10/24. President Bush announced his intent to nominate Ben Barnanke to be the next Chairman of the Board of Governors of the Federal Reserve System. The current Chairman, Alan Greenspan, will conclude his term on January 31, 2006. If promptly confirmed by the Senate, Bernanke would hold office for a term of fourteen years beginning February 1, 2006. See, White House release and transcript of White House event.

Bernanke (at right) is currently Chairman of the President's Council of Economic Advisers. Although, he has only briefly held this position. He was previously a member of the Federal Reserve System's Board of Governors. See, story titled "Bush Picks Bernanke To Be Chairman of Council of Economic Advisors" in TLJ Daily E-Mail Alert No. 1,108, April 4, 2005.

Bernanke is also an economics professor at Princeton University. See, Bernanke's Princeton web page. He is also the co-author of a book titled Macroeconomics [Amazon].

Bernanke has spoken in recent years about technology related economic issues.

For example, on November 6, 2003 he gave a speech at Carnegie Mellon University in Pittsburgh, Pennsylvania, titled "The Jobless Recovery". He offered several explanations for why the economy was growing so fast, but the recovery in the labor market was so slow. One of his explanations was that corporate managers were finally figuring out how to put to good use the high tech equipment and software that they bought in the late 1990s. See, story titled "FRB Governor Says Info Tech Is One Reason for Jobless Recovery" in TLJ Daily E-Mail Alert No. 774, November 7, 2003.

He updated and elaborated on his views about technology and productivity in a speech titled "Productivity" in Little Rock, Arkansas, on January 19, 2005.

He said that "the pickup in productivity growth was, for the most part, the product of rapid technological progress and increased investment in new information and communication technologies (ICT)".

"First, technological advances allowed the ICT-producing sectors themselves to exhibit rapid productivity growth. For example, the development of more reliable semiconductor manufacturing equipment and faster wafer-inspection technologies increased the rate at which companies such as Intel were able to produce microprocessors. In part as a reaction to heightened competitive pressures, Intel also shortened its product cycle and increased the frequency of new chip releases, shifting its product mix toward more-powerful (and, consequently, higher-value) chips. Both the more-rapid pace of production and the higher average quality of output raised productivity at Intel and competing firms." (Parentheses in original.)

"Second, ICT advances also promoted productivity growth outside the ICT-producing sector, as firms in a wide range of industries expanded their investments in high-tech equipment and software and used the new technologies", said Bernanke. "For example, some large retailers, most notably Walmart, developed ICT-based tools to improve the management of their supply chains and to increase their responsiveness to changes in the level and mix of customer demand. Securities brokers and dealers achieved substantial productivity gains by automating their trading processes and their back-office operations."

He also discussed why the productivity growth in the U.S. exceeded that in other nations, even though the same ICT were available there.

See also, story titled "FRB's Bernanke Addresses Productivity Growth and Information Technology" in TLJ Daily E-Mail Alert No. 1,061, January 24, 2005.

Also, on March 30, 2004, FRB Governor  gave a speech titled "Trade and Jobs" at Duke University in Durham, North Carolina. See, story titled "FRB Governors Offer Economic Analyses of Offshoring and Free Trade" in TLJ Daily E-Mail Alert No. 877, April 15, 2004.

Bush introduced and praised Bernanke at the White House event on October 24. He also urged the Senate "to act promptly to confirm" Bernanke.

Bernanke stated that "If I am confirmed by the Senate, I will do everything in my power, in collaboration with my Fed colleagues, to help to ensure the continued prosperity and stability of the American economy." He added that "my first priority will be to maintain continuity with the policies and policy strategies established during the Greenspan years".

Alan Greenspan (at left) stood with Bush and Bernanke at this event, but did not speak.

Sen. Charles Grassley (R-IA), the Chairman of the Senate Finance Committee, stated in a release that "The experts vary on how much credit to give Alan Greenspan, but regardless, the economy has been very successful under his leadership. We've had two recessions under his tenure, but both were largely because of external events. One was a spike in oil prices following Iraq's invasion of Kuwait and the other was a downturn after 9/11. I hope Dr. Bernanke will lead as successfully as Alan Greenspan. Chairman Greenspan’s success was that people had confidence in him. He was kind of a Rock of Gibraltar for the American economy. Now, the most important thing for Ben Bernanke to do is to build on that confidence and that credibility. For example, he advocates openness at the Fed, as has Chairman Greenspan, and that builds confidence in our economic stewardship."

10/24. The Copyright Society of the USA and the DC Bar Association's Patent Copyright and Trademark Section hosted a luncheon panel discussion titled "Google Print for Libraries: Fair or Foul?".

The panel included Alexander Macgillivray, Intellectual Property Counsel for Google, Allan Adler, Vice President of the Association of American Publishers (AAP), and Paul Aiken, Executive Director of The Authors Guild. The other panelists were Jonathan Band, an attorney in private practice, and Siva Vaidyanathan, a professor at New York University). Robert Kasunic, of the Copyright Office, moderated, but expressed no opinions.

