| District Court Holds Part
of Children's Internet Protection Act Unconstitutional |
5/31. A three judge panel of the U.S.
District Court (EDPenn) issued its opinion
in American Library Association v. U.S., finding
unconstitutional library related provisions of the Children's Internet
Protection Act (CIPA). The Act requires, among other
things, that schools and libraries receiving e-rate subsidies
certify that they are using a "technology protection
measure" that prevents library users from accessing
"visual depictions" that are "obscene,"
"child pormography," and in the case of minors,
"harmful to minors." The Court, applying strict
scrutiny First Amendment free speech analysis, held that the
portion of the statute affecting libraries receiving e-rate
subsidies is unconstitutional. However, the CIPA, as it
applies to schools, remains unaffected by this opinion. The
Court also held unconstitutional language in the CIPA amending
the Museum and Library Services Act. The Court issued its
findings of fact, legal analysis, and order in one lengthy
release.
E-Rate. The e-rate is an two and a half billion dollar
per year program controlled by the Federal Communications Commission
(FCC) under its universal service mandate. See, 47 U.S.C. §
254, and the FCC's schools
and libraries web page. As implemented by the FCC, the
e-rate program provides subsidies to schools, libraries and
rural health clinics for telecommunications services, Internet
access, and internal connections. The CIPA was passed by the
Congress as a result of efforts by Sen. John McCain (R-AZ), Sen. Ernest Hollings
(D-SC), and others. It conditions receipt of e-rate subsidies
on efforts to restrict access to Internet porm.
Relevant Provisions of the Statute. Section 1721 of the
CIPA pertains to the e-rate program. Section 1721(b) provides
that "a library having one or more computers with
Internet access may not receive services at discount rates
under paragraph (1)(B) unless the library --- (I) submits to
the Commission the certifications described in subparagraphs
(B) and (C); and (II) submits to the Commission a
certification that an Internet safety policy has been adopted
and implemented for the library under subsection (l); and
(III) ensures the use of such computers in accordance with the
certifications." Subsection B, in turn, addresses the
"Certification With Respect to Minors". The library
must certify that it "is enforcing a policy of Internet
safety that includes the operation of a technology protection
measure with respect to any of its computers with Internet
access that protects against access through such computers to
visual depictions that are --- (I) obscene; (II) child
pornography; or (III) harmful to minors". The library
must also certify that it "is enforcing the operation of
such technology protection measure during any use of such
computers by minors." Subsection C, in turn, addresses
"Certification With Respect to Adults". It parallels
Subsection B. However, it omits the reference to materials
that are harmful to minors. Section 1712 of the CIPA pertains
to the Museum and Library Services Act.
Analysis of the Court. The Court found as fact that
"thousands of Web pages containing protected speech are
wrongly blocked by the four leading filtering programs, and
these pages represent only a fraction of Web pages wrongly
blocked by the programs." The Court concluded that the
strict scrutiny test applies. That is, "a public
library's use of filtering software is permissible only if it
is narrowly tailored to further a compelling government
interest and no less restrictive alternative would serve that
interest." Applying this test, the Court concluded that
"Because the filtering software mandated by CIPA will
block access to substantial amounts of constitutionally
protected speech whose suppression serves no legitimate
government interest, we are persuaded that a public library's
use of software filters is not narrowly tailored to further
any of these interests."
The Court held that "the library plaintiffs must prevail
in their contention that CIPA requires them to violate the
First Amendment rights of their patrons, and accordingly is
facially invalid ... In view of the limitations inherent in
the filtering technology mandated by CIPA, any public library
that adheres to CIPA's conditions will necessarily restrict
patrons' access to a substantial amount of protected speech,
in violation of the First Amendment. Given this conclusion, we
need not reach plaintiffs' arguments that CIPA effects a prior
restraint on speech and is unconstitutionally vague. Nor do we
decide their cognate unconstitutional conditions theory
..."
Order of the Court. The Court also issued an order
which states that "(1) judgment is entered in favor of
the plaintiffs and against the defendants, declaring that
§§ 1712(a)(2) and 1721(b) of the Children's Internet
Protection Act, 20 U.S.C. § 9134(f) and 47 U.S.C.
