11/7. The Recording Industry Association of America (RIAA) and National Music Publishers Association (NMPA) announced that they have settled their copyright infringement case against Grokster. The settlement provides for the end of the Grokster peer to peer (P2P) file sharing system.

The RIAA and NMPA stated in a joint release [PDF] that "The owners and operators of the Grokster peer-to-peer (P2P) network ... have agreed to settle the three-year-old legal case with the nation’s major record companies, motion picture studios and music publishers. A consent judgment will be submitted to the court today for its approval."

The RIAA and NMPA continued that "The settlement includes a permanent injunction prohibiting infringement -- directly or indirectly -- of any of the plaintiffs' copyrighted works. This includes ceasing immediately distribution of the Grokster client application and ceasing to operate the Grokster system and software."

The grokster.com web site states that "There are legal services for downloading music and movies. This service is not one of them. Grokster hopes to have a safe and legal service available soon."

On June 27, 2005, the Supreme Court issued its unanimous opinion [55 pages in PDF] in MGM v. Grokster, reversing the judgment of the U.S. Court of Appeals (9thCir) regarding vicarious copyright infringement by the distributors of P2P systems.

The Supreme Court held that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."

See also, story titled "Supreme Court Rules in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.

The RIAA and MPAA added that since the Supreme Court's ruling, "the legitimate online marketplace has already begun to expand. In addition to legal download and subscription services like Rhapsody, Napster, iTunes, Wal-Mart.com, Sony Connect, Yahoo! Music and others, a nascent legal P2P network marketplace is emerging. Joining Wurld Media, PassAlong and Intent Media in the legitimate P2P space, iMesh has announced a legitimate P2P business model and the launch of its newly configured service. Individual record companies have also announced numerous licensing agreements in recent months with companies such as Mashboxx and Snocap."

Robert Holleyman, P/CEO of the Business Software Alliance (BSA), stated in a release that "Last summer the Supreme Court stated clearly that if you build a business based on copyright infringement, you will face legal consequences. Grokster appears to have collapsed under the weight of those consequences. While Grokster was best known for swapping music and movies, it also engaged in a large amount of trade in pirated software as well. Today's shutdown of this service is a welcome victory in our ongoing fight against piracy."

11/7. The U.S. Court of Appeals (3rdCir) issued its opinion [19 pages in PDF] in P.C. Yonkers v. Celebrations, a case involving the civil cause of action provision of the Computer Fraud and Abuse Act (CFAA), which is codified at 18 U.S.C. § 1030(g).

It would appear from the plain language of the statute that there is a civil cause of action, and that there is no exemption for former employees who access the computers of their former employers. It states that there is a "civil action". Nevertheless, the District Court questioned this. Hence, the Court of Appeals wrote a long explanation of the proposition that a statute that states that it creates a "civil action" does in fact create a civil action.

Moreover, the Court of Appeals wrote that these civil actions are are not limited to classic hacking cases. Actions by former employers may give rise to a civil suit under § 1030(g). In the present case the claim fails, not because there is no cause of action, but because the plaintiff failed to introduce sufficient evidence in support of its claim.

This is a civil action involving two competing operators of retail stores that sell party goods, such as Halloween items. P.C. Yonkers (P.C. is an abbreviation for Party City), and others P.C. franchisees, filed a complaint in U.S. District Court (DNJ) against Celebrations, and its founder, Andrew Hack, who had previously been an employee of P.C., before leaving to set up Celebrations. P.C. alleged unauthorized access to a protected computer system in violation of § 1030(g).

P.C. alleged that Hack hacked its PCs, to steal its many valuable trade secrets regarding retail sales of party goods in the northern New Jersey and New York City area. P.C. alleged that Hack accessed its computers, without authorization, on numerous occasions. However, most of these occurred while Hack worked for P.C. Hack argued that he worked for P.C. out of a home office, and accessing computer networks remotely is what teleworkers do. He also argued that any instances in which he accessed the PCs of P.C. after his departure would have been for P.C. business.

The District Court denied injunctive relief requested by P.C., for lack of evidence, and because § 1030 does not provide a civil remedy. This appeal followed.

The Court of Appeals affirmed the denial of the injunction, on one of the two grounds relied upon by the District Court. First, it held that P.C. had not introduced evidence sufficient to support the grant of an injunction. For example, it could not show what information, if any, had been accessed by Hack.

