a physical presence in that state. This latest bill, H.R. 3179 (the Marketplace Equity Act), was introduced by Congressman Steve Womack, R-Ark., and Congresswoman Jackie Speier, D-Calif. It is similar to the Main Street Fairness Act introduced in July by Senator Dick Durbin, D-Ill., in the Senate and by Congressman John Conyers, D-Mich., in the House.

Cybersecurity recs from House GOP, CCIA

Cybersecurity has been the national security topic du jour for months. Earlier this year then CIA Director Leon Pannetta warned of the potential of a �cyber Pearl Harbor�, while in May the Obama Administration released its cybersecurity legislative proposal. And last week the House GOP�s Cybersecurity Task Force (CTF) released its recommendations.

Letter To House Chairmen Warns of Dangers of PROTECT IP Act

CCIA joined the Consumer Electronics Association and NetCoalition today in a letter to House Judiciary committee chairmen to caution them on the real danger to the Internet if they pass S. 968, the so-called PROTECT IP Act. The letter requests a meeting to discuss changes to the bill.

Verizon's New Privacy Policies Alarming

Earlier this week, Verizon and Verizon Wireless began sending notices to their customers announcing a change to the privacy practices of the companies and a new program of targeted advertising. The letter informed customers that Verizon would be using information about the customers, including geographic location and which websites they visit, and would be sharing that information with outside companies.

Settings On Facebook's Frictionless Sharing

Late last week, a group of organizations co-signed a letter to the Federal Trade Commission outlining concerns that they have about some of Facebook�s recent practices and announcements. CCIA believes that the FTC�s work in enforcing the unfair and deceptive practices prohibitions in Section 5 of the FTC Act is essential to protecting privacy online. However, the complaints articulated by the letter about Facebook�s new �Frictionless Sharing� program are off base and we�re confident that if the FTC explores them, it will come to the same conclusion.

Copyright Extension Issues On The Horizon

Two current stories are worth noting on the copyright term extension front. First, several weeks ago, the EU adopted a resolution that extended the copyright term for sound recordings by 20 years. While this extension was supported by record companies and collection agencies, it was not favored by artists, even though the Council of the European Union said in a statement issued after the vote that �[t]he main reason for such an extension is to allow performers to receive income for their recorded performances over a longer period than has so far been the case."

The reason for the artist opposition is because the actual owners of the copyrights are not often the artists, due to contractual terms. Extensions of copyright terms are defensible only financially. These works are already created, so the typical incentivization-to-create argument does not stand, leaving only the further-exploitation argument.

Online Behavioral Advertising in the EU � The Need for User �Consent�

The advertising industry has drafted a self-regulatory framework this year to meet legal requirements regarding the placement of cookies on Internet users� machines for the purpose of online behavioral advertising. This framework, drafted in response to legal requirements, is based on an opt-out approach. The approach would enable Internet users to obtain relevant information about the purpose of data collection, and then have the possibility to opt out of behavioral advertising schemes, if requested.

AT&T to Verizon : �We�ll Keep the World Safe for Big Telecom Mergers, You Go Kill That Pesky FCC Open Internet Rule�

Ahh, the co-ordinated effects possible between two giant duopolists.

ECPA Petition Urges Reform

CCIA has been deeply involved for a long time in efforts to convince Congress to give the Electronic Communications Privacy Act (ECPA) the attention it deserves. ECPA, written in 1986, dictates under what circumstances the government may demand a person�s information when it is stored online. The law predates much of what we know as the Internet today, such as social networking, cloud computing, and mobile technology. While Congress did the best it could with what was known at the time, the law is now showing its age in serious ways.

CCIA's new Huffington Post column

CCIA President & CEO Ed Black will be blogging regularly on technology policy and telecom policy issues for the Huffington Post. He filed his most recent post on the WTO panel discussion he led last week in Geneva on how we need to enforce existing trade agreements and better protections for Internet freedom into new ones.

Read the latest post here. Please add your comments too.

Also, the site allows you to comment search for "Edward J. Black" and sign up to get his latest post via email.

IRS Tax Prep Not A Budget Solution

CCIA has long opposed efforts in Congress to implement �Return-Free Filing�, a proposal under which the IRS would fill out tax returns and send them to the taxpayer for approval -- rather than have taxpayers fill them out themselves. We object to Return-Free due to factors such as government competition with the private sector, the IRS�s conflict of interest, and the effect on the fundamental relationship between taxpayers and government.

Search Engine Experts Tell Staffers If It Ain't Broke, Don't Fix It

Top experts on search engines told Capitol Hill staffers at an event organized by CCIA Tuesday that there is healthy competition among search engines.

Danny Sullivan, editor in chief of Search Engine Land, a website that reports on the online search market, said that it has never been unusual for businesses or advertisers to complain about where they come up in search results. What is new here he said is that businesses are arguing that their low rankings are an antitrust issue for the government to fix.

DOJ Enforces Antitrust Law on AT&T Takeover - Despite Political Pressure

The Department of Justice's decision to block AT&T's takeover of its competitor T-Mobile came as no surprise to antitrust experts. As CCIA's CEO said in his Huffington Post column, it was a "no brainer."

But still, the lawsuit was reassuring to those who have spent enough time in Washington to know that sometimes the good of the many can be trumped by the louder , politically well connected voice of one company or special interest.

CCIA commended the DOJ in a Washington Times op ed this week for standing in the face of political pressure and blocking this merger. In the end DOJ sorted through conflicting information and determined this merger would cost jobs in the short run and innovation in the long run. Again, not really news. When has a merger ever really resulted in job increases?

Tech Disappointed Patent Reform Bill Didn't Do More

The tech industry helped launch the push for patent reform six years ago, but it was not among those cheering the passage of the bill yesterday. Those applauding the loudest were those who originally fought patent reform, and instead managed to get the bill so watered down that it no longer promised real reforms.

Court Rulings Impact Cell Users' Privacy

The past week has seen two different federal court decisions that have a bearing on the privacy of your location, particularly information that can be gleaned from the use of an average cell phone.

This information, usually called "cell-site location" data, is gathered and stored by cell phone service providers in the course of their business, and it reflects which cell towers your phone uses to send and receive phone calls. Depending on the density of cell towers in a location, the accuracy of this information can range from within miles down to a city block or smaller. In the current Electronic Communciations Privacy Act, the standards for when the government may demand this information from the phone companies is not at all clear, and a mishmash of standards has arisen, mostly driven by the Department of Justice's own interpretation of the law, which requires a minimum of judicial oversight.

Independent Jobs Study Disputes AT&T�s Claims

A study performed by University of California at Irvine professor of economics David Neumark and released today confirms that AT&T's proposed take-over of T-Mobile, if approved, would cost the American economy tens-of-thousands of jobs. The study shows that AT&T would shed jobs to eliminate redundancy and overlap in the merged company and reduce overall network investment. Professor Neumark's work debunks the unsubstantiated claims AT&T has made to sell the merger to policymakers and regulators - namely that acquiring T-Mobile will lead to an increase in jobs.

CCIA Files FCC Comments Supporting Lightsquared's Proposed Wholesale National Wireless Network

On Monday CCIA filed Reply Comments with the FCC in support of LightSquared�s proposal to begin deployment of its nationwide wholesale 4G LTE network. LightSquared�s wholesale wireless network, once deployed, would expand high-speed broadband access to millions of unserved Americans, make an additional 40 MHz of wireless spectrum available for mobile broadband, spur economic growth and job creation, and increase competition in the wireless marketplace.

CCIA Asks Swiss Government to Rethink Overbroad User Surveillance Proposals

In a reaction to increasing pressures from Governments around the world to extend the scope of online surveillance, the Computer & Communications Industry Association filed a comment on the Draft Revision of the Swiss Telecommunications Surveillance Ordinance (in French).

The proposal, published by Switzerland�s Minister of Justice and Police, Simonetta Sommaruga, would provide law enforcement agencies with unprecedented authority to collect personal information and intercept Internet traffic. By extending the scope of the existing law to include all Internet providers offering a public service �on the basis of IP technology�, including foreign IP addresses, the proposed modifications would create substantial legal uncertainty for Internet intermediaries operating in Switzerland and conflicts of law for those outside.

Online Sales Tax Collection Bill Is Myopic Approach to New Model

Last Friday, the Main Street Fairness Act was introduced in the Senate by Senator Richard Durbin, D-Ill., and in the House by Congressman John Conyers, D-Mich. The bill would allow states that have signed onto the Streamlined Sales and Use Tax Agreement to require out-of-state retailers to collect sales and use taxes on purchases made to residents of their states -- regardless of physical presence.

CCIA opposes any legislation that burdens Internet retailers with the added role of acting as tax collection agencies across thousands of tax jurisdictions. Such measures effectively force electronic commerce to conform to a tax framework established on geographic location and physical presence, negating the advantages and benefits derived from innovation.

Fair Use, PROTECT IP, and Common Misconceptions

When CCIA recently released the 2011 iteration of Fair Use in the U.S. Economy, it was the second update of that report � the first having been released four years ago, as is chronicled on CCIA�s fair use page. The purpose of the report is to quantifiably demonstrate the U.S. economic contribution of industries relying on fair use, with measured criteria like GDP and employment, applying the same WIPO methodology often used to allege the costs of copyright piracy.

PROTECT IP Act Not "Noncontroversial"

CCIA is running a series of ads this week -- including this full page ad that just happened to run in The Hill's annual "beautiful people" edition today.

We're also running this electronic ad in Politico all week with info from the various letters to Congress from those opposing it:

CCIA Asks DC Circuit to Tell FCC to Rule on Monopoly Pricing for Internet Access

In January 2005, the FCC opened a rulemaking docket to the FCC�s regulation of the �special access� rates that businesses and millions of customers pay to the largest telephone companies for broadband connections to the Internet. Despite overwhelming evidence of wildly excessive pricing (profit margins for companies that control high-capacity broadband lines are over 100%), the FCC has failed to take action.

CCIA Releases Cloud Computing Paper on Capitol Hill

As more businesses and governments move their IT operations to the cloud, the Computer & Communications Industry Association released 36 recommendations Tuesday as part of a white paper on how policymakers can enable cloud computing.

Members of Congress, EU Parliament Discuss Privacy, IP

CCIA Executive Vice President Erika Mann and the former chair of the Congressional Internet Caucus Rick Boucher opened a roundtable discussion July 14 between members of Congress and the European Parliament on privacy and intellectual property as part of Transatlantic Week in Congress. Mann helped found the European Internet Foundation, the counterpart to the Congressional Internet Caucus, when she was a member of the European Parliament.

New Copyright Study Illustrates Economic Need For Balanced Policies

Congressman Jared Polis, D-Colo., welcomed the release of a new economic study on Capitol Hill July 11 saying industries that depend on exceptions to copyright law, like the tech sector and news media, are happy it has been published.

FCC Receives Thousands of Petitions To Deny AT&T Takeover of T-Mobile

FCC officials are now wading through thousands of petitions to deny AT&T�s FCC Application to takeover T-Mobile. Unlike DOJ, complaints to the FCC are public, so it takes some bravery for companies that must do business with AT&T to complain.

UK Cookie Regulations Threaten Online Business

The European Commission recently enacted a new directive that went into force last Thursday night and would strongly regulate the circumstances under which web cookies can be placed on users' computers. Cookies are small pieces of text that are stored on the user's computer and are transmitted back to the website that placed it whenever the user visits again. Cookies are fantastically useful, because they are the best way for a website to remember who you are from one page refresh to another. They enable sites like Amazon or a webmail provider to to keep you logged in as you use the service over time. They can also be controversial, however, because they allow the tracking across the web that leads to online targeted advertising.

CCIA Supports Digital Goods Tax Fairness Act

On May 23, the House Judiciary Committee�s Courts, Commercial and Administrative Law Subcommittee held a hearing on H.R. 1860, the Digital Goods and Services Tax Fairness Act. The bill would establish a national framework for how state and local taxes apply to digital goods and digital services so as to prevent multiple and discriminatory taxation. CCIA supports the bill as a way to provide certainty and fairness to the growing digital marketplace and to stop, what is in effect, the punitive taxation of innovation.

Administration Releases Cybersecurity Legislative Recommendations

Top officials from the DOJ, Commerce, DHS and DOD briefed Senate committee staffers this week on the White House's long awaited cybersecurity legislative proposal unveiled last week.

Senators Reintroduce COICA Under New Name, Same Controversial Internet Censorship Directives

Today, the blogosphere has lit up with controversy as the Bill Formerly Known As COICA was reintroduced in the Senate, sporting a new coat of paint and a freshly minted backronym: �the PROTECTIP Act.� TechDirt, Public Knowledge, Prof. Wendy Seltzer, the Technology Liberation Front, CDT, and the Electronic Frontier Foundation have all weighed in with a variety of concerns. CCIA�s statement is here.

Privacy Circus This Week On Capitol Hill

Two new pieces of privacy legislation and a hearing are keeping Congress busy this week, while the United Kingdom's Information Commissioner's Office just released a new set of rules for the use of cookies by websites.

Consumer, Business Associations Oppose AT&T Merger

Consumer and business groups voiced their opposition to the AT&T merger proposal a day ahead of a hearing on Capitol Hill. The Senate Judiciary subcommittee hearing, �The AT&T/T-Mobile Merger: Is Humpty Dumpty Being Put Back Together Again?� will be webcast.

2 + 4 = 1 Congested Wireless Network

AT&T already owns more wireless spectrum than any other mobile carrier. It also has the worst network. Now AT&T is attempting to acquire T-Mobile's spectrum.

CCIA wonders how the wireless industry can keep growing and innovating if its least competent, least efficient, and least innovative user of spectrum owns such a disproportionate amount of this vital resource.

Keep the Innovation And What Really Creates It In Mind On World Intellectual Property Day

In 2000, the World Intellectual Property Organization designated today, April 26, as World Intellectual Property Day, as it is the date on which the 1970 WIPO Convention entering into force. This date serves as an occasion to raise awareness about and celebrate intellectual property.

AT&T Lobbies Over The Heads of FCC, Cabinet Officials

Washington � AT&T has filed FCC applications to acquire another competitor. The FCC must decide whether the proposed license transfers are in the public interest. The FCC has already found deficiencies in competition among nationwide wireless carriers in its latest report. Recent Sprint deals with cash-poor Clearwire and spectrum starved non-operational start-up Lightsquared hardly alter the FCC�s market analysis.