§ 254(h)(6), are facially invalid under the First
Amendment to the United States Constitution; and (2) the
United States, Michael Powell, in his official capacity as
Chairman of the Federal Communications Commission, the Federal
Communications Commission, Beverly Sheppard, in her official
capacity as Acting Director of the Institute of Museum and
Library Services, and the Institute of Museum and Library
Services are permanently enjoined from withholding federal
funds from any public library for failure to comply with
§§ 1712(a)(2) and 1721(b) of the Children's Internet
Protection Act, 20 U.S.C. § 9134(f) and 47 U.S.C.
§ 254(h)(6)."
Direct Appeal to the Supreme Court. As required by the
CIPA, at Section 1741, the case was heard on an expedited
basis by a three judge panel of the U.S. District Court.
Plaintiffs filed a complaint in the U.S. District Court for
the Eastern District of Pennsylvania, a venue disposed to
finding Congressional statutes unconstitutional on First
Amendment grounds. Judges Becker, Fullam and Bartle presided.
Judge Becker wrote the opinion. The CIPA further provides that
a holding by the three judge panel that any part of the CIPA
is unconstitutional "shall be reviewable as a matter of
right by direct appeal to the Supreme Court".
Reaction. The American Civil Liberties Union praised
the opinion in a release.
The Family Research Council
(FRC) lamented the opinion in a release.
The Information Technology
Association of America (ITAA) President Harris Miller
stated in a release
that "The court's decision voids the proscriptive
approaches that would have placed the Federal government
squarely in the role of determining Internet content
management for libraries ... Many organizations, including
schools and libraries, have already voluntarily deployed
software filtering tools to block out objectionable content
and to improve productivity. We continue to believe that
burdensome regulations from Washington, D.C. are not needed by
software filter buyers or sellers, and this decision advances
that belief." |
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| More Court Opinions |
5/29. The U.S.
Court of Appeals (FedCir) issued its opinion in Berman
v. Housey, affirming the U.S. Patent and
Trademark Office Board of Patent Appeals and Interferences
judgment in favor of Housey, and dismissing Berman's
unpatentability motion as moot.
5/31. The U.S.
Court of Appeals (9thCir) issued its opinion
[PDF] in United Computer
Systems v. AT&T, a case involving an
arbitration clause in a software licensing agreement. The
Appeals Court affirmed in part, reversed in part, and remanded
to the District Court with instructions to compel arbitration.
5/31. The U.S.
Court of Appeals (4thCir) issued its opinion
in Baltimore
Gas & Electric v. U.S., dismissing for lack
of jurisdiction an appeal from a District Court opinion
regarding a state public utilities commission's regulatory
authority over contracts awarded by the U.S. Army. The Maryland Public Service
Commission (MPSC), an intervenor in this action,
challenged the U.S. Army's solicitation of bids for the right
to purchase and operate the electricity and natural gas
distribution systems at Fort Meade, Maryland, without
providing in its solicitation that any successful bidder would
be required to submit to the MPSC's regulatory authority. The U.S. District Court (DMd)
held that such a provision is not required. The MPSC appealed.
The Court of Appeals dismissed the appeal on the grounds that
the MPSC lacks standing because it is not an interested party
under the statute that governs bid protest actions, 28
U.S.C. § 1491. |
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| Internet Crime |
5/31. The U.S.
District Court (DC) sentenced Yaroslav Suris to two months
incarceration for one felony count of criminal copyright
infringement in violation of 17
U.S.C. § 506(a)(1) and 18
U.S.C. § 2319(b)(1). Suris made duplicate copies of
software, and then sold them over the Internet at prices far
below retail prices. The infringed software included Adobe's
Acrobat 4.0, Page Mill, and Photoshop, Corel's Draw 9, and
Macromedia's Flash 9, Freehand 8.0, and Autocad 2000. In
addition to the two month in jail, Judge Thomas Jackson
sentenced Suris to an additional 14 months of home detention
-- which is where he duplicated the software. See, CCIPS
release and SIIA
release.
5/29. The U.S. District Court
(WDOkla) sentenced Ricky Joe Nelson to two concurrent 51
month prison terms for conspiracy to distribute controlled
drugs through giving prescriptions over the Internet to
patients he had never examined, and conspiracy to launder the
proceeds. See, CCIPS
release.
