5/6. The U.S.Court of Appeals (DCCir) issued its opinion [34 pages in PDF] in American Library Association v. FCC, overturning the Federal Communications Commission's (FCC) broadcast flag rules.

This case arises out of the efforts of the Congress and the FCC to plan a transition in the market from analog to digital television (DTV). Unlike analog broadcasts, digital copies of movies and other programming provides would be infringers with perfect copies that can be saved, stored, and retransmitted over the internet. This gives content owners a disincentive to make their works available in digital format. Moreover, to the extent that content owners do not provide digital content to broadcasters, TV viewers have less incentive to purchase DTV equipment. In order to remove this disincentive for content owners, and at the request of content owners, the FCC promulgated broadcast flag rules.

A broadcast flag is digital code embedded in a digital broadcasting stream. It signals digital television (DTV) reception equipment to limit redistribution. For it to be effective, DTV equipment must give effect to a broadcast flag. Hence, the FCC wrote rules that contains technology mandates for equipment manufacturers.

The FCC has statutory authority to license and regulate the use of electromagnetic spectrum, including devices that transmit and receive radio frequency signals. It does not have statutory authority to protect copyrights, or to regulate consumer electronic equipment for the purpose of protecting copyrights.

The FCC recognized that it faced this problem from the outset. See, story titled "FCC Debates Its Authority to Promulgate Broadcast Flag Rule" in TLJ Daily E-Mail Alert No. 489, August 12, 2002. Nevertheless, the FCC proceeded to promulgate broadcast flag rules. The foreseen challenges came, and the Court of Appeals has ruled with blunt and broad language that the FCC lacks statutory authority to write broadcast flag rules.

The Court of Appeals began its opinion with the statement that "It is axiomatic that administrative agencies may issue regulations only pursuant to authority delegated to them by Congress. The principal question presented by this case is whether Congress delegated authority to the Federal Communications Commission ... in the Communications Act of 1934 ... to regulate apparatus that can receive television broadcasts when those apparatus are not engaged in the process of receiving a broadcast transmission. In the seven decades of its existence, the FCC has never before asserted such sweeping authority. Indeed, in the past, the FCC has informed Congress that it lacked any such authority. In our view, nothing has changed to give the FCC the authority that it now claims."

The FCC did not attempt to argue that it had specific statutory authority to regulate devices after a broadcast transmission is complete. Rather, it relied exclusively on its limited ancillary jurisdiction under Title I of the Communications Act of 1934.

The Court of Appeals held that "Title I plainly encompasses the regulation of apparatus that can receive television broadcast content, but only while those apparatus are engaged in the process of receiving a television broadcast. Title I does not authorize the Commission to regulate receiver apparatus after a transmission is complete. As a result, the FCC's purported exercise of ancillary authority founders ..."

It continued that "There is no statutory foundation for the broadcast flag rules, and consequently the rules are ancillary to nothing. Therefore, we hold that the Commission acted outside the scope of its delegated authority when it adopted the disputed broadcast flag regulations."

The Court wrote in its conclusion that "The FCC argues that the Commission has ``discretion´´ to exercise ``broad authority´´ over equipment used in connection with radio and wire transmissions, ``when the need arises, even if it has not previously regulated in a particular area.´´ ... This is an extraordinary proposition. ``The [Commission's] position in this case amounts to the bare suggestion that it possesses plenary authority to act within a given area simply because Congress has endowed it with some authority to act in that area. We categorically reject that suggestion."

It concluded that "the FCC has no authority to regulate consumer electronic devices that can be used for receipt of wire or radio communication when those devices are not engaged in the process of radio or wire transmission."

The Court of Appeals has not yet held that there is a constitutional defect with broadcast flag rules. Hence, the Congress could enact legislation that gives the FCC authority to write a broadcast flag rule.

The opinion of the Court of Appeals may also have the effect of precluding the FCC from regulating the technology used in other equipment, where the regulation does not pertain to transmission. For example, the FCC raised the subject of ancillary jurisdiction in its discussion of voice over internet protocol (VOIP) services in its CALEA NPRM [100 pages in PDF], released on August 9, 2004. See story titled "Summary of the FCC's CALEA NPRM" in TLJ Daily E-Mail Alert No. 960, August 17, 2004.

That is, the FCC asked, "To the extent an entity is not a ``telecommunications carrier´´ under CALEA, is there any legal basis for exercising ancillary authority to impose some type of law enforcement assistance requirements on these entities?". The FCC also raised its "authority to exercise ancillary jurisdiction over non-subject entities?" See, page 35.