Senators Begin Tackling Some Privacy Issues, Government Privacy Practices Pending

Senators Kerry and McCain introduced a privacy bill yesterday, that aims to protect consumers without unnecessarily burdening privacy industry. Privacy, trust, and innovation can go hand in hand and the Kerry/McCain bill is a great start to achieving that. Consumer privacy, however, is not the last word, and Congress must also act to strike a balance in government surveillance that reflects modern conceptions of privacy online.

CCIA's Requested Comments on Europe's IPR Enforcement Directive

Brussels � CCIA stressed the importance of the Internet as a platform for artists and entrepreneurs to create, innovate and reach new markets across the world in its comments on intellectual property enforcement for the European Commission. The Commission requested public consultation on the report on the application of the Intellectual Property Rights Enforcement Directive (IPRED). IPR protection remains important, but the economic importance of European industries relying on legal exceptions and limitations to copyright, is quite often overlooked by lawmakers. A vibrant digital environment needs both.

House Hearing on Visas For Highly Skilled Workers

The U.S. Citizenship and Immigration Services started accepting visa petitions for FY 2012 for highly skilled workers this month. Last week, the Immigration Policy and Enforcement Subcommittee of the House Judiciary Committee held its hearing, �H-1B Visas: Designing a Program to Meet the Needs of the U.S. Economy and U.S. Workers.�

Why AT&T Merger Would Delay Next Generation Networks

AT&T asserts that acquiring T-Mobile will allow it to roll out its next-generation wireless network. However, what they don�t say is that the potential merger will actually delay, rather that precipitate AT&T�s (and T-Mobile�s) investment and expansion of its next-generation wireless network.

AT&T Swallows Competition - Haven�t We Seen this Movie Before?

This all seems eerily familiar. AT&T uses JP Morgan�s money to buy-out up-start competitors. The firm argues to antitrust authorities that its monopolist tendencies will provide the benefit of expanding connectedness to more Americans. Thus, the argument went, elimination of competition was really for the public�s benefit.

�opyright �orner

Repertoire Group Slapped With Infringement Suit for Performing Cage�s 4'33"
Plaintiff Says Musicians Played Minimalist Composer�s Silent Piece �Note for Note�

Washington -- John Cage broke new ground with his 1952 experimental piece 4�33�, featuring a musician sitting quiet and motionless at a piano for precisely four minutes and thirty three seconds. Now the famed silent composition is at the center of a copyright suit brought by the Recording Industry Performers Ombudsman Freedom Foundation (RIPOFF). The group claims the Kaleidoscopic Symphony performed the work without permission at a March recital.

The Spectrum Crunch and Why AT&T Deal Review Delays Relief

How should the government free up bandwidth and balance the interests of those involved? Panelists weighed in at a Brookings Institution event Wednesday �A Framework for Innovative Federal Spectrum Policy.�

Panelists including James Cicconi of AT&T, Blair Levin of the Aspen Insitute, Adele Morris of the Brookings Institute, Richard Whitt of Google, and Roger Entner of Recon Analytics agreed that the wireless broadband market is facing a �spectrum crunch.� They offered their thoughts on what the demand will mean for the prospects and outcomes of any future spectrum incentive auction as mobile broadband providers compete for spectrum.

Internet Governance Not for Governments

Recent events in Egypt and the role of the Internet make the future of governing it in terms of technical management and coordination more critical than ever.

First some history�

The National Broadband Plan After One Year

The FCC�s National Broadband Plan, released on March 17, 2010, turned a year old this week. Although the Plan is designed around a ten-year timeframe, as PC Mag notes, you have to start somewhere. So, just what has the FCC done, and not done, with its first of ten years?

Clinton, ICANN Address Future Of Internet

President Clinton spoke last night at the 40th meeting of the Internet Corporation for Assigned Names and Numbers (ICANN), currently convening in San Francisco. He urged the members of the international non-profit, which manages the domain name system to keep �stumbling forward� and to remain adaptable as it ages.

FCC To Act On Data Roaming In April?

Sprint, T-Mobile and associations representing rural wireless carriers are asking the FCC to put action on data roaming on its April agenda. In its National Broadband Plan released almost a year ago, the FCC indicated a need to issue rules on data roaming to make customers� wireless service more reliable and interoperable while preserving consumer choice among carriers.

The FCC already has adopted a voice roaming rule, but data service, which allows customers to email, text message and use apps like Twitter is the future.

Latest Trade Hold Up -- Lack Of Trust, Not Will

USTR Ron Kirk testified yesterday before the Senate Finance Committee on the President�s 2011 Trade Agenda and the three pending free trade agreements with South Korea, Colombia and Panama.

Disagreement remains between the Obama Administration�s stated intent to submit the KORUS FTA to Congress first, and the position of Republican Senators like Sen. Hatch, R-Utah, and Sen. Coburn, R-Okla., who refuse to approve KORUS unless it is packaged with the other two. Yet the fact that the debate has moved to how to get these FTAs approved represents something of a spring thaw compared to the winter freeze that had existed since they were signed -- 2006 for Colombia and 2007 for Korea and Panama.

House Communications Subcommittee Expected To Register Disapproval of FCC's Rules To Ensure Customers' Open Internet Access

Months after the FCC�s December vote to approve the Open Internet Order we�re still talking about net neutrality. Nonstop.

The House Committee on Energy & Commerce Subcommittee on Communications and Technology holds a hearing today on a resolution to express disapproval of the net neutrality rule and, at the hearing�s conclusion, immediately markup and vote on that resolution.

British Library Hosts Copyright For Creativity Event

The British Library hosted a �Copyright for Creativity� (C4C) event in London with Members of European Parliament (MEPs) and UK Members of Parliament (MPs) Feb 10. The goal was to highlight and understand the complexity caused by an Intellectual Property Rights (IPR) system, which was invented before the Internet was even thought of. Representatives from libraries, universities, and the music industry joined the policymakers in order to provide a better understanding of the underlying problems from a cultural, educational, and artistic perspective.

Tech Industry Opposes Senate Patent Reform Bill

CCIA President & CEO Ed Black has written to the Senate opposing S.23, the Patent Reform Act of 2011. The bill has been marked up by the Senate Judiciary Committee and is scheduled for a floor vote this afternoon.

The bill raises a number of concerns for the tech sector. The proposed move to a first-to-file offers no provision for prior users and raises the prospect of a stampede to file patents, which would further increase the 1.2 million application backlog at U.S. Patent and Trademark Office. Although similar to a draft circulated spring, the bill has new section designed to eliminate patents on tax planning, but the Committee has held no hearings on this issue, and it would appear to validate existing tax planning patents as well as other patents on legal compliance.

You Bought It, But Do You Own It?

Today marks the launch of an initiative, the Fan Freedom Project, focused on consumers� problems with restrictive paperless ticketing � the practice of using electronic ticketing to control or take away entirely consumers right to resell or transfer tickets which they have purchased.

Internet Freedom Begins at Home

In the wake of the government ordered shutdown of Internet access in Egypt recently, Washington policymakers are debating various scenarios involving �regulation of the Internet.� The consensus seems to be that government should not be able to act as a gatekeeper or shut off Internet access. In the U.S., dominant private companies also have the ability and commercial incentive to act as gatekeepers, but so far for the most part they have not. That�s the way Americans like it. The Internet itself has never been regulated here, although the underlying local cable TV and telephone access services were regulated until 2005.

On Shakespeare and Domain Name Blocking

Today�s New York Times features a peculiar editorial titled �Would the Bard Have Survived the Web?�, by Authors Guild representatives Scott Turow, Paul Aiken, and James Shapiro in advance of tomorrow�s Senate Judiciary hearing on targeting websites engaged in IP infringement. The column proposes the counterfactual notion that Shakespeare could not have survived in the age of the Internet. (Nevermind that Shakespearean theatre seems to be doing quite well.) It is even more peculiar to point to Shakespeare as evidencing the need for any given modern copyright law, since the playwright�s death predated the 1710 Statute of Anne � the first �modern� copyright law � by nearly a century.

Websites and the "Natural Monopoly" Myth

Over the past few years there has been a tendency, especially by those in the financial press, to play it fast and loose with economic jargon. Buzzwords replace actual understanding of issues and the fourth estate transmits these so-called truisms to the public. This can be highly misleading, and often it proves dangerous, especially if these fallacies take hold inside the Beltway or in Brussels.

Necessity The Mother of Invention

When it comes to innovation, people often think of a research lab as the setting for new inventions or perhaps more recently the college dorm room or garage. But a new study by scholars including noted technology innovation professor at MIT�s Sloan School of Management Eric von Hippel finds that most innovation is happening on kitchen tables and garage workbenches.

Employers' Important Role in Skilled Immigration

At a Brookings event Monday on high skilled immigration policy, Dr. Jeanne Batalova of the Migration Policy Institute presented her �Brain Waste� study on how many college-educated immigrants are working in unskilled jobs. The study also seemed to point to the importance of employers having a role in the selection of skilled immigrants.

"Internet Kill Switch" Bill Conflicts With Broader US Internet Agenda

Senator Susan Collins (R-ME) says she plans to re-introduce legislation that would grant the President broad authority over swaths of Internet infrastructure to confront a �cyber emergency.� The re-emergence of this legislation, coinciding with the five-day Internet blackout across Egypt, has come under criticism this week.

Egypt�s Internet shutdown has raised concerns about that happening in the U.S. more easily if the �Protecting Cyberspace as a National Asset Act� is enacted. Some say the legislation gives our government an �Internet kill switch,� but the bills� backers dispute this assertion.

CCIA Offers Data Privacy Comments

CCIA submitted comments to the Department of Commerce January 28th in response to the green paper they released in December entitled "Commercial Data Privacy and Innovation in the Internet Economy." We applaud the Department of Commerce for undertaking the large task of addressing the complex and important issues surrounding consumer privacy and innovation on the Internet. The green paper raised thought provoking questions and insights that showed the long hours that must have gone into its production. We hope that our comments, along with all the rest of those received, will help the Department of Commerce as it moves forward with its work.

President Outlines Innovation Agenda in SOTU

In last night�s State of the Union address, President Obama urged Congress to put America�s future first by making the investments in innovation, education, and infrastructure that will allow America to �do big things� and maintain our place as the world�s leading economy.

We agree. The nation faces a decision whether to invest and grow or to simply grow stagnate. As the President said, �[r] evolutions in technology have transformed the way we live, work and do business.� We must take the steps necessary to evolve, compete, and win in this changing world � research, education, and infrastructure are the right place to start.

Preserving Competition and Consumer Choice among Mobile Broadband Providers

No wireless carrier has a 100% network footprint across the entire United States. So in order for all competitors to offer seamless mobile service, all carriers must interconnect and provide �out of market� �roaming� services to other carriers on reasonable terms and conditions. The FCC long ago mandated roaming interconnection for mobile voice service.

Now that more folks are relying on their handheld devices for Internet access and even IP based voice conversations, the FCC has recognized that roaming requirements should be extended to data communications. The FCC�s 2010 National Broadband Plan recommended that data roaming obligations be enforced. The FCC staff has done all the requisite work to implement the modernization of its rules.

EPC Debates Non-EU Skilled Worker Transfers

In July 2010 the European Commission proposed a new Directive for the �Intra-Corporate Temporary Transfer of Non-EU Skilled Workers�. The proposal�s aim is to facilitate for multinational companies the temporary transfer of third-country national skilled workers from a company located outside the EU to branches or subsidiaries within the EU.

The European Policy Centre (EPC), an independent, not-for-profit think tank committed to European integration, organized a policy dialogue on 11th January 2011. The panel was composed of Maria �senius, Head of Cabinet of Commissioner Malmstr�m, Ameet Nivsakar, Vice President of NASSCOM, John Monks, General Secretary of the European Trade Union Confederation (ETUC), Jan Mulder, Member of European Parliament, and Karl Cox, Vice President of Oracle responsible for public policy and corporate affairs. The panel debate was moderated by Erika Mann (Executive Vice President CCIA) in her role as Vice President of the EPC�s Advisory Council.

How open is open?

In December, the long awaited version 2.0 of the European Interoperability Framework (EIF) was released by the European Commission. Version 1.0 had defined �open standard� as royalty-free, a definition of enormous impact on standards policy because it focused on the user perspective rather than the perspective of standards development organizations. Some standards organizations claim that �open standards� refers only to the way the standard was developed � not the terms of availability. In addition, some argue that �fair, reasonable, and non-discriminatory� licensing (FRAND or simply RAND � without the �fair,� as it is known in the U.S.) should be the baseline for openness, not �royalty-free� (RF).

Skilled Immigration Reform in the New Congress

With Republican control of the House and a larger Republican minority in the Senate, the conventional wisdom seems to be that any legislative action on immigration reform will be difficult. Certainly any attempts at legalizing illegal immigrants (and comprehensive reform packages that contain them) are likely to be met with fierce resistance by Republicans. However, we should not automatically assume that the new House majority would be opposed to any form of immigration. It is important to note that the kind of skilled immigration reform that CCIA and the tech industry advocate aligns closely with Republican principles.

Concerns Over Comcast Merger

Late last month FCC Chairman Julius Genachowski began circulating an order approving the proposed merger of Comcast with NBC Universal. Throughout the regulatory approval process lawmakers, industry groups, and consumer advocates have called on the FCC and the Department of Justice Antitrust Division to block the proposed combination because it provides no public interest benefits, further consolidates control of media content and distribution capabilities, and will likely result in higher prices and harm to consumers and emerging markets. CCIA agrees with these concerns.

Patent Reform On New Subcomittee's Agenda

As Congress returns this week, intellectual property reform will likely be high on the agenda of the Judiciary committee�s new Subcommittee on Intellectual Property, Competition and the Internet. Patent mayhem has not abated during the hiatus in reform efforts. The unprecedented litigation foodfight in the smartphone marketplace, for example, continues to grow, with Sony filing ITC claims against LG. (An effort to document the status quo of the sprawling litigation in November appears here, although even this effort is now dated, and omits several patent holding companies.)

FCC Passes Net Neutrality Rules

In a 3-2 vote Tuesday, the FCC adopted net neutrality rules designed to defend consumers� access to an open Internet.

