A federal shield law protecting journalists from overzealous government intrusion is one big step closer to becoming a reality today, after the Senate Judiciary Committee voted to approve the Free Flow of Information Act and send it on to the full Senate.
As defined in the act, the law would cover a wide range of information gatherers including nonfiction authors, bloggers, students and freelancers, regardless of whether they’re being paid for the work. In addition, a federal judge could rule that someone who doesn’t fit into any of the categories laid out in the law is covered. The committee broadened the definition of “covered persons” with an amendment approved today ahead of the vote on the full act.
That more inclusive definition makes this a double victory for free press advocates, who feared that the law as previously written would leave unprotected many journalists who work in non-traditional media.
The bipartisan legislation seeks to strike a balance between the First Amendment rights of journalists to not to reveal their sources and other private information and the need to protect the public from the dangers created by leaks of classified information.
While attempts at passing a federal shield law have failed in the past, most recently in 2009 with legislation similar to the act approved in committee today, momentum for putting the protection into place has been building since revelations earlier this year that the Justice Department secretly obtained the emails of a Fox News reporter and the phone records of Associated Press reporters.
Outrage over the revelations led Attorney General Eric Holder to issue new guidelines for obtaining journalists’ records while investigating leaks. But without the force of law, those guidelines could be changed at the whims of the current or future administrations. Legislators and First Amendment advocacy groups, including the Authors Guild, have been pushing for legislation that would expand on those guidelines and make them law.
Free press advocates are stepping up efforts to raise support for the Free Flow of Information Act, as the Senate Judiciary Committee prepares to consider the federal shield law legislation on Thursday.
“Journalists work hard every day to give life to the promise of the First Amendment. The ability to protect confidential sources is the oxygen that investigative reporting needs to survive,” a media coalition supporting the act writes in a letter sent to Judiciary Committee members Monday afternoon. The letter is signed by the Authors Guild, along with news companies, media trade groups and other First Amendment supporters.
Coalition leaders are also asking advocacy organizations to encourage their members to call senators who serve on the committee and urge passage of the legislation.
Interest in a federal shield law was reignited earlier this year after revelations that the Justice Department secretly obtained the emails of a Fox News reporter and the phone records of Associated Press reporters. Outrage over the revelations led Attorney General Eric Holder to issue new guidelines for obtaining journalists’ records while investigating leaks. The current legislation, based on a 2009 bill that made it through committee but failed to become law, would expand on and codify those new DOJ guidelines.
The Judiciary Committee began considering the bi-partisan legislation on Aug. 1, but postponed a vote until after the August recess. In its letter, the coalition urges the committee to support the bill and oppose any amendments that would weaken it.
Google’s scanning of books does not meet the legal definition of “transformative,” creates potential harm to authors and other copyright holders, and is not protected as fair use under the law, the Authors Guild argues in a brief filed this week in New York federal court.
“The only thing ‘transformative’ about Google’s display of snippets of in-print books is that it transforms online browsers of book retailers to online users of Google’s search engine. Google ‘transforms’ Amazon customers into Google ad-clickers,” according to the brief.
Whether Google’s mass digitization of copyrighted material qualifies as fair use is the central issue now facing the court in the long-running legal dispute between the search engine giant and the Guild. A decision on fair use issues will influence whether the case should proceed as a class action lawsuit.
In a brief also filed this week, Google maintains that its scanning of copyrighted material is transformative, and actually helps authors by making their books easier to find and benefits the public by rendering information more accessible.
The Guild rejects the characterization of Google’s library-scanning project as anything other than a commercial enterprise intended to give it an advantage over other search engines and increase ad revenue–all while putting authors’ valuable property at risk.
The Guild’s brief points out the threat of piracy created by Google’s online distribution of book content. “One need only pick up a daily newspaper to appreciate how serious this security risk is. Stories of break-ins, hacking and theft appear almost daily.”
The current focus on fair use resulted from an appeals court decision in July. The judge vacated a class certification ruling in The Authors Guild vs. Google, saying issues of fair use had to be decided before determining whether authors should be treated as a class in the case. If Google’s fair use defense requires a book-by-book analysis, then this would weigh against class certification. If a fair use ruling can be made more broadly, then judicial economy is more likely to weigh on the side of class certification.
As the court weighs the legal issues, it’s already clear that Google’s unauthorized scanning of books creates a hazard for every author.
The Department of Justice today asked Judge Denise Cote to force Apple to throw out its existing contracts with the five publisher defendants in its ebook price-fixing case and essentially impose a five-year ban on agency model terms.
“Apple shall not enter into or maintain any agreement with any E-book Publisher or supplier of any other form of content (e.g., music, other audio, movies, television shows, or apps where such agreement likely will increase, fix, or set the price at which other E-book Retailers or retailers of other forms of content can acquire or sell E-books or other forms of content,” according to the proposed injunction filed in U.S. District Court.
Under the proposal, Apple would also have to let other ebook retailers provide links to their ebookstores from their iOS apps, “allowing consumers who purchase and read e-books on their iPads and iPhones easily to compare Apple’s prices with those of its competitors.”
Apple’s compliance with the new rules would be overseen by a monitor. And the company would have to hire an internal Antitrust Compliance Officer, who “will be hired by and report directly and exclusively to the Audit Committee of Apple’s Board of Directors.”
We’ll have more on this story Monday.
Members of the Senate Judiciary Committee will wait until after August recess to vote on federal shield law legislation introduced last week. The committee met today to consider the Free Flow of Information Act, but ran out of time before holding a vote.
The Committee is scheduled to reconvene Sept. 12. In the meantime, senators will work to hash out amendments to the legislation. And First Amendment advocates, including the Authors Guild, will continue efforts to support the bill.
