5/20. The Senate Judiciary Committee held an executive business meeting to mark up bills and consider nominations.

The Committee approved, without objection, and without debate, the nomination of Jon Dudas to be Director of the U.S. Patent and Trademark Office (USPTO). See, story titled "Senate Judiciary Committee Holds Hearing on Nomination of Dudas to Head the USPTO" in TLJ Daily E-Mail Alert No. 894, May 10, 2004.

The Committee held over, yet again, the nomination of Henry Saad to be a Judge of the U.S. Court of Appeals (6thCir).

The Committee amended and approved S 1933, the "Enhancing Federal Obscemity Reporting and Copyright Enforcement (ENFORCE) Act of 2004". See, following story, titled "Senate Judiciary Committee Approves ENFORCE Act".

The Committee held over S 1635, the "L-1 Visa (Intracompany Transferee) Reform Act of 2003".

The Committee also held over S 2013, the "Satellite Home Viewer Extension Act of 2004".

5/20. The Senate Judiciary Committee amended and approved, S 1933, the "Enhancing Federal Obscemity Reporting and Copyright Enforcement (ENFORCE) Act of 2004".

Sen. Orrin Hatch (R-UT), Sen. Dianne Feinstein (D-CA) and Sen. John Cornyn (R-TX) introduced this bill on November 21, 2003. See, story titled "Sen. Hatch Introduces Bill With Numerous Amendments to Copyright Act" in TLJ Daily E-Mail Alert No. 791, December 3, 2003. (This story summarizes this bill in detail.)

The bill contains provisions regarding harmless errors in copyright registration certificates, remedies for copyright infringement, the antitrust exemption for negotiations regarding compulsory licensing, Department of Justice (DOJ) investigation of crimes involving computer hacking and intellectual property, authorization of appropriations for the DOJ, and reporting to Congress.

The Committee approved an amendment at its executive business meeting on May 20 that contains technical changes. There was no debate, discussion, or roll call vote. The amendment, and the bill as amended, were approved without objection.

The amendment changes the title of the bill from ENFORCE Act of 2003 to ENFORCE Act of 2004. In the section regarding harmless errors in registration certificates, it changes the references to "the inaccurate information" to "the inaccuracy of the information".

In the section requiring the DOJ to provide reports to the Congress regarding the number of misdemeanor and felony prosecutions under certain enumerated statutory sections, the amendment adds several statutory sections to the enumeration. It adds 18 U.S.C. §§ 1462, 1464, 1465, 1466, 1466A, and 1470, all of which pertain to obscemity.

Section 1464 criminalizes the broadcasting of obsceme language in a radio broadcast.

Finally, the amendment changes the language in the bill that revises 17 U.S.C. § 115(c)(3)(B), which pertains to the application of antitrust law to negotiations regarding royalties payable under compulsory license. The bill, as amended by the Committee, provides that "Section 115(c)(3)(B) of title 17, United States Code, is amended in the first sentence -- (1) by striking ``under this paragraph´´ and inserting ``under this section´´; and (2) by inserting ``on a nonexclusive basis´´ after ``common agents´´."

5/20. The House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property (CIIP) held a hearing titled "Derivative Rights, Moral Rights, and Movie Filtering Technology".

This hearing addressed DVD filtering technology that enables viewers to play certain movies, with violence, nudity, and/or profanity removed. There is also a pending lawsuit regarding ClearPlay's technology -- Huntsman v. Soderbergh, U.S. District Court for the District of Colorado, D.C. No. 02-1662 (MJW). This case involves legal issues of copyright infringement, derivative works, and Section 43 of the Lanham Act.

Rep. Lamar Smith (R-TX) wrote in his opening statement that "a studio or director should also not be able to use the law to force me or my children to watch a movie in a particular way. And it is unrealistic and impractical to expect parents to monitor their children’s video habits 24 hours a day. They need help and support." He concluded, "ClearPlay the technology does not create derivative works".

