Sen. Patrick Leahy (D-Vt.)

Sen. Patrick Leahy (D-Vt.) spoke at the World Copyright Summit this morning where he called for improved protection of intellectual property rights. He said he is working on legislation that will ensure musicians will receive compensation when their work is played over the radio and will bring U.S. copyright law in line with those laws in other countries.

Remarks Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
At The World Copyright Summit
“New Frontiers For Creators In The Marketplace”

June 10, 2009

As Prepared

Thank you.  I always appreciate the opportunity to be in such talented company.

I would like to thank the President of CISAC, Robin Gibb, and the Chairman of the Board, Brett Cottle, for inviting me here today.

I am an avid fan.  I see intellectual property rights as an important way to ensure that inventors and creators have the incentives to produce their work.  In my role as a United States Senator, I am also interested in the value of that work in our economy, and the importance of bringing those creations to the public.

This Conference brings together those who create the movies, music, art, and literature we enjoy, with those who are able to connect creators and consumers.  The design of this Conference represents an important recognition that a symbiotic relationship exists among all participants in the copyright system.

This relationship is also reflected in copyright policy.  The art of creating copyright law is in understanding the need to provide strong and sufficient protections for creators, while making sure that their creations can be used, enjoyed, and appreciated.

Too often, different factions within the copyright community view themselves only as having competing interests.  They fail to work together to see what can be achieved through cooperation.  I encourage you to use the dialogue you are creating here this week to bridge policy differences.  We should work together on copyright legislation that ensures a fair and functioning system in the Information Age.

Intellectual property is a major driver of the United States economy.  I was able to be on a movie set recently and it gave me a firsthand view of the talent and effort that goes into creating such an incredible work.  It also demonstrated how many jobs are related to the industry.  That last Batman movie included over 65 days of filming in Chicago, and $36 million was poured into the local economy as a result.  Seventeen million dollars went to nearly 800 local vendors – that is real money that creates real jobs.  Congress must do its part to protect intellectual property, and to foster its growth.  That is why legislation to reform our patent system, protect the rights of creators, and enforce our copyright laws must be enacted and supported.

Preventing the theft of intellectual property – your work – therefore remains a high priority of mine.  A few weeks ago, President Obama announced a new cybersecurity initiative.  In doing so, the President noted some estimates that online intellectual property theft reached $1 trillion worldwide last year.  That is unacceptable.

As we work to reinvigorate the American and global economies, we simply cannot afford to tolerate theft on this level.  You are all creators and legitimate users of intellectual property.  The theft of intellectual property hurts all of us, it costs jobs, and it impedes economic growth.

More than ever, we need a comprehensive and coordinated IP strategy.

Last year, Congress enacted an intellectual property rights enforcement bill that I was pleased to sponsor.  We intend that law to provide the resources and coordination our law enforcement agencies need to combat intellectual property theft here in the Unites States.

But your businesses and your audiences are increasingly global, and so our governments must also work together on an international approach to protecting intellectual property rights that fosters creativity and facilitates the legitimate distribution of your work to consumers.

I am working on bipartisan legislation this year, on which all aspects of the recording industry agree, that will harmonize U.S. copyright law in important respects with the rest of the developed world.  It will ensure performing artists are compensated when their work is broadcast over the radio.

Copyright issues are global in large part because we are moving at full speed into the digital world.  Consumers are increasingly accessing news and entertainment content online.  From watching user generated videos, to episodes of the evening news, there is no question that consumers are taking advantage of the fast-growing digital environment.

Consumers watch videos over the web on their television sets, on their computers and on personal digital devices.  The online world is adaptable, and it does not recognize international boundaries.

This week, television stations in the United States will cease analog broadcasting and complete the digital transition.  Radio stations are also providing high definition digital services today.

The digital world brings with it the perils of piracy for content owners, but it also opens new business models and new opportunities for creators to reach consumers.

I have been working on intellectual property policy for many years now.  It was 15 years ago that I last addressed the CISAC World Congress about copyright issues.

