Town Meeting on SOPA

On Tuesday, Jan. 31, Brooklyn Law School Intellectual Property Professors Derek Bambauer, Jonathan Askin, Jason Mazzone, Samuel Murumba, Jane Yakowitz, and Irina Manta held a Town Meeting on SOPA with a standing room only crowd in the Student Lounge. Leading off the meeting, Prof. Bambauer presented an overview of the differences and similarities in the Protect IP Act (PIPA) and the Stop Online Privacy Act (SOPA) which are both still pending in Congress. Next Prof. Yakowitz spoke about the privacy issues inherent in the bills especially concern that the government may use seized domain names to collect IP addresses from end users who go to those seized domains.

Next, Prof. Askin discussed the success of the internet community in opposing SOPA and PIPA bills which major companies in the TV, music and movie industry largely authored and for which they lobbied. Calling the online protest to SOPA and PIPA the first significant victory for the internet community, Prof. Askin also discussed the OPEN Act (S. 2029) which Sen. Ron Wyden (D-OR) introduced in the U.S. Senate. Rep. Darrell Issa (R-CA) introduced in the House a companion bill, H.R. 3782, the Online Protection and Enforcement of Digital Trade Act on the same day as the internet protest when high-profile websites like Wikipedia went dark. He noted that the KeepTheWebOpen site is soliciting input from the public to comment on the OPEN Act to make suggestions for its revision. Seeing this as an opportunity for lawyers and law students to provide input into the legislation, Prof. Askin will be leading a Hack-the-Act initiative to offer law students experience with legislative drafting. In a future podcast, Prof. Askin will discuss the series of events in the Hack-the-Act program scheduled later this month.

The other speakers at the Town Meeting were Prof. Mazzone who commented on the need for strong protections for owners of IP content but acknowledged concerns that copyright law is being privatized and that its meaning and application are determined not by governmental actors but by private parties, particularly deep-pocketed copyright owners. Increasingly, the balance between private rights and public interests is set by private lawmaking. Prof. Murumba noted that SOPA and PIPA are part of a broader application of protections for copyright owners making reference to the Anti-Counterfeiting Trade Agreement (ACTA), a multilateral treaty with the purpose of establishing international standards for intellectual property rights enforcement.

Finally, Prof. Manta commented on the dire warnings of the entertainment industry about the impact of online piracy at a time when the market is booming, with ever greater content choices for consumers, more options for creators, and many more opportunities for smart businesses and artists to make money. She noted a recent report entitled The Sky is Rising which shows that the entertainment industry is thriving and that anti-piracy laws are more about profit-maximization rather than survival.

Wells Notices in SEC Enforcement

Students interested in the SEC enforcement process could benefit from reviewing the Brooklyn Law School Library’s copy of The Securities Enforcement Manual: Tactics and Strategies (2d ed.) published by the ABA (Call #KF1439 .S417 2007). The manual provides comprehensive coverage of techniques for dealing with an enforcement threat from the SEC, self regulatory organizations, or state securities regulators. It describes the enforcement investigations and proceedings and provides strategies to influence the outcome of an investigation and prevent or minimize the adverse effects of enforcement actions. Chapter 3 (SEC Investigations: The Heart of SEC Enforcement Practices) explains the use of Wells Notices by the SEC with material on Wells Submissions: The Critical Step at an Investigation's Conclusion, the Historical Background of Wells Submissions, Pre-Wells Submissions and Meetings, the Wells Submission Process, the Determination Whether to File a Wells Submission, the Wells Submission's Role in the Settlement Process, the Preparation of a Wells Submission, Filing a Wells Submission and the Staff's Reply, the Post-Wells Process, and the Use of Wells Submissions in Subsequent Actions.

A Wells Notice is a notification from the SEC or another regulator like FINRA or NASD sent to a respondent when the regulator intends to recommend that enforcement proceedings be commenced against it. The Wells Notice provides the respondent with the opportunity to present a case against the commencement of these proceedings. Providing a Wells Notice is not legally required but it usually the practice for regulators to do so. See Section 2.4 of the SEC Enforcement Manual for more on the Wells Process.

