| Antitrust AAG |
| 2/12. President Bush will nominate Charles
James to be the next Assistant Attorney General for the Antitrust Division of the
Department of Justice (DOJ), according to a story
by the Associated Press. Whoever fills this position will have
major responsibility for determining whether or how to proceed
with the government's case against Microsoft. James is a
partner in the Washington DC office of the law firm of Jones, Day, Reavis & Pogue.
He is the Chairman of the firm's Antitrust & Trade
Regulation Practice. After graduating from law school in 1979
he worked at the FTC. This culminated
with a position as Assistant to the FTC Bureau of Competition
Director, from 1983 until 1985. He then joined Jones Day. He
held several positions in the DOJ Antitrust Division during
the administration of the elder Bush, including Deputy
Assistant Attorney General and Acting Assistant Attorney
General. He then rejoined Jones Day. |
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| Commerce Dept. |
2/12. President Bush made several key nominations at the Department of Commerce.
• Bush nominated Kenneth
Juster to be Under Secretary of Commerce for Export
Administration. Juster is currently a partner in the
Washington DC office of the law firm of Arnold & Porter,
where he handles international trade and transactions, and
international arbitration and litigation. He worked for
Lawrence Eagleburger at the State Department during the
administration of the elder Bush.
• Bush nominated Faryar Shirzad to be Assistant
Secretary of Commerce for Import Administration. He was
International Trade Counsel for the Senate Finance
Committee.
• Bush nominated Theodore
Kassinger to be General Counsel of the Department of
Commerce. He is a partner in the Washington DC office of
the law firm of Vinson
& Elkins, where he has an international trade
practice.
See, release. |
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| More Nominations |
2/12. President Bush designated Laura Unger as acting
Chairman of the SEC. See, release.
2/12. President Bush nominated Thelma Askey to be a
Commissioner of the USITC.
She was a Commissioner until December of 2000, when her term
expired. |
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| New Documents |
USCA:
opinion
in Napster v. A&M Records, 2/12 (PDF, USCA).
Hatch:
letter
to Bush re USPTO funding, 2/9 (HTML, TLJ).
CO:
notice
re initiation of six month voluntary negotiation period for
determining reasonable rates and terms for the public
performance of sound recordings by new subscription services,
2/12 (HTML, TLJ). |
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| Privacy |
2/12. Hewlett Packard (HP)
announced that it will participate in the EU privacy safe
harbor. The safe harbor agreement is between the U.S.
Department of Commerce and European Union Data Protection
Authorities. The safe harbor provides legal protection and a
framework allowing for the safe transfer of personal
information from European Union countries to the United
States. HP is the first major technology company to join the
safe harbor. See, release.
2/12. The Privacy Coalition held a press conference to
announce a privacy initiative. It seeks to have Members of
Congress and state legislators sign a "Privacy
Pledge." See, TLJ
story. |
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| USPTO Funding |
2/12. The USPTO
published in its web site the February edition of USPTO
Today [PDF]. It contains the transcript of an interview
with Esther Kepplinger, Deputy Commissioner for Patent
Resources and Planning. She addressed workforce issues, and
the diversion of USPTO user fees to subsidize other government
programs. She stated that "we are increasingly having a
difficult time in retaining or accessing the fees that we
generate through the work that we're doing." She also
stated that "I think that we're also going to need to
look at legislative changes to our processes that could have
more dramatic impacts on the way that we do our business and
shorten or change the way we do examinations so that we're
able to do more with less resources." She suggested that
the USPTO may utilize retired workers. (See, page 6.)
2/9. Six
Senators sent a letter
to President Bush urging an end to the diversion of USPTO user fees
to fund other government programs. They argued that "underfunding
the PTO delays the development of new technologies." |
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| Napster Opinion |
2/12. The U.S.
