1/5. The Institute for Policy Innovation (IPI) released a paper [2 pages in PDF] titled "Will Congress Circumvent the DMCA?". The author is Richard Epstein, a law professor at the University of Chicago law school. The paper is a criticism of the key provisions of HR 1201, the "Digital Media Consumers' Rights Act of 2005 ", sponsored by Rep. Rick Boucher (D-VA) and others.

The primary purpose of HR 1201 is to modify the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA), at 17 U.S.C. § 1201.

HR 1201 provides, in part, that "Section 1201(c) of title 17, United States Code, is amended -- (1) in paragraph (1), by inserting before the period at the end the following: `and it is not a violation of this section to circumvent a technological measure in order to obtain access to the work for purposes of making noninfringing use of the work´; and (2) by adding at the end the following new paragraph: `(5) Except in instances of direct infringement, it shall not be a violation of the Copyright Act to manufacture or distribute a hardware or software product capable of substantial noninfringing uses.´ "

Epstein criticized both of these proposals. First, he argued that the exception to circumvention would render the anti-circumvention provisions ineffective.

He wrote that "Once the first of these two provisions is in place, then someone can circumvent the device for the appropriate purpose. But unfortunately H.R. 1201 does not say one word about how the circumvention in question will be limited just to those cases. Nor does it indicate what penalties will be given to individuals who first circumvent for fair use and then proceed, as is likely to be the norm, to circumvent for all other purposes. So if equipment can be sold for good purposes, then it can be used for bad ones, and the DMCA has lost its teeth. It is not too much to say that this stealth provision, which is never referred to in the findings of the act could work a comprehensive repeal of the DMCA." (Emphasis in original.)

Second, Epstein argued that the new subsection (5) codifies Sony, and undoes Grokster. He wrote that HR 1201, with its reference to "capable of substantial noninfringing uses", codifies the opinion of the Supreme Court in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). The Court wrote in that case that the "sale of video cassette recorders (``VCR´´s) did not subject Sony to contributory copyright liability, even though Sony knew as a general matter that the machines could be used, and were being used, to infringe the plaintiffs' copyrighted works. Because video tape recorders were capable of both infringing and ``substantial noninfringing uses,´´ generic or ``constructive´´ knowledge of infringing activity was insufficient to warrant liability based on the mere retail of Sony’s products."

Epstein argued that "we should allow for some case law that contracts its scope in some future case."

He further argued that the new subsection (5) would undo the Supreme Court's opinion [55 pages in PDF] in MGM v. Grokster. See, story titled "Supreme Court Rules in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.

Epstein wrote that "Grokster was of course capable of noninfringing uses, and yet it was shut down on the purposive inducement theory. New Subsection (5) purports to say that it is no violation of the Copyright Act period to distribute hardware or software that has that power. The purposive inducement theory is a Copyright Act theory, so it looks as though the decision would give the same protection for purposive inducement that it gives for contributory infringement cases. If so, then Grokster is history." (Emphasis in original.)

For more on HR 1201, see stories titled "Reps. Boucher and Doolittle Introduce Digital Media Consumer Rights Act" and "Summary of the Digital Media Consumer Rights Act" in TLJ Daily E-Mail Alert No. 532, October 4, 2002; and story titled "Reps. Boucher and Doolittle Introduce Digital Fair Use Bill" in TLJ Daily E-Mail Alert No. 582, January 14, 2003. See also, stories titled "Chairman Barton Says Commerce Committee Will Mark Up Boucher Doolittle Bill in July", "House Commerce Committee's Primary Jurisdiction Over HR 107", and "Judiciary Committee Leaders Condemn Jurisdictional Power Grab" in TLJ Daily E-Mail Alert No. 924, June 23, 2004. See also, story titled "Reps. Boucher, Doolittle and Barton Reintroduce Digital Media Consumers' Rights Act" in TLJ Daily E-Mail Alert No. 1,111, April 8, 2005. See also, story titled "House Commerce Subcommittee Holds Hearing on Fair Use" in TLJ Daily E-Mail Alert No. 1,256, November 18, 2005.

