5/2. The Supreme Court denied certiorari, without opinion, in Rossi v. MPAA. See, Order List [15 pages in PDF], at page 9.

This is a petition for writ of certiorari to the U.S. Court of Appeals (9thCir) in a state tort case in which a web site operator, Michael Rossi, alleged that a copyright holder, the Motion Picture Association of America (MPAA), wrongfully served a Digital Millennium Copyright Act (DMCA) notice and take down letter upon his internet service provider.

The U.S. District Court (DH) granted summary judgment to the MPAA. The Court of Appeals affirmed. It held that the notice and take down provisions, which are codified at 17 U.S.C. § 512(c)(3)(A), require only a subjective good faith belief on the part of the copyright holder, and good faith can be present even where the copyright holder is mistaken.

The denial of certiorari lets stand the opinion [13 pages in PDF] of the Court of Appeals.

See also, story titled "Appeals Court Finds MPAA Not Liable for Good Faith Exercise of DMCA Notice and Takedown Procedure" in TLJ Daily E-Mail Alert No. 1,029, December 2, 2004.

This case is Michael Rossi v. Motion Picture Association of America, Inc., et al., Sup. Ct. No. 04-1166, a petition for writ of certiorari to the U.S. Court of Appeals for the 9th Circuit. The Court of Appeals No. is 03-16034. It is an appeal from the U.S. District Court for the District of Hawaii, D.C. No. CV-02-00239-BMK, Judge Barry Kurran presiding. Judge Johnnie Rawlinson wrote the opinion of the Court of Appeals, in which Judges Jerome Farris and John Noonan joined.

5/2. The U.S. Court of Appeals (2ndCir) issued its opinion [21 pages in PDF] in Virgilio v. NYC and Motorola. The Court of Appeals affirmed the District Court's dismissal of the complaint.

The plaintiffs are personal representatives of New York City firefighters who died at the World Trade Center responding to the terrorist attacks of September 11, 2001. The plaintiffs filed a complaint in U.S. District Court (SDNY) against New York City and Motorola alleging a variety of wrongful death claims arising out of the performance of radio equipment used by the firefighters on September 11.

Immediately after the attacks, the Congress enacted the Air Transportation Safety and System Stabilization Act, Public Law. No. 107-42, which, among other things, created the Victim Compensation Fund, and provided that all claimants who filed with the Fund waived the right to sue for injuries resulting from the attacks. The plaintiffs filed with the Fund.

The District Court dismissed the action. The Court of Appeals affirmed, in full.

This case is Lucy Virgilio, et al. v. City of New York and Motorola, Inc., No. 04-1942-cv, an appeal from the U.S. District Court for the Southern District of New York. Judge Wesley wrote the opinion of the Court of Appeals, in which Judges Newman and Straub joined.

4/29. The twenty members of the Senate Finance Committee, which has jurisdiction over trade issues, wrote a letter [PDF] to President Bush "to express our serious concern with the lack of adequate and effective enforcement of China’s intellectual property rights (IPR) laws". They urge the President to initiate proceedings before the World Trade Organization (WTO).

They wrote that "IPR infringement in China is having a real impact on U.S. companies in a wide range of industries, including motion pictures, software, chemicals, pharmaceuticals, information technology, and consumer goods. According to certain estimates, piracy alone accounts for roughly $2.5 to $3.8 billion in losses to the U.S. industry."

They added that "We need to see immediate results to eradicate these problems in China. Unfortunately, the Chinese government does not seem fully committed to doing so. Recently, the Chinese government issued a white paper, which praised China's progress on IPR issues. The paper noted that, ``while adhering to the international rules on IPR protection, China has decided on a level of IPR protection appropriate for its own national situation.” China cannot unilaterally establish its own measures for judging its success in dealing with its IPR crisis. Instead, as a signatory to the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), Chinese progress must be judged by the same standards all WTO Members."

Finally, they urged the Bush administration "to intensify your efforts to ensure China’s compliance with its TRIPS obligations, including, as appropriate, through WTO dispute settlement."

In addition, Rep. Mary Bono (R-CA), Rep. Chip Pickering (R-MS), and many other Representatives wrote a similar letter to President Bush. See, Rep. Bono's release.