Second, the Court of Appeals addressed the extent to which § 1030 provides civil remedies. While most of § 1030 pertains to criminal prohibitions, § 1030(g) provides, in part, that "Any person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or other equitable relief."

This subsection continues that "A civil action for a violation of this section may be brought only if the conduct involves 1 of the factors set forth in clause (i), (ii), (iii), (iv), or (v) of subsection (a)(5)(B)."

These five factors, in turn, are as follows:

  "(i) loss to 1 or more persons during any 1-year period (and, for purposes of an investigation, prosecution, or other proceeding brought by the United States only, loss resulting from a related course of conduct affecting 1 or more other protected computers) aggregating at least $5,000 in value;
  (ii) the modification or impairment, or potential modification or impairment, of the medical examination, diagnosis, treatment, or care of 1 or more individuals;
  (iii) physical injury to any person;
  (iv) a threat to public health or safety; or
  (v) damage affecting a computer system used by or for a government entity in furtherance of the administration of justice, national defense, or national security;"

The Court of Appeals held, unlike the District Court, that "not only the relevant case law, but also the plain language of the statute, militate in favor of the availability of a civil remedy, and specifically, the type of injunctive relief sought by the PC plaintiffs."

There is also precedent for the proposition that there is a civil remedy under § 1030(g). On August 28, 2003, the U.S. Court of Appeals (9thCir) issued its opinion [15 pages in PDF] in Theofel v. Farey-Jones, a case regarding Rule 45 subpoenas (which are essentially issued by the litigants' attorneys) which are directed to internet service providers. The Appeals Court held that overbroad subpoenas for e-mail messages may give rise to a private right of action under the Stored Communications Act or the Computer Fraud and Abuse Act, but not the Wiretap Act. See, story titled "9th Circuit Holds That An Unlawful Subpoena to ISP for E-Mail Can Violate the Stored Communications Act" in TLJ Daily E-Mail Alert No. 729, August 29, 2003.

This case is P.C. Yonkers, Inc., et al. v. Celebrations The Party and Seasonal Superstor, et al., U.S. Court of Appeals for the 3rd Circuit, App. Ct. No. 04-4254, an appeal from the U.S. District Court for the District of New Jersey, D.C. Civil No. 04-cv-04554, Judge Joseph Greenaway presiding. Judge Rendell wrote the opinion of the Court of Appeals, in which Judges Roth and Barry joined.

11/7. The Supreme Court denied certiorari in Krause v. Titleserv, a software copyright case involving interpretation of 17 U.S.C. § 117(a)(1), which provides a defense to copyright infringement where the owner of a copy of a program modifies that program as an "essential step in the utilization of the computer program". The denial of certiorari lets stands the 2nd Circuit's tortured construction of the statute to permit modifications that "improve" the program. See, Order List [9 pages in PDF] at page 3.

Introduction. William Krause authorized eight software programs for Titleserv, Inc., which Titleserv possessed and used. Titleserv compensated Krause for this. Titleserv also modified the source code of these programs, without authorization from Krause. There was not written agreement between Krause and Titleserv.

That is, Krause wrote the programs, and owns the copyrights. But, he wrote them for Titleserv, and was paid by Titleserv, which obtained copies. Titleserv modified the programs not only to make sure that they could continue to be utilized, but also to improve them. Titleserv made these new and improved versions for its own use, rather for sale or distribution to others. Krause sued for infringement in violation of 17 U.S.C. § 106. Titleserv raised the affirmative defense of § 117(a)(1).

The Court of Appeals characterized Titleserv's changes as falling into four categories: "(1) correcting programming errors ...; (2) changing the source code to add new clients, insert changed client addresses ...; (3) incorporating the programs into the Windows-based system Titleserv designed and implemented between 1997 and 1998; and (4) adding capabilities, such as the ability to print checks, and, to a limited degree, allowing customers direct access to their records ..."

The Court of Appeals opinion has several notable components. First, it addresses the "owner of a copy" element of § 117(a)(1). The Court found for Titleserv.

Second, the opinion addresses the "essential step in the utilization" element of § 117(a)(1). The Court found for Titleserv, after a long contortion of the phrase "essential step in the utilization" into "improve". To the extent that few purchasers of commercial software modify it for the purpose of making it worse, the Court's interpretation, in effect, tends to remove the "essential step in the utilization" element from the affirmative defense provided by § 117(a)(1).

