| PPI Releases 2002 State New
Economy Index |
6/10. The Progressive
Policy Institute (PPI) released a report
titled "The 2002 State New Economy Index: Benchmarking
Economic Transformation in the States". This is another
in a series of reports by the PPI on the extent to which each
state has embraced the New Economy. See also, PPI
summary.
The report ranks each state according to 21 economic
indicators, and provides a cumulative ranking. This report
updates data from the last such report in 1999, and includes
several new indicators, including a measure of broadband
Internet access.
The top five states, in order, are Massachusetts, Washington,
California, Colorado and Maryland. Virginia ranks 8th. New
York ranks 10th. Texas ranks 14th. Illinois ranks 17th. The
bottom five states are West Virginia, Mississippi, Arkansas,
Alabama and Wyoming. Most of the states in the bottom half of
the ranking are in the south, plains and mountain states.
The index is based upon 21 indicators. Several pertain to the
knowledge jobs: employment of IT professionals; jobs held by
managers, professionals, and technicians; the educational
attainment of the entire workforce; and the education level of
the manufacturing workforce. Several indicators pertain to
economic dynamism, including the number of fast growing
companies (20% or more for four straight years), the rate of
economic churn, and the value of IPOs.
Other indicators measure digital transformation, including the
percentage of the population online, the number of .com domain
name registrations, technology in schools, the degree to which
state and local governments use information technologies to
deliver services, Internet and computer use by farmers,
Internet use by manufacturers, and access by residents and
businesses to broadband telecommunications.
The index also includes measures of the number of jobs in
technology producing industries, the number of scientists and
engineers in the workforce, the number of patents issued;
industry R&D, and venture capital activity.
The report was written by Robert
Atkinson, with research assistance by Rick Coduri. |
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| Commission Holds Hearing on
China's Compliance with WTO Obligations |
6/6. The Congressional
Executive Commission on China held a hearing titled "WTO:
Will China Keep its Promises? Can it?" Participants
addressed, among other things, China's compliance with
intellectual property rights (IPR) related obligations
associated with membership in the World Trade Organization (WTO).
Chris Murck, Chairman of the American Chamber of
Commerce in Beijing, addressed intellectual property
rights at length in his prepared
statement. He stated "We thus see a mixed picture:
progress with respect to IPR law and policy, but continued
failure to make enforcement effective. AmCham China is
convinced that this problem will eventually be brought under
control, because there are strong local interests in doing so.
Chinese companies are damaged more than foreign companies by
IPR violations and they know it. The Chinese government finds
its economic ambitions hindered by its IPR environment and it
is trying to change it."
He explained that "Intellectual property rights were not
recognized in Chinese law in 1979, and a pattern of rampant
violations of copyrights, trademarks and patents soon became a
problem for foreign investors. Pressure from the United
States, the European Union and others had some effect in
changing Chinese policy statements, but these were somewhat
grudging and were not reflected in changes on the ground. In
the last three years, however, the policy debate on this
question has been won. A study by the Ministry of
Information Industry identified copyright violations as
the single biggest obstacle to the development of a Chinese
software industry. This was followed by State Council
regulations in 1999 requiring all government offices to use
legal software and again in 2000 requiring all entities,
including enterprises, to do the same and demanding enhanced,
coordinated enforcement of the law."
"Substantial revisions have been made in copyright,
trademark and patent laws. While further improvements could be
suggested, in general the legal framework is close to
international standards and capacity building continues, often
with foreign assistance," wrote Murck.
He continued that "There have been recent court victories
in copyright cases as well, such as a case involving an
internet domain name squatter where the rights of the foreign
company were firmly upheld."
He cautioned, however, that "these positive examples do
not reflect the general situation. China is not a single
economy; it is a group of large, disparate regional economies.
Although the central government can be described as
authoritarian, its ability to control what happens in local
areas is limited." And, he added, "In response, our
member companies are shifting their focus from the content of
the laws to problems of enforcement."
Murck also stated that "One of the unanticipated
consequences of WTO accession is likely to be an increase in
the export of counterfeit goods manufactured in China to the
rest of the world."
Donald
Clarke, a Professor of Law, University of Washington,
pointed out in his prepared
statement that "the requirements of the WTO
agreements for fairness and transparency are in fact
surprisingly limited." However, he added that "The
only WTO agreement that comes close to a general requirement
of fairness in the operation of the legal system is the TRIPS
Agreement. This agreement does indeed set forth in Part
III (``Enforcement of Intellectual Property Rights´´) a
number of requirements for fair judicial proceedings for the
protection of intellectual property rights."
