The Protect IP Act – Protect Intellectual Property Act

I originally started writing this post a few weeks ago – before the U.S. Senate and the House of Representatives decided to halt the vote and debate of both the Protect IP Act and SOPA in order to review and possibly rewrite it.  Nevertheless I will post this to show the current state of the Protect IP Act before debate was halted on January 20, 2012.  I will try to revisit this situation if and when they come out with revised bills, if almighty time allows me.

Just because something appears on the internet doesn’t mean it’s free.  Protecting the creators of original content on the internet is the ultimate way to protect the internet.

The internet is great because everything you find there – the information, resources, photos, videos and music is virtually endless.  Unfortunately, it’s too easy to appropriate whatever you find there.  A very large percentage of what you find on the internet is copyrighted and has been created by people who make their livings creating information, literature, photography, videos, movies, music, software . . . etc.  How do you solve this problem?  The internet, as it exists now, allows people to steal.   The Digital Millenium Copyright Act of 1998 was a beginning to the process of solving issues of theft from the internet and now the Protect IP Act – Protect Intellectual Property and SOPA – Stop Online Piracy Act have come along.

A veritable frenzy of information, misinformation and confusion has been flying around the internet and news media lately about both Protect IP and SOPA.  Protect IP is currently making its way through the U.S. Senate and SOPA is making its way through the U.S. House of Representatives – it’s pending legislation.

A quick lesson in how the U.S. government works – The House of Representatives and the Senate first pass different versions of a bill . . . then conference committees draft one compromise bill.  Both Houses of Congress must pass this identical legislation for the bill to become law (Wikipedia) – or if you prefer a cartoon to visualize this long process . . .

Because this process is so complicated and lengthy it’s important that the general public be involved in well informed input to their government representatives.  The only way to do this is to educate yourself on these two bills and the complicated issues they involve.

Since I am a photographer, I am of course concerned with the issues of copyright, copyright infringement and everything related to intellectual property and it’s possible theft.  I belong to the trade organization APA – American Photographic Artists and I also read a bit about this issue from different sources, one being The Copyright Alliance.  Just about any organization that supports artists and photographers also supports these two acts, therefore I stated my support for these two acts.  As a result of this support I received several e-mails asking me why I wanted to destroy the internet.

Well, not exactly.  I decided to actually R-E-A-D both Acts (insert audible groan here) . . . yes, that’s right I have been reading legislation, just about the most boring and tedious activity a person would want to undertake.  This post only discusses the Protect IP Act.  I hope to get to SOPA soon and then I’ll write a post on that.  I hope I survive reading these.

This act’s purpose is to protect U.S. consumers and creators and intellectual property rights holders from foreign websites whose primary purpose is to sell, distribute, copy or perform copyrighted works in complete or near complete form.  It gives the U.S. Attorney General jurisdiction over foreign websites that have been proven to be infringing websites.  It does not allow individuals or corporations the ability to block websites.

I have a few issues with The Protect IP Act.  There are several sentences involving enforcement that I feel are too vague – they don’t state specifically how a website shall be blocked or redirected or taken down.  Experts in computer science and internet security have come forward to object to the problems involved in shutting down a website.  Here is some information I have found so far – Sandia National Laboratories letter and this internet security technical whitepaper.

The Protect IP Act was introduced and cosponsored in the U.S. Senate in May of 2011 by the following senators: Leahy, Hatch, Grassley, Schumer, Feinstein, Whitehouse, Graham, Kohl, Coons, Blumenthal, Klobuchar, Franken, Blunt, Alexander, Gillibrand, Rubio.

Here’s what Minnesota state senator Al Franken wrote in a recent recent letter to constituents about Protect IP, there’s some good background information here too:

As you may be aware, I am a cosponsor of the PROTECT IP Act. I believe that intellectual property (IP) enforcement is extremely important. IP-reliant companies account for more than $7.7 trillion of the United States economy and employ more than 19 million workers. We must protect American jobs from piracy, which has become rampant on the Internet. We don’t tolerate shoplifters in stores and we should not tolerate them online.

The PROTECT IP Act would authorize only the Attorney General to seek a court order to block foreign websites whose primary purpose is to sell or distribute pirated goods. Right now, a company has no way to enforce its rights if it finds that its products are being pirated or counterfeited on a website hosted overseas. The PROTECT IP Act gives the Attorney General (and not private companies) jurisdiction over foreign websites.

 This bill is the successor to the Combating Online Infringement and Counterfeits Act (COICA), a bill that the 111th Congress never voted on. I had several concerns about COICA, but PROTECT IP contains significant improvements that addressed many of my concerns. I worked with Senator Leahy, who chairs the Judiciary Committee, to narrow the definition of an infringing site, and I was glad to see he removed the controversial provision that directed the Justice Department to publish a list of offending websites (also known as a “blacklist”) without judicial process. After these improvements, I became a cosponsor of the PROTECT IP Act to protect intellectual property rights and the jobs that depend on them.  

As you may be aware, there is similar legislation going through the House of Representatives—the Stop Online Piracy Act (SOPA). This piece of legislation contains many provisions that are actually broader than the PROTECT IP Act. If both versions pass through their respective chambers, I will take a close look at the differences between the bills and will work to address your concerns.

Al Franken, United States Senator, Minnesota

Here’s a legal analysis of the legislation – Legal Analysis of SOPA/Protect IP – Read Write Enterprise.  The comments following it are interesting too.

