Adelstein (at right) stated that "Another issue that will occupy a great deal of our time is whether the FCC should treat the provision of broadband services by incumbent local exchange carriers as a telecommunications service regulated under Title II of the Communications Act -- which is the Common Carrier portion of the Act -- or as an information service under Title I -- the general provisions of the Act. This seemingly simple difference can have huge ramifications for universal service."

He continued that "If these broadband services are classified as information services, the FCC could lose much of the oversight that comes with Title II. And information service providers don’t now contribute to universal service. An information service classification would raise a lot of questions. Does it mean, for example, that revenues from these services couldn’t contribute toward universal service? Would carriers be able to use the normal cost recovery mechanisms to recover their costs of providing these advanced services? What are the national security implications? We’ve got to think hard about this at a time when the demands on the fund are increasing and contributions are decreasing."

Adelstein added that "Although I haven't yet decided whether, or how, to change the universal service system, I’m committed to ensuring that the fund will continue to meet the demands placed on it."

He spoke at an Organization for the Promotion and Advancement of Small Telecommunications Companies (OPASTCO) meeting in Washington DC.

Rep. Lofgren's bill adds a reference to "analog or digital transmissions" to § 107 (the fair use section) of the Copyright Act. Second, the bill creates a new § 123 in the Copyright Act that limits the basic exclusive rights of § 106. This new section allows copying of lawfully obtained copies for storage, or for use on a preferred digital media device. Third, the bill limits the enforceability of non-negotiable license terms. Fourth, the bill expands the § 109 right of sale to digital works. Fifth, the bill limits the anti circumvention provisions of the Digital Millennium Copyright Act (DMCA).

Rep. Lofgren (at right) stated in a release that "There is wide agreement to fight piracy, and it is something that needs to be stopped. But individual consumers are being denied their legitimate rights in the digital age ...We can solve this problem, but lawsuits and locking down content are not the solutions." She added that "This legislation would ensure that consumers are able to buy content that is compatible across platforms, thereby encouraging technological development and competition ... Specifically, it will allow consumers to make backup copies and display digital works on their preferred digital media devices."

In addition to having a new title, this bill has a new cosponsor, Rep. Rick Boucher (D-VA), who is also the sponsor of HR 107, the Digital Media Consumers' Rights Act of 2003.

Rep. Lofgren also released a list of supporters of her bill. It includes the Consumer Electronics Association (CEA), Computer & Communications Industry Association (CCIA), Digital Future Coalition (DFC), Home Recording Rights Coalition, US Internet Industry Association, Public Knowledge, Association of Research Libraries, American Association of Law Libraries, Medical Library Association, American Library Association (ALA), Lawrence Lessig (Stanford Law School), and Pamela Samuelson (Berkeley Law School).

Victoria's Secret sells overpriced women's lingerie and other clothing by catalogue and through over 750 stores. Victor Moseley runs a smut shop named "Victor's Little Secret" in a strip mall outside of Louisville, Kentucky. He sells women's lingerie, among other items.

Victoria's Secret filed a complaint in U.S. District Court (WDKent) against Victor Moseley alleging trademark infringement and violation of the Federal Trademark Dilution Act (FTDA), 15 U.S.C. § 1125(c), in connection with his use of the name "Victor's Little Secret" for a lingerie and adult toy business. The District Court granted summary judgment to Moseley on the federal trademark infringement claims, finding that Victoria's Secret had not provided sufficient evidence to establish a likelihood of confusion between the two marks. The District Court also found that the Victor's Little Secret mark both blurred and tarnished the Victoria's Secret mark under the FTDA and enjoined Moseley from making further use of the Victor's Little Secret mark.

Moseley appealed the District Court's FTDA ruling. The U.S. Court of Appeals (6thCir) issued its opinion on July 30, 2001, affirming the District Court. It held that economic harm may be inferred.

Various federal circuits have reached different conclusions on this issue. See, for example, Ringling Bros. Barnum & Bailey v. Utah, 170 F.3d 449 (4th Cir. 1999), the "greatest snow on earth" case, which required a showing of actual harm, and Nabisco v. PF Brands, 191 F.3d 208 (2d Cir. 1999).