He also stated that "The area of the Chinese legal system
that will probably cause the most difficulty is its present
inability to provide, at least on a consistent basis, truly
independent review of administrative actions. The financial
dependence of courts on local government is compounded first
by the lower political status of judges relative to many of
the officials whose actions they will be called upon to judge,
and second simply by the tradition of judicial deference to
administration."
Sen. Max Baucus
(D-MT), Chairman of the Commission, said in his prepared
statement that "We are at an early stage in China's
process of WTO adherence and commercial law transformation.
Clearly, senior Chinese leaders are committed. National bodies
have begun to reform and adjust thousands of laws,
regulations, and judicial decisions that are not WTO
compliant."
However, Sen Baucus added that "there have been mixed
signals as to whether the Chinese government is willing, or
able, to adhere to all of the commitments it has made. For
example, while tariffs have been reduced and quotas have been
eliminated in some industries, there are reports that equally
protective non-tariff barriers have been erected in their
place. Sanitary and phyto sanitary standards have still been
used in some areas with no scientific basis. Regulations that
were supposed to be in effect at accession have not been
promulgated."
Susan Westin, of the General
Accounting Office (GAO), provided a report [PDF]
titled "World Trade Organization: Observations on China's
Rule of Law Reforms". The GAO has conducted a survey of
U.S. businesses. The report states that "According to the preliminary
results of our survey, U.S. businesses in China consider rule
of law related WTO commitments to be important to them,
especially the consistent application of laws, regulations,
and practices in China, and enforcement of intellectual
property rights. However, a majority of businesses answering
our survey anticipated that these rule of law commitments
would be difficult for the Chinese to implement, and they
identified some concerns over specific implementation issues.
U.S. businesses told us in interviews that they expected WTO
reforms, including those related to the rule of law, to be
part of a long term process. Nevertheless, they believe the
Chinese leadership is dedicated to living up to their WTO
commitments."
Jon Huntsman, Deputy U.S. Trade
Representative (USTR), said in his prepared
testimony that "we have seen China take a good faith
approach to its WTO membership and make significant efforts to
implement its commitments. China has made substantial tariff
reductions on industrial and agricultural goods of importance
to U.S. businesses and farmers. It has begun to take concrete
steps to remove non-tariff trade barriers in virtually every
product sector. It has begun to implement far reaching
services commitments that should substantially increase market
access for U.S. services suppliers. It has also repealed
hundreds of trade related laws, regulations and other measures
and modified or adopted numerous other ones in an effort to
become WTO compliant in areas such as import and export
administration, standards and intellectual property rights,
among many others." However, he added that "There
have also been some bumps in the road", such as
biotechnology regulations.
Grant Aldonas, Under Secretary of Commerce for International
Trade, said in his prepared
statement, "Yes, I believe that China can and will
seek to keep its promises, and we should do whatever we can to
help." He also provided an IPR anecdote. He said that
"We met with representatives of the Shanghai Film Studio,
where we were told that piracy of optical disks was hurting
their sales in China. It was fascinating to discover that we
have a new ally in our work to enhance enforcement of
intellectual property rights (IPR) protection in China and
elsewhere. We saw the Shanghai
Model Port Project -- an APEC initiative that demonstrates
how Customs officials can use technology to facilitate trade
and protect IPR."
See also, prepared statements of Jeff
Fiedler (Food and Allied Service Trades Department,
AFL-CIO), and Rep.
Marcy Kaptur (D-OH). |
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| 9th Circuit Interprets
Contract to Publish Legal Treatise |
6/7. The U.S.
Court of Appeals (9thCir) issued its opinion
[PDF] in Chodos
v. West Publishing Company, a dispute regarding
a contract to publish a legal treatise. The Appeals Court
reversed the District Court's summary judgment for West.
Background. Rafael
Chodos is a software engineer turned attorney who wrote a
lengthy book on the law of fiduciary duty in electronic
format. In 1995 Bancroft Whitney Corporation and Chodos
entered into a standard Author Agreement, which provided for
no payments to Chodos prior to publication, and a 15% share of
the gross revenues from sales of the work. The Agreement gave
Bancroft "the right in its discretion to terminate"
the publishing relationship after receiving the manuscript and
determining that it is unacceptable.
