6/2. The Federal Communications Commission (FCC) released an agenda [PDF] for its event titled "Open Meeting", scheduled for Thursday, June 9, 2005. This agenda includes consideration of a DR and NPRM regarding implementation of the CSEA.

The FCC will consider a Declaratory Ruling (DR) and Notice of Proposed Rulemaking (NPRM) regarding implementation of the Commercial Spectrum Enhancement Act (CSEA) and changing the FCC's competitive bidding rules and procedures.

The Congress enacted the CSEA late in the 108th Congress as part of HR 5419, a larger composite bill. The CSEA changes the process for reallocating spectrum from federal users to commercial users, such as wireless broadband services. The bill creates a Spectrum Relocation Fund, funded by auction proceeds, to compensate federal agencies for the cost of relocating.

See also, stories titled "House Approves Bill that Includes the Commercial Spectrum Enhancement Act" in TLJ Daily E-Mail Alert No. 1,025, November 24, 2004; "Powell Urges Senate to Approve Telecom Bill" in TLJ Daily E-Mail Alert No. 1,032, December 7, 2004; and, "Congress Approves Telecom Bill" in TLJ Daily E-Mail Alert No. 1,035, December 10, 2004.

Second, the FCC will consider a NPRM regarding procedures for amending the FM Table of Allotments and other procedures for making certain modifications to broadcast facilities. First Broadcasting Investment Partners LLC filed a petition for rulemaking [39 pages in PDF] on March 5, 2004. This proceeding is RM-10960.

Third, the FCC will consider a Report and Order and Further Notice of Proposed Rulemaking (FNPRM) regarding its rules requiring new television receivers to include the capability to receive off-the-air digital broadcast television signals. The FCC adopted its NPRM [9 pages in PDF] on January 19, 2005, and released its on February 14, 2005. This NPRM is FCC 05-17 in ET Docket No. 05-24. It stated that the FCC is considering adjusting the schedule by which new broadcast television receivers with screen sizes of 25 to 36 inches are required to include the capability to to DTV signals.

Fourth, the FCC will consider an Order on Reconsideration regarding its rules affected hearing aid compatibility of wireless telephones. This is WT Docket No. 01-309.

This event is scheduled for 9:30 AM on Thursday, June 9, 2005 in the FCC's Commission Meeting Room, Room TW-C305, 445 12th Street, SW. The event will be webcast by the FCC. The FCC does not always take up all of the items on its agenda. The FCC does not always start its monthly meetings at the scheduled time. The FCC usually does not release at its meetings copies of the items that its adopts at its meetings.

5/24. The U.S. Court of Appeals (DCCir) issued its opinion [9 pages in PDF] in Luck's Music Library v. Gonzales, affirming the judgment of the District Court. The Court of Appeals, like the District Court, held that § 514 of the Uruguay Round Agreements Act (URAA) does not violate the Constitution.

This case, like the earlier challenge to the Copyright Term Extension Act (CTEA) in the Eldred case, is essentially an attempt by activist attorneys to have the courts substitute their policy judgments for those of the Congress. In both cases, the litigants may have had weighty policy arguments, but the Courts declined to engage in policy judgments, and deferred to Congressional statute writing authority.

See, January 15, 2003 opinion [89 pages in PDF] of the Supreme Court issued in Eldred v. Ashcroft. See also, story titled "Supreme Court Upholds CTEA in Eldred v. Ashcroft" in TLJ Daily E-Mail Alert No. 584, January 16, 2003.

The URAA was HR 5110 in the 103rd Congress. President Clinton signed it into law on December 8, 2004. It became Public Law No. 103-465. It is now codified at 17 U.S.C. §§ 104A and 109. This act implements in the U.S. Article 18 of the Berne Convention for the Protection of Literary and Artistic Works.

The URAA restores copyright protection for certain foreign holders whose works entered the public domain in the U.S. for certain reasons.

The plaintiffs below, and the appellants before the Court of Appeals, are Luck's Music Library and Moviecraft. Luck's rents and sells classical orchestral sheet music. Moviecraft is a commercial film archive that preserves, restores, and sells old footage and films. Both assert that because of the URAA they may no longer freely distribute certain works in their portfolios.

