| Supreme Court Grants Cert
in NextWave Case |
3/4. The Supreme
Court of the United Stated granted certiorari in FCC v.
NextWave and Arctic Slope v. Nextwave. See, March 4 Order
List [PDF] at page 3. The grant may prolong litigation,
and continue to tie up spectrum that could be used to provide
wireless phone service and Third Generation (3G) wireless
services.
NextWave obtained spectrum licenses at Federal Communications Commission
(FCC) auctions in 1996. The FCC permitted NextWave to obtain
the licenses, and make payments under an installment plan,
thus creating a debtor creditor relationship between NextWave
and the FCC. NextWave did not make payments required by the
plan, and filed a Chapter 11 bankruptcy petition. The FCC
cancelled the licenses. It then proceeded to re-auction the
disputed spectrum.
The U.S. Court of Appeals (DCCir)
ruled in its June 22, 2001, opinion
that the FCC is prevented from canceling the spectrum licenses
by § 525
of the Bankruptcy Code. The FCC then petitioned the Supreme
Court for writ of certiorari.
Late last year the FCC, DOJ, NextWave, and re-auction winners
negotiated a settlement agreement. However, it required the
passage of legislation by Congress by the end of the year.
Congress took no action.
FCC Chairman stated in a release
that "I am gratified that the Supreme Court has decided
to review the D.C. Circuit's decision in the NextWave case.
This will allow the Court to clarify the relationship between
public spectrum auctions and the U.S. bankruptcy laws."
This is Supreme Court Nos. 01-653 and 01-657. |
|
|
| Supreme Court Denies Cert
in Symantec v. Hilgraeve Patent Case |
3/4. The Supreme
Court of the United Stated denied certiorari in Symantec
v. Hilgraeve, a patent infringement case
involving computer virus detection software. See, March 4 Order
List [PDF] at page 4.
Hilgraeve is the
holder of U.S.
Patent No. 5,319,776, titled "In transit detection of
computer virus with safeguard". Symantec provides Internet
security products, including anti virus protection products.
Hilgraeve filed a complaint in U.S.
District Court (EDMich) against Symantec alleging that its
PCAnywhere and Norton Anti Virus products infringe its '776
patent.
This patent describes a program that scans for computer
viruses. It scans a body of data during its transfer, and
before storage of the data with potential viruses on the
destination storage medium. If the program detects signs of a
virus during the scan, and the program automatically blocks
storage. Hilgraeve argued that Symantec's products screen
incoming digital data for viruses during transfer and before
"storage" on the destination storage medium.
Symantec argued its products do not infringe because they
screen the incoming digital data only after it has been
transferred and "stored" on the destination storage
medium.
The District Court granted Hilgraeve's motion for summary
judgment that Symantec did not have a license to the '776
patent. The District Court granted Symantec's motion for
summary judgment of non-infringement. Hilgraeve appealed; and
Symantec cross appealed. The U.S.
Court of Appeals (FedCir) issued its opinion on September
17, 2001. It vacated the grant of summary judgment of
non-infringement, and generally affirmed the grant of summary
judgment that Symantec did not license the patent. The Supreme
Court denied Symantec's petition for writ of certiorari
without opinion. |
|
|
| Petition for Rehearing
Filed in Kelly v. Arriba Soft |
3/1. Ditto.com (formerly
known as Arriba Soft) filed a petition for rehearing and/or
rehearing en banc with the U.S. Court of Appeals
(9thCir) in Kelly
v. Arriba Soft, a case involving the fair use
exception to copyright infringement in the context of online
digital images, hyperlinking and search engines. On February
6, a unanimous three judge panel issued its opinion
[PDF] holding that Arriba Soft's display of images constituted
copyright infringement.
Background. Leslie Kelly is a professional photographer
who has copyrighted and published images of the American west.
Arriba Soft, which is now known as Ditto.com, operates an
Internet search engine for images. It placed in its web site
reduced size copies of images, or thumbnails. This search
engine produced thumbnail images, rather than text, in
response to queries. Arriba placed thumbnail copies of Kelly's
images in its web site, without permission from Kelly. It also
used hyperlinks to files on the servers of others to display
the full sized pictures.