Both of these parts of the opinion may favor software purchasers, users and licensees over software developers and vendors. Although, developers of mass market software may adjust by using and revising shrinkwrap and other consumer end-user license and terms of usage agreements. The U.S. Court of Appeals (8thCir) upheld such an agreement, in a non § 117 case, in Davidson v. Combs, which is also known as the Blizzard case. See, September 1, 2005 opinion [20 pages in PDF]. See also, amicus curiae brief [51 pages in PDF] of the Consumers Union and the Public Knowledge.

Another significant part of the Court's opinion is its reliance upon a "no harm" principle. That is, the Court of Appeals relied upon its conclusion that "we see no harm whatsoever to Krause’s enjoyment of his copyright" as a basis for finding that Titleserv's modifications are protected by the affirmative defense provided by § 117(a)(1).

Technology companies often assert a no harm principle in public policy debates. For example, Google has argued recently that its scanning of library books will cause no harm to publishers and authors. But, in intellectual property law, as in other areas of property law, the holder of a property right need not prove harm in order to enforce its property rights. Harm is at issue in the remedies phase, if the rights holder seeks actual damages. And, in the context of copyright, harm may be at issue in resolving an affirmative defense of fair use. But, this is a § 117 case, not a § 107 case. There is not a "no harm" element codified in § 117. The Court of Appeals has created a "no harm" consideration for § 117, and perhaps, the implication that "no harm" may be a consideration in a wider array of copyright cases.

Proceedings Below. Krause filed a complaint in U.S. District Court (EDNY) against Titleserv, its owner, CEO, three additional employees, and an affiliated company, alleging copyright infringement. Defendants moved for summary judgment on the argument that their use was permitted by 17 U.S.C. § 117(a)(1). The District Court granted summary judgment to the defendants. The District Court opinion is also reported at 289 F. Supp. 2d 316.

Krause appealed. The Court of Appeals (2ndCir) issued its opinion [PDF] on March 21, 2005, and an errata on March 23, affirming the judgment of the District Court.

Statutes. 17 U.S.C. § 106 provides the exclusive rights of copyright holders, including the exclusive rights "to reproduce the copyrighted work in copies" and "to prepare derivative works based upon the copyrighted work".

Then, 17 U.S.C. § 117 provides limitations on the exclusive rights of copyright holders in the case of software programs. In particular, subsection 117(a)(1) provides, in part, that "(a) ... Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner ..."

Court of Appeals Analysis of "owner of a copy". First, the Court of Appeals addressed whether Titleserv is an "owner of a copy" of the programs within the meaning of 117(a). Krause is the owner of the copyright, and Titleserv possessed copies, but the parties disputed whether Titleserv owned a copy.

The Court of Appeals concluded that "formal title in a program copy is not an absolute prerequisite to qualifying for § 117(a)’s affirmative defense. Instead, courts should inquire into whether the party exercises sufficient incidents of ownership over a copy of the program to be sensibly considered the owner of the copy for purposes of § 117(a). The presence or absence of formal title may of course be a factor in this inquiry, but the absence of formal title may be outweighed by evidence that the possessor of the copy enjoys sufficiently broad rights over it to be sensibly considered its owner."

The Court elaborated that "We conclude that Titleserv owned copies of the disputed programs within the meaning of § 117(a). We reach this conclusion in consideration of the following factors: Titleserv paid Krause substantial consideration to develop the programs for its sole benefit. Krause customized the software to serve Titleserv’s operations. The copies were stored on a server owned by Titleserv. Krause never reserved the right to repossess the copies used by Titleserv and agreed that Titleserv had the right to continue to possess and use the programs forever, regardless whether its relationship with Krause terminated. Titleserv was similarly free to discard or destroy the copies any time it wished. In our view, the pertinent facts in the aggregate satisfy § 117(a)’s requirement of ownership of a copy."

Court of Appeals Analysis of "essential step in the utilization". Second, the Court of Appeals addressed whether Titleserv's actions were "an essential step in the utilization of the computer program in conjunction with a machine" within the meaning of § 117(a)(1).