The Supreme Court reversed, and remanded. Justice Stevens wrote the opinion of the Court. He wrote that "The relevant text of the FTDA ... provides that ``the owner of a famous mark´´ is entitled to injunctive relief against another person's commercial use of a mark or trade name if that use ``causes dilution of the distinctive quality´´ of the famous mark. 15 U. S. C. §1125(c)(1) (emphasis added). This text unambiguously requires a showing of actual dilution, rather than a likelihood of dilution."

Stevens added, "Of course, that does not mean that the consequences of dilution, such as an actual loss of sales or profits, must also be proved. To the extent that language in the Fourth Circuit’s opinion in the Ringling Bros. case suggests otherwise, see 170 F. 3d, at 460–465, we disagree. We do agree, however, with that court's conclusion that, at least where the marks at issue are not identical, the mere fact that consumers mentally associate the junior user's mark with a famous mark is not sufficient to establish actionable dilution. As the facts of that case demonstrate, such mental association will not necessarily reduce the capacity of the famous mark to identify the goods of its owner, the statutory requirement for dilution under the FTDA. For even though Utah drivers may be reminded of the circus when they see a license plate referring to the ``greatest snow on earth,´´ it by no means follows that they will associate ``the greatest show on earth´´ with skiing or snow sports, or associate it less strongly or exclusively with the circus. ``Blurring´´ is not a necessary consequence of mental association. (Nor, for that matter, is ``tarnishing.´´)"

Some groups filed amicus curiae briefs in support of Victoria's Secret. For example, the Intellectual Property Owners Association (IPO) filed an amicus brief [18 page PDF scan] in which it argued that "Relief under the FTDA should not hinge on whether the owner of a famous and distinctive trademark can prove tangible economic loss or harm at the hands of an unauthorized user. Such a requirement would impose a daunting standard that could be rarely met and is not supported by the statutory language."

Similarly, the International Trademark Association (INTA) filed an amicus curiae brief [39 pages in PDF] in which it argued that the act "does not refer to ``actual harm´´ or to an ``actual lessening´´ of selling power -- and none of the principles of statutory construction that petitioners espouse mandate adding those words to give plain meaning to the law."

As head of the Criminal Division, he has overseen the Computer Crimes and Intellectual Property Section (CCIPS). Also, he submitted prepared testimony to the House Crime Subcommittee on internet gambling on November 29, 2001. However, he did not attend the hearing. See, story titled "House Committee Holds Hearing on Internet Gambling Bills" in TLJ Daily E-Mail Alert No. 318, November 30, 2001.

Before his appointment to the DOJ he was a partner in the Newark, New Jersey, office of the law firm of Latham & Watkins. In 1995 and 1996 he was the Special Counsel to the U.S. Senate Committee conducting the Whitewater Investigation. See, White House release.

3/5. President Bush nominated Samuel Der-Yeghiayan to be a Judge of the U.S. District Court for the Northern District of Illinois. See, White House release.

3/5. The Department of Commerce's (DOC) Bureau of Industry and Security (BIS) published a final rule in the Federal Register implementing the 2002 Wassenaar Arrangement List of Dual-Use Items. This rule revises entries controlled for national security reasons in Categories 2, 3, 4, 5 Part I (telecommunications), 5 Part II (information security), 6, 7, 8, and 9 to conform with changes in the List of Dual-Use Goods and Technologies maintained and agreed to by governments participating in the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies. See, Federal Register, March 5, 2003, Vol. 68, No. 43, at Page 10586-10608.

3/5. The Senate Finance Committee held a hearing on the Bush administration's trade agenda. See, opening statement [2 pages in PDF] of Sen. Charles Grassley (R-IA), Chairman of the Committee, and opening statement [4 pages PDF] of Sen. Max Baucus (D-MT), the ranking Democrat on the Committee. See also, prepared testimony [PDF] of the U.S. Trade Representative (USTR), Robert Zoellick. Sen. Grassley said that "I'd also like to see the Administration take a more aggressive stance toward China's implementation of its WTO commitments." He also stated that "I want to make it clear that while I support the Administration’s efforts to negotiate new bilateral and multilateral free trade agreements, we can’t let these agreements supplant our efforts in the WTO. To me, successful completion of the Doha round is critical, not only to the growth of the American economy, but also to the world economy."