1/5. President Bush signed HR 3402, the "Violence Against Women and Department of Justice Reauthorization Act of 2005", which is also sometimes referred to as VAWA. See, White House release.

This bill authorizes appropriations for the Department of Justice (DOJ) for fiscal years 2006 through 2009. See, §§ 1101 through 1104. For example, it authorizes, for the Antitrust Division, $144,451,000 for FY 2006. Also, it authorizes "For the costs of conversion to narrowband communications, including the cost for operation and maintenance of Land Mobile Radio legacy systems: $128,701,000."

Most of the VAWA's provisions are not technology related, and hence, are not described in this publication. However, some provisions are technology related.

DOJ Privacy Officer. § 1174 of the VAWA provides for the creation of a privacy officer position at the DOJ. It states that "The Attorney General shall designate a senior official in the Department of Justice to assume primary responsibility for privacy policy." This section goes on to enumerate several advisory and reporting responsibilities, but no powers, of this privacy officer.

The main responsibilities of this position are advisory. The bill provides that this person shall advise the Attorney General regarding "appropriate privacy protections, relating to the collection, storage, use, disclosure, and security of personally identifiable information, with respect to the Department's existing or proposed information technology and information systems" and "privacy implications of legislative and regulatory proposals affecting the Department and involving the collection, storage, use, disclosure, and security of personally identifiable information". This privacy officer is also required to prepare periodic reports to the Congress.

The Internet as a Telecommunications Device. The bill, at § 113, provides that it is a crime for any person to use internet technologies "without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person".

What may be notable about this section is how the bill accomplishes this. § 113 of the bill revises the meaning of the term "telecommunications device" to include the internet, for one subsection of 47 U.S.C. § 223.

§ 223 is the Communications Act's section titled "Obscene or harassing telephone calls in the District of Columbia or in interstate or foreign communications". § 113 of the bill is titled "Preventing Cyberstalking". § 509 of HR 3402 as introduced, as reported by the House Judiciary Committee, and as initially approved by the House, was also titled "Preventing Cyberstalking". However, this earlier language would have instead amended 18 U.S.C. § 2661A, a section of the criminal code which is titled "Interstate stalking". The Senate deleted § 509 and inserted § 113.

47 U.S.C. § 223(a)(1)(C) currently provides, in part, that "Whoever (1) in interstate or foreign communications ... (C) makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications ... shall be fined under title 18 or imprisoned not more than two years, or both."

Subsection 223(h) defines terms for the purposes of § 223. It provides at § 223(h)(1) that "The use of the term ``telecommunications device´´ in this section --- (A) shall not impose new obligations on broadcasting station licensees and cable operators covered by obscenity and indecency provisions elsewhere in this chapter; and (B) does not include an interactive computer service." That is, it does not provide a definition of "telecommunications device"; rather, it provides exceptions.

The VAWA, which the President signed into law, adds a new Subsection 223(h)(1(C), which provides that for the purposes of the above quoted Subsection 223(a)(1)(C), the term "telecommunications device" also "includes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet (as such term is defined in section 1104 of the Internet Tax Freedom Act (47 U.S.C. 151 note))." (Parentheses in original.)

The VAWA also contains the following provision: "This section and the amendment made by this section may not be construed to affect the meaning given the term `telecommunications device´ in section 223(h)(1) of the Communications Act of 1934, as in effect before the date of the enactment of this section."

The meaning and effect of § 113 are vague and unclear. At bottom, it is an amendment to a definitional section. Yet, § 223(h)(1), the section that it amends, before enactment of the VAWA, contained no definition. It contained only exceptions to an undefined term. § 113 still provides no definition. It only adds a class of activity that is included in the undefined term.

Moreover, 47 U.S.C. § 153, which provides numerous definitions for the Communications Act, contains no definition of "telecommunications device". It does, however, define the term "telecommunications" in a manner that is inconsistent with including most internet protocol based communications. Yet, § 113 provides that IP based communications are a "telecommunications device" for certain purposes.