If you have the time . . . . . . . I have gone through the entire Protect IP legislation and paraphrased it roughly below or just read the Protect IP Act yourself!   If you do read the Act itself you will see that it was adjusted, in fact you will see that the first 30 pages or so are crossed out and the rewritten part starts on page 31.

As of the writing of this post these are the main questions I have that need to be answered:

How, specifically will this Act be enforced – how will a domain name be “blocked,” “redirected,” or taken down?

How does this effect security measures already underway? (also known as DNSSEC – Domain Name System Security Extensions)

Does this Act allow actions and jurisdiction that were not allowed for by the Digital Millennium Copyright Act of 1998 – and if so how?

Is this enforceable in foreign countries?

Is this Act a work in progress with improvements needed in some of the language?  Apparently this question has been answered, as Protect IP and SOPA are both being reconsidered as of this writing.

I guess I can’t blame you if you skip reading the following lengthy section – I do have some concluding paragraphs at the end . . .

Starting at the beginning of Protect IP – please remember this is paraphrased.  I have outlined several sentences in Section 3 in red that I feel are problematic.

Section 1.  Short Title – states the full title of the act – “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011.”

Section 2.  Definitions – definitions of certain words and phrases

(the definition of “internet site dedicated to infringing activities” is especially succinct and important)

“domain name system server” – means a server or other mechanism used to provide the internet protocol address associated with a domain name

“information location tool” – has the same meaning as in section (d) of Section 512 of Title 17 of  the United States Code – http://www.copyright.gov/title17/92chap5.html#512

“internet site” – means the collection of digital assets, including links, indexes, or pointers to digital assets, accessible through the internet that are addressed relative to a common domain name

“internet site dedicated to infringing activities” means an internet site that –

A) has no significant use other than engaging in, enabling, or facilitating the –

i) reproduction, distribution, or public performance of copyrighted works, in complete or substantially complete form, in a manner that constitutes copyright infringement under Section 501 of title 17, United States Code (Chapter 5 of the Digital Millennium Copyright Act;

ii) violation of Section 1201 of title 17, United States Code (Chapter 12 of the Digital Millennium Copyright Act; or

iii) sale, distribution, or promotion of goods, services, or materials bearing a counterfeit mark, as that term is defined in section 34 d of the Lanham Act; or

B) is designed, operated, or marketed by its operator or persons operating in concert with the operator, and facts or circumstances suggest is used, primarily for engaging in, enabling, or facilitating the activities described under clauses (i), (ii), or (iii) of paragraph (A).

“The Lanham Act”  – commonly known as the Trademark Act of 1946 – “An act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes.”

“non-domestic domain name” – a domain name for which the domain name registry that issued the domain name and operates the relevant top level domain, and the domain name registrar for the domain name, are not located in the United States.

“owner” or “operator” are terms when used in connection with an internet site shall include, respectively, any owner of a majority interest in, or any person with authority to operate, such internet site

“qualifying plaintiff” –

A) the Attorney General of the United States OR

B) an owner of an intellectual property right, or one  authorized to enforce such right, harmed by the activities of an internet site dedicated to infringing activities occurring on that internet site

Section 3.  Enhancing Enforcement against Rogue Website Operated and Registered Overseas

a) Commencement of an Action –

Attorney General is given power to commence an “in personam” action (action taken against a person) against

-non-domestic domain name registrant

-owner or operator of site dedicated to infringing activities

Only after due diligence has been used to find the infringing person, the Attorney General is given power to commence an “in REM action” (action taken against property) against

-non-domestic domain name used by an internet site dedicated to infringing activities

b) Orders of the Court –

After commencement of an action by Attorney General, the court may order a temporary restraining order, a preliminary injunction or an injunction . . . against non-domestic domain name used by an internet site dedicated to infringing activities or against registrant of domain to cease and desist IF –

-the domain name is used within the US to access the site and conducts business to residents of the US and harms holders of US intellectual copyrights

Determination by the Court – whether an internet site conducts business directed to residents of the US – a court may consider if an internet site:

-provides goods or services to users located in the US

-does not provide goods/services to users located in the US

-does not provide access to goods/services located in the US

-does not provide delivery of goods/services located in the US

-the internet site has reasonable measures in place to prevent good/services from being accessed or delivered to the US

-site offers services obtained in the US and

-prices for goods/services are indicated in US currency

c) Notice and Service of Process –

Upon commencing an action, the Attorney General shall send a notice of the alleged violation and intent to proceed under this act to the registrant of the domain name of the internet site

-at the postal and e-mail appearing in the publicly available database of registrants

-via postal and e-mail address of the registrar, registry or other domain name registration authority that registered or assigned the domain name

-in any other form as the court finds necessary according to the Federal Rules of Civil Procedure (Rule 4f)

-the Attorney General will also provide notice to other entities identified in the complaint who may be required to take action

d) Required Actions Based on Court Orders –

-a federal law enforcement officer with approval of the court may serve a copy of the court order to entities identified in the complaint

-after being served a copy of the court order

-an operator of a nonauthoritative domain name system server shall use least burdensome, technically feasible and reasonable measures to prevent domain name from resolving to that domain name’s internet protocol address

-operator will not be required to modify its network, software, systems or facilities

-operator will not be required to take any measures with respect to domain name lookups not performed by its domain name server or domain name system servers located outside the US

