| Microsoft Settles Private
Overpricing Antitrust Class Actions |
11/20. Microsoft announced that it settled over 100 private
antitrust class action lawsuits against it alleging that it
overpriced its products. Microsoft also stated that the
parties would file a Settlement Agreement with the U.S. District Court (DMD).
See, MSFT
release and statement
by Microsoft CEO Steve Ballmer.
The District Court, Judge
Frederick Motz presiding, has scheduled a hearing on this
proposed settlement for Tuesday, November 27. This settlement
does not affect the ongoing government antitrust litigation
against Microsoft; nine states have not yet joined in the
settlement announced earlier this month. Also, plaintiffs'
attorneys in state court actions alleging overpricing that are
pending in California will likely object to this settlement.
Microsoft stated that "Under the proposed settlement,
Microsoft will provide more than $1 billion in cash, training,
support and software to help make computer technology more
accessible to public schools serving nearly 7 million of
America's most economically disadvantaged children. Details of
the five year education program are outlined in a Settlement
Agreement signed by the parties on Monday, which will be filed
with the Federal District Court of Maryland later today. The
program, if accepted by the Court, will provide cash, computer
hardware, software, technical assistance and training to over
12,500 schools and more than 400,000 teachers who work in
those schools."
The terms of the proposed settlement also provide that the
plaintiffs' attorneys will receive reasonable attorneys fees
in an amount to be determined by the Court.
Microsoft also announced that it will record a pre-tax charge
of approximately $550 million in the quarter ending December
31, 2001, resulting from the settlement of more than 100 class
action lawsuits." See, MSFT
release. |
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| FTC Settles Case Against
Deceptive Web Operation |
11/20. The FTC announced
settlement of a case that it brought in May against the
operators of a web business that deceived consumers.
Defendants falsely claimed that RhinoPoint.com would pay
Internet access fees for consumers who paid membership fees
and divulged their personal and financial information. See, FTC
release. Under the terms of the Stipulated
Final Judgment, defendants are barred from making future
misrepresentations to consumers, and from using, disclosing,
or selling any of the personally identifying information that
they collected. They are also required to destroy the data.
On May 23, 2001, the FTC filed a complaint
in U.S.
District Court (NDIll) against New Millennium Concepts,
Inc., dba rhinoPoint, and its principal, Karl Kay, alleging
deceptive acts or practices in violation of § 5(a) of
the Federal Trade Commission Act, 15 U.S.C.
§ 45(a).
The complaint alleged that defendant falsely represented that
consumers who signed up as members of rhinopoint.com, by
paying an initial setup fee and disclosing personal
information on the member profile form, would receive monthly
marketing surveys and would be reimbursed for their monthly
Internet access charges after completing the monthly surveys.
The complaint further alleged that the defendant collected
about $500,000 in set-up fees and obtained consumers' personal
information, but did not follow up with marketing surveys or
pay Internet access fees for most of the consumers. |
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| E-911Phase II Petitions for
Reconsideration |
11/20. On November 13, Cingular
Wireless, Nextel, and
Verizon Wireless
filed petitions seeking reconsideration of certain provisions
of the FCC's October 12 orders addressing and conditionally
approving requests for waivers and approval of revised
deployment plans for wireless Enhanced 911 services. On
November 20, the FCC issued a notice
that set deadlines for comments on these petitions for
reconsideration. Oppositions and comments are by December 19,
2001; reply comments are due by January 4, 2002.
See, November 13 petitions for reconsidertion: Cingular's petition
[PDF], Nextel's petition
[PDF], and Verizon's petition
[PDF]. See also, FCC release
summarizing the orders released on October 12, and the October
12 orders: FCC 01-294 Order,
FCC 01-295 Order,
FCC 01-296 Order,
FCC 01-297 Order,
and FCC 01-299 Order.
(CC Docket No. 94-102.) |
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| More on FTC DOJ Hearings on
Antitrust and IPR |
| 11/20. On November 15 the Antitrust Division of the
Department of Justice and the FTC
announced that they will jointly hold a hearing on antitrust
and intellectual property. On November 20, the FTC published a
notice
in the Federal Register regarding this hearing. It states that
"The hearings will begin in January 2002 and will
conclude later in the spring. Specific dates and more specific
topic listings will be provided in a later notice and in press
releases. Any interested person may submit written comments
responsive to any of the topics to be addressed; such comments
should be submitted no later than the last session of the
hearings." The notice also states that "The hearings
will focus primarily on the implications of antitrust and
patent law and policy for innovation and other aspects of
consumer welfare. Copyright and trademark issues as they arise
in particular high-tech contexts also may be considered."
