Many have noted—and we agree—that some of the lines drawn by the SCA that may have made sense in the past have failed to keep up with the development of technology, and the ways in which individuals and companies use, and increasingly rely on, electronic and stored communications. We agree, for example, that there is no principled basis to treat email less than 180 days old differently than email more than 180 days old. Similarly, it makes sense that the statute not accord lesser protection to opened emails than it gives to emails that are unopened.

Thank you, Reddit and everyone else who provided feedback to the original rough draft bill to reform the Computer Fraud and Abuse Act (CFAA) and the wire fraud statute – the laws the government used to unfairly prosecute Aaron Swartz. With the help of Internet freedom advocates, computer and legal experts, the draft has been revised and is available here. I have been in communication with Aaron’s father who supports this draft bill and approves of the name “Aaron’s Law.”

Like the first draft, this revised draft explicitly excludes breaches of terms of service or user agreements as violations of the CFAA and wire fraud statute. This revised draft also makes clear that changing one's MAC or IP address is not in itself a violation of the CFAA or wire fraud statute. In addition, this draft limits the scope of CFAA by defining "access without authorization" as the circumvention of technological access barriers. Taken together, the changes in this draft should prevent the kind of abusive prosecution directed at Aaron Swartz and would help protect other Internet users from outsized liability for everyday activity.

As our discussions have continued, it is clear that many believe a thorough revision of the CFAA and substantial reform of copyright laws are necessary. I agree. “Aaron’s Law” is not this complete overhaul, but is a first step down the road to comprehensive reform. If we succeed in getting this draft bill enacted into law, it will be in honor of Aaron Swartz, and should be seen as a beginning of a concerted effort to bring reform to these broader issues. To be successful, that effort will likely take substantial time and require sustained and intense support from all of you in a push that will need to exceed our stoppage of SOPA.

I see “Aaron’s Law” as common sense fixes that should be enacted to stop the kinds of abuse Aaron was subjected to from affecting others. I intend to introduce a final version of "Aaron's Law" as legislation soon, and in talking with my friend Sen. Ron Wyden of Oregon, I understand he wants to introduce it in the Senate as well. I will be urging my colleagues in the House of Reps to become cosponsors. The chances of success – whether for "Aaron's Law" or other proposals – will depend greatly on the degree of positive public engagement and support to change the law. As SOPA showed, when the Internet speaks, lawmakers listen. I think with enough constructive support we can have an opportunity to pass "Aaron's Law."

Many thanks to all of you – Zoe

The bill's aims are sweeping, and includes reducing criminal penalties for copyright infringement, broadens the definition of fair use, and increases citizens' ability to digitally copy their own material for fair use.

• Yours truly [Jerry Brito] making the Hayekian and public choice case for reform
• Reihan Salam and Patrick Ruffini arguing that the GOP should take up the cause of reforming what is now a crony capitalist system
• David Post explaining why SOPA was so dangerous
• Tim Lee on the criminalization of copyright and the a use of asset forfeiture in enforcing copyright
• Christina Mulligan explaining that the DMCA harms competition and free expression
• Eli Dourado calculating that the system we have today likely far exceeds what we need in order to offer authors an incentive to create
• Tom Bell suggesting five reforms for copyright, including returning to the Founders’ vision of what copyright should be

1. The government should obtain a warrant before compelling a service provider to disclose an individual’s private online communications.
2. The government should obtain a warrant before it can track the location of an individual’s wireless communication device.
3. Before it can install a pen register or trap and trace device to capture real time transactional data about when and with whom an individual communicates using digital services (such as email or mobile phone calls), the government should demonstrate to a court that such data is relevant to a criminal investigation.
4. The government should not use an administrative subpoena to compel service providers to disclose transactional data about multiple unidentified users of digital services (such as a bulk request for the names and addresses of everyone that visited a particular website during a specified time frame). The government may compel this information through a warrant or court order, but subpoenas should specify the individuals about whom the government seeks information.