Arriba operated by using a crawler that copied images from
other web sites, including those of Kelly and third parties
which published Kelly's pictures under license. Arriba then
used these copies to generate reduced size, lower resolution,
thumbnail pictures, which it kept in its database. Arriba then
deleted the original, full size, images. When someone used
Arriba's search engine to search for images on the Internet,
Arriba served web pages that included thumbnails, which
resided on its servers. Then, if the user clicked on the
thumbnail image, a second page was served, which displayed the
full sized image, drawn from the server of the originating web
site, along with, among other things, advertisements purchased
from Arriba. A hyperlink to the originating web site was also
displayed.
District Court. Kelly filed a complaint in U.S.
District Court (CDCal) against Arriba alleging copyright
infringement. Arriba asserted that its actions constituted
fair use within the meaning of 17 U.S.C.
§ 107. The District Court held that that Kelly had
established a prima facie case of copyright infringement based
on Arriba's unauthorized reproduction and display of Kelly's
works, but that this reproduction and display constituted a
non-infringing fair use. See, opinion
at 77 F. Supp.2d 1116 (C.D. Cal. 1999).
Appeals Court. The three judge panel of the Ninth
Circuit reasoned that "two distinct actions by Arriba ...
warrant analysis. The first action consists of the
reproduction of Kelly's images to create the thumbnails and
the use of those thumbnails in Arriba's search engine. The
second action involves the display of Kelly's images through
the inline linking and framing processes when the user clicks
on the thumbnails." The Appeals Court applied the four
prong analysis of Section 107 for each action.
The Appeals Court concluded: "We hold that Arriba's
reproduction of Kelly's images for use as thumbnails in
Arriba's search engine is a fair use under the Copyright Act.
We also hold that Arriba's display of Kelly's full sized
images is not a fair use and thus violates Kelly's exclusive
right to publicly display his copyrighted works. The district
court's opinion is affirmed as to the thumbnails and reversed
as to the display of the full sized images. We remand with
instructions to determine damages for the copyright
infringement and the necessity for an injunction."
The law firm of Perkins
Coie represents Arriba Soft. See, Perkins
Coie release. The law firm of Arnold &
Porter represents Kelly. |
|
|
| People and Appointments |
3/4. President Bush nominated James Comey to be U.S.
Attorney for the Southern District of New York. See, WH
release.
3/4. President Bush nominated Michael Toner to be a
member of the Federal Election
Commission (FEC) for a term expiring April 30, 2007. He
replaces Darryl Wold, whose term expired. See, WH
release.
3/4. The Federal Bureau of
Investigation (FBI) announced several new appointments. Roderick
Beverly will be Special Agent in Charge of International
Operations. Leah Meisel will be Personnel Officer and
Deputy Assistant Director for Personnel, Administrative
Services Division. James Bernazzanni will be Deputy
Chief, Counterterrorist Center, Central Intelligence Agency. Robert
Cromwell will be Chief of the Applicant Processing
Section, Administrative Services Division. Mary Ann Woodson
will be Budget Officer and Chief of the Budget Section,
Finance Division. See FBI
release.
2/27. David Marchick joined the law firm of Covington & Burling as a
Special Counsel in the firm's Washington DC office. He will
focus on international trade and transportation issues. He
previously worked at Bid4Assets. Before that, he worked in
several positions in the Clinton administration. He was Deputy
Assistant Secretary for Trade Policy at the State Department,
and Principal Deputy Assistant Secretary of Commerce for Trade
Development. He also held international trade policy positions
at the White House and the Office of the U.S. Trade
Representative (USTR). See, CB
release.
2/28. Edward Reilly joined the New York office of the
law firm of Morgan Lewis
as a partner in its Business and Finance Practice. He will
focus on advising private equity and venture capital fund
investors and emerging growth companies. He was previously a
partner at the law firm Brobeck
Phleger & Harrison in New York. Before that, he was a
partner at LeBoeuf Lamb Greene
& MacRae. See, ML release. |
|
|
|
| District Court Rules in
Cybersquatting Dispute |
2/22. The U.S.
District Court (EDVa) issued an order and
memordum opinion [PDF] in Barcelona.com v.
Excelentisimo Ayuntamiento de Barcelona, a domain name
dispute involving the Anticybersquatting Consumer Protection
Act (ACPA).