5/28. A trial jury of the U.S. District Court
(WDWash) returned a guilty verdict against Michael Prime
on one count of conspiracy to commit wire fraud, one count of
conspiracy to make, possess and utter counterfeit securities
and three counts of making, possessing and uttering
counterfeit securities. Prime operated three fraudulent
schemes on eBay. First, he auctions items, such as lap top
computers, which he did not have. Second, he sold pirated
software that he falsely claimed was authentic. Third, he
purchased items in auctions that he paid for with counterfeit
money orders created with computers, scanners, and printers.
See, USAO release. |
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| EPA Proposes Rule Change
Affecting Computer Monitors |
5/31. The Environmental
Protection Agency (EPA) announced that it is proposing
changes to its rules regarding computer monitors and
televisions that contain lead. On May 29, the EPA issued a release
and a draft
of a notice [101 pages in PDF] to be published in the
Federal Register.
The EPA draft notice states that "Many used cathode ray
tubes (CRTs) and items of mercury-containing equipment are
currently classified as characteristic hazardous wastes under
the Resource Conservation and Recovery Act (RCRA). They are
therefore subject to the hazardous waste regulations of RCRA
Subtitle C unless they come from a household or a
conditionally exempt small quantity generator. Today, the
Environmental Protection Agency (EPA) proposes and seeks
comment on an exclusion from the definition of solid waste
which would streamline RCRA management requirements for used
cathode ray tubes (CRTs) and glass removed from CRTs sent for
recycling. In today's notice, the Agency also clarifies the
status of used CRTs sent for reuse. In addition, EPA proposes
and seeks comment on streamlining management requirements for
used mercury containing equipment by adding it to the federal
list of universal wastes."
The EPA release states that "A typical computer monitor
may contain up to eight pounds of lead. EPA estimates that
over 250 million computers in this country will be retired
from use over the next five years. The EPA proposal would
encourage more reuse and recycling of these computers."
As of Friday, May 31, the EPA had not yet published a notice
of this proposed rule in the Federal Register. Public comments
on the proposed rule will be due 60 days after publication in
the Federal Register.
The Electronics Industry
Association (EIA) commended the EPA action. It stated in a
release
dated May 31 that "This proposed rule is a key step in
the right direction. By removing used electronics containing
CRTs and mercury lamps from certain hazardous waste
regulations when they are recycled, the EPA is providing a
strong economic incentive that will promote the development of
more collection and recycling opportunities for used
electronics within the United States."
The EIA added that "Under the proposed rule, facilities
that collect and transport used electronics will benefit from
reduced transportation costs and reduced permitting
requirements -- both of which will reduce overall recycling
costs, providing economic incentives for the collection and
siting of recycling facilities. The net benefit is that
consumers will have more opportunities to recycle used
electronics." |
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| Economists File Amicus
Brief in Opposition to CTEA |
5/20. A group of free market economists filed an amicus
curiae brief [PDF] with the Supreme Court in Eldred
v. Ashcroft, a constitutional challenge to the Copyright
Term Extension Act of 1998 (CTEA). The 105th Congress
passed the CTEA to extend the maximum duration of both new and
existing copyrights from 75 to 95 years.
Case Background. The late Rep. Sonny Bono (R-CA)
sponsored the House version of the bill in 1997. Hence, the
statute is also known by his name. (See, P.L. 105-298, 112
Stat. 2827. It amends 17
U.S.C. § 304(b).) On January 11, 1999 the plaintiffs
filed their original complaint
in the U.S. District Court (DC). (See also, TLJ
story.) On June 28, 1999, the plaintiffs filed their Second
Amended Complaint. Plaintiffs allege, among other claims,
that the CTEA violates the First Amendment and the copyright
clause of the Constitution. On October 27, 1999, the District
Court ruled that the CTEA does not violate the Constitution.
See, Memorandum
of the Court. (See also, TLJ
story.) On February 16, 2001, the The U.S.
Court of Appeals (DCCir) issued its opinion
affirming the District Court. On July 13, 2002, the Court of
Appeals issued an order
and opinion denying plaintiffs' petition for a rehearing
en banc. The Supreme Court granted certiorari on February 19,
2002. Its review is limited to the constitutionality of the
CTEA.
