| Online News Media Sue Gator
for Copyright Infringement |
6/25. The Washington
Post and others major news media that publish content
online filed a complaint
[99 pages in PDF] in the U.S.
District Court (EDVa) against Gator Corporation alleging
copyright infringement and related claims.
The plaintiffs, which include the Washington Post Newsweek
Interative Company, Washington Post Company, New York Times
Company, Gannett Satellite (USA Today), Globe Newspaper
Company (Boston Globe), Dow Jones & Company (Wall Street
Journal), Smart Money, Tribune Interactive (LA Times and
Chicago Tribune), and Knight Ridder Digital (Miami Herald and
Philadelphia Inquirer), publish news stories and other
original content. Defendant Gator operates a web site that
displays content from plaintiffs' web sites. It also sells
advertising to run on its web pages.
The complaint states that Gator is "a parasite on the Web
that free rides on the hard work and investments of Plaintiffs
and other website owners. Gator makes money by placing
advertisements for third parties on the Plaintiffs' websites
without Plaintiffs' authorization."
The complaint continues that "Gator Corp. free rides on
the valuable intellectual property rights of the Plaintiffs
and the substantial investment Plaintiffs have made, and
continue to make, to draw millions of visitors to their
websites."
Plaintiffs plead trademark infringement, unfair competition,
trademark dilution, copyright infringement, contributory
copyright infringement, misappropriation, interference with
prospective economic advantage, unjust enrichment, and
violation of the Virginia Business Conspiracy Act.
Plaintiffs seek injunctive and monetary relief. They seek,
among other things, an order prohibiting Gator from
"continuing to perpetrate its pop-up advertising scheme
against, or display any other advertising on any website owned
by or affiliated with the Plaintiffs without the express
consent of the Plaintiffs". They also seek an accounting,
restitution, damages, and corrective advertising by Gator.
Plaintiffs also filed a motion for a preliminary injunction.
See, Memorandum
in Support of Plaintiffs' Motion for Preliminary Injunction
[35 pages in PDF]. The Court has scheduled a hearing for July
12 on this motion.
Judge Claude Hilton has been assigned to this case. Plaintiffs
are represented by the law firm of Gibson Dunn & Crutcher.
Lead counsel is Terence
Ross. He stated on Friday, June 28, that he had not yet
received an entry of appearance from opposing counsel. This is
D.C. No. 02-904-A.
Gator issued a release
in which it stated that it "will vigorously defend itself
against, and may counter-sue". Gator did not assert
authorship, license or fair use in its release. Rather, it
asserted that the suit "flies in the face of the very
nature of the Windows operating system, and is
ridiculous."
Gator further asserted that it "is a well capitalized,
profitable company, and has spent the last six months doubling
its revenue, more than doubling its audience size, doubling
its customer base, and -- most tellingly -- winning
significant contracts in lucrative vertical markets that have
traditionally spent advertising dollars with the plaintiffs
and other, traditional media companies."
Editor's Note. Tech Law Journal is an intellectual
property owner. Its works of authorship are infringed. Readers
may wish to take this into consideration is assessing the
objectivity of its coverage of this case. |
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| Rep. Thomas Plans to
Introduce FSC Bill |
6/28. Rep. Bill
Thomas (R-CA), the Chairman of the House Ways and Means
Committee, released a summary
of the American Competitiveness Act of 2002, a bill to be
introduced after the July 4 recess. It would address the
foreign sales corporation, and successor, tax regime, which
the World Trade Organization
(WTO) has ruled to constitute an illegal trade subsidy.
Rep. Thomas issued a release which states that the
"current Extraterritorial Income (ETI) regime was
designed to level the playing field between U.S. companies and
their foreign competitors. Both ETI and its predecessor, the
Foreign Sales Corporation (FSC), have been repeatedly ruled to
be ``export subsidies´´ that violate our treaty
obligations."
