Stephen G. Breyer may shape tech’s copyright battles for years to come

Happy Thursday! In case you missed it: A Senate panel announced late last night it will take up two of President Biden's top tech and telecom nominees, paving the path to reclaim Democratic majorities at two key agencies. Below: Amazon ends a program targeted by state attorneys general, and Congress is set to take up price gouging concerns. First:

Stephen G. Breyer may shape tech’s copyright battles for years to come

With the looming retirement of Supreme Court Justice Stephen G. Breyer, tech policy wonks say the high court is losing one of the nation’s preeminent thought leaders on intellectual property and copyright.

But while Breyer may be on his way out of federal court, his influence over those standards, and how they map onto emerging technologies, is poised to live on long after.

For decades, Breyer has carved out a unique role on the bench as a copyright specialist, said Meredith Rose, senior policy counsel at consumer group Public Knowledge. And his advocacy for a more limited view of intellectual property rights than some of his colleagues, such as the late Justice Ruth Bader Ginsburg, made him a “rarity” in the space, Rose said.

“He’s definitely got the biggest depth of experience in copyright issues on the bench currently,” she said. “It was really him and Justice Ginsburg were the two titans of copyright.”

Corynne McSherry, legal director at the Electronic Frontier Foundation, called Breyer “a very strong voice for a balanced intellectual property system” that ensured that copyright and patents are “encouraging innovation, encouraging new creativity … as opposed to thwarting it.”

These traits, they said, were exemplified in one of Breyer’s most recent high-profile copyright cases: the contentious, decade-long Google v. Oracle bout.

In April, Breyer penned the Supreme Court’s landmark 6-to-2 majority decision siding against Oracle’s allegations that Google had infringed on its copyrights in using thousands of lines of code from the Java programming platform to develop Android.

The court’s ruling, which found that Google’s use of the code was a fair use and did not infringe copyright, sent shock waves through the software industry and marked a major win for programmers and developers. (Oracle rebuffed the decision, saying in a statement after the ruling that Google “stole” Java and “spent a decade litigating as only a monopolist can.”)

“That case is like the behemoth of the age for copyright fights right now, so I think that’s going to be a huge contribution,” Rose said.

Alan Davidson, the former longtime Mozilla and Google executive who has since been confirmed to a top telecom role in the Biden administration, hailed the opinion at the time.

Billy Easley, U.S. policy manager at Reddit and former senior policy analyst at Americans for Prosperity, said Breyer made the dense discussion accessible in its earlier stages.

Speaking at a Bloomberg News event last year, Breyer quipped that it took him a year to write the opinion. “For me, it was like learning Latvian,” he said of the tech jargon involved.

But Breyer’s thought leadership on copyright matters kicked off decades prior.

In 1970, more than two decades before he ascended to the high court, Breyer penned an influential academic article in the Harvard Law Review that expressed deep reservations about overextending copyright ownership, titled, “The Uneasy Case for Copyright.”

Rose called it a “seminal article” that challenged the prevailing view at the time of “copyright maximalism … that there is no downside to just granting more copyright.”

While Breyer’s opinions and philosophy on copyright may still reverberate through the courts after he’s retired, that doesn’t mean advocates like Rose won’t miss his expertise.

“Copyright is sufficiently niche in terms of arcane areas of law that I would be a little surprised if we got another justice up there who had anything close to that degree of expertise,” she said. “I would frankly be pleasantly surprised.”

The issue will likely continue to be raised at the highest level of the U.S. judicial system.

“Now that we’re all in the Internet world, we’re just constantly running up against copyright issues all the time,” she said. “There's just absolutely no way around it … so that's going to have to be resolved in one way or the other.”

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Congress is set to scrutinize price gouging and coronavirus frauds at hearings next week

Federal Trade Commission Bureau of Consumer Protection Director Samuel A.A. Levine will testify before a Senate Commerce subcommittee Tuesday, the committee said. A House Energy and Commerce subcommittee plans to hold a hearing looking into price gouging Wednesday.

The hearings come nearly two years into the pandemic. Consumer advocates say major companies haven’t adequately policed their platforms for price gouging and scams. One focus has been at-home tests, which lawmakers say are seeing increased demand, creating an environment that is “unfortunately ideal for predatory and profiteering behavior, including the sale of fraudulent test kits or charging exorbitant prices for those that are available.”

Critics have taken aim at Amazon for its coronavirus wares. Sen. Elizabeth Warren (D-Mass.) argued last year that its algorithms may have misled consumers into buying mislabeled masks and called for federal regulators to investigate. Amazon did not respond to a request for comment at the time, but previously said it is “committed to keeping our store safe and providing accurate and transparent information to our customers,” but didn’t have a way of preventing products without FDA approval from showing up in sponsored listings.

(Amazon founder Jeff Bezos owns The Washington Post.)

Amazon is ending its “Sold by Amazon” program, which Washington’s attorney general said was an illegal price-fixing scheme

The program began in 2018 as an invite-only program for third-party sellers to avoid frequently checking and changing the prices of their products, Reed Albergotti reports. But Amazon instead optimized prices, guaranteeing sellers minimum prices that they used to prevent third-party sellers from undercutting Amazon prices, according to the lawsuit by Washington state’s attorney general.

“As part of the settlement, Amazon also agreed to pay $2.25 million to the state attorney general’s office, which will help fund antitrust enforcement actions,” Reed writes. The company must check in with the attorney general’s office every year for five years to certify that it’s in compliance with its agreement.

The IRS’s new facial recognition program is drawing complaints

By the summer, taxpayers who want to access their records on the Internal Revenue Service website will have to send a video of their face to private contractor ID.me, Drew Harwell reports. The company’s $86 million contract with the IRS has “raised the alarms of researchers and privacy advocates who say they worry about how Americans’ face images and personal data will be safeguarded in the years to come,” as there is no federal law regulating the data, Drew writes.

“The system itself also is drawing complaints,” Drew writes. “Some people have reported frustrating glitches and hours-long delays that have frozen them out from important benefits, and researchers have argued the company has overstated the abilities of a face-scanning technology that could wrongly flag people as frauds.” The IRS told Drew that the technology will “create a better user experience” and that it “takes any reports of inequities in service seriously.”

ID.me’s facial recognition technology works by searching for faces within vast databases, CEO Blake Hall said on LinkedIn on Wednesday. The admission came after the company said last week that it did not use the practice, which it said was “more complex and problematic” than comparing a selfie to an identification photo, CyberScoop’s Tonya Riley reports.

Rant and rave

Spotify removed Neil Young's music from its platform after the musician told them to choose between podcaster Joe Rogan and him because of “fake information about vaccines,” Travis M. Andrews reports. The Globe and Mail's Rebecca Zamon:

CNBC's Deirdre Bosa:

Writer John Knefel:

Inside the industry

Conspiracy theorists, banned on major social networks, connect with audiences on newsletters and podcasts (Elizabeth Dwoskin)

YouTube permanently bans Fox News host Dan Bongino for posting covid misinformation (Gerrit De Vynck)

EU proposes digital rights, principles in global first (Reuters)

Spotify pulls Neil Young’s music after his ultimatum regarding Joe Rogan and ‘fake information about vaccines’ (Travis M. Andrews)

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Amazon workers in Staten Island collect enough signatures to hold union vote (Rachel Lerman)

A former Amazon delivery contractor is suing the tech giant, saying its performance metrics made it impossible for her to turn a profit (Insider)

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