-operator will not be required to continue to prevent access to domain name to which access has been effectively disabled by other means

-Attorney General shall provide a text of the notice to users or customers of an internet operator of which action is being taken against

-financial transaction providers shall take reasonable measures to prevent, prohibit or suspend its service from completing transactions between customers within the US and the offending internet site

-internet advertising service that contracts with or offers advertising services to the offending internet site shall take reasonable measures to –

-prevent its service form providing advertisements to the site

-cease making available advertisements for the site or paid or sponsored search results, links or other placements that provide access to the domain name

a service provider of an information location tool shall take technically feasible and reasonable measures to remove or disable access to the internet site associated with the domain name and also not provide a hypertext link to such site

Immunity from Suit –

-no cause of action shall lie in any federal or state court or administrative agency against any entity receiving a court order or any director, officer, employee or agent, other than in action described in upcoming Enforcement of Orders.

Immunity from Liability –

-entities receiving a court order and related entities (director, officer, employee or agent) are not liable to any party if reasonable actions to comply are taken other than in upcoming section Enforcement of Orders

-any actions by customers of entity to circumvent restrictions on access to the internet domain or any act, failure or inability to restrict access to an internet domain shall not be used by any person or cause of action other then in upcoming Enforcement of Orders

e) Enforcement of Orders –

1) In General – in order to compel compliance to this section, the Attorney general may bring an action for “injunctive relief” (stopping court action, sometimes temporarily) against any party receiving a court order that knowingly and willfully fails to comply with such order

2) Rule of Construction – the sole authority for enforcing the obligations under this section lies with the Attorney General

3) Defense – a defendant in action under paragraph (1) may establish an “affirmative defense” by showing the defendant does not have the technical means to comply with the order without incurring an unreasonable economic burden or that the order is inconsistent with this Act.

f) Modification or Vacation of Orders

In General – At any time after the issuance of an order, a motion to modify, suspend or vacate the order may be filled by –

-any person or owner or operator of the property bound by the order

-any registrant of the domain name or the owner/operator of the internet site subject to the order

-any domain name registrar or registry that has registered or assigned the domain name of the internet site subject to the order

-any entity that has received a copy of an order pursuant to (Required Actions Based on Court Orders) requiring such entity to take action prescribed in that subsection

Relief – relief under this subsection shall be proper if the court finds that –

-the internet site associated with the domain name is or never was dedicated to infringing activities

-the interests of justice require that the order by modified, suspended or vacated

-Consideration – in making a determination a court may consider whether the domain name has expired or has been registered by a different party

Intervention – an offending entity/internet site/domain name may intervene at any time in any action to modify, suspend or vacate an order.  Failure to intervene does not prohibit an entity notified of the action from seeking an order to modify, suspend or terminate an order issued under this Act.

g) Related Actions – the Attorney General may commence a related action against an internet site that, previously proven to be dedicated to infringing activities, is accessible or has been reconstituted to a different domain name.

Section 4.  Eliminating the Financial Incentive to Steal Intellectual Property Online

a) Commencement of an Action –

1) In personam – a qualifying plaintiff may commence an “in personam” action against

-a registrant of a domain name used by an internet site dedicated to infringing activities OR

-an owner or operator of an internet site dedicated to infringing activities accessed through a domain name

2) In Rem – if through due diligence a qualifying plaintiff is unable to find a registrant or operator of the infringing internet site or no such person has an address with a judicial district of the US then they may commence an “in rem” action against a domain name used by the offending internet site

3) Identification of Entities – any action by a plaintiff shall identify the entities and take actions/s as stated in upcoming section (Required Actions Based on Court Orders) if called for by section (Orders of the Court)

b) Orders of the Court –

In General – following the commencement of an action under this section the court may issue a temporary restraining order, a preliminary injunction or an injunction in accordance with Rule 65 of the Federal Rules of Civil Procedure, against the domain name used by the internet site or against a registrant of such domain name or the owner operator dedicated to infringing activities, IF –

-the domain name is registered or assigned by a domain name registrar/registry located or doing business in the US OR –

-the domain name is used within the US to access the site AND –

-the internet site conducts business directed to residents of the US AND –

-harms holders of US intellectual property rights

Determination by the Court – to determine whether an internet site conducts business directed to residents of the US a court may consider the following –

-is the internet site providing goods or services described in section (definition of internet site dedicated to infringing activities) to users located in the US

-if there is evidence that the internet site is NOT intended to provide goods/services to users located in the US and/or access to such goods/services and/or delivery of such goods/services in the US

-the internet site has reasonable measures in place to prevent goods/services from being accessed or delivered to the US

-the internet site offers services obtained in the US

-any prices for goods/services are indicated in US currency

c) Notice and Service of Process –

In General – upon commencing an action under this section, the qualifying plaintiff shall send a notice of the alleged violation and intent to proceed to the registrant of the domain name of the site –

-at the postal or e-mail address of the registrar, registry or other domain name registration authority that assigned the domain name, if available, or in any other form as the court finds necessary

Rule of Construction – the actions described in this section shall constitute service of process

Other Notice – upon commencing an action, the qualifying plaintiff shall also provide notice to all entities identified in the complaint with the aid of the court

d) Required Actions Based on Court Orders –

Service – a qualifying plaintiff, with approval of the court, may serve a copy of a court order issued to all entities identified by previous definitions.  Proof of service shall be filed with the court.