The use of Wells Notices dates to 1972, when SEC Chairman William J. Casey appointed a committee chaired by John Wells, commonly known as the Wells Committee, to examine and evaluate the SEC's enforcement policies. Among the recommendations made by the Wells Committee in its Report of the Advisory Committee on Enforcement Policies and Practices was the following:

Except where the nature of the case precludes, a prospective defendant or respondent should be notified of the substance of the staff’s charges and probable recommendations in advance of the submission of the staff memorandum to the Commission recommending the commencement of an enforcement action and be accorded an opportunity to submit a written statement to the staff to be forwarded to the Commission together with the staff memorandum.

Recent newsworthy instances of the use of Wells Notices include Standard & Poors, the largest U.S. credit-rating firm, which acknowledged last September that it had received a Wells Notice from the SEC warning the firm it could face civil enforcement action for its ratings actions in a 2007 collateralized-debt obligation, a pool of subprime mortgages and other assets sold in slices to investors. S&P said it was cooperating with the SEC on the probe and that the Wells notice was "neither a formal allegation nor a finding of wrongdoing." More recently, Puda Coal, a Chinese company facing regulatory scrutiny over its financial reporting, received a Wells Notice from the SEC that it intends to recommend administrative proceedings to suspend or revoke the registration of its securities for failure to comply with certain rules under the Securities Exchange Act of 1934. The SEC offered Puda an opportunity to make a Wells Submission no later than January 16, 2012 setting forth any reasons of law, policy or fact why it believes the administrative proceedings should not be brought.

For Sale: Taxpayer Funded Research

On December 16, 2011, Rep. Darrel Issa (R-CA) Carolyn B. Maloney (D-NY) introduced H.R. 3699, the Research Works Act, similar to the Fair Copyright in Research Works Act from 2008. The legislation would end the current requirement that research paid for by taxpayers be publicly available for free. The main section of the RWA states: "No Federal agency may adopt, implement, maintain, continue, or otherwise engage in any policy, program, or other activity that (1) causes, permits, or authorizes network dissemination of any private-sector research work without the prior consent of the publisher of such work; or (2) requires that any actual or prospective author, or the employer of such an actual or prospective author, assent to network dissemination of a private-sector research work."

The impact of the RWA would be greatest on the National Institute of Health because of its Public Access Policy. Other agencies that share the results of research gained through public funds would also be inhibited from doing so in the future. The bill’s primary supporter is the Association of American Publishers which argues that charging for search results is justified as publishers add value and credibility to the research and that allowing free public access to the research results would deny publishers just compensation. Proponents of the bill claim that the peer review process assesses the research for validity and significance and adds value to justify charging for articles outlining the results.

If the bill becomes law, researchers can expect to pay $25 to $30 for access to a research paper. It will cut off a valuable source of information for schools, scientists, medical professionals and anyone interested in learning more about research. Opponents of the bill (which include the Alliance for Taxpayer Access, the American Library Association, and the American Association of Law Librarians) argue that these research results are already public property as taxpayer funds paid for the research. Those who would purchase the articles essentially pay for the research twice. These organizations stress the importance of access to publicly funded research and would like to continue its availability to those individuals whose funds made the research available in the first place. See their letter in opposition to H.R. 3699 to the House Committee on Oversight and Government Reform. Read more on at the Chronicle of Higher Educations article, Library Groups and Open-Access Advocates Speak Out Against Bill (Brooklyn Law School Library users can ask a reference libraran for the username and passwork). Open access articles on the subject incldue the NY Times op-ed Research Bought, Then Paid For and the WIRED article Congress Considers Paywalling Science You Already Paid For.

Milestones: Professional and Personal

Jean Davis is currently serving as Interim Library Director of Brooklyn Law School Library. She and the staff look forward to working with incoming Law Library Director and Associate Professor of Law Janet Sinder in summer 2012.

Sara Gras, Reference Librarian and Adjunct Assistant Professor of Law, joined the staff at Brooklyn Law School after obtaining her M.L.S. from the Queens College Graduate School of Library and Information Studies. A graduate of Saint Louis University School of Law (Class of 2005), Sara Gras served as a Westlaw Account Representative working with attorneys and staff in some of the New York’s largest law firms to provide expert training and assistance in using Westlaw and other Westlaw products from 2005-2011. This semester, Sara is co-teaching both Advanced Legal Research and Intensive Online Legal Research for Foreign-Trained Lawyers.

