12/10. The Supreme Court granted certiorari in MGM Studios v. Grokster, 04-480. See, Order List [2 pages in PDF], at page 2.

On August 19, 2004, the U.S. Court of Appeals (9thCir) issued its opinion [26 pages in PDF] affirming the District Court judgment that Grokster's and Streamcast's peer to peer (P2P) file copying networks do not contributorily or vicariously infringe the copyrights of the holders of music and movie copyrights. See also, April 25, 2003, opinion of the U.S. District Court (CDCal), which the Appeals Court followed and praised.

See, story titled "9th Circuit Holds No Vicarious Infringement in Grokster Case" in TLJ Daily E-Mail Alert No. 963, August 20, 2004; story titled "Movie and Music Industry Entities File Cert Petition in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 994, October 11, 2004; story titled "PFF Urges Supreme Court to Grant Certiorari in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,014, November 9, 2004; and, story titled "Summary of Briefs in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,020, November 17, 2004.

Mitch Bainwol, Ch/CEO of the Recording Industry Association of America (RIAA), stated in a release that "We appreciate that the Supreme Court has agreed to review this case. There are seminal issues before the Court -- the future of the creative industries and legitimate Internet commerce. These are questions not about a particular technology, but the abuse of that technology by practitioners of a parasitical business model."

He continued that "Bad actors who have hijacked a legitimate technology for illegitimate means must be held accountable. Without strong rules of the road, there will never be a level playing field for the multitude of legitimate online music services trying to do the right thing. The launch of legitimate file sharing companies like Snocap and Wurld Media highlight that there is a right way and a wrong way to distribute music online. Already, compelling, viable technological tools like filtering are available and are being utilized in the marketplace. Peer-to-peer networks today filter for viruses, so why not filter out infringing copyrighted works as well?"

In contrast, Gigi Sohn, President of Public Knowledge, stated in a release that "While we are disappointed that the Court has taken the case, we believe strongly that at the end of the day, the 1984 Sony Betamax doctrine, which has done so much to promote technological innovation to improve the lives of consumers, will be reaffirmed. The big content companies are trying to accomplish in this case what they have failed to do in the 20 years since Betamax, and what they have failed this year to accomplish in Congress -- to put restrictions on new technologies that suit their purposes not the needs of consumers."

Similarly, the Home Recording Rights Coalition (HRRC) stated in a release that "The Supreme Court's Betamax doctrine has been a fundamental basis of support for the introduction of so many products and services that are valued today by both consumers and all industries. We trust that in taking up this particular case, the Court will do no harm to the ability of entrepreneurs and consumers to rely on this vital precedent."

The Supreme Court held in its 1984 opinion in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, held that Sony did not contributorily infringe with its Betamax technology. It was a 5-4 opinion.

Sohn added that "The evidence that file-sharing has significantly hurt the large content companies is very thin. But the trade-off of giving content companies more control over the development of technologies and of overturning Betamax, would be very significant and very harmful to consumers and to our economy."

12/10. The Supreme Court granted certiorari in San Remo Hotel v. San Francisco, No. 04-340. See, Order List [2 pages in PDF], at page 1. The Court wrote that "The petition for a writ of certiorari is granted limited to Question 1 presented by the petition."

This is a petition for writ of certiorari to the U.S. Court of Appeals (9thCir). The 9th Circuit upheld a San Francisco ordinance that prevents owners of residential hotels from converting their properties into tourists hotels, over a takings clause challenge. The 9th Circuit wrote in its April 14, 2004 opinion [18 pages in PDF] that the property owner is barred from litigating its challenge because of a determination by the courts of the state of California. See, March 4, 2002 opinion [85 pages in PDF] of the Supreme Court of California.

This case is U.S. Sup. Ct. No. 04-340, and App. Ct. No. 03-15853.

12/10. The decisions of the U.S. Court of Appeals (9thCir) have not fared well recently before the Supreme Court.

The Supreme Court has granted eight petitions for writ of certiorari in the last two weeks. Two have merely granted certiorari, vacated and remanded in light of recent opinions in similar cases. Three others have pertained to criminal justice. The three most significant cases in which the Supreme Court has granted certiorari are all 9th Circuit cases -- MGM v. Grokster (P2P systems and vicarious infringement), FCC v. Brand X (FCC's regulatory treatment of cable modem service), and San Remo Hotel v. San Francisco (regulatory takings).