Reasonable Measures – after being served with a copy of an order –

-Financial Transaction Providers – shall take reasonable measures as quickly as possible to prevent, prohibit or suspend its service from completing payment transactions between customers in the US and the internet site associated with the domain name.

-Internet Advertising Services – that contract for advertising services with infringing internet site shall take technically feasible and reasonable measures, as quickly as possible, to not provide advertisements to the internet site or cease making advertisements available for the site, or paid or sponsored search results, links, or placements that provide access to the domain name

Communication with Users – an entity taking an action described in this subsection shall determine how to communicate such action to the entity’s users or customers

Rule of Construction – for actions commenced under this section, the obligations of the entity described in this subsection shall be limited to the language set out in each paragraph with no additional obligations or actions by such entity

Actions Pursuant to Court Order –

-Immunity from Suit – no cause of action shall lie in any federal or state court or administrative agency against any entity receiving a court order or any director, officer, employee or agent, other than in action described in (upcoming subsection – Enforcement of Orders)

Immunity from Liability –

-Any entity receiving an order under this subsection and any director, officer, employee or agent shall not be liable to any party for any acts reasonably designed to comply with this subsection other than stated in (Enforcement of Orders)

-Any actions taken by customers of such entities to circumvent restriction on access to the internet domain or any act, failure or inability to restrict access shall not be used by any person in any claim or cause of action against such entity other than stated in (Enforcement of Orders)

e) Enforcement of Orders –

In General – a qualifying plaintiff may bring action for injunctive relief against any party receiving a court order that knowingly and willfully fails to comply with such order

Rule of Construction – the authority granted a qualifying plaintiff under (the previous) paragraph shall be the sole legal remedy for enforcing the obligations under this section

Defense – a defendant may establish an affirmative defense by showing that he/she does not have the technical means to comply with the order without incurring unreasonable expense or that the order is inconsistent with this Act. This is a defense only to the extent of such inability or inconsistency.

f) Modification or Vacation or Orders –

In General – at any time after the issue of an order, a motion to modify, suspend or vacate the order may be file by –

-any person/owner/operator of the property bound by the order

-any registrant of the domain name or owner/operator of the internet site subject to the order

-any domain name registrar or registry that has registered the assigned domain name of the internet site subject to the order

-any entity that has received a copy of an order requiring such entity to take action prescribed in subsection (Required Actions Based on Court Order)

Relief – relief under this subsection shall be proper if the court finds –

-the internet site associated with the domain name subject to the order is no longer or never was dedicated to infringing activities as defined in this Act OR

-the interests of justice require that the order be modified, suspended or vacated

Consideration – in making a determination under paragraph (Relief) above, a court may consider whether the domain name has expired or has been registered by a different party.

Intervention – an entity that has been identified as an infringer may intervene at any time or in any action to modify, suspend, or vacate an order.  Failure to intervene in an action does not prohibit an entity notified of the action from subsequently seeking an order to modify, suspend or terminate an order.

g) Related Actions – a qualifying plaintiff if alleging that an internet site previously adjudicated to be a site dedicated to infringing activities, has now become accessible or has reconstituted at a different domain name may commence a related action against the additional domain name in the same judicial district.

Section 5. Voluntary Action Against Websites Stealing American Intellectual Property

a) In General – No financial transaction provider or internet advertising service shall be liable for damages to any person, for voluntarily taking action (described in both Sections 3 and 4 – Required Actions Based on Court Orders) with regard to an internet site, if it has been established that the internet site is dedicated to infringing activities.

b) Internet Sites Engaged in Infringing Activities That Endanger Public Health

Refusal of Service – a domain name registry, domain name registrar, financial transaction provider, information location tool or internet advertising service, acting in good faith and based on credible evidence, may stop providing or refuse to provide services to an infringing internet site that endangers public health.

Immunity from Liability – an entity described in previous paragraph, including its directors, officers, employees or agents, that ceases or has refused to provide services, shall not be liable to any party under federal or state law for such action

Definitions – for purposes of this subsection –

-the term “adulterated” (contaminated or altered) has the same meaning in Section 501 of the Federal Food, Drug, and Cosmetic Act

-an “infringing internet site that endangers public health” means –

-an internet site dedicated to infringing activities for which the counterfeit products that it offers, sells, dispenses or distributes, are controlled or non-controlled prescription medication OR –

-an internet site that has no significant use other than, is designed, operated, or marketed by its operator or persons acting in concert with the operator, and all fact and circumstances suggest, the site is primarily for –

-offering, selling, dispensing or distributing any controlled or non-controlled prescription medication, and does so regularly with a valid prescription OR

-offering, selling, dispensing or distributing any controlled or non-controlled prescription medication, and does so regularly for medication that is adulterated or misbranded

-the term “misbranded” has the same meaning as in Section 502 of Federal Food, Drug and Cosmetic Act

-the term ” valid prescription” has the same meaning as Section 309 e2A of the Controlled Substances Act

Section 6.  Savings Clauses

The following section includes disclaimers about possible confusion with other laws already in place –

a) Rule of Construction Relating to Civil and Criminal Remedies – nothing in this Act shall be construed to limit or expand civil or criminal remedies available to any person including the US, for infringing activities on the internet pursuant to any other federal or state law.

b) Rule of Construction Relating to Vicarious or Contributory Liability – nothing in this Act shall be construed to enlarge or diminish vicarious or contributory liability for any cause of action available under the Lanham Act (Title 15 of the United States Code – Trademark Act)  or Section 512 Title 17 of the United States Code – Copyright Law of the United States.

c) Relationship with Section 512 of Title 17 – a bunch of items listed in this Act are not the basis for determining the application of Section 512 of Title 17 of the United States Code – Copyright Law of the United Sates – see link above.

