Law Librarian Blog

White House Directs Agencies Create A Public Access Plan For Federally Funded Research

What with all the talk leading up to the sequester kicking in today, sometimes it’s hard to notice some of the things the Obama administration are doing.  Here’s an example from last Friday.  The White House Office of Science and Technology Policy issued a directive to executive departments and agencies to develop policies to make federally funded research available to the general public after one year of publication.  The entire document is here.  An excerpt:

The Office of Science and Technology Policy (OSTP) hereby directs each Federal agency with over $100 million in annual conduct of research and development expenditures to develop a plan to support increased public access to the results of research funded by the Federal Government.  This includes any results published in peer-reviewed scholarly publications that are based on research that directly arises from Federal funds, as defined in relevant OMB circulars (e.g., A-21 and A-11). It is preferred that agencies work together, where appropriate, to develop these plans.

And:

To the extent feasible and consistent with applicable law and policy; agency mission; resource constraints; U.S. national, homeland, and economic security; and the objectives listed below, digitally formatted scientific data resulting from unclassified research supported wholly or in part by Federal funding should be stored and publicly accessible to search, retrieve, and analyze. For purposes of this memorandum, data is defined, consistent with OMB circular A-110, as the digital recorded factual material commonly accepted in the scientific community as necessary to validate research findings including data sets used to support scholarly publications, but does not include laboratory notebooks, preliminary analyses, drafts of scientific papers, plans for future research, peer review reports, communications with colleagues, or physical objects, such as laboratory specimens.

The administration put out a Request for Information on the issue and solicited comments on November 3, 2011.  Many university libraries and publishers weighed in.  Libraries supported the idea of public availability for federally funded studies.  Publishers not so much, although they seemed to embrace the idea that the government should reimburse them for editorial and other fees they expend in bringing these articles to market if the works are publicly available.  The comments (available with the RFI) reflect the commercial bias of most publishers who describe the current high priced subscription system as working well.  I tend to think that if federal funding was involved in a study, then it should be publicly available.  We should wait for the details to emerge as the agencies have yet to formulate their plans under the directive.  [MG]

Now What's Going to Wake Me Up After I Fall Asleep Watching TV?

Under the Commercial Advertisement Loudness Mitigation (CALM) Act, the FCC issued rules that require commercials have the same average volume as the programs they accompany. The CALM Act rules went into effect on December 13, 2012. From the FCC's Loud Commercials FAQ:

Q: Will the new rules eliminate the problem of loud commercials?

A: The rules should eliminate any systematic difference between the loudness of commercials and the loudness of the programming they accompany. The ATSC practice that Congress directed us to adopt does not set an absolute cap on loudness. Rather, it requires commercials to have the same average volume as the programming they accompany, so that the volume a consumer chooses is the one at which both the programming and the advertisements will air. We hope and expect that compliance with this practice will significantly reduce the problem of loud commercials for consumers.

[JH]

Copyright Office Issues DMCA Exemptions

In between the news about the coming election, Hurricane Sandy’s devastation of the eastern seaboard, and the announcement of Judith Wright’s retirement as Directory of the University of Chicago’s D’Angelo Law Library, the Copyright Office issued five new exemptions to the DMCA.  The determination is part of a review conducted every three years by the Library of Congress exempting activities that would otherwise constitute a prohibited activity under the Act. 

Some of the exemptions build on some issued previously.  These include using software to “jail break” cell phones under some conditions; breaking DRM for DVD content for film criticism and educational purposes; extending the same to streaming content and adding screen capture as an allowed activity; and the use of audio reading software on e-books for sight impaired individuals.  The announced final rule specifically rejected jail breaking tablets.

The Federal Register notice of the latest exemptions is here.  The narrative describes rejected proposals as well.  [MG]

Tell The Obama Administration How IP Should Be Enforced

The government is reaching out to the public (remember, corporations are people too) for comments on how to shape intellectual property enforcement (Development of the Joint Strategic Plan on Intellectual Property Enforcement).  The announcement came on the White House web site on June 25.  The comment period ends on July 25.  As of now there are only 36 comments with most of them by citizens rather than the intellectual property industries that have captivated Congress for so long.  Anyone who has any interest in legislative trends (SOPA, PIPA, ACTA, TPP, etc.) now has the opportunity to make their ideas heard.

The Notice requesting comment also has this bit of text:

Submissions directed at the economic costs resulting from enforcement of intellectual property rights must clearly identify: (1) the type of intellectual property protection at issue, e.g., trademark, copyright, patent, trade secret or other (2) the methodology used in calculating the estimated costs and any critical assumptions relied upon, (3) identify the source of the data on which the cost estimates are based, and (4) provide a copy of, or a citation to, each such source of information.

