Tillis Report Sums Up Senate IP Subcommittee’s Work on U.S. IP and Innovation

As Chair of the Senate IP Subcommittee in the 116th Congress, Senator Thom Tillis has held 140 stakeholder meetings and 17 Senate hearings on IP topics, and he plans to introduce draft legislative text on reforms to the Digital Millennium Copyright Act on December 18.

Senator Thom Tillis

The Senate Judiciary Committee’s Subcommittee on Intellectual Property Chair, Senator Thom Tillis (R-NC), who was re-elected to a second term this November with about 49% of the vote, last week released the Subcommittee’s 116th Congressional Report. According to the report, Tillis held over 90 stakeholder meetings in 2019 and over 50 meetings in 2020, when discussions had to be moved to a virtual format due to the COVID-19 pandemic. Tillis has also held 17 Senate hearings since January 2019 on topics ranging from USPTO oversight to reform of the Digital Millennium Copyright Act (DMCA) and led or co-sponsored 11 intellectual property (IP)-related bills.

Move Over, Patent Perfectionists

In an interview with IPWatchdog this past May, Tillis explained that his efforts to reform Section 101 patent eligibility law “stalled because stakeholders refused to compromise. They let the great and perfect get in the way of the good.” Tillis added that stakeholders must find consensus amongst themselves before the Subcommittee would spend more time on the issue. As a result, the Subcommittee’s focus for 2020 has been on reforming U.S. copyright law, with five hearings already held and a final meeting scheduled for December 15.

The last hearing will focus on the role of voluntary agreements and technological measures in addressing copyright policy online; Tillis recently published a letter to Twitter CEO Jack Dorsey expressing disappointment that Dorsey declined his invitation for a Twitter representative to attend the hearing. The letter indicated that Tillis’ and Dorsey’s staff had been working together for months to identify an appropriate witness, but Dorsey ultimately refused to commit to sending anyone. In the letter, Tillis told Dorsey that it’s critical for the Subcommittee to hear from key online platforms like Twitter for this final hearing of the year, and that Facebook’s Mark Zuckerberg had pledged to send someone. “The only reasonable conclusion one can draw from your actions is that Twitter simply does not take copyright piracy seriously,” added Tillis. In lieu of attending, Tillis demanded that Dorsey submit answers to a series of 12 questions indicated in the letter by December 4 or he would have to “work with the full [Judiciary] committee Chair and Ranking Member to find another way to compel your testimony.” The questions addressed accusations against Twitter about the platform’s slow response to copyright infringement claims and refusal to negotiate licenses and agreements with music publishers, as well as issues surrounding the company’s approach to content moderation and censorship.

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Safeguarding American Pandemic IP

Throughout the pandemic, Tillis has also been focused on foreign government attempts to steal U.S. intellectual property, particularly with respect to critical COVID-19 vaccine research. In October, Tillis and Senator Marsha Blackburn (R-TN) introduced the Defend COVID Research from Hackers Act with the goal of authorizing the President to “take swift action and add sanctions to countries trying to disrupt or hack COVID-19 research.”

This bill is the Senate companion to legislation introduced in the House of Representatives in July by House Minority Leader Kevin McCarthy (R-CA).

In May, Senators Tillis, Richard Blumenthal (D-CT), John Cornyn (R-TX) and Ben Sasse (R-NE) sent a letter to Federal Bureau of Investigation (FBI) Director Christopher Wray and Cybersecurity and former Infrastructure Security Agency (CISA) Director Christopher Krebs regarding a notice issued by their agencies alerting American companies and research institutions about attempted attacks by hackers affiliated with the Chinese government.

Draft DMCA Text Expected Soon

With respect to the Subcommittee’s work on the DMCA, Tillis has said he intends to release a draft of legislative text to reform the law on December 18, 2020. In November, he issued a series of questions for interested stakeholders  related to modernizing the Digital Millennium Copyright Act (DMCA), especially Sections 512, 1201 and 1202, each of which Tillis said were “ripe for reform.” Some notable responses were received by Re:Create—whose members include organizations like the Electronic Frontier Foundation (EFF), Public Knowledge and the Computer & Communications Industry Association (CCIA)—and the Artist Rights Alliance (ARA), an artist run nonprofit fighting for a healthy creative economy and fair treatment for all creators in the digital world. Responses were due December 1, and Tillis noted that recommendations will be incorporated into a draft legislative text that will be released on December 18, 2020.

