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The Copyright Alert System – Copyright Infringement and The Educational Approach

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There have been many attempts over the last few years to address online copyright infringement.  The most recent effort is the Copyright Alert System (“CAS”), which was rolled out in February 2013 as a system created to educate and alert the public about the dangers and harm caused by copyright infringement. The CAS is the first to outline pro-active, temperate measures to try to remedy one cause of the problem: the perceived anonymity of infringers operating through peer-to-peer websites.  The CAS gives infringers the opportunity to be notified of and to discontinue their wrongful actions before costly litigation ensues.

The CAS  is not a “law” but a voluntary effort by a private consortium (the Center for Copyright Information) comprised of a variety of large copyright owners (e.g., the Motion Picture Association of America [MPAA], the Recording Industry Association of America [RIAA] and Disney, among others) and internet service providers (e.g., cable companies such as Verizon, Cablevision, and Comcast or “ISPs”).  Under the CAS, when content owners discover infringing  content posted on websites alleged to knowing permit copyrighted content to be infringed (such as BitTorrent), they will send the suspected infringers a series of escalating “alerts” notifying them that they are accused of infringing copyright protected content.  The CAS does not involve litigation or demands for damages. The hope is that through this process, users will realize that infringement is not taking place anonymously on peer-to-peer file sharing websites, that content owners are aware of the infringement, and that there can be serious and expensive legal repercussions if the infringement does not cease.

Under the CAS, content owners communicate with alleged infringers anonymously through a series of “alerts” sent to the users by their ISP after that user is identified by a content owner as having participated in copyright infringement.  The ISPs will not monitor for copyright infringement. Rather, the content owners will monitor peer-to-peer websites, such as BitTorrent, alleged to knowing  allow users to traffic in infringing material, and will send an alert to an ISP that an infringement is taking place, identifying the user by their IP address. The ISP will then send to the registered users of that IP address (without revealing to the content owner any names, addresses or other contact information) a series of alerts stating that that IP address is suspected of copyright infringement and outlining possible sanctions for future infringements.

How will the “alert” system work? The series of six possible escalating “alerts” will be implemented individually by each ISP under its own process. Generally, the system will work as follows:

  • First and Second Alerts – These “information” alerts notify the user that an infringement has been identified by a content owner associated with that IP address and force the user to acknowledge receipt of the notice.  For example, a message may be sent via pop-up to the user’s browser requiring a click through acknowledgement, or a user may have to log into their ISP account to read and acknowledge a message.

  • Third and Fourth Alerts – These “warning” alerts will use more urgent language.  Some ISPs may require the primary account holder (rather than just authorized users of the account) to log in to view a message.

  • Fifth and Sixth Alerts – Fourteen days after each of these last two urgent alerts have been sent, an ISP may take “mitigation actions.” During the fourteen day window, the accused user may file an appeal of these alerts, as discussed below.  “Mitigation actions” could include Verizon, for example,  throttling data speeds down to dial-up speeds for a few days,  Comcast posting a persistent pop-up in the user’s browser requiring that user to contact Comcast for “further education and information about copyright infringement” before it will clear the alert from the user’s browser, or  Cablevision disabling internet access for 24 hours.

How do you “appeal” an alert or argue you didn’t do it?  Several of the ISPs, such as Cablevision, Verizon and Comcast, have already published their appeal processes, which are the same.  They provide for an anonymous appeal (since, forcing the user to identify themselves would have a chilling effect) to the American Arbitration Association if an appeal is filed within fourteen days of the user receiving either their fifth or sixth “alert.” No appeal can be filed before then. The user must pay a fee of $35 (which will be refunded if the user wins the appeal), which may be reduced or waived if the user can prove financial hardship.

Generally, there are six grounds upon which a user can argue that the fifth and sixth “alerts”  (and any mitigation measures) were unjustified.

  1. The reproduction of the copyrighted work and distribution of it through the file sharing website is a “fair use” as interpreted by copyright law and the courts.

  2. The IP address and account were incorrectly identified as one through which acts of alleged copyright infringement have occurred.

  3. The allegedly infringed copyrighted work was published prior to 1923 and is in the public domain.

  4. The alleged infringement was committed through the unauthorized use of the IP address and account and the ISP customer was unaware of it and could not reasonably have prevented it.