See, Federal Register, November 20, 2001, Vol. 66, No. 224, at
Pages 58146 - 58147. |
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| NMPA Sues P2P Music
Services for Copyright Infringement |
11/19. Several songwriters and music publishers filed a complaint
[PDF] in U.S. District Court (CDCal)
against MusicCity
(provider of Morpheus), Consumer Empowerment BV (aka FastTrack), and Grokster alleging
contributory and vicarious copyright infringement in
connection with their operation of peer to peer music copying
services.
The complaint alleges that "Defendants provide users with
an enhanced peer to peer service for infringing copyrighted
musical compositions. Like Napster, defendants provide their
respective users with the infrastructure, facilities,
technological means, and ongoing support and services to
infringe copyrighted musical compositions. Defendants
participate in, facilitate, materially contribute to, and
encourage these infringements from start to finish. Their
services are extensive, highly integrated closed systems that
anonymously connect users and encourage and enable them to
pool their previously private music files into what is
effectively a massive database of millions of such files so
that they can all make free copies. To shield this pirate's
haven, defendants have made their services anonymous and have
employed encryption technology." See, Complaint, at ¶
24. D.C. No. 01-09923 GAF(SHx).
Count one alleges contributory copyright infringement in
violation of 17 U.S.C. §§ 106,
115,
and 501.
Count two allege vicarious copyright infringement in violation
of the same sections. Plaintiffs seek statutory damages in the
amount of $150,000 with respect to each work infringed;
plaintiffs also seek preliminary and permanent injunctive
relief. Plaintiffs seek class action status to represent all
music publishers represented by the Harry Fox Agency.
The plaintiffs, who are members of the National Music Publishers
Association (NMPA), are Jerry Leiber, Mike Stoller, Famous
Music, Peer International Corporation, and Criterion Music.
They are represented by the law firms of Paul Weiss and Davis Wright & Tremaine.
Songwriter Stoller said in an NMPA release
that "This lawsuit seeks to preserve the important
principles that the courts recognized in our case against
Napster -- that commercial businesses have a legal obligation
to compensate songwriters for the use of their creative works,
irrespective of the technology they use to do so. When
millions of people use the Morpheus service, they are doing so
not because they think the technology is 'cool.' They are
using it because they can get our songs without paying for
them. This has got to stop." |
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| Copyright Office Requests
Comments in Rate Proceedings |
11/20. The Copyright
Office (CO) published a notice
in the Federal Register regarding its digital performance
right in sound recordings rate adjustment proceedings. It
contains a notice of inquiry and request for notices of
intention to participate. The notice states that the CO
"is requesting comments as to whether the rate adjustment
proceeding to determine reasonable rates and terms for the
public performance of sound recordings by new subscription
services should be consolidated with the rate adjustment
proceeding to determine reasonable rates and terms for the
public performance of sound recordings by pre-existing
satellite digital audio radio services and pre-existing
subscription services." Comments and Notices of Intent to
Participate are due no later than December 20, 2001. Reply
comments are due no later than January 22, 2002. See, Federal
Register, November 20, 2001, Vol. 66, No. 224, at Pages 58180
- 58181.
11/20. The Copyright
Office published notice
in the Federal Register regarding the distribution of 1998 and
1999 cable royalty funds. The notice requests public comments.
It states that the CO "is announcing the schedule for a
Phase I CARP proceeding to distribute 1998 cable royalty funds
collected under section 111, 17 U.S.C. In addition, the Office
is seeking comment as to the advisability of consolidating the
1998 Phase I distribution proceeding with the Phase I
distribution proceeding for the 1999 cable royalty
funds." Comments on consolidation are due no later than
December 20, 2001. See, Federal Register, November 20, 2001,
Vol. 66, No. 224, at Page 58179 -58180. |
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| Express Mail Deliveries to
USPTO |
11/20. The USPTO issued a notice
regarding express mail deliveries to the USPTO. On Friday,
November 16, 2001, the USPS issued a memorandum stating that
it is temporarily and immediately suspending Express Mail
service to Washington DC, ZIP Codes 202xx through 205xx (e.g.,
20231).
The USPTO stated that it "is designating this
interruption in the Express Mail service of the USPS as a
postal service interruption within the meaning of 35 U.S.C.