First, CCIA commends the Chairman and Commissioners Clyburn and Copps for their more than a year of work on crafting Open Internet rules. Under their leadership, the FCC, after much deliberation, did what we expect of our public servants � they recognized a threat to the public and the vitality of the American economy and took action on behalf of the American people to defend against the emerging threat of online content blocking and discrimination by Internet Access Providers.

CCIA To Comment On Privacy Report

The Department of Commerce�s Internet Policy Task Force is now asking for public comments on their privacy report. Last week they released what they are terming a �green paper� entitled �Commercial Data Privacy and Innovation in the Internet Economy: A Dynamic Policy Framework.�

Tech Issues Facing Likely Action Next Year

CCIA President & CEO Ed Black and CDT senior policy counsel David Sohn told reporters gathered for a press breakfast they expected privacy measures, FCC oversight hearings and possibly patent reform to be a focus of the new Congress.

Public Access to the Open Internet is No Sure Thing in Some Foreign Countries...or in the United States

Yesterday CCIA filed comments in the Commerce Department�s proceeding on obstructions to the global free flow of information imposed by foreign governments. Our member companies are concerned that requirements to monitor, filter or censor online content operate as protectionist international trade barriers in the 21st century information economy.

CCIA Welcomes Trade Deal With Korea

CCIA is pleased to hear negotiators have reached an agreement on outstanding issues that were holding up the U.S.-Korea Free Trade Agreement. As the leading export industry of the United States, the high-tech sector in particular benefits greatly from expanded trade.

The Republic of Korea is our seventh largest trading partner, and the U.S. International Trade Commission estimates the FTA�s implementation would increase U.S. GDP by up to $12 billion.

FTC To Seek Comments On Privacy Report

The FTC�s preliminary online privacy report is now public. Protecting Consumer Privacy in an Era of Rapid Change, released Wednesday, comes after a year of consultations on the many issues surrounding consumer privacy.

After reviewing the document here at CCIA, we think it represents an important step forward for the FTC in their handling of important privacy issues, but there are still many unanswered questions and concerns in the privacy space.

Preventing Internet Regulation By Dominant Companies

This week brought welcome news that FCC Chairman Julius Genachowski has put Open Internet access on the agenda for the FCC�s December meeting. Open Internet rules will establish that no central authority -- government or private company -- should be a gatekeeper to the Internet.

CCIA strongly believes that access to content should not be dependent on the identity of a customer�s Internet provider. Consumers should determine the winners and losers in the online marketplace -- not the handful of Internet Access Providers (IAPs) who enjoy dominant legacy market positions in cable and telephone and now seek to expand their hegemony to the Internet.

EC To Investigate Search Engine Policies

The European Commission has announced that it was opening an investigation into search and search advertising focused on Google. The investigation comes after complaints from three companies that were unhappy about their rankings in either the regular unpaid Google search results or Google ads.

The Computer & Communications Industry Association, which has promoted competition among tech companies for nearly 40 years, has seen the EC�s history of investigating large companies to ensure competition. So this announcement does not come as a surprise. We expect that the methods of other search engines� may also be examined so that authorities can adequately compare the different policies and practices of search engines when it comes to ad and search rankings.

The State of Play On ACTA in the EU

On 15th November the parties negotiating the Anti-Counterfeiting Trade Agreement (Australia, Canada, EU, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the US) published the finalized version of the agreement. At the end of November, a so-called technical meeting to finalize the legal wording will take place in Sydney.

Today, as a step to clear the way for a final adoption of ACTA, the European Parliament adopted a non-legislative Resolution on ACTA.

Online Censorship Bill Now On Hold

A bill that would have led to more Internet censorship is on ice -- thanks to a hold placed on it by Sen. Ron Wyden, D-Ore. The Combating Online Infringement and Counterfeits Act (COICA), S.3804, will no longer have the smooth ride this session the content industries wanted. Although the bill passed the Senate Judiciary last week on a voice vote, it continues to face vocal opposition in both houses and is now unlikely to get a full Senate vote this session.

CCIA Offers Recommendations To Combat Trade Barriers From Internet Censorship

Chairman Wyden, D-Ore, said President Obama hopes to double exports within 5 years and he sees Internet and tech companies as instrumental to achieving that � if the U.S. can reduce the trade barriers brought by Internet censorship.

Senate Judiciary Approves Internet Censorship Bill

The Senate Judiciary Committee has approved a measure Thursday that would give the government additional tools to pressure other companies to not do business with domains suspected of illegally sharing copyrighted material.

EU Employee Transfer Reform Increases Global Efficiency, Aids Innovation

The new 21^st century economy is an increasingly globalized one, and multinational companies must be able to operate seamlessly across borders as a single global entity, rather than as a collection of separate subsidiaries. In addition, the fast pace of innovation in a knowledge-based economy calls for the quick and efficient allocation of human resources across the globe.

Tech Policy Preview for 2011

Senator McConnell announced last Thursday that he�s resolved to stop any and all legislative initiatives supported by the White House and/or the Democratic Majority in the Senate. Current House Minority Leader John Boehner, however, has expressed an interest in working with the President and across the aisle in Congress on the chief priority identified by the American people last week -- jobs and the economy �should he be elected Speaker in the 112th Congress.

What Election Could Mean For Patent Reform

The results of this week�s mid-term elections have been linked to a public desire for �smaller government� or hostility to �big government.� Assuming this is the case, it may be useful to consider what implications a small-government philosophy has for important policy debates, such as the effort to reform the vast federal patent system.

Net Neutrality In The Wake Of The Election

In the wake of Tuesday�s election results, the demise of net neutrality has been greatly exaggerated.

Here are the facts:

In May, 73 Democrats signed on to a letter outlining their opposition to the FCC imposing net neutrality rules through reclassification.

What Election Results Mean For Tech Policy

Though a few key races for the tech industry remain undecided, CCIA and others interested in tech policy are sorting through what this election and the divided government left in its aftermath mean for our issues.

First, what won�t change: many tech issues are bipartisan � privacy, cybersecurity, spectrum and some areas of the National Broadband Plan.

Tech Panelists Explain Remaining Problems With ACTA

The Anti-Counterfeiting Trade Agreement may have been negotiated behind closed doors, but the Washington International Trade Association hosted an open discussion on the final draft of the controversial agreement.

Computer & Communications Industry Association President & CEO Ed Black told those gathered that he had problems with both the substance and the process of how ACTA developed. Transparency was a big issue as well as a sort of bait and switch. He said the anti-counterfeiting title would lead one to think it dealt with trademarks, but somehow that expanded into Internet liability � with Internet companies left out of the talks.

CCIA Files Comments With French Government's P2P Infringement Agency

On Friday the Computer & Communications Industry Association's Executive Vice President Erika Mann wrote the French copyright enforcement authority, HADOPI, expressing concern about the unintended consequences of a software specification related to the country�s so-called �3 Strikes� law.

HADOPI has asked stakeholders to comment by Oct. 30 on proposed technical characteristics of software that users could be directed toward when accused of infringement. The specification-compliant software would apparently monitor Internet connections, identify infringers, and possibly filter a user's Internet content.

Fox Rebroadcast Standoff Illustrates Open Internet Problem With Bundling Content and Conduit

Were you planning to have some friends over to watch the first game of the World Series, or maybe Glee�s Rocky Horror episode? Well, if you�re a Cablevision subscriber in New York, New Jersey, or Philadelphia, you may have to rethink those plans. Cablevision customers in those markets have been without their respective Fox broadcast channels since midnight on Saturday, October 16.

Wu's Advice On 'The Internet's Midlife Crisis'

At Monday�s New America Foundation event, "The Internet�s Mid-Life Crisis," Tim Wu of Columbia University Law School previewed his upcoming book The Master Switch: The Rise and Fall of Information Empires and called for a separation between Internet content and service providers. He said consumers are harmed when content and delivery become vertically integrated.

TPI Antitrust Event Offers Company Side Of Debate

The Technology Policy Institute reviewed major past antitrust cases before looking to the future and the potential for regulators to jump in on issues like cloud computing. Panelists at the Friday event, organized by the conservative think tank, discussed antitrust law and enforcement in the high-tech sector.

Tech Policy Lobbyists Tell Executives FCC Must Act Now ... Or Face Irrelevancy

Tech policy lobbyists took the net neutrality debate to more neutral territory Thursday as they explained the issue and why it matters to business executives at a panel discussion in Tysons Corner.

Lisa Youngers of XO Communications gave a brief summary of the FCC initiatives in play from the National Broadband Plan to net neutrality rules to Title II classification of broadband telecommunications.

New Product, Same Old Turf Wars

The nation's leading broadcasters are blocking TV episodes on their websites from playing on Google�s new web television service. The Wall Street Journal reports ABC, NBC and CBS have blocked those using the new Google set top boxes from accessing their networks� shows. Fox so far is not blocking their programs from the new TV interface.

Freeing Spectrum Ahead Of Wireless Demand 'Tsunami'

A day ahead of the FCC�s summit on wireless spectrum, several Obama officials spoke at a Brookings Institution event Wednesday about what to do about the looming spectrum shortage. The FCC is working to help free 300m megahertz of new wireless spectrum within the next five years, which is seen as a help. Many of the proposed reforms have been stalled both by resistance from incumbent stakeholders and by legitimate technical details to be engineered.

Phil Weiser, senior White House advisor on technology and innovation, noted that Smartphones are expected to outnumber regular cell phones by next year and video applications are placing tremendous demands on the wireless network.

The Growing Conflict: Patents v. Products

Apple vs. HTC; Oracle vs. Google; Microsoft vs. Motorola; Nokia vs. Apple�. Where will the patent meltdown end? This didn�t happen with PCs. Why now?

These companies are not patent trolls. They are world class operating companies that should be competing in the marketplace with high-quality feature-rich products. Yes, they have accumulated huge patent portfolios, but that was supposed to be for defensive purposes -- in case they were attacked by aggressive patent holders.

Co-author of Online Free Speech Petition in China Wins Nobel

On Oct. 8, the 2010 Nobel Peace Prize was awarded to imprisoned Chinese dissident Liu Xiaobo. Liu is a longtime democracy advocate and one of the authors of Charter 08, a manifesto calling for democratization and political reform in China. The Chinese government�s reaction to the news was to promptly delete it from search engines and microblogging sites.

CCIA has long opposed Internet censorship efforts by foreign governments as sabotaging what should be the greatest tool for freedom in the world. The Internet enables the widespread dissemination within a society of information and ideas that are the building blocks of democracy.

Net Neutrality Issue Predates the Commercial Internet

As the net neutrality debate drags on into another season, perhaps some historical �big picture� context is in order.

AT&T was broken up in the early 1980s under the terms of an antitrust court decree because it had anti-competitively blocked MCI, which was selling alternative long distance phone calling services using new wireless microwave links. By the late 1980s, the seven local Bell Telephone Companies wanted to escape the terms of the antitrust ruling and get back into the long distance and data transmission businesses where they could regain a competitive advantage over companies without legacy monopoly local networks connecting to homes and businesses. They wanted the FCC rather than the antitrust court to be in charge.

European Parliament Demands ACTA Draft After EC Says Language Nearly Final

Members of the European Parliament are angered the European Commission has announced agreement on final language for the Anti-Counterfeiting Trade Agreement � without revealing what�s in the latest draft of the secret, controversial document. Several members released a joint statement demanding the EC release the text of the international agreement that would add new policing measures on the Internet.

The European Parliament statement Tuesday comes days after the European Commission and other nations negotiating ton ACTA issued a statement saying they have reached an agreement in principle, according to news reports.

CCIA Calls For Online Privacy Law Updates

Rep. Boucher, D-Va., is vowing to bring up privacy legislation in the House next year � regardless of which party ends up in control after the elections. Last week, CCIA submitted a statement for the Senate Judiciary Committee�s hearing on how to update the Electronic Communications Privacy Act for the digital age. CCIA�s statement focuses on how and why ECPA must be updated to accommodate new and increasingly prevalent technologies such as geolocational information and cloud computing. These new technologies offer great opportunities for users, but also subject their personal information to uncertain and unclear privacy protections.

CCIA�s concern is Internet users won�t fully adopt and implement new and valuable technologies, unless privacy rights get more clarity than ECPA currently provides.

Internet Heavweights, Consumer, Library, Tech Associations Raise 1st Amendment Concerns About Infringement Bill

Senate Judiciary Committee leaders and staff are getting an earful from a broad coalition of tech companies, consumers� groups and Internet engineers about a newly introduced bill it hoped to markup this week that would give the DOJ a new tool to essentially shut down domains accused of copyright infringement.

Tech companies and consumer, library and privacy groups sent a letter to Senate Judiciary committee leadership Monday, asking them to consider how proposed copyright enforcement measures in S. 3804 would impact free speech on the Internet before the Senate Judiciary Committee votes on the newly introduced bill. A markup had been scheduled for Thursday.

Innovation Comes to the Patent Office: An Economic Research Agenda

This month, the PTO issued for the very first time a five-item research agenda to be overseen by the new Office of Chief Economist. This deserves applause, both for innovating and for taking a major step in ensuring that the patent system promotes innovation and economic growth -- not just patents.

For the last five years, Congress has struggled with major patent reform legislation to no avail, despite major studies by the National Academies and the Federal Trade Commission, both of which recommended major changes.

Border Security Bill Reignites Call For Immigration Reform

While prospects for Congressional action on comprehensive immigration reform this year remain bleak, there has been some action on narrower immigration bills. CCIA has supported and continues to support comprehensive immigration reform that would address long-standing issues of inflexible visa caps and backlogs faced by skilled foreign workers and their employers.

However, one piece of legislation enacted in August illustrates how an inappropriate linking of legal immigration and illegal immigration could potentially be highly problematic.

Stevie Wonder Asks WIPO For Balanced International Copyright Rules

Geneva � Stevie Wonder started a sing along Monday at the opening of a meeting of the World Intellectual Property Organization. The blind soul singer, who has sold tens of millions of albums, asked the 184 member UN agency for better copyright laws that respect the rights of artists, but would unlock copyrighted material the disabled need.

House Subcommittee Gets A Snapshot Of Antitrust In The Digital Age

The House Judiciary subcommittee on competition asked the FTC, several antitrust experts and some industry advocates and critics whether current antitrust rules are working and should be enforced for some of the most innovative companies in the economy.