The FCC adopted its broadcast flag notice of proposed rulemaking (NPRM) on August 8, 2002. The FCC released the text [12 pages in PDF] of this NPRM on August 9, 2002. See, story titled "FCC Issues NPRM on Broadcast Flag" in TLJ Daily E-Mail Alert No. 489, August 12, 2002.

The FCC adopted and released, on November 4, 2003, its rules mandating the broadcast flag in its Report and Order and Further Notice of Proposed Rulemaking [72 pages in PDF]. See, story titled "FCC Releases Broadcast Flag Rule", also published in TLJ Daily E-Mail Alert No. 772, November 5, 2003, and story titled "More Reaction to the FCC Broadcast Flag Item" in TLJ Daily E-Mail Alert No. 773, November 6, 2003.

This case is American Library Association, et al. v. FCC, respondent, and Motion Picture Association of America, intervenors, No. 04-1037, a petition for review of a final order of the FCC. Judge Edwards wrote the opinion of the Court of Appeals, in which Judges Sentelle and Rogers joined.

In addition to the American Library Association, the plaintiffs also include Public Knowledge, Consumers Union, Consumer Federation of America, Electronic Frontier Foundation, Association of Research Libraries, American Association of Law Libraries, Medical Library Association and the Special Libraries Association.

Public Knowledge, a Washington DC based interest group that favors the weakening of intellectual property rights, wrote in its web site that "This was a case that Public Knowledge organized and financed."

The interest groups that challenged the FCC broadcast flag order are pleased with the opinion. Gigi Sohn, President of Public Knowledge, stated in a release that "This case is a great win for consumers and for technology innovation. It’s about more than simply broadcasting. It is about how far the FCC can go in its regulations without permission from Congress. Had the flag been implemented, Hollywood, acting through the FCC, would have been able to dictate the pace of technology in consumer electronics. Now, thankfully, that won't happen."

Harris Miller, President of the Information Technology Association of America (ITAA), stated in a release that "the marketplace, not federal regulators, is the best arbiter of technology standards ... In deciding that the FCC had overstepped its legislative authority, the DC Circuit's decision underscores the Commission's lack of authority to regulate technology applications and services. Congress never intended the FCC to be the Federal Technology Commission. Just as video recorders and DVD players have created substantial new markets for motion picture producers, we believe that copyrighted digital broadcasts will build substantial new markets and new business opportunities for a wide range of copyright owners."

In contrast, Dan Glickman, the P/CEO of the Motion Picture Association of America (MPAA), wrote in a release [MS Word] that "This is a disappointing decision and could create a digital television divide by slowing or eliminating access to high quality digital programming for some consumers. Television audiences -- whether they subscribe to cable or satellite service or not - are benefiting from the higher quality picture of digital programming. If the Broadcast Flag cannot be used, program providers will have to weigh whether the risk of theft is too great over free, off-air broadcasting and could limit such high quality programming to only cable, satellite and other more secure delivery systems. It is important to remember that this decision is only about the FCC’s jurisdiction, not the merits of the Broadcast Flag itself."

5/6. The U.S. Court of Appeals (7thCir) issued another opinion [PDF] in Toney v. L'Oreal, a case regarding whether a claim under the Illinois right of publicity statute is preempted by federal copyright law. A three judge panel issued its original opinion [11 pages in PDF] on September 21, 2004. The present opinion, issued by the same three judge panel following a petition for rehearing, replaces the September 21 opinion. In short, the Court of Appeals initially held that the Illinois right of publicity claim is preempted, but has now reversed itself and held that the Illinois claim is not preempted.

June Toney, a model, authorized the use of her likeness in national magazine advertisements, up until a specified date. Toney filed a complaint in state court in Illinois against L'Oreal and others alleging that they used her likeness beyond the authorized time, in violation of the Illinois Right of Publicity Act (IRPA) and the Lanham Act, 15 U.S.C. § 1125, et seq. The defendants argued that the IRPA claim is preempted by the federal Copyright Act.

L'Oreal also removed the action to the U.S. District Court (NDIll). The District Court held that the IRPA claim is preempted by the federal Copyright Act, 17 U.S.C. § 101, et seq. The Court of Appeals initially affirmed. Toney filed a petition for rehearing. No other Judges of the 7th Circuit favored rehearing en banc. However, the same three judge panel that issued the initial opinion, issued another opinion on May 6 reversing itself and the District Court. Toney's claim under the Illinois right of publicity statute is not preempted by federal copyright law. The case is remanded to the District Court, where Toney may now proceed with her IRPA claim.

