| DOJ Nominations |
2/15. President Bush announced his intent to nominate Charles
James to be an Assistant Attorney General. He will oversee
the Antitrust Division
of the Department of Justice (DOJ). He will have major
responsibility for determining whether or how to proceed with
the government's antitrust case against Microsoft. James is
currently the Chairman of the Antitrust and Trade Regulation
section of the law firm of Jones,
Day, Reavis & Pogue. He worked at the FTC
from 1979 through 1985; he was 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. See, DOJ
release and White
House release.
2/14. President Bush announced his intent to nominate Larry
Thompson to be Deputy Attorney General. He is
currently a partner with the law firm of King & Spalding in
Atlanta, Georgia. See, White
House release.
2/14. President Bush announced his intent to nominate Ted
Olson to be Solicitor General. He is currently a
partner in the Washington DC office of Gibson Dunn & Crutcher.
See, White
House release.
2/15. Attorney General John Ashcroft announced the nomination
of Daniel Bryant to be an Assistant Attorney General.
He will oversee the Office of Legislative Affairs. He is
currently Chief Counsel of the House Judiciary
Committee's Subcommittee on Crime. See, DOJ
release. |
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| Intellectual Property &
High Tech |
2/14. The Senate passed S 320,
the Intellectual Property and High Technology Technical
Amendments Act of 2001. The bill is sponsored by Sen. Orrin Hatch (R-UT)
and Sen. Pat Leahy
(D-VT), the Chairman and ranking Democrat on the Senate Judiciary
Committee. Sen. Hatch stated during floor debate that this
"is a technical corrections bill to clean up some
scrivener's errors that have crept into the U.S. Code in the
patent, trademark, and copyright laws." It passed by a
vote of 98 to 0.
2/14. Sen. Hatch and Sen. Leahy used the time allotted for
debating S 320 to identify their intellectual property and
high tech agenda for the 107th Congress. The topics which
the two intend to address include copyright on the Internet,
electronic privacy, encryption policy, business method
patents, state government responsibility to respect and
protect intellectual property rights, domain names, protecting
trademarks in cyberspace, antitrust implications of B2B
electronic marketplaces, the increasing tension in the high
tech industry between intellectual property rights and
antitrust laws, broadband technologies, and freedom of speech.
See, Hatch
statement.
2/14. Sen. Leahy addressed the opinion
[PDF] of the U.S. Court
of Appeals (9thCir) in Napster v. A&M Records. He
stated in the Senate that "we have to realize things have
changed. There has been a lot in the press in the past couple
days about the Ninth Circuit Court of Appeals decision in
Napster. I suggest that if anyone thinks this is the end of
the whole issue, they are mistaken."
2/15. The RIAA
stated that the plaintiffs filed a proposed modified
preliminary injunction order with the U.S. District Court (NDCal)
in A&M Records v. Napster. However, the RIAA did not
release a copy of the proposed order. It stated that it
"is not yet a public document." |
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| New Documents |
Hatch:
statement
re high tech and intellectual property agenda, 2/14 (HTML, TLJ).
FTC:
complaint in domain name
registry scam case, 2/13 (PDF, FTC).
USDC:
Temporary
Restraining Order in domain name registry scam case, 2/13
(PDF, FTC).
Burghardt:
speech
re US EU trade relations, 2/15 (HTML, EU). |
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| Quote of the Day |
"In the Internet Age, many basic questions need to be
asked anew about the relationships between the artists and the
media companies that market and distribute their product;
about the rights of consumers and fans to use works in new
ways and the ability of technology companies and other
mediators to assist them in those uses; and about the
accessibility of works to scholars, students, or others for
legitimate purposes. We need to continue to think about how
the copyright system applies in the Internet world, where some
of the assumptions underpinning traditional copyright law may
not be relevant, or need to be applied by a proper
analogy."