FTC Competition Bureau Director Richard Feinstein said the existing antitrust laws work in the high tech arena. He said it�s not illegal to have a monopoly � just to engage in predatory and exclusionary conduct like Intel did.

Progressive Bloggers Get Progress Report On Net Neutrality At Netroots Nation

James Rucker, co-founder of Color of Change, told progressive bloggers Thursday the FCC is trying to guarantee a level playing field for all websites and Internet technologies. But he said some of the big Internet Access Providers �are fighting tooth and nail to make sure the FCC can�t institutionalize these protections.�

Commerce To Ask For Examples of Economic Costs of Internet Censorship

Expect more action at the Commerce Department on Internet Freedom this fall. Anita Ramasastry, senior advisor for the International Trade Administration told those attending an Internet Freedom panel discussion at NDN July 20 that they will put out a Notice of Inquiry in September.

CCIA Releases EU Economic Study On Copyright Policy

A new study on the economic benefits of exceptions to copyright law released in Europe today by CCIA could help as policy makers around the world make decisions on how to balance copyright policy. The outcome of this study is particularly interesting for EU lawmakers, which are in the process of defining a complex innovation agenda until autumn 2010. This innovation agenda will be connected to an ambitious "Digital Agenda" and to a far-reaching policy agenda, called "Europe 2020"...

The Expanding Twilight Zone of Abstract Uncertainty

Monday, June 28 was the day the U.S. Supreme Court was to decide the patent case of the century, Bilski v. Kappos, and bring clarity to the debacle of the 1998 State Street Bank decision. In State Street, the Court of Appeals for the Federal Circuit (which hears all patent appeals) had upended centuries of tradition that assumed that patents were for technology and a hundred years of judge-made law that explicitly excluded �methods of doing business.� That decision also appeared to abolish all limits on software patents, fueling a land rush in patenting that helped create the backlog of 1,200,000 applications the Patent and Trademark Office faces today.

State Street created an instant constituency for business method patents that wasn�t there before. Before State Street, everybody knew that business methods were not patentable. It was understood and accepted. It was rarely litigated.

Under State Street, Bilski would have gotten his patent for a risk-hedging scheme for energy costs � no questions asked. But it has become clear that business method patents � which might have seemed like a great idea in those go-go years � are deeply problematic. They are hard to evaluate for novelty and inventiveness, often sweepingly broad in scope, difficult to interpret, and very controversial. (Would we really want just one airline offering frequent flyer miles?) By abolishing the well-established and uncontroversial business method exclusion, State Street radically extended jurisdiction of the patent system to cover not only business practices such one-click ordering and tax avoidance strategies, but an apparently limitless range of human activities, such as athletic moves and playing with cats. Perhaps the largest professional land grab in modern history...

DMCA Safe Harbors Strike a Balance

Today a federal judge in New York granted YouTube�s motion for summary judgment in the closely-watched Viacom v. YouTube copyright case.

Viacom sued YouTube for copyright infringement over the appearance of video clips on YouTube over which Viacom claimed the copyright. (It was later revealed that many of those clips were secretly uploaded by dozens of Viacom marketers.) YouTube argued that it was protected by the Digital Millennium Copyright Act�s safe harbors. Generally, those safe harbors, enacted in 1998, limit remedies against online services so long as they respond to �takedown requests� � that is, expeditiously disable access to allegedly infringing content when a copyright holder complains that particular content available on the service infringes its rights.

YouTube complied with thousands of Viacom takedown requests, but Viacom nevertheless argued the safe harbor shouldn�t apply to YouTube, since it had �generalized� knowledge of online infringement. The court rejected Viacom�s argument, pointing out that YouTube removes numerous clips at Viacom�s request, including 100,000 within one business day, consistent with the DMCA.

This decision shows that the DMCA safe harbors are working, and that Congress struck the proper balance, by providing robust protection for creators who think their copyrights are infringed, while still allowing platforms for expression to flourish online.

As today�s decision notes, it is nearly impossible for platforms that host user-created content to differentiate between authorized and unauthorized content, and infringing content and non-infringing content. People are sometimes surprised to learn that due to our lack of copyright �formalities�, there�s nowhere to look to determine with any certainty who has rights to what. Only rightsholders know that, and thus only rightsholders know what to take down. The DMCA�s Solomon-like compromise, therefore, was to assign to rightsholders the burden of coming forward with a specific complaint about infringement, and to assign to ISPs and online services the burden of responding to that complaint. Today�s decision reflects exactly that result.

Stimulating Bridges to Broadband

A new report from the Pew Center on States suggests that the biggest obstacle to bringing broadband Internet to Americans may just be Americans themselves. While the majority of Americans currently have access to broadband at home, suppliers are struggling to successfully bring higher speeds to rural areas and regions with lower incomes. The report suggests that about 35% of citizens cannot afford broadband, do not know how to use it, or find it irrelevant to their lives. The report surmises that it�s this lack of accessibility that has allowed the U.S. to slip in the global broadband per capita rankings from number one in the year 2000 to 15^th just last year.

Affordability is chief among the concerns for the spread of broadband Internet. When the U.S. was #1 in 2000, most Americans could get acceptable Internet access using regulated dial-up or DSL phone lines. Since that time, deregulation of Internet access providers has driven up industry profits, a major benefit that companies are hesitant to risk losing by expanding to rural communities. The result? A growing disparity in high-speed Internet access, with wealthy urban and suburban neighborhoods on one end and inner city and rural areas on the other. Consumers and companies alike have now turned to the government to stimulate both supply and demand for broadband.

As Pew Center on the States Deputy Director Lori Grange said today in unveiling the report, �Broadband access is about much more than getting on YouTube.� High-speed Internet access fosters economic growth, the creation of jobs, and global competitiveness for the United States. In many ways, the broadband revolution is akin to the electric revolution. Its growth is subject to local and cultural constraints and attitudes, which is why states and state governments are instrumental to the progression of high-speed Internet access.

CCIA has advocated for public policies to support the broadband revolution since its inception, encouraging greater access to open networks, improved productivity, and economic growth. Grange pointed to the inspiring efforts of North Carolina, which has developed an array of private-public partnerships through an innovative state grant program. In 2007 and 2008 alone, the state�s e-NC Authority gave out over $2 million in grants, resulting in educational advancement by connecting 15 school systems to broadband, progression in medical technology by improving Internet and network speeds in 10 regional hospitals, and the expansion of high-speed access to 10 of the most underserved counties in the state. These results are a testament to the efforts of local officials and what that can mean for online access and economic growth. And now, while the government continues to distribute $7.2 billion worth of stimulus funds in support of universal broadband, the ball is in the states� court.

Cybersecurity Concerns Lead to House Support for Senate Leiberman-Collins-Carper Cybersecurity Bill

The U.S. House of Representatives� Committee on Homeland Security (�HSC�) held a Wednesday morning hearing on �Cybersecurity: DHS�s Role, Federal Efforts and National Policy.� Archived video of the hearing is available here (Windows Media). A single panel appeared before HSC:

(1) Greg Schaffer, Assistant Secretary, Cybersecurity and

Communications, Department of Homeland Security (�DHS�)

(2) Richard Skinner, Inspector General, DHS

(3) Gregory Wilshusen, Director, Information Technology,

Government Accountability Office (�GAO�)

(4) Stewart Baker, Partner, Steptoe & Johnson, LLP

IBM, TurboHercules and the Problems with the Patent System

One of CCIA�s smaller members, TurboHercules SAS, has received a lot of attention recently surrounding its antitrust dispute with IBM, especially because IBM has chosen to rattle its many patent sabers at this much smaller competitor by providing a list of 173 potentially infringed patents. What makes this story a little different from a classic patent shakedown is that TurboHercules is an open source company, and IBM is a champion of open source software. In early April of this year it was reported that IBM accused TurboHercules of �potentially� violating two of the patents in IBM�s �legally binding� Open Source Patent Pledge from 2005. In its pledge, IBM promised the world that it would not assert 500 selected patents (out of IBM�s portfolio of over 40,000) against open source projects. IBM then issued a series of conflicting statements regarding the two pledged patents (see here and here), including one that suggested that the pledge was limited to �qualified� companies that did not compete with IBM. Needless to say, this left many in the Open Source community scratching their heads. The story also highlighted many of the problems endemic to the current patent system.

CCIA Weighs In On FCC's "Third Way" Tonight On C-SPAN

The FCC�s proposed rules to protect non-discriminatory access to the Internet for households and small businesses are needed to ensure no Internet Access Provider regulates the Internet, said Computer & Communications Industry Association Vice President Cathy Sloan on a C-SPAN program this weekend.

�The Communicators� program on the proposal to reclassify the transmission of high speed broadband as a telecommunications service aired on C-SPAN this weekend. It also airs Monday at 8pm on C-SPAN 2.
(Watch the video on Youtube)

Sloan appeared on the show along with USTelecom President Walter McCormick. She said that CCIA generally opposes government regulation, but that this light touch approach by FCC Chairman Genachowski is critical to preserving open Internet access following a court ruling that invalidated the former FCC's approach to protecting Internet users.

Both Sloan and McCormick said they support Congress rewriting the Telecommunications Act, but Sloan said that given Congressional legislation will likely take a couple years, this FCC action would help preserve how the Internet operates in the interim.

Misadventures in Copyright Enforcement

A new copyright enforcement venture started making headlines earlier this year: the U.S. Copyright Group (USCG). Although the USCG name just recently started getting attention, it appears connected to the Leesburg, VA law firm Dunlap, Grubb & Weaver (DGW), which was established in 1999. The logos for USCG and DGW are the same and Thomas Dunlap, a named partner of DGW, filed several mass-defendant (PDF) complaints (PDF) on behalf of movie company plaintiffs as part of USCG. Further, the DGW name is prominently located on the top of settlement pages created for the litigations and can be found several times in the settlement (PDF) agreements (PDF) offered to alleged infringers in order to avoid litigation. Some blogs and The National Law Journal say that USCG is DGW, while DGW�s blog suggests it was simply �engaged� by USCG.

USCG and DGW utilize an enforcement process employing the widely criticized shotgun methods of DigiProtect and ACS:Law: issuing thousands of pre-settlement letters to alleged copyright infringers. The letters purport to offer recipients the opportunity to avoid copyright infringement litigation for a fixed lump sum. For example, the Far Cry pre-settlement letter (found here in three parts) provides for a settlement payment of $1,500 before June 11, 2010, with the amount rising to $2,500 after that date. While the settlement pages for Far Cry and The Steam Experiment reflect a $1,500 settlement payment, the other three settlement pages created as of now all require a $2,500 payment. Recipients with the $1,500 option thus have a relatively short shot clock to decide whether to pay, or undertake the quite possibly more expensive alternative of retaining an attorney and defending the charges. This has prompted criticisms that even innocent recipients may pay to avoid the cost of litigation, as well as criticism that the joinder of so many arguably unrelated parties constitutes an abuse of process.

How do USCG and DGW identify potential defendants? USCG and certain �partners� monitor file-transfer services and log the IP address, date, time and other pertinent information whenever someone shares a file containing a client�s copyrighted material. DGW then files a single lawsuit in the D.C. District Court on behalf of a movie studio plaintiff naming John Does 1-XXXX for alleged infringing downloads of a given film. Attached to the complaint is a list of the allegedly infringing IP addresses. DGW says it has already filed �about 10 or 11� such complaints �on behalf of� USCG. Seven of those complaints have been filed this year, totaling 14,583 unnamed defendants.

A complaint against 749 unnamed defendants for the alleged illegal downloading of the film The Gray Man. Worldwide Film Entertainment, LLC v. Does 1-749, No. 1:10-cv-00038-HHK-DAR (D.D.C., filed Jan. 8, 2010).
A complaint (PDF) for the alleged illegal downloading of the film Uncross the Stars, originally against 83 unnamed defendants but subsequently amended to increase the unnamed defendants to 195. G2 Productions LLC v. Does 1-195, No. 1:10-cv-00041-CKK (D.D.C., filed Jan. 8, 2010).
A complaint (PDF) for the alleged illegal downloading of the film Far Cry, originally against 2,094 unnamed defendants but subsequently amended to increase the unnamed defendants to 4,577. Achte/Neunte Boll Kino Beteiligungs GMBH & CO KG v. Does 1-4,577, No. 1:10-cv-00453-RMC (D.D.C., filed Mar. 18, 2010).
A complaint (PDF) for the alleged illegal downloading of the film Call of the Wild 3-D, originally against 358 unnamed defendants but subsequently amended to increase the unnamed defendants to 1,062. Call of the Wild Movie, LLC v. Does 1-1,062, No. 1:10-cv-00455-RMU (D.D.C., filed Mar. 19, 2010)
A complaint against 2,000 unnamed defendants for the alleged illegal downloading of the film The Steam Experiment (also called The Chaos Experiment). West Bay One, Inc. v. Does 1- 2,000, No. 1:10-cv-00481-RMC (D.D.C., filed Mar. 23, 2010)
A complaint against 1,000 unnamed defendants for the alleged illegal downloading of Smile Pretty (aka Nasty). Maverick Entertainment Group, Inc. v. Does 1-1,000, No. 1:10-cv-00569-RJL (D.D.C., filed April 8, 2010)
A complaint against 5,000 unnamed defendants for the alleged illegal downloading of Oscar Best Picture winner The Hurt Locker. Voltage Pictures, LLC v. Does 1-5,000, No. 1:10-cv-00873-RMU (D.D.C., filed May 24, 2010).

Once the complaint is filed, DGW then asks the court to issue subpoenas requiring Internet access providers (IAPs) to turn over the names and addresses associated with the accounts having the allegedly infringing IP address. These subscribers are then contacted and given the choice of settling up front, or being added to the suit.