Background. In 1996 Joan Nogueras Coba registered the
domain name barcelona.com in the name of his wife, Concepcio
Riera Llena, with the domain name registrar, Network
Solutions. In 1999, the Nogueras couple incorporated
barcelona.com Inc., under the laws of Delaware, and
transferred the domain name to their corporation. It listed an
address in New York City. Neither party has a U.S. or Spanish
trademark for the name Barcelona. However, the City of
Barcelona holds multiple Spanish trademarks for phrases that
include the name Barcelona. Plaintiff attempted to sell the
domain name to the City.
Dispute Resolution Panel. In 2000, the defendant, the
City Council of Barcelona, filed a complaint with the World Intellectual Property
Organization (WIPO), under the Uniform Dispute Resolution
Policy (UDRP), contesting plaintiff's registration of the
domain name. A WIPO panel ruled in favor of the City, and
ordered transfer of the domain name to the City, on the
grounds that the City owned a trademark upon which the domain
name infringed.
District Court Complaint. Plaintiff then filed a
complaint in U.S. District Court (EDVa) against the City of
Barcelona seeking a declaratory judgment that the registration
of the domain name was not unlawful. The City filed a
counterclaim under the ACPA.
Holding. The District Court first addressed plaintiff's
claim. It held that the domain name barcelona.com is
confusingly similar to trademarks held by the City of
Barcelona. The Court further found that the circumstances
surrounding the incorporation of barcelona.com, and the
attempt to sell the domain name, "evidence a bad faith
intent to profit from the registration". The Court thus
concluded that plaintiff's use of the trademark was not
"not unlawful". Hence, the District Court found that
"the Plaintiff's request for a declaratory judgment
ruling that the registration of the domain name barcelona.com
was not unlawful should be denied."
The Court next turned to Barcelona's counterclaim under the
ACPA. It first addressed whether the ACPA applies to foreign
trademarks. It held that it does. It wrote that "It is
untenable to suppose that the Congress, aware of the fact that
the Internet is so international in nature, only intended for
U.S. trademarks to be protected under the Anticybersquatting
statute." Second, the Court addressed whether plaintiff's
actions constituted a bad faith intent to profit from the
registration of the trademark. It applied the nine factors set
out in 15
U.S.C. §§ 1125(2)(d)(1)(B). It found bad faith. Finally,
the Court found that the registered domain name is confusingly
similar to the City's trademark. Hence, the Court found for
the City of Barcelona on its counterclaim under the ACPA.
This is Civil Action 00-1412-A. The City of Barcelona is
represented by the law firm of Oblon
Spivak. See also, Oblon
release. |
|
|
| Rep. Goodlatte Addresses
Trip to Russia and EU |
2/28. Rep. Bob
Goodlatte (R-VA) discussed the Congressional delegation
trip to Russia and Europe last month to promote the Internet,
intellectual property rights, and e-commerce. See, transcript
of media roundtable.
The delegation met with members of the Russian Duma, Czech
Parliament, German Bundestag, and European Parliament. The
delegation, which traveled over the Presidents' Day recess,
was made up of Reps. Goodlatte, Rick Boucher (D-VA), Lamar
Smith (R-TX), John LaFalce (D-NY), Charles Taylor (R-NC), and
James Walsh (R-NY).
Rep. Goodlatte stated that the delegation urged Russia not to
mandate encryption restraints, including mandatory key escrow
or a key recovery system. The group also urged Russia to
enforce intellectual property rights. The Congressmen
discussed broadband deployment, privacy, safe harbor
provisions, unsolicited e-mail, and other issues with the
Europeans.
Encryption in Russia. Rep. Goodlatte stated that
"One of the issues we encountered is something that we
faced here about four or five years ago, and that is the
government's effort to control communications on the Internet,
to have a back door key into people's computer programs and
their communications." He said that "Even after
September 11, with the PATRIOT
Act, the administration did not put forward a proposal for
key escrow or key recovery. That may in part be do to the fact
that Attorney
General Ashcroft was the leading proponent of the legislation
in the Senate that I was promoting in
the House, which garnered a tremendous amount of support
here and wound up resulting in the administration doing an
almost 180 degree reversal of their position on their issue of
government control of encryption. They basically backed away
from it and allowed U.S. companies to get into the
international marketplace, sell their strongly encrypted
products in other countries around the world, because other
countries' products were being sold in the United
States."