Sen. Orrin Hatch (R-UT), statement
in Senate, Feb. 14. |
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| Domain Name Registry Scam |
| 2/13. The FTC filed a complaint [PDF] on Feb. 13 in
U.S. District Court (NDGa)
against a domain name registration scam operation known as the
National
Domain Name Registry seeking injunctive relief. The
Defendants, who are not domain name registrars, sent
fraudulent bulk unsolicited fax solicitations to domain name
owners stating, "URGENT NOTICE OF IDENTICAL DOMAIN NAME
APPLICATION BY A THIRD PARTY." The fax solicitations also
offered to block the applications for a fee of $70. The
District Court issued a Temporary
Restraining Order [PDF] on Feb. 13 barring defendants from
offering domain name registration services, freezing
defendants' assets, and shutting down their web sites. The
order also requires any web hosting company to deny public
access to any of defendants' domains. It also requires Network
Solutions and any other domain name registrar to suspend the
registration of defendants' domains. The District Court also
set the hearing on the motion for preliminary injunction for
Feb. 26 at 3:00 PM. Darren Morgenstern of Ontario Canada is
the scam artist. Stephen
Cohen and Catherine McBride are the FTC attorneys
handling the case. Julie Carnes is the Judge who issued the
TRO. See also, FTC
release and ICANN
release. |
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| Privacy Bill |
| 2/14. Sen. Richard
Shelby (R-AL) introduced S 324, the Social
Security Privacy Act of 2001, a bill to amend the Gramm
Leach Bliley Act, to prohibit the sale and purchase of the
social security numbers by financial institutions, and to
include social security numbers in the definition of nonpublic
personal information. "I believe Congress has a duty to
stop Social Security numbers from being bought and sold like
some common commodity," said Sen. Shelby. "This
legislation would basically prohibit the sale and purchase of
an individual's Social Security number. I do not know anyone
in this country that believes financial institutions should be
making a profit by trafficking individual's Social Security
numbers. While financial institutions have used the Social
Security number as an identifier, the sale and purchase of
these numbers facilitates criminal activity and can result in
significant invasions of individual privacy." |
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| Filtering |
2/15. Feb. 15 was the deadline to submit comments to the FCC in response
to its Notice
of Proposed Rulemaking (NPRM) regarding implementation of
the Children's Internet Protection
Act [PDF]. This statute provides that in order to be
eligible to receive FCC e-rate subsidies, schools and
libraries that have computers with Internet access must have
in place certain Internet safety policies, such as the use
filtering software. The ACLU
and EPIC submitted a comment.
They stated that "In our view, CHIPA itself is facially
unconstitutional. We anticipate filing a lawsuit to have
portions of the law declared unconstitutional."
2/15. Consumer
Reports published a report
on filtering software. It concluded that "In some cases, filters block harmless sites merely
because their software does not consider the context in which
a word or phrase is used. Far more troubling is when a filter
appears to block legitimate sites based on moral or political
value judgments." It also found that "Most of
the products we tested failed to block one objectionable site
in five." The ITAA
responded that the report "falls short in fairly
characterizing the utility of these consumer tools, and raised
questions about the methodology of the analysis." See, ITAA
release. |
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| More News |
2/15. The U.S.
Court of Appeals (4thCir) issued its opinion
in Hunt
Masters v. Landry's Seafood Restaurant, a case
involving trademark law. Both parties operate crab
restaurants in Charleston, SC. One filed suit against the
other claiming that the use of the term "crab house"
infringed its common law service marks. The District
Court rejected the claim, and the Appeals Court affirmed.
2/15. The FCC announced
that it denied an application for review of its Cable Service Bureau's
denial in part of a request for records pertaining to the
FCC's AT&T
MediaOne antitrust merger review proceeding. The Media Access Project, Consumers Union, and Consumer Federation of
America had requested, pursuant to the Freedom of
Information Act, records related to ex parte presentations
made during the AT&T MediaOne review.
2/15. The Senate
Judiciary Committee held over its mark up of the
bankruptcy reform bill.
2/15. The NTIA
and FCC hosted a
public meeting between government and the private sector
regarding Third Generation (3G) wireless services. See,
agenda.
2/15. The SIIA
released its analysis
of data
published by the Census
Bureau on the information services sector of the economy.
The SIIA concluded that the data "shows a marked increase
in software and information industry revenue between 1998 and
1999. ... software and information revenue totaled $95.4
billion in 1999, an 11.6% increase over 1998. Software revenue
accounted for $80.9 billion, an increase of 11.3% over 1998,
and information revenue totaled $15.4 million reflecting an
increase of 14.9%." See also, SIIA
release.
