RTP's Fourth Branch Podcast

Is the Newest Part of the Copyright Act Antiquated? Unchaining Creativity and Innovation.

Nearly twenty years ago, Congress passed the Digital Millennium Copyright Act (DMCA) to combat online infringement. According to some critics, this most recent major update to the Copyright Act is one of the most outdated parts of the law. The discontent stems from the DMCA's "notice and takedown system," which obligates online services to take down pirated works posted by users, but only after the owner identifies the specific file at a specific location on its server. If another copy – or many other copies – of that same file pop up on the same service, each requires a new and separate notice. The authors of the DMCA likely never envisioned the speed and scale of online infringement. Last year, copyright owners sent Google well over 900 million takedown requests. Small creative businesses and individual creators find it impossible to keep up. Neither creators nor online services are satisfied with this state of affairs, although each disagrees strongly as to what to do about it. Is the DMCA an imperfect, but workable solution to a challenging problem? Or has it become outdated and impractical? What are the merits and costs of potential reforms?

This live podcast is held in conjunction with the release of a paper authored by members of the Regulatory Transparency Project's Intellectual Property working group. The paper is called "Creativity and Innovation Unchained: Why Copyright Law Must be Updated for the Digital Age by Simplifying It." This paper, which discusses the DMCA notice and takedown issue, is available for viewing and download at https://regproject.org/paper/creativity-innovation-unchained-copyright-law-must-updated-digital-age-simplifying/.

Featuring:
- Jennifer L. Pariser, Vice President of Copyright and Legal Affairs, Motion Picture Association
- Maria Schneider, GRAMMY Award Winning Artist
- Mark. F. Schultz, Associate Professor of Law, Southern Illinois University School of Law

Visit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.

For about a decade, some legal scholars have urged the Federal Communications Commission (FCC) to regulate the Internet to ensure "net neutrality," a content nondiscrimination standard for Internet service providers like Comcast and Verizon. This concept has gained popular support, particularly among young adults and those in the tech industry. In 2015, at the behest of President Barack Obama, the FCC created net neutrality regulations and cited Title II of the Communications Act of 1934 as its authority. However, there are other legal scholars who have pushed back. Some FCC commissioners even view the rules and the asserted legal authority as illegitimate and as a threat to free speech online, the development of new technology services, and telecom industry investment. In December 2017 the Republican commissioners, who now form a majority, appear ready to totally repeal the 2015 net neutrality regulations. Brent Skorup will discuss the history of the net neutrality movement, the 2015 rules, the First Amendment issues at stake, and the effect of repealing the rules.

Featuring:
- Brent Skorup, Research Fellow in the Technology Policy Program, Mercatus Center at George Mason University

Visit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.

Should software be regulated like a military weapon? That's the direction in which most Western nations seem to be moving, under the guidance of the international Wassenaar Arrangement governing international export controls. During its 2013 plenary session, the Wassenaar member nations agreed to implement export controls for (1) software, hardware, and technology that generate, operate, deliver or communicate with "intrusion software"; and (2) "carrier class" IP network communications surveillance items. The purpose of these controls was to protect activists and opposition figures from monitoring by authoritarian governments and to keep software and technology out of the hands of malicious hackers.

But the agreed-to controls control not only malicious "intrusion" software items, but virtually any type of software, hardware, and technology designed to counter "intrusion" software. The controls have also been ineffective in actually reaching their intended targets—barring specific companies from exporting specific tools to specific end-users for specific purposes—and international implementation has been widely divergent.

Featuring:
- Alan Cohn, Counsel, Steptoe & Johnson LLP
- Stewart Baker, Partner, Steptoe & Johnson LLP
- [Moderator] Matthew Heiman, Vice President, Corporate Secretary & Associate General Counsel, Johnson Controls

Visit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.

On Friday, October 6, Treasury issued the second of its reports to the President on Core Principles for Financial Supervision. When it comes to financial regulation, the Treasury Department has little formal authority. Yet, when Treasury wants to, it can set the tone and drive the priorities. Did the Treasury do that with its most recent report and its June report? What difference might this all make with regard to financial reform? And what might we expect from the Federal Reserve, the FDIC, the OCC, and other financial regulators in response to these reports?

Featuring:
- J.W. Verret, Assistant Professor of Law, Antonin Scalia Law School
- Wayne Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association

Visit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.