H.C. Singh retired as the Acquisitions and Serials Librarian in January 2012. Mr. Singh joined Brooklyn Law School in 1989 where he assisted former Library Directors Sara Robbins and Victoria Szymczak in building Brooklyn Law School’s extensive collection.

Kathleen Darvil, Reference/Access Services Librarian and Adjunct Assistant Professor of Law, and her husband Ben Darvil welcomed a second son to their family on December 13, 2011. Sean Robert Darvil weighed in at 5 lb. 15 oz. Mother, Father, older brother D.J. and baby Sean are all doing well. Kathy is on maternity leave until March 2012.

Copyright Restoration of Public Domain Works

The same day the online blackout of SOPA and PIPA protested the broadening of copyright law as censorship, the US Supreme Court issued its 6-2 opinion in Golan v. Holder, a copyright case that may possibly have greater impact on scholars, librarians, and archivists. Plaintiffs, a group of conductors, educators, and others challenged the constitutionality of the Uruguay Round Agreements Act (URAA) of 1994 which removed millions of books, films, songs, and other creative works, mostly foreign, from the public domain to "restore" their copyrights in order to bring the US into compliance with international agreements on intellectual property Section 514 of the URAA restored copyrights in certain foreign works that were previously in the public domain in the US. Included among the works were Prokofiev's "Peter and the Wolf," the symphonies of Shostakovich, Picasso's "Guernica," the English films of Alfred Hitchcock, Fritz Lang’s Metropolis and the musical compositions of Stravinsky.

Plaintiffs, who relied on the availability of these artistic works in the public domain for their livelihoods, sued the federal government challenging the constitutionality of the URAA. The 10th Circuit Court of Appeals ruled that § 514 of the URAA was within Congress’s power under the Copyright Clause and that it did not violate the free speech and expression rights of the plaintiffs who had enjoyed freely using the foreign works that had been in the US public domain before restoration.

Justice Ginsburg writing for the majority (Justices Breyer and Alito dissenting) found that "neither the Copyright and Patent Clause nor the First Amendment ... makes the public domain, in any and all cases, a territory that works may never exit." The plaintiffs argued that removing works from the public domain and putting them back under private ownership violated the "limited Times" restriction of the Copyright Clause of the US Constitution (Art I, §8, Clause 8) which states: “The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” While prohibiting perpetual copyright, it does not specify how long that term can be, nor does it impose any restriction on the number of times the term may be extended. Since 1790, Congress, has extended copyright term four times. The Court in Eldred v. Ashcroft, 537 US 186 (2003), rejected the argument that the Sonny Bono Copyright Term Extension Act passed in 1998 created a de facto "perpetual copyright on the installment plan".

The court rejected the argument that restoration of copyright for works in the public domain is inconsistent with the purposes of the "limited Times" requirement, holding instead that "limited Times" simply means "not forever." The term of restored copyright, the court noted, is not perpetual, and therefore Congress acted within its power. As for the possibility that Congress would enact more restorations to achieve perpetual copyright on the installment plan, the court held that the possibility of this "hypothetical legislative misbehavior" was not worth considering. The Court also rejected the plaintiff’s First Amendment argument, but Justice Ginsburg said “some restriction on expression is the inherent and intended effect of every grant of copyright.” But the Court said Congress’ move to re-copyright the works to comport with an international treaty was more important.

For more on the topic, see the Brooklyn Law School Library’s online edition of Copyright and the Public Domain by Stephen Fishman (2011) which brings clarity to the question of what is protected by copyright and what is not. In plain language, it explains how and why works of authorship enter the public domain. It provides detailed coverage of copyright requirements, the duration of copyright, copyright forfeiture and abandonment, the publication requirement, restoration of copyrights to foreign works under GATT, conducting copyright renewal searches, non-copyright restrictions that may protect works in the public domain, and many other important issues.

ProQuest Congressional Guides and Tutorials

The Brooklyn Law School Library offers to the BLS community ProQuest Congressional, a comprehensive online resource for historic and current Congressional hearings, public issues, legislation, history and legal research collection of congressional information available anywhere online. Access to ProQuest Congressional is via IP Authentication and is available On-Campus only. Consult the proxy instructions for off-campus access. ProQuest Congressional offers two ways to find legislative histories. (1) Select Legislative Histories, Bills & Laws from the left-hand navigation bar; (2) Search using Basic Search Form (Congressional Publications), Advanced Search Form (Congressional Publications), or Search By Number Form (Congressional Publications).