The Supreme Court has also issued four opinions in the last two weeks. In two of these, KP v. Lasting (trademark and fair use) and San Diego v. Roe (first amendment), the Supreme Court vacated or reversed judgments of the 9th Circuit. Technically, the Supreme Court also granted certiorari in San Diego v. Roe.

See also, story titled "Supreme Court Grants Certiorari in Brand X Case" in TLJ Daily E-Mail Alert No. 1,030, December 3, 2004; story titled "Supreme Court Reverses in San Diego v. Roe" in TLJ Daily E-Mail Alert No. 1,032, December 7, 2004; story titled "Supreme Court Rules on Fair Use in Trademark Case" in TLJ Daily E-Mail Alert No. 1,034, December 9, 2004; and, stories titled "Supreme Court Grants Certiorari in P2P Case" and "Supreme Court Grants Certiorari in Takings Clause Case" in this issue.

12/8. The Senate approved HR 3632, the "Intellectual Property Protection and Courts Amendments Act of 2004", by unanimous consent, without debate. See, Congressional Record, December 8, 2004, at Page S12028.

The House approved this composite bill by voice vote on September 21, 2004. See, story titled "House Approves Anti-counterfeiting Amendments of 2003 and Fraudulent Online Identity Sanctions Act" in TLJ Daily E-Mail Alert No. 981, September 22, 2004.

The bill is now ready for the President's signature.

Rep. Lamar Smith (R-TX) and others introduced this bill (HR 3632), in its original form, on November 21, 2003. This bill has also been titled "Anti-counterfeiting Amendments of 2003" and "Anti-counterfeiting Amendments Act of 2004". It also includes the "Fraudulent Online Identity Sanctions Act", which was also a stand alone bill (HR 3754).

See, stories titled "Rep. Smith Introduces Bill to Strengthen Ban on Counterfeit Labeling of Software, Movies and Music" in TLJ Daily E-Mail Alert No. 787, November 26, 2003, and "Representatives Introduce Bill to Deter Domain Name Fraud" in TLJ Daily E-Mail Alert No. 830, February 5, 2004.

The bill also includes two bills to provide for additional meeting places of federal courts -- in Colorado Springs, Colorado, and Plattsburg, New York.

The anti-counterfeiting provisions revise and expand 18 U.S.C. § 2318, which pertains to trafficking in counterfeit labels, documentation and packaging of computer programs, phonorecords, and movies.

Robert Holleyman, P/CEO of the Business Software Alliance (BSA), praised the bill and the Senators and Representatives who worked to secure its passage. He stated in a release that "In recent years, we have seen a dramatic increase in the amount of 'look alike' counterfeit software imported into the U.S., especially from Asia. Unlike the obvious fakes sold on street corners, counterfeit software is marketed as a genuine product to unsuspecting consumers. In fact, using security features such as genuine holograms on pirated copies of software was, unfortunately, legal. This legislation now makes it illegal to use legitimate security features on pirated and counterfeit software products, an important amendment to existing law which will go a long way to protecting consumers."

The bill provides that "Whoever ... knowingly traffics in--
  (1) a counterfeit label or illicit label affixed to, enclosing, or accompanying, or designed to be affixed to, enclose, or accompany--
    (A) a phonorecord;
    (B) a copy of a computer program;
    (C) a copy of a motion picture or other audiovisual work;
    (D) a copy of a literary work;
    (E) a copy of a pictorial, graphic, or sculptural work;
    (F) a work of visual art; or
    (G) documentation or packaging; or
  (2) counterfeit documentation or packaging,
shall be fined under this title or imprisoned for not more than 5 years, or both."

The bill addresses not only "counterfeit label"s, but also "illicit label"s. It defines this latter category as genuine labels that are used without the authorization of the copyright holder.