Rep. Howard Berman (D-CA), who represents a Los Angeles area district that is home to many people involved in the movie industry, wrote in his opening statement that "I'm not sure any of these issues are ripe for a congressional hearing. The movie studios, directors, and ClearPlay are actively engaged in licensing negotiations to resolve their dispute. As I understand it, those negotiations had been close to a mutually acceptable conclusion. The public posturing and adversarial nature inherent in congressional hearings is bound to set back these negotiations, and thus thwart the stated purpose of this hearing."

Bill Aho, the President of ClearPlay, explained his company's technology in his prepared testimony. He wrote that "
ClearPlay parental controls are a feature available on DVD players, or on any consumer electronics device that plays movies. They work with ClearPlay Movie Filters, which are uniquely created for each movie as it is released on DVD. These filters identify, or tag, frames that have specific content, such as graphic violence, nudity or different kinds of profanity. The customer chooses how to watch the movie -- either with ClearPlay off or with ClearPlay on, using any combination of the 14 ClearPlay Filters, for over 16,000 different potential settings. ClearPlay’s frame-accurate technology seamlessly skips and mutes over objectionable content. It does not dub or add content."

Majorie Heims (Free Expression Policy Project) wrote in her prepared testimony [41 pages in PDF] that "this technology is a bad idea, because it reflects a simplistic and erroneous view of how art affects human beings. It suggests that the way to protect our children and adolescents from controversial or troubling media content is to censor rather than educate them."

See also, prepared testimony of Joanne Cantor (University of Wisconsin) and prepared testimony of Jeff McIntyre (American Psychological Association) regarding the effect of media violence upon children.

5/17. Rep. Michael Capuano (D-MA) introduced HR 4373, the "Furthering Education and Research through Mantis Improvements Act", or "FERMI Act".

Rep. Capuano (at left) represents a university district. It includes Cambridge, Somerville, and MIT.

The bill recites in its findings that "Individuals wishing to come to the United States as nonimmigrants to study or work temporarily in the life sciences, physical sciences, or engineering are required to undergo and pass a security check known as a Visas Mantis, which is designed to protect against illegal transfers of sensitive technology."

The bill makes several changes to the Visas Mantis security check program.

The bill was referred to the House Judiciary Committee. Rep. Capuano is not a member.

5/18. Rep. Anna Eshoo (D-CA) spoke in the House regarding E-911 calls. The House passed HR 2898, the "E-911 Implementation Act of 2003" last November. She called upon the Senate to pass the bill.

Rep. Eshoo (at right) said that "every day in America there are over 150,000 911 calls made from a cell phone. This represents more than 25 percent of all 911 calls made in our country. Each one of these calls is singly one of the most important ones that an individual will make."

"Yet most Americans would be shocked to learn that the majority of our country's Public Safety Answering Points still do not have Enhanced 911, or E-911, technology needed to track the location of the emergency caller on their mobile phone. This is unacceptable. Most, if not all, mobile phone users buy them for the added security of knowing that if they need to make a 911 call, help will be on the way shortly", said Rep. Eshoo.

"I am proud that the House, supported by the E-911 Caucus, passed legislation providing Federal grants to enhance our emergency communications system and make E-911 a reality. Now it is time for the other body to act." See, Congressional Record, May 17, 2004 at Page H3096.

Rep. John Shimkus (R-IL), the sponsor of the bill, spoke in the House on May 5. He too urged the Senate to pass the bill. See, Congressional Record, May 5, 2004, at Pages H2551-2.

On November 4, 2003, the House passed HR 2898, the "E-911 Implementation Act of 2003", by unanimous voice vote. The bill, which is sponsored by Rep. Shimkus, Rep. Eshoo and others, would authorize the appropriation of $500 Million in grants over five years to upgrade public safety answering point (PSAP) facilities, establish an E-911 Coordination Office at the Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) to improve coordination among federal, state and local public safety officials, penalize states for redirecting E-911 funds collected from consumer's cell phone bills, and direct the FCC to study E-911 implementation in rural areas.