  5. The sharing of the copyrighted material was authorized by its copyright owner.

  6. The allegedly infringing file/content is not primarily the allegedly infringed copyrighted work.

What happens after six alerts if there is no appeal and the ISP has taken all “mitigation actions”?  Since the CCI’s stated goal  is to educate the public, no further alerts will be sent and no further actions will likely be taken via the CAS process.  However, just because an ISP may not take any further action under the CAS does not mean that the content owner itself will not take action (e.g., file a copyright infringement lawsuit).

It remains to be seen however how this program will be received and whether content owners will find it to be an effective strategy. We will continue to provide updates on developments under this system as it is implemented.

Written by Joseph M. DiCioccio

Department of State Releases May 2013 Visa Bulletin

DrinkerBiddleRegMark_rgb_hiresEB-2 category for all chargeable areas other than China and India remains current, with some considerable forward movement but continued backlog in the EB-3 category.

The U.S. Department of State (DOS) has released its May 2013 Visa Bulletin. The Visa Bulletin sets out per country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications. Foreign nationals may file applications to adjust their status to that of permanent resident or to obtain approval of an immigrant visa at a U.S. embassy or consulate abroad, provided that their priority dates are prior to the respective cutoff dates specified by the DOS.

What Does the May 2013 Visa Bulletin Say?

EB-1: All EB-1 categories remain current.

EB-2: Foreign nationals in the EB-2 category from all countries other than China and India remain current. A cutoff date of May 15, 2008, reflecting minor forward movement, has been imposed for foreign nationals in the EB-2 category from China. A cutoff date of September 1, 2004, remains in effect for foreign nationals in the EB-2 category from India.

EB-3: There is continued backlog in the EB-3 category for all countries, with considerable forward movement for EB-3 individuals chargeable to countries other than India and the Philippines.

The relevant priority date cutoffs for foreign nationals in the EB-3 category are as follows:

China: December 1, 2007 (forward movement of 223 days)
India: December 22, 2002 (forward movement of 14 days)
Mexico: December 1, 2007 (forward movement of 153 days)
Philippines: September 15, 2006 (forward movement of 7 days)
Rest of the World: December 1, 2007 (forward movement of 153 days)

Developments Affecting the EB-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World

In November, the EB-2 category for individuals chargeable to all countries other than China and India became current. This meant that EB-2 individuals chargeable to countries other than China and India could file an AOS application or have the application approved on or after November 1, 2012. The May Visa Bulletin indicates that the EB-2 category will continue to remain current for these individuals through May 2013.

China

The May Visa Bulletin indicates a cutoff date of May 15, 2008, for EB-2 individuals chargeable to China. This means that EB-2 individuals chargeable to China with a priority date prior to May 15, 2008, may file an AOS application or have the application approved on or after May 1, 2013.

India

In April, the cutoff date for EB-2 individuals chargeable to India was September 1, 2004. This meant that EB-2 individuals chargeable to India with a priority date prior to September 1, 2004, could file an AOS application or have the application approved on or after February 1, 2013. The May Visa Bulletin indicates no movement of this cutoff date.

Developments Affecting the EB-3 Employment-Based Category

The May Visa Bulletin announced that the cutoff dates for EB-3 individuals chargeable to most countries have advanced significantly in an attempt to generate demand and utilize fully the annual numerical limits for the category. The May Visa Bulletin indicates that these advancements are likely to continue for the next few months and that such rapid forward movement in cutoff dates is often followed by a dramatic increase in demand for numbers. If there is a dramatic increase in demand within the EB-3 category, the movement of cutoff dates will begin to slow or stop.

The April Visa Bulletin indicated a cutoff date of April 22, 2007, for EB-3 individuals chargeable to China. The May Visa Bulletin indicates a cutoff date of December 1, 2007, for these individuals, reflecting forward movement of 223 days. This means that EB-3 individuals chargeable to China with a priority date prior to December 1, 2007, may file an AOS application or have the application approved on or after May 1, 2013.

Additionally, the April Visa Bulletin indicated a cutoff date of December 8, 2002, for EB-3 individuals chargeable to India. The May Visa Bulletin indicates a cutoff date of December 22, 2002, for these individuals, reflecting forward movement of 14 days. This means that EB-3 individuals chargeable to India with a priority date prior to December 22, 2002, may file an AOS application or have the application approved on or after May 1, 2013.

The April Visa Bulletin also indicated a cutoff date of July 1, 2007, for EB-3 individuals chargeable to the Rest of the World. The May Visa Bulletin indicates a cutoff date of December 1, 2007, for these individuals, reflecting forward movement of 153 days. This means that individuals chargeable to all countries other than China and India with a priority date prior to December 1, 2007, may file an AOS application or have the application approved on or after May 1, 2013.