Also, the VAWA pertains primarily to violence against women. However, the scope of § 223, as amended by § 113, extends to actions that are neither violent, nor against women. Also, while § 113 is titled "Preventing Cyberstalking", it extends 47 U.S.C. § 223(a)(1)(C) to conduct that is not in the nature of stalking.

The DOJ has prosecutorial authority under § 223. For years the DOJ has been advocating extending telecommunications laws and regulatory regimes to internet and information technologies. In the past two years the Federal Communications Commission (FCC) has demonstrated increasing enthusiasm for this process. It is not clear what use the DOJ and FCC might make of this new § 113 of the VAWA, either in the context of internet based stalking, or for other purposes.

1/4. The Federal Communications Commission (FCC) published a notice in the Federal Register that describes, and seeks public comments on, the U.S. Telecom Association's petition [PDF] seeking reconsideration and clarification of the FCC's CALEA order. This is the FCC's order 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 USTelecom argues that the FCC "should reconsider its decision to start the 18-month CALEA compliance clock on November 14, 2005, and instead should start that clock on the effective date of its forthcoming order on CALEA capability requirements for broadband and VoIP providers". It also argues that the FCC should "clarify and delineate the specific broadband access services that qualify as ``newly covered services´´ under the CALEA Applicability Order." The FCC states that "Oppositions to these petitions must be filed by January 19, 2006. Replies to an opposition must be filed within 10 days after the time for filing oppositions has expired."

1/5. Rep. James Sensenbrenner (R-WI), the Chairman of the House Judiciary Committee, released the first two of a series of statements in support of the conference report [PDF] on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005". Sixteen sections of the 2001 PATRIOT Act are scheduled to sunset on February 3, 2006, unless extended. The first statement [2 pages in PDF] and the second statement [PDF] of Rep. Sensenbrenner both argue that the conference report contains civil liberties safeguards that prevent abuse of the powers created by Section 215 of the PATRIOT Act. Section 215 pertains to access to business records under the Foreign Intelligence Surveillance Act (FISA).

1/5. Christopher Sonderby was selected to be the Department of Justice's (DOJ) Intellectual Property Law Enforcement Coordinator (IPLEC) in Bangkok, Thailand. He is a federal prosecutor with experience in investigating and prosecuting computer, intellectual property, and trade secrets crimes. Sonderby was previously head of the DOJ's Computer Hacking and Intellectual Property Unit (CHIPS) in the U.S. Attorneys Office for the Northern District of California, in San Jose. He will coordinate enforcement efforts in some Asian nations. The DOJ release does not identify which nations.

The House will not meet. It will convene for the 2nd Session of the 109th Congress on Tuesday, January 31, 2006.. See, Majority Whip's calendar.

The Senate will not meet. It will convene for the 2nd Session of the 109th Congress on Wednesday, January 18, 2006. See, 2006 Senate calendar.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Practice Committee will host a lunch. There will be a debate regarding municipal WiFi networks between Tom Lenard (Progress & Freedom Foundation) and Harold Feld (Media Access Project). See, registration form [PDF]. The price to attend is $15. Location: Sidley Austin, 1501 K Street, NW.

4:00 - 7:00 PM. The International Trademark Association (INTA) will host a symposium titled "Should Parma be a Trademark? Issues Surrounding Geographical Marks and Indicators". The speakers will be Roger Schechter (George Washington University Law School), Lionel Bently (University of Cambridge), Min-Chiuan Wang (Institute of Technology Law, National Chiao-Tung University in Taiwan), and Glynn Lunney (Tulane University School of Law). See, notice. Location: __.

Deadline to submit reply comments to the Office of the U.S. Trade Representative (USTR) regarding the operation, effectiveness, and implementation of and compliance with (1) the World Trade Organization (WTO) agreements affecting market opportunities for telecommunications products and services of the U.S., (2) the telecommunications provisions of the North American Free Trade Agreement (NAFTA), (3) the U.S. free trade agreements (FTAs) with Chile, Singapore, and Australia, and (4) any other FTAs coming into effect by January 1, 2006. See, notice in the Federal Register, November 16, 2005, Vol. 70, No. 220, at Pages 69621 - 69622.