2/8. The U.S. District Court (WDNY)
sentenced Samuel Williams and Dion Wilson for conspiracy to
commit wire fraud and to transport stolen property. The
defendants, while employed by SoftBank (now ClientLogic)
illegally shipped company computer hardware and software
totaling more than $700,000 by fraudulently authorizing
no-charge shipments of computer products from SoftBank's
warehouse to drop locations throughout the Buffalo area.
Williams and Wilson were sentenced to 24 and 8 months of
incarceration, respectively. See, DOJ
release. |
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| Spam Bill |
| 2/14. Rep. Heather
Wilson (R-NM) and Rep.
Gene Green (D-TX) introduced HR 717, the Unsolicited
Commercial E-Mail Act of 2001. Rep. Wilson sponsored a similar
spam bill in the 106th Congress; it passed the House, but not
the Senate. The bill regulates unsolicited commercial
electronic mail (UCE). The bill criminalizes intentionally
sending UCE with false "domain name, header
information, date or time stamp, originating electronic mail
address, or other information identifying the initiator or the
routing of such message". The bill requires accurate
return addresses on UCE, prohibits sending UCE to someone
after they have asked to be removed from a distribution list,
requires UCE to be labeled, requires ISPs to let their
customers opt out of getting UCE if the ISP profits from
allowing it into its system. The bill also provides civil
court remedies to ISPs, UCE recipients, and the FTC. The bill
also provides ISPs immunity for good faith actions which block
email. |
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| EU US Trade |
| 2/15. Guenter
Burghardt, head of the European Commission's delegation to
the U.S. gave a speech
at the Sanford Institute
of Public Policy at Duke University titled "Prospects
for EU-US Trade Relations." He addressed privacy;
"On data protection, the EU is under strong pressure from
its citizens to adopt much stricter control over access to
personal data than is the case in the US Interestingly, US
public opinion and that of some US CEOs have moved towards the
European position on this issue, resulting in agreement on
adoption of the "safe harbor" principle." He
also addressed the dispute over the U.S. Foreign Sales
Corporation (FSC) tax regime. The FSC regime, and the
replacement bill enacted last year, benefits U.S. high tech
exporters. Also, if this dispute is not resolved, the EU may
impose retaliatory tariffs on U.S. high tech exports.
Burghardt stated that FSCs "allow US firms to benefit
from 50% tax exemptions for their exports, amounting to tax
breaks totaling as much as $4.5 billion in 1999. This is a sum
almost 10 times greater than the trade impact of the banana,
beef hormone, and aircraft hushkit disputes combined. The FSCs
constitute a subsidy to exports which the EU and other parties
have argued is not compatible, and the WTO has ruled against
this arrangement. Replacement legislation has been proposed by
the US, which the EU believes insufficient to meet the
requirements established by the WTO. A provisional ruling on
the new legislation is expected no later than May 21." He
also stated that "The ability of the new Administration
to win approval of fast-track or trade promotion
authority from Congress, however, is far from certain." |
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| Today |
10:00 AM - 12:00 NOON. The FCC's WRC-03 Advisory Committee
will hold its second meeting. The purpose of the meeting is to
continue preparations for the 2003 World Radiocommunication
Conference. See, notice
in Federal Register. Location: FCC, 445 12th Street, SW., Room
TW-C305, Washington DC.
12:00 NOON. Deadline to submit comments to the U.S. Trade
Representative regarding countries that deny adequate and
effective protection of intellectual property rights. Section 182 of
the Trade Act of 1974 requires the USTR to identify
countries that deny adequate and effective protection of IP
rights or deny fair and equitable market access to U.S.
persons who rely on IP protection. This provision is also
referred to as "Special 301". See, request
for comments in Federal Register, Jan. 16, 2001, Vol. 66,
No. 10, at Pages 3640 - 3641.
12:00 NOON. Jodie Bernstein, Director of the FTC's
Bureau of Consumer Protection, will speak at the Cosmos Club
Legal Affair Committee Forum on Privacy on "The Challenge
of Internet Privacy." Location: The Cosmos Club,
2121 Massachusetts Ave., NW, Washington DC. |
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| About Tech Law Journal |
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