That might explain why there isn’t comment by the RIAA, MPAA, et al.  Most every estimate of monetary and job losses from these organizations that has appeared in congressional reports justifying legislation seems to come from sources that could not be verified.  Repeating the numbers over and over again tends to give them a semblance of truth, even if that is not the case.  Just ask the GAO, who said this in its report Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods, GAO-10-423, Apr 12, 2010:

Three widely cited U.S. government estimates of economic losses resulting from counterfeiting cannot be substantiated due to the absence of underlying studies. Generally, the illicit nature of counterfeiting and piracy makes estimating the economic impact of IP infringements extremely difficult, so assumptions must be used to offset the lack of data. Efforts to estimate losses involve assumptions such as the rate at which consumers would substitute counterfeit for legitimate products, which can have enormous impacts on the resulting estimates. Because of the significant differences in types of counterfeited and pirated goods and industries involved, no single method can be used to develop estimates. Each method has limitations, and most experts observed that it is difficult, if not impossible, to quantify the economy-wide impacts.

Here is a chance for members of the library community to let the government know what he or she thinks on the issue.  [MG]

Copyright Office Hearings On DMCA Exemptions Announced

The Copyright Office is holding hearings on exemptions to prohibitions on circumvention of copyright protection systems for access control technologies, or the stuff that companies use to prevent consumers from mucking about with the electronics and content that they buy.  Some of the information about this process, mandated by the DMCA every three years, is here.  The March 15th Federal Register notice announcing the hearings is here. 

It announces that the first public hearing, confined to demonstrations of technology, will be held in Washington, DC on Friday, May 11, 2012 at 10 a.m.  Public hearings will also be conducted in Los Angeles, California at 9 a.m. on Thursday, May 17, 2012 and Friday, May 18, 2012, and in Washington, DC at 9 a.m. on Thursday, May 31, 2012, Friday, June 1, 2012, and Monday, June 4 through Wednesday, June 6, 2012.  Requests to testify must be received by 5 p.m. E.D.T. on Monday, April 2, 2012 

There are two small points about the announcement worth mentioning.   One is that the link in the notice for requests to testify submitted through the request form available at http://www.copyright.gov/1201/hearing-request leads to a "page not found message."  Another paragraph in the notice says this:

Requests to testify must be submitted via the Office’s Web site form located at http://www.copyright.gov/1201/ and must be received by 5 p.m. E.D.T. on Monday, April 2, 2012. Persons who are unable to send requests via the Web site should contact Ben Golant, Assistant General Counsel, Office of the General Counsel at (202) 707–8380 to make alternative arrangements for submission of their requests to testify.

The second point is that the referenced page does not contain (as of this writing) a link to the online form.  Sometimes the old contact technologies work the best, I guess.  One of the items for which an exemption is sought is literary works in the public domain that are made available in digital copies.  This was submitted by the Open Book Alliance.  Here’s some of the relevant text in the OBA’s statement:

It is well known that Google, Inc. has reproduced millions of books in their entirety, including both those in the public domain and those that remain in-copyright, through systematic scanning operations set up with several large research libraries. Less well known is that Google has contractually required these libraries "to implement technological measures . . . to restrict automated access to any portion of the [digital book copy] or the portions of [the library] website, that make those copies accessible to library patrons - including digital files of books in the public domain.

By definition, the imposition of TPMs on digital copies of these public domain works will "adversely affect" users in "their ability to make non-infringing uses" of them within the meaning of Section 1201(a)(1)(C). Section 1201 was never intended to protect a company's non-copyright business interests in public domain works, particularly where it could be used for anticompetitive purposes.

Comments are closed on the proposed classes of exemptions, but the requests to testify at a hearing are not, assuming anyone can make a formal request to testify.  The deadline is two weeks away.  [MG]

Copyright Office Identifies Libraries, Mass Digitization as Priority In Copyright Policy

Maria A. Pallante, the Registrar of Copyrights, released a report last week identifying the legislative priorities for October 2011 through October 2013.  These are, as the proverb goes, interesting times for copyright law, what with every interested party staking out conflicting positions, extreme or otherwise.  Take a look, for example, at this commentary from The Awl, which contains author Ursula Le Guin’s take on the best outcome of the Google Book case, as she would like it:

"Their [Google’s] agreement, or a ruling requiring them, to immediately stop digitalising copyrighted books without obtaining permission from the copyright owner. With a reminder to the libraries that have been facilitating this illegal activity that it is piracy, and they should not have agreed to it."