Constitution, Art. I, Sec. 8. The Constitution
provides, in relevant part, that "Congress shall have the
Power... To regulate Commerce ... To promote the Progress of
Science and useful Arts, by securing for limited Times to
Authors and Inventors the exclusive Right to their respective
Writings and Discoveries ... To make all Laws which are
necessary and proper for carrying into Execution the foregoing
Powers ..."
Argument of Amici. The brief provides an economic
analysis of the twenty year copyright term extension for
existing and future works. It argues that "The longer
term for new works provides some increase in
anticipated compensation for an author. Because the additional
compensation occurs many decades in the future, its present
value is small, very likely an improvement of less than 1%
compared to the pre-CTEA term. This compensation offers at
most a very small additional incentive for an economically
minded author of a new work. The term extension for existing
works makes no significant contribution to an author's
economic incentive to create, since in this case the
additional compensation was granted after the relevant
investment had already been made."
Amici conclude that "Taken as a whole, it is highly
unlikely that the economic benefits from copyright extension
under the CTEA outweigh the additional costs. Moreover, in the
case of term extension for existing works, the sizable
increase in cost is not balanced to any significant degree by
an improvement in incentives for creating new works.
Considering the criterion of consumer welfare instead of
efficiency leads to the same conclusion, with the alteration
that the CTEA’s large transfer of resources from consumers
to copyright holders is an additional factor that reduces
consumer welfare."
Amici include Milton Friedman, Ronald Coase, Kenneth Arrow,
and 14 other economists. See also, TLJ
Summary of Eldred v. Ashcroft.
Amicus Brief of Writers and Tech Groups. On May 23 a
collection of writers' groups and technology groups also filed
an amicus
curiae brief [PDF] with the Supreme Court. Their brief
argues that "The Framers of the Constitution understood
that the creation of new works and subsequent public access to
those works were vital to society; thus, they limited the
copyright monopoly's duration to assure the development of a
healthy public domain." The 38 page brief does not,
however, cite any of the delegates to the Constitutional
convention, any member of any state legislature that ratified
the Constitution, or any sources contemporaneous to the
drafting or ratification of the Constitution.
The brief concludes that the "Congress failed the
American people by not performing its constitutional duty to
balance the speculative and questionable benefits of copyright
term extension against the certain harms to the public domain.
This failure is reflected in the lack of any rationale for the
legislation that is supported by a legitimate constitutional
purpose. ... This Court must ensure that Congress, in
exercising power over copyrights, fulfills its constitutional
duty to consider with great care the effect of copyright
protection on the progress of ``Science and the useful Arts.´´
Protections that do not promote this progress should be struck
down."
Amici include the National Writer's Union, Consumer
Electronics Association, and Computer and Communications
Industry Association.
The CTEA is supported by holders of entertainment industry
copyrights, and their trade associations, such as the Association of American
Publishers, Motion Picture
Association of America (MPAA), National Music Publishers'
Association (NMPA), and Recording
Industry Association of America (RIAA). |
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| More News |
5/31. The Copyright
Office published a notice
in the Federal Register regarding a final rule changing fees
charged by the Copyright Office. See, Federal Register, May
31, 2002, Vol. 67, No. 105, at Pages 38003 - 38006.
5/31. Qwest announced that
it retained KPMG as its independent auditor for 2002. Its
previous auditor was Arthur Andersen. See, Qwest
release. |
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| About Tech Law Journal |
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Contact: 202-364-8882; E-mail.
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Privacy
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Notices
& Disclaimers
Copyright 1998 - 2002 David Carney, dba Tech Law Journal. All
rights reserved. |
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| Monday, June 3 |
The House is in recess until Tuesday, June 4.
The Senate will meet at 1:00 PM for morning business. At 2:00
PM the Senate may begin consideration of the Supplemental
Appropriations Act.
The Supreme Court is in recess until June 4.
10:00 AM. The U.S.
Court of Appeals (FedCir) will hear oral argument in Rambus
v. infineon Technologies, No. 01-1449, an appeal from the
U.S. District Court (EDVa) in a patent infringement case
involving semiconductor memory devices. At issue is the
existence and scope of the patent disclosure obligations that
arise as a result of participation in a standard setting body.
