The 109th Congress

The 109th Congress, due to adjourn soon, has seen only one piece of substantive copyright legislation pass, the Family Entertainment and Copyright Act, P.L. 109-9, and that was very early in the session as its Public Law number indicates. (The date of signature was January 25, 2005). House IP chair Lamar Smith recently indicated he would not be advancing the Copyright Modernization Act, H.R. 6052, discussed previously. My understanding is that the Senate may pass some patent reform initiatives, but no copyright bills. The Copyright Office keeps a very useful chart (with links) to legislation here.

The lack of enacted bills is not the only and maybe not the best measure of a Congress. In the House, Chairman Smith and his staff as well as the minority members and their staff and the Copyright Office (a legislative branch agency) have devoted substantial time to music licensing issues and orphan works. Those efforts have led to a much greater understanding of current problems. Chairman Smith is a serious, thoughtful member of Congress, whom we should thank for his selfless attention to such difficult matters, matters which have no relevance to his home district. If the House stays Republican after the November elections, I believe Chairman Smith must give up his chairmanship under the committee equivalent of term limits. If the House goes Democratic, Congressman Rick Boucher may take over the IP subcommittee. Mr. Boucher, whom I knew when I was committee staff (and who was a neighbor too), has in the past staked out positions that content owners have not found entirely to their liking.

The first session of most Congresses is usually devoted to oversight hearings and gathering information. There are a number of areas that could use serious attention in the 110th Congress. I mention two: First, the secondary liability issues left unresolved by the Supreme Court in Grokster. The Court is dysfunctional, issuing 9-0 opinions, as in eBay and Grokster, which are undercut substantially by dueling groups of concurring opinions, leaving litigants, lower courts, and the rest of us trying to figure out what's next. It is well past time for Congress to assert itself, and to permit the public to join the debate in open hearings and the give and take of the democratic process, rather than having to suffer from the Court's own internal politics.

Second, issues of jurisdiction for multinational acts of alleged infringement are in serious need of attention. Right now, a small self-selected group of academics and others are pushing their own views on this issue in various forums in a fairly undemocratic way. Once the issue reaches the governement level, the work of these academics will be utilized by those for whom it is helpful, but more importantly, if past is prologue, these issues will be dealt with at the Executive Branch level through USTR and treaty negotiations. We will then be presented with the old "you gotta enact domestic legislation because we are obligated by a treaty" trick. For Congress and those affected by transborder activity (and who isn't?), these issues should be dealt with by the Congress, where the people's voice can be heard and where Congress, not the Administration can set policy.