3/3. U.S. Trade Representative (USTR), Robert Zoellick held a joint press conference with EU Trade Commissioner Pascal Lamy. See, transcript [6 pages in PDF].

3/5. The Federal Communications Commission (FCC) released a Notice of Apparent Liability (NAL) proposing that T-Mobile USA be held liable for a $1.25 Million forfeiture for violations of its Enhanced 911 Phase I rules. See, FCC release.

3/5. The Supreme Court heard oral argument in U.S. v. American Library Association, No. 02-361. This is the CIPA case.

3/4. The U.S. District Court (DC) entered a permanent injunction against Lernout & Hauspie Speech Products (L&H) in the case SEC v. Lernout & Hauspie on February 28. See, SEC release. The Securities and Exchange Commission (SEC) alleged in its complaint that L&H "engaged in a variety of undisclosed and deceptive transactions to inflate L&H's reported income and, consequently, the price of its stock. These deceptive transactions included guaranteed and conditional sales and sales that were secretly financed by L&H. The eventual result of this fraudulent conduct was the destruction of L&H as an operating company and a financial loss, borne by investors in the U.S., Belgium and elsewhere, of at least $8 billion in market capitalization." The SEC also released an order instituting an administrative proceeding against L&H. The order revokes the registration of L&H's common stock.

3/4. The House Homeland Security Committee held its organizational meeting. It established five subcommittees: (1) Cyber Security, Science, and Research & Development, (2) Infrastructure and Border Security, (3) Rules, (4) Emergency Preparedness and Response, and (5) and Intelligence and Counterterrorism.

9:30 AM. The Senate Commerce Committee will hold a hearing on the Federal Communications Commission's (FCC) Spectrum Policy Task Force's (SPTF) report and spectrum issues. The scheduled witnesses include Steven Berry (Cellular Telecommunications and Internet Association), Kevin Kahn (Intel), Paul Kolodzy (former Chair of the FCC SPTF), Gregory Rosston (Stanford), Michael Calabrese (New America Foundation). Location: Room 253, Russell Building.

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. The agenda includes consideration of several judicial nominees, including Timothy Tymkovich (to be a Judge of the U.S. Court of Appeals for the 10th Circuit), Daniel Breen (Western District of Tennessee), Thomas Varlan (Eastern District of Tennessee), William Steele (Southern District of Alabama), and James Otero (Central District of California). The agenda also includes consideration of S113, a bill to exclude United States persons from the definition of "foreign power" under the Foreign Intelligence Surveillance Act of 1978 (FISA). The agenda also includes Subcommittee assignments for the 108th Congress. See, notice. Location: Room 226, Dirksen Building.

9:30 AM - 1:30 PM. The Communitarian Network will host a conference titled "Improving Identification: Enhancing Security, Guarding Privacy". See, agenda. Location: Room 188, Russell Building.

10:00 AM. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property will hold a hearing titled "Copyright Piracy Prevention and the Broadcast Flag". Webcast. Location: Room 2237, Rayburn Building.

10:00 AM - 12:00 PM. The Department of State's International Telecommunication Advisory Committee (ITAC) will meet. A notice in the Federal Register states that the purpose of this meeting is "to begin preparations for the meeting of the ITU Telecommunications Development Advisory Group, which will take place March 19-21, 2003 in Geneva, Switzerland", and/or "to prepare for the 2003 meeting of the Telecommunications Development Advisory Group (TDAG)". The notice also states requirements for admission. See, Federal Register, February 6, 2003, Vol. 68, at Page 6250. Location: State Department.

12:00 NOON. The Congressional Internet Caucus Advisory Committee will host a panel discussion on online privacy issues. The topics will include "whether online and offline collection should be treated the same, federal preemption, private rights of action and the impact of the Fair Credit Reporting Act and Gramm Leach Bliley debates." To attend, RSVP to rsvp@netcaucus.org or 202 638-4370. Lunch will be served. Location: Reserve Officers Association, 1st and Constitution, NE.