In his letter to stakeholders, Tillis noted that he “believe[s] American copyright law needs to be modernized to be more responsive to current technologies, copyright markets, and business practices.” He expressed his viewpoint that copyright law should be reformed to better encourage the creation of copyrightable works and to protect those who make lawful uses of copyrighted works and software-enabled products. Tillis posed fifteen questions focused on potential reform to section 512 and section 1201, added to title 17 of the U.S. Code by the Digital Millennium Copyright Act (“DMCA”). He also  acknowledged that other aspects of title 17 could be revised to better tailor copyright law to the digital age. For example, the questions included “could copyright law borrow from employment law, or other relevant fields, to establish different thresholds for copyright owners and OSPs of different size, market share, or other relevant metric?”;  “[w]hat are your thoughts on [a notice-and-staydown] system, and how could it best be implemented?”; “[i]f warranted, what would be the best way to enact limited website-blocking via such injunctions?”; and, how could Congress accomplish a goal of “improving dispute resolution by directing disputes between notice and counter-notice filers to a small claims court rather than federal court[?]”.

Re:Create Response

Re:Create issued a statement and provided detailed responses to each of Tillis’ questions. As to Tillis’ question about whether copyright law should be revised to account for [size] differences among stakeholders, such as by borrowing from other areas of law, Re:Create responded by noting that “[a]s currently drafted, the framework of the DMCA provides both the flexibility and certainty necessary for service providers, creators, and users of all sizes…[and] [c]hanges to the law that would create different requirements based on new and arbitrary size definitions would cause harm to the entire ecosystem potentially stifling both innovation and creativity.” Further, with respect to Tillis’ questions regarding a notice-and-staydown system, Re:Create noted that it is “strongly opposed to any notice-and-staydown system and agree[s] with the Copyright Office, which specifically objected to the viability of a notice-and-staydown regime in their recent study of Section 512.”

EFF and Public Knowledge

Re:Create also encouraged its members to submit responses and comments, noting that they were “call[ing] on all stakeholders to be transparent and open with their recommendations because [they are] concerned that otherwise Congress may not hear everyone’s voice.” Members including Electronic Frontier Foundation (EFF) and Public Knowledge submitted. EFF’s response reiterated that it would strongly oppose any legislation related to implementation of a notice-and-staydown system, while Public Knowledge, said that they support “the need to create obligations tailored to accommodate differences of scale, [but] it is difficult to design a status that does not produce undesirable secondary effects.” Public Knowledge recommended that a rigorous study would be necessary to allow lawmakers to understand how the “metrics actually relate to the vague notion of ‘big versus small.’”

Artist Rights Alliance

The ARA released a letter asserting that the collaborative balance that Congress intended to strike in the DMCA has been “utterly destroyed by unchecked and unaccountable global platforms shielded from ordinary rules of liability by catastrophically overbroad readings of the Section 512 safe harbor.” The ARA expressed its strong viewpoint that the correct approach is to make it clear that the “Section 512 safe harbor is only available to genuinely passive services that carry and host information – and not to today’s modern platform behemoths that curate content, shape the online environment through algorithms and recommendation engines, and earn billions from targeted ad revenue and exploitation of their users’ choices, tastes, and data.”

The Alliance also advocated for a “notice and staydown” system, asserting that “[c]ompanies that build digital services and unleash them into the world have a basic responsibility to know their own product, pay attention to how it is used, and take basic, effective steps when they are warned of problems.” They further expressed that individual creators do not have the means to police large-scale global networks in a systematic way and when artists do find unlicensed copies of their work online, they should only have to report it one time and then have assurance that the network carrying it will address the problem.

In addition, the ARA said that, under the current regime, where artists have the sole responsibility to monitor platforms for unlicensed uses of their work, “it is vital that high-volume access to network information, seamless and cost-free [application programming interface (API)] connections and simple bulk reporting mechanisms be provided.” The ARA noted that it is necessary for large corporate creative organizations to have access to tools “equal to the size and scale of the platforms they are burdened with monitoring,” but also asserted that “monitoring and reporting tools must also scale down and be available in a usable, efficient form for individual artists and creators, much as affordable content moderation systems are already available to small and medium sized internet companies and app developers.”

Looking Ahead

Tillis’s report concluded by noting his diligent efforts “to ensure agency oversight, conduct hearings, listen to stakeholder input, and take action by proposing legislation,” and promised to continue his bipartisan work as Chairman in the 117th Congress.