How This Affects You

Priority date cutoffs are assessed on a monthly basis by the DOS, based on anticipated demand. Cutoff dates can move forward or backward or remain static. Employers and employees should take the immigrant visa backlogs into account in their long-term planning and take measures to mitigate their effects. To see the May 2013 Visa Bulletin in its entirety, please visit the DOS website here.

Written by

Merry Christmas From The National Law Review

Merry Christmas to all of our readers from The National Law Review

Free Golden Christmas Tree Vector Background by The Vector Art

Image by Vector art

 

Happy Belated Hanukkah to our Jewish readers:

A peaceful Kwanzaa

And a Happy, Healthy and Prosperous New Year to us all

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The Cost of Christmas

Thanks to Stephen Fairley of The Rainmaker Institute  for bringing this graphic to The National Law Review‘s attention:

The Cost of 12 Days of Christmas

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Sunday Funnies: Typos

US Supreme Court Accepts Certiorari in Koontz v. St. Johns River Water Management District — Confiscatory Takings Case

The National Law Review recently featured an article by Kerri L. Barsh of Greenberg Traurig, LLP regarding US Supreme Court Accepts Certiorari in Koontz v. St. Johns River Water Management District — Confiscatory Takings Case:

GT Law

On Friday, October 5, 2012, the U.S. Supreme Court granted certiorari in Koontz v. St. Johns River Water Management District, an appeal from the Florida Supreme Court.  The questions presented in Koontz are twofold : (1) whether the government can be held liable for a taking when it refuses to issue a land-use permit on the sole basis that the permit applicant did not accede to a permit condition that, if applied, would violate the essential nexus and rough proportionality tests set out in Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), and (2) whether the nexus and proportionality tests set out inNollan and Dolan apply to a land-use exaction that takes the form of a government demand that a permit applicant dedicate money, services, labor, or any other type of personal property to a public use. Petitioner Koontz argues in his Petition for Certiorari (a copy of which is attached) that the demands imposed by the St. Johns River Water Management District on the Koontz family as a condition of issuance of the permit were confiscatory and violated the 5th and 14th Amendments of the US. Constitution.

©2012 Greenberg Traurig, LLP

Mistake in October Visa Bulletin Results in Temporary Suspension in Processing of EB-5 Petitions

GT Law

On October 1st many U.S. Embassy and Consulates overseas, as well as the National Visa Center stopped processing EB-5 based immigrant visa petitions for regional centers due to a mistake in the October visa bulletin.  The visa bulletin for October 2012 erroneously noted that immigrant visa numbers for I-526 petitions approved through the EB-5 Regional Center pilot program were unavailable.  It appears that the Department of State did not know that S. 3245 was signed into law on Friday, September 28th and extended the EB-5 Regional Center program.  As a result of the extension, immigrant visa numbers for regional center based immigrants should not have been listed as unavailable and interviews should still have been scheduled.  However, numerous applicants were told that their applications could not be processed because visas were “unavailable.”   After being notified of the error, Department of State officials confirmed that they would correct the mistake and notify consular posts that I-526 petitions should continue to be processed.

Additionally, the October visa bulletin also incorrectly described the employment-based 5th preference category.   Specifically, it noted that there were two separate categories entitled: (1) 5th Targeted Employment Areas/Regional Centers” and then (2) “5th Pilot Program,” when in fact those are actually a single category.  Targeted Employment Area designations that allow individuals to invest at the lower $500,000 threshold amount are applied in both the individual EB-5 category, as well as the regional center category.

EB-5 investors who experience problems in processing of their applications due to this error are encouraged to contact their legal counsel immediately.

©2012 Greenberg Traurig, LLP

Detroit Considers Streetlight Savings

An article by Bruce Goodman of Varnum LLP regarding Detroit Streetlights was recently published in The National Law Review:

Varnum LLP

 

With 139 square miles of land within the city limits, and 60 percent fewer residents than in 1950, Detroit has 88,000 streetlights. To save $10 million a year the mayor has proposed borrowing $160 million to upgrade and reduce the number of streetlights to 46,000. Deciding which areas to illuminate and which to let go dark will reshape the city that has an estimated 37 square miles of vacant property and parks. Conventional wisdom is that state legislation is required to create the needed city lighting authority.