4/28. Peter Mandelson, the European Commissioner for Trade, gave a speech in Singapore titled "Tilting the Global Balance: Asia's New Trade Growth". He said that Europe should welcome trade with Asia, but that intellectual property rights enforcement, and other trade related issues, remain a problem. He also argued that for Europe to be competitive, it must be innovative in the knowledge economy. And, he said that completion of the Doha round remains the EU's top priority.

Mandelson (at right) stated that "Emerging Asia is, and will increasingly be the essential trade partner of choice for Europe. There are already millions of wealthy households in China and India offering a huge future potential for EU business. This is why, amongst other reasons, the ``new´´ Asia is to be welcomed, not feared."

He continued that "What should be of greatest concern to Europe is the task of maintaining and increasing our market share in the new Asia. There are legitimate worries here: and they raise questions not just of European competitiveness, but of trade policy such as protection of intellectual property, the opening up of public procurement, genuine -- not commitments on paper -- market access for European service businesses and in some cases, persistently high industrial tariffs."

He elaborated that "Innovation remains key for Europe to be able to respond to the Asian phenomenon. Urgent action to reassert Europe's technological leadership is crucial ..." He reiterated proposals for increased investment in the knowledge economy. He said that "We need to advance economic reforms, to equip people for change and to bring governments and business to work in partnership to improve competitiveness."

He also discussed trade agreements. He said that the U.S. "is increasing its economic influence in the region through bilateral FTAs. The obvious risk is that these regional efforts detract from multilateral trade liberalisation and the multiple benefits this offers."

Hence, he said that "our number one priority in the successful and ambitious outcome of the ongoing multilateral trade negotiations, the Doha Round."

4/28. The state of New York filed a complaint [PDF] in state court in New York against Intermix Media alleging violation of state laws regarding deceptive and fraudulent business practices in connection with Intermix's distribution of software which the complaint characterizes as "spyware". New York seeks to enjoin distribution of the software.

The complaint states that Intermix Media, Inc., which was previously known as eUniverse, Inc., "has distributed to millions of consumers a wide variety of “free” games, cursors, screensavers and other small software programs", and that it has "deceptively and surreptitiously ``bundled´´ with these programs undisclosed and invasive spyware (also known as ``adware´´) programs." (Parentheses in original.) The complaint further alleges that Intermix "has contracted with agents to bundle the spyware with their own free programs."

The complaint elaborates that "Intermix has done so by first offering ostensibly ``free´´ software programs (such as screensavers and games) that anyone can download. Without disclosure to consumers, however, Intermix surreptitiously tacks onto these programs one or more additional programs that deliver ads and other invasive content. Thus, when users install a ``free´´ Intermix screensaver or game, they also unwittingly install one or more spyware programs as well. In this manner, known as ``bundling,´´ Intermix has spread its advertising programs onto millions of consumers' hard drives. According to Intermix's own figures provided to this office, this includes more than three million installations to New Yorkers." (Parentheses in original.)

The complaint adds Intermix does not provide advance notice to consumers. It states that "Intermix offers consumers either no notice or only token notice about the hidden spyware programs. Intermix either fails to disclose these additional programs in any manner, or hides mention of them deep within lengthy, legalistic license agreements. Even in the latter case, the information Intermix does provide about the spyware programs is vague, incomplete and often factually incorrect."

The complaint also describes several programs. "Spyware programs that Intermix has fraudulently spread in this manner include ``KeenValue´´ (a program that shows pop-up advertisements); ``IncrediFind´´ (a program that redirects web addresses to Intermix websites); ``Updater´´ (a program that allows Intermix to add or update programs and functionality to a user's computer); and various ``Toolbar” programs (programs that overlay onto users’ web browsers a ``toolbar´´ linking to Intermix's services and clients). Because these programs are permanently installed on the user's hard drive and run during subsequent browsing sessions, they continue to advertise Intermix's clients and report information about the user long after the user has left the websites of Intermix or its agents." (Parentheses in original.)

Eliot Spitzer, the Attorney General of New York, stated in a release that "Spyware and adware are more than an annoyance ... These fraudulent programs foul machines, undermine productivity and in many cases frustrate consumers' efforts to remove them from their computers. These issues can serve to be a hindrance to the growth of e-commerce."