 

IP Bills Tillis Introduced or Co-Sponsored in 2020:

Bill Number: S. 3574

Name: Ending Price-Gouging During Emergencies Act

Date: 03/24/2020

Introduced: Senator Thom Tillis (R-NC)

 

Bill Number: S. 3952

Name: Protecting American Intellectual Property Act of 2020

Date: 06/11/2020

Introduced: Senator Chris Van Hollen (D-MD)- co-sponsored

 

Bill Number: S. 3997

Name: Safeguarding American Innovation Act

Date: 07/22/2020

Introduced by: Rob Portman (R-OH) – co-sponsored

 

Bill Number: S. 4345

Name: Protecting America From Spies Act

Date: 07/28/2020

Introduced by: Senator Ted Cruz (R-TX) – co-sponsored

 

Bill Number: S. 4793

Name: Defend COVID Research from Hackers Act

Date: 10/1/2020

Introduced by: Senator Thom Tillis (R-NC)

 

The Author

Eileen McDermott

Eileen McDermott is the Editor-in-Chief of IPWatchdog.com. Eileen is a veteran IP and legal journalist, and no stranger to the intellectual property world, having held editorial and managerial positions at several publications and industry organizations. She has acted as editorial consultant for the International Trademark Association (INTA), chiefly overseeing the editorial process for the Association’s twice-monthly newsletter, the INTA Bulletin. Eileen has also served as a freelance editor for the World Intellectual Property Organization (WIPO); as senior consulting editor for the Intellectual Property Owners Association (IPO) from 2015 to 2017; as Managing Editor and Editor-in-Chief at INTA from 2013 to 2016; and was Americas Editor for Managing Intellectual Property magazine from 2007 to 2013.

Eileen McDermott

Rebecca Tapscott is an intellectual property attorney who has joined IPWatchdog as our Staff Writer. She received her Bachelor of Science degree in chemistry from the University of Central Florida and received her Juris Doctorate in 2002 from the George Mason School of Law in Arlington, VA.

Prior to joining IPWatchdog, Rebecca has worked as a senior associate attorney for the Bilicki Law Firm and Diederiks & Whitelaw, PLC. Her practice has involved intellectual property litigation, the preparation and prosecution of patent applications in the chemical, mechanical arts, and electrical arts, strategic alliance and development agreements, and trademark prosecution and opposition matters. In addition, she is admitted to the Virginia State Bar and is a registered patent attorney with the United States Patent and Trademark Office. She is also a member of the American Bar Association and the American Intellectual Property Law Association.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 6 Comments comments.

  1. Jeff Hardin December 7, 2020 5:02 pm

    Regarding “Tillis explained that his efforts to reform Section 101 patent eligibility law ‘stalled because stakeholders refused to compromise. They let the great and perfect get in the way of the good.’ and that “Tillis added that stakeholders must find consensus amongst themselves before the Subcommittee would spend more time on the issue.”, I point out two comments from that post in May:

    1. From Anon:

    “The word ‘compromise’ has no place in wheeling a large wooden horse to be within the city walls.

    Instead, a critical eye should have been cast at those merely saying that they too want to ‘fix’ the mess of patent eligibility, when those same entities offered ‘compromises’ that only moved or WORSENED the problem.

    The right answer would have been to say: Right now we are fixing the KNOWN mess.

    After we get that done, THEN we can discuss other matters.

    Folding – as was done, only guarantees that the next time action is contemplated, EVEN MORE ‘compromise’ will be demanded.

    Sadly, I think that Congress needs a different champion in order to do what only Congress can do.”

    And
    2. From Mike:

    “‘I’m ready and willing to work with [stakeholders] to address all legitimate equities and fix this problem.’

    Really??? What happened behind those closed doors, Tillis? I’m with Anon. Unless you confess who this other party is and what they want to compromise on, Congress needs a different champion.

    I know that the guys at US Inventor are willing to meet at that table. You must invite them…including the party(ies) you say want a compromise.”

    ===

    Don’t blame the stakeholders refusing to conpromise. The subcommittee screwed up when they introduced Section 112 legislation on a pure Section 101 issue.

  2. Pro Say December 7, 2020 5:24 pm

    With 2021 now just a few short weeks away . . . here’s the IP press release America hasn’t yet — yet MOST needs — to see:

    CONGRESS PASSES BIPARTISAN, BICAMERAL INNOVATION RESTORATION ACT (IRA) –

    On Friday, January 1st, 2021, Senators Thom Tillis (R-NC) and Chris Coons (D-DE); along with Representatives Hank Johnson (D-GA), Jerrold Nadler (D-NY) and Doug Collins (R-GA), announced the passage of the Innovation Restoration Act (IRA).

