Broadband Breakfast ran a fine session this morning on which intellectual property issues are in the collective frontal lobes of the 112^th Congress.

Panelists were:

• Jeff Lowenstein – Cong. Adam Schiff (D-CA)
• Caroline Holland – Sen. Herb Kohl (D –WI)
• Laurent Crenshaw – Cong. Darrell Issa (R-CA)
• Neil Quinter – Sen. Dianne Feinstein (D-CA)
• Ryan Clough – Rep. Zoe Lofgren (D-CA)
• Drew Clark – Broadband Breakfast (Ring Master)

The webcast will be available later in the week, and I commend the whole discussion to you. In the meantime, some take-home points:

• Major patent reform is unlikely. Last year’s struggles exhausted everyone, and there is a concern that an effort to enact major changes would interfere with passing incremental improvements, such as increasing USPTO resources and ending the diversion of fees. Also, the courts have been dealing with some of the big issues, so modesty in ambition seems to be the order of the day.

• COICA will certainly be an issue. A House companion to Leahy’s S.3804 is probable, but it is unlikely to be identical, and it is even more unlikely that it will get through any House committees without considerable poking. There is a pretty good consensus that the basic idea of COICA – using other Internet actors to protect intellectual property – is a good one. But everyone understands that the details are hard.

• The DMCA is not likely to be the focus of serious action. The tech industries are not unhappy with Copyright Office rules and court decisions, and their major alarums were overdone.

• The “false marking” issue has come to the fore as a result of recent Federal Circuit decisions, and over 500 lawsuits have been filed. This could produce a legislative response, possibly to limit standing.  For more, see Gray on Claims:  “Over half of these 500+ suits were filed in just two courts (E.D. Texas and N.D. Illinois), while over half the suits were filed by just eight plaintiffs.”

• A significant issue concerning copyright law and retransmission of over-the-air broadcasts is perking in the courts, but is not on the congressional radar screen.

• The issue of orphan works is not high on the agenda. People are watching the Google Book Settlement, which is somewhat related. [N.B. For a rather reluctant conclusion that the GBS should be rejected, see Googling theBook Settlement. In any case, the GBS would not address some of the most difficult orphan works issues, so I think the topic deserves a higher spot. ]

• Congress is certainly interested in government IT reform, cloud computing, and all that jazz, and sees this as a good spot for cooperation, despite the overall dismal political climate. There is also general optimism about the value of having an IP Coordinator.

• The issue of copyright for fashion design came up last year, and will come up again. Not clear whether it has real prospects.

• Issues of protection of IP rights versus the effect of IP on competition, that hardy perennial, will come up in various ways, especially in the context of protecting competition in streaming video.

• The question of a performance right for music on broadcast radio is in front of Congress, and there seemed to be general consensus that such a right should exist. It was mentioned only in passing at the end of the session, though.

• The ACTA issue is live, but with no clarity of views. Same for ICANN.

• A closing comment was that everything has a big international component.

Capitol image from StockVault.