Google started as a company that provided web based searching of content on the web. It has since branched out into other activities. Recently, it began to provide searching of printed books. First, there was the Google Print for Publishers, which involves agreements between Google and book publishers regarding the scanning of their books. Since this is pursuant to negotiated agreements, there is no dispute between the publishers and Google.

More recently, Google began it Google Print for Libraries (GPL) program, which involves the scanning of books in the collections of five large libraries. One of these, the University of Michigan (UM), has stated that it will make available for scanning all books, including those under copyright. UM wrote in its web site that "We get a copy of the digital files with no significant constraints on our ability to use them in ways that are consistent with copyright law."

Oxford and the New York Public Library have stated that they will allow Google to scan only those works that are in the public domain. Harvard and Stanford, the other two participating libraries, have been less clear.

This GPL program, and especially Google's arrangement with the UM library, is the source of the present controversy, and the two pending lawsuits. For the nature and terms of Google's and UM's activities, see Cooperative Agreement [12 page PDF scan] and UM's summary of the project [8 pages in PDF].

Pending Court Cases. On October 19, 2005, five book publishing companies filed a complaint [35 pages in PDF] in U.S. District Court (SDNY) against Google alleging that its GPL infringes copyrights. The plaintiffs are McGraw Hill, Pearson Education, Penguin, Simon & Schuster, and John Wiley & Sons. All are members of the AAP.

See, story titled "Major Book Publishers Sue Google for Digitizing Copyrighted Books" in TLJ Daily E-Mail Alert No. 1,237, October 20, 2005. This case is McGraw Hill Companies, Inc., Pearson Education, Inc., Penguin Group (USA) Inc., Simon & Schuster, Inc. and John Wiley & Sons, Inc. v. Google Inc., U.S. District Court for the Southern District of New York, D.C. No. 05-CV-8881.

On September 20, 2005, the Author's Guild and others filed a similar complaint in the same District Court against Google alleging copyright infringement in connection with the same GPL. The plaintiffs in that action seek class action status. See, story titled "Author's Guild Sues Google for Copyright Infringement" in TLJ Daily E-Mail Alert No. 1,218, September 21, 2005.

See also, story titled "University Publishers Accuse Google of Systematic Infringement of Copyright on a Massive Scale" in TLJ Daily E-Mail Alert No. 1,142, May 25, 2005.

Neither the UM, nor the other libraries, are named as defendants.

Panel Discussion. The panel discussion on October 24 focused on several topics, including the facts regarding Google Print for Libraries (the participants were not entirely in agreement as to the nature of the GPL), application of fair use analysis to the GPL program, the opt out nature of Google's GPL program and the application of economic analysis of transactions costs to fair use analysis, and the underlying purposes and justifications for intellectual property rights.

Google's Macgillivray stated that Google's "mission is to organize all of the world's information", but "not to replace going out to buy a book".

Macgillivray's summary often used the language of the 9th Circuit's opinion in Kelly v. Arriba Soft, in which the Court held that placing thumbnail copies of copyrighted photographs in a web image search engine was protected fair use. This case, and related cases, are discussed below.

He said that while Google scans entire books under copyright, it only makes available to users "snippets", that the GPL program will benefit the public, and will not harm copyright holders.

However, Google's term "snippets" is not defined in Kelly v. Arriba Soft, the Copyright Act, or regulations promulgated thereunder.

NYU's Siva Vaidyanathan said that this is "potentially the most disruptive copyright case in decades". He is the author of Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity [Amazon] and The Anarchist in the Library: How the Clash Between Freedom and Control is Hacking the Real World and Crashing the System [Amazon].

Vaidyanathan offered both support for, and criticism of Google. He backed up Google on its claim that GPL will not harm the market for books. He offered his opinion that it "will not undermine the sale of books". However, he offered little support for Google's assertions regarding the public benefits of its program. He said that GPL will not enhance the sale of books, and that it "won't revolutionize access and research".

He also criticized the commercial nature of Google. He said that there is a disturbing trend of outsourcing and privatization of library functions, and that the GPL is a part of this trend. He said that he is concerned by Google's commercial motive, and its use of proprietary software and inventions. Moreover, he said that Google, like most companies, will not last. In contrast, UM will.

Vaidyanathan, who works for a university, argued that universities should be providing, and controlling, this service.

The UM's web site offers an explanation for why Google, an efficient market competitor, rather than UM, an inefficient government subsidized and protected entity, should conduct this project. The UM wrote that "it would have taken us 1600 years and hundreds of millions of dollars to convert these materials on our own."

Allan Adler, the publishers' representative on the panel, made the argument that Google is essentially trying to create a new legal principle, that is not contained in the Copyright Act, or court precedent. He said that this might be called the "presumptuous benefactors exemption". He said that this exemption is now being asserted by "cutting edge technology companies".