See also, stories titled "Representatives Introduce E911 Implementation Act" in TLJ Daily E-Mail Alert No. 707, July 30, 2003; and "House Commerce Committee Approves E-911 Implementation Act" in TLJ Daily E-Mail Alert No. 751, October 2, 2003; and "House Passes E-911 Implementation Act" in TLJ Daily E-Mail Alert No. 773, November 6, 2003.

The full Senate has not yet passed a bill. On July 17, 2003, the Senate Commerce Committee (SCC) approved a similar bill, S 1250, the "Enhanced 911 Emergency Communications Act of 2003 ", by unanimous voice vote. See, story titled "Senate Commerce Committee Approves E-911 Bill" in TLJ Daily E-Mail Alert No. 701, July 18, 2003.

5/19. The U.S. Court of Appeals (11thCir) issued its opinion [11 pages in PDF] in MCI v. Mastec, a case regarding the availability of loss of use damages following severance of an underground fiber-optic cable. Rather than decide the case, the Appeals Court certified two questions of law to the Florida Supreme Court.

Mastec severed one of MCI's underground fiber optic cables. MCI was able to reroute traffic on its facilities. MCI filed a complaint in U.S. District Court (SDFl), under diversity jurisdiction, against Mastec. MCI sought to recover for loss of use of the cable for the time that it remained severed. Since this is a diversity case, the applicable law is that of the state, Florida, where the case arose.

The District Court held that MCI was not entitled to loss of use damages. The Appeals Court held that this case involves unsettled issues of Florida state law, and certified two questions to the Supreme Court of Florida.

First, "Is a telecommunications services carrier entitled to damages for the loss of use of a fiber-optic cable damaged by a defendant when the carrier intended to have the full capacity of the damaged cable available for its use should the need have arisen, but the carrier was able to accommodate within its own network the telecommunications traffic carried by the damaged cable and the carrier presented no evidence that it suffered loss of revenue or other damages during the time the cable was unavailable?"

Second, "If the telecommunications carrier is entitled to loss of use damages, does the pre-injury value of the damaged cable establish a limit to those damages, or should the fair market rental value of an equivalent replacement cable for the time reasonably necessary to make repairs serve as the measure of loss of use damages?"

This case is MCI WorldCom Network Services, Inc. v. Mastec, Inc., App. Ct. No. 03-13022, an appeal from the U.S. District Court for the Southern District of Florida, App. Ct. No. 03-13022, D.C. No. 01-02059-CV-ASG.

5/20. Rep. Kendrick Meek (D-FL) and others introduced HR 4414 [21 pages in PDF], the "Strengthening Homeland Innovation to Emphasize Liberty, Democracy, and Privacy Act" or the "SHIELD Privacy Act"

Rep. Meek stated in a release that "It would be a hollow victory to win the War on Terror at the cost of our own democratic values, and that’s why this bill is so important -- it will keep federal agencies focused on civil liberties and ensure that law-abiding citizens’ rights are respected".

Rep. Meek (at right) is a member of the House Homeland Security Committee.

The bill provides that "The President shall designate a senior official within the Office of Management and Budget as the Chief Privacy Officer, who shall have primary responsibility for privacy policy throughout the Federal Government."

The bill provides that the responsibilities of this Chief Privacy Officer (CPO) shall include "Assuring that the technologies procured and use of technologies by the Federal Government sustain, and do not erode, privacy protections relating to the use, collection, and disclosure of personally identifiable information."

It also provides that "The head of each department and each independent agency in the executive branch shall appoint a senior official of the department or independent agency, respectively, to assure primary responsibility for privacy policy".

The bill would also require the preparation of privacy impact assessments.