IAPs have responded to these subpoenas differently. Verizon notifies customers of subpoenas but has not yet sought to quash them. Comcast and Cablevision are both reportedly working with DWG to reach an agreement on how to handle this large number of subpoenas. However, Time Warner Cable (TWC) has moved to quash USCG�s subpoenas in the Far Cry, Call of the Wild 3-D, and The Steam Experiment cases. TWC�s motion argues that USCG should have filed individual cases against the John Does, as there appears to be no relation amongst them. Further, TWC cites the growing scope of the subpoenas and the hardship TWC will face in having to respond to all 809 information requests. USCG and DWG responded with what appears to be a veiled threat of going after TWC for contributory infringement. Three civil liberties groups, the Electronic Frontier Foundation (EFF), American Civil Liberties Union (ACLU), and Public Citizen, have chimed in with joint amicus briefs in support of TWC�s motion to quash in all three cases (all three PDFs). The amicus briefs argue that USCG and DWG�s tactics deprive letter recipients of a fair chance to defend themselves. Earlier this week, the Honorable Judge Rosemary Collyer ordered the plaintiff movie companies in the Far Cry and The Steam Experiment cases to show cause why she should not dismiss the case as to defendant Does 2-XXXX for �misjoinder under Federal Rule of Civil Procedure 20.�

Given the ease with which IP addresses can be misinterpreted or falsified (two years ago researchers successfully framed (PDF) a university�s network printer for copyright infringement), one question presented is whether a mere IP address is sufficient to allege infringement? Another question is whether hundreds of ostensibly unrelated defendants can be haled into court in a single litigation based merely on the commonality of the allegedly infringing work. D.C. federal courts will likely be required to answer both questions.

CCIA Caucus Summary Now Available

CCIA has just released a detailed summary of the policy discussions that took place at the 37^th Annual Washington Caucus on May 13, 2010.

The event featured influential Members of Congress and key Obama Administration officials who spoke to CCIA members about various policies impacting the tech industry and the future of innovation.

Speakers included:

Obama Administration: Ambassador Miriam Sapiro, Deputy USTR, Robert Hormats, Under Secretary of State for Economic, Energy and Agricultural Affairs, and Greg Schaffer, DHS Assistant Secretary for Cybersecurity and Communications (CS&C)
Members of Congress: Senator Byron Dorgan, Senator Amy Klobuchar, Senator Mark Begich, Rep. Rick Boucher, Rep. Anna Eshoo, and Rep. Mike Honda
FTC: Commissioner J. Thomas Rosch, and Jessica Rich, Deputy Director of the Consumer Protection Bureau
FCC: Blair Levin, former Director of the Broadband Task Force

Read CCIA's Summary
Read the full event transcript

Thanks to all who attended and participated in this important tech policy dialogue.

Sure pass patent reform -- just the House version...

Commerce Sec. Gary Locke wrote an editorial for Politico yesterday explaining how reforming our outdated patent system would spur innovation and boost the economy. His sentiment that the US needs to refocus on nurturing innovation is one we couldn�t agree with more. We also agree in principle with his focus on the need for alternatives to litigation (�post-grant review�) and secure funding plus fee-setting authority for the Patent and Trademark Office.

CCIA has been calling for Congress to enact real patent reform for years. The tech industry needs a patent system that rewards real innovation � not patenting.

The House has a bill that makes a good start toward fixing a badly broken system. We, and many tech companies, supported the patent reform legislation and encouraged its passage. However, the latest compromise proposed in the Senate Judiciary Committee weakens the proposed patent reform bill to the point it can no longer be called a reform bill. We urge policymakers, when defining what constitutes �reform�, to look to stakeholders in IT, particularly those whose perspectives are not clouded by their patent-filing prowess.

On the Copyright for Creativity Declaration

Today, CCIA joins with a broad coalition of groups representing consumers, creators, libraries, civil society, and the technology industry in endorsing the Copyright for Creativity Declaration, a statement of principles calling for European copyright law to adapted for the digital era. The Copyright for Creativity Declaration proposes consensus principles that its signatories believe should animate efforts to modernize and harmonize copyright exceptions so as to promote creativity, innovation, education, and access to information.

These principles recognize the crucial role that copyright plays in the knowledge economy, but also acknowledge that government-granted exclusive rights are not the only tool in our toolbox for promoting innovation and advancing public welfare. If exclusive rights impede other creative activities that serve the public interest, such as technology innovation, education, research and collaboration, preservation, or achieving accessibility for people with disabilities, then our copyright laws should be reformed to ensure that the social bargain of copyright continues to benefit both creators and society.

The Copyright for Creativity Declaration also envisions a future of European copyright law where consumers and industry alike understand that the rights they have are uniform across nations. For example, a copyright system in which valuable technology products and services are encouraged in one jurisdiction and yet infringing in another will only breed contempt for copyright when the transition to digital technology means that creators have become increasingly dependent on the voluntary compliance of users. A harmonized, commonsense approach to the respective rights of creators and users should inspire greater legitimacy and respect for copyright.

The Declaration and additional information are available here.

FCC Chair Mulling Commission's Authority Over Internet Access Providers

Internet users and the tech industry are responding to news reports that the Obama administration may be weakening in its resolve to protect the neutrality of Internet access for households and small businesses. News reports indicate FCC Chairman Julius Genachowski may decide not to treat broadband as telecom services, which are clearly subject to FCC jurisdiction.

Some say the FCC needs to take action to clarify their jurisdiction after a recent appeals court ruling that overturned the way the FCC tried to enforce net neutrality rules. Because the Comcast case invalidated the Bush administration�s theory of FCC authority over Internet Access Providers, the Commission must rely on authority found in the telecommunications act to preserve open Internet access for all Americans.

The Computer & Communications Industry Association filed comments with the FCC last week in response to the Commission�s request for comments on its net neutrality rules. CCIA pointed out the FCC does and should have authority to make rules on broadband access for households, students and small businesses under its Title II telecommunications authority.

The court ruling showed the failure of the previous Commission to maintain enforceable, basic rights to nondiscriminatory Internet access. But in the same breath the court didn't disapprove of what the FCC was trying to do -- preserve nondiscriminatory Internet access.

As senator Obama promised several pro consumer and pro technology positions during his campaign. Failure to invoke fundamental jurisdiction to implement those promises would be a serious retreat from what was thought to be his core commitment to positive change and economic growth through technology empowerment. Real change does not mean further entrenching dominant power.

Internet users need nondiscriminatory access to websites and the FCC is tasked with being the public interest watchdog, looking out for household and small business broadband Internet connection rights. We hope Obama administration officials are able to withstand the overly intense corporate political pressure and uphold their duty to protect the public interest in the open Internet.

U.S. diplomats are fighting overseas to ensure citizens in countries like China and Iran have open Internet access. They know all too well the cost of information suppression and we would do well to fight that battle on the homefront too so that no government and no commercial access provider controls access to information on the Internet. Given the recent court ruling that has put a big hole in the previous FCC�s �safety net� that needs to be fixed immediately and cannot await a multi-year legislative process in Congress.

by Ed Black, President & CEO, CCIA

The ACTA is out of the bag

After two and a half years of calls for more public scrutiny, the current draft of the once-secret Anti-counterfeiting trade agreement (ACTA) agreement has been released to the public, as the tech press has reported.

The name notwithstanding, ACTA has little to do with counterfeiting and everything to do with copyright in the digital age. In a misguided effort to improve global IP enforcement, ACTA proposes to mandate familiar and occasionally controversial parts of U.S. intellectual property law � statutory damages, criminal liability, anticircumvention (legal protection for �digital rights management�) and DMCA-like notice-&-takedown.

What ACTA does not do is mandate the limitations and exceptions to copyrights that, according to a 2007 study released by CCIA, are relied upon by industries that add $2.2 trillion in value to the U.S. economy. As a result, ACTA will make foreign markets more hostile to U.S. businesses, rather than more hospitable.

CCIA�s first take on the text is here, and more information is available on CCIA�s ACTA Resource Page. Additional analysis comes from Canadian law professor Michael Geist on his blog.

JUSTICE STEVENS INVENTED THE INTERNET

Co-writing today�s post is Jonathan Band of policybandwidth, with CCIA�s Matthew Schruers, on the recently-announced retirement of Justice John Paul Stevens:

JUSTICE STEVENS INVENTED THE INTERNET

Justice John Paul Stevens�s announcement that he will resign from the Supreme Court at the end of this term has caused a flood of newspaper articles and blogs about the most significant opinions he authored during his 34 years on the Court. With the exception of an insightful piece by Joe Mullin at Corporate Counsel, the media has largely overlooked one of his opinions that has had a direct daily impact on virtually all Americans: the majority opinion in Sony v. Universal, decided by the Supreme Court in 1984. This decision is the legal foundation of the Digital Age.

The case involved the lawfulness of the Betamax video-cassette recorder manufactured by Sony. The motion picture studios took the position that the Betamax contributed to copyright infringement by allowing consumers to tape over-the-air broadcasts of television programs. After a five-week trial, a federal district court in California ruled that Sony was not liable for contributory infringement. The U.S. Court of Appeals for the Ninth Circuit reversed the district court, and found that Sony did contribute to infringement.

By a 5-4 vote, the Supreme Court reversed the Ninth Circuit. Justice Stevens in his opinion for the majority explained that copyright law�s fair use doctrine permitted a consumer to tape an over-the-air broadcast for later viewing � what Justice Stevens called �time-shifting.� Interpreting the fair use doctrine to permit widespread, systematic copying by consumers for private use was truly revolutionary...

Read on for more information about Justice Stevens...

CCIA Joins Broad Coalition to Recommend Updating Privacy Laws for Digital Age

Privacy laws need to be updated to accommodate the realities of fast paced technological innovation and digital progress. That�s the message of a broad coalition of consumer groups, companies, and academics who announced a new advocacy group today, called Digital Due Process. The Computer & Communications Industry Association joined with the coalition to issue recommendations on how to update federal laws to clearly define rules for government access to location data, email and private files that are stored remotely.

The coalition�s recommendations focus on the Electronic Communications Privacy Act (ECPA), signed into law in 1986. To set a consistent standard in line with the traditional Fourth Amendment rules for searches and seizures in the offline world, the coalition recommends that the government should get a warrant issued by a judge to read email and private documents and to track a person through his or her cell phone.

�As more information spreads to cell phones and cloud computing, federal laws pertaining to government access are important and timely to reassess,� said CCIA President & CEO Ed Black. �People should have reasonable, base-level protections for similar personal data whether the data is housed in a filing cabinet in their home, shared online or stored in a remote database.�

�Reasonable expectations of privacy are even more critical when competition among network providers is scarce or when the entity with access is the government, with which citizens have no choice but to interact,� added Cathy Sloan, CCIA�s VP of Government Relations. �Internet users can leave a website with one mouse click if they don�t like the privacy policy, but they have little say and often don�t even know when the government or law enforcement is collecting electronic information about them. We hope this coalition will both spur discussion and build consensus on new rules that strike the right balance.�

The coalition�s proposals are detailed at www.digitaldueprocess.org.

One is Fun, But Twice is Nice

Last week, Microsoft got taken to the cleaners in an East Texas patent infringement case to the tune of over $100 million. With the patent system in shambles, these days even six figure damages don�t come as much of a surprise.

It�s when you dig deeper that the case becomes interesting. The plaintiff in the case is the previously unheard of VirnetX. Boycott Novell, among others, has identified them as a classic troll. Not surprisingly, they�ve never sold a product. The five year-old company has but 12 employees.

However, most of the NPEs we�ve encountered have unleashed their broad patents to take out a slew of large companies�sometimes up to 20 or 30. However, VirnetX doesn�t fit this mold. As Seattle PI points out, it appears to have been formed for the express purpose of suing Microsoft�and only Microsoft�regarding VPN technology patents.

Indeed, just a week after its big win, VirnetX is going back to the well. They�ve filed yet another infringement suit against Microsoft, this time over Windows Vista and XP. And sure enough, they�re counting on the District of East Texas to double down on its unwavering support of troll behavior.

Will IV come clean on its role in patent lawsuits?

We have to tip our caps to Zusha Elinson, who has done more than anyone to expose the inner workings of Nathan Myhrvold�s secretive enterprise, Intellectual Ventures. Elinson previously broke the story of IV handing off patents to an NPE, Picture Frame Innovations. Sure enough, Picture Frame used the patent to bring Kodak to court for patent infringement.

This may reflect IV�s new �catch and release� strategy, where a patent holder acquires a patent, grants itself a license, and then resells the patent � in this case, apparently to a lawsuit-happy NPE. This can all be done while maintaining a record of not getting directly involved in litigation. Meanwhile, according to Elinson, IV gets a stake of whatever proceeds the NPE makes as a result of the licensed patent, including via litigation.

Now comes word that Kodak is calling IV on its bluff. Elinson reports that Kodak is demanding that IV attend a settlement conference along with Picture Frame.

�The sides are also fighting over weather Picture Frame�s relationship with IV should be kept under seal. The briefing outlines some of the deal terms, all of which essentially say that IV has no control over what [famed NPE lawyer Ray] Niro does with the patent it sold him. But it doesn�t answer the big question: what kind of cut does IV get from the lawsuit?�

Originally, the Illinois judge presiding over the case agreed with Kodak�s request, only to change his mind and merely �encourage� IV to be present.

IV claims it has not yet made a decision. We will have to wait and see if Myhrvold and company are ready to acknowledge their role in these lawsuits or if they simply choose to delay the inevitable.

When patents protect against patent trolling

We have to give former Sun CEO Jonathan Schwartz credit�he�s nothing if not interesting. After all, how many Fortune 500 presidents resign via Twitter haiku?

Schwartz now occupies his time blogging and commenting on the latest tech trends. His most recent post on the increasingly litigious nature of Apple caught our attention.

Buried towards the bottom, he notes the danger of NPEs and the threat they posed to Sun during his tenure. He goes on to link to a pending patent, which he defines as �an application to patent the act of trolling.�

The actual patent needs to be seen to be believed. Essentially, if Troll A owns this patent, and Troll B sues Legitimate Company C for infringement, Troll A could turn around and sue Troll B for violating its trolling patent. As Schwartz puts it, �it would give the patent holder a reciprocal claim against a patent troll.

If that�s not strange enough, get this�the patent applicant is service provider and government contractor Halliburton. Yes, that Halliburton.

Take a look at the patent application � it�s good entertainment value.

Patent Round Up

It is unclear how the release of a Senate draft proposing to remove or change some key reforms from the patent reform bill previously reported out of the Senate Judiciary Committee will be received in Congress. So far House Judiciary leaders have alerted their Senate colleagues publicly that they want to see changes. In the meantime, bloggers and reporters are offering information on both Senate Judiciary Chairman Leahy�s proposal and the politics surrounding it:

Gene Quinn talks about how watered down the bill has become to the point that it is no longer �real reform� in his analysis at IPWatchdog.