More specifically, the bill provides that an "illicit label" is "a genuine certificate, licensing document, registration card, or similar labeling component--
  (A) that is used by the copyright owner to verify that a phonorecord, a copy of a computer program, a copy of a motion picture or other audiovisual work, a copy of a literary work, a copy of a pictorial, graphic, or sculptural work, a work of visual art, or documentation or packaging is not counterfeit or infringing of any copyright; and
  (B) that is, without the authorization of the copyright owner--
    (i) distributed or intended for distribution not in connection with the copy, phonorecord, or work of visual art to which such labeling component was intended to be affixed by the respective copyright owner; or
    (ii) in connection with a genuine certificate or licensing document, knowingly falsified in order to designate a higher number of licensed users or copies than authorized by the copyright owner, unless that certificate or document is used by the copyright owner solely for the purpose of monitoring or tracking the copyright owner's distribution channel and not for the purpose of verifying that a copy or phonorecord is noninfringing".

The bill also creates a new civil remedy for violation of these anti-counterfeiting provisions.

The unopposed votes to approve HR 3632 in the House in September, and the Senate in December, belie the long and difficult history of the Anti-counterfeiting Amendments bill. Proponents of this bill have introduced several versions over two Congresses, and held many hearings and markups. Proponents have also tried to enact this bill by including it in other composite legislation.

Sen. Joe Biden (D-DE) and Rep. Lamar Smith (R-TX) have been two of the Anti-counterfeiting Amendments Act's most active proponents.

The Fraudulent Online Identity Sanctions Act component of the bill addresses problems associated with the registration of domain names with false information.

Law enforcement authorities use the Whois database of domain name registration information to identify and locate people who use web sites to commit crimes. False registration information makes identifying the fraud artists more difficult. Similarly, false registration information makes it harder for trademark holders to pursue cybersquatters who register domain names that infringe their trademarks. False registration information also makes it harder for copyrights holders and manufacturers to locate online infringers and online sellers of counterfeit goods.

12/8. The Senate approved HR 5382, the "Commercial Space Launch Amendments Act of 2004", by unanimous consent, without debate. See, Congressional Record, December 8, 2004, at Page S12029.

The House approved this bill on November 20, 2004, by a vote of 269-120. See, Roll Call No. 541. See also, story titled "House Approves Commercial Space Launch Bill" in TLJ Daily E-Mail Alert No. 1,025, November 24, 2004.

This bill is now ready for the President's signature.

This bill is a revised version of HR 3752, which the House approved back on March 4, 2004, by a vote of 402-1. See, Roll Call No. 39. The House Science Committee stated in a release that HR 5382 "had faced an uncertain future up until the last minutes of the Congress. The final version of the bill was hammered out in months of bipartisan negotiations between the House Science Committee and the Senate Committee on Commerce, Science and Transportation that resulted in an agreement on Nov. 12.  That agreement then ran into several roadblocks in the House and Senate, and the bill appeared all but dead until final holds were lifted in the Senate last night."

HR 5382 amends the Commercial Space Launch Act, Public Law No. 98-575, which is codified at 49 U.S.C. § 70101, et seq. Rep. Dana Rohrabacher (R-CA), the sponsor of the bill, stated in this release that "The people who will invest the type of big dollars necessary to make this a major new step in mankind's ascent into space have been waiting for the government to lay down the regulatory regime and set the rules of the game, and this is the first major step towards doing that."

12/7. Rep. Carolyn Maloney (D-CA) and Rep. George Miller (D-CA) introduced HRes 875, a resolution to amend the House rules to require that certain legislation be available to the public via the internet 24 hours been consideration on the House floor.

This resolution would amend clause 6(c) of House Rule XIII. Clause 6(c) begins with the phrase "The Committee on Rules may not report --". It then lists two items that the Committee may not report. The resolution would add a third item, which is as follows:

"(3) a rule or order eliminating the reading in full of any bill, resolution, conference report, or amendment unless such measure is available to all Members and made available to the general public by means of the Internet for at least 24 hours before its consideration."

The Rules Committee plays a gate keeping and agenda setting role in the House of Representatives. It often meets early in the evening and adopts a rule for consideration of an important bill to be taken up the following morning or afternoon. The Rules Committee usually, but not always, publishes in its web site a copy of the rule, as well as any amendments that are made in order by the rule. However, this publication is less than 24 hours before consideration. Also, the Rules Committee sometimes does not publish the bill or amendments, especially large composite bills and conference reports considered at the tail end of a session.