The bill would also create an entity titled "Commission on Privacy, Freedom, and Homeland Security". This commission would have authority to hold hearings, issue subpoenas to federal entities, propound interrogatories, and make recommendations. However, it would not possess any administrative, rulemaking, or adjudicatory authority.

The House will not meet. It will next meet on June 1.

The Senate will meet at 9:30 AM for morning business. It will then resume consideration of S 2400, the FY 2005 Department of Defense Authorization bill.

Day one of a two day conference hosted by the Electronic Privacy Information Center (EPIC) titled "Freedom 2.0: Distributed Democracy". The topics to be addressed include the reliability of electronic voting systems, enabling public participation, government accountability, secrecy and surveillance, Freedom of Information Act, open government initiatives, privacy enhancing technologies, anonymity and identity, trans border data flows, radio frequency identification (RFID), biometrics, Civil Society, World Summit on the Information Society, United Nations Information and Communications Technology Task Force, ICANN, and UNESCO. See, conference web site. Location: Washington Club, 15 Dupont Circle.

Deadline to submit comments to the Federal Trade Commission (FTC) for its June 21, 2004 workshop on the uses, efficiencies, and implications for consumers associated with radio frequency identification (RFID) technology. See, FTC web page for this workshop, and notice in the Federal Register, April 15, 2004, Vol. 69, No. 73, at Pages 20523 - 20525.

Extended deadline to submit comments to the Federal Trade Commission (FTC) regarding its April 19, 2004 workshop titled "Monitoring Software on Your PC: Spyware, Adware, and Other Software". See, notice in the Federal Register, April 1, 2004, Vol. 69, No. 63 at Pages 17155 - 17156.

The House and Senate will not meet on May 24 through May 31.

Day two of a two day conference hosted by the Electronic Privacy Information Center (EPIC) titled "Freedom 2.0: Distributed Democracy". The topics to be addressed include the reliability of electronic voting systems, enabling public participation, government accountability, secrecy and surveillance, Freedom of Information Act, open government initiatives, privacy enhancing technologies, anonymity and identity, trans border data flows, radio frequency identification (RFID), biometrics, Civil Society, World Summit on the Information Society, United Nations Information and Communications Technology Task Force, ICANN, and UNESCO. See, conference web site. Location: Washington Club, 15 Dupont Circle.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) regarding deployment of advanced telecommunications capability to all Americans in a reasonable and timely fashion, and possible steps to accelerate such deployment. The FCC is required by Section 706 of the Telecommunications Act of 1996 to provide an annual report to the Congress on this subject. See, notice in the Federal Register, April 8, 2004, Vol. 69, No. 68, at Pages 18508 - 18515. This is GN Docket No. 04-54.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding the Emergency Alert System (EAS). See, notice in the Federal Register, April 9, 2004, Vol. 69, No. 69, at Pages 18857 - 18859.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rule making (NPRM) regarding expanding the disruption reporting requirements beyond wireline carriers. See, notice in the March 26, 2004, Vol. 69, No. 59, at Pages 15761 - 15774.

11:45 AM - 2:00 PM. The DC Bar Association's Intellectual Property Law Section will host a lunch. The speaker will be Nicholas Godici, Commissioner for Patents at the U.S. Patent and Trademark Office (USPTO). Prices range from $35 to $65. See, notice. Location: The Westin Grand, 2350 M Street, NW.

The Cato Institute will host a debate titled "The FCC’s Media Ownership Decision One Year Later". The speakers will be Adam Thierer (Cato) and Andrew Schwartzman (Media Access Project). Lunch will be served. See, notice and registration page. Location: Room B-339, Rayburn Building, Capitol Hill.

5:30 - 9:00 PM. The Federal Communications Commission's (FCC) Localism Task Force will hold a field meeting in Rapid City, South Dakota. The FCC states in its notice [PDF] that "A live audiocast of the hearing will be available at the FCC’s website at www.fcc.gov on a first-come, first-served basis" and "The public may also file comments or other documents with the Commission and should reference RM-10803". See also, notice in the Federal Register, May 19, 2004, Vol. 69, No. 97, at Page 28888.