Patently O offers a summary of what the bill still contains in a post this week:

The Hill reporter Kim Hart explains the politics behind the legislation and how the tech industry is largely against it now � aside from tech companies whose business model depends more on licensing.

Possible Outcomes of the Google Book Search Litigation

Much ink has been spilled over the future of the Google Book Settlement, but never before has anyone attempted to squeeze it onto one page. This flow chart, by Jon Band for the Library Copyright Alliance, maps out many of the possible legal outcomes in this important case.

Check it out at www.librarycopyrightalliance.org

Intellectual Ventures Quick Hits

Since Steve Lohr�s New York Times critique on Intellectual Ventures, last month the blogosphere has lit up with discussion about back door schemes to file or threaten to file patent lawsuits. Revelations of IV�s skyrocketing lobbying expenses and political contributions as well as new strategy of licensing patents to lawsuit-happy NPEs have prompted a flurry of anti-IV sentiment.

What follows is a guide to the various articles posted since the February 18 NYT article:

Tech Crunch: Mike Masnick focuses on the revelation that IV has over 1100 shell companies, noting �No wonder IV can pretend it doesn�t sue anyone. It can simply hide behind its shell companies.�
Tech Flash: Todd Bishop discusses Nathan Myhrvold�s desperate attempt to combat the NYT article and save face in the court of public opinion.
Seattle Weekly: Brian Miller compares the NYT article with Nathan Myhrvold�s long-winded response in Harvard Business Journal.
Union Square Ventures: Venture capitalist Brad Burnham provides a point-by-point rebuttal of Myhrvold�s justification for his business model.
The Faster Times: Fred Wilson endorses Brad Burnhams views for why Myhrvold�s views on the patent system are wrong.
Enterprise Irregulars: An anonymous patent infringement attorney, who has been the victim of NPEs: �IV has collected over a billion dollars so that it can get more patents. They make no products. They apparently don�t funnel ideas to anyone else who makes products. Heck, the only useful thing I�ve seen out of IV is that mosquito-killing laser that Mr. Myhrvold showed off at TED this year.�
Against Monopoly: John Bennet concludes that �It doesn't sound to me like Myhrvold has much interest in the poor inventors. Rather, he just seems to want their patents so he can make piles of money suing manufacturers.�
Boycott Novell: �Having had some direct experience with Myhrvold�s group (and hence my desire to remain anonymous), I suggest the following. ��Patent troll� is too simplistic and limiting. Think of IV as a combination mob protection racket + ponzi monetization scheme.�
The Economist: This editorial takes a very skeptical view of Myhrvold�s defense, noting �Mr. Myhrvold may find that the suspicions against him of patent-trollery have a long half-life.�
Tech Dirt: Mike Masnick again posts on Intellectual Ventures, referencing the Enterprise Irregulars post to back up his anti-IV stance.
Dow Jones: Stuart Weinberg reveals IV�s recent licensing of patents to firms located in Marshall, TX, a haven for patent infringement lawsuits: �If IV is selling patents to more aggressive third parties, the strategy has merit, said Tom Ewing, principal consultant for Avancept, an intellectual-property consulting firm. For one, IV generates revenue from the sales. Second, if IV retains a stake in the patents, it can generate additional revenue. Third, and most important, the third parties can serve as "surrogates" to pressure potential IV licensees.�
Law.com: Zusha Elinson notes that Verizon has sued TiVo regarding one of IV�s patents.
Tech Flash: Eric Engleman also discusses the Verizon-TiVo battle.
Wall Street Journal: Don Clark goes in-depth regarding IV decision to start selling patents to firms willing to file patent infringement lawsuits: �Merino says some such sales deals have a �back end.� In other words, his firm can receive some revenue generated by the company that buys its patents, whether through a lawsuit or some other means. But IV does not control what the buyer does with them.�

Wall Street Journal latest to shine light on IV�s shady dealings

Ever had a leaky ceiling? You can place a bucket under it and delay the inevitable, but ultimately the steady dripping is going to take its toll and that bucket is going to overflow. Eventually, the ceiling may even collapse.

The latest drip in the unraveling of secretive Intellectual Ventures came last week in the form of a Wall Street Journal article. Writer Don Clark pokes holes in Nathan Myhrvold�s claims that his �invention company� makes no profits from patent infringement lawsuits:

�[IV VP of Licensing Don] Merino says some such deals have a �back end.� In other words, his firm can receive some revenue generated by the company that buys its patents, whether through a lawsuit or some other means. But IV does not control what the buyer does with them.�

IV has long bragged of its record of never having filed a patent infringement lawsuit. However, these WSJ revelations suggest that they are achieving the same end product � revenue � by licensing patents to NPEs more than willing to sue. They are simply going through the back door.

Indeed, this is not the first article to note IV�s propensity to sell patents to litigious NPEs. A recent Dow Jones article revealed that several IV shell companies licensed eight patents to two firms that happened to be headquartered in Marshall, TX�a place known for its high number of patent lawsuits.

A September Recorder article titled �Intellectual Ventures Takes Indirect Route to Court� opened the lid on IV having sold patents to a firm that used them to sue Kodak for infringement:

�With its new practice of selling off patents to third parties, litigation is much more likely. It�s similar to the �catch and release� model used for some time by other patent-holding companies. That�s a friendly sounding name for a threat that goes like this: Take a license because we�re going to sell the patent on the open market�and you never know what unscrupulous and lawsuit-prone troll is going to buy it.�

As the steady drip continues, one can only wonder how long the infamous IV machine can sustain its image of benevolence.

In Depth: Recent Reform Damages Proposals Part 2

Yesterday we talked about how the 2007 legislation would have helped deal with growing patent damage awards. We�re focusing on the 2007 legislation now as it had stronger provisions to deal with some of the worst problems.

The House bill also would have made apportionment of damages a major aspect of the new damage regime; a methodology that would work to limit the extent of damages available to patent holders. Under apportionment, a patent holder would only be awarded damages for the specific contribution which the patented innovation adds over the existing technology. The debate has often been likened to the question of whether a patent holder should be awarded damages based on their contribution to the windshield wiper versus the value of the whole car.

As the legislative history of the bill noted, such a system would prevent overcompensating patentees and avoid unreasonable royalty rates on producers. Such changes would refocus the law on patent damages to fairly awarding patentees for the actual value of their patented invention and not extraneous factors. However, the use of apportionment to limit damages was far from a universally accepted proposal. A number of Representatives voiced their criticism that it was nothing more than an untested theory. Others argued that the apportionment standard was unnecessary in light of the fact that courts today already take into account the economic contributions made by inventions.

This proposal would not necessarily preclude awarding patentees for making breakthroughs in innovations, as a separate provision of the reform legislation would have continued the viability of the entire market value rule. Under this particular doctrine, damages could also be calculated on the �market value� of the patented invention where that particular innovation forms the predominant basis for market demand. So patent holders could be properly compensated if their specific invention was sufficiently significant to drive the public�s demand for that invention.

Such a difference in calculation has tremendous implications, as it would provide for a patent holder to recover damages on both patented and non-patented features of the invention. Language similar to that found in the House bill should appear in any future reform proposals, as it would fairly award patentees whose inventions form the backbone and foundation of particular technological fields.

The 2007 House bill was not perfect. For example, language codifying the factors traditionally relevant in determining a reasonable royalty rate is an unnecessary proposal. Since 1970, the federal district court opinion in Georgia Pacific has been relied upon for delineating the factors, which may be considered in this endeavor. The House bill in its goal of providing clear and concrete guidance, would have statutorily mandated the consideration of a number of factors, but also would have included a catch all provision whereby courts could use any evidence and factors that were relevant. In essence, such language would likely have little real effect, as the catch all provision would be akin to the inherent flexibility offered by the Georgia Pacific test.

In his introductory remarks accompanying the Senate bill, S. 1145, Senator Patrick Leahy (D-VT) noted that patent reforms were necessary in order to promote �fair and equitable remedies� that current �litigation has not reliably produced.� For the most part, the Senate bill�s provisions were substantively similar to those in the counterpart House bill. For example, proposals to make judges gatekeepers of evidence in damages calculations, the adoption of the entire market value rule, and the use of an apportionment standard were all present in the Senate bill. However, there was criticism as to whether the Senate�s proposals would resolve uncertainty with damages, as well as pressure from anti-reform interests. Ultimately, this criticism and conflict over other provisions stalled any action before the conclusion of the 110^th Congress.

Read on for more information on proposals from the 111^th Congress...

In Depth: Recent Reform Damages Proposals Part 1

There has been much discussion and escalating controversy in recent years about patent damage awards for infringement. With each iteration of proposed patent law reforms, Congress has become increasingly aware of the impact patent damages have in modern business. This is particularly true in light of the role NPE�s (patent trolls) play in the system and the steadily increasing rate of the average damage award. A recent PriceWaterhouseCoopers study found the annual median damages award has ranges from $2.2 to $10.6 million and, more notably, damages awards for NPEs have averaged more than double those for practicing entities � meaning those that actually create - since 1995.

In this post, we look into the most previously proposed patent damage reforms, and reasons for the failure to pass. In understanding its shortcomings, we hope to provide insight into supporting new reforms, which have better chances of passing.

Bills have been introduced to reform the patent system in the current and two previous Congresses. In the 109^th Congress, the primary bills were H.R. 2795. S. 3818, and H.R. 5096. The stronger bi-partisan, bi-cameral reform push occurred during the 110^th Congress, in 2007, with H.R. 1908 and S. 1145. In the current Congress, patent reform has advanced in the form of H.R. 1260 and S. 515. Unfortunately, these efforts have been watered down over time as various interests have lined up to protect the status quo (including the patent bar itself, which, as Supreme Court Chief Justice Roberts observed, profits from our over-expansive patent system).

Read on for more about proposals from the 110^th Congress...

The broken patent system: No laughing matter

We couldn�t help but chuckle at The Huffington Post�s post on ridiculous patents the PTO has granted recently. It�s just good old-fashioned fun to vote on whether the �apparatus for waking a sleeping driver by electric shock� or �doll urn� is the more absurd idea for a patent (although in our view, the �tricycle mower� is an inspired concept�teaching your kids how to ride a bike while mowing your lawn? (Where do we sign up?!)

Still, it�s important to remember that for every ridiculous but harmless patent the PTO grants, two or three dangerous ones slip through the cracks as well. These are the types of overly broad patents that lead to years of litigation, destroy small businesses, and crush the spirit of our next generation of innovators.

We have put forward the argument that the broken patent system does more than suppress innovation; it�s draining our economy as well. And who better than one of the most respected financial/business publications in the industry to back us up on this point?

The Economist recently came out with an editorial blasting the current patent system, labeling it as an out-of-date model that has discouraged big ideas and brought any momentum towards economic progress to a screeching halt. It particularly condemned the PTO�s lax standards for patent applications:

�To be eligible for a patent, an invention must not just be novel, but also useful and non-obvious. Anything that relies on natural phenomena, abstract ideas or the laws of nature does not qualify. The USPTO has taken to requiring a working prototype of anything that purportedly breaches the laws of physics. [�] An end to frivolous patents for business processes will be a blessing to online commerce.�

Now we just need Congress to offer that blessing. It�s up to legislators and the PTO to take these suggestions to heart and put an end to the downward spiral our patent system is mired in. And if it means we have to mow the lawn after we teach our kids to ride a bike�well, that�s a sacrifice we�re willing to live with.

New York Times Takes A Small Peek Under IV�s Cloak

In today�s New York Times, Steve Lohr has a write up and a blog post about the highly controversial �Intellectual Ventures.� Due to their intensively secretive nature and unusual business models (Lohr reports: �Intellectual Ventures, a secretive $5 billion investment firm has scooped up 30,000 patents, inspire admiration and angst,� as a result �Several analysts say that Intellectual Ventures has been primarily a master practitioner of exploiting the current rules of the game to its advantage�), IV has long sparked deep suspicion.

It is no secret that IV has been substantially growing its patent portfolio for the past few years. However, one new nugget about a different kind of growth jumped out from Lohr�s story:

Intellectual Ventures spent more than $1 million on lobbying last year, according to public filings compiled by OpenSecrets.org. In the three most recent election cycles � 2006, 2008 and 2010 � Intellectual Ventures executives, led by Mr. Myhrvold, have contributed more than $1 million to Democratic and Republican candidates and committees.

While we�ve never seen this previously reported, it should come as no big surprise. Over the last several years, Congress has taken a number of stabs at patent reform. Should our system see the overhaul reformers are pushing for, certain types of abusive business models may be in great danger. Certainly, companies that are merely in the business of charging for �being infringed� by productive U.S. enterprises have much to fear from patent reform.

IV�s desire for influence is telling of their desire to protect their business model � whatever it may be. Some IV revenue comes from licensing deals. Given the fiercely tight-lipped temperament of IV, it is unclear where additional revenue may come, from though IV has long held out the threat of litigation (but, they claim, never acted on it). However, Lohr in his informative blog post that accompanied the initial story, shines some new light on this. Regarding one particular case involving a suit against Eastman Kodak, IV admits involvement:

Donald Merino, senior vice president of licensing for Intellectual Ventures, said that the company did step in, but only after the shell company had started litigation. It bought or licensed a handful of patents from the shell company, and then licensed them back to the shell company, represented by the Niro firm.

Consider: benevolent or litigious? Of course, IV refused to answer who shares in the monetary outcome of the suit.

CCIA Sends Letter to Congress Urging the Passage of Comprehensive Patent Reform

With just a couple lines at last month�s State of the Union Address, President Obama provided some crucial momentum for patent reform. Obama stressed that jobs start from the bottom up, when workers tap into their entrepreneurial spirit and transform big ideas into real action.

his is a simple formula: innovation = jobs. The problem is that innovation will remain under attack until we reform our broken patent system.

With that in mind, CCIA has sent a letter to the U.S. Congress, urging them to enact comprehensive patent reform as soon as possible. Senate Judiciary Chairman Leahy, House Judiciary Chairman Conyers, and other Members of Congress have recognized the need to reform the patent system quickly and efficiently. We�re pledging to work with the President and Congress step-by-step until these necessary changes are made into law.

We need to provide the PTO with both the resources and the accountability necessary to improve patent quality, and to reform patent litigation to protect innovators who are afraid to innovate for fear of job-killing litigation.