12/10. The Federal Communications Commission (FCC) released a Forfeiture Order that fines three broadcast licensees $10,000 for violation of 47 C.F.R. § 1.1310 in connection with their operation of broadcast towers in the Los Angeles, California, area that exceed maximum radiofrequency (RF) radiation exposure limits. The FCC fined Radio One Licenses, LLC, licensee of FM radio station KKBT, Infinity Broadcasting Operations, Inc., licensee of FM radio station KRTH-FM, and Telemundo of Los Angeles License Corporation, licensee of TV station KWHY-TV. See also, FCC release.

12/10. The Government Accountability Office (GAO) released a report [76 pages in PDF] titled "Federal Communications Commission: Federal Advisory Committees Follow Requirements, but FCC Should Improve Its Process for Appointing Committee Members". The FCC currently maintains seven federal advisory committees that are covered by the Federal Advisory Committee Act (FACA). These are the follows the Advisory Committee for the 2007 World Radiocommunication Conference (WRC-07 AC), Advisory Committee on Diversity for Communications in the Digital Age, Consumer Advisory Committee (CAC), Media Security and Reliability Council (MSRC), Network Reliability and Interoperability Council (NRIC), North American Numbering Council (NANC), and Technological Advisory Council (TAC).

12/10. The U.S. Patent and Trademark Office's (USPTO) Office of Public Affairs (OPA) has moved to the USPTO's new headquarters in Alexandria, VA. The new number for Brigid Quinn and the OPA is 571 272-8400. The new address is 600 Dulany Street, Madison West Building, First Floor, Alexandria, VA 22314. See, notice.

The Senate will next meet on January 4, 2005 at 12:00 NOON.

The Supreme Court will begin a recess that will last through Monday, January 10, 2005. See, Order List [9 pages in PDF] at page 9.

12:30 PM. There will be an event titled "Fowler FCC Luncheon". Location: National Press Club, 529 14th St. NW, 13th Floor.

8:30 AM - 4:00 PM. The CTIA will host a one day seminar on the Federal Communications Commission's (FCC) Nationwide Programmatic Agreement [PDF] and the FCC/USET Tribal Best Practices Agreement. These pertain to the FCC's historic preservation review process. The price to attend is $200 for CTIA members and $300 for non-members. The deadline to register is December 10. See, notice. Location: CTIA, 1400 16th Street, NW.

TIME CHANGE. 10:00 AM - 1:30 PM. The American Enterprise Institute (AEI) will host a program titled "The Proper Direction for Telecommunications Reform Legislation". The speakers will include Harold Furchtgott-Roth (former FCC Commissioner), Robert Crandall (Brookings), Greg Sidak (AEI), Robert Hahn (AEI Brookings Joint Center) and John Mayo (Georgetown University's McDonough School of Business). Duane Ackerman, Chairman of BellSouth, will give the luncheon address, optimistically titled the "The Telecommunications Act of 2005". See, notice and registration page. Press contact: Veronique Rodman at 202 862-4871 or vrodman@aei.org. Location: AEI, 12th floor, 1150 17th St., NW.

12:00 NOON. The Americans for a Secure Internet (ASI) will host a luncheon and panel discussion titled "Why Santa Shops Online". The speakers will be Steve DelBianco (NetChoice), Wayne Crews (Competitive Enterprise Institute), Raynor Dahlquist (VeriSign), and Jonathan Zuck (Association for Competitive Technology). Register by December 13. See, registration page. For more information, contact Abigail Phillips at 202 331-2130 ext. 107. Location: Phoenix Park Hotel, 520 North Capitol St., NW.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "2004 Intellectual Property Law Year in Review Series: Part 2 -- Copyright, Trademark and Internet". The speakers will be Brian Banner (Banner & Witcoff), Beckwith Burr (Wilmer Cutler & Pickering), and and Terence Ross (Gibson Dunn & Crutcher). See, notice. Prices vary from $70 to $115. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the high cost universal support mechanisms for rural carriers and the appropriate rural mechanism to succeed the five year plan adopted in the Rural Task Force Order. See, notice in the Federal Register, September 3, 2004, Vol. 69, No. 171, at Pages 53917 - 53923.