I believe under that scenario the publishers would be free to follow in the footsteps of the music labels and pursue those who share illegal copies of digitized books:  snaring a few high profile (and high expense) cases and at the same time deterring practically no one.  Google and the libraries would theoretically live in peace and harmony.  Le Guin doesn’t state whether she favors changes in the law that would facilitate mass digitization of books.  The Copyright Office, however, at least identifies the issue from the perspective that it needs to be addressed going forward:

Mass Digitization

The Copyright Office has undertaken a preliminary analysis identifying the issues related to mass book digitization—developments the Office analyzed in connection with the U.S. Statements of Interest filed in the Google Book Search litigation, as well as in testimony on the subject provided by former Register Marybeth Peters in the House of Representatives. The analysis addresses the current landscape and marketplace; possible methods to facilitate digitization projects, including voluntary, extended, and statutory collective licensing; and the implications for prior studies and proposals to address orphan works (www.copyright.gov/orphan) and section 108 library and archive exceptions in the digital age (www.section108.gov). The Office will use the analysis as the basis for future research and policy discussions in the United States. Publication date: October 2011.  www.copyright.gov/docs/massdigitization

Here are related statements with respect to orphan works and libraries:

Orphan Works

One issue that has been very widely discussed in recent years is how to create a legal framework to facilitate the authorized use of so-called “orphan works.” Orphan works are defined, in this context, as works for which authors cannot be identified and located by prospective users in situations that would otherwise require permission and licenses.  In 2006, the Copyright Office delivered a major study to Congress on this issue: Report on Orphan Works (www.copyright.gov/orphan). The Office agreed with many in the copyright community that millions of works that could be available to the public (e.g., for research, education, or use in mainstream books or documentary films), are barred from use because of the inability to find rightsholders. The Office proposed limiting the remedies a copyright owner might obtain against one who has failed to identify or locate the copyright owner after conducting a reasonable, diligent search (details of which were later defined in draft legislation to incorporate best practices and technological tools).  The House and Senate worked extensively on orphan works legislation in the 109th and 110th Congresses. The topic then stalled after the parties to litigation involving the Google Book Search program announced a proposed settlement agreement in part because it had implications for orphan books. However, in 2011 the court rejected an amended version of the settlement, expressly ruling that the disposition of orphan works belongs with Congress, not the courts. See Authors Guild v. Google Inc., 770 F. Supp. 2d 666, 677–78 (S.D.N.Y. 2011). Foreign countries, including members of the European Union, are also renewing their focus on the orphan works problem. The Copyright Office will continue to provide analysis and support to Congress on this important issue.

* * * *

Copyright Exceptions For Libraries

In 2008, the Copyright Office received the Section 108 Report (www.section108.gov) which details concerns with the current copyright exceptions for libraries and archives (and discusses expanding the section 108 exceptions to museums). The independent study group included a mix of copyright owners and copyright users; its work was cosponsored by the Librarian of Congress and the Register of Copyrights. In sum, the 2008 report concluded that section 108 fails to meet the needs of libraries and archives (and other entities, such as museums) dealing with born-digital works, digital preservation and conversion issues, as well as numerous types of uses and lending of works by patrons of these institutions. Because some of the issues were implicated in the Google Book Search litigation (including issues related to providing access to copyrighted works), some stakeholders were wary of proceeding too quickly with legislative discussions. However, because many of the issues are critical for libraries, in 2012 the Office will formulate a discussion document and preliminary recommendations on these issues.

I’ve said many times that I would like to see the underlying litigation in the Google Book case and the HathiTrust case go to a final court decision as at least we’d know what the Courts believe to be fair use under the current copyright laws.  I believe the libraries have a better chance here than with legislation as the Courts tend not to be persuaded by campaign contributions when it comes to interpreting legislation (or making it).  How would Le Guin feel if the courts ruled mass digitization projects are fair use?  Would that still make it piracy?  [MG]

FCC Finalizes Net Neutrality Rules

The Federal Communications Commission has finally issued their net neutrality rules by publishing them with the Office of the Federal Register.  The three rules listed are relatively simple:

To provide greater clarity and certainty regarding the continued freedom and openness of the Internet, we adopt three basic rules that are grounded in broadly accepted Internet norms, as well as our own prior decisions: 

i. Transparency. Fixed and mobile broadband providers must disclose the network management practices, performance characteristics, and terms and conditions of their broadband services;

ii. No blocking. Fixed broadband providers may not block lawful content, applications, services, or non-harmful devices; mobile broadband providers may not block lawful websites, or block applications that compete with their voice or video telephony services; and

iii. No unreasonable discrimination. Fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic.