The Global Free Internet Act would create a Task Force on the Global Internet that identifies, prioritizes, and develops a response to policies and practices of the U.S. government, foreign governments, or international bodies that deny fair market access to Internet-related goods and services, or that threaten the technical operation, security, and free flow of global Internet communications. Members of the Task Force include the heads of several executive branch agencies, four U.S. persons nominated by Congressional leadership, and four U.S. persons who are not government employees nominated by the Internet itself. The Task Force would hold public hearings, issue reports no less than annually, and coordinate the activity of the U.S. government to respond to threats to the Internet. When the next SOPA-like legislation, restrictive international trade agreement, or overbroad treaty from an international body becomes a threat, it is the job of this Task Force to sound the alarm and propose a course of action

Time. Reform should start with the phrase "limited Times." For patents, it was originally 14 years, until 1861 when it was lengthened to 17 years, and then in 1995 it was extended again to 20 years with a five-year extension under limited circumstances. That may seem fine or even a little short for pharmaceuticals or gas turbines, but in technology things move a lot faster. Even AT&T won't make you keep a phone for more than two years. Apple is on its fifth iPhone iteration in less than five years.

"Times" ought to float by product and industry, perhaps with expirations based on the half-life of the product. PCs and telecom equipment have about a three-year half-life, pharmaceuticals more like 10. Someone needs to bring a clever case to the Supreme Court showing that 17 years, let alone 25, is an eternity and damaging for a fast-moving industry like tech.

Value. We have to stop allowing juries to establish the value of patents. In just the iPad alone, I would estimate there are 50,000 to 100,000 patents covering the chips, display, storage, communications and other features. They can't all be worth $6 per patent per device. Money isn't mentioned in Clause 8, but the market rather than juries can determine value.

Exclusivity. It's time to require patent holders to actually make or sell products before citing infringement. Lots of people have good ideas. Patent reform has to define what are exclusive rights for "Discoveries." As if you "discover" an algorithm or gene splicing rather than pull a year of all-nighters perfecting your invention. The idea is just a start. The rest is the sweat of execution. Facebook's Mark Zuckerberg had the right idea, telling his accusers in a deposition (perhaps the only true dialogue in the fictionalized movie "The Social Network") that "You know, you really don't need a forensics team to get to the bottom of this. If you guys were the inventors of Facebook, you'd have invented Facebook." That's the most sane logic against patent trolls.

Progress. Sane logic, however, rarely wins. Patent holders and even patent trolls have constitutional rights for their ideas. But the legal filter has always been "limited Times" or "exclusive Rights." Remember that the constitutional clause opens with "to promote the Progress of Science." Everything else follows.

Progress should take precedence over legal maneuvers and runaway jury awards. This is what James Madison must have meant. A smartphone is made up of thousands of interlocking pieces of hardware and software. Any number of them may violate a competitor's or troll's patents. Every time one of these is omitted, or worse, causes the final price of the end product to rise beyond its true economic value, the "Progress of Science" is seriously impeded. And progress is what creates jobs and increases our standard of living.

Clearly we'd be better off having Microsoft, Apple and Google spending $1 billion on developing new products rather than buying up patents as an insurance policy so they and their partners can battle trolls and keep selling phones. How enlightening if we could see government actually promote progress as the Founders envisioned.

Moreover, it turns out that the PA is only supporting the DCE if it's watered-down to the point of uselessness :

The PA makes the case for a DCE as a fully voluntary, interoperable platform, for use by businesses and the public, which could allow rights to be licensed more efficiently and openly. Its submission makes clear that the DCE would not be a place to set prices or terms, but rather to put potential users in touch with the rightsholders in a work, in all forms of content.

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So to caricature the two departments: one is asking for evidence and consulting widely and openly. One has spent the past few years consulting narrowly, opaquely, and with no evidence or analysis to speak of.