Basically, Google and these other tech companies assert that "rights holders don't know what is good for them", but Google and other tech companies do. Adler said that this argument is based on the assumption that publishers "don't understand our markets".

Adler argued that Google does not know the publishing market, but whatever, decisions regarding use copyrighted works should be left to the rights holders. That is the nature of proprietary rights. And, in the publishing industry, without these proprietary rights, publishers would have no business.

He said that Google's claim that its GPL is protected by the doctrine of fair use has "tortured that doctrine beyond all reasonable recognition".

Paul Aiken of the Author's Guild spoke at length about Google's market capitalization, ad revenues, profits, and profit motives. He contrasted Google to other companies, pointing out for example that Google's market cap and revenues dwarf those of the New York Times and other media companies. His main point was that the GPL project is a commercial project.

Aiken also raised the subject of security. He stated for example, that while Google states that its digital copies of copyrighted works will not be made available to users, this might neverthelessl happen if Google's servers are hacked. He added that since Google is not negotiating agreements with copyright holders, there are no guarantees regarding security, audits, or compensation for loss.

Vaidyanathan also lamented that Google has a "soggy and ill defined privacy policy".

Jonathan Band reviewed the applicable case law. He said that there are two cases on point, Kelly v. Arriba Soft, a 9th Circuit case, and UMG v. MP3.com, a Southern District of New York case. The former supports Google, while the latter supports the copyright holders. These are discussed more below.

He acknowledged that the 9th Circuit has a reputation for being made up of "borderline socialists". But, he added, if Kelly applies, "Google has a stronger fair use argument than Arriba Soft did".

Fair Use Doctrine. The fair use doctrine is codified at 17 U.S.C. § 107. The relevant language of the fair use exception provides: "In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work."

UMG v. MP3.com. There is little legal precedent to apply in analyzing Google's argument that its GPL activities are protected by the fair use doctrine. However, there are two cases, which reached opposite results.

In UMG v. MP3.com, the U.S. District Court (SDNY) rejected the fair use claim. Perhaps it is therefore no coincidence that both the publishers and the Authors Guild filed their complaints in this district.

MP3.com provided a music storage service that allowed subscribers to copy and store online the content of purchased CDs, and then play them back via the internet. However, the service was broad. The District Court found that MP3.com "purchased tens of thousands of popular CDs in which plaintiffs held the copyrights, and, without authorization, copied their recordings onto its computer servers so as to be able to replay the recordings for its subscribers." The Court thus concluded that "although defendant seeks to portray its service as the ``functional equivalent´´ of storing its subscribers' CDs, in actuality defendant is re-playing for the subscribers converted versions of the recordings it copied, without authorization, from plaintiffs' copyrighted CDs."

On January 21, 2000, five recording companies, including Universal Music Group (UMG), filed a complaint [10 pages in PDF] in the District Court against MP3.com. The Court granted the plaintiffs' partial summary judgment on April 28, 2000. It issued its opinion [PDF] on May 4, 2000. This opinion is also reported at 92 F. Supp. 2d 349.

MP3.com asserted the defense of fair use. The Court applied the four prong fair use test, and found MP3.com's defense lacking.

First, on the issue of "the purpose and character of the use", the Court wrote that MP3.com "does not dispute that its purpose is commercial, for while subscribers to My.MP3.com are not currently charged a fee, defendant seeks to attract a sufficiently large subscription base to draw advertising and otherwise make a profit."

The Court added that "Consideration of the first factor, however, also involves inquiring into whether the new use essentially repeats the old or whether, instead, it "transforms" it by infusing it with new meaning, new understandings, or the like." But, the Court concluded that there was no transformation.

Second, on the issue of "the nature of the copyrighted work", the Court held that the recordings being copied are close to the core of intended copyright protection, and conversely, far removed from the more factual or descriptive work more amenable to fair use.

Third, on the issue of the amount and substantiality of the portion of the copyrighted work used by the copier in relation to the copyrighted work as a whole, the Court held that MP3.com "copies, and replays, the entirety of the copyrighted works here in issue".

Finally, on the issue of "the effect of the use upon the potential market for or value of the copyrighted work", the Court wrote that MP3.com's "activities on their face invade plaintiffs' statutory right to license their copyrighted sound recordings to others for reproduction."

The Court also addressed MP3.com's argument that its activities would nevertheless enhance plaintiffs' sales.

And here, the District Court offered an analysis that may prove key in the cases against Google. It wrote that "Any allegedly positive impact of defendant's activities on plaintiffs' prior market in no way frees defendant to usurp a further market that directly derives from reproduction of the plaintiffs' copyrighted works."