The statement is in contrast to the content in the rest of the 155 page document that both explain the scope of the rules as the FCC intends, and justifies them in light of prior administrative and court proceedings that state that the Commission does not have the authority to regulate in this area.  For that, see Part IV, The Commission’s Authority To Adopt Open Internet Rules, between pages 75 and 100.  The Commission synthesizes language in §706 of the Telecommunications Act of 1996 with other language within the Act that gives the Commission authority to promote competition in broadband.  It may or may not be a bit of a stretch on the part of the Commission, but it is at least a preview of the likely litigation that will ensue.  Verizon and Metro PCS both sued over the notice for preliminary rule-making and the Court of Appeals for the District of Columbia threw the suit out as premature.  The issue of authority is ripe now that the final rule is announced, effective November 20, 2011.

The Commission does have one reason for going through with this process despite the legally shaky ground on which it rests.  At the very least it has set a baseline for rules and how they should be interpreted.  Assuming they are invalidated, an Internet provider’s conduct can be still measured as to whether they lived up to the principles embodied in the rules.  Enforcement is one thing, but companies may be sensitive to public relations depending how they are portrayed. 

The rules and accompanying report as filed with the Office of the Federal Register are here.  [MG]

Some Thoughts On Net Neutrality

Net neutrality is a hot topic since the FCC passed rules in December that gave some force to the principle.  The political reaction has been swift, if somewhat predictable.  The meme on the left is that the Commission didn't go far enough.  On the right imposing regulations means more unnecessary government regulation, an attempt to stifle free speech by regulating content, and something that will kill innovation and jobs.  Representative Marsha Blackburn has introduced legislation (H.R. 96), if passed, that would definitively remove any FCC authority to regulate the Internet under any circumstances.  The bill has some 60 co-sponsors.    

Senator Al Franken vigorously slammed the new rules as inadequate and flawed.  Many on the left share his view to various degrees.  Senators Maria Cantwell and Franken are drafting legislation that would write into law stronger regulation than that passed by the Commission.  It will require a broadband Internet provider not to discriminate against content; degrade quality of service because of user choice of legally attached network devices; charge competitors or offer priorized servivces for a fee;  and can't connect devices or use management methods that undermine the law.  The telecoms are sure to oppose this.

Blackburn's bill has a chance to pass the House in this Congress. Similar bills failed in a democratic-controlled House.  Its future in the Senate is uncertain.  Saying that, however, doesn't mean it can't pass.  There were reports of democrats in the House and Senate joining with republicans in signing letters to the FCC opposing Internet regulation.  The most recent CRS report suggests a consensus hasn't fully formed on the issue, though that was five months before the last election.  The bipartisan opposition shows that the major Internet providers have some significant reach with legislative levers of power.  I think with the current political climate that the Cantwell/Franken bill will not get the votes.  I'll mention in passing that President Obama referenced the Internet several times as an economic engine during the recent State of the Union speech. He did not mention or address net neutrality though he's known to be in favor of it.  

The rules at issue are pretty straightforward, even if the adoption process was not.  The Commissioners didn't actually see the final text of the rules until very late in the evening the day before the vote took place.  There were other procedural quirks identified in Commissioner McDowell's statement.  The rules weren't even released to the public until two days after they were adopted.  Not exactly government in the sunshine.  As stated in the Order:

i. Transparency. Fixed and mobile broadband providers must disclose the network management practices, performance characteristics, and terms and conditions of their broadband services;

ii. No blocking. Fixed broadband providers may not block lawful content, applications, services, or non-harmful devices; mobile broadband providers may not block lawful websites, or block applications that compete with their voice or video telephony services; and

iii. No unreasonable discrimination. Fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic.
The complete text of the Report and Order is here.

Some of the political machinations over the rules may be unnecessary because Verizon is challenging them in court - the same court that ruled early in 2010 that the FCC had no authority under law to regulate or fine Comcast for blocking peer to peer traffic.  Many, and I'm one of them, predict that this court proceeding will have a similar result.  The irony, of course, is that the rules are consistent with the compromise plan submitted by Google and Verizon.  They suggested light regulation with exemptions for wireless access, and that's what they got.  Note that aside from the court action, the telecoms have mostly been muted in their reaction to the rules.  There's a quiet happiness that the Commission didn't take the reclassification route to bring Internet access under its direct control.  