"Now we show up in Moscow and find companies like Oracle and Microsoft confronting
exactly the same problem there -- a government intending to
move forward on a key escrow or key recovery type of
system," said Rep. Goodlatte. "And, so we hope we
made some progress in suggesting to them that this type of
system would not work, that it would have an effect of
hindering people's ability to use the Internet securely,
willingness to use the Internet, willingness of foreign
companies to do business in Russia, and that would hinder the
overall growth of the Internet in Russia, which is starting to
grow."
IPR in Russia. Rep. Goodlatte said that the delegation
also talked to Russian officials about piracy of intellectual
property. He stated that pirate copies Microsoft's Windows XP
sells on the streets of Moscow for $2.80.
"In Russia, it seems to be a problem with corruption to
which the government seems to turn its head. Sometimes it
doesn't take steps. I know that Microsoft, for example, had an
office in Russia. It closed the office about a year ago
because of their frustration in terms of attempting to combat
this."
Goodlatte stated that "we raised these issues with them,
from the standpoint not only of it being a concern of the U.S.
companies, but really, another hindrance to the ability of
Russia to grow their economy in the direction that I presume
they want to grow it. They certainly expressed a lot of
interest in information technology and growing the Internet
and so on. But, the point that we made to them was that,
unless you protect intellectual property, people will not
create intellectual property in Russia."
He added that "they also have some companies in their
infancy creating computer software, programming, and other
types of things. But they don't have a tradition of protecting
intellectual property. These companies will never get off the
ground because their products will be ripped off by their own
citizenry. And, I think that concept was well received."
EU and Privacy. Rep. Goodlatte stated that "We
basically agreed to continue to work on the safe harbor
provisions, because we are nowhere near seeing the United
States go for opt in, and I don't see them coming around and
changing what they have already put in place." He also
pointed out that "Ironically, U.S. companies that operate
on the opt out basis have better privacy disclosure rules --
studies have consistently shown this -- than the European
companies that are supposedly under these very strict
directives."
Goodlatte concluded: "Basically, in one sentence, we
don't want to take the information out of the information age.
If you can't understand who your customer is, and then provide
them with information that is useful to them, in ways that the
Internet and computers are far more capable of doing than
direct mail or television or telephone calls, or all of the
other intrusive ways that people have calling you up and
offering you information."
3G Wireless. Rep. Goodlatte also addressed Third
Generation wireless services, which are intended to bring
broadband Internet access to portable devices. He said that
the Europeans "actually got a jump on us by rolling out
3G technology sooner than we did. But, because the government
took a leading role in picking the technology that was going
to work, they are now finding that it is not the best
technology. And the U.S., which is behind, because we don't
have access to as much spectrum, seems to be developing better
technology."
Goodlatte added that "the problem that we have with roll
out on that is government. Government, particularly, in this
case, the Defense Department and other governmental sectors,
they control big chunks of wireless spectrum. ... The
Europeans had more spectrum available because they had less
defense and security uses and needs for it. But, because
government is a little bit too much dictating how they use it,
they got a lead, but may be frittering the advantage away.
And, we may catch up with them, if we can free up that
spectrum, to apply this better technology." |
|
|
|
| Tuesday, March 5 |
The House will meet at 12:30 PM for morning hour and 2:00 PM
for legislative business. No votes are expected before 6:00
PM. The House will consider a number of bills under suspension
of the rules.
9:00 AM - 5:00 PM. The National
Institute of Standards and Technology's (NIST) Computer System Security
And Privacy Advisory Board (CSSPAB) will meet to discuss
computer security legislation, privacy issues, critical
infrastructure protection, the USPS's electronic postmark
products, and other matters. The CSSPAB advises the Secretary
of Commerce and the Director of NIST on security and privacy
issues pertaining to federal computer systems. This is the
first day of a three day meeting. See, notice
in Federal Register. Location: General Services
Administration, 7th and D Streets, SW, Room 5700.
10:00 AM. The Senate
Appropriations Subcommittee's Subcommittee on Commerce,
Justice, State, and the Judiciary will hold a hearing
regarding the Department of
Justice (DOJ) budget request
for Fiscal Year 2003. Location: Room 138, Dirksen
Building.