The Court continued that "This would be so even if the copyrightholder had not yet entered the new market in issue, for a copyrightholder's ``exclusive´´ rights, derived from the Constitution and the Copyright Act, include the right, within broad limits, to curb the development of such a derivative market by refusing to license a copyrighted work or by doing so only on terms the copyright owner finds acceptable. ... Here, moreover, plaintiffs have adduced substantial evidence that they have in fact taken steps to enter that market by entering into various licensing agreements." (Citations deleted.)

This case is UMG Recordings, Inc. v. MP3.com, U.S. District Court for the Southern District of New York, D.C. No. 00-CV-0472 (JSR), Judge Jed Rakoff presiding.

Kelly v. Arriba Soft. On February 6, 2002, the U.S. Court of Appeals (9thCir) issued its original opinion [25 pages in PDF] in Kelly v. Arriba Soft. Arriba Soft filed a petition for review. The Court of Appeals denied the petition, but issued its revised opinion [16 pages in PDF] on July 7, 2003. This revised opinion is also reported at 336 F.3d 811. See also, stories titled "9th Circuit Reverses in Kelly v. Arriba" in TLJ Daily E-Mail Alert No. 363, February 7, 2002; and "Petition for Rehearing Filed in Kelly v. Arriba Soft" in TLJ Daily E-Mail Alert No. 381, March 5, 2002.

This is a case involving the fair use exception to copyright infringement in the context of online digital images and search engines. The Court of Appeals held that Arriba Soft's use of small thumbnail copies of Kelly's copyrighted photographs in its search engine results constituted fair use.

First, on the issue of "purpose and character of the use" the Court wrote that "they benefit the public by enhancing information-gathering techniques on the internet." Thus, "this first factor weighs in favor of Arriba due to the public benefit of the search engine and the minimal loss of integrity to Kelly’s images."

Second, on the issue of the "nature of the copyrighted work" the Court wrote that "we find that this factor weighs only slightly in favor of Kelly."

Third, on the issue of the "amount and substantiality of portion used" the Court wrote that "This factor neither weighs for nor against either party because, although Arriba did copy each of Kelly's images as a whole, it was reasonable to do so in light of Arriba's use of the images. It was necessary for Arriba to copy the entire image to allow users to recognize the image and decide whether to pursue more information about the image or the originating web site. If Arriba only copied part of the image, it would be more difficult to identify it, thereby reducing the usefulness of the visual search engine."

Finally, on the issue of the "effect of the use upon the potential market for or value of the copyrighted work", the Court wrote that "This last factor requires courts to consider ``not only the extent of market harm caused by the particular actions of the alleged infringer, but also `whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would result in a substantially adverse impact on the potential market for the original.´ ´´ A transformative work is less likely to have an adverse impact on the market of the original than a work that merely supersedes the copyrighted work."

The Court reviewed the potential markets for Kelly's photographs, and concluded that "Arriba's creation and use of the thumbnails does not harm the market for or value of Kelly’s images. This factor weighs in favor of Arriba."

"Having considered the four fair use factors and found that two weigh in favor of Arriba, one is neutral, and one weighs slightly in favor of Kelly, we conclude that Arriba's use of Kelly's images as thumbnails in its search engine is a fair use." The Court thus held that "Arriba's reproduction of Kelly’s images for use as thumbnails in Arriba’s search engine is a fair use under the Copyright Act. However, we hold that the district court should not have reached whether Arriba’s display of Kelly’s full-sized images is a fair use because the parties never moved for summary judgment on this claim and Arriba never conceded the prima facie case as to the full-size images."

This case is Leslie Kelly, dba Les Kelly Publications, dba Les Kelly Enterprises, dba Show Me The Gold v. Arriba Soft Corporation, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 00-55521, an appeal from the U.S. District Court for the Central District of California, Judge Gary Taylor presiding, D.C. No. CV-99-00560-GLT.

Campbell v. Acuff-Rose. There was also some discussion of the 1994 opinion of the Supreme Court in Campbell v. Acuff-Rose Music, Inc., which is also published at 510 U.S. 569. On March 17, 1994, the Court issued its unanimous opinion allowing a copying of music in the form of a parody, under the fair use doctrine.

This was the dispute involving the hideous and commercial parody of Roy Obison's classic titled "Oh, Pretty Woman". The Court reversed the Court of Appeals, which had held that the defense of fair use was barred by the song's commercial character and excessive borrowing. The Supreme Court held that "a parody's commercial character is only one element to be weighed in a fair use enquiry, and that insufficient consideration was given to the nature of parody in weighing the degree of copying". It held for the infringer.

Google's MacGillivray pointed out that the defendant in that case, like Google, has a commercial purpose. The publishers' Adler responded that the present dispute is not a music parody case, but that Google's argument is a "parody of fair use".

The story titled "FCC Announces Agenda for October 28 Meeting" in TLJ Daily E-Mail Alert No. 1,238, October 24, 2005, stated, at paragraph six, that "This event is scheduled for 9:30 AM on Thursday, October 28, 2005 ...". The meeting is on Friday, October 28.