They argued that the URAA violates Article I, § 8, Clause 8 of the Constitution, which provides that "The Congress shall have the Power ... to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

On June 10, 2004, the U.S. District Court (DC) issued its Memorandum Opinion [21 pages in PDF] rejecting their argument. See also, story titled "District Court Upholds Constitutionality of § 514 of Uruguay Round Agreements Act" in TLJ Daily E-Mail Alert No. 920, June 17, 2004.

The Court of Appeals affirmed. It held that the plaintiffs "are wrong that the Clause creates any categorical ban on Congress's removing works from the public domain".

The plaintiffs argued that the purpose of the Authors and Inventors clause is to incent creation, and that copyright statutes must incent creation. But, they argued, a law that removes works from the public domain does not provide significant incentives for new creations because rewarding prior works will not provide any significant incentive because they have already been created.

The Court noted that "It is true, of course, that changes in the law of copyright cannot affect the structure of incentives for works already created. But the knowledge that Congress may pass laws like the URAA in the future does affect the returns from investing time and effort in producing works."

Moreover, the Court wrote that perhaps there need not be any incentive in the statute anyway. It reviewed the precedent on this issue, the Eldred case, and concluded that "It is by no means clear that Eldred requires a direct incentive at all."

The Court also wrote that the plaintiffs' arguments are not supported by history. "evidence from the First Congress points toward constitutionality. The Copyright Act of 1790 granted copyright protection to certain books already printed in the United States at the time of the statute’s enactment. ... If such works were unprotected by common law copyright, that statute would necessarily have granted protection to works previously unprotected -- that is, works in the public domain. The historical evidence on this point is contested, but as early as 1834 the Supreme Court was of the view that the Act of 1790 created new copyright protection rather than simply recognizing existing protections ..."

The plaintiffs' counsel include several veterans of the Eldred case, including Geoffrey Stewart and Jonathan Zittrain.

This case is Luck Music Library, Inc. and Moviecraft, Inc. v. Alberto Gonzales, et al., No. 04-5240, an appeal from the U.S. District Court for the District of Columbia, D.C. No. 01-2220 (RMU), Judge Ricardo Urbina presiding. Judge Williams wrote the opinion of the Court of Appeals, in which Judges Randolph and Roberts joined.

Tech Law Journal publishes a free access web site and subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year. However, there are discounts for subscribers with multiple recipients. Free one month trial subscriptions are available. Also, free subscriptions are available for journalists, federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until one month after writing. See, subscription information page.

Contact: 202-364-8882.
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998 - 2005 David Carney, dba Tech Law Journal. All rights reserved.

The House will not meet on Monday, May 30 through Friday, June 3. See, House calendar. The House will next meet at 2:00 PM on Monday, June 7. See, Republican Whip Notice.

The Senate will not meet on Monday, May 30 through Friday, June 3. See, Senate calendar.

The Supreme Court will next meet on Monday, June 6, 2005. See, Order List [10 pages in PDF] at page 10.

Deadline to submit comments to the Federal Election Commission's (FEC) in response to its notice of proposed rulemaking (NPRM) regarding regulation of internet related speech.

The House will meet at 2:00 PM. See, Republican Whip Notice.

The Senate will return from its Memorial Day recess. See, Senate calendar.

The Supreme Court will meet. It is possible that it will issue opinions in MGM v. Grokster (regarding copyright and P2P systems), NCTA v. Brand X (regarding regulation of broadband internet services), and/or Merck v. Integra (regarding a research exemption to patent infringement).

TIME? The U.S. District Court (DC) will hold a status conference in U.S. v. Microsoft, D.C. No. 98-1232 (CKK). Location: Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Sandisk v. Memorex, a patent infringement case involving flash memory technology. This is App. Ct. No. 04-1422. It is an appeal from the U.S. District Court (NDCal). Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place, Courtroom 203.

12:00 NOON. The Federal Communications Bar Association's (FCBA) will hold an event titled "Annual Meeting and Luncheon". The speaker will be Sen. Ted Stevens (R-AK), the Chairman of the Senate Commerce Committee. See, registration form [MS Word]. Prices range from $35-$65. Location: Capital Hilton, Congressional Ballroom, 16th and K Streets, NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) [15 pages in PDF] regarding implementation of the 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. See, notice in the Federal Register, May 20, 2005, Vol. 70, No. 97, at Pages 29252-29253.