Court of Appeals (9thCir) issued its opinion
[PDF] in Napster v. A&M Records, largely upholding Judge
Patel's findings regarding copyright infringement. Napster
uses peer-to-peer file sharing to allows its users to make
music files stored on individual computer hard drives
available for copying over the Internet by other users. Last
year U.S. District Court Judge Marilyn Patel issued a
preliminary injunction against Napster. The Court of Appeals
upheld Patel's findings that Napster users engage in direct
copyright infringement, and that Napster engages in both
contributory and vicarious infringement. The Court also
upheld Patel's rejection of Napster's defense of fair use. The
Court ruled that the issue of whether Napster may obtain
shelter under the safe harbor provisions of the Digital
Millennium Copyright Act should be developed at trial. The
Court also upheld Patel's ruling that the Audio Home Recording
Act does not cover the downloading of these music files to
computer hard drives. However, the Appeals Court found
Judge Patel's injunction to be overly broad, and remanded the
matter to her to fashion injunctive relief consistent with
its opinion. Napster may be held liable for contributory
copyright infringement only to the extent that it knows of
specific infringing files with copyrighted musical
compositions or sound recordings, knows or should have known
that the files are available on its system, and fails to act
to prevent the distribution of the copyrighted material.
Beezer wrote the opinion, in which Schroeder and Paez joined.
See also, 9th Circuit's summary
[PDF] of its opinion.
2/12. Record company officials, their attorneys, and several
musicians held a press conference in Washington DC immediately
after the release of the opinion in the Napster case. RIAA
CEO Hillary Rosen stated that "It is time for
Napster to stand down and build their business the old
fashioned way. By seeking permission first." Rosen also
predicted that "this opinion is so clear that Congress
won't get involved in this case." Musicians praised the
ruling. "The decision pretty much writes Napster's
epitaph," said attorney Charles Cooper. "Its days of
shoplifting are over."
2/12. Napster President Hank
Barry also issued a statement.
"Under this decision Napster could be shut down ..."
He did not state whether Napster would seek further review by
the Ninth Circuit, or petition the Supreme Court for writ of
certiorari. However, he did address legislative remedies. He
stated: "The Court also very narrowly interpreted the
Congress's intent when it comes to licensing, and we have seen
that this is an issue of concern to the Congress. We encourage
members of our community to contact their representatives to
let Congress know how much Napster means to them."
2/12. The RIAA
hired Charles Cooper to provide legal services in
connection with any Supreme Court review of the Napster case,
and legislative strategy services. Cooper is the senior
partner of the Washington DC law firm of Cooper Carvin &
Rosenthal. He is a former law clerk to Chief Justice Wm.
Rehnquist, and a former Asst. Atty. General for the Office of Legal Counsel
during the Reagan administration. He has testified several
times before the House Judiciary Committee on Constitutional
issues.
2/12. Rep. John
Conyers (D-MI), the ranking Democrat on the House Judiciary
Committee (which has jurisdiction over intellectual
property legislation) had this to say about the Napster
ruling: "This decision is a huge victory for the
Internet, consumers, and e-commerce and means that the
information age will not countenance high-tech piracy. It
shows that intellectual property rights are as enforceable
over the Internet as they are elsewhere, and that they promote
commerce on the Internet. Napster was a service whose only
purpose was to make money off of the creative inspirations of
others. Having put no effort into the writing, singing, or
marketing of music, Napster took it upon itself to facilitate
– even encourage – the mass distribution of copyrighted
songs." |
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| More IP News |
2/12. The Copyright
Office (CO) published a notice
in the Federal Register that it is initiating the six-month
voluntary negotiation period for determining reasonable rates
and terms for the public performance of sound recordings by
new subscription services. Parties requesting to
participate in the negotiation process must notify the CO by
March 1, 2001. See, Federal Register, Feb. 12, 2001,
Vol. 66, No. 29, at Pages 9881 - 9882.
2/9. The WTO General Council
elected officers for 2001. See, list. |
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| More News |
2/12. The U.S. Court
of Appeals (DC Cir) heard oral argument in Veracon Corp v. FCC. This
is a Petition for Review of an FCC order affecting a broadcast
radio license (WNNJ617) in Hinsdale, Illinois.