The release continues that "If we repeal ETI, U.S.
businesses will be placed at an even greater competitive
disadvantage relative to their foreign competitors. If we
don't repeal ETI, U.S. companies may be hit with billions of
dollars of retaliatory trade sanctions. An arbitration panel
will set the level of authorized trade sanctions in
July."
EU representatives have stated that retaliatory sanctions
would target U.S. technology exports.
Rep. Thomas' release states that the American Competitiveness
Act would amend the Internal Revenue Code by "Simplifying
the complex foreign tax credit rules designed to prevent
double taxation, Increasing expensing for small businesses,
Reforming complex interest allocation rules, and Removing
punitive rules which reduce companies ability to defer taxes
on active income earned abroad."
The bill would also seek to limit corporate inversions, the
relocation of companies' nation of incorporation from the U.S.
to countries with more favorable tax laws. |
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| Pascal Lamy Holds Online
Chat Regarding Trade |
6/28. EU Commissioner for Trade Pascal
Lamy held an online chat regarding trade issues. See,
rough transcript
[41 pages in PDF].
He was asked "Is the Doha Round dead, after the EU-US
steel conflict, the New Farm Bill and the TPA with poison
pill?" Lamy stated that "steel, the farm bill are
clearly irritants, but they will not in themselves prevent the
round to go ahead; TPA is a bigger problem, but we are
confident that the TPA will in the end come out without poison
pills".
He also stated that "The new American administration
under G. W. Bush has advertised a 'more active' trade policy
for the US both in multilateral arenas and in bilateral
negociations (FTAA or other free trade agreement). Fine with
that. But, at this stage, we have seen more protection than
openess. Optimists here say that this is the price to pay for
the administration to get negociating authority from the
Congress."
He was also asked "What steps is the EU taking to secure
a liberalisation of trade in legal services"? He
responded that "the EU will participate actively in the
on-going services negotiations in the WTO with a view to
secure inter alia improved market access for lawyers in
foreign markets, provided they have proper
qualifications."
He was asked again, "How can the EU expect other
countries to liberalise their trade restrictions when its own
Member States won't even comply with Community Directives
aimed at achieving the same purpose (e.g. Lawyers'
Establishment Directive)?" To this, he responded,
"as far as far Community internal measures are concerned,
the Commission has the power to pursue Member States to the
Cour of Justice and does so when necessary. We do not hesitate
to remind Member States of their duties and we have no
difficulties in asking third countries to take commitments in
areas covered by an EC directive, if we deem it in the EU
interest."
He was also asked if he meets with the U.S. Congress. He
stated that "Each time I am in Washington (approx. 4
times a year) I spend half of my time on the hill and the
other half with the administration, various constituencies and
communication. I have regular contacts down there or on the
phone with a number of trade stars: chairman of ways and means
in the house, of finance in the Senate. Our delegation in
Washington and our people here interact permanently with
staffers." |
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| Court Issues Order in SEC
v. WorldCom |
| 6/28. The U.S.
District Court (SDNY) ordered WorldCom to preserve
records relating to its financial reporting obligations,
prohibiting WorldCom from making any extraordinary payments to
any present or former director, officer, or financial
reporting personnel, and providing for the appointment by the
Court of a monitor. See, SEC
release. The Securities and
Exchange Commission (SEC) filed its original complaint
on June 26. |
|
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| Bush Addresses Addresses
Financial Reporting |
6/28. President Bush gave a speech
at a campaign event for Rep. Connie Morella
(R-MD) in Washington DC at which he also addressed corporate
governance and financial reporting. He stated that "We
can have all kinds of rules, and we will. I laid out some
initiatives in March of this year that will hold people
accountable. And our Justice Department will hold people
accountable. But corporate America has got to understand
there's a higher calling than trying to fudge the numbers,
trying to slip a billion here or a billion there and may hope
nobody notices -- that you have a responsibility in this
country to always be aboveboard."