12:00 NOON. The Senate Judiciary Committee (SJC) will begin its hearings on the nomination of Judge Sam Alito to be a Justice of the Supreme Court. Location: Room 216, Hart Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Sharp Kabushiki v. ThinkSharp, Inc., No. 05-1220. This is a dispute regarding registration of the mark "Thinksharp" for computer software by ThinkSharp, Inc. Sharp, which makes electronics products, objects. Location: Courtroom 201, 717 Madison Place, NW.

The Federal Communications Commission (FCC) will begin a mock auction for its FM Broadcast Construction Permits Auction (Auction No. 62). See, Public Notice [PDF] numbered DA 05-3204, and dated December 21, 2005.

9:00 AM. The President's Council of Advisors on Science and Technology (PCAST) will hold an open meeting. The tentative agenda for this meeting includes a presentation on the Federal Networking and Information Technology Research and Development (NITRD) program, an update on nanotechnology, and a briefing on the U.S.-China S&T Forum. See, notice in the Federal Register, December 23, 2005, Vol. 70, No. 246, at Page 76286. Location: Washington Room, Hotel Washington located at 515 15th St., NW.

10:00 AM. The Supreme Court will hear oral argument in Texaco v. Dagher and Shell v. Dagher. This case involves the application of antitrust law to lawful joint ventures. See, story titled "Supreme Court Grants Certiorari in Dagher" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005, and story titled "Verizon Seeks Reversal in Texaco v. Dagher" in TLJ Daily E-Mail Alert No. 1,232, October 12, 2005. See also, Supreme Court docket.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Microchip Technology v. Chamberlain Group, No. 05-1339. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Resonate, Inc. v. Alteon Websystems, No. 05-1336. This is a patent case involving internet traffic routers and switches. See also, Resonate, Inc. v. Alteon Websystems, Inc., 338 F.3d 1360 (Fed. Cir. 2003). Location: Courtroom 201, 717 Madison Place, NW.

12:00 NOON - 1:30 PM. The DC Bar Association's Intellectual Property Law Section will host a panel discussion titled "Post-Grokster: What the Supreme Court Decision Means to You and Your Clients". The speakers will include John Hornick (Finnegan Henderson). The price to attend ranges from $20-$40. For more information, call 202 626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

12:15 PM. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a brown bag lunch regarding the "Implications of the recent Media Bureau decisions rescinding grants of assignment/transfer of control applications after the parties have closed". For more information, contact Howard Liberman at hliberman at dbr dot com. Location: __.

2:00 - 4:00 PM. The Department of State's International Telecommunication Advisory Committee (ITAC) will hold the first in a series of weekly meetings to prepare for the International Telecommunications Union's (ITU) 2006 ITU Plenipotentiary Conference, to be held November 6-24, 2006, in Antalya, Turkey. See, notice in the Federal Register, December 21, 2005, Vol. 70, No. 244, at Page 75854. This notice incorrectly states that these meetings will be held on Tuesdays; they are on Wednesdays. For more information, contact Julian Minard at 202 647-2593 or minardje at state dot gov. Location: AT&T, 1120 20th St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the petition for declaratory ruling (DR) filed by Grande Communications that seeks a DR regarding the treatment of traffic terminated through Grande to end users of interconnected local exchange carriers (LECs), in circumstances where customers of Grande have certified that the traffic originated in Internet protocol (IP) format. See, notice in the Federal Register, November 2, 2005, Vol. 70, No. 211, at Pages 66411 - 66412. See also, story titled "FCC Sets Comment Deadlines for DR Petition on IP Originated VOIP Traffic and Intercarrier Compensation" in TLJ Daily E-Mail Alert No. 1,246, November 3, 2005. This proceeding is WC Docket No. 05-283.

Deadline to submit to the Department of Commerce's Technology Administration nominations of individuals to serve on the National Medal of Technology Nomination Evaluation Committee. See, notice in the Federal Register, December 12, 2005, Vol. 70, No. 237, at Page 73453.