This is the longest section of the Court of Appeals' opinion. The Court went to great length to deconstruct and redefine the terms "essential" and "utilization", individually, and together with the term "computer program".

The Court also relied heavily on a single case from the 2nd Circuit, Aymes v. Bonelli, which is reported at 47 F.3d 23 (1995).

In the present case, the Court held that "an essential step in the utilization of the computer program" includes "changes" that "were not strictly necessary to keep the programs functioning, but were designed to improve their functionality in serving the business for which they were created."

The Court then reviewed each of the categories of software modifications made by Titleserv, and found that each falls within its modified construction of the term "an essential step in the utilization".

The Court did not have to resort to any definitional acrobatics to conclude that correcting the programming errors was an "essential step in the utilization of the computer program".

However, it was only with resort to its construction of the statute that the Court found that "adding capabilities, such as the ability to print checks, and, to a limited degree, allowing customers direct access to their records, which made Titleserv’s copy of the programs more responsive to the needs of Titleserv’s business" falls within the meaning of an "adaptation" that is "an essential step in the utilization of the computer program".

No Harm Principle. Neither the words "harm",  "injury" or "damage" appear in § 117. Nevertheless, the Court of Appeals based its conclusion that Titleserv's modifications fall within the scope of § 117(a)(1) in part upon its finding of "no harm" to Krause.

The Court wrote that "A different scenario would be presented if Titleserv’s alteration somehow interfered with Krause's access to, or ability to exploit, the copyrighted work that he authored, or if the altered copy of Krause's work were to be marketed by the owner of the copy. But on our facts, we see no harm whatsoever to Krause's enjoyment of his copyright. The changes made by Titleserv were made only to its copies of Krause's programs. Krause enjoyed no less opportunity after Titleserv's changes, than before, to use, market, or otherwise reap the fruits of the copyrighted programs he created."

Perhaps in this case, no harm resulted to Krause. The Court's recitation of the facts is not thorough. However, to the extent that the Court suggests that no harm results to the copyright holder when the user makes modifications to improve the software, but does not sell it to third parties, this could, if followed by other courts, have far reaching consequences. For example, in some commercial contexts software is written for only one, or just a few, corporate users. The incentive to write the software is to obtain revenues from an original transaction, and from transactions involving improvements to the software. In this situation, the market for the improved version is just the one company, or just a few. The Court, by disregarding the loss of revenue from authoring and licensing improvements for this one company, is ignoring all or much of the economic loss to the software developer.

Legislative Intent. One final noteworthy aspect of this case is the Court's resort to legislative intent. The Court relied upon a one sentence statement in support of its construction of the phrase "essential step in the utilization".

However, the statement was not made by any Senator or Representative during consideration of the bill. Rather, it came from a group outside of the Congress that asked the Congress to change the law. The Court of Appeals reasoned that the group made a recommendation, and the Congress approved a statute containing language similar to that sought by the group, so therefore, a line in a written submission by that group is also the intent of the Congress.

In the least, it would have been entertaining to read an opinion by Justice Scalia on this method of finding legislative intent. However, the Supreme Court denied certiorari.

For another discussion of § 117, see the U.S. Court of Appeals (FedCir) opinion in DSC Communications Corp v. Pulse Communications, Inc.

Krause was represented by Eugene Berman of the law firm of Fine Fine & Berman. Titleserv was represented by Kenneth Aneser of the law firm of Rosenberg Calica & Birney.

This is William Krause v. Titleserv, Inc., et al., a petition for writ of certiorari to the U.S. Court of Appeals for the 2nd Circuit, Sup. Ct. No. 05-166. The Court of Appeals No. is 03-9303. Judge Leval wrote the opinion of the Court of Appeals, in which Judge Katzman joined. The third member of the panel, former Judge Ellsworth Van Graafeiland, died between oral argument and decision. See also, Supreme Court docket.

11/4. On November 3, 2005, the Senate Judiciary Committee (SJC) approved, by unanimous consent, the nomination of Wan Kim to be the Assistant Attorney General in charge of the Department of Justice's Civil Rights Division. On November 4, 2005, the full Senate confirmed him.

11/4. The Senate confirmed Katherine Baicker to be a member of the President's Council of Economic Advisors.

11/4. The Senate confirmed Matthew Slaughter to be a member of the President's Council of Economic Advisors.