10:00 AM. The U.S.
Court of Appeals (FedCir) will hear oral argument in Marketel
International v. Priceline.com, No. 01-1279, an appeal
from the U.S. District
Court (NDCal). Marketel filed a complaint against
Priceline alleging misappropriation of trade secrets,
misappropriation of business model, conversion, false
advertising, and entitlement to a correction of inventorship
of Priceline's U.S.
Patent No. 5,794,207. Marketel appeals the District
Court's dismissal of some of its claims. Location: Courtroom
203, LaFayette Square, 717 Madison Place, NW.
10:30 AM - 4:30 PM. The President's Council of Advisors on
Science and Technology will hold a meeting to discuss the
science and technology of combating terrorism, federal
spending on science and technology research and development,
demand issues related to deployment of broadband
infrastructure, and other topics. See, notice
in Federal Register. Location: Board Room, American Institute
of Architects, 1735 New York Ave., NW.
6:00 - 8:15 PM. The FCBA will
host a CLE seminar titled "U.S. Spectrum Policy:
Convergence or Co-Existence?" This is Part I of a two
part series. Part II will be on April 16. See, program agenda. |
|
|
| Wednesday, March 6 |
The House will meet at 10:00 AM for legislative business. It
is scheduled to take up the Federal Information Technology
Workforce and Acquisition Improvement Act.
9:00 AM - 5:00 PM. The National
Institute of Standards and Technology's (NIST) Computer System Security
And Privacy Advisory Board (CSSPAB) will meet. This is the
second day of a three day meeting. See, notice
in Federal Register. Location: GSA, 7th and D Streets, SW,
Room 5700.
10:00 AM. The U.S.
Court of Appeals (FedCir) will hear oral argument in NeoMagic
v. Trident MicroSystems, No. 01-1631, an appeal from the
U.S. District Court (DDel) in a patent infringement and
antitrust case involving embedded memory semiconductors. The
District Court granted summary judgment of non infringement to
Trident
MicroSystems. Location: Courtroom 201, LaFayette Square,
717 Madison Place, NW.
10:00 AM - 4:00 PM. The SEC will hold
a roundtable meeting to examine proposals for better
protecting investors by reforming financial disclosure and
auditor oversight. The morning session (10:00 AM - 12:00 NOON)
will focus on financial disclosure. The afternoon session
(2:00 - 4:00 PM) will focus on auditor oversight. See, SEC notice.
Location: Douglas Room, Basement, SEC.
10:00 AM. The House
Appropriations Committee's Subcommittee on Commerce,
Justice, State, and the Judiciary will hold a hearing on the
proposed budget for FY 2003 for the State Department.
Location: Room 2359, Rayburn Building.
10:30 AM. The House
Judiciary Committee will meet to mark up several bills,
including HR
2314, the "Class Action Fairness Act of 2001",
sponsored by Rep.
Bob Goodlatte (R-VA). Location: Room 2141, Rayburn
Building.
10:30 AM. The Senate
Judiciary Committee's Subcommittee on Antitrust,
Competition, and Business and Consumer Rights will hold a
hearing titled "Dominance in the Sky: Cable Competition
and the Echostar Direct TV Merger". Sen. Herb Kohl (D-WI) will
preside. The scheduled witnesses include Charlie Ergen (CEO of
Echostar), Eddy Hartenstein (CEO of DirecTV), Gene Kimmelman
(Consumers Union), Robert Pitofsky (Arnold & Porter), and
Jay Nixon (Attorney General of Missouri). Location: Room 226,
Dirksen Building.
TIME? Ron Sommer, Chairman of the Board of Management of
Deutsche Telekom, will deliver a Chamber of Commerce luncheon
address titled "The Transformation Into a Global Company:
Meeting Market and Regulatory Challenges". The price to
attend is $75 for members and $115 for non members. For more
information, contact Chris Merida at 202 463-5500. Location:
1615 H Street, NW.
12:15 PM. The FCBA's
Online Committee will host a brown bag lunch. The speaker will
be Anthony Rutkowki, VP Internet Strategy, Verisign. He will address
"Broadband, When? -- Verisign's' View." RSVP to
Scott Harris at sharris
@harriswiltshire.com. Location: Lampert & O'Connor,
5th Floor, 1750 K Street, NW.