If you select Legislative Histories, Bills & Laws from the left-hand navigation bar, use the default Keyword Search form if you know the subject matter of the law. This search can be restricted by words in the public law title or by Congress. Make sure that the default Legislative Histories option is selected. To improve your search results, use the Subject Terms link to access the controlled vocabulary subject term list. If you know the public law number, the Statutes at Large citation, or the enacted bill number associated with the legislative history for which you are searching, select the Get a Document tab and enter the number you know in the appropriate boxes. If you search using the public law number or the enacted bill number, make sure you select the appropriate Congress from the drop-down list.

If you search on the Basic or Advanced Search forms, legislative histories will be included in your search results. The Advanced Search form allows you to limit your search to return results from legislative histories only. To use the Search by Number form to search for legislative histories, select Find a Legislative History by Number from the drop-down list. You can search by Public Law Number, Statutes at Large, or Enacted Bill Number.

On the left side of ProQuest Congressional is a link to its Congressional Wiki which leads to a series of Training Videos with live demonstrations of ProQuest Congressional. There is also a set of bibliographies or LibGuides on a variety of topics from basic legal research skills to legal research guides on bankruptcy, environmental law and labor and employment.

The guides are kept current (3-6 months) and provide links to ProQuest resources that may not be easy to find otherwise. ProQuest has eight different categories: 1. Congressional Guides; 2. Current Bibliographies; 3. Database Guides; 4. Getting Started; 5. In the News; 6. Legal Research Guides; 7. Quick Start; and 8. Statistical Guides. The Congressional Guides and Quick Start guides provide users with information on how to negotiate the different databases and the Legal Research and Current Bibliographies guides provide users with relevant subject specific information.

Protest over SOPA/PIPA

On Wednesday, January 18, 2012, the English language version of Wikipedia will go dark in protest of proposed US anti-piracy laws, the Stop Online Piracy Act (SOPA - H.R. 3261) and the Protect IP Act (PIPA – S.968), joining other sites, such as MoveOn, Reddit, BoingBoing, Mozilla, and WordPress. Other big name sites like Craigslist, Google, Facebook, Twitter and Tumblr all have expressed their stance against the bills but will not be joining the day of protest. Wikipedia explains the reasons for its blackout here:

My hope is that when Wikipedia shuts down on January 18, people will understand that we’re doing it for our readers. We support everyone’s right to freedom of thought and freedom of expression. We think everyone should have access to educational material on a wide range of subjects, even if they can’t pay for it. We believe in a free and open Internet where information can be shared without impediment. We believe that new proposed laws like SOPA and PIPA, and other similar laws under discussion inside and outside the United States don’t advance the interests of the general public.

A list of organizations and individuals opposing PIPA and SOPA is available at the Center for Democracy and Technology website along with a large number of professors including Brooklyn Law School Prof. Derek E. Bambauer, who signed a letter in opposition to the proposed bill materials. In a November 2011 blog post at Info/Law, Prof. Bambauer wrote that PIPA “relies on DNS blocking. The legislation says ISPs must take ‘technically feasible and reasonable measures designed to prevent access by its subscribers located within the United States’ to Web sites targeted under the bill, ‘including measures designed to prevent the domain name of the foreign infringing site (or portion thereof) from resolving to that domain name’s Internet protocol address.’ The definitional section of the bill says that ‘including’ does not mean limited to.’ In other words, if an ISP can engage in technically feasible, reasonable IP address blocking or URL blocking – which is increasingly possible with providers who employ deep packet inspection – it must do so. The bill, in other words, targets more than the DNS.” He concludes “I predict that a bill like PROTECT IP will become law. Then, we’ll fight out again what the First Amendment means on the Internet, and then the myth of America’s free speech exceptionalism on-line will likely be dead.”

This video from the Guardian puts the issue in easy to understand terms:

BLS Professor Jason Mazzone, author of the new book, Copyfraud and Other Abuses of Intellectual Property Law stated in The Privatization of Copyright Lawmaking: “Much of what will happen under SOPA will occur out of the public eye and without the possibility of holding anyone accountable. For when copyright law is made and enforced privately, it is hard for the public to know the shape that the law takes and harder still to complain about its operation.”