The release of the Office of the Attorney General of New York also quotes Ari Schwartz, who works for the Center for Democracy and Technology (CDT) in Washington DC. He states that "One of Internet users' biggest frustrations today is unwanted software that sneaks onto computers without their owner's consent and cannot be uninstalled. Companies have gotten away with unethical and illegal software download practices for too long. The practices alleged in this case are widespread on the Internet and we hope that both federal and state authorities follow Attorney General Spitzer's lead in making this a priority".

5/2. President Bush announced his intent to designate David Sampson to be acting Deputy Secretary of Commerce. See, White House release. Sampson is the Assistant Secretary of Commerce for Economic Development.

4/28. Regina Brown was named Designated Federal Officer (DFO) to the North American Numbering Council (NANC), an advisory committee of the Federal Communications Commission's (FCC). She replaces Sanford Williams. Brown is a staff attorney in the FCC's Wireline Competition Bureau's (WCB) Telecommunication Access Policy Division (TAPD). In addition, Marilyn Jones was named Alternate DFO. She replaces Pam Slipakoff. Jones is also a staff attorney in the TAPD. See, FCC release [PDF].

5/2. Time Warner announced in a release, and in a letter to its employees, that it lost computer back up tapes containing the personal information of current and former employees. Time Warner stated in the release that "a container of its computer back-up tapes was lost by an outside data storage firm during shipment to one of that firm’s storage facilities. For several years, as part of its regular processes to protect its computerized data, Time Warner has used this firm, a leader in data storage, to ship and store its computer back-up tapes offsite. The missing tapes contained data from Time Warner, including personal information on current and former employees. The tapes did not include personal data on Time Warner customers."

5/2. The Federal Communications Commission (FCC) released the text [15 pages in PDF] of its notice of proposed rulemaking (NPRM) to implement satellite broadcast carriage requirements in the noncontiguous states, as required by Section 210 of the Satellite Home Viewer Extension and Reauthorization Act of 2004 (SHVERA).. The FCC adopted this NPRM at its April 29, 2005 meeting. This NPRM is FCC 05-92 in MB Docket No. 05-181. Comments are due by June 6, 2005. Reply comments are due by June 20, 2005.

5/2. The National Institute of Standards and Technology's (NIST) Computer Security Division released its annual report [huge PDF file] for 2004. This is NIST IR 7219.

4/25. The National Institute of Standards and Technology (NIST) released NIST Special Publication 800-78 [17 pages in PDF], titled "Cryptographic Algorithms and Key Sizes for Personal Identity Verification".

4/27. The Copyright Office published a notice in the Federal Register that describes and sets the comment deadline (May 27, 2005) for its notice of proposed rulemaking (NPRM) regarding requiring eligible digital audio services availing themselves of the statutory licenses set forth in 17 U.S.C. §§ 112 and 114 to report their usage of sound recordings. See, Federal Register, April 27, 2005, Vol. 70, No. 80, at Pages 21704-21711.

4/26. The Office of Management and Budget (OMB) issued a release regarding the acquisition of Oracle databases, application servers, associated options and Oracle applications for government agencies.

The House will meet at 12:30 PM for morning hour, and at 2:00 PM for legislative business. The House will consider several non-technology related items under suspension of the rules. Votes will be postponed until 6:30 PM. See, Republican Whip Notice.

The Senate will not meet on Monday, May 2, through Friday, May 6. See, Senate calendar.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Crime, Terrorism, and Homeland Security will hold the fifth of its oversight hearing on the implementation of the USA PATRIOT Act. This hearing will address §§ 201, 202, and 223 (regarding wiretaps), and § 213 (regarding delayed notice of search warrants). The witnesses will be Michael Sullivan (U.S. Attorney for the District of Massachusetts), Chuck Rosenberg (Chief of Staff to the Deputy Attorney General), Heather MacDonald (Manhattan Institute), and former Rep. Bob Barr (R-GA). The hearing will be webcast by the HJC. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "KP Permanent Make-Up v. Lasting Impression, Inc.: Fair Use and Likelihood of Confusion". The scheduled speakers are Beth Brinkmann (Morrison & Foerster, counsel for Lasting Impression), Patricia Millett (Assistant to the Solicitor General), Christine Farley (American University Washington law school). See, notice. Prices vary from $10 to $30. For more information, call 202-626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Aptix v. Quickturn Design. This is an appeal from the U.S. District Court (NDCal) in a patent case. This case is D.C. No. C 98-00762 WHA (EDL) and App. Ct. No. 04-1368. Location: Courtroom 402, 717 Madison Place, NW.