10/24. House and Senate subcommittees have scheduled actions on legislation to split the U.S. Court of Appeals (9thCir) into two circuits. The Senate Judiciary Committee's Subcommittee on Administrative Oversight and the Courts has scheduled a hearing for Wednesday, October 26 at 2:30 PM. At 3:00 PM on the same day, the House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet, and Intellectual Property (CIIP) will meet to mark up HR 4093, the "Federal Judgeship and Administrative Efficiency Act of 2005".

See also, S 1301 and S 1296, both titled the "Ninth Circuit Judgeship and Reorganization Act of 2005", and S 1845, the "The Circuit Court of Appeals Restructuring and Modernization Act of 2005".

The 9th Circuit came up during a panel discussion over the Google Print for Libraries project on October 24. There are two cases that are most pertinent to this issue, one from the 9th Circuit, and one from the Southern District of New York. One panelist suggested that the 9th Circuit case might not be followed because that circuit has a reputation for being "borderline socialist". See, story in this issue titled "Google, Publishers and Authors Debate Google's Print for Libraries Program".

The leading proponents of bills to split the 9th Circuit tend to focus on the large number of judges on the 9th Circuit. Although, they also tend to come from states where some residents do not wish to remain in a circuit that is dominated by judges from California.

In addition to its ideological reputation, and large size, the 9th Circuit also has the highest reversal rate of all the circuits. The Supreme Court overturned two major tech related cases from the 9th Circuit last summer -- Brand X and Grokster.

Sometimes the Supreme Court reverses the 9th Circuit in blunt and reprimanding language, as for example, in its December 6, 2004 opinion [7 pages in PDF] in San Diego v. Roe, a First Amendment free speech case involving the government's ability to impose restrictions upon the speech of government employees. The Supreme Court wrote that 9th Circuit's reliance on a particular case "was seriously misplaced". It added that "We have little difficulty in concluding" that the 9th Circuit erred. The Court concluded that "this is not a close case". See, story titled "Supreme Court Reverses in San Diego v. Roe" in TLJ Daily E-Mail Alert No. 1,032, December 7, 2004.

The CIIP will mark up HR 4093. Title I of the bill is titled the "Federal Judgeship Act of 2005". It would create numerous new federal judgeships, both permanent and temporary, for appeals and district courts.

It would add two additional judges to the U.S. District Court for the Eastern District of Virginia, three for the Northern District of California (which includes Silicon Valley and San Francisco), four for the Eastern District of California, four for the Central District of California (which includes Los Angeles), and one for the Southern District of California (which includes San Diego). However, this title of the bill adds no judges to the 9th Circuit.

Title II of the bill is titled the "Enhanced Bankruptcy Judgeship Act of 2005".

Title III of the bill is titled the "Circuit Court of Appeals Restructuring and Modernization Act of 2005". It would split the 9th Circuit into two circuits. The new 12th Circuit would be comprised of the states of Alaska, Arizona, Idaho, Montana, Nevada, Oregon, Washington.

This title provides for "5 additional circuit judges for the new ninth circuit court of appeals, whose official duty station shall be in California."

If HR 4093 were to become law, it would not only split the 9th Circuit. It would also give the President an opportunity to substantially remake the California rump by appointing five new Court of Appeals judges, and ten new District Court judges for the districts within California.

There have long been legislative proposals to divide the 9th Circuit. None have yet become law.

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.

The Senate will meet 9:30 AM. It will resume consideration of HR 3010, the Labor, Health and Human Services, and Education Appropriations Bill.

The Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) will host a one day event titled "Competition and Real Estate Workshop". On September 8, 2005, the DOJ filed a complaint in District Court against the National Association of Realtors (NAR). See, story titled "DOJ Sues National Association of Realtors for Obstructing Internet Based Brokers" in TLJ Daily E-Mail Alert No. 1,210, September 9, 2005. See, FTC notice and notice in the Federal Register, September 8, 2005, Vol. 70, No. 173, at Pages 53362 - 53364. Location: FTC, Satellite Building Conference Center, 601 New Jersey Ave., NW.

9:30 AM. The Senate Armed Services Committee will hold a hearing on several nominees, including John Young (to be Director of Defense Research and Engineering at the Department of Defense) and Delores Etter (Assistant Secretary of the Navy for Research). See, notice. Location: Room 106, Dirksen Building.

10:00 AM. The Senate Banking Committee will hold a hearing on several pending nominations, including Matthew Slaughter and Katherine Baicker (to be members of the Council of Economic Advisors). See, notice. Location: Room 538, Dirksen Building.

10:00 AM. The American Business Coalition for Doha will hold a news conference to announce its formation. U.S. Trade Representative Rob Portman will participate. Press contact: Eric Thomas at 202 822-9491. Location: Ronald Reagan Building and International Trade Center, 1300 Pennsylvania Ave., NW.