Deadline to submit comments to the European Commission regarding its draft regulation [16 pages in PDF] implementing the EC's January 20, 2004 merger regulation [22 pages in PDF]. The merger regulation is No. 139/2004.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) [97 pages in PDF] regarding issues relating to services and applications utilizing internet protocol (IP). This NPRM is FCC 04-28 in WC Docket No. 04-36. See, notice in the Federal Register, March 29, 2004, Vol. 69, No. 60, at Pages 16193 - 16202. See also, story titled "FCC Adopts NPRM Regarding Regulation of Internet Protocol Services" in TLJ Daily E-Mail Alert No. 837, February 16, 2004.

Memorial Day. The FCC and other federal agencies will be closed. There will be no issue of the TLJ Daily E-Mail Alert.

5/19. Sen. Ron Wyden (D-OR) announced in a release his intent to place a hold on the nomination of Deborah Majoras to become Chairman of the Federal Trade Commission (FTC). The hold is not technology related. Sen. Wyden stated that he wants to "protect consumers from high gasoline prices". He added that he has "received no indication from Majoras that under her leadership the agency would take any steps to end numerous and well-documented anti-competitive practices that drive up gasoline prices nationwide and particularly in the Northwest."

Sen. Wyden also spoke at greater length in the Senate about gasoline prices and Majoras. He concluded by stating that "It is my intention to continue to object to Senate consideration of the nominee to head the Federal Trade Commission until that agency is willing to tell the people of our State and the people of this country that there are going to be some changes and there is going to be some competition again in the gasoline markets of our country." See, Congressional Record, May 19, 2004, at Page: S5736-8.

See also, story titled "Muris Resigns, Majoras Nominated" in TLJ Daily E-Mail Alert No. 896, May 12, 2004.

5/18. The Senate confirmed Marcia Cooke to be a Judge of the U.S. District Court for the Southern District of Florida.

5/18. Rep. Carolyn Maloney (D-NY), and others from New York City or nearby, introduced HR 4386. The bill states that its title is "9/11 Can You Hear Me Now Act". It would require the federal Department of Homeland Security (DHS) to buy communications equipment for the New York City Fire Department. The bill was referred to the House Commerce Committee. None of the original sponsors (Maloney, Shays, Rangel, Nadler, and McNulty) are members of this Committee. None of the NYC area members of the Committee (Engel, Towns, and Fosella) are original sponsors of the bill. The bill would require that the DHS "shall, by not later than 1 year after the date of the enactment of this Act, procure development and provision of a communications system for the New York City Fire Department, including appropriate radios for the entire department and upgrades to the critical information dispatch system of the department."

5/20. The Senate Judiciary Committee held a hearing titled "FBI Oversight: Terrorism and Other Topics". The only witness was Robert Mueller, Director of the Federal Bureau of Investigation. The hearing also addressed many topics, including extension of the provisions of the USA PATRIOT Act that are scheduled to sunset, and the use of information technology at the FBI. The next issue of the TLJ Daily E-Mail Alert will contain further coverage.

5/20. Rep. James Sensenbrenner (R-WI) and Rep. John Conyers (D-MI), the Chairman and ranking Democrat on the House Judiciary Committee (HJC), introduced HR 4412, the "Clarification of Antitrust Remedies in Telecommunications Act of 2004", a bill that provides that violations of the Telecommunications Act of 1996 may be actionable under antitrust law. The HJC issued a release that states that the opinion [22 pages in PDF] of the Supreme Court in Verizon v. Trinko and the opinion of the U.S. Court of Appeals (7thCir) in Goldwasser v. Ameritech are "erroneous judicial decisions". The next issue of the TLJ Daily E-Mail Alert will contain further coverage.