6/29. President Bush also addressed financial reporting in his
weekly radio
address on Saturday, June 29. He stated that "Despite
recent abuses of the public's trust, our economy remains
fundamentally sound and strong, and the vast majority of
businesspeople are living by the rules. Yet, confidence is the
cornerstone of our economic system, so a few bad actors can
tarnish our entire free enterprise system. We must have rules
and laws that restore faith in the integrity of American
business. The government will fully investigate reports of
corporate fraud, and hold the guilty parties accountable for
misleading shareholders and employees. Executives who commit
fraud will face financial penalties, and, when they are guilty
of criminal wrongdoing, they will face jail time."
Bush also said that "the SEC ordered the CEOs and CFOs of
the 1,000 largest public companies to certify that the
financial information they submitted in the last year was fair
and accurate." |
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| SEC Orders CEOs & CFOs
to Certify Accuracy of Reports Under Oath |
6/28. The Securities and
Exchange Commission (SEC) published a list
of 945 companies whose chief executive and chief financial
officers are now required to personally certify -- in writing,
under oath, and for publication -- that their most recent
reports filed with SEC are complete and accurate. See, SEC release.
The list of technology related companies on the list includes
3Com, Adobe, AMD, Agilent, AllTel, Amazon, AOL, AT&T,
Atmel, BellSouth, Cadence Design Systems, CDW Computer
Centers, CenturyTel, Charles Schwab, Charter Communications,
Ciena, Circuit City, Cisco, Comcast, Comdisco, Computer
Associates International, Computer Sciences Corp., Compuware,
Comverse Technology, Corning, Convergys, Cox Communications,
Dell, DST Systems, E*Trade, Earthlink, Eastman Kodak, Echostar,
EDS, Electronic Arts, First Data, Gemstar-TV Guide
International, Gateway, General Cable, Ingram Micro, Intel,
Integrated Electrical Services, IBM, Intuit, JDS Uniphase, L-3
Communications, Level 3 Communications, Lockheed Martin, LSI
Logic, Lucent, MasTec, Maxim Integrated Products, Micron,
Microsoft, Motorola, National Rural Utilities Cooperative
Finance Corporation, National Semiconductor, NCR, Nextel,
Northrop Grumman, Novellus, Nvidia, Office Depot, OfficeMax,
On Semiconductor, Oracle, PeopleSoft, PEPCO, Perot Systems,
Qualcomm, Quantum, Qwest, Radio Shack, Raytheon, Sabre
Holdings, SBC, Siebel Systems, Silicon Graphics, Sprint,
Staples, Storage Technology, Sun Microsystems, SunGard Data
Systems, Tech Data Corporation, Tektronix, Telephone &
Data Systems, Tellabs, Texas Instruments, TRW, Unisys, Veritas
Software, Verizon, Viacom, Viasystems Group, Vishay
Intertechnology, Visteon, Volt Information Sciences, Wallace
Computer Services, Walt Disney, Western Digital, WorldCom,
Xerox, Xilinx, and XO Communications. |
|
|
| Xerox Restates Revenues |
| 6/28. Xerox stated that
"it expects to file today the company's 2001 10-K, which
includes a restatement for the years 1997 through 2000 as well
as adjustments to previously announced 2001 results." It
further stated that "Approximately $1.9 billion of
revenue that was recognized over past years has been
reversed". See, Xerox
release. |
|
|
| Senate Passes E-Government
Act |
| 6/27. The Senate passed S 803,
the E-Government Act of 2002, sponsored by Sen. Joe Lieberman
(D-CT). The bill seeks to promote electronic Government
services and processes. It would establish an Office of
Electronic Government within the Office of Management and
Budget. This version of the bill does not include earlier
language creating the position of Chief Information Officer. |
|
|
| NIST Study Estimates Costs
of Software Bugs |
6/28. The National Institute
of Standards and Technology (NIST) released a report
[309 pages in PDF] titled "The Economic Impacts of
Inadequate Infrastructure for Software Testing". See
also, NIST
release.