11:30 - 2:00 PM. The Heritage Foundation will host a panel discussion titled "Hanging Up on Regulation: The Case for Telecom Reform". The speakers will be Sen. John Ensign (R-NV), James Gattuso (Heritage), and Michael Franc (Heritage). See, notice. Location: Lehrman Auditorium, Heritage, 214 Massachusetts Ave., NE.

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers and Diversity Committees will host a brown bag lunch. The topic will be "Welcome to the Communications Bar". The speakers will include FCBA President-Elect Jennifer Warren (Lockheed Martin) or Russell Frisby (Kirkpatrick Lockhart Nicholson Graham). RSVP to Wendy Parish at wendy at fcba dot org. For more information, contact Natalie Roisman at 202 418-1655 or Jason Friedrich at 202 354-1340. Location: Akin Gump, 1333 New Hampshire Ave., NW, 10th Floor.

1:00 PM. The Center for Democracy and Technology (CDT), Pulver.com, and others, will hold a telephone news conference to announce and discuss their plans to challenge the order portion of the Federal Communications Commission's (FCC) Order and Further Notice of Proposed Rule Making that provides that facilities based broadband service providers and interconnected VOIP providers are subject to requirements under the 1994 Communications Assistance for Law Enforcement Act (CALEA). The FCC adopted, but did not release, this item at its August 5, 2005, meeting. See, story titled "FCC Amends CALEA Statute" in TLJ Daily E-Mail Alert No. 1,191, August 9, 2005. The FCC released the text [59 pages in PDF] of this item on September 23, 2005. It is FCC 05-153 in ET Docket No. 04-295 and RM-10865. The call in number is 800 391-2548. The password is VM200193. Press contact: David McGuire at 202 637-9800 x106.

1:00 - 4:00 PM. The Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) Laboratory Division will hold a round table titled "Radiofrequency Exposure Compliance Procedures for evaluating 3-G Portable Devices". For more information, contact Patricia Wright at 301 362-3001 or patricia dot wright at fcc dot gov. See, notice [PDF]. Location: Conference Room, FCC Laboratory, 7435 Oakland Mills Road, Columbia, MD.

2:15 PM. The Senate Foreign Relations Committee will meet to vote on several nominees, including Boyden Gray, who has been nominated to be the U.S. Representative to the European Union. See, notice. Location: Room 116, Capitol Building.

3:00 PM. The House Commerce Committee will begin its mark up of a bill that includes the "Digital Television Transition Act of 2005", as well as provisions related to Medicaid, Katrina health relief, and Katrina and Rita energy relief. This meeting is solely for opening statements of members. See, notice. Press contact: Larry Neal (Barton) at 202 225-5735 or Sean Bonyun (Upton) at 202 225-3761. Location: Room 2123, Rayburn Building.

4:00 PM. The House Rules Committee will meet to a adopt a rule for consideration of HR 420, the "Lawsuit Abuse Reduction Act of 2005", a bill that addresses FRCP Rule 11 violations, and forum shopping. Location: Room H-312, Capitol Building.

Day two of a two day conference hosted by the Bureau of Industry and Security (BIS) titled "18th Annual Update 2005 Conference on Export Controls and Policy". See, conference web site. The price to attend ranges from $550-675. Location: Renaissance Hotel, Washington DC.

Day two of a three day conference hosted by the Intellectual Property Owners Association (IPO) titled "4th  International Judges Conference on Intellectual Property Law". Jon Dudas, head of the U.S. Patent and Trademark Office (USPTO), will deliver the luncheon address. See, conference brochure [PDF]. Location: Mandarin Oriental Hotel, between Maine and Maryland Avenues, and 12th and 14th Streets, SW.

Deadline to submit recommendations to the Department of Commerce's National Technical Information Service (NTIS) regarding candidates to be members of the NTIS Advisory Board. See, notice in the Federal Register, August 26, 2005, Vol. 70, No. 165, at Page 50303.

The House will meet at 10:00 AM for legislative business. It may take up HR 420, the "Lawsuit Abuse Reduction Act of 2005", a bill that addresses FRCP Rule 11 violations, and forum shopping. See, Republican Whip Notice.

8:00 AM - 12:00 NOON. The Information Technology Association of America (ITAA) will host an event titled "ITAA Diversity Summit". The topic will be ways to improve opportunities for women and minorities in the IT industry. Register by contacting Bob Cohen at bcohen at itaa dot org or 703 284-5301 or Charlie Greenwald at cgreenwald at itaa dot org or 703 284-5305. Location: Marriott Tysons Corner, McLean, VA.