11/3. The Senate Judiciary Committee (SJC) approved, by unanimous consent, the nomination of Steven Bradbury to be the Assistant Attorney General in charge of the Department of Justice's (DOJ) Office of Legal Counsel.

11/3. The Senate Judiciary Committee (SJC) approved, by unanimous consent, the nomination of Thomas Barnett to be the Assistant Attorney General in charge of the Department of Justice's (DOJ) Antitrust Division.

11/7. The U.S. Patent and Trademark Office (USPTO) announced in a release that the USPTO and IP Australia, which includes the nation of Australia's patent office, have "initiated a pilot project to test the feasibility of IP Australia performing search and examination services for the USPTO on international applications filed with the USPTO under the Patent Cooperation Treaty (PCT)".

11/3. The Senate Judiciary Committee (SJC) reported, by unanimous consent, S 1699, the "Stop Counterfeiting in Manufactured Goods Act", and S 1095, the "Protecting American Goods and Services Act of 2005". It held over HR 683, the "Trademark Dilution Revision Act of 2005".

11/3. The Senate Judiciary Committee (SJC) held an executive business meeting. It held over two bills pertaining to personal data and privacy, S 1789, the "Personal Data Privacy and Security Act of 2005", and S 751, the "Notification of Risk to Personal Data Act".

The House will meet at 10:00 AM for legislative business. See, Republican Whip Notice.

The Senate will meet at 9:45 AM. It will resume consideration of S 1042, the "National Defense Authorization Act for Fiscal Year 2006".

7:30 AM - 5:30 PM. The Department of Homeland Security's (DHS) Homeland Security Science and Technology Advisory Committee will hold a partially closed meeting. The meeting will be closed from 7:30 AM to 4:00 PM. See, notice in the Federal Register, October 24, 2005, Vol. 70, No. 204, at Pages 61465 - 61466. Location: 3811 N. Fairfax Drive, 6th Floor, Conference Room, Arlington, VA.

8:00 - 9:15 AM. The U.S. Chamber of Commerce will host a breakfast. The speaker will be Sen. Charles Grassley (R-IA), the Chairman of the Senate Finance Committee. See, notice. For more information, contact Matt Haller at mhaller at uschamber dot com or 202 463-3176. Location: U.S. Chamber, 1615 H Street, NW.

9:00 AM - 4:45 PM. The Securities and Exchange Commission (SEC) will host an event titled "CCOutreach Program National Seminar". This event is for Chief Compliance Officers (CCOs) of mutual fund and investment advisers. See, SEC notice and registration pages. Location: SEC, 100 F Street, NW.

9:30 AM. The Antitrust Modernization Commission (AMC) will meet. The topic will be "Antitrust and the New Economy". The morning panel, from 9:30 to 11:30 AM, will include Richard Gilbert, Howard Morse, James O'Connell, John Osborn, and Carl Shapiro. The afternoon panel, from 12:45 to 2:45 PM, will include Susan DeSanti, Peter Detkin, Mark Lemley, Stephen Merrill, Stephen Pinkos, and Stephen Stack. See, AMC notice and notice in the Federal Register, October 21, 2005, Vol. 70, No. 203, at Page 61247. Location: Federal Trade Commission, Conference Center, 601 New Jersey Ave., NW.

2:30 AM. The Senate Judiciary Committee (SJC) may hold a hearing on the nominations of Carol Dinkens and Alan Charles Raul to be Chairman and Vice Chairman of the Privacy and Civil Liberties Oversight Board. See, story titled "Bush Names Members of Privacy and Civil Liberties Oversight Board" in TLJ Daily E-Mail Alert No. 1,151, June 10, 2005. The SJC frequently cancels of postpones hearings 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.

The House will meet at 10:00 AM for legislative business. See, Republican Whip Notice.

8:00 - 11:30 AM. The U.S. Patent and Trademark Office's (USPTO) Deputy Commissioner for Patent Examination Policy (DCPEP) and Office of Patent Legal Administration (OPLA) will host an event titled "Rules Customer Partnership Meeting". See, notice [PDF] Location: Madison Auditorium,  600 Dulany Street, Alexandria, VA.