Check out the letter and comment with ideas for how to continue building momentum for patent reform.

iPad: Doesn�t Support Flash, Multitasking; But Supports Patent Lawyers

On January 28, the day after Apple announced its highly-anticipated iPad product to the world, a company called Intellect Wireless sued Apple in the Northern District of Illinois, seeking nearly $10 million dollars in damages for infringement of its patents (Case No. 1:2010cv00586).

In less than two years, Intellect Wireless has sued almost every single major wireless telephone manufacturer for patent infringement.

On February 28, 2008, Intellect Wireless sued T-Mobile USA, US Cellular, Virgin Mobile USA, Helio in the Northern District of Illinois on three patents. These patents generally covered a �Picture Phone with Caller ID�, as well as improvements in paging systems.

Following the well-worn strategy of settling with smaller companies and climbing the food chain, Intellect Wireless hammered out settlements with Helio and Virgin Mobile within six months. (The case remains pending against the remaining defendants.)

On March 6, 2008, Intellect Wireless sued Motorola, LG Electronics, Sanyo Electric Co, Kyocera Wireless, and Sprint Nextel Corp for infringement on two patents. These patents can be generously labeled as �broad,� since they cover the use of picture and video messaging on wireless devices, and the means for updating contact information in such devices: core features of today�s modern cellular phones. Despite the fact that the technology claimed in these patents has been long in existence, Intellect Wireless was issued these two patents in 2007. These patents are not only noteworthy for their undeserved breadth in subject matter, but also for the length of the patent document itself. For example, Intellect Wireless� voluminous patent on a �Method and Apparatus for Improved Paging Receiver and System� cites nearly fifteen pages worth of prior art references, offers 45 pages worth of diagrams and presents 37 actual claims...

Is �intellectual property� either?

Yesterday we mentioned a little-noticed story from last week - overshadowed by the State of the Union, the iPad launch, and here in DC, the State of the Net - in which Google was exonerated by a jury in Marshall, Texas from allegations of patent infringement.

Worthy of further note is that at the end of the two-and-a-half-year case, the patent holder�s lawyer argued:

�If someone drills oil on your property, they are responsible for paying royalties whether they knew it was your property at the time or not.�

This is wrong, and most IP lawyers know it. �Intellectual property� is very much unlike real property. True, the word �property� is in the name, but if you think that makes IP property, first consider whether the PATRIOT Act regulates patriotism.

Many reasons why IP isn�t property are ably recounted by noted lawyer and law professor Mark Lemley here. This is also why, incidentally, the Supreme Court held that infringement isn�t the same as �theft.� Nevertheless, when talking to non-lawyers � particularly when representing a plaintiff, IP lawyers don�t always shoot straight about this. The urge to mislead the public with the property metaphor is overwhelming. Protecting �property� is good. People worry about government taking property. (Nevermind that patents are handed out by the government in the first place.) The word pushes emotional buttons. The problem with the �property� metaphor is that it breaks down faster than a thin-skinned American Idol contestant.

Take the oil-drilling example here. The boundaries of real property tend to be self-evident. Someone lives on it. Or perhaps there�s a fence. And even if there isn�t, the state knows who owns what in case they may want to tax land or regulate nuisances. Someone knows who owns what. So you can go down to the county assessor and ask, �who owns that land?� Try that at the PTO and they might laugh at you...

Beating the odds in Eastern Texas

We have discussed the Eastern District of Texas�s reputation as a haven for patent trolls. Patent holders suing for infringement check in at a 78 percent success rate in the Eastern District of Texas, far higher than any other region in the country.

However, even in the most patent-friendly districts reason prevails every once in awhile. In a rare defendant�s victory in the Eastern District of Texas, Google successfully defended themselves against plaintiff and patent holder, Function Media, last Tuesday. Though the story was only picked up by the local newspaper, The Marshall News Messenger, it deserves additional mention.

Function Media asked the jury for $600 million in damages. The dispute was over three patents�which we�ll kindly label as �broad� - pertaining to customization of web ads. The patents in this suit particularly targeted Google�s AdSense and AdWords technologies, as well as general means for providing media advertisement. Ultimately, the jury focused on only two of the patents that were in dispute.

Ed Sperling at EDN was all over this back when the lawsuit was first initiated in July 2007. His research found that Function Media�s legitimacy was questionable at best:

�How can two people with absolutely no searchable past, working for a company that has no history, obtain three separate patents and challenge Google and Yahoo? [�] From an Internet history standpoint, Dean, Stone and Function Media appear to be ghosts. There is no trace of them except at the U.S. Patent Office.�

Sure enough, a simple web search of Function Media produces the EDN article, the actual court case, and little else.

A victory for Function Media would have made one more example of the Eastern District of Texas enabling non-producing entities to take advantage of the broken patent system. Yet, in a departure from the trend seen over the past few years, jurors in Marshall, Texas, refused to side with the patent holder. Despite the argument by Function Media�s attorneys likening the patent infringement in this case to someone drilling for oil on someone else�s personal property, the jury ultimately held that the patents here, spanning nine claims total, were anticipated by the prior art and obvious. This holding may inhibit Function Media from asserting these same patents against other new defendants.

Anecdote isn�t data, so one isolated case of a defendant coming out on top in this hostile district is not necessarily evidence of a permanent trend. Still, it is encouraging to see reason prevail.

Series on Venue Shopping and the Eastern District of Texas Part 3

Plaintiff-hungry lawyers Gobble Up Eastern District of Texas Patent Cases

As we�ve talked about, there are a few significant reasons why cases are so often taken to Marshall, such as plaintiff-friendly juries, the �rocket docket� and plaintiff-hungry lawyers. As a conclusion to this series, today we�ll just focus on why Marshall is so attractive to plaintiff-hungry lawyers.

P.I to I.P. � A Quick Marshall History Lesson

Marshall�s booming legal community reaches back far. In the late 1800s, Marshall was an active transportation portal to the North, which linked the Texas and Pacific Railway. During the building of the railroad, many personal-injury lawyers came to Marshall to represent injured workers. In the 20th century, toxic torts and consumer class actions became litigation fodder. Marshall evolved in time, however, as the New York Times pointed out:

�By the late 1990�s, though, it looked as if the good times were ending for Marshall�s lawyers. Broad tort reform in the state had limited punitive damages and later capped damages on medical malpractice lawsuits, effectively limiting the fees that lawyers could make.

�In Marshall, an oft-told joke is that the passage of tort reform was when many local lawyers made the trip from P.I. to I.P. � that is, they moved out of personal injury and into intellectual property.�

According to the Boston Globe, the Eastern District�s plaintiff friendly juries have led to �higher than average financial awards� � which has consequently attracted the attention of plaintiff attorneys seeking to cash in on this windfall. This would allow many plaintiff attorneys taking cases on a contingency basis to maximize the potential financial reward for the risk involved...

What Can You Do With $5.5 Million?

This week President Obama addressed job creation and spending in his State of the Union address. Although he did not directly address the broken patent system, his speech did support a few of the issues we have raised in terms of patent litigation stifling innovation and job creation.

With that in mind, here�s some purely hypothetical uses for $5.5 million dollars:

hire 79 experienced software engineers at high-paying salaries
hire Indianapolis Colts Pro Bowl Receiver Reggie Wayne to play for your football team

defend yourself in the average patent infringement litigation

According to the Metropolitan Corporate Counsel, the average cost of a patent lawsuit has risen 10% just in the past two years.

The sooner we fix the broken patent system, the sooner we can put those 79 software engineers back to work and stimulate the economy. We support President Obama�s pledge to stimulate job creation and we believe that innovation will be a key component. Yet, until Congress addresses the broken patent system, many small businesses, including many in the high-tech industry, do not have the legal clarity they need to compete globally.

Patent Reform is Crucial to Obama's Global Competition and Innovation Agenda

During last night�s State of the Union address, President Obama spoke of the need to maintain the nation�s competitive position in the world and to encourage innovation. While we wholeheartedly agree with the President�s focus on competition and innovation, unfortunately our outdated patent laws inhibit the innovation they�re supposed to promote � especially in the tech sector.

The patent system dates back to the founding of our country, and contemplated simpler inventions that lacked the hundreds of interoperable components found in the Blackberries and smart phones that some members of Congress Twittered from during the speech. The last comprehensive revision of U.S. patent law took place in 1952 � light years away from where we are today on technology issues.

The current patent system has come under increasing pressure as the technological revolution transforms our way of life and business. It is past time for the patent system to catch up with the 21st Century high-tech economy. Obama�s campaign material noted that, �a system that produces timely, high-quality patents is essential for global competitiveness in the 21st century. By improving predictability and clarity in our patent system, we will help foster an environment that encourages innovation.� So we trust the administration sees patent reform as an innovation issue even though it didn�t make it into the address.

The speech was more general in its focus on jobs without giving too many specifics on creating those jobs. We hope as members of Congress respond to both his call to pass policies that will produce jobs and to find ways to work together, that patent reform will emerge as an issue that has bipartisan support and can deliver the economic boost the nation needs. If Congress can bring patent reform legislation to a vote this year, it will help rebalance, strengthen and enhance the patent system and enable cutting-edge innovation to continue to drive the U.S. knowledge-based economy.

Literature Review: Patent Litigation Popularity

Another recent article, cleverly titled, Of Trolls, Davids, Goliaths, and Kings: Narratives and Evidence in the Litigation of High-Tech Patents, seeks to quantify the most popular �type� of patent disputes. Authored by Santa Clara University School of Law Professor Colleen Chien, the article studies case filings from January 2000 to March 2008. Chien investigated the prevalence of a number of common patent litigation scenarios including (but not limited to) suits: a) between two large corporations; b) between an individual inventor and a company; and c) by patent trolls.

After sorting through approximately 2,300 cases, Chien found that 17 percent of all cases involved patent trolls. Expecting a higher percentage in light of the tremendous controversy surrounding patent trolls, Chien realized that these results failed to account for a typical patent troll tactic. Often, patent trolls will sue a number of distinct defendants in a single suit, and it is not uncommon for patent trolls to adopt a shotgun approach, accusing more than a dozen unrelated parties of infringement in a single case. Accounting for each defendant as a �separate� case, Chien found that the percentage of suits involving patent trolls rose to 26 percent. The results of her study also indicated that patent trolls filed 40 percent of all suits involving financial patents.

Furthermore, Chien noted the statistics indicated that lawsuits involving patent trolls were the fastest to be resolved, with the average suit lasting only 9.1 months. By comparison, suits involving two large corporations, or suits involving an individual inventor against a company averaged more than 14 months before resolution. As the author notes, these results support the notion that patent trolls are looking for quick settlements and royalty payments as soon as possible, and are not as interested in the ultimate merits of the case.

While Chien does shed light into the extent of patent troll activity, the results are far from perfect. For instance, the results of the study were limited to only investigating computer hardware, computer software, and financial invention patents. Granted, these categories are three of the most common in terms of litigated patents, but Chien�s study would provide a much more complete view on the effect of patent trolls in litigation, had her results accounted for other areas as well. Still, Chien notes that her study is deliberately conservative in her results, particularly with regards to counting patent trolls. A party was classified as a patent troll only where there was some sort of independent labeling (i.e. in a court document, news report, blog posting etc) to corroborate it, and did not count those individuals suing in their own name, but perhaps on behalf of a patent troll.

Additionally, Chien noted where there was no information about a party available publicly, that party was identified as a �private company�, when in fact they could have been a patent troll in reality. Consequently, the true extent of the patent troll influence is likely to rise, though it is unclear at this point just how far the reach extends. Undoubtedly, we should expect an increase from the 17 and 26 percent of all suits, and 40 percent of financial patent suits as noted prior, once a more thorough investigation is completed.

Literature Review: New Research Sheds Light on Patent Troll Litigation

New scholarship from prominent law professors confirms that patent trolls have become a tremendous influence on the legal system, and that their efforts have been targeted at a number of distinct industries and technologies.

While empirical studies are inherently subject to the interpretation of the researcher and open to the possibility of conflicting vantage points, this research may provide readers with a foundation for future discussion and research.

In Extreme Value or Trolls on Top? The Characteristics of the Most-Litigated Patents, noted law professors John Allison, Mark Lemley and Joshua Walker seek to provide real data in response to anecdotes as to the extent of patent troll activity. The article, published in the most recent edition of the University of Pennsylvania Law Review, focused on the patents subject to the most number of litigated patent cases between 2000 and 2007. The authors report that these patents are frequently in the software and telecommunications fields, as compared to other technological areas. More significant, the authors note these patents are �disproportionately owned by non-practicing entities (i.e., �trolls�).�

The authors go on to report the �most-litigated patents are overwhelmingly likely to be software patents,� finding that software patents account for nearly 75 percent of those cases involving patents subject to multiple litigation. It is no surprise to find that the related computer industry bears the brunt of the majority of such lawsuits with 72 percent.� By comparison, the authors found that using a sample size of patents, which were litigated only once, the computer industry accounted for only 34 percent of all cases. Similar incongruencies were seen in the telecommunications field as well.

In addition, the authors noted that many of the most litigated patents were owned by non-practicing entities, at a rate of more than 80 percent! The authors delineated between inventor-owned companies who do not produce the patented product, and pure patent trolls, who acquire and enforce patents. Of this 80 percent, approximately 74 percent of these cases fall into the former category, with pure patent trolls accounting for the remaining 6 percent.

While the article is an interesting read, it may only provide a glimmer into the realities of the situation. The article focuses solely on those patents which have been subject to the most number of patent litigation cases. It does not truly take into account (besides the random sample size of single litigated patents) those patents which patent trolls have asserted in a single case against a wide swath of defendants.

Additionally, in light of the thousands of patents that are issued yearly, the authors do not account for a situation where patent trolls acquire a collection of patents and sue on each patent separately. The prospect of a patent troll suing on eight separate patents is no less a drain on our patent system in comparison to a situation where the troll sues on the same patent eight times. However, the authors do provide anecdotal arguments that the patent troll business plan is exploiting a single strong patent multiple times against as many defendants available to extract the highest revenue possible. Nonetheless, the professors do correctly note the importance of non-practicing entities in the modern patent system is a crucial aspect of the system that needs to be further investigated and addressed.

Will Brown�s victory derail patent reform?

Scott Brown�s recent Senate victory sent shockwaves well beyond the Commonwealth of Massachusetts. It ended the Democrats� filibuster proof majority, and makes broad efforts at reform a challenge.