The report states that "The objective of this study is to
investigate the economic impact of an inadequate
infrastructure for software testing in the U.S." It
concludes that "Based on the software developer and user
surveys, the national annual costs of an inadequate
infrastructure for software testing is estimated to range from
$22.2 to $59.5 billion. Over half of these costs are borne by
software users in the form of error avoidance and mitigation
activities."
The report also concludes that $22.2 Billion of these costs
could be eliminated by an improved testing infrastructure that
enables earlier and more effective identification and removal
of software defects. |
|
|
| FTC Updates Report on the
Marketing of Violent Electronic Games to Children |
6/28. The Federal Trade
Commission (FTC) released another followup report
[62 pages in PDF] to its September 2000 report titled
"Marketing Violent Entertainment to Children: A Review of
Self-Regulation and Industry Practices in the Motion Picture,
Music Recording and Electronic Game Industries". See
also, FTC
release.
With respect to electronic games, this latest report finds
"widespread compliance with industry standards limiting
ads for M-rated games where children under 17 constitute a
certain percentage of the audience -- 35 percent for
television and 45 percent for print. At the same time, the
Commission found several examples of advertisements on popular
teen television programs, and continued placement of
advertising in youth-oriented game enthusiast magazines. As
the Commission noted in its December 2001 Report, the
industry’s anti-targeting standards diminish -- but do not
eliminate -- placements in media with large teen
audiences."
The report continues that "The electronic game industry
continues to provide rating information prominently in most
forms of advertising, which likely reflects its enforcement
program. Although some areas still could be improved (e.g.,
including content descriptors in television advertising),
there is much in the game industry’s rating disclosure
requirements that merits duplication by others."
FTC Commissioner Orson Swindle issued a concurring
statement. He wrote that "the First Amendment
appropriately limits what the government can do. Despite our
scrutiny, the music industry continues to target young people
explicitly in its advertising and, for the most part, refuses
to provide content-based information that could help
consumers. The motion picture and electronic game industries
have acted far more responsibly in improving their
self-regulatory programs, yet continue to allow advertising of
R-rated movies and M-rated games in venues that attract large
numbers of teens."
Rep. Billy Tauzin
(R-LA) stated in a release that "The movie and video game
industries should be commended for their continued
commitment to responsible marketing of violent material. Since
the inception of the FTC's reports, these industries have made
vast improvements to their marketing practices. However, I
continue to be deeply disappointed by the recording industry's
lack of response to the shortcomings noted in these FTC
reports." Rep. Tauzin is Chairman of the House Commerce Committee,
which oversees the FTC. |
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| Supreme Court Recesses
Until October |
| 6/28. The Supreme Court completed the work of its current
term with the release of opinions and order list on Friday,
June 28. It will be in recess until Monday, October 7, 2002. |
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| Publication Schedule |
| The Tech Law Journal Daily E-Mail Alert will not be
published on July 3, 4, or 5. |
|
|
| Monday, July 1 |
Neither the House nor the Senate will meet Monday July 1
through Friday July 5, due to the Independence Day work
period.
8:30 AM - 5:00 PM. The American Antitrust
Institute will hold a meeting. FTC
Commissioner Thomas Leary will speak at 8:50 AM. FTC
Chairman Timothy Muris and incoming EU Director General of
Competition Phillip Lowe will speak at the luncheon, held from
12:30 - 2:00 PM. See, agenda
and registration
page. The price to attend is $600. For more information,
contact Sarah Leer at 703 299-8268. Location: Ballroom, National Press Club, 529 14th
St. NW, 13th Floor.
9:30 AM - 12:00 NOON. The Department
of State's (DOS) International Telecommunication Advisory
Committee (ITAC) will hold a meeting to address preparations
for the CITEL Assembly. For more information, and security
requirements, see notice
in the Federal Register.
Copyright Office fee
increases to into effect. Basic registration fees remain
unchanged. However, renewal registrations, group
registrations, supplementary registrations, and fees for
services, all go up.
Extended deadline to submit reply comments to the FCC in response
to its Notice of Proposed Rulemaking 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.