12:15 PM. Sen. Charles Grassley (R-IA) and Sen. Charles Schumer (D-NY) will hold a press conference to announce the introduction of the Sunshine in the Courtroom Act, a bill to allow federal trial and appellate judges to permit cameras in their courtrooms. Location: Radio TV Gallery, Capitol.

NEW DATE AND TIME. 2:30 PM. Rep. Bob Goodlatte (R-VA), Rep. Rick Boucher (D-VA), Rep. James Moran (D-VA), and others, will hold a press conference to announce the introduction of a class action reform bill. For more information, contact Elyse Bauer (Goodlatte) at 202-225-3329 or Amanda Potter (Boucher) at 202-225-3861. Location: Room 2237, Rayburn Building. (This press conference had previously been scheduled for March 5 at 2:00 PM.)

3:30 PM. Graeme Dinwoodie (Professor of Law, Chicago Kent College of Law, Illinois Institute of Technology) will give a lecture titled "Internationalizing Intellectual Property Law: Soft Law, Soft Power and Other Mechanisms". For more information, contact Julie Cohen at jec@law.georgetown.edu. Location: Georgetown University Law Center, Faculty Lounge, 600 New Jersey Ave., NW.

Day two of a three day conference hosted by the International Economic Development Council (IEDC) titled "Annual Economic Development Summit". See, program. Location: Washington Hilton.

Day three of a three day conference titled "Securing Your Cyber Frontier Through Awareness, Training and Education" hosted by the National Institute of Standards and Technology (NIST) and the Federal Information Systems Security Educators' Association (FISSEA). See, conference web site. Location: The Hilton Hotel, 8727 Colesville Road, Silver Spring, MD.

Day three of a three day conference hosted by the International Economic Development Council (IEDC) titled "Annual Economic Development Summit". See, program. At 10:00 AM, there will be a panel discussion titled "Technological Innovation". The scheduled speakers include Chris Israel (Deputy Assistant Secretary of Commerce for Technology Policy, Technology Administration), Marc Stanley (Acting Director, Advanced Technology Program, Technology Administration), and Bill Brundage (Commissioner, Office for the New Economy, State of Kentucky). Location: Washington Hilton.

9:00 AM. The General Services Administration (GSA) will hold a public meeting the implementation of Section 211 of the E-Government Act of 2002. The GSA published a notice of proposed rulemaking in the Federal Register, January 23, 2003, Vol. 68, No. 3220, at Pages 3220-3225. Section 211 authorizes the Administrator of GSA to provide for the use by States or local governments of its Federal Supply Schedule for "automated data processing equipment (including firmware), software, supplies, support equipment, and services ..." See, notice of meeting in Federal Register, February 21, 2003, Volume 68, No. 35, at Page 8486-8487. Location: 1931 Jefferson Davis Highway, Crystal Mall Building 3, Room C-43, Arlington, VA. The closest Metro station is Crystal City.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in United Church of Christ v. FCC, No. 02-1039. Judges Randolph, Rogers and Williams will preside. Location: 333 Constitution Ave., NW.

9:30 AM - 4:30 PM. The Consumer Electronics Association (CEA) will host a conference titled "Surmounting the HDTV Summit". See, schedule and information and registration page. Location: Renaissance Washington Hotel.

2:00 PM. The Information Technology Association of America (ITAA) will host a webcast event titled "RIAA's Litigation Against Verizon". The speaker will be Sarah Deutsch, VP and Associate General Counsel of Verizon Communications. See, registration page. For more information, contact Mark Uncapher at muncapher@itaa.org. On January 21, 2003, the U.S. District Court (DC) issued its opinion in RIAA v. Verizon, ruling that copyright holders can obtain subpoenas pursuant to 17 U.S.C. § 512(h) that require ISPs to reveal the identities of their customers who infringe copyrights on peer to peer filing sharing systems. Verizon had argued that 512(h) subpoenas were only available with respect to infringers who stored infringing content on the servers of the ISP. See also, TLJ story titled "District Court Rules DMCA Subpoenas Available for P2P Infringers", January 21, 2003.