9:00 AM. Day one of a two day partially closed meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee. The agenda of the public portion of the meeting includes "1. Microprocessor Roadmap Update. 2. Update on BIS programs and activities. 3. Quantum Computing. 4. First Annual HPC Review. 5. InfiniBand Technology and the EAR. 6. Industry proposal to change 4A3g. 7. Network Performance discussions. 8. China ``catch all´´ August 9, 2005 Regulation." See, notice in the Federal Register, October 25, 2005, Vol. 70, No. 205, at Page 61601. The BIS did not disclose the agenda of the closed portion of the meeting. Location: DOC, Room 3884, 14th Street between Constitution and Pennsylvania Aves., NW.

9:30 AM. The Senate Judiciary Committee (SJC) may hold a hearing titled "Cameras in the Courtroom". 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.

10:00 AM. The House Judiciary Committee (HJC) will meet to mark up several bills, including HR 2791, the "United States Patent and Trademark Fee Modernization Act of 2005". See, notice. The meeting 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 House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing titled "Staff discussion draft of legislation to create a statutory framework for Internet Protocol and Broadband Services". See, notice. The hearing will be webcast by the HCC. Press contact: Larry Neal (Barton) at 202 225-5735, Terry Lane (Barton) at 202 225-5735, or Sean Bonyun (Upton) at 202 225-3761. Location: Room 2123, Rayburn Building.

10:00 AM. The Senate Finance Committee will hold a business meeting to to review and make recommendations on proposed legislation implementing the United States-Bahrain Free Trade Agreement. See, notice. Location: Room 215, Dirksen Building.

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". See, notice. Location: Room 2128, Rayburn Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in IP Innovation v. eCollege.com, No. 04-1571. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Computervision Corp. v. US, No. 05-5014. Location: Courtroom 201, 717 Madison Place, NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Enforcement Committee will host a brown bag lunch titled "Meet the Enforcement Bureau Chief, Kris Monteith". RSVP to Margaret Davis at margaret dot davis at wilmerhale dot com. Location: Wilmer Hale, 1801 Pennsylvania Ave., NW.

2:00 PM. The Senate Judiciary Committee's (SJC) Subcommittee on the Constitution, Civil Rights & Property Rights may hold an executive business meeting. 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.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Secrets of the Uniform Trade Secrets Act". The speaker will be Milton Babirak (Babirak Vangellow & Carr). 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.

The House will meet at 10:00 AM for legislative business. See, Republican Whip Notice.

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

9:00 AM - 2:00 PM. The U.S. Chamber of Commerce will host an event titled "Anti-Counterfeiting and Piracy Summit: STOPing the Fakes". The scheduled speakers include Attorney General Alberto Gonzales (Attorney General), Carlos Gutierrez (Secretary of Commerce), Thomas Donohue (Chamber), Suzanne Clark (Chamber), Edward DeGraan (Gillette Company), Mitch Bainwol ( Recording Industry Association of America), David Israelite (National Music Publishers Association), Robert Holleyman (Business Software Alliance), and Dan Glickman (Motion Picture Association of America). The Chamber states that "Credentialed members of the media are invited to attend." See, notice. For more information, contact Scott Eisner at 202 463-5500 or ncfevents at uschamber dot com. The price to attend ranges from free to $195. Location: Grand Hyatt Hotel, 1000 H St., NW.

9:00 AM. Day two of a two day partially closed meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee. The agenda of the public portion of the meeting includes "1. Microprocessor Roadmap Update. 2. Update on BIS programs and activities. 3. Quantum Computing. 4. First Annual HPC Review. 5. InfiniBand Technology and the EAR. 6. Industry proposal to change 4A3g. 7. Network Performance discussions. 8. China ``catch all´´ August 9, 2005 Regulation." See, notice in the Federal Register, October 25, 2005, Vol. 70, No. 205, at Page 61601. The BIS did not disclose the agenda of the closed portion of the meeting. Location: DOC, Room 3884, 14th Street between Constitution and Pennsylvania Aves., NW.

9:30 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. 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.

10:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in SightSound Technologies v. Rozio, No. 05-1277. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for meetings of the ITU-D Telecommunication Development Advisory Group (TDAG). See, notice in the Federal Register, October 26, 2005, Vol. 70, No. 206, at Page 61876. Location: DOS, Harry Truman Building, Room 2533A.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "Managing Your Information Technology Needs". The speakers will include Marc Mayerson (Spriggs & Hollingsworth) and Conrad Jacoby (Potomac Consulting Group). The price to attend ranges from $15-$25. For more information, call 202 626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

12:30 PM. The Federal Communications Bar Association's (FCBA) Professional Responsibility Committee will host a brown bag lunch to consider a recommendation to the FCBA Executive Committee. RSVP to Tina Screven at escreven at wbklaw dot com. Location: Wilkinson Barker Knauer, 2400 N Street, NW, 7th Floor.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host a continuing legal education (CLE) seminar titled "Practical Tips for Appellate Litigation and FCC Advocacy". Location: Wiley Rein & Fielding, 1776 K Street, NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding closed captioning rules for video programming. See, notice in the Federal Register, September 26, 2005, Vol. 70, No. 185, at Pages 56150-56157. This NPRM is FCC 05-142 in CG Docket No. 05-231.

Veterans' Day.

There will be no issue of the TLJ Daily E-Mail Alert.

The House may meet. See, Republican Whip Notice.

The Federal Communications Commission (FCC) and other federal offices will be closed for Veterans' Day. See, Office of Personnel Management's (OPM) list of federal holidays.

9:00 AM - 5:30 PM. Day one of a four day closed meeting of the National Institute of Standards and Technology's (NIST) Judges Panel of the Malcolm Baldrige National Quality Award. See, notice in the Federal Register, October 25, 2005, Vol. 70, No. 205, at Page 61606. Location: NIST, Administration Building, Room A1038, Gaithersburg, MD.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Virgin Islands Telephone Corporation v. FCC, No. 04-1352. Judges Sentelle, Randolph and Rogers will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

12:00 NOON. Peter Swire (Ohio State University law school) will deliver a paper titled "Security Market: Competitive and Security Incentives for Disclosure of Data". This event is a part of the George Washington University Law School's (GWULS) intellectual property workshop series. RSVP by Tuesday, November 8, to Rosalie Kouassi at rkouassi at law dot gwu dot edu. Location: GWULS, Faculty Conference Center, 5th Floor Burns, 716 20th St., NW.

Effective date of the order portion of the Federal Communications Commission's (FCC) Order and Further Notice of Proposed Rulemaking (FNPRM) 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). See, notice in the Federal Register, October 13, 2005, Vol. 70, No. 197, at Pages 59664 - 59675. 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.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the notice of proposed rulemaking (NPRM) portion of the Order and FNPRM 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). See, public notice [2 pages in PDF] and notice in the Federal Register, October 13, 2005, Vol. 70, No. 197, at Pages 59704 - 59710. 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.

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) 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.

9:00 AM - 5:30 PM. Day two of a four day closed meeting of the National Institute of Standards and Technology's (NIST) Judges Panel of the Malcolm Baldrige National Quality Award. See, notice in the Federal Register, October 25, 2005, Vol. 70, No. 205, at Page 61606. Location: NIST, Administration Building, Room A1038, Gaithersburg, MD.

10:00 AM. The Senate Banking Committee will hold a hearing on the nomination of Ben Bernanke to be Chairman of the Federal Reserve Board. See, notice. Location: Room 106, Dirksen Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch titled "Regulatory Issues & Developments". The speaker will be the FCC's Catherine Bohigian. For more information, contact Quyen Truong at ttruong at dowlohnes dot com or 202 776-2058. Location: Dow Lohnes & Albertson, 1200 New Hampshire Ave., NW, Suite 800.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Privacy in Today’s Workplace". The speakers will be Charles Henter (Henter Law Group), Lawrence Greenberg (The Motley Fool, Inc.), and Gerard Stegmaier (Wilson Sonsini Goodrich & Rosati). 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.

Deadline to submit to the World Intellectual Property Organization (WIPO) proposals for issues and speakers for its forum on the draft Substantive Patent Law Treaty (SPLT). See, WIPO notice.

Effective date of the Copyright Office (CO) interim regulations promulgated pursuant to the Artists' Rights and Theft Prevention Act of 2005 (ART Act) governing the preregistration of unpublished works that are being prepared for commercial distribution in classes of works that the Register of Copyrights has determined have had a history of pre-release infringement. Also, the CO's online preregistration system will commence operation on November 15. See, notice in the Federal Register, October 27, 2005, Vol. 70, No. 207, at Pages 61905 - 61908.

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