As we�ve noted repeatedly, President Obama has provided a welcome commitment to reforming the patent system. If Democrats are no longer able to push proposals through the Senate, how will this affect patent reform? IP Watchdog�s Gene Quinn recently chimed in with his opinion. In particular, he said this will likely make Congress focus on issues where there is broad consensus like more funding for the Patent Office and skip those that are controversial such as the broader reform bill.

Do you agree that the odds of patent reform in 2010 have diminished with Brown�s ascension to the Senate? If healthcare becomes a no-go, could the Democrats turn to patent reform as an issue where they can garner bi-partisan support? Our two cents: the latter is likely true. Although previous patent reform efforts haven�t crossed the finish line, there has been bi-partisan, bicameral support for significant reform.

We simply cannot place patent reform on the back burner. The need for patent reform is unquestionable. We must rebalance, strengthen and enhance the current patent system to drive cutting-edge innovation that in turn drives our knowledge-based economy. At a time when our economy continues to struggle, partisan battles should not stand in the way of changes that will spur economic growth, investment, job creation, technological progress and innovation.

Patent Trolling for Dummies

A step-by-step guide to the business of �being infringed�:

Apply for or acquire vaguely worded, broad patents in areas where the business community is already investing money. When applying, look for areas where there is little focus on documenting prior art (e.g., technology integration, software, business methods, web design). When acquiring, seek out failing businesses trying to liquidate their patent portfolio in bankruptcy.
Create a holding company for your new acquisitions, preferably one with �America� in the name. (actual residency optional).
Send demand letters to small businesses that can�t afford to litigate. Offer them a license for less than the costs of litigating the case. Victims will settle even frivolous claims if the price is less than the cost of vindicating themselves.
When suing, take advantage of lax venue laws to choose districts that are remote or known to be sympathetic to patent plaintiffs (e.g., Eastern District of Texas, Northern District of California). Alternatively, simply incorporate your shell company in a plaintiff-friendly district.
Climb the food chain. Once you�ve secured licenses from smaller businesses, up the ante and sue medium size enterprises. Once you have a stable of companies licensing your vague patents, you graduate to Fortune 500 businesses and threaten to shut down their operations with an injunction.
Get half a billion dollars in settlement. (Note: your mileage may vary)
(optional) Sue your critics. Once potential whistle blowers see what they get for their troubles, they�ll think twice.

Obama Blasts USPTO system as �embarrassing�

At a time when America is trying to regain its economic footing, we need to ensure that new innovation is taking place at a rapid place that can help pull the country out of tough times. However, it�s hard to move forward on that front when there�s a major backlog of patent applications at the USPTO, slowing down the process through which major and important new innovations can be granted patents. It looks like President Obama is finally realizing just how important patent reform is.

Kim Hart of The Hill reported late yesterday afternoon that President Barack Obama revealed his opinion on the antiquated U.S. patent system at the Forum on Modernizing Government:

��Believe it or not, in our patent office -- now, this is embarrassing -- this is an institution responsible for protecting and promoting innovation -- our patent office receives more than 80 percent of patent applications electronically, then manually prints them out, scans them, and enters them into an outdated case management system,� Obama said��

�This is one of the reasons why the average processing time for a patent is roughly three years,� Obama added.

Now if our own President is embarrassed by our patent system, perhaps it is time for a change. Patent reform should address up-to-date technology that can handle the number of patent applications that are filed each month and should be able deal with the backlog of applications.

Congress needs to act this year to pass patent reform legislation that will bring USPTO technology into the 21st Century and up to speed with the latest, cutting edge technology. Only then, can innovation prosper and help to improve our economy.

For more information on the U.S. patent system and the USPTO, visit www.uspto.gov.

Series on Venue Shopping and the Eastern District of Texas Part 2

The Big Question: Why are so many patent cases brought to Marshall?

There are three probable explanations for why cases are taken to Marshall so often: plaintiff-friendly juries, the �rocket docket� and numerous plaintiff- hungry lawyers. Today we�ll just focus on the first reason: how and why plaintiff-friendly juries in the Eastern District of Texas create an ideal situation for non-practicing entities.

Plaintiff-friendly juries

In a September 2006 New York Times article, Julie Creswell wrote that patent holders in the Eastern District of Texas docket win �78 percent of the time, compared with an average of 59 percent nationwide, according to LegalMetric, a company that tracks patent litigation.� In a 2006 article in the Kansas City Daily Record and republished by Lawyer�s Weekly Dick Dahl reported that of the eight cases that were ultimately decided by a jury in the Eastern District, the jury sided with the plaintiff all eight times!

In addition, juries have a history of awarding huge verdicts to winners. The odds lead many corporate defendants to attempt to settle before having to set foot in Marshall.

�In April, for instance, a Marshall jury returned a $73 million verdict against EchoStar Communications for infringing the patents of TiVo,� Crewell reports later in that same 2006 New York Times article. A short time later, this award was trumped by a $133 million dollar verdict in favor of Z4 Technologies in its case against Microsoft and Autodesk, according to Dahl�s article. From 1995 to 2007 the median damage award by Eastern District of Texas juries was approximately $19.7 million dollars, among the highest in the nation, according to an Omega Communications article last year.

Creswll wrote that:

�The success rate for patent holders in Marshall is a great incentive for defendants to settle matters quickly and privately. Since 1991, the Federal District Court in Marshall has held less than half the number of full patent trials as courts in Los Angeles, New York, Chicago and San Francisco.�

Additionally, Dahl wrote that the plaintiff-friendly nature of the juries may also be attributed to the fact that Texas jurors often hold property rights in high regard. Dahl quotes Attorney James P. Bradley as saying that:

�When a patent holder argues that someone is infringing on its property, it's a message that resonates with Marshall Jurors.�

Stay tuned for an upcoming post on the Eastern District of Texas� �Rocket Docket�.

Introducing a Series on Venue Shopping and the Eastern District of Texas

One of the problems that could be addressed by patent reform legislation is venue shopping. In a series of posts we�ll look at a popular litigation destination and why lawyers are taking up residence � or at least office space � there.

Eastern District of Texas: Non-Practicing Entity Haven?

Marshall, Texas, a town of about 25,000 residents and the self-proclaimed Pottery Capital of the World, has another feature you aren�t likely to read about in a Chamber of Commerce brochure. As many of our readers know, Marshall has long been criticized as a patent troll haven � a place where plaintiffs in patent cases often walk away with huge awards in record time.

(As of writing, it is even noted on the town�s Wikipedia page) ...

Patent Prosecution by the Numbers � USPTO v. EPO

A January 7 article posted on the Intellectual Asset Management website alerted readers to a shortage of patent attorneys authorized to prosecute patents before the European Patent Office (EPO). The EPO is an organization that provides streamlined search and examination functions on behalf of the patent offices of the individual member countries. For example, an applicant seeking patent protection in England, Spain and Germany, may file a single application with the EPO, which will then grant patent protection on behalf of those designated countries.

According to the article, the entire European Union currently has only 9250 licensed patent attorneys authorized to prosecute patents before the EPO. With a total population of 500 million people, this works out to one patent attorney for every 54,000 people. By comparison, there are currently over 39,000 people in the United States who may prosecute patents before the U.S. Patent and Trademark Office (9722 patent agents and 29482 patent attorneys). Taking the U.S. population of just over 307 million into consideration, that�s a ratio of just about one patent professional for every 7,800 people.

Perhaps the short fall in the number of patent attorneys in Europe is not a pressing issue due to a lower number of patents to file at the EPO. In other words, one potential reason for having nearly one-third less patent attorneys is that the demand for patent applications is simply not as high. In investigating this hypothesis, we looked at the total number of patent applications filed in the USPTO compared to the EPO. See Figure Y. We focused solely on utility patents, choosing not to account for design patents (which are not actively examined by the EPO), and plant patents (which stands on tenuous legal grounds in Europe)...

Patent Reform Should Be Key Part of Our Innovation Agenda

For over 200 years, the U.S. has been a home to innovation. We are still celebrated for innovation, but today innovation is more diverse, often more complex, and increasingly collaborative. In addition to product and process innovation, we benefit from new forms of marketing and other business and social activities.

The policy tools we have for encouraging innovation have also grown in scope and complexity. The Constitution authorized patents and copyright �to promote the progress of science and the useful arts.� In the 19th Century, states invested heavily in agricultural research. After World War II, the federal government began making large investments in basic science, as well as in technology for defense. Post-Sputnik, we worked to improve education in math and science. We grant tax credits for �research and experimentation.� We have set-asides for small business, because small businesses are considered more innovative than large businesses.

For innovation to happen, ideas are not enough, there must be real impact. Realizing innovation may require research, practical invention, product development, integration, design, marketing, and/or organizational change.

The federal government seldom invests directly in innovation, except where it supports a recognized federal purpose such as defense. State governments (as well as other countries) have been more adventuresome, sometimes putting money into incubators, technology parks, research consortia, investment funds, regional clusters, research institutions, and region-specific technologies. Yet the federal government plays a critical role in setting the right conditions for innovation. It supports a vast amount of scientific research and data collection. The federal government sets the ground rules for intellectual property, environmental protection, corporate reporting, financial markets, trade, consumer protection, and health and safety standards � all of which shape innovation and competition.

New database to expand field of patent research

While PACER is a vital research tool for anyone interested in patent infringement cases, it isn�t exactly the most efficient website we�ve encountered. We�ve all had to sift through hundreds of cases at one point or another to find what we�re looking for.

Two Stanford researchers have produced a new system that may have the potential change the way we explore and analyze the patent system. As they announced on Tuesday, Mark Lemley and Joshua Walker have created an online research tool called Lex Machina, which contains 25,000 patent infringement cases as well as 100,000 IP and antitrust cases.

The last two sentences of their press release really caught our eye: �The average patent case costs $5 million in legal fees on each side to litigate. A patent lawsuit can prevent a company from bringing a new product to market, or otherwise stall the kind of innovation that the IP system was meant to spur.�

If Lemley and Walker plan to use Lex Machina to help foster a renewed sense of innovation, the sky just may be the limit. Innovators are currently spinning their tires in the mud, held back by an outdated patent system that permits a merry-go-round of frivolous legal action.

David Worthington over at Technologizer wrote today, he got a sneak peak at the new system, and the results are telling. In the post, Lemley tells Worthington that his research using the new online site has found that 30 percent of all IT suits are initiated by patent trolls.

Information is power. A database like Lex Machina can be an important tool in fighting the battle against patent trolls. Kudos to Lemley and Walker for the time, effort and the idea -- and also for sharing such a great site.

Our top 5 patent reform wishes for the New Year

It happens like clockwork, every New Year. We all make those resolutions to change for the better in the coming year. Some resolve to go to the gym more; others pledge to quit smoking or finally get organized.

Here at Innovation Policy Post, we keep our focus on the important things in life, like enacting genuine patent reform! New blog, renewed resolutions�

We have a feeling this is going to be a banner year. Here are the top 5 things we�re hoping to see in 2010:

1. An end to the abuse by patent trolls

Imagine you�re an innovator. You spend your days plugging away, attempting to build the next great product that will stimulate the economy and benefit society. When your big day finally comes and your product ships�you get sued for patent infringement. And not even by a company that makes these sorts of products. You get sued by a patent troll that does nothing but buy up patents for the purpose of suing honest businesses.

You probably wouldn�t be too happy about it, would you? These abuses happen daily, and it�s about time we started making a bigger deal about it.

If patent trolls are finally held accountable for their actions, it will lead nicely to our second wish�

2. A renewed culture of innovation

Okay, envision you�re an innovator again. And you no longer have to worry about getting punished by patent trolls for your vision and creativity. The days of you having to check the books to make sure you�re not infringing on some broad, obscure patent are in the past. Think you might be more likely to come up with exciting new products with all that pressure off your back? We do.

3. Increase in the standard of patent quality

Wouldn�t it be silly if you could patent a snorkel meant for your toilet? Oh wait, you can.

How about if you could patent a dog house that can be strapped to your shoulders so as to walk around with it? Okay, looks like you can do that too.

Well, surely there�s no way you can patent a diaper for your horse. Seriously?

While these examples fall more on the side of ridiculousness, the extremely low standard of patent quality in this country can also be used to patent overly broad ideas. This, in turn, can benefit trolls who claim to have patented well-documented inventions such as bar codes or podcasts (more to come). We need to get serious about what qualifies as a legitimate patent.

4. Make patents play nice with technology standards

Technology standards are prime targets for patent trolling. By holding up a standard, a patentee can hold hostage all the value that consumers and producers get out of standards like WiFi, or the MPEG and JPEG file formats [More on that here - PDF]. By one estimate, Americans pay $20 to $30 more for a digital television due to IP rights built into DTV standards. �Being infringed� should not be a business model.

5. The Obama Administration and Congress fulfilling the President�s promise of patent reform

This is key to each of the previous goals. To their credit, President Barack Obama and Commerce Secretary Gary Locke have expressed a desire for serious patent reform. With his appointment of PTO Director David Kappos, President Obama is off to a good start. 2010 is the year for patent reform!

Welcome

Welcome to the Innovation Policy Post, CCIA's forum for news and debate about intellectual property issues.

We will use this blog to share our thoughts, and get yours, on patent and copyright law. We'll also highlight abuses of those laws that range from ridiculous to damaging and illustrate the need for patent reform and 21st-century copyright laws. As you can see from the navigation bar, we intend to gradually add other innovation issues to the discussion, like competition policy and telecom issues.  Innovation is essential to America's ability to compete in the global economy, and government policies need to reflect an awareness of how the world has changed. CCIA has been an important voice in those discussions for years, and the Innovation Policy Post will help us both add to the debate in a new format and give other people a voice.

Our goal is to create a civil but robust dialogue on innovation and obstacles to it. We'll leave the legal mumbo-jumbo to the legal blogs, though we'll undoubtedly be linking to their work periodically because their insights are valuable. We look forward to the discussion.

(CCIA members wholeheartedly believe the Internet adds great value to policy debates. At the same time, we are aware of its limitations. We want to protect the anonymity of people who desire it, but we don't want anonymity to be used as a shield for bad behavior. With that in mind, you can join the Innovation Policy Post community by registering anonymously, but you will have to provide your actual name and a real e-mail address behind the scenes.)