Internet Archive should be blocked from scanning and sharing millions of literary works, the Association of American Publishers said Monday in a lawsuit at U.S. District Court for the Southern District of New York. AAP accused IA of sharing “some 1.3 million bootleg scans of print books” through public-facing online libraries. Plaintiffs are Hachette, HarperCollins, John Wiley & Sons and Penguin Random House. The lawsuit “condemns the fact that IA solicits and collects truckloads of in-copyright books in order to copy and make them available without permission,” AAP said, arguing there are no exceptions for this activity under fair use, the first sale doctrine or in the Digital Millennium Copyright Act. IA founder Brewster Kahle called the lawsuit “disappointing.” IA “acquires books and lends them, as libraries have always done,” which supports the publishing industry, he emailed. “Publishers suing libraries for lending books, in this case, protected digitized versions, and while schools and libraries are closed, is not in anyone's interest.” For too long, "IA has brazenly scanned and distributed published works while refusing to abide by the traditional contours of copyright law,” Copyright Alliance CEO Keith Kupferschmid said. Public Knowledge Legal Director John Bergmayer wrote in support of IA, saying controlled digital lending is fair use under copyright law: "The National Emergency Library, which expands on CDL, is justified under the circumstances of the pandemic, when so many print books paid for by the public are inaccessible." He urged Congress to support legislation "clarifying the right of libraries to make print books available to patrons electronically, and to serve their constituencies during times of emergency.”
California’s Justice Department hasn’t submitted final rules implementing the California Consumer Privacy Act to the Office of Administrative Law, an OAL spokesperson emailed hours before a possible Monday deadline to get rules out to the public by July 1 when CCPA enforcement begins. Section 11343.4(b)(3) of California government code says how to request an earlier effective date, noted the agency’s representative. Privacy lawyers said the department would have had to submit rules by Sunday, but because that wasn't a business day, OAL would probably take them Monday. Missing the deadline might mean final rules wait until Oct. 1, three months after Attorney General Xavier Becerra (D) says he will enforce them (see 2005210054). However, some attorneys said the statute section referenced by OLA provides potential ways to get rules out by July 1. “The AG could submit the final CCPA regulations late and ask for the July 1 effective date based on ‘good cause,’” Pepper Hamilton’s Sharon Klein emailed Monday. OAL “already has a long list of 55 regulations slated for review, and it is unclear how receptive OAL would be to expediting regulations that (as of the last draft) are nearly 30 pages long,” she said. BakerHostetler attorneys blogged Friday that California law might allow the AG to argue that CCPA is exempt from normal deadline rules because the privacy statute specifies July 1 is the effective date. Wiley’s Joan Stewart emailed us Friday that she doesn’t see how the AG can stay on schedule and expect “enforcement in a vacuum come July 1.” CCPA, which took effect Jan. 1, doesn’t require the AG to adopt rules before enforcement begins, said Media Alliance Executive Director Tracy Rosenberg. A delay’s practical effect is “to prevent AG enforcement of the specific areas of CCPA tied into their rule-making until they complete that rule-making,” she emailed. “While it is unlikely businesses would be reprimanded for highly technical CCPA violations until the rules are finalized, lack of a good faith effort to comply with the CCPA at all will probably be actionable as of July 1 regardless.” Becerra’s office didn’t comment.
Since it began holding commissioners’ gatherings via teleconference March 31, the FCC reduced news briefings it holds after monthly meetings. Eighth-floor officials suggested logistical and technical concerns could be factors. Republican commissioners have held all of the few post-meeting media briefings, while Democratic commissioners and bureaus held none. Chairman Ajit Pai held one.
Communications law firms remain busy two months-plus into the COVID-19 pandemic. Transactional work slowed, but the FCC has stayed busy. With states starting to reopen, lawyers said in interviews this month they expect a normally busy summer. Some expect an inevitable slowdown after the November election, especially if there's a change in leadership in Washington.