In 1996 West Publishing
Group purchased Bancroft. West's editors continued to work
with Chodos. In 1999 West notified Chodos that it had decided
not to publish the book because it did not "fit within
[West's] current product mix" and because of concerns
about its "market potential." West admitted that the
manuscript was of "high quality" and that its
decision was not due to any literary shortcomings. Chodos's
product for West was 1247 pages long. He spent three years and
over 3,000 hours working on it.
Proceedings Below. Chodos filed a complaint in
California state court (Los Angeles Superior Court). West
removed the action to the U.S. District Court (CDCal)
based upon diversity of citizenship. Chodos sought recovery in
quantum
meruit. The District Court granted summary
judgment to West. Chodos appealed.
Appeals Court. The Appeals Court stated that the issue
is whether "a publisher retains the right to reject an
author's manuscript written pursuant to a standard industry
agreement, even though the manuscript is of the quality
contemplated by both parties." The Court held that a
publisher does not.
Chodos raised two alternative theories. First, he argued that
the contract was illusory, on the grounds that it violated the
doctrine of mutual obligation. Second, he argued in the
alternative, that if the contract is valid, West breached it.
The Court held that the contract was not illusory. Applying
California law (pursuant to choice of law clause in the
agreement), the Court stated that "a covenant of good
faith and fair dealing is an implied term in every
contract", and that "a court will not find a
contract to be illusory if the implied covenant of good faith
and fair dealing can be read to impose an obligation on each
party". The Court held that "because the standard
Author Agreement obligates the publisher to make a judgment as
to the quality or literary merit of the author's work -- to
determine whether the work is ``acceptable´´ or
``unacceptable´´ -- it must make that judgment in good
faith, and cannot reject a manuscript for other, unrelated
reasons."
Having held the contract to be valid, the Court further held
that West breached it. The Court articulated that Chodos
"was induced by an agreement that permitted rejection of
the completed manuscript only for deficiencies in ``form and
content.´´ Chodos thus labored to complete a work of high
quality with the expectation that, if he did so, it would be
published. He devoted thousands of hours of labor to the
venture, and passed up substantial professional opportunities,
only for West to decide that due to the vagaries of its
internal reorganizations and changes in its business
strategies or in the national economy or the market for legal
treatises, his work, albeit admittedly of high quality, was
for naught. It would be inequitable, if not unconscionable,
for an author to be forced to bear this considerable burden
solely because of his publisher's change in management, its
poor planning, or its inadequate financial analyses at the
time it entered into the contract, or even because of an
unexpected change in the market place."
And, the Court held that "to allow a publisher to escape
its contractual obligations for these reasons would be
directly contrary to both the language and the spirit of the
standard Author Agreement."
Hence, the Appeals Court reversed, and remanded to the
District Court with instructions to allow Chodos to proceed in
quantum meruit if damages are not determinable under the
contract.
Epilogue. Chodos's book, The Law of Fiduciary
Duty, has been published, but not by a major legal book
publisher. |
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| Senate Committee Holds
Hearing on Export Controls in Russia and China |
6/6. The Senate
Governmental Affairs Committee's Subcommittee on
International Security, Proliferation, and Federal Services
held a hearing titled "Russia and China --
Non-proliferation Concerns and Exports Controls". The
hearing addressed how well Russia and China comply with
nonproliferation agreements and enforce export controls,
particularly with respect to weapons of mass destruction.
See, prepared statements in PDF of witnesses: James
Wolf (Assistant Secretary, Bureau of Non-proliferation
Department of State), Matthew
Borman (Deputy Administrator, Bureau of Industry and
Security, Department of Commerce), Leonard
Spector (Monterey Institute for International Studies), David
Albright (Institute for Science and International
Security), and Gary
Milholin (Wisconsin Project for Nuclear Arms Control). See
also, opening
statement [PDF] and closing
statement of Sen.
Daniel Akaka (D-HI).
Borman stated that "Russia enacted an export control law
in 1999. This law authorizes control over the export of all
items (commodities, software, and technology) on the lists of
the four multilateral export control regimes and chemicals
covered by the Chemical Weapons Convention." However, he
said that "Russia's most significant weakness is its
ability to enforce its export control system." |
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| More News |
6/7. The Customs
Service published a notice
in the Federal Register regarding a notice of proposed
rulemaking (NPRM) to amend the Customs Regulations pertaining
to the importation of merchandise bearing a counterfeit mark
to clarify the limit on the amount of a civil fine which may
be assessed. Comments are due by August 6, 2002. See, Federal
Register, June 7, 2002, Vol. 67, No. 110, at Pages 39321 -
39322.