A little more than a decade ago, we enacted the Digital Millennium Copyright Act to address emerging issues related to copyright and the Internet.  The DMCA was intended to provide a framework for protecting content, while allowing Internet access and online service providers to flourish.

The legislative process is deliberate, and so the DMCA had to be sufficiently flexible to address issues that would arise in a rapidly innovating world.

Business models, technology, and Internet usage change faster than Congress can act.  Consider that in the time since the DMCA was enacted, the number of homes in the U.S. with Internet access has roughly tripled.  When Congress passed the DMCA, Google had yet to be incorporated.

The relationship between Internet service providers and content owners continues to evolve.  New issues that were barely contemplated when we wrote the DMCA a decade ago will surely emerge.

Your innovation has changed, and will continue to change the digital environment. As the digital world evolves, and the issues you confront as both creators and distributors of content change, I look forward to continuing to hear from you on how the current law is working and how it can be improved.

I again commend you for bringing together interests on all sides of copyright issues.  Thank you for giving me the opportunity to be a part of it.

Civil Division chief Tony West has recused himself from Justice Department decisions in an important copyright case that pits Hollywood studios against the Cablevision cable company. The news came at the bottom of a 22-page amicus brief filed last month by Solicitor General Elena Kagan that opposes Supreme Court review of a 2nd Circuit ruling that Cablevision’s “network DVR” service didn’t infringe the studios’ copyrights. The case is Cable News Network, Inc., et al v. CSC Holdings Inc. et al. View the government’s brief here.

The Los Angeles Times called Kagan’s position “a departure from the previous administration’s expansive view of copyrights” and said it was cheered in many quarters of the tech community. Read the LAT’s analysis here. But the newspaper also noted that Kagan was careful to emphasize the narrowness of the 2nd Circuit’s ruling. 

At the bottom of the government brief is an asterisks that says, “The Assistant Attorney General is recused in this case.” Justice Department spokesman Charles Miller confirmed that West is the official who recused himself. West is a former partner at Morrison & Foerster, which represented The National Music Publishers’ Association. The music publishing group filed an amicus brief in support of review, Miller said. He added that West wasn’t involved in the litigation.

Advocates of digital sharing have been watching the DOJ with unease since the appointment of several former lawyers for clients who advocate strong intellectual property law enforcement, including Associate Attorney General Tom Perrelli.

File-sharing advocates are keeping a sharp eye on Associate Attorney General Tom Perrelli, the former Jenner & Block partner who represented the Recording Industry Association of America and vowed at his confirmation hearing to pursue strong intellectual property enforcement at DOJ.

Tom Perrelli

This recent post on the TechDirt raised alarms about whether Perrelli would be subject to a one-year or two-year ban on dealing with matters that affect his former clients.

President Obama’s stringent new ethics policy requires all administration appointees to recuse themselves for two years from matters of interest to former clients. But TechDirt found this letter on Pro Publica’s site from Assistant Attorney General for Administration Lee Lofthus to Robert Cusick, director of the Office of Government Ethics, saying Perrelli understands he must not participate in any matter affecting Jenner & Block clients for only one year.

Justice Department spokesman Matt Miller told Main Justice that the Loftus letter was boilerplate language that hadn’t been updated for the new policy. Miller assured us that the White House ethics policy supercedes traditional ethics guidelines in place at agencies. In short: The two-year ban applies to Perrelli and other former intellectual property lawyers who recently joined the Obama DOJ, Miller said.

Miller also said Perrelli had not requested any exemptions from the ban.

The Antitrust Division has opened in inquiry into the ramifications of Google’s settlement with publishers and authors over its new book scanning service, the New York Times reports, citing two “people briefed on the matter.” The Times also reports that DOJ won out over new Antitrust Division head Christine Varney’s old agency, the Federal Trade Commission, in reviewing the matter.

Google CEO Eric Schmidt, an early Obama endorser, was named this week to a new President’s Council of Advisors on Science and Technology. Schmidt and Google raised $150,000 for the Obama campaign and co-hosted an invitation-only inaugural ball in Washington for Obama, the San Francisco Chronicle notes.