The Federal Communications Commission (FCC) will begin its FM Broadcast Construction Permits Auction (Auction No. 62).  See, Public Notice [PDF] numbered DA 05-3204, and dated December 21, 2005.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Jan Voda v. Cordis Corporation, App. Ct. No. 05-1238. This is a patent dispute arising in the U.S. District Court (WDOkla), D.C. No. 03-CV-1512. The issue is whether the District Court has supplemental jurisdiction over foreign patent infringement claims in a U.S. patent infringement action under 28 U.S.C. § 1367(a). See, amicus brief [PDF] of the AIPLA, and amicus brief [35 pages in PDF] of the IPO. Location: Courtroom 402, 717 Madison Place, NW.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Patent Law for Non-Patent Lawyers". The speakers will include Jacqueline Bonilla (Foley & Lardner) and Elizabeth Brenner (Rothwell Figg Ernst & Manbeck). 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 one of a two day conference hosted by the National Institute of Standards and Technology's (NIST) Intelligent Systems Division and the Defense Advanced Research Projects Agency (DARPA) titled "Evaluating Cognitive Systems Workshop". This conference is closed to the public. See, notice. Location: NIST, Building 101, Lecture Room A, 100 Bureau Drive, Gaithersburg, MD.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in North American Catholic Educational Programming Foundation v. FCC, No. 04-1384, a case regarding Instructional Fixed Television Service ((ITFS). See, FCC's brief [50 pages in PDF]. Judges Ginsburg, Sentelle and Williams will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Sandisk v. STMicroelectronics, No. 05-1300. Location: Courtroom 402, 717 Madison Place, NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Legislation and IP-Based Communications Practice Committees will host a brown bag lunch titled "Legislative Reform Affecting IP-Based Services". The speakers will be Howard Waltzman (Majority Chief Telecommunications Counsel for the House Commerce Committee), Amy Levine (Legislative Counsel to Rep. Rick Boucher (D-VA)), Melissa Newman (VP Regulatory Affairs at Qwest), and Chris Putala (EVP of EarthLink). RSVP to Wendy Parish at wendy at fcba dot org. Location: Verizon Wireless, 1300 Eye Street, NW, Suite 400 West.

2:00 - 4:00 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "Scientific Talent and U.S. Economic Leadership". The speakers will be Richard Freeman (Harvard), Steven Davis (AEI), David Weinstein (Columbia), and Kevin Hassett (AEI). Freeman will discuss his paper titled "Does Globalization of the Scientific/Engineering Workforce Threaten U.S. Economic Leadership?". See, notice. For more information, contact Chris Pope at cpope at aei dot org or Veronique Rodman (reporters) at vrodman at aei dot org. Location: 12th floor, 1150 17th St., NW.

Day two of a two day conference hosted by the National Institute of Standards and Technology's (NIST) Intelligent Systems Division and the Defense Advanced Research Projects Agency (DARPA) titled "Evaluating Cognitive Systems Workshop". This conference is closed to the public. See, notice. Location: NIST, Building 101, Lecture Room A, 100 Bureau Drive, Gaithersburg, MD.

Deadline to submit comments to the Antitrust Modernization Commission (AMC) on international antitrust issues. The AMC seeks comments in response to the following: "The adoption of competition or antitrust laws by over 100 jurisdictions around the world, as well as the globalization of commerce and markets, has given rise to the potential for conflict between the United States and foreign jurisdictions with respect to enforcement actions taken and remedies sought. Are there multilateral procedures that should be implemented, or other actions taken, to enhance international antitrust comity? In commenting, please address the significance of the issue, what solutions might reduce that problem, and how such solutions could be implemented by the United States." See, notice in the Federal Register, November 16, 2005, Vol. 70, No. 220, at Pages 69510 - 69511.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to a petition for declaratory ruling [34 pages in PDF] filed by the Fax Ban Coalition that asks the FCC to find that the FCC has exclusive authority to regulate interstate commercial fax messages, and that § 17538.43 of the California Business and Professions Code, and all other State laws that purport to regulate interstate facsimile transmissions, are preempted by the TCPA, which is codified at 47 U.S.C. § 541.

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