From Australia, which is considering a major change to copyright law, comes an eloquent defense of keeping intact a system that enables authors to get paid when schools and the Australian government uses other organizations use their work. Author Linda Jaivin saves her harshest criticism, however, for the proposed addition of a fair use exception to Australia’s copyright law.*
Jaivin, who writes novels and nonfiction books focusing on China, details what a proposed repeal of statutory licenses would mean for her and other authors.
“As a member of the rights management organisation Copyright Agency for many years, I have received payments ranging from a few dollars to nearly one thousand. Among those bodies who have copied my work are universities and the Attorney-General’s Department. The Australian Law Reform Commission’s proposed repeal of statutory licences, which provide this secondary income, will rob me of an important source of revenue…”
Jaivin then gets to the fair use proposal:
“[A]nd the proposed new ”fair use” exception, that would allow even businesses to use copyrighted content without permission, would mean a business could steal the product of years of work, profit from it and still have the gall to call this ”fair.”
If you are going to do this, please at least have the decency to call it by its correct name: ”theft.'”
To allow others to steal and/or profit from intellectual property that we have created is no different than saying it would be OK to smash your way into a designer’s atelier and grab whatever outfits you fancy.
The Commission’s proposal would replace statutory licenses for certain uses, including educational uses, with a system of “voluntary licensing arrangements” worked out by individual content owners (for more on how this would work, see this explanation from Australia’s Copyright Agency). Proponents say a more flexible system is better suited to the digital age. As Jaivin sees it:
“(The new system) will confront writers with the burden of tracking down copyright breaches and of finding the means to prosecute them under law. Few of us have the time, legal expertise or financial wherewithal to do so, so this effectively disempowers us even to pursue what legal rights we would have left.
The ALRC would put the onus of proof of the crime on the victim, which cannot be a good principle of law in any of its aspects.”
*Fair use is a defense to copyright developed by American courts to reconcile copyright protection with free expression. It’s rather vaguely defined and its application varies greatly from case-to-case. Many other countries, including Australia, recognize a similar but much more carefully enumerated exception to copyright known as fair dealing.
With the Senate Judiciary Committee scheduled to take up federal shield law legislation tomorrow, advocates are rallying support for passage of this crucial First Amendment protection
The Authors Guild is part of a coalition of news companies, media trade groups and other free press advocacy organizations that have sent a letter to Judiciary Committee members that says:
“In the wake of revelations that the Justice Department used a warrant to obtain the email content of a Fox News reporter, and secretly subpoenaed Associated Press phone records affecting over 100 journalists and covering over 20 lines (including work, home and cell phones; bureaus in three different cities; and the AP line at the House of Representatives press gallery), a federal shield law is needed now more than ever to prevent government overreach and protect the public’s right to know.”
Those revelations led Attorney General Eric Holder recently to issue new guidelines for obtaining journalists’ records while investigating leaks. The bipartisan Free Flow of Information Act, based on a 2009 bill that made it through committee but failed to become law, would expand on and codify those new DOJ guidelines.
A River Runs Through It: Amazon Gets Reminded of Its Namesake as ICANN Rejects Domain Bid; “.author,” “.book,” Still on Block
As Amazon vies to snag exclusive rights to use top-level domain (TLD) names including “.author,” “.book,” and “.read,” last week it was thwarted in its attempt to buy one suffix it coveted: “.amazon.”
The online retailer applied to purchase the domain name after the Internet Corporation for Assigned Names and Numbers (ICANN) announced plans last year to sell generic top-level domain names (website suffixes such as “.com” and “.org”) to private companies. The New York Times reports that an ICANN committee recommended against selling the river’s name to Amazon after a group of Latin American countries voiced their objections in a letter.
“In particular ‘.amazon’ is a geographic name that represents important territories of some of our countries, which have relevant communities, with their own culture and identity directly connected with the name,” the letter said. “Beyond the specifics, this should also be understood as a matter of principle.”
“Placing such generic domains in private hands is plainly anticompetitive, allowing already dominant, well-capitalized companies to expand and entrench their market power. The potential for abuse seems limitless.
Senators Renew Push for Shield Law; Say Bill Would Codify Justice Department’s New Protections for Journalists
The Senate Judiciary Committee is scheduled this week to consider legislation that would turn into law new Department of Justice guidelines putting greater restrictions on how the government collects journalists’ private information while investigating leaks.
The shield law legislation calls for courts to “apply a balancing test before compelling disclosure” of sources and other information from journalists. It also requires that courts arbitrate government media records requests and that journalists be notified within 90 days of their records being reviewed by the DOJ.
The Authors Guild, which has long backed the enactment of such a law, is part of a coalition of media organizations calling on Congress to use this as an opportunity to strengthen the First Amendment protection of press freedom.
Earlier this month, the DOJ drafted a new policy for investigating journalists in response to outrage over revelations that it secretly collected the phone records of Associated Press reporters and examined emails of Fox News reporter James Rosen in a search for the source of government leaks.
Judge in Apple Case Cites Publishers’ “Frequently Coordinated” Efforts to Upend Amazon’s $9.99 Ebook Pricing
In her ruling against Apple today, Judge Denise Cote cites witness testimony as well as documentary evidence including emails and other records of communication considered during the three-week price-fixing trial. She says circumstantial evidence also “compellingly” supports the idea that Apple gave publishers the means to pull off a pricing conspiracy they couldn’t accomplish on their own.
Here’s the sequence of events as detailed in Cote’s decision:
Late 2008-through 2009: Major publishers who would later be named as defendants along with Apple tried “frequently coordinated their efforts” to pressure Amazon to raise its $9.99 price point for digital books.