The preemption section, which is codified at 17 U.S.C. § 301, provides, in part, that "all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 ... are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State."

17 U.S.C. § 102, in turn, defines the subject matter of copyright as "original works of authorship fixed in any tangible medium of expression", including photographs.

Toney alleges that the defendants used photographs, which are subject to copyright protection. Hence, the defendants argue that the IRPA claim is preempted by the Copyright Act. However, the IRPA does not protect a person from use of a particular photograph. Rather, it protects a person's right of publicity, or as the Court of Appeals stated, "the very identity or persona of the plaintiff as a human being".

The Court reasoned that "Toney's identity is not fixed in a tangible medium of expression. There is no ``work of authorship´´ at issue in Toney's right of publicity claim. A person's likeness -- her persona -- is not authored and it is not fixed. The fact that an image of the person might be fixed in a copyrightable photograph does not change this. From this we must also find that the rights protected by the IRPA are not ``equivalent´´ to any of the exclusive rights within the general scope of copyright that are set forth in § 106. Copyright laws do not reach identity claims such as Toney's. Identity, as we have described it, is an amorphous concept that is not protected by copyright law; thus, the state law protecting it is not preempted."

This case is June Toney v. L'Oreal, U.S.A., Inc., et al., U.S. Court of Appeals for the Seventh Circuit, App. Ct. No. 03-2184, an appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division, D.C. No. 02 C 3002, Judge Ronald Guzman presiding. Judge Kanne wrote both of the opinions of the Court of Appeals, in which Judges Williams and Evans joined.

The Court of Appeals heard oral argument on April 8, 2004. See, audio file [MPG].

TLJ's coverage of the September 21, 2004 opinion is found in TLJ Daily E-Mail Alert No. 981, September 22, 2004.

The House will meet at 12:00 NOON in pro forma session only. See, Republican Whip Notice.

The Senate will meet at 2:00 PM. It will resume consideration of consideration of HR 3, the highway bill.

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.

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

9:30 AM. The Senate Judiciary Committee (SJC) has scheduled a hearing regarding implementation of the USA PATRIOT Act. The SJC frequently cancels meetings without notice. The scheduled witnesses include Sen. Larry Craig (R-ID) and Sen. Richard Durbin (D-IL), sponsors of S 737, the SAFE Act. The scheduled witnesses also include former Rep. Bob Barr (R-GA), David Cole (Georgetown University Law Center), Daniel Collins (Munger Tolles & Olsen), James Dempsey (Center for Democracy and Technology), Andrew McCarthy (The Foundation for the Defense of Democracies), Suzanne Spaulding (The Harbour Group). See, notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Crime, Terrorism, and Homeland Security will hold the seventh of its oversight hearing on the implementation of the USA PATRIOT Act. This hearing is titled "Implementation of the USA PATRIOT Act: Prohibition of Material Support Under Sections 805 of the USA PATRIOT Act and 6603 of the Intelligence Reform and Terrorism Prevention Act of 2004". The hearing will be webcast by the HJC. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing 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.

The House will meet at 10:00 AM for legislative business. There are no technology related items on the agenda. See, Republican Whip Notice.

9:30 AM. The Senate Judiciary Committee (SJC) has scheduled an executive business meeting. The SJC frequently cancels meetings without notice. See, notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

10:00 AM - 12:00 NOON. The House Science Committee's Subcommittee the Environment, Technology, and Standards will hold a hearing titled "Europe, China, and the Use of Technical Standards as Trade Barriers: How should the U.S. Respond?" The witnesses will be Hratch Semerjian (acting Director of the National Institute of Standards and Technology), Don Deutsch (Oracle), David Karmol (American National Standards Institute), Robert Noth (Deere & Company), and Joe Bhatia (Underwriters Laboratory). The hearing will be webcast. Location: Room 2318, Rayburn Building.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing on spyware. 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.

11:00 AM. The House Commerce Committee's Subcommittee on Commerce, Trade, and Consumer Protection will hold a hearing titled "Securing Consumers' Data: Options Following Security Breaches". The hearing will be web cast by the Committee. Location: Room 2123, Rayburn Building.