Day two of a three day event hosted by Internet2 and titled "Spring 2005 Internet2 Member Meeting". See, notice. Location: Crystal Gateway Marriott, 1700 Jefferson Davis Highway, Arlington, VA.

The House will meet at 10:00 AM for legislative business. The agenda includes several non-technology related items.  See, Republican Whip Notice.

9:30 AM. The Center for American Progress (CAP) will host a panel discussion titled "No Place to Hide: Where the Data Revolution Meets Homeland Security". The speakers will be Robert Harrow (author of No Place to Hide: Behind the Scenes of Our Emerging Surveillance Society [Amazon]), Wesley Clark (former U.S. Army General), Nuala Kelly (Chief Privacy Office of the DHS), and James Dempsey (Center for Democracy and Technology). Location: CAP, 1333 H St. NW.

10:00 AM. The House Science Committee will meet to mark up several bills, including HR 921, the "Minority Serving Institution Digital and Wireless Technology Opportunity Act of 2005". The hearing will be webcast. Press contact, Joe Pouliot at 202 225-0581 or joe dot pouliot at mail dot house dot gov. Location: Room 2318, Rayburn Building.

10:00 AM. The House Financial Services Committee will hold a hearing titled "Assessing Data Security: Preventing Breaches and Protecting Sensitive Information". Location: Room 2128, Rayburn Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Ericsson v. Harris. This is an appeal from the U.S. District Court (NDTex) in a patent infringement case involving cellular telephony. This case is D.C. No. 3-98 CV 2903-M and App. Ct. No. 04-1444. Location: Courtroom 203, 717 Madison Place, NW.

1:00 - 5:00 PM. The U.S. Patent and Trademark Office's (USPTO) Nanotechnology Customer Partnership will hold a meeting. RSVP to Jill Warden at jill dot warden at uspto dot gov or 571 272-1267. See, notice. Location: USPTO, Madison Auditorium, South Side, 600 Dulany Street, Alexandria, Virginia.

2:00 - 4:00 PM. The Federal Communications Commission's (FCC) World RadioCommunication 2007 (WRC-07) Advisory Committee's Informal Working Group 3: IMT-2000 and 2.5 GHz Sharing Issues will meet. Location: FCC.

9:00 AM - 6:00 PM. Pulver.com will host a one day conference titled "IP-Based Communications Policy Summit". See, conference web site. Location: Plaza Hotel.

Day three of a three day event hosted by Internet2 and titled "Spring 2005 Internet2 Member Meeting". See, notice. Location: Crystal Gateway Marriott, 1700 Jefferson Davis Highway, Arlington, VA.

The House will meet at 10:00 AM for legislative business. The agenda includes several non-technology related items. See, Republican Whip Notice.

9:15 AM - 12:15 PM. The American Enterprise Institute (AEI) will host an event titled "The Effect of Wireless Telecommunications on Economic Development in Africa". The speakers will be Gregory Sidak (AEI), Leonard Waverman (London Business School), Edward Graham (Institute for International Economics), Scott Wallsten (AEI), Diane Coyle (Enlightenment Economics), Neil Gough (Vodafone Group), and Claude Barfield (AEI). See, notice and registration page. Location: 12th floor, 1150 17th St., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in American Bar Association v. FTC, No. 04-5257. Judges Sentelle, Randolph and Roberts will preside. This case involves challenges to the Federal Trade Commission's (FTC) application of the financial privacy provisions of the Gramm Leach Bliley Act to practicing attorneys. See, story titled "Court Hears Arguments on Bar Associations' Challenges to FTC's Financial Privacy Rules" in TLJ Daily E-Mail Alert No. 673, June 4, 2003. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