On this episode of the Fourth Branch podcast, Gregory McNeal, Pepperdine Law Professor and Chairman of the RTP’s IT and Emerging Technology working group, partners with Mercatus Senior Research Fellow Adam Thierer to discuss the law and policy frameworks impacting emerging technologies. Their talk explores the idea of permissionless innovation, collaborative acceleration, and why a cross-cutting working group focused on emerging technology is necessary for the Regulatory Transparency Project.

Featuring:
- Gregory McNeal, Professor of Law, Pepperdine University School of Law
- Adam Thierer, Senior Research Fellow, Mercatus Center

Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

On August 16, the Department of Justice issued a letter repudiating the Department’s participation in an initiative known as “Operation Choke Point” during the Obama administration. Operation Choke Point sought to deprive members of disfavored industries, such as payday lenders and firearms dealers, of the right to access the banking system. This live podcast will discuss Operation Choke Point, the Department of Justice Letter, and litigation against federal agencies who have participated in Operation Choke Point.

Featuring:
- Pete Patterson, Partner, Cooper & Kirk, PLLC

Visit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.

In 2011, Congress created a new administrative tribunal in the U.S. Patent Office with the power to cancel previously granted patents, called the Patent Trial and Appeal Board (PTAB). The PTAB was created to provide an efficient and inexpensive administrative process for eliminating low-quality patents – what are called “bad patents.” Despite its laudable purpose, the PTAB has earned a reputation among some as a prime example of regulatory overreach. The PTAB’s critics cite a wide range of concerns including inadequate due process protections and bias against patents. A former federal appellate chief judge even referred to PTAB administrative judges as “patent death squads.” So, is the PTAB indeed harming the property rights that have helped to drive the U.S. innovation economy for over 200 years or, is it functioning as intended? What are the concerns of its detractors? If these concerns are valid, does the PTAB need simple reform or more?

This live podcast is held in conjunction with the Monday, August 14 release of a paper authored by members of the Regulatory Transparency Project’s Intellectual Property Working Group. The paper is called “Crippling the Innovation Economy: Regulatory Overreach at the Patent Office.” This paper, which discusses this new administrative tribunal at the Patent Office, is available for viewing and download at https://regproject.org/paper/crippling-innovation-economy-regulatory-overreach-patent-office/.

Featuring:
- Josh Malone, Inventor, Bunch O Balloons
- Kristen Osenga, Professor, University of Richmond School of Law
- Brian O’Shaughnessy, Partner, Dinsmore & Shohl LLP

Visit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.

Administrative agencies, and extensive regulation of the economy, have always existed in America. But from the founding to 1900, agencies were constrained by basic principles of representation, separation of powers, and judicial review. In his new book, Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government, Professor Joseph Postell explores American history, from the Revolutionary War to the present, to answer such questions as: What is the administrative state; Is it compatible with the basic principles of American constitutionalism; How have American thinkers and statesmen answered these questions in the past; What has changed since then; and, Do these changes pose a threat to our constitutional system?

Featuring:
- Joseph Postell, Associate Professor of Political Science at the University of Colorado-Colorado Springs

Visit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.

Howard Root started Vascular Solutions, a medical device company, from scratch. Fifteen years later, his Minnesota company had created over 500 American jobs and developed more than 50 new medical devices that saved and improved lives.

But in 2011, the federal government accused Howard of marketing medical devices for unapproved uses – a practice prohibited by the FDA. Howard professed his innocence from the beginning but, when prosecutors set their sights on Howard and his company, there was no guarantee that he would save his company from closing or himself from prison.

5 years, 121 attorneys, and $25 million in legal fees later, his life’s work and freedom rested in the hands of 12 strangers in a San Antonio jury room. Would Howard and his company be vindicated by the verdict, or had he made the biggest mistake of his life by challenging the federal government?

Featuring:
- Howard Root, Former CEO of Vascular Solutions, Inc.

Visit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.

The Internet of Things (IoT) refers to the connection of various devices to the Internet. The Internet of Things (IoT) is growing in prominence almost exponentially. Today, manufacturers are creating products with cyber capabilities that range from life-critical systems such as cars or medical devices, to more prosaic, even whimsical products like internet-connected toasters. The expansion of connectivity brings with it risks to security and privacy.

How should those risks be addressed? Is this a case where the market will provide a solution? Or is this one of those instances where regulation is required? Are manufacturers liable for insecure products? If not, who pays when something goes wrong?

Featuring:
- Paul Rosenzweig, Principal, Red Branch Law & Consulting, PLLC
- Suhail A. Khan, Director of External Affairs, Microsoft

Visit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.