8:00 AM. The U.S. Chamber of Commerce will host a breakfast. The speaker will be Rep. Bill Thomas (R-CA), the Chairman of the House Ways & Means Committee. The price to attend ranges from free to $55. See, notice. Location: US Chamber, 1615 H Street, NW.

8:30 AM - 5:00 PM. Day one of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, May 20, 2005, Vol. 70, No. 97, at Page 29279. Location: Doubletree Hotel and Executive Meeting Center, 1750 Rockville Pike, Rockville, MD.

9:00 AM. The Bureau of Industry and Security's (BIS) Regulations and Procedures Technical Advisory Committee (RPTAC) will meet. The agenda includes updates on encryption controls, AES, and the proposed rule on deemed export related regulatory requirements. See, notice in the Federal Register, May 23, 2005, Vol. 70, No. 98, at Page 29478. Location: Room 3884, Hoover Building, 14th Street between Constitution and Pennsylvania Avenues, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in International Rectifier Corp. v. Samsung. This is App. Ct. No. 04-1429. This is an appeal from the U.S. District Court (CDCal) in a patent case. Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place, Courtroom 402.

12:00 NOON - 1:30 PM. The DC Bar Association will host a panel discussion titled "Current Intellectual Property Issues in Europe". The speakers will be Alexander Leisten, Peter Ruess, and Barbara Berschler. The price to attend ranges from $10-$30. For more information, contact 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

2:30 PM. The Senate Foreign Relations Committee's Subcommittee on East Asian and Pacific Affairs will hold a hearing titled "The Emergence of China Throughout Asia: Security and Economic Consequences for the U.S." See, notice. Location: Room 419, Dirksen Building.

8:30 AM - 5:00 PM. Day two of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, May 20, 2005, Vol. 70, No. 97, at Page 29279. Location: Doubletree Hotel and Executive Meeting Center, 1750 Rockville Pike, Rockville, MD.

9:30 AM. The Senate Commerce Committee's Subcommittee on Technology, Innovation, and Competitiveness will hold a hearing titled "Manufacturing Competitiveness in a High-Tech Era". See, notice. Location: Room 253, Russell Building.

TENTATIVE. 3:00 - 5:00 PM. The Federal Communications Commission's (FCC) WRC-07 Advisory Committee's Informal Working Group 1 (Terrestrial and Space Science Services) will meet. See, notice [PDF]. Location: Lockheed Martin, 1550 Crystal Drive, Suite 300, Arlington, VA.

8:30 AM - 12:00 NOON. Day one of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, May 20, 2005, Vol. 70, No. 97, at Page 29279. Location: Doubletree Hotel and Executive Meeting Center, 1750 Rockville Pike, Rockville, MD.

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

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Broadcast Innovation v. Charter Communications. This is App. Ct. No. 05-1008. It is a patent infringement case appealed from the U.S. District Court (DColo). Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place, Courtroom 203.

12:15 PM - 2:00 PM. The Forum on Technology will host a luncheon panel discussion titled "Basic Research - The Foundation of the Innovation Economy". See, notice. Location: Room 902, Hart Building, Capitol Hill.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "2nd Annual Spring Reception with FCC Commissioners and Legal Advisors". The price to attend ranges from $30 to $60. The FCBA requests an RSVP. See, registration form [PDF]. Location: Washington Hilton Hotel, 1919 Connecticut Ave., NW.

The Federal Trade Commission (FTC), American Intellectual Property Law Association (AIPLA), and National Academies' Board on Science, Technology, and Economic Policy (STEP) will jointly host a public meeting on patent reform. See, FTC notice. See also, story titled "FTC, AIPLA, and National Academies to Host Series of Public Meetings on Patent Reform" in TLJ Daily E-Mail Alert No. 1,043, December 23, 2004.

9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will hold a meeting. See, FCC notice [PDF] and notice in the Federal Register, June 1, 2005, Vol. 70, No. 104, at Pages 31469 - 31470. Location: Commission Meeting Room (TW-C305), 445 12th Street, SW.