11:00 AM. The Cato Institute will host a panel discussion titled "Does the World Trade Organization Serve America's Interests in the Global Economy?". The speakers will be Douglas Irwin (Dartmouth College), Grant Aldonas (recent Undersecretary of Commerce for International Trade), and Rep. Ron Paul (R-TX). See, notice. The event will be webcast by Cato. Lunch will follow the program. Location: Cato, 1000 Massachusetts Ave., NW.

4:00 PM. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet and Intellectual Property will hold a hearing titled "Oversight of Public Performance Rights Organizations". The hearing will be webcast by the HJC. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

RESCHEDULED FOR JUNE 22. The Federal Communications Bar Association (FCBA) will host a continuing legal education (CLE) seminar on voice over internet protocol (VOIP).

Deadline to submit nominations for the Federal Communications Bar Association's (FCBA) Young Lawyer's Committee's (YLC) elections, to be held on May 18. All nominations must be e-mailed to Jason Friedrich or Pam Slipakoff by May 11. For more information, contact Jason Friedrich at jason dot friedrich at dbr dot com or 202 354-1340 or Pam Slipakoff at pamslip at yahoo dot com or 202 418-7705.

The House will meet at 10:00 AM for legislative business. There are no technology related items on the agenda. See, Republican Whip Notice.

? The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property may hold its third hearing on the Committee Print of HR __ [52 pages in PDF], the "Patent Act of 2005". Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

8:00 AM. The Federal Communications Bar Association (FCBA) will host a breakfast. The speaker will be Gary Shapiro, P/CEO of the Consumer Electronics Association (CEA). The price to attend varies from $30 to $55. See, registration form [MS Word]. Location: J.W. Marriott Hotel, 1331 Pennsylvania Ave., NW.

9:30 AM. The U.S. Court of Appeals (DC) will hear oral argument in Christopher Shays v. FEC, No. 04-5352. Judges Edwards, Henderson and Tatel will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM - 12:00 NOON. The House Science Committee will hold a hearing titled "The Future of Computer Science Research in the U.S." The witnesses will be John Marburger (Director of the President's Office of Science and Technology Policy), Anthony Tether (Director of the Defense Advanced Research Projects Agency), William Wulf (President of the National Academy of Engineering), and Tom Leighton (Chief Scientist of Akamai Technologies). Location: Room 2318, Rayburn Building.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing on S 967 and issues related to the broadcast of prepacked news stories produced by government agencies. 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.

10:00 - 11:30 AM. The American Enterprise Institute (AEI) and the National Defense University (NDU) will host a panel discussion titled "Will Technology Be a Source of Chinese Influence in Asia?" The speakers will be Ernest Preeg (Manufacturers Alliance), Tai Ming Cheung (University of California San Diego), Will Martin (World Bank), Claude Barfield (AEI), and Phillip Saunders (NDU). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

10:15 AM. The American Enterprise Institute (AEI) will host a panel discussion titled "Antitrust Policy and Vertical Restraints". The speakers will include David Evans (LECG), Luke Froeb (FTC), and Michael Waldman (Cornell University). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

12:00 NOON. The National Telecommunications and Information Administration (NTIA) and the Federal Communications Commission (FCC) will hold a meeting. The agenda includes the role of NTIA in spectrum management, the IRAC process, and the FCC-NTIA interaction with respect to license applications, rulemaking proceedings, and spectrum management policy issues at the FCC. The speakers will be Fred Wentland (NTIA), Karl Nebbia (NTIA), Julius Knapp (FCC), and other FCC officials. The Federal Communications Bar Association (FCBA) states that this is an FCBA brown bag lunch, and that attendees should RSVP to Wendy Parish at wendy@fcba.org. Location: FCC, 7th Floor South Conference Room.

12:15 - 2:00 PM. The Forum on Technology and Innovation will host a luncheon titled "Future of U.S. Manufacturing". The speakers will be Mark Bamforth (Genzyme), Gary Heiman (Standard Textile), and Mark Mills (Digital Power Group). See, notice. Location: Room 902, Hart Building, Capitol Hill.

4:00 PM. The Senate Judiciary Committee (SJC) has scheduled a hearing on executive branch nominations. The SJC frequently cancels meetings without notice. See, notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

6:00 - 8:00 PM. Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Happy Hour". For more information, contact Pam Slipakoff at pamslip at yahoo dot com. Location: Modern Brasserie, 555 8th Street, NW.

The House will meet at 10:00 AM for legislative business. There are no technology related items on the agenda. See, Republican Whip Notice.

Day one of a two day event hosted by the American Cable Association titled "Annual Washington Summit".

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