6/7. The Federal Communications
Commission (FCC) released its Order
on Reconsideration [PDF] in its preceding titled "In
the Matter of Preemption of Local Zoning Regulation of
Satellite Earth Stations", dismissing nine petitions for
reconsideration of the FCC's 1996 Antenna Report and Order.
This order amended FCC rules to create a rebuttable
presumption that local regulations that impose restrictions
affecting the installation, use and maintenance of satellite
earth station antennas one meter or less in any area or two
meters or less in commercial or industrial areas, were
unreasonable and would be preempted. Subsequently, the FCC's
OTARD Order eliminated provisions regarding satellite antennas
that are one meter or smaller and used to receive video
programming. This is IB Docket No. 95-59. |
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| Monday, June 10 |
The House will meet at 2:00 PM in pro forma session only.
The Senate will meet 2:00 PM for morning business. At 3:00 PM
the Senate will resume consideration of S 625,
the Hate Crimes Act.
The Supreme Court will return from recess.
The FCBA will
host a luncheon. The speaker will be Brian Roberts of Comcast. The price is $45
for FCBA members, $35 for government and student members, and
$55 for non-members. There will be a reception at 12:00 NOON.
The luncheon will begin at 12:30 PM. RSVP to Wendy Parish at wendy @fcba.org by June 5.
Location: Capital Hilton, 16th & K Streets.
12:00 NOON. The House
Science Committee will hold a field hearing on homeland
security efforts at the NIST
and the NIH, including
cyber security, bioterrorism, and first responder needs. Rep. Connie Morella
(R-MD) will preside. Location: Large Hearing Room, Stella
Werner Council Office Building, 100 Maryland Ave., Rockville,
MD.
3:30 PM. Commerce Secretary Donald
Evans and Sen. John
Warner (R-VA) will participate in a town hall meeting with
the employees of Information
Management Consultants (IMC), and northern Virginia IT
companies, to discuss the President's high tech agenda and
expanding trade. See, DOC
release.
Day one of a two day seminar titled Managing Trade
Compliance In Today's Environment. The seminar is offered
by the U.S. Department of Commerce's Bureau of Industry and Security
(formerly BXA). The price to attend is $325. See, information
page. Location: Marriott at Metro Center, 775 12th Street
NW.
Day two of a three day conference hosted by George Mason
University titled Networked Economy Summit. See, event web site.
Location: Hyatt Regency Reston, Reston, VA.
First of three deadlines to submit proposals to the NIST
for FY 2002 Advanced
Technology Program funds. See, notice
in Federal Register. |
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| Tuesday, June 11 |
The House will meet at 12:30 PM for morning hour and 2:00 PM
for legislative business. No votes are expected before 6:30
PM. The House will consider a number of measures under
suspension of the rules.
Day two of a two day seminar titled Managing Trade
Compliance In Today's Environment. The seminar is offered
by the U.S. Department of Commerce's Bureau of Industry and Security
(formerly BXA). See, information
page.
Day three of a three day conference hosted by George Mason
University titled Networked Economy Summit. See, event web site.
7:00 AM - 4:00 PM. Day one of a two day conference titled Current
and Emerging Solutions to Public Safety Communications
Interoperability hosted by the NTIA
and the Public Safety Wireless Network Program. Audio webcast.
See, agenda.
See also, notice
in the Federal Register. Location: Reagan International Trade
Center, 1300 Penn. Ave., NW.
9:00 AM - 4:00 PM. Day one of a three day meeting of the NIST's
Computer System Security and Privacy Advisory Board. See, notice
in Federal Register. Location: National Security Agency's
National Cryptologic Museum, Colony 7 Road, Annapolis
Junction, MD.
9:00 AM - 2:00 PM. The American
Enterprise Institute (AEI) will host a conference titled The
Future of Telecom Regulation. See, agenda and
registration page. Location: AEI, 12th floor, 1150 17th
St., NW.
9:30 AM. The Senate
Commerce Committee's Subcommittee on Communications will
hold a hearing titled Spectrum Management. Press
contact: Andy Davis 224-6654. Location: Room 253, Russell
Building.
2:00 PM. There will be a press conference to release a report
titled International Music Piracy Report 2002. For more
information, contact Amanda Collins at 202 857-9625 or acollins @riaa.org.