I think the hyperbole on the need for or against net neutrality is overblown.  The Commission's action is neither a government takeover of the Internet or an attempt to regulate content from a First Amendment perspective.  Far from it.  Legal content can't be blocked or held ransom.  At the same time the rules aren't a complete sell-out to the broadband industry.  They curb what would be the most egregious practices that could materialize while preserving the industry's ability to manage and market services.  

For those who say things like "I don't want YouTube to become the next HBO," meaning the end user needing to pay extra to get some content, it's likely not going to happen.  It's true that there is a duopoloy in the wireline Internet market between DSL and cable.  Even with that limited amount of competition I can imagine that the market might prevent, say, AT&T from making the move.  Competitors can easily market themselves by having YouTube free on their networks.  Choose us instead.  Honestly, I don't believe it would get that far.  The FTC and and the DOJ have plenty of authority to investigate collusive or other illegal market practices should the telecoms/cable ISPs act uncompetitively under existing law.

The rules barely touch the wireless industry though content blocking rules apply.  Wireless access has more viable providers who can compete effectively against wired broadband access and each other.  Market forces can work here.  The trend on smart phone plans, for example, is for data caps with additional fees when  more data is consumed beyond the plan's limits.  There are press articles suggesting Verizon will offer an unlimited data plan for iPhone subscribers on its network.  AT&T is mulling reinstating unlimited data plans for customers who had them previously.  There may be a need for future rules on wireless Internet access if there's industry abuse, but I don't believe more comprehensive rules are justified for circumstances that might happen.  Comcast type cases doesn't typically appear on the Commission's enforcement docket.

For those who oppose net neutrality suggesting that innovation and progress are hindered by these rules, that's hardly the case as well.  The rules don't actually challenge existing market and technical practices as much as define their outer boundaries.  There's plenty of room for innovation within those limits.  The early days of the Internet were a time when some people were idignant that it would be sullied with crass commerce.  The Internet has come a long way since those days with commerce now a force driving web trends and standards.  There's plenty of useful technology that came into being from the need to improve web marketing.  Not all of this is bad.   

Finally, for those who think Congress should grant the authority to the FCC to prevent content blocking, consider that Congress loves content blocking.  It tried to pass laws on more than one occassion that limited a child's access to adult-oriented web sites.   The courts struck those down because of Congress' ham-fisted approach to web censorship under the First Amendment.  Congress later passed a law that required adult content filters for Internet accessible computers in libraries receiving public funds.  That law passed court muster.  I don't believe this track record will predict passing a law that limits a access provider from discriminating against content.  

I think the net neutrality rules as promulgated strike a balance between consumers and providers, especially in today's charged political climate.  The Commission acted as best it could to implement some form of regulation at all given the reality of their questionable authority.  Their best hope is to survive the Verizon court action.  If not, Congress is highly unlikely to intervene on behalf of the Commission.  [MG]

FCC Adopts Basic Net Neutrality Rules

The FCC voted 3-2 today to implement so-called net neutrality rules for the Internet.  The rules were resisted by industry and their political allies as unnecessary while public advocacy grounds were disappointed that they did not go far enough in regulating Internet service providers.  The backdrop of implementation includes an appellate court case that struck down a previous Commission attempt at regulating network management practices by Comcast.

The rules, as described, give wired subscribers access to all legal web sites and services including those that compete with a provider's own content.  There are allowances, however, for paid prioritization of some traffic and services in some circumstances.  The rules allow reasonable network management practices as well, along with a requirement that those practices be transparent to consumers.  Wireless networks are included in the no-blocking and transparency requirements but have looser restraints on network management practices.

A good question is what happens next.  A court challenge questioning the Commission's authority at the very least is expected.  Some members of Congress are threatening to cut off funding for implementation and/or definitively limiting the Commission's authority to regulate.  I don't think a divided Congress will act without a substantial and costly lobbying effort.  The Courts may be a better and first alternative for those opposed to regulations.  For those that wished the Commission went further, I can't see the future of the Internet as a strongly regulated public resource, in the U.S., anyway.  The leeway  for network management built into the rules suggest that any future changes to them have to start from this point, whether or not they survive a court challenge.  Absent some outrageous business practice drawing the Commission's ire, this, with slight variations, will be the Internet we know.  [MG] 

FCC Net Neutrality Plan Stuck In The Middle With You

Columbia University law professor Tim Wu talks to Ezra Klein in the Washington Postabout the FCC's current net neutrality plan.  The proposed rule isn't available, but certain points are known.  There's transparency in management practices (something old) and tiered pricing (something new).  Wireless should be treated differently is in the mix as well.  Public advocacy groups are unhappy and the telecoms are grumbling.  Professor Wu's comments are fairly pragmatic on what's going on.  It's not net neutrality the way he would define it, but it's not all bad.  