Section 7.  Guidelines and Studies

a) Guidelines – the Attorney General shall –

-publish procedures developed in consultation with other law enforcement agencies including the US Immigration and Customs Enforcement and to receive information from the public about internet sites dedicated to infringing activities and

-develop a “deconfliction process” in consultation with other law enforcement agencies including the US Immigration and Customs Enforcement to coordinate enforcement activities brought under this Act.

b) Reports –

-Report on Effectiveness of Certain Measures – not later than 1 year after the date of enactment of this Act, the Secretary of Commerce, in coordination with the Attorney General, the Secretary of Homeland Security and the Intellectual Property Enforcement Coordinator, shall conduct a study and report to the Committee on the Judiciary of the House of Representatives on the following –

-an assessment of the effects, if any, on the accessibility of internet sites dedicated to infringing activity

-an assessment of the effects, if any, on the deployment, security and reliability of the domain name system and associated internet processes, including Domain Name System Security Extensions – security improvements to the domain name system already in the process of being implemented, also known as DNSSEC

-recommendations, if any, for modifying or amending this Act to increase effectiveness or lessen any unintended effects

Report on Overall Effectiveness – The Register of Copyrights, in consultation with other appropriate departments and agencies of the US and other stakeholders, shall –

-conduct a study on the enforcement and effectiveness of the Act, the burden of carrying out the requirements of the Act, if any, on intermediaries, the need for cost reimbursement for intermediaries for carrying out the requirements of this Act, and the need to modify or amend this Act to apply emerging technologies and not later than 2 years after the date of enactment of this Act, submit a report to the Committee on the Judiciary of the House of Representatives on the results of the study and any recommendations.

Annual Oversight Report -not later than 1 year after the date of enactment of this Act, and each year thereafter, the Attorney General shall report to the Committee on the Judiciary of the House of Representatives, the following information with respect to the previous year –

-each instance in which an action was commenced under Sections 3 and 4 involving “in personam” or “in rem” actions by the Attorney General including the name of any party against whom the action was brought

-each instance in which a temporary restraining order, preliminary injunction or injunction was issued according to Sections 3 and 4 by the Attorney General including the name of any party whom the order or injunction was issued

-each instance in which an – “in personam,” or an “in rem,” action commenced by the Attorney General without issuance of a temporary restraining order, preliminary injunction or injunction, including the reason for the conclusion of the action

-each proof of service filed with the court according to Sections 3 and 4 – Required Actions Based on Court Orders, in an action filed by the Attorney General

-each action for injunctive relief brought according to Sections 3 and 4 – Enforcement of Orders, commenced by the Attorney General including the name of any party against whom the action for relief was brought

-each motion granted by a court to modify, suspend or vacate an order that was filed under Sections 3 and 4 – Modification or Vacation or Orders, in an action commenced by the Attorney General, including the relief obtained

-each related action commenced according to Sections 3 and 4 – Related Actions, including the name of any party against whom an action was commenced

GAO (Government Accountability Office) Report on Private Actions – not later than 1 year after the date of enactment of this Act, and each year thereafter, the Comptroller General shall report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives each instance in the previous year in which an action was commenced under Section 4 – “in personam” or “in rem,” by a qualifying plaintiff that is not the Attorney General, including the names of any parties to each such action

Section 8.  Preventing the Importation of Counterfeit Products and Infringing Devices

1) If the United States Customs and Border Protection suspects a product of being imported or exported in violation of section 42 of the Lanham Act, and subject to any applicable bonding requirements, the Secretary of Homeland Security is authorized to share information and unredacted (uncensored) samples of products and their packaging and labels with the rightsholder of the trademark suspected of being copied or simulated for purposes of determining whether the products are prohibited from importation AND

2) Upon seizure of material by the US Customs and Border Protection, imported in violation of Title 17 of the United States Code, the Secretary of Homeland Security is authorized to share information about, and provide samples to affected parties as to the seizure of items related to copyrighted material

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So there you go . . . pretty scintillating isn’t it?  Wrapping it up with a conclusion . . . I would say that internet theft IS a real problem.  I have had images stolen – music is stolen on a regular basis with no money going to the creators.  The Digital Millennium Copyright Act of 1998 was created with this in mind as well as Protect IP – but Protect IP has some vagaries which need addressing.  Theft of online copyrighted material is a real problem which effects hardworking people like you and me – lots of people make a living creating “original content.”  For someone to make a blanket statement that this act is about censorship is a statement that creates mass hysteria and does nothing to educate people or solve this complicated issue, likewise for the internet blackout – it didn’t educate people.  Contact your elected representative, let him or her know what you think.

Educate yourself – what is copyright and what is copyright infringement?  I have also written about copyright in past blog posts – April and March 2011 and November 2010.  It’s easy to find out about copyright – all the information is there . . . on the internet.

Here’s an article I just came across which is worth reading – Steal This Column.