21(a) and 37 CFR 1.6(e). The USPTO is establishing the
following address which may be used (as an alternative to the
address set out in 37 CFR 1.1) on an emergency basis for
patent-related correspondence being delivered to the USPTO by
the USPS's Express Mail service: U.S. Patent and Trademark
Office, P.O. Box 2327, Arlington, VA 22202." |
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| USPTO Puts PDF Fillable
Forms Online |
| 11/20. The USPTO
announced that the first set of ten patent forms are available
in its web site in PDF fillable format. See, USPTO Forms
page. See also, USPTO
release. |
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| Thanksgiving Schedule |
| The Tech Law Journal Daily E-Mail Alert will not be
published on Thursday, November 22, or Friday, November 23. |
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| Wednesday, Nov 21 |
The Senate and House are in recess for Thanksgiving.
2:00 - 5:00 PM. The National
Science Foundation's (NSF) Advisory Committee for Cyber
Infrastructure will hold a meeting to develop a plan for the
preparation of a report to the NSF concerning advanced cyber
infrastructure and the evaluation of the existing Partnerships
for Advanced Computational Infrastructure. See, notice
in Federal Register. Location: Room 130, NSF, 4201 Wilson
Blvd., Arlington, VA. |
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| Thursday, Nov 22 |
| Thanksgiving day. The Tech Law Journal Daily E-Mail Alert
will not be published. |
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| Friday, Nov 23 |
| The Senate and Senate are in recess for Thanksgiving. The
Tech Law Journal Daily E-Mail Alert will not be published. |
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| Monday, Nov 26 |
| The Senate and House are in recess for Thanksgiving. |
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| Tuesday, Nov 27 |
The Senate reconvenes from its Thanksgiving recess at 10:30
AM.
The House reconvenes at 2:00 PM. There will be no votes before
6:30 PM.
1:30 PM. The U.S. International Telecommunication Advisory
Committee (ITAC) will hold a meeting. See, notice
in Federal Register. Location: State Department.
6:00 - 8:15 PM. The Federal
Communications Bar Association (FCBA) will host as CLE
seminar titled "The Economics of FCC Decisionmaking."
From 6:00 to 7:00 PM David Sappington (FCC Chief Economist)
will speak on "Economic Principles of Telecommunications
Regulation." From 7:15 to 8:15 PM there will be a panel
discussion titled "Economists Roundtable: Of Caps,
Limits, and the Free Market." The speakers will be Robert
Pepper (Chief of the FCC's Office of Plans and Policy), Jim
Bird (head of the FCC's antitrust merger review office), Walt
Strack (Chief Economist in the FCC's Wireless Bureau), and
Jonathan Levy (Deputy Chief of the FCC's Office of Plans and
Policy). RSVP to wendy@fcba.org.
Location: Dow Lohnes &
Albertson, 1200 New Hampshire Ave., NW, Suite 800. |
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| Illegal Export of Computers
to Libya and Syria |
11/20. The Bureau of
Export Administration (BXA) published a notice
in the Federal Register that it has affirmed an injunction
against Tetrabal Corp. and Ihsan Medhat Elashi in connection
with the export of computer products to Libya and Syria in
violation of the Export Administration Regulations (EAR).
The notice contains a BXA order of November 10 affirming the Administrative
Law Judge's (ALJ) November 2 Recommended Decision
and Order regarding Tetrabal Corporation, Inc., and Ihsan
Medhat Elashi, and denying the appeals of Tetrabal and Elashi.
Tetrabal Corp. and Elashi are related to Infocom. On September
6, the BXA enjoined Infocom, its officers, and others, from
selling computer equipment to Libya and Syria in violation of
the Export Administration Regulations (EAR). See, Federal
Register, November 20, 2001, Vol. 66, No. 224, at Pages 58112
- 58115. |
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| RFK DOJ Building |
| 11/20. President Bush issued a Memorandum
directing that the main Department of Justice building in
Washington DC be named the "Robert F. Kennedy Department
of Justice Building". See also, statement
by President Bush at dedication ceremony and DOJ
release. |
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| People and Appointments |
| 1/20. David Fiske was named Director of the FCC's
Office of Media Relations. He has been acting Director of the
office since January. He has worked at the FCC since 1995. He
previously was a reporter for Warren Publications. He has also
worked on Capitol Hill and for CBS. See, FCC
release. |
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