California might enforce its privacy law three months before final regulations by Attorney General Xavier Becerra (D), said privacy attorney Christina Gagnier on a Carlton Fields webinar Thursday. The AG hasn't announced timing for California Consumer Privacy Act rules, but “it’s been communicated that the regulations might not be out until October,” even though Becerra hasn’t budged on starting enforcement July 1, she said. COVID-19 has moved many things back but it’s also brought “a heightened awareness of privacy,” Gagnier said. “The AG’s office is basically balancing those two things.” The final rules probably won't deviate much from proposed regulations as revised a few months ago (see 2004020043), unless the legislature this summer passes major changes like what’s proposed in AB-3119 by Assemblymember Buffy Wicks (D), the lawyer said. Wiley heard the same, attorney Joan Stewart emailed us. "While the AG hasn’t provided guidance yet on how enforcement would work in a world without implementing regulations -- we anticipate that initially enforcement could be focused on the requirements of the statute, rather than compliance specifics tied to the regulations." Expect the AG to "go after businesses that have made no effort to comply rather than businesses that have made a good faith effort but fell short." The International Association of Privacy Professionals blogged Monday about the possible delay to CCPA rules. "For regulations to become effective July 1, they must be filed with the Office of Administrative Law by May 31," but they haven't been submitted, IAPP said. If the AG doesn't meet that deadline, "their effective date will likely slip until Oct. 1." Becerra is "committed to enforcing the law starting July 1," a spokesperson emailed. "We encourage businesses to be particularly mindful of data security in this time of emergency."
A November ballot vote on California consumer privacy might be inevitable despite lukewarm reception from groups that typically back such measures. Industry hasn’t formally opposed the proposed California Privacy Rights Act (CPRA) and legislative intervention is no sure thing, we were told last week. “That there is no campaign against this initiative” by businesses is “almost as telling” as “no privacy group coming out to support it,” said Corbin and Kaiser lobbying firm CEO Samantha Corbin.
Chief Justice John Roberts said the Telephone Consumer Protection Act is a popular law the Supreme Court doesn’t want to undermine, as it heard argument in a case Wednesday with broad implications for the statute (see 2001130044). Other justices said similar, and experts don't expect the entire regime to be overturned. The court heard the case via teleconference, with justices calling in remotely because of COVID-19. Barr v. American Association of Political Consultants involves an AAPC challenge of a 4th U.S. Circuit Court of Appeals ruling, which declared a 2015 government debt collection exemption unconstitutional and severed the provision from the remainder of the TCPA.
The state's attorney general isn’t backing off plans to enforce the California Consumer Privacy Act starting July 1 despite a push by business groups to delay it by six months amid COVID-19. Lawyers are advising businesses to expect enforcement that day. The public health crisis must delay some things but shouldn't postpone this, said California Senate Judiciary Committee Chair Hannah-Beth Jackson (D) in an interview.
Axinn announces Koren Wong-Ervin, ex-Qualcomm, as partner-antitrust ... Wiley names to new COVID-19 group Task Force and Resource Center: Privacy, Cyber and Data Governance Chair Kathleen Kirby, and from that practice Megan Brown, Jon Burd, Matthew Gardner, Duane Pozza and Antonio Reynolds; Telecom, Media and Technology co-Chairs David Gross and Kirby, and from that practice Scott Delacourt, Anna Gomez, Jennifer Hindin and Joshua Turner; and Wiley's Signal Group-Strategic Communications and Digital Solutions Chair John Procter and from that group Blake Androff and Robert Bole.
The 9th U.S. Circuit Court of Appeals' ruling for Google and its YouTube subsidiary in Prager University's lawsuit (see 2002260046) leaves open the broader issue of how courts will treat online platforms as speakers, Wiley lawyers Megan Brown, Boyd Garriott and Jeremy Broggi blogged Wednesday for the Washington Legal Foundation. The Supreme Court's Manhattan Community Access v. Halleck decision left the door open to the court finding sufficient state action in future First Amendment cases, they said. With doctrine unsettled, some platforms are focusing on self-regulation, they said. They said the Communications Decency Act's Section 230 immunity could go away in the face of bipartisan criticism and DOJ saying it's looking at ways of paring it back.