9:30 AM. The U.S. District Court (DC) will hold a preliminary injunction hearing in Trudeau v. FTC, a false and deceptive telemarketing case. This is D.C. No. 1:2005-cv-00400-JDB. Judge Bates will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Crime, Terrorism, and Homeland Security will hold the sixth of its oversight hearing on the implementation of the USA PATRIOT Act. This hearing will address § 212, titled "Emergency disclosure of electronic communications to protect life and limb". The hearing will be webcast by the HJC. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

10:00 AM. The Center for National Software Studies will hold a news conference to release a report. See, notice. For more information, contact Alan Salisbury at 703 319-2187. Location: Lisagor Room, National Press Club, 529 14th St. NW, 13th Floor.

Day one of a two day conference hosted by the Computer Law Association (CLA) titled "CLA World Computer and Internet Law Conference". See, conference brochure [PDF]. Location: Park Hyatt Hotel, 24th at M St. NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Preston Small v. FCC, No. 04-1056. Judges Edwards, Henderson and Tatel will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

9:30 - 11:00 AM. The Progressive Policy Institute (PPI) will host a book forum titled "Can American Compete with Asia?". Kent Hughes will discuss his book, Building the Next American Century: The Past and Future of American Economic Competitiveness [Amazon]. Robert Atkinson, Director of the PPI's Technology and New Economy Project, will comment. For more information, contact Kyra Jennings or Austin Bonner at 202 547-0001. Location: 600 Pennsylvania Avenue, SE, Suite 400.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Datamize v. Plumtree Software, No. 04-1564. This is patent case involving internet portal technology. Location: Courtroom 203, 717 Madison Place, NW.

12:15 - 1:45 PM. The New America Foundation (NAF) will host a brown bag lunch titled "Hot Property: The Threat of Intellectual Property Theft to our Economy and Safety". The speakers will be Pat Choate, author of Hot Property: The Stealing of Ideas in an Age of Globalization [Amazon], and Barry Lynn (NAF). RSVP to Jennifer Buntman at 202 986-4901 or buntman at newamerica dot net. See, notice. Location: NAF, 1630 Connecticut Ave, 7th Floor.

Day two of a two day conference hosted by the Computer Law Association (CLA) titled "CLA World Computer and Internet Law Conference". See, conference brochure [PDF]. Location: Park Hyatt Hotel, 24th at M St. NW.

Mothers Day.

5:00 PM. Deadline to submit reply comments to the Copyright Office (CO) in response to its notice of inquiry (NOI) regarding orphan works -- copyrighted works whose owners are difficult or impossible to locate. The CO stated in a notice in the Federal Register that it seeks public comments on "whether there are compelling concerns raised by orphan works that merit a legislative, regulatory or other solution, and what type of solution could effectively address these concerns without conflicting with the legitimate interests of authors and right holders." See, Federal Register, January 26, 2005, Vol. 70, No. 16, at Pages 3739 - 3743.

Deadline to submit to the Federal Communications Commission (FCC) initial comments and petitions to deny in its antitrust merger review proceeding (transfer of control of licenses) associated with the acquisition of MCI by Verizon. See, FCC Public Notice DA 05-762 in WC Docket No. 05-75.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding implementation of Section 207 of the Satellite Home Viewer Extension and Reauthorization Act of 2004, extends Section 325(b)(3)(C) of the Communications Act until 2010 and amends that section to impose reciprocal good faith retransmission consent bargaining obligations on multichannel video programming distributors. This proceeding is MB Docket No. 05-89. See, FCC Public Notice DA 05-772, and notice in the Federal Register, March 24, 2005, Vol. 70, No. 56, at Pages 15048 - 15051. See also, story titled "FCC Adopts and Releases NPRM Implementing § 207 of SHVERA" in TLJ Daily E-Mail Alert No. 1,090, March 8, 2005.

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing on titled "Identity Theft and Data Broker Services". Press contact: Melanie Alvord (Stevens) (202) 224-8456 or Melanie_Alvord at commerce dot senate dot gov, or Andy Davis (Inouye) at 202 224-4546 or Andy_Davis at commerce dot senate dot gov. See, notice. The hearing will be webcast by the SCC. Location: Room 253, Russell Building.

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