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. The event will be webcast. See, agenda [PDF]. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

Day one of a two day workshop hosted by the Federal Trade Commission (FTC) titled "Peer to Peer File-Sharing Technology: Consumer Protection and Competition Issues". November 15 is the deadline to submit comments and requests to participate. See, FTC release and notice [13 pages in PDF] to be published in the Federal Register. Location: FTC Satellite Building, 601 New Jersey Ave., NW.

12:00 PM. The Cato Institute will host an panel discussion titled "Reflections of a Free-Trade Democrat". The speakers will by Rep. Cal Dooley (D-CA), I.M. Destler (author of American Trade Politics), and Daniel Griswold (Cato). Lunch will be served after the program. See, notice and registration page. Location: Cato, 1000 Massachusetts Ave., NW.

2:00 - 4:00 PM. The WRC-07 Advisory Committee's Informal Working Group 3: IMT-2000 and 2.5 GHz Sharing Issues will meet. See, FCC notice [PDF]. Location: FCC, 445 12th Street, SW, Room 7-B516 (7th Floor South Conference Room).

3:30 - 4:30 PM. The New America Foundation (NAF) will host a panel discussion titled "How Will We Pay For The Digital Future of Public Broadcasting". The speakers will be Jim Barksdale (former CEO of Netscape), Reed Hundt (McKinsey and Co. and former FCC Chairman), Kathleen Cox (President of the Corporation for Public Broadcasting), Pat Mitchell (President of PBS), John Lawson (P/CEO of the Association of Public Television Stations), and Michael Calabrese (NAF). RSVP to Jennifer Buntman at buntman@newamerica.net or 202 986-4901. See, notice. Location: American Enterprise Institute (AEI), 12th Floor, 1150 17th Street, NW.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host a continuing legal education (CLE) seminar titled "New Frontiers in Digital Video: Recent Developments in Copyright Law and The FCC’s Role in Content Protection". The speakers will be Fritz Attaway (Motion Picture Association of America), Sarah Deutsch (Verizon Communications), Gigi Sohn (Public Knowledge) and James Burger (Dow Lohnes & Albertson), and Rick Chessen (FCC). To register, contact Ann Henson or Heidi Kurtz at 202-293-4000. Prices range from $50 to $125. Location: Dow Lohnes & Albertson, 8th Floor, 1200 New Hampshire Ave., NW.

11:00 AM. The Federal Communications Bar Association's (FCBA) Legislation Committee will host an event. The speaker will be Gregg Rothschild (Democratic Counsel, House Commerce Committee). He will speak on legislative issues. RSVP to Helene Marshall at hmarshall@wrf.com. Location: Wiley Rein & Fielding, 1776 K St., NW.

12:00 NOON - 1:30 PM. The DC Bar Association's Intellectual Property Law Section and Legislative Committee will host a program titled "Update On Justice Department Enforcement Of Intellectual Property Laws". The speakers will be Daniel Bryant (Assistant Attorney General in charge of the DOJ's Office of Legal Policy, and Vice-Chair of the DOJ's Intellectual Property Task Force) and Barbara Berschler. See, notice. Prices vary from $15 to $30. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

1:30 - 4:30 PM. The Executive Office of the President's (OEP) Office of Science and Technology Policy's (OSTP) National Science and Technology Council's (NSTC) Committee on Technology, Committee on Homeland and National Security's Infrastructure Subcommittee will hold a meeting that is closed to the public. For more information, contact John Hoyt at john.hoyt@dhs.gov or 202 772-9959. Location: White House Conference Center (Truman Room).

Day two of a two day workshop hosted by the Federal Trade Commission (FTC) titled "Peer to Peer File-Sharing Technology: Consumer Protection and Competition Issues". See, FTC release and notice [13 pages in PDF] to be published in the Federal Register. Location: FTC Satellite Building, 601 New Jersey Ave., NW.