The IPO come under fire in Peter Wishart's speech for being sloppy with evidence and ignoring the creative industries. DCMS' proposals are to be 'got on with'. He calls the IPO 'a bureaucratic front to devalue the people whom it is supposed to support' which the Government must 'get to grips with'. 

That is slightly strange. The issue of policy making for copyright involves managing a complex mix of evidence, principle and opinion. Disagreement, and the management and channeling of that disagreement in the formulation of policy, are two separate things. Whatever position one takes on the substance of this debate about IP, there is a right way and a wrong way to make public policy.  It has to be democratically legitimate, open, transparent and involve proper debate. Over the past 12 months, the IPO has beaten DCMS hands down on that metric. 

As Lauren Weinstein points out in an excellent, monitory blog post entitled "Battling Internet Censorship: The Long War", that would be a big mistake:

you might be tempted to assume that the battle is over, the war is won, and that -- as Maxwell Smart used to say -- "Once again the forces of niceness and goodness have triumphed over the forces of evil and rottenness."

Nothing could be further from the truth.

In fact, the forces arrayed in favor of Internet censorship are not only powerful and well funded, but are in this game for the very long haul indeed. A day of demonstrations to them, as annoying as they may be to these censorship proponents in the very short run, are in the final analysis more like a single human lifetime compared against the centuries.

One of the key problems is that few within the Internet world know much about how "DC" – the inner circle of US policy-making – really works. One person who does is Christine Paluch, as she explains in this post seconding Weinstein's warning about "The Long War":

Here in DC the long war is not some analogy, it is a way of life. This is a town of strategists and researchers who often lay intellectual groundwork for legislation that gets put into place long after they have moved on to another issue. I should know this, I was one of the researchers, and I worked on a few major issues involving regulatory policy, specifically labor and employment, environmental issues, consumer product safety, and healthcare. It is not very often that somebody sees their work used in laying the groundwork for historic legislation, but the work of me and my fellow researchers was used in a few pieces of historic legislation. It was a part of the long game, one that took over 5 years to completely play out, and I was only there for part of it. I was already left the campaign by the time the legislation went through congress.

Where former President Lula and his Minister for Culture, the musician Gilberto Gil, embraced Creative Commons licensing, Ana de Hollanda, the new minister appointed by Dilma Rousseff, Lula's successor, ordered the CC license to be removed from the Ministry of Culture's website. That and other hints seemed to signal a major retreat from Brazil's position as a leader in recasting copyright for the modern world.

The intentions of the new Brazilian government have become a little clearer with the leak of the third version of the draft bill. What emerges from this thorough analysis of the document by Pedro Paranaguá is that it's a mixed bag.

On the plus side, Paranaguá identifies things like first-sale rights; the ability to put works into the public domain; compulsory licenses for orphan works; and a good range of exceptions and limitations to copyright:

i) space-shifting and interoperability
ii) reproduction, translation, adaptation, distribution, communication, and making available exclusively for persons with impairment
iii) private copying
iv) incidental use (background use, mashups, and so on)
v) citation for criticism and study
vi) certain uses for rehabilitation or therapy purposes
vii) musical public performances within religious activities
viii) public performance within film-society associations
ix) reproduction, translation and distribution for educational purposes
x) reproduction for conservation and archival purposes
xi) communication and making available within libraries
xii) public display of broadcasts and public performance of sound recordings by liberal professionals and micro-companies

Although that would seem to mean that people would be permitted to circumvent DRM in order to access works in the public domain, or to enjoy the exceptions and limitations to copyright, it's quite likely that most non-technical members of the public (a) won't know how to do that and (b) wouldn't do it even if they did from a mistaken belief that the presence of DRM is an indication that it would be illegal (as is the case for uses outside the exceptions and limitations.)