Deadline to submit nominations to the NIST
for appointment to the Advanced
Technology Program Advisory Committee. See, notice
in Federal Register.
Deadline to submit nominations to the NIST
for appointment to the Visiting Committee
on Advanced Technology. See, notice
in Federal Register. |
|
|
| Tuesday, July 2 |
| President's Homeland Security Advisory Council (PHSAC) will
meet. The meeting is closed to the public. However, written
comments may be submitted Fred Butterfield at fred.butterfield @gsa.gov.
See, notice in the Federal Register. See also, order
establishing the PHSAC. Location: undisclosed. |
|
|
| Wednesday, July 3 |
| The Tech Law Journal Daily E-Mail Alert will not be
published |
|
|
| Thursday, July 4 |
Independence Day. The FCC and other government offices will
be closed. The National Press Club will be closed.
The Tech Law Journal Daily E-Mail Alert will not be published |
|
|
| Friday, July 5 |
| The Tech Law Journal Daily E-Mail Alert will not be
published |
|
|
| GAO Reports on
Telecommunications at DOD |
6/28. The General Accounting
Office (GAO) released a report [101
pages in PDF] titled "Information Technology: DOD Needs
to Improve Process for Ensuring Interoperability of
Telecommunications Switches".
The report concluded that the Department of Defense (DOD)
"does not have a well defined process, including clear
requirements, for certifying and authorizing
telecommunications (telecom) switches. DOD's process is not
fully documented, current, or complete. Additionally, the
process lacks an effective enforcement mechanism. As a result,
DOD is increasing the risk that its certification and
authorization process will be applied inconsistently and that
the department's telecommunications will experience future
interoperability problems. DOD attributed these weaknesses to
the fact that the process is relatively new and still
evolving." |
|
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| People and Appointments |
6/28. The White House press office announced the list of
appointments for White House Fellows for 2002-03. The list
includes Cesar Conde, of Coral Gables, Florida. The
White House release
states that he "Led the strategic development of the
first full service Internet portal geared exclusively towards
the U.S. Hispanic market."
6/28. Kevin English, Ch/CEO/P of Covisint announced his
resignation. Harold Kutner will replace him as Ch/CEO. Bruce
Swift will become P/COO. Covisint is an automotive
industry B2B. See, Covisint
release. |
|
|
| More News |
6/28. The Federal
Communications Commission (FCC) announced that it signed
an Interim Arrangement with Industry Canada pertaining to
spectrum sharing for the development of Multipoint
Distribution Systems near the U.S. Canada border. The
arrangement covers operations in the 2150-2162 MHz and
2500-2690 MHz bands. See, FCC
release [PDF].
6/28. The Department of Justice's (DOJ) Antitrust Division filed
its appeal
brief with the U.S.
Court of Appeals (2ndCir) in USA
v. Visa, an antitrust case involving the
governance practices of Visa and MasterCard.
6/28. Tren Griffin, Pierre De Vries, and Marc Berejka of
Microsoft, along with Microsoft attorney Scott
Harris, met with Federal
Communications Commission (FCC) Commissioner Michael Copps,
Paul Margie (Legal Advisor to Copps), and Matt Brill (Legal
Advisor to Commissioner Kathleen
Abernathy) regarding the future of broadband wireless
technology and networking. Microsoft noted in a disclosure
letter [PDF] that Microsoft suggested the "the growth
of the Internet has been characterized by the ability of
consumers to reach an unprecedented array of content,
services, and applications through an ever increasing
diversity of consumer owned devices. Microsoft suggested that
the Commission should remain mindful of the importance of
assuring that consumers continue to enjoy that ability in the
broadband future."
6/28. The Supreme Court issued an order in the NextWave
case. It states that "The motion of the
Acting Solicitor General for divided argument is granted. The
motion of Creditors of NextWave Personal Communications, Inc.,
for leave to participate in oral argument as amici curiae and
for divided argument is granted." See, Order
List [PDF] at page 4. |
|
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