Update:  For an interesting take on the tiered pricing issue, check out this article in the San Francisco Chronicle.  One of the problems facing carriers/ISPs is the amount of streaming video running over their networks.  It's not as if your ISP doesn't want you to have your movies, just that you should pay extra freight for the bandwidth they take up.  If this article is correct, get ready to buy Internet plans by speed and by the amount of data consumed.  The implications for streaming anything are clear.  Entertainment via the Internet is going to cost more, whether it's video, music, or video chat.  The Buggles next hit (they reformed for one show, at least, their first one live, no less) might be Video Killed The Internet Star.  One question, though.  If this happens, does that mean people who download via torrents will not have their traffic slowed as Comcast did to the ire of the Kevin Martin led FCC?  We all know how that turned out.  [MG]

Librarian of Congress Issues DRM Exemptions Under the DMCA

The Librarian of Congress has announced exemptions to the prohibition on circumvention of DRM.  The DMCA gives the Librarian the power to conduct a review every three years and grant these exemptions.  This year's group has a few surprises in them.

The first exemption grants faculty at colleges and universities the ability to break legally acquired DVDs:

to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:

(i)  Educational uses by college and university professors and by college and university film and media studies students;
(ii) Documentary filmmaking;
(iii) Noncommercial videos.

Wow.  The Teach Act granted that power to film school faculty, but this seems to go to general higher education.  There had always been a fair use argument for doing so, though the film industry being what it is denied it.  The MPAA recommendation was always to tape the film from television and use that version instead.  This was not always a satisfacory solution as who knows when something needed is on a convenient broadcast schedule.  I wonder if this strengthens the notion of fair use for this kind of use of this material?

The second exemption legalizes jailbreaking of the iPhone and all smart phones for that matter.  In other words, people can break the phone to run their own applications as long as everything was legally acquired.  Steve Jobs need not approve, or even like what people do with their phones.  I mention the iPhone because Apple argued against the exemption, according to this story in Ars Technica.  But as the Register of Copyrights noted, though Apple may be preserving their application ecosystem, doing so has nothing to do with copyright.  That's not to say that Apple can't control its systems with firmware upgrades, etc.  Code that gets around this won't violate the DMCA or give Apple (and others) and legal grounds to sue. 

The other major exemption allows users to break eBook DRM for the purpose of having a machine to read audio.  Amazon had turned off this feature in the Kindle to placate publishers who believed the feature would cannibalize sales of audio books.  It's hard to imagine someone would actually want to listen to the equivalent of Steven Hawking reading War and Peace aloud at length.  However, even if Amazon doesn't feel the need to reactivate the feature, enterprising individuals can do it on their own.  The exemption limits the activity to those situations where audio books or other alternatives are not available.  So the publishers get their due except when they have nothing to offer.

Another exemption allows breaking of databases that use dongles if the dongle can't be replaced or repaired through commercial means. 

The entire set of exemptions is here.  Earlier grants of exemptions are available via links from this page.  [MG]

IRS Wants Its Cut of Online Sales

A new tax law requiring the gross amount of payments by credit credit and other payment processing systems and third-party network transactions will be required to be reported annually to merchants and the IRS by way of a new IRS form, the 1099-K. This reporting requirement will start with 2011 tax returns for taypayers who sell more than $20,000 worth of goods and have more than 200 e-transactions. The headline for the Washington Post story captures the regulatory intent in a nutshell: IRS Wants a Cut of Online Sales on eBay, Craigslist. [JH]

DOJ Ranked Last in OpenTheGovernment.org's Audit of Federal Agencies’ Open Government Plans

OpenTheGovernment.org has released its final rankings of federal agencies' progress under the Obama Administration's Open Government Directive. The rankings were based on an audit of each agency's Open Government Plans. Partners in the project included AALL, ALA, CDT, OMB Watch, the Sunlight Foundation, Union of Concerned Scientists and more. Visit the Evaluating Open Government website for the final rankings and and individual agency evaluations (comments can be added to individual agency pages).

About the lowest-ranked DOJ's progress, the audit reports

the plan is written in overly general terms and mostly proposes very broad actions which the agency “should” or “will” accomplish in the future, with very few timeframes provided. The DOJ plan does not list any currently available data sets, or any specific new high value data sets it plans to release in the future. These omissions are disappointing given the level of public participation in submitting ideas, including high value data sets that would be of great public interest, during the development of the plan.