© 2012 Varnum LLP

Cybersecurity Act of 2012 Introduced

On February 14, a bipartisan group of senators introduced to the U.S. Senate the Cybersecurity Act of 2012, under which the Department of Homeland Security (DHS) would assess the risks and vulnerabilities of critical infrastructure systems and develop security performance requirements for the systems and assets designated as covered critical infrastructure. The bill is sponsored by Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman (I-CT), committee ranking member Susan Collins (R-ME), Commerce Committee Chairman Jay Rockefeller (D-WV), and Select Intelligence Committee Chairman Dianne Feinstein (D-CA). As explained in the statement announcing the measure, “[t]he bill envisions a public-private partnership to secure those systems, which, if commandeered or destroyed by a cyber attack, could cause mass deaths, evacuations, disruptions to life-sustaining services, or catastrophic damage to the economy or national security.”

Infrastructure Protection Obligations

Title I of the bill provides the key provisions of the critical infrastructure protection obligations that would be imposed by the bill. Under Title I, DHS, in consultation with entities that own or operate critical infrastructure, the Critical Infrastructure Partnership Advisory Council, the Information Sharing and Analysis Organizations, and other appropriate state and local governments, is required to conduct an assessment of cybersecurity threats, vulnerabilities, and risks to determine which sectors pose the most significant risk. Once the sectors have been prioritized based on risk, DHS, along with the other agencies and organizations, must conduct a cybersecurity risk assessment of the critical infrastructure in each sector. These risk assessments must consider the actual or assessed threat, the threatened harm to health and safety, the threat posed to national security, the risk of damage to other critical infrastructure, the risk of economic harm, and each sector’s overall resilience, among other factors. In conducting these assessments, DHS is called upon to cooperate with owners and operators of critical infrastructure.

DHS, in conjunction with the same agencies and organizations, must also develop procedures that will be used to designate certain critical infrastructure at the system or asset level as “covered critical infrastructure,” therefore making those systems and assets subject to the cybersecurity requirements developed under the bill. This infrastructure is to be identified based on an analysis of whether damage or unauthorized access to the system or asset could result in any of the following:

  • Harm to life-sustaining services that could result in mass casualties or mass evacuation
  • Catastrophic economic damage to the United States
  • “Severe degradation” of national security

Technology products themselves or services provided in support of such products may not be designated as covered critical infrastructure based solely on the finding that the products are capable of being used in covered critical infrastructure.

Following the identification of covered critical infrastructure, DHS must also develop, on a sector-by-sector basis, cybersecurity performance requirements that require the owners of covered critical infrastructure to remediate the cybersecurity risks identified through the risk assessment performed by DHS for that sector. The bill requires that, in establishing the performance requirements, DHS have a process through which it considers performance requirements proposed by asset owners, voluntary standards development organizations, and other groups, as well as existing industry practices, standards, and guidelines. If DHS determines that the existing or proposed performance requirements are insufficient, DHS is required to develop performance requirements on its own.

Once the covered critical infrastructure is identified and the performance requirements defined, asset owners will be required to take steps to secure the covered critical infrastructure assets and systems, and to that end the bill tasks DHS with promulgating regulations to require covered critical infrastructure owners to do the following:

  • Receive notifications of cybersecurity risks
  • Implement cybersecurity protections that the owner “determines to be best suited to satisfy” the performance requirements
  • Maintain continuity of operations and incident response plans
  • Report cybersecurity incidents

Each owner of covered critical infrastructure will be required to certify yearly that it has implemented cybersecurity protections sufficient to satisfy DHS’s approved security performance requirements or to submit a third-party assessment regarding compliance with those performance requirements that satisfies certain standards for the training, certification, and independence of the assessors.

The bill provides that DHS may exempt from the performance requirements any system or asset if the owner can demonstrate that the system or asset is sufficiently protected against the risks identified by DHS or that compliance with the performance requirements would not “substantially” improve the security of the system or asset.

Enforcement

The enforcement regime proposed by the bill provides that any federal agency with responsibility for security of the covered critical infrastructure at issue may enforce the regulations. However, DHS itself may enforce the regulations (i) if there is no other appropriate agency, (ii) if DHS is requested to do so by the agency with responsibility for the security of the covered critical infrastructure in question, or (iii) if the agency with responsibility for the security of the covered critical infrastructure fails to take enforcement action as requested by DHS. Civil penalties are available for violations of section 105 of the bill, under which the performance requirements are established. However, no private right of action would exist.

Owners and operators of covered critical infrastructure would be exempt from punitive damages related to identified cybersecurity risks so long as they have implemented security measures that satisfy the performance requirements, are substantially compliant with the performance requirements, and have completed the annual assessments.