This is D.C. No. 3:00CV524; the District Court opinion of
August 9, 2001 is at 2001 WL 913972. Location: LaFayette
Square, at 717 Madison Place, NW.
10:00 AM. USPTO Director James Rogan
will hold a press conference call to announce and discuss a
USPTO restructuring proposal. For more information, contact
Brigid Quinn at 703 305-8341or brigid.quinn @uspto.gov.
Reporters should call 1 800 857-4864, code 26864 by 9:55 AM to
participate. See, USPTO
release.
2:00 - 3:30 PM. The FTC's Bureau of
Competition will hold a public workshop on merger
investigation best practices. This is the first workshop of a
seven part, five city, series. This event will focus on
electronic records. See, FTC release.
Location: FTC, Room 332, 600 Pennsylvania Avenue NW.
EXTENDED TO JULY 1. Extended
deadline to submit reply comments to the FCC in response
to its Notice of Proposed Rulemaking (NPRM) titled "In
the Matter of Appropriate Framework for Broadband Access to
the Internet over Wireline Facilities". This is
CC Docket No. 02-33. See, May 29 notice
[PDF] extending deadline from June 3 to July 1. See also, Order
[PDF] extending deadline from May 14 to June 3, and original
notice in Federal Register. |
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| Tuesday, June 4 |
The House will meet at 2:00 PM for legislative business. No
recorded votes are expected before 6:00 PM. The House will
consider a number of measures under suspension of the rules.
POSTPONED TO JUNE 5. 10:00
AM. The House
Commerce Committee's Subcommittee on Telecommunications
and the Internet will hold a hearing titled "The FCC's
UWB Proceeding: An Examination of the Government's Spectrum
Management Process." Webcast. Press contact: Ken Johnson
or Jon Tripp at 202 225-5735.
10:00 AM. The Senate
Health, Education, Labor, and Pensions Committee will hold
a hearing on legislation to authorize funding for the National Science Foundation.
Location: Room 430, Dirksen Building.
10:00 AM. The U.S.
Court of Appeals (FedCir) will hear oral argument in Insight
Development v. Hewlitt Packard, No. 01-1459, an appeal
from the U.S. District Court
(NDCal) in a patent infringement case involving web
imaging technology. Location: LaFayette Square, at 717 Madison
Place, NW.
2:00 - 4:00 PM. The FCC's Advisory
Committee for the 2003 World Radiocommunication Conference (WRC-03 Advisory Committee)
will meet. See, notice
and agenda [PDF]. Location: FCC, Commission Meeting Room,
Room TW-C305, 445 12th Street, SW.
4:00 PM. The House
Judiciary Committee's Subcommittee on Crime will hold a
hearing and a mark up session for HR 4598,
the Homeland Security Information Sharing Act, sponsored by Rep. Saxby Chambliss
(R-GA). Audio webcast. Location: Room 2141, Rayburn Building. |
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| Wednesday, June 5 |
The House will meet at 10:00 AM for legislative business.
8:30 AM - 5:00 PM. Day one of a three day public workshop
hosted by the FTC on proposed
amendments to the Telemarketing Sales Rule (TSR), including
the potential development and implementation of a national do
not call list. See, FTC release
and agenda.
Location: Marriott Wardman Park Hotel, 2600 Woodley Road, NW.
9:30 AM. The National School
Boards Foundation will host a breakfast (9:00 AM) and
media briefing on it release of a national survey titled
"Are We There Yet? Research and Guidelines on Schools Use
of the Internet". For more information, contact Renee
Hockaday at 703 838-6717 or rhockaday @nsba.org.
Location: Corporation for Public Broadcasting, 2nd Floor, 401
9th St., NW.
10:00 AM. The House
Commerce Committee's Subcommittee on Telecommunications
and the Internet will hold a hearing titled "The FCC's
UWB Proceeding: An Examination of the Government's Spectrum
Management Process." Webcast. Press contact: Ken Johnson
or Jon Tripp at 202 225-5735. Location: Room 2123, Rayburn
Building.
12:15 PM. The FCBA's
Global Telecommunications Development Committee will host a
brown bag lunch. The topic will be "Caribbean Telecom --
Challenges in Bringing Competition to Monopoly Markets".