Notably, the single flagship initiative DOJ proposes is among the most popular ideas posted to the agency’s collaborative OpenDOJ project – the creation of a FOIA Dashboard. The plan describes how DOJ will make all agency annual FOIA reports accessible in machine readable formats; however, only 2009 reports will be available. Other suggestions for the FOIA Dashboard, such as making available each agency’s complete annual FOIA report from 1996 to date, are not addressed in the plan.

Complete DOJ evaluation here. Hat tip to AALL Washington Blawg. [JH]

Gavin on New and Free Federal Regulations Trackers

There's no need to try to keep track of on-going government domain developments when you can always rely on Peggy Garvin to do the work for you, accurately and in a timely manner. Her latest regular LRRX column reviews free, non-government resources that have recently come online to complement the official U.S. government regulatory information sites, RegInfo.gov and Regulations.gov. See The Government Domain: New & Free Regulations Trackers.

Some of the resources of special interest identified by Garvin include:

• OpenRegs.com,one of the first free online alternatives for tracking federal regulations, it offers RSS feeds of proposed rules with comment periods ending soon; recently opened comment periods; recently published final regulations; and recently published "significant" regulations;
• FedThread.org which allows collaborative annotation, advance full-text search features for the Federal Register (back to 2000) and customized feeds; and

Garvin also reports on the Cornell e-Rulemaking Initiative (CeRI)'s recently launched, RegulationRoom.org. a pilot project to test the online environment for public input in rulemaking. Check out the site's About Page. [JH]

Federal Reserve Explains New Overdraft Rules for Debit and ATM Cards

Your bank will be sending you a notice explaining the Fed's new overdraft rules for debit and ATM cards soon. The new rules require that banks, credit unions, and other financial institutions offer consumers the ability to make decisions about overdraft services for transactions made with their debit or ATM cards. In surprising plain English, the Fed explains what you need to know here. [JH]

Copyright Office Issues Interim Rule Governing Deposit of Online-Only Electronic Works

The Copyright Office's interim rule establishes that online-only works are exempt from mandatory deposit until a demand for deposit of copies such works is issued by the Copyright Office. See 75 FR 3863 (Jan. 25, 2010). The interim rule, effective Feb. 24, 2010, also states that categories of online-only works subject to demand will first be identified in the regulations.

Online-Only Electronic Serials First. Noting that there are now more than 5,000 scholarly electronic serials available exclusively online, the interim rules names electronic serials as the first category for which demands will issue. In this regard, if the published format of a demanded electronic serial does not meet any of the Best Edition criteria, the publisher is still obligated to send a copy of the serial in whatever form it is published in the U.S.

Access to Deposit Copies. The Best Edition Statement for electronic serials has been revised. The interim rule now states that "technological measures that control access to or use of the work should be removed" so that deposit copies can be accessed by Copyright Office, the Library of Congress, and LC's users.

Amended "Complete Copy" Definition. The interim rule clarifies that a "complete copy" of an online-only electronic work includes the associated metadata and formatting codes that make up the unit of publication. In the preamble to the interim rule, the Copyright Office states "The Office recognizes that future demands for online-only newspapers, web sites, and other categories may require adjustments to what constitutes a 'complete copy.'" [JH]

NARA Says No More Tourist Photography of Founding Documents

The National Archives and Records Administration has published a final rule in today's Federal Register that bans photography, filming, and videotaping of exhibits in the National Archives Building in Washington.  The popular documents that draw tourists and their devices are the Declaration of Independence, the Constitution, and the Bill of Rights, located in the Rotunda.  When the rule was first proposed, it elicited only three comments, all opposed to the rule.  Responding to the various concerns from commenters, filters for ultraviolet light were ruled out because they would obstruct the view of the documents.  Professional photographers and media will still be able to arrange for access to the documents.  The third comment wondered if flash photography really damaged the documents.  NARA responded that it does. 

The real question is enforcement.  Let's all roll our eyes at attempts to enforce food and cell phone bans in libraries.  NARA intends to use security to handle enforcement:

One final comment dealing with enforcement of the proposed rule suggested that any visitor with a photographic device on their person would be turned away and that overzealous security guards might subject visitors to harassment or bodily harm. NARA can assure this commenter that those hypothetical behaviors and policies will not happen.  Visitors with photographic devices will be allowed to enter the building with their cameras, cell phones, and other photographic equipment. However, they will be met by appropriate signage and security personnel throughout the NAE to explain the ``no photography'' rule. In the event that a visitor makes the mistake of displaying or attempting to use a photographic device, they would first be warned that such behavior is not allowed. If, after they have received a warning, they continue to ignore the ``no photography'' rule they will be politely escorted from the building.