10:00 AM. The House Commerce Committee will continue its mark up of a bill that includes the "Digital Television Transition Act of 2005", as well as provisions related to Medicaid, Katrina health relief, and Katrina and Rita energy relief. This meeting is solely to mark up to DTV provisions of the bill. See, notice. Press contact: Larry Neal (Barton) at 202 225-5735 or Sean Bonyun (Upton) at 202 225-3761. Location: Room 2123, Rayburn Building.

10:00 AM. The House Judiciary Committee (HJC) will meet to mark up HR 3135, the "Private Property Rights Protection Act of 2005". Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. The hearing will be webcast by the HJC. Location: Room 2141, Rayburn Building.

10:30 AM. The U.S. District Court (DC) will hold a status conference in USA v. Microsoft, D.C. No. 1:1998-cv-01232-CKK, and State of New York v. Microsoft, 1:1998-cv-01233-CKK. Location: Courtroom 11, Prettyman Courthouse, 333 Constitution Ave., NW.

2:30 PM. The Senate Judiciary Committee's Subcommittee on Administrative Oversight and the Courts may hold a hearing on legislative proposals to split the U.S. Court of Appeals (9thCir) into two circuits. The scheduled witnesses are all Judges: Diarmuid O'Scannlain, Richard Tallman, Mary Schroeder, Alex Kozinski, Andrew Kleinfeld, John Roll, Sidney Thomas, and Marilyn Huff. See, notice. The SJC frequently cancels of postpones meetings without 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.

3:00 PM. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet, and Intellectual Property will meet to mark up HR 4093, the "Federal Judgeship and Administrative Efficiency Act of 2005". This bill would split the 9th Circuit, and create new judgeships for the Courts of Appeals, District Courts, and Bankruptcy Courts. See, notice. This meeting will be webcast by the HJC. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "How to Handle Opposition and Cancellation Actions Before the Trademark Trial and Appeal Board". The speakers will include Judge Karen Kuhlke (Trademark Trial and Appeal Board), Judge Jeffrey Quinn (TTAB), Gary Krugman (Sughrue Mion), and Leigh Ann Lindquist, (Sughrue Mion). The price to attend ranges from $70-$105. For more information, call 202 626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) will host a continuing legal education (CLE) seminar titled "Foreign Investment in FCC Licensees". The price to attend ranges from $50-$125. See, notice and registration form [MS Word]. For more information, contact Brian Weimer 202 371-7604. Location: Skadden Arps, Conference Room 11A, 700 14th Street, NW.

Day three of a three day conference hosted by the Intellectual Property Owners Association (IPO) titled "4th  International Judges Conference on Intellectual Property Law".  Judge Paul Michel of the U.S. Court of Appeals (FedCir) will deliver the luncheon address. See, conference brochure [PDF]. Location: Mandarin Oriental Hotel, between Maine and Maryland Avenues, and 12th and 14th Streets, SW.

The House will meet at 10:00 AM for legislative business. It may take up HR 420, the "Lawsuit Abuse Reduction Act of 2005", a bill that addresses FRCP Rule 11 violations, and forum shopping. See, Republican Whip Notice.

9:00 AM. The House Armed Services Committee's (HASC) Asymmetric and Unconventional Threats Panel will hold a hearing titled "Cyber Security, Information Assurance and Information Superiority". The witnesses will include Eugene Spafford (Purdue University and the President's Information Technology Advisory Committee). Location: Room 2118, Rayburn Building.

9:30 AM. The Senate Judiciary Committee may hold an executive business meeting. The SJC rarely follows the agenda for its business meetings. The SJC frequently cancels of postpones 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.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in In Re Core Communications, Inc., Nos. 04-1368, 04-1423, and 04-1424, petitions for review of an FCC order regarding forbearing from applying certain interim intercarrier compensation rules. See, FCC brief [65 pages in PDF]. Judges Sentelle, Tatel and Garland will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

POSTPONED. 10:00 AM. The House Financial Services Committee's (HFSC) Subcommittee on Financial Institutions will hold a hearing on HR 3997, the "Financial Data Protection Act of 2005." Location: Room 2128, Rayburn Building.

10:00 AM - 3:00 PM. The Federal Communications Commission's (FCC) Technological Advisory Council will meet. See, notice in the Federal Register, March 25, 2005, Vol. 70, No. 57, at Page 15316, and notice in the Federal Register, October 5, 2005, Vol. 70, No. 192, at Pages 58221 - 58222. Location: FCC, 445 12th Street, SW, Commission Meeting Room (TW-C305).

2:30 PM. The House Judiciary Committee's (HJC) Subcommittee on Crime, Terrorism, and Homeland Security will hold an oversight hearing titled "An Investigation into the FBI's Use of Confidential Informants". Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. The hearing will be webcast by the HJC. Location: Room 2141, Rayburn Building.

Day one of a three day convention of the American Intellectual Property Law Association (AIPLA). See, convention web site. Location: Marriott Wardman Park, 2660 Woodley Park Road, NW.