Or here’s an idea, maybe the search engine companies can figure out a way to determine who the original creators are – protecting creators of original content is the ultimate way to protect the internet!

Or how about this – don’t steal other people’s stuff!

&

KNOW YOUR RIGHTS!

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Alaska

Wow, it’s been way too long since my last post, many apologies.  I have been extremely busy since July and have been slowly working my way out from under months of work.  The following is not a complaint – I have been working six day weeks and 10-12 hours days since July . . . all I can say is . . . it’s good to be busy, I hope it keeps up.

Now that that’s out of the way – I was lucky enough to go to Alaska in August to photograph the lovely Alaska Garden Gate Bed & Breakfast in Palmer.  I thought I would share some of the spectacular scenery I saw there.  I have also included a video I took of one of the most amazing experiences I have ever had – a flight-seeing trip of Denali, the highest peak in North America.  Seeing these peaks roll by made me feel like I was viewing a multi-layered diorama scroll past.  You’ll see Denali, the rather large snow covered peak at the end of the movie.

The glaciers are everywhere and they are enormous.

Alaska has so much natural beauty but I have to say the human element, the civilization and buildings, are not so beautiful.  It’s strange to be in a place with so much natural beauty and most of the buildings look rather dumpy.  I think because it’s a “do it yourself” society and a “get away from it all” society, people build their own house and then never put siding on it or have four non-functioning cars in the front yard . . . or you’ll happen upon some strange, abandoned building or structure which makes you glad you got lost.

Shuttered telecommunications station - first long distance telephone link to Alaska from lower 48 states built in 1970

I was in awe of the immensity of Alaska.  I have been to the Rocky Mountains and the Canadian Rockies  – but Alaska blows these places away because you don’t just see one mountain range but you can see numerous mountain ranges stretching for hundred of miles into the distance.  The wildlife is incredible too – I saw my first wolf in the wild, although it had a radio collar on, grizzlies, caribou, moose, eagles, humpback whales, orcas, otters . . . Most of these I saw while on a whale watching tour out of Seward and on a bus tour of Denali National Park.

Formerly and also know as Mt. McKinley, a name that was not popular locally from the time it was named this, the park became Denali National Park and Preserve in 1980.  Denali being the native Athabaskan word for “the high one” or “the great one.”  At six million acres, it’s the third largest park in the United States – the other two also being in Alaska – Wrangell St. Elias and Gates of the Arctic.  Since it is a preserve – it has become a huge success story of allowing wildlife to flourish.  There is only one road that traverses the park and just about everyone who enters the park must take a tour bus or a shuttle bus to get around.  People who wish to camp or hike out on their own must have permits – issued no more than a day before they begin.  This has actually allowed the animals there to NOT fear humans because they are not intimidated by them.  This allows the visitor to see abundant wildlife.

The next two photos were taken on a whale watching tour out of Seward, Alaska in Kenai Fjords National Park in the Gulf of Alaska.

If you go to Alaska don’t miss Talkeetna, a small eccentric town, just south of the southern border of Denali National Park.  Talkeetna is also the best location to take the flight-seeing tour of Denali, I took the Talkeetna Air Taxi.  Talkeetna was the inspiration for the television show, Northern Exposure, a few years back.  You’ll see lots of interesting people and buildings. This is where most of the mountain climbers who tackle Denali take their flights from.  Stop in at the historic Fairview Inn, built in 1923, it was the half way point for the newly built Alaska railroad between Fairbanks and Seward. President Warren G. Harding stopped in for a meal after driving in the final Golden Spike on the railroad and soon took ill and died.

Fairview Inn

I’ll leave you now with more photos of Alaska.

A flight-seeing plane lands at sunset in Talkeetna

This photo of Denali really shows it’s immensity.

Denali - The High One, The Great One

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My photographic lighting featured in Popular Photography Magazine

If you check out Popular Photography’s July issue you will see an article featuring my lighting in this photo.  This was an architectural shoot I did about a year ago at a loft space in downtown Minneapolis for Meyer, Scherer & Rockcastle, Ltd.  The architect wanted to capture the spectacular outdoor deck which looks out over the downtown Minneapolis. They also wanted to take another shot of the deck besides this one, looking the other direction toward the new Guthrie Theater (which I will include below). I knew I needed to take the theater shot first earlier in the evening because this downtown shot needed to be taken just after sunset when the lights on inside were really glowing and the sky was lit up with a deep blue and the lights in downtown Minneapolis were starting to really show up as well.

I set up this featured shot first using all my lights but one, which took me about an hour and a half and then I put tape down on the ground to make where my tripod was stationed. Then I proceeded to shoot the shot of people enjoying the deck overlooking the lights of the Guthrie. Luckily I only needed one light for this shot – to light up the people at the table on the left. I finished that shot just as the perfect light started to happen right after sunset. I moved my camera back into position on the tape marks and started shooting right away. I timed it pretty close because my best exposure was the first one I snapped! We had to move pretty fast though because we needed time to hose down the pavement again for the wet look.

After we finished shooting I turned around to look back at the Guthrie Theater and there was a crowd of people lined up with their hands up to the glass along the window of the observation cube staring at us. I wish I had had another camera handy!