The new rule is added as subsection (c) to 36 CFR 1280.46.  It does not apply to any action on the part of the Supreme Court that may diminish the rights contained in the documents.  [MG]

IRS Web Site Reflects New Rules for Homebuyer Legislation Signed Nov. 6

The Internal Revenue Service web site is updated to include tax information stemming from the President's signing of legislation last Friday that expands the first-time homebuyer credit. The tax details for new homebuyers is here.  Updated tax information about other provisions of the new legislation and the American Recovery and Reinvestment Act of 2009 is here.  The Act has its own web site, here.  [MG]

FCC Publishes Notice of Rulemaking on Net Neutrality

The Federal Communications Commission released its Draft Rules to Preserve the Free and Open Internet today, making good on Chair Julius Genachowski's  earlier threat or promise, depending on the side one takes on the issue.  Senator John McCain introduced The Internet Freedom Act of 2009 which would prohibit the FCC from making rules regulating the Internet.  McCain's press release oddly cites Google and Yahoo recently releasing positive earnings reports as one justification for keeping government from regulating the Internet.  It is ironic that both companies support net neutrality rules as a way of keeping and growing those profits, so the joke is on McCain in one sense. 

Congressman Ed Markey has already introduced a different bill that would empower the FCC to write these rules, just in case there is doubt in their power to do so.  What will finally be enacted will likely be driven by the pending court decision where the Commission slapped Comcast for lack of transparency in blocking P2P transmissions over its network.  Comcast complied with the order telling them to stop the practice but sued anyway over the Comission's underlying authority, or lack of it.  McCain's bill will probably not get enough traction with Democrats running the House and Senate.  Markey's bill might pass if momentum builds on a court decision against the FCC.  President Obama would likely sign legislation preserving net neutrality as he campaigned on the issue as for it.

The FCC Notice of Proposed Rulemaking restated the four principles of Internet governance that were stated in a footnote to one of its earlier policy statements and added the two mentioned by Genachowski in a speech earlier this year.  The summary of the proposed rules are essentially:

1. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from sending or receiving the lawful content of the user’s choice over the Internet.

2. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from running the lawful applications or using the lawful services of the user’s choice.

3. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from connecting to and using on its network the user’s choice of lawful devices that do not harm the network.

4. Subject to reasonable network management, a provider of broadband Internet access service may not deprive any of its users of the user’s entitlement to competition among network providers, application providers, service providers, and content providers.

Genachowski would add these:

5. Subject to reasonable network management, a provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner.

6. Subject to reasonable network management, a provider of broadband Internet access service must disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this part.

Most of the opposition comes from companies that promote wireless access to the Internet, arguing that the wireless industry is rich, vibrant, and capitalized for innovation.  There is speculation that had the rules been limited to wired broadband there would still be grumbling, though not as much.  Companies such as Comcast, without a wireless alternative still object because they see rules as interfering with network management.  All of these potential regulatorees sighed a bit of relief as the Notice qualified the principles as subject to "reasonable network management."  What that consists of was deliberately defined vaguely so as not to straight jacket the Commission into a single technical strategy in the future.  Proposed CFR Title 47, Part 8, Section 8.3 reads

Reasonable network management consists of:
(a) reasonable practices employed by a provider of broadband Internet access service to:
(i) reduce or mitigate the effects of congestion on its network or to address quality-of-service concerns;
(ii) address traffic that is unwanted by users or harmful;
(iii) prevent the transfer of unlawful content; or
(iv) prevent the unlawful transfer of content; and
(b) other reasonable network management practices.

There is room for content owners to work with broadband providers, should that relationship ever blossom, to limit transfer of unlawful content.  The RIAA, the MPAA, and other trade associations are probably happy with that to the extent it preserves their options on dealing with illegal file sharing.  Other parts of the proposed rules explicitly preserves cooperation of broadband provides with law enforcement agencies.  Compared to the possibilities of these rules could be written, they are the soul of brevity, most not longer than one sentence.

The Commission Notice is here.  Statements from each Commissioner are at the FCC web site.  [MG]

USDOJ Medical Marijuana Rules Available

Looking for the new Department of Justice Guidelines covering prosecutions for medical marijuana use and distribution?  Find them here on the Department of Justice web site.  In another note, the site redesign is quite nice.  [MG]