2:00 PM. The House
Commerce Committee's Subcommittee on Telecommunications
and the Internet will mark up HR 3833, the Dot Kids
Implementation and Efficiency Act of 2002. Rep. Fred Upton (R-MI)
will preside. Location: Room 2322, Rayburn Building.
2:00 PM. The House
Appropriations Committee's Subcommittee on Commerce,
Justice, State, and the Judiciary will hold a hearing on the
proposed budget for FY 2003 for the FBI. Location: Room 2359,
Rayburn Building.
2:30 PM. The Senate
Commerce Committee's Subcommittee on Communications will
hold a hearing on wireless communications infrastructure.
The witnesses will be Agostino Cangemi (NYC Dept. of Info.
Tech. and Telecom.), Steve Souder (Montgomery County, Maryland
911 Emergency Communications Center), Ari Wax (NYC Deputy
Commissioner of Technological Development), Glen Nash (Assoc.
of Public Safety Communications Officials), Paul Crotty (Verizon),
Gloria Harris (AT&T Wireless), Larissa Herda (Time Warner
Telecom), and Christopher McLean (ComCare Alliance). Sen. Daniel Inouye (D-HI)
will preside. Location: Room 253, Russell Building. |
|
|
| Thursday, March 7 |
9:00 AM - 5:00 PM. The National
Institute of Standards and Technology's (NIST) Computer System Security
And Privacy Advisory Board (CSSPAB) will meet. This is the
third day of a three day meeting. See, notice
in Federal Register. Location: GSA, 7th and D Streets, SW,
Room 5700.
9:30 AM. The U.S.
Court of Appeals (DCCir) will hear oral argument in USTA
v. FCC. Judges Edwards, Randolph and Williams will
preside. Location: 333 Constitution Ave., NW.
10:00 AM. The Senate
Appropriations Subcommittee's Subcommittee on Commerce,
Justice, State, and the Judiciary (CJS) will hold a hearing on
the administration's proposed budget estimates for FY 2003 for
the SEC and the FCC. SEC
Chairman Harvey
Pitt and FCC Chairman Michael Powell
will testify. See, CJS
release. Location: Room 253, Russell Building.
10:00 AM. The Senate
Banking Committee will hold a hearing. Federal Reserve
Chairman Alan Greenspan will deliver his semi annual
report on monetary policy. Location: Room 106, Dirksen
Building.
10:00 AM. The Senate
Judiciary Committee has scheduled a business meeting.
Location: Room 226, Dirksen Building. |
|
|
| Friday, March 8 |
12:15 PM. The FCBA's
Transactional Practice Committee will host a brown bag lunch
on mass media transactions. RSVP to Sue Fischer at 202
776-2491. Location: Dow
Lohnes & Albertson, 1200 New Hampshire Ave.
Extended deadline for submitting comments to the FCC in response
to its Further Notice of Proposed Rulemaking regarding the
current state of the market for local and advanced
telecommunications services in multi tenant environments. See,
FCC
notice of extension of deadline [PDF]. This is WT Docket
No. 99-217. |
|
|
| Monday, March 11 |
8:30 - 10:00 AM. The American
Enterprise Institute (AEI) will host a press breakfast on
the topic "Taxing Broadband". Harold Furchtgott-Roth
and other AEI scholars will speak. RSVP to Veronique Rodman at
(202) 862-4871 or vrodman@aei.org.
Location: AEI, 1150 17th Street, NW, 11th Floor Conference
Room.
8:30 AM - 12:00 NOON. The ITAA
and the CSIS
will co-host a conference titled "Managing Identity and
Authentication on the Internet". For more information,
contact Shannon Kellogg at skellogg
@itaa.org. See, ITAA
notice. Location: CSIS, B1 Conference Center, 1800 K
Street, NW.
Deadline to submit comments to the Copyright Office in
response to its Notice of Proposed Rulemaking on "the
requirements for giving copyright owners reasonable notice of
the use of their works for sound recordings under statutory
license and for how records of such use shall be kept and made
available to copyright owners." See, notice
in Federal Register. |
|
|
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