Day one of a two day annual meeting of the Advanced Television Systems Committee (ATSC). Location: Grand Hyatt Hotel, 1000 H Street, NW.

Extended deadline to submit reply comments to the Copyright Office (CO) in response to its current rulemaking proceeding concerning exemptions to the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). Initial comments proposing exemptions for specific classes of works were due by December 18, 2002. Reply comments were due February 19. Static Control Components (SCC) filed a late petition [14 pages in PDF] requesting that the CO also consider the following additional proposed exemptions in its pending rulemaking proceeding: "1. Computer programs embedded in computer printers and toner cartridges and that control the interoperation and functions of the printer and toner cartridge 2. Computer programs embedded in a machine or product and which cannot be copied during the ordinary operation or use of the machine or product 3. Computer programs embedded in a machine or product and that control the operation of a machine or product connected thereto, but that do not otherwise control the performance, display or reproduction of copyrighted works that have an independent economic significance." The CO granted this petition and extended the deadline. See, the CO's original Notice of Inquiry in the Federal Register, October 15, 2002, Vol. 67, No. 199, at Pages 63578-63582, and notice of extension in the Federal Register, February 10, 2003, Vol. 68, No. 27, at Pages 6678-6679.

8:30 AM - 5:00 PM. The National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB), which was previously named the Computer System Security and Privacy Advisory Board (CSSPAB), will meet. This is the first day of a three day meeting. See, agenda in notice in the Federal Register, February 28, 2003, Vol. 68, No. 40, at Pages 9638 - 9639. Location: NIST, Bethesda Hyatt Regency Hotel, 7400 Wisconsin Avenue, Bethesda, MD.

9:00 AM - 3:45 PM. The National Institute of Standards and Technology's (NIST) Advanced Technology Program Advisory Committee will meet. See, notice in the Federal Register, February 28, 2003, Vol. 68, No. 40, at Page 9638. Location: NIST, Administration Building, Lecture Room B, Gaithersburg, Maryland.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Ranger Cell v. FCC, No. 02-1093. Judges Ginsburg, Edwards and Garland will preside. Location: 333 Constitution Ave., NW.

6:00 - 8:00 PM. The Federal Communications Bar Association's (FCBA) Legislative Committee will host a reception for members of the House and Senate Commerce Committees. See, registration form [PDF] for prices. Location: Room 106, Dirksen Building.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking, (FNPRM), released last month, regarding whether providers of various services and devices not currently within the scope of the FCC's 911 rules should be required to provide access to emergency services. This is CC Docket No. 94-102 and IB Docket No. 99-67. See, notice in the Federal Register, January 23, 2003, Vol. 68, No. 15, at Pages 3214 - 3220, and notice of extension.

TIME? Phil Bond, Under Secretary of Commerce for Technology, will participate in a panel discussion at the Conference on Nanotechnology on "Implications for U.S. Economic Growth -- The Global Nanotech Race" at the Woodrow Wilson International Center. For more information, contact Connie Correll at 202 482-1065. Location: Ronald Reagan Building, One Woodrow Wilson Plaza, 1300 Pennsylvania Ave., NW.

Tentative. 12:15 PM. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a brown bag lunch. The topic will be FCC antitrust merger reviews. The speakers will include Jim Bird (head of the Federal Communications Commission's (FCC) Office of General Counsel's (OGC) Transactional Team) and Jim Barker (Latham & Watkins). For more information, contact Lauren Kravetz at 202 418-7944 or lkravetz@fcc.gov. This event had originally been scheduled for February 19, but was postponed due to snow.

Deadline to submit applications to the Department of Commerce (DOC) to participate in "Information and Communications Technologies Business Development Mission" to Northern Ireland and the Republic of Ireland on April 6-11, 2003. The DOC stated that this mission will offer "Numerous opportunities for trade and partnership in e-commerce, telecommunications, electronics, and software. Also opportunities for partnership in R&D in lab and university and cross-border initiatives." See, notice and application form [PDF].