Because I took this photo a year ago I had to rack my brain to remember the lighting scheme I used so the magazine could create the lighting diagram. However, the software that I used – Photoshop Bridge made it a little easier because I was able to look back and see the shots before and after this one and see the time of day. I could also look at all my set-up shots and determine the lighting as I placed the lights in one shot after another.

Here’s the link to the online article: Popular Photography July 2011 “How To: Balance Indoor and Outdoor Lighting”

Here’s the other photo I took right before the featured photo.

This project won an AIA (American Institute of Architects) Rave design award for the architecture firm, Meyer, Scherer & Rockcastle. I hope my photography was instrumental in allowing them to win this award! See more details about the space here as well as a video interviewing the architects.

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My portofolio was picked as one of the top portfolios of the month on PDN’s PhotoServe website!

My online portfolio was picked by the editors of PDN’s PhotoServe as one of the top  portfolios of the month for June 2011!

You can check it out here – PDN online portfolios of the month.

I am not sure how long this link will be good so here is the page.

You can go here to see my portfolio on this site – PDN Andrea Rugg portfolio.

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Thoughtful Remodel of Historic Mid-Century Rambler

Photos that I took recently of a remodeled mid-century home were featured in the 2011 June/July issue of Midwest Home.  This unique modern 1950’s split level rambler was originally designed by Elizabeth and Winston Close of Close Associates, and has now been designed and remodeled by Lars Peterssen of Peterssen/Keller Architecture, formerly of Domain Architecture & Design.  One of the older and better known architecture firms in Minneapolis and the Twin Cities, Close Associates was formed in 1938 and Elizabeth was probably one of the first female architects to work in Minneapolis.  They designed numerous homes and structures in the Twin Cities.

I was fortunate to be able to take a photo of the Closes back in 1996 for a neighborhood newspaper – the St. Anthony Park Bugle.  I believe Winston passed away in 1997.

Elizabeth & Winston Close

Interestingly enough, Elizabeth was born in Vienna, Austria.  My family lived in Vienna for a year when I was eight years old – my father was there on a Fulbright grant studying Viennese city planning.  I have many fond memories of Vienna, a very beautiful city.

I have included a copy of the article below and below that you will find the text of the article and more photos of the house.

Here’s the text of the article –

Robin Preble’s deliberate preface to a tour of her mid-century home is telling: “We didn’t change the footprint of the house,” she says. “We opened up the kitchen and fixed what was broken. I think that’s fair after 55 years.”

Anxious about the remodeling police? No, it’s just that Robin and her husband Dan Hedlund own a bit of Minnesota architectural heritage: a two-story Golden Valley home, designed by Close Associates, then headed by husband-and-wife team Winston and Elizabeth Close.

The Closes were pioneers on two fronts: They created boldly rectilinear ornament-free designs, and they employed a female architect—both avant-garde notions in 1938 when they opened shop. (Close Associates still operates under the direction of architect Gar Hargens.) During their 50-year careers, the Closes and their associates designed hundreds of houses, a treasure trove of them in St. Anthony Park near the University of Minnesota’s St. Paul campus.

Like other modernists, they favored a strong connection to nature through large windows, skylights, an open floor plan, and extensive use of wood and stone. The feeling of space, though not necessarily huge square footage, permeated Close designs. Win and Elizabeth felt good design need not cost a fortune: Robin and Dan’s 3,100-square-foot home cost $45,496 in 1956.

Robin and Dan intended to stay in their vintage Dutch Colonial in the Lake Harriet neighborhood of Minneapolis, but wanted more space and a more open floor plan. They had no intention of buying a modernist home when they started looking in Golden Valley, where they were introduced to the flat roofs and horizontal tendencies of modernism. “We drove by this house, called our realtor and said, ‘No way,’” recalls Robin. “We didn’t think we’d like it, but now we’re hooked. Every square inch of this house is useful.” And that’s how a Dutch-Colonial-stained-glass-window-and-carved-wood family of three turned into a low-profile-mid-century-modern family of four (their younger daughter was born two months after they moved here in 2003). They’ve since added two cats and a dog to the mix.

They loved the nonstop built-in storage, the light, and the feeling of space in the house. But a few things cried out for remodeling: a dark and cramped entry, a closed-in kitchen with Formica countertops and the original wood cabinets that no longer functioned properly, vast plains of off-white shag carpet that had turned more off than white, and a lack of accessibility to the patio and profoundly scenic backyard.

“We wanted to maintain the architectural integrity and we’d never remodeled a modern house. It was kind of scary,” says Dan. They were soon reassured by the knowledgeable voice of architect Lars Peterssen, then principal of Domain Architecture & Design and now of Peterssen/Keller Architecture of Minneapolis. “The intent was not to remake it exactly as it was in the ’50s—families use their homes differently now, and materials are available that didn’t even exist then—but rather to enhance the good things about the design and make it more functional for Robin and Dan,” says Peterssen.

And so they began.

Under the carpet, they found the original cork flooring, common in mid-century homes, too damaged to reuse. Robin wanted to pick up the gray tones in the pickled wood wall paneling. Joseph Max Johnson, the designer/manager on the project and Peterssen’s associate at Domain, suggested stained floors.

Staining hardwood floors, however, isn’t out-of-the-box easy. Johnson worked with Amy Schaefer of Schaefer Hardwood Floors in Minneapolis to find the perfect mix of four colors, staining wood swatches with at least eight variations. “We agonized over whether it was too blue, too brown, too dark,” said Robin. “It was literally a big decision because of the huge surface area that would be this color.”