Another regrettable aspect is that the ideas proposed in Brazil's "Marco Civil" – the innovative civil rights-based framework for the Internet discussed in Techdirt a few weeks back – have not been adopted in the draft Bill:

The Ministry of Culture further rejects the approach taken under the called “Marco Civil da Internet” or civil rights framework for the internet, which is a bill presented to the Brazilian Congress that has been built collaboratively with society, and that states the principles underlying the Internet in the country. Under the “Marco Civil” provisions, content may be taken down if, and only after, a court order is granted.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

If there are any exceptions to TPM or rights management information (RMI) liability, the exceptions should be clearly enumerated and narrow in scope

A system of protections and obligations for ISPs that shelters them from certain liability, reduces and prevents copyright infringement on the Internet and provides incentives for ISPs to work cooperatively with copyright owners.

Embassy Ottawa remains frustrated by the Government of Canada,s continuing failure to introduce - let alone pass - major copyright reform legislation that would, inter alia, implement and ratify the World Intellectual Property Organization (WIPO) Internet treaties. Several recent factors compound this frustration, including the fact that:

-- the Prime Minister told the President last August that Canada would pass copyright legislation;

-- the November Speech from the Throne laying out the government,s Parliamentary agenda stated that it would "improve the protection of cultural and intellectual property rights in Canada, including copyright reform;" and

-- senior GOC officials, especially Industry Minister Prentice, repeatedly assured the Ambassador and senior Mission Canada officers that the copyright bill would be introduced "soon." Specifically, assurances were given that the legislation had been finalized and would be introduced prior to the Christmas recess, and then again immediately upon Parliament's return in January. Neither of which occurred.

The one thing that still irks about the new bill, at least from an American perspective, is that it still places the burden of a truth defense on the defendant. It still seems unfair and inefficient to put the burden of proving a statement's truth on the defendant when the plaintiff presumably has much easier access to everything they need to disprove the claim. Perhaps, with the changes the bill makes to strengthen 'fair comment' and tighten jurisdiction, the backwardness of the truth defense will not be as much of an issue. But I still worry about situations where a limited-resource defendant faces a super-wealthy corporate plaintiff - why should the poor village blogger have to prove the truth of a statement that the rich City executive ought to be able to disprove with minimal effort?

"Once this bill is passed, you could go online and steal every movie that's ever made, every book, and every song, put them on your hard drive, admit liability, and write a $5,000 check. That would be the full extent of it -- and it would be the first rights holder who would get all the money. Nobody else would get a cent. It's close to saying that for people who want to steal stuff, there's a compulsory license of $5,000."

"The libel laws which were initially set up to protect the reputation of individuals at a time when companies weren't the entities they are now are being used by companies to essentially quash dissent and to destroy criticism.

"That's a major problem. Companies can basically bully people out of saying bad things about their products and services."

"BT is clinging on to an old business model which is supported by illegal downloading. That's not only unfair to artists and creators, but penalises BT's many customers who use the internet legally,"

We all know that the economy is in tough shape these days, and (as always happens in such situations) there's often a misguided push to put up trade barriers to try to force people to "Buy American." Of course, time and time again, such trade barriers have proven to actually do tremendous harm to Americans, rather than help them. We're already seeing this with friendly trading partners like Canada threatening to retaliate. That retaliation harms American jobs much more than any jobs "gained" from such protectionist barriers (as pointed out by the non-partisan and highly respected Peterson Institute). On top of that, by adding barriers on goods that Americans want, the end result is only that Americans end up paying *more* for their goods -- not exactly an outcome consumers are likely to appreciate during an economic downturn.

Granted, it's quite easy to understand the patriotic feeling behind a "Buy American" clause -- and we all want to support our country. But the problem is that in not paying attention to the actual impact, and pretending that there are no "unintended consequences," a Buy American clause can be detrimental to America in the long run. That doesn't seem particularly patriotic.

The Innovation Movement is an effort by the Consumer Electronics Association to make more people aware of important policy issues, and to make sure that Congress actually takes relevant data into account, rather than just focusing on the patriotic headline while ignoring the unpatriotic results.

In this Insight Community Conversation, we're looking for thoughtful and well-written discussions on the pros and cons of a "Buy American" clause for US policies. The best results will be used as posts on the Innovation Movement website.

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