Avoiding Duplicative Regulation

While the cybersecurity obligations imposed by this bill would be far-reaching and could conceivably overlap with the Critical Infrastructure Protection (CIP) Reliability Standards approved by the Federal Energy Regulatory Commission (FERC) for certain bulk-power system infrastructure, the bill attempts to carve out existing cybersecurity protections, and provides several mechanisms to ensure that critical infrastructure that is already regulated will not receive duplicative regulation under this proposal.

When developing performance requirements, DHS is required to determine whether there are existing regulations in effect that cover the identified critical infrastructure and address the risks identified by DHS. If such regulations are in place, DHS is instructed to develop performance requirements only if the existing regulations do not provide an appropriate level of security. This will likely require an analysis of the existing CIP Reliability Standards by DHS, including an analysis of whether those standards cover all of the covered critical infrastructure for the electric sector identified by DHS, and whether those standards provide a sufficient level of security to protect against the risks identified by DHS.

Another method by which the existing CIP Reliability Standards framework may remain unchanged is the presidential exemption authority provided under the bill. Pursuant to that provision, the President is authorized to exempt critical infrastructure from these requirements if the appropriate “sector-specific regulatory agency” (FERC for electric infrastructure) “has sufficient specific requirements and enforcement mechanisms to effectively mitigate” the risks identified by DHS.

Additionally, DHS and the other “sector-specific agencies” with responsibility for regulating critical infrastructure security are required to coordinate their efforts to eliminate duplicative reporting or compliance requirements. Similarly, any new rules developed by sector-specific agencies must be coordinated with DHS to ensure that they are consistent with DHS’s efforts.

Copyright © 2012 by Morgan, Lewis & Bockius LLP.

Final health IT innovators win funding for cancer treatment apps

Recently posted in the National Law Review an article by U.S. Department of Health & Human Services regarding Cancer Treatment Apps Funding for Health IT Innovators:

Innovative winners of an HHS public data and cancer challenge have created health IT applications that use public data

Ask Dory! – submitted by Chintan Patel, Ph.D.; Sharib Khan, M.D., M.A., M.P.H.; and Aamir Hussain of Applied Informatics LLC – helps patients find information about clinical trials for cancer and other diseases, integrating data from www.ClinicalTrials.gov and making use of an entropy-based, decision-tree algorithm.  A functional demonstration of the application is available at http://Dory.trialx.com .and existing technology to help patients and health care professionals prevent, detect, diagnose and treat cancer. The two winners presented their submissions during a special symposium today at the Hawaii International Conference on Systems Sciences and were each awarded $20,000 by the Office for the National Coordinator for Health Information Technology (ONC).  The two winning applications include:

  • My Cancer Genome – submitted by Mia Levy, Ph.D., M.D., of the Vanderbilt University Medical Center – provides therapeutic options based on the individual patient’s tumor gene mutations, making use of the NCI’s physician data query clinical trial registry data set and information on genes being evaluated in therapeutic clinical trials.  The app is in operation at www.MyCancerGenome.org .

Information on the four semifinalist teams can be found at http://go.USA.gov/5DA.

With the support of the National Cancer Institute, part of the National Institutes of Health, ONC launched the “Using Public Data for Cancer Prevention and Control: From Innovation to Impact” challenge this summer in support of ONC’s Investing in Innovation (i2) program. The i2 program utilizes prizes and challenges to facilitate innovation and obtain solutions to intractable health IT problems.  Aligned with the Obama administration’s innovation agenda, i2 is the first federal program to operate under the authority of the America COMPETES Reauthorization Act.

“What makes these health IT challenges so powerful is their ability to catalyze the expertise and creativity of innovators both in and out of health care,” said Wil Yu, ONC’s special assistant for innovations.  “We seek breakthrough solutions to nuanced issues; some are ready for the marketplace and some are prototypes, but all will have a great potential to benefit Americans.  Ask Dory and My Cancer Genome are examples of results that innovation challenges can incentivize and deliver – we’re really excited to see their impact.”

For additional details on the “Using Public Data for Cancer Prevention and Control” challenge, visitwww.Health2Challenge.org/using-public-data-for-cancer-prevention-and-control-from-innovation-to-impact-2 .

For additional information about ONC or on the Investing in Innovation (i2) program, visit http://HealthIT.gov.

© Copyright 2011 U.S. Department of Human & Health Services