The House may meet at 9:00 AM for legislative business. See, Republican Whip Notice.

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).

RESCHEDULED FROM SEPTEMBER 30. 12:15 PM. The Federal Communications Bar Association's (FCBA) Legislative Practice and Wireless Telecommunications Practice Committees will host a lunch titled "DTV Transition". The speakers will include Rudy Baca (Precursor Group), Kathy Gramp (Congressional Budget Office), and Alice Tornquist (Qualcomm). The price to attend is $15. Registrations and cancellations are due by 5:00 PM on Tuesday, October 25, 2005. See, registration form [PDF]. Location: Sidley Austin, 1501 K Street, NW., 6th Floor.

Day two of a three day convention of the American Intellectual Property Law Association (AIPLA). See, convention web site. Location: Marriott Wardman Park, 2660 Woodley Park Road, NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding eliminating Part 23 of the FCC's rules governing International Fixed Public Radiocommunication Services (IFPRS), and instead regulate IFPRS pursuant to Part 101. This NPRM is FCC 05-130 in IB Docket No. 05-216. See, notice in the Federal Register, September 28, 2005, Vol. 70, No. 187, at Pages 56620 - 56621.

Deadline to submit nominations to the Federal Communications Commission's (FCC) Wireline Competition Bureau for seven positions on the Board of Directors of the Universal Service Administrative Company (USAC). See, FCC release [PDF].

Day three of a three day convention of the American Intellectual Property Law Association (AIPLA). See, convention web site. Location: Marriott Wardman Park, 2660 Woodley Park Road, NW.

9:00 AM - 5:30 PM. Day one of a two day public workshop hosted by the National Institute of Standards and Technology (NIST) regarding the vulnerability of the NIST approved cryptographic hash algorithm, Secure Hash Algorithm-1 (SHA-1). See, notice in the Federal Register, June 14, 2005, Vol. 70, No. 113, at Pages 34451 - 34452. Location: NIST, Green Auditorium, Building 101, Gaithersburg, MD.

10:00 AM. The Supreme Court will hear oral argument in Central Virginia Community College v. Katz, No. 04-885. This is a bankruptcy case involving the authority of the Congress to abrogate state sovereign immunity. State sovereign immunity is also involved in the context of Congressional legislation regarding intellectual property. See, story titled "Supreme Court Grants Certiorari in State Sovereign Immunity Case" in TLJ Daily E-Mail Alert No. 1,109, April 5, 2005.

Day one of a five day conference sponsored by the Office of the Secretary of Defense Networks and Information Integration (OSD NII) and the Joint Chiefs of Staff titled "DoD Spectrum Summit 2005". See, notice.For more information, contact Patty dot Hopkins at osd dot mil or 703 607-0613. Location: Radisson Hotel, Annapolis, MD.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding amending the FCC's amateur radio service rules to eliminate the requirement that individuals pass a telegraphy examination in order to qualify for any amateur radio operator license. This NPRM is FCC 05-143 in WT Docket No. 05-235. See, notice in the Federal Register, August 31, 2005, Vol. 70, No. 168, at Pages 51705 - 51707.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the joint petition filed by CTIA and the Rural Cellular Association (RCA) requesting relief of the FCC's requirement that wireless licensees that employ a handset based Enhanced 911 (E911) Phase II location technology achieve 95% penetration of location capable handsets among their subscribers by December 31, 2005. See, FCC notice [4 pages in PDF]. This proceeding is WT Docket No. 05-288. This is also the deadline to submit reply comments regarding Alltel's related petition. See, notice [PDF] in WT Docket No. 05-287. This is also the deadline to submit reply comments regarding Sprint Nextel's related petition. See, notice [PDF] in WT Docket No. 05-286.

9:00 AM - 5:30 PM. Day two of a two day public workshop hosted by the National Institute of Standards and Technology (NIST) regarding the vulnerability of the NIST approved cryptographic hash algorithm, Secure Hash Algorithm-1 (SHA-1). See, notice in the Federal Register, June 14, 2005, Vol. 70, No. 113, at Pages 34451 - 34452. Location: NIST, Green Auditorium, Building 101, Gaithersburg, MD.

2:30 PM. The Senate Judiciary Committee (SJC) may hold a hearing on pending nominations. The SJC frequently cancels of postpones meetings without 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 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Patent Damages: Discovery, Pre-trial and Litigation Strategies". The speakers will be Andrew Aitken (Venable), Charles Fish (AOL Time Warner), and Clifton McCann (Venable). The price to attend ranges from $70-$125. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

Day two of a five day conference sponsored by the Office of the Secretary of Defense Networks and Information Integration (OSD NII) and the Joint Chiefs of Staff titled "DoD Spectrum Summit 2005". See, notice.For more information, contact Patty dot Hopkins at osd dot mil or 703 607-0613. Location: Radisson Hotel, Annapolis, MD.

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