The speakers will be William Garrison (The Frank Hawkins Kenan
Institute of Private Enterprise), Judy Kilpatrick (NTIA), and
Joanna Lowry (Cable & Wireless). RSVP to Jonathan Cohen at
joncohen @wbklaw.com
or to LaVon Stevens at 202 628-9577. Location: Suite 700,
Wilkinson Barker Knauer, 2300 N St., NW (entrance at 24th and
N Streets).
2:00 PM. The House
Judiciary Committee's Subcommittee on Courts, the Internet
and Intellectual Property will hold a hearing titled
"DRM: The Consumer Benefits of Today's Digital Rights
Management Solutions." Audio webcast. Location: Room
2141, Rayburn Building.
EXTENDED TO JULY 17. Extended
deadline to submit reply comments to the FCC in response
to its notice of proposed rulemaking regarding its unbundling
analysis under § 251
of the Communications Act and the identification of specific
unbundling requirements for incumbent local exchange carriers.
See, May 29 order
[PDF] extending deadline from June 5 to July 17. See also, notice
in the Federal Register. This is CC Docket No. 01-338. |
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| Thursday, June 6 |
The House will meet at 10:00 AM for legislative business.
8:30 AM - 5:00 PM. Day two of a three day public workshop
hosted by the FTC on proposed
amendments to the Telemarketing Sales Rule (TSR), including
the potential development and implementation of a national do
not call list. See, FTC release
and agenda.
Location: Marriott Wardman Park Hotel, 2600 Woodley Road, NW.
10:00 AM. The House
Judiciary Committee will meet to mark up several bills,
including HR 3215,
the Combatting Illegal Gambling Reform and Modernization Act
(Goodlatte Internet gambling bill), and HR 4623,
the Child Obscenity and Pormography Prevention Act of 2002.
Audio Webcast. Press contact: Jeff Lungren or Terry Shawn at
202 225-2492. Location: Room 2141, Rayburn Building.
TIME? The Senate
Commerce Committee's Subcommittee on Communications will
hold a hearing titled Universal Service Fund. Press
contact: Andy Davis 224-6654. Location: Room 253, Russell
Building.
10:30 AM. The House
International Relations Committee's Subcommittee on
International Operations and Human Rights will hold a hearing
on titled "An Assessment of Cuba Broadcasting -- The
Voice of Freedom". Location: Room 2172, Rayburn Building.
8:00 AM - 5:00 PM. The Institute
for International Research (IIR) and ComCare will host a
conference titled e-SAFETY: Delivering Communications &
Information Technology Solutions for 21st Century Public
Safety. Sen. Conrad
Burns (R-MT) will give a keynote address at 8:30 AM. The
price to attend is $695. See, IIR notice.
Location: Ronald Reagan Building, 1300 Pennsylvania Ave., NW.
Deadline to submit comments to the SEC regarding
its proposed rule amending the Investment Advisers Act of 1940
to exempt certain investment advisers that provide advisory
services through the Internet from the prohibition on SEC
registration set out in § 203A of the Act. The
amendments would permit these advisers to register with the
SEC instead of with state securities authorities. See, notice
in the Federal Register. |
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| Friday, June 7 |
8:30 AM - 5:00 PM. Day three of a three day public workshop
hosted by the FTC on proposed
amendments to the Telemarketing Sales Rule (TSR), including
the potential development and implementation of a national do
not call list. See, FTC release
and agenda.
Location: Marriott Wardman Park Hotel, 2600 Woodley Road, NW.
12:00 NOON - 1:30 PM. The Federalist
Society will host a debate on judicial nominations.
the participants will be Douglas Kmiec (Dean of the Columbus
School of Law) and Elliot Mincberg (General Counsel of People
for the American Way). For more information, call Joel Pardoe
at 202 822-8138. See, release.
Location: Holeman Lounge, National
Press Club, 529 14th St. NW, 13th Floor.
12:15 PM. The FCBA's
Wireless Telecommunications and International Practice
Committees will host a luncheon. The topic will be
International Wireless Developments. The price to attend is
$15. RSVP to wendy @fcba.org.
Location: 1750 K Street, NW. |
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