    The President has said that he looks forward to quickly signing the bill.

    The IRA will restore full patent eligibility to all areas of innovation, leading to some 100’s of 1,000’s saved American lives, 100’s of new company formations providing 1,000’s of great new jobs, and a return to world innovation leadership.

    The IRA provides that:

    1. The provisions of section 101 shall be construed in favor of eligibility.

    2. No implicit or other judicially created exceptions to subject matter eligibility, including “abstract ideas,” “laws of nature,” or “natural phenomena,” shall be used to determine patent eligibility under section 101, and all cases establishing or interpreting those exceptions to eligibility are hereby abrogated.

    3. The eligibility of a claimed invention under section 101 shall be determined without regard to: the manner in which the claimed invention was made; whether individual limitations of a claim are well known, conventional or routine; the state of the art at the time of the invention; or any other considerations relating to sections 102, 103, or 112 of this title.

    In overwhelmingly approving this breakthrough bill, Congress correctly set aside the self-serving and baseless alleged “concerns” of some members of Big Tech and other bad actors; who tried to ram through new, innovation-killing patentability requirements; including to Sections 100 and 112.

    The same Big Tech companies with well-documented dismal, shameful records of monopolistic, anti-competitive practices and Black, minority, and female hiring.

    The same Big Tech companies Congress and Federal Agencies repeatedly investigate, admonish, and fine.

    (if only)

  3. Curious December 7, 2020 7:12 pm

    Tillis explained that his efforts to reform Section 101 patent eligibility law “stalled because stakeholders refused to compromise. They let the great and perfect get in the way of the good.”
    The efficient infringer stakeholders have no reason to compromise. The likes of Facebook and Google already have their ideal situation. One might think that Facebook and Google want to kill ALL software patents. This isn’t true.

    A quick and dirty search (and certainly under-representative of Facebook’s true patent holdings) indicates that they have over 5000 issued patents — including patents for such “technical” inventions as “Matching and ranking content items” (USP 10,856,050) and “Optimizing value of content items delivered for a content provider” (USP 10,855,786). As for Google, the same search (again, very under-representative) indicates that they have nearly 23000 issued patents — including “Generating cartoon images from photos” (USP 10,853,987), “Single conversion advertisements” (USP 10,846,740), and “Music recommendations from trending queries” (USP 10,846,331).

    The ideal situation for the likes of Facebook, Google and the many other high-tech entities that have a love/hate relationship with intellectual property is that they get to own intellectual property (which they can assert against others) but they can easily destroy the intellectual property of others.

    Between 35 USC 101 and the killing fields of the PTAB, it doesn’t take much money for a big company to kill off a small company’s patent portfolio. However, when you’ve got thousands of patents of your own, no small company has a chance to kill off Facebook’s or Google’s patents. As intended, it is the classic “heads, I win; tails, you lose” situation for the big tech companies against smaller companies who want to compete in the same space.

    In this situation, why would the big-tech (‘efficient infringer’) stakeholders agree to some kind of compromise? The status quo is working great for them. Facebook has a market cap of around $800B with about 50,000 US employees. Google has a market cap of around $1230B with about 115,000 US employees. How did these companies get so valuable with so few (relatively) employees? Answer: they rarely pay for the technology that they “borrow” from other companies.

  4. BP December 8, 2020 3:06 pm

    Curious @3: “How did these companies get so valuable with so few (relatively) employees?”

    All roads to Rome pass through Tillistown.

    Check out the campaign coffers of Senator Tillis, the lack of ethics, does the “Presidential Protection Fund” ring a bell?

    As long as $$$ buys unethical politicians (and judges), they’ll continue to be mouthpieces for directional change, in the direction of corruption and away from fairness.

    Got a good laugh at EFF’s paid-for position.

    With Biden, I expect the revolving door will be spinning in more evil from Mountain View.

  5. Washington December 8, 2020 5:00 pm

    Since 101 was brought in FAANG has made Trillions. Tillis is bought up by big pharma. Small patent holders have no one to give them a voice. Patent values will continue to slide as more inventors look to Asia and Europe for real protection.

  6. BP December 9, 2020 6:15 pm

    We got 101 for a reason, go ask Alice “logic and proportion have fallen sloppy dead”. Big Tech (aka “Big Ad”) is making big bucks:

    North Carolina came in at No. 1 with a total cost of $298.9 million. A record-breaking $220.6 million poured into North Carolina from outside groups this year. Dozens of deep-pocketed national groups spent big in the race between Sen. Thom Tillis and Democratic challenger Cal Cunningham.