UPDATE: Google has issued a defense of the book deal following today’s report of the antitrust inquiry

Five lawyers who’ve represented the Recording Industry Association of America have been tapped for high-level Department of Justice jobs, to the dismay and outrage of electronic freedom activists.

Ian Gershengorn (Jenner & Block)

Monday’s news that Ian Gershengorn would be deputy assistant attorney general of the Civil Division is the latest affront to information freedom activists. Gershengorn served two years in the Clinton DOJ as special assistant and counsel to Deputy Attorney General Jamie Gorelick, and as assistant to Attorney General Janet Reno. See our previous post on the mounting controversy here.

Says Wired:

Gershengorn, a partner with RIAA-firm Jenner & Block, represented the labels against Grokster (.pdf) and will be in charge of the DOJ Federal Programs Branch. That’s the unit that just told a federal judge the Obama administration supports monetary damages as high as $150,000 per purloined music track on a peer-to-peer file sharing program.

The other new DOJers who represented the recording industry in private practice include ex-Jenner & Block lawyers Tom Perrelli, Donald Verrilli, Brian Hauk and Ginger Anders.

Perrelli is Associate Attorney General, the department’s number three official; Verrilli is associate deputy attorney general; Hauk is counsel to the associate attorney general; and Anders was tapped as an assistant to the solicitor general.

Advocates of fewer barriers to the exchange of information in the digital age asked President Barack Obama in a letter to stop staffing his administration with the likes of Tom Perrelli and Donald Verrilli. While partners at Jenner & Block, the now-high ranking DOJ officials specialized in copyright protection cases on behalf of content-owners including the Recording Industry Association of America and the motion picture industry.

The letter from the Wikipedia Foundation, the American Library Association and other interest groups didn’t name Perrelli, now the Associate Attorney General, and Verrilli, an Associate Deputy Attorney General. But it referenced them.

 The Electronic Frontier Foundation, also a signatory, posted the letter here on their web site. The money quote:

[T]wo of the most senior officials in the Department of Justice represented the recording industry in litigation for many years. The fact that these individuals were litigators rather than registered lobbyists does not diminish the possibility that they may be inclined favorably towards the positions of the industries they long represented. Recent developments like the Justice Department’s intervention in

Sony BMG v. Tenenbaum in favor of the plaintiff record label heighten these concerns.

The Department of Justice intervened in an ongoing copyright infringement case today on behalf of the recording industry, continuing the Bush Administration’s defense of harsh civil penalties for individuals involved in peer-to-peer internet sharing.

The administration, filing a motion to intervene in favor of the plaintiff in Massachusetts district court case Sony BMG Music Entertainment v. Tenenbaum, defended the ability of record companies to sue individuals who leak content online for statutory damages that can be more than a thousand times larger than the cost of the initial crime. The Bush administration had taken a similar stance in 2007, when it had intervened in Capitol v. Thomas, arguing that a $222,000 fine for illegally downloading 24 songs passed Constitutional muster. 

The move comes as a surprise to supporters of Obama who thought the new administration would change the former president’s support of restrictive copyright infringement penalties. Proponents of more permissive copyright law, including Google CEO Eric Schmidt and noted Internet activist Lawrence Lessig, had praised Obama during the campaign for his support of less stringent regimes like Creative Commons.

As President, however, Obama has not garnered the same applause from opponents of the Recording Industry Association of America (RIAA), after appointing two former copyright lawyers to top positions in the Justice Department. Tom Perrelli, who represented the RIAA in private practice at Jenner & Block, was recently confirmed as associate attorney general, the number three position at DOJ. Another Jenner & Block partner, Donald Verrilli, who represented Viacom in their copyright infringement case against YouTube and the RIAA, was named associate deputy attorney general. Verrilli, for his part, withdrew from involvement in the case last week, citing a perceived conflict of interest. But critics see a connection between the appointments and the Obama administration’s decision to intervene.