In contrast to the openness of the rest of the house, the kitchen was walled off, with only a narrow doorway and small pass-through to the dining room. Peterssen and Johnson widened the doorway and opened the wall of cabinets between dining room and kitchen. The new glossy white cabinets with softly glowing resin doors, white countertops, and sky-blue glass wall tiles are an eye-pleasing vista both from within and when seen from the living/dining space. “By not having wood [cabinets] in the kitchen, we actually highlighted the cool wood paneling and stained floors in the rest of the house, and made them stronger, almost sculptural,” says Johnson. “The square-edged sink, recessed cabinet handles, Silestone countertops—if these had been available in 1955, would the Closes have used them? Hard to say, but they meet functional needs and they hew to the pure, clean tenets of the house’s design.”

The most transformative agent in the way the family lives in the house is a door at the side of the living room that leads outside and down via spiral stairs to the patio and backyard, regions previously accessible only through an egress door in the master bedroom. It was also the most intrusive change and, thus, thoroughly considered. The metal staircase fronts the house’s most playful elements—a sprinkling of colored glass windows, light boxes really, that follow the stairs to the lower level inside and punctuate a big, blank wall with color outside. “The open stairs and ribbon-like handrail disappear against the house,” says Johnson. “And the outside stairs provide another way to experience the light boxes.”

On a Saturday afternoon, Robin and Dan were experiencing their home’s new and improved beauty, their daughters sprawled on the living room floor, cats at the window, and the sun streaming in. The rightness of making good design even better was all around.

Sarah Barker is a St. Paul writer.

Here’s the link to the article –

Mid-Century Makeover

Here are the photos in a larger format plus some of the other images from this project.

1950’s Split Level Rambler

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Minneapolis is #1 bicycling city in the U.S.

Taking back the streets from the cars

On June 12 I rode my bicycle down Lyndale Avenue here in Minneapolis (which is only a block away from my house) to take part in the Open Streets Minneapolis Cyclovia.  Basically the street is closed to automobile traffic for the day.  This is an event that has taken place for just a few years now and it’s also happening across the country in places like New York City and Los Angeles and Fargo-Moorhead . . .  It’s about taking back the streets (for a while anyway) for people to walk, bicycle, skateboard, unicycle, anything that doesn’t use gas.

It was just for one Sunday afternoon but I think it’s a very positive event that allows people to see what’s possible without cars.  It may sound a little silly to someone who always hops in their car to go everywhere but once you take part or just observe – it allows you to see your neighborhood in a very different way.  For the already active cyclist, you get to see how many of your friends and neighbors also love to get out and enjoy their city using pedal power.  For those who haven’t been on a bike since they were 12, it allows them to see that’s it’s OK and even cool.  So many other cool people are doing it, I guess they won’t get embarrassed getting on a bike.  It’s not just something kids do.  It’s liberating.  You get exercise, you see things, you transport yourself, and it doesn’t cost anything (not much anyway).  That’s one of the things I love about Amsterdam in the Netherlands – everyone bikes – businessmen wearing suits, women in fashionable clothing, families with groceries . . .  If you like to show off your style and clothing, bicycling is a great way to do that.  No one can see what you’re wearing when you’re in your stupid car.  Cars are very alienating . .

Penny-farthing, high wheeler, high wheel, old timey bicycle . . .

I don’t hate all cars.  My hubby and I own two cars.  I need a car to transport all my photography gear.  I love my Volvo station wagon and my ’92 Honda Accord and I drove a motorcycle for many years. BUT . . . a lot of us may live to see the end of oil in our lifetimes so it might be wise to consider a few common sense options.  We should all get off our collective fat asses and get some fresh air.  Read the book, “The Long Emergency” by James Howard Kunstler.

Minneapolis has been voted the #1 bicycling city in the U.S. even though we have very harsh winters.  If we can do it here, anyone can do it.  No excuses.  Before I was a freelancer I biked 10-20 miles a day to work and back whenever I could – which often times was every day of the week.  I even biked in the winter when I lived within 5 miles of work.  My hubby bikes to work 14 miles a day roughly 9 months out of the year or whenever weather and schedule allows.

This Open Street event also allowed me to see my local street differently.  The street looked a lot prettier.  It also seemed like everyone who lived on this street and nearby had spruced up their homes and yards for the event.  Someone from a different part of the city or a different part of the country would think, wow, this is a great place to live.  This HAS to be good for property values.  A beautiful tree lined street with friendly people who all seem to know each other.  The street was repaved a couple years ago and they changed the design of the street to include lots of traffic calming measures.  This was good for everyone to see and be part of, even the cops – they can see that bicyclists aren’t criminals.

Here’s an update on how Minneapolis is making progress as one of the top bicycling cities in the U.S. – 2011 Minneapolis Bicycling Account.

“Though I will disappear . . .

to join the street parade

disappear and fade . . .

into the street parade . . .”   ©The Clash

Cadillac Kolstad travels and plays by bicycle

Dogs too of course

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Use someone else’s art work? Check this chart . . .

I came across this wonderful graphic the other day on a site that is always chock full of information for photographers – A Photo Editor.  You can sign up to receive posts.

It had been posted on the Design*Sponge site.

Credit goes to Yvette van Boven, Pia Bijkerk and Erin Loechner.

How to Credit? Just Check the Poster

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