9:30 AM - 12:00 NOON. The U.S. China Policy Foundation will host an event titled "Prospects for U.S.-China Relations in Bush Administration". For more information, contact Chi Wang at 202 547-8615. Location: Murrow Room, National Press Club, 529 14th St. NW, 13th Floor.

12:00 NOON. Deadline to submit comments to the Office of the U.S. Trade Representative (USTR) regarding various trade related telecommunications issues. The USTR seeks comments on "Whether any WTO member is acting in a manner that is inconsistent with its commitments under the WTO Basic Telecommunications Agreement or with other WTO obligations", "Whether Canada or Mexico has failed to comply with their telecommunications commitments or obligations under NAFTA", "Whether Chile or Singapore or any other FTA partner with an Agreement that comes into force on or before January 1, 2005 has failed to comply with their telecommunications commitments or obligations under the respective FTAs", "Whether other countries have failed to comply with their commitments under additional telecommunications agreements", and "Whether there remain outstanding issues from previous Section 1377 reviews". See, notice in the Federal Register, Vol. 69, No. 226, Wednesday, November 24, 2004, at Page 68439.

12/10. Bernard Kerik withdraw from consideration for Secretary of the Department of Homeland Security (DHS). See, White House release.

12/10. President Bush announced his intent to nominate Samuel Bodman to be Secretary of Energy. See, White House release and transcript of White House event. He will replace Spencer Abraham.

12/10. President Bush announced his intent to appoint Bruce Ames, Randolph Bromery, Winfred Phillips, and Jean'ne Shreeve to be Members of the President's Committee on the National Medal of Science, for three year terms expiring on December 31, 2007. Ames is a professor of biochemistry and molecular biology at the University of California at Berkeley. Bromery is a geophysicist and academic administrator. Phillips is a mechanical engineer and VP for Research and Dean of the Graduate School at the University of Florida. Shreeve is a professor of chemistry at the University of Idaho. See, White House release.

12/9. Patrick Gnazzo was named SVP, Business Practices and Chief Compliance Officer, at Computer Associates International, Inc. See, release.

12/6. Valerie Di Maria was named Corporate VP of Communications and Public Affairs at Motorola. See, release.

12/6. Pam Wickham was named VP of Corporate Communications at Hewlett Packard. HP stated in a release that she will "lead HP's external communications strategy and oversee corporate media relations, corporate analyst relations, executive communications, and corporate events and tradeshows". She previously worked for GE Healthcare.

12/6. The United Kingdom based DLA and the U.S. based Piper Rudnick Gray Cary announced their merger. The merged entity will be named DLA Piper Rudnick Gray Cary Group. In October, Piper Rudnick and Gray Cary Ware & Freidenrich announced their merger to form Piper Rudnick Gray Cary. Both mergers are effective January 1, 2005. See, Gray Cary release and DLA release.

12/6. The intellectual property law firm of Townsend Townsend Crew announced that, effective January 1, 2005, it has elevated the following attorneys to partner: April Abele, Laurence Hyman, and Igor Shoiket (in the firm's San Francisco office), Sujit Kotwal (Palo Alto), Gerald Gray (Walnut Creek), and Thomas Franklin and Ian Saffer (Denver office). See, release.

12/6. Jonathan Retsky returned to the law firm of Brinks Hofer in its Chicago office. He was previously the head of Motorola's patent operations. See, release.

12/2. Patrick Pohlen was named Co-Chair of the law firm of Latham & Watkins' Venture & Technology Practice Group in the firm's Silicon Valley office. He will replace Ora Fisher, who is now Managing Partner of the firm's Silicon Valley office. See, release.

11/30. The law firm of Akin Gump announced the addition of five attorneys to its intellectual property litigation practice in its Washington DC office: Michael O'Shea, Frank Cimino, John Caracappa, Paul Gennari, Rashida Lockhart, and Jin-Suk Park. See, release.

11/29. The law firm of Cooley Godward announced that, effective January 1, 2005, it has elevated eight associates to partner: Gian-Michele a Marca, John Brockland, Koji Fukumura, Christopher Hutter, Craig Jacoby, Jeffrey Karr, John McKenna and Lori Ploeger. See, release.

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