Location: National Press Club,
Murrow Room, 529 14th St. NW, 13th Floor. |
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| Wednesday, June 12 |
The House will likely consider a motion to go to conference
on HR 3005,
the Bipartisan Trade Promotion Authority Act of 2002.
7:00 AM - 3:30 PM. Day two of a two day conference titled Current
and Emerging Solutions to Public Safety Communications
Interoperability hosted by the NTIA
and the Public Safety Wireless Network Program. Audio webcast.
See, agenda
and notice
in the Federal Register.
8:30 AM - 4:00 PM. Day two of a three day meeting of the NIST's
Computer System Security and Privacy Advisory Board. See, notice
in Federal Register.
9:00 AM - 1:00 PM. The President's Council of Advisors on
Science and Technology (PCAST) will hold a public meeting. The
agenda includes four items: (1) the science and technology of
combating terrorism, (2) policies and technologies to improve
energy efficiency, (3) the federal investment in science and
technology research and development, and (4) demand issues
that can speed the deployment of a 21st Century broadband
infrastructure. See, notice
in Federal Register. Location: Colonial Room, Renaissance
Mayflower Hotel, 1127 Connecticut Ave., NW.
11:00 AM. The Cato Institute
will host a panel discussion titled Digital Copy
Protection: Mandate It? Ban It? Or Let the Market Decide?.
The speakers will be Rick Lane (News Corporation), Jonathan
Potter (DiMA), Sarah Deutsch (Verizon), Stewart Verdery
(Vivendi Universal), and Jonathan Zuck (ACT).
Lunch will follow. Webcast. See, online
registration page. Location: Cato, 1000 Massachusetts
Ave., NW.
12:30 PM. The FCBA's
Global Telecommunications Development Committee and the
International Practice Committee will host a luncheon seminar
titled Three Principles for the Liberalization of
Telecommunications in Latin America: Competition, Competition
and Competition. The speakers will be Henoch Aguiar, a
former Secretary of Telecommunications of Argentina. This
program is free and lunch will be provided. RSVP by faxing or
e-mailing your name, affiliation, and contact information to
Javier Miguel Tizado at 202 639-9355 or jtizado @whitecase.com
by June 10th. Location: White & Case, 601 13th St., NW,
Suite 600.
2:30 The Senate
Judiciary Committee's Subcommittee on Technology,
Terrorism, and Government Information Subcommittee will hold a
hearing on S 2541,
the Identity Theft Penalty Enhancement Act. Sen. Dianne Feinstein
(D-CA) will preside. See, notice.
Press contact: Mimi Devlin at 202 224-9437. Location: Room
226, Dirksen Building.
2:30 PM. The Senate
Commerce Committee's Subcommittee on Science, Technology,
and Space Subcommittee will hold a hearings to examine the ICANN.
Press contact: Andy Davis at 202 224-6654. Location: Room 253,
Russell Building. |
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| Thursday, June 13 |
The House will meet at 10:00 AM for legislative business. No
votes are expected after 6:00 PM. The House will likely
consider HR 4019,
the Permanent Marriage Penalty Relief Act of 2002.
8:30 AM - 3:00 PM. Day three of a three day meeting of the NIST's
Computer System Security and Privacy Advisory Board. See, notice
in Federal Register.
9:30 AM. The FCC will hold a
meeting. See, agenda.
Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission
Meeting Room).
10:00 AM. The House
Ways and Means Committee will hold a hearing on the extraterritorial
income regime. Location: Room 1100, Longworth Building.
10:00 AM. The House
Judiciary Committee has scheduled a meeting to mark
several bills, including HR 4598,
the Homeland Security Information Sharing Act, 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. Location: Room 2141, Rayburn Building.
2:00 - 4:00 PM. The American
Enterprise Institute (AEI) will host a panel discussion
titled The Future of the Distribution of Video Programming.
The speakers will be Harold Furchtgott Roth (AEI), James Ramo
(Movielink), Jerald
Fritz (Albritton Communications), Michael Kupinski (A.G. Edwards), Jonathan
Potter (DiMA), and Donald
Whiteside (Intel). See, agenda and
registration page. Location: AEI, 12th floor, 1150 17th
St., NW.
2:00 PM. The Senate
Judiciary Committee will hold a hearing on pending
judicial nominations. See, notice.
Press contact: Mimi Devlin at 202 224-9437. Location: Room
226, Dirksen Building. |
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