2/11. President Bush issued an Executive
Order which extended the expiration date of the President's
Information Technology Advisory Committee from Feb. 11 to
June 1, 2001.
2/12. The U.S. Court of Appeals (4thCir) issued its opinion
in USA
v. Barth, an appeal of a sentence imposed for
illegal transportation, by computer, of child pormography
in interstate commerce, in violation of 18 U.S.C. §
2252A(a)(1). Defendant was formerly employed by the federal
government as a data standards manager.
2/12. Oracle announced
that Bill Clinton will deliver the opening keynote
address at the Oracle AppsWorld conference in New Orleans on
Feb. 19. See, release. |
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| Today |
Deadline to submit comments to the IRS in its proceeding
regarding its regulation of Internet speech. The IRS
released a document
in October stating that it is considering whether to issue
guidance regarding the application of the Internet Revenue
Code to various types of Internet communications by tax exempt
entities.
6:30 PM. FTC Chairman Robert
Pitofsky will speak at the ABA Antitrust Section Corporate
Counsel dinner. Location: Willard Hotel, 1401 Pennsylvania
Ave., NW, Washington DC. |
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| People |
2/7. David Marsh joined the law office of Arnold & Porter as
a partner. He will focus on intellectual property counseling
and patent procurement, predominantly in the biotechnology
area. Marsh is also an Adjunct Professor at Georgetown
University Law Center, where he teaches Biotechnology and
Patent Law. He previously practiced at Howrey Simon Arnold & White.
See, release.
2/6. Paul Coggins joined the Dallas office of the law
firm of Fish & Richardson
(FR) as a principal. He was previously the U.S. Attorney for
the Northern District of Texas for seven years. Coggins helped
establish a regional computer forensics laboratory in Dallas
to help Texas law enforcement agencies investigate
computer-aided crimes. The USAO
also prosecuted several cases involving computer hacking and
network disruption. FR practices exclusively in the areas of
intellectual property, complex litigation, and technology law.
See, release.
2/5. Joshua
Paul joined the New York City office of the law firm
of Morgan, Lewis &
Bockius as a partner in the Intellectual Property Practice
Group. He was previously a partner at Cowan Leibowitz & Latman in
New York City. He focuses on litigation and counseling of
trademark/brand identity, unfair competition, Internet
advertising, e-commerce and related IP matters. See, release. |
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| Page Jacking |
| 2/12. The FTC announced a
Stipulated Final Judgment and Order in FTC
v. Periera, a civil enforcement action to enjoin a
"page jacking" and "mouse trapping" scam
run by pormographers.
The FTC filed its original
complaint in U.S. District Court (EDVa)
on Sept. 14, 1999. It obtained a preliminary
injunction on Sept. 21, 1999. (See, TLJ
story). The Australian
Competition and Consumer Commission (ACCC) also pursued
defendants present in Australia. Page jacking is a scam which
manipulates online search engine technology to cause web
surfers seeking legitimate web pages to end up in the web
pages of the scam artist. The perpetrator copies and puts
online the legitimate web pages of others, and adds a redirect
script which includes the URL of another web site run by the
perpetrator. These "page jacked" pages are then
indexed by search engines, and web users find and click
through to the page jacked pages via search engine listings,
thinking that they are going to a legitimate web page. In the
Periera case, the redirect sites all contained advertisements
for pormography.
With "mouse trapping," scripts are added to the
pages containing porm ads which cause more porm ads pages to
be displayed when the user clicks the browser's back or close
buttons. (See, TLJ
story.) The FTC announced on Feb. 12 that under the
settlement, defendant Gregory Lasrado is barred from future
page jacking operations, and other fraudulent acts. The FTC
also obtained default judgments enjoining two other
defendants. However, the lead defendant, Carlos Periera, of
Portugal, was never located. |
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