1/11. The U.S. Court of Appeals (9thCir) issued its opinion [PDF] in LGS Architects v. Concordia Homes of Nevada, a copyright infringement case involving architectural plans. The Appeals Court reversed the District Court's denial of the copyright holder's motion for a preliminary injunction, in a straightforward application of the law of copyright infringement and injunctive remedies.

LGS is an architectural firm. Concordia builds homes. LGS and Concordia entered into a licensing agreement which permitted Concordia to use certain of LGS's copyrighted architectural plans for a specified building project. Concordia also used LGS's plans on a second project not covered by this agreement.

LGS filed a complaint in U.S. District Court (DNev) against Concordia alleging copyright infringement and breach of contract. It also filed a motion for a preliminary injunction, which the District Court denied. The Court issued no written findings of fact, or conclusions of law. It merely stated that "I don’t see your likelihood of success on the merit".

LGS brought this interlocutory appeal. The Court of Appeals reversed and remanded.

On appeal, Concordia argued that the appeal is moot, because the second housing project was completed, and because it stated that it would not use LGS's plans for any more projects. The Court of Appeals rejected this argument. Defendants' promises to do no more wrong are insufficient to escape injunctive remedies.

The Court of Appeals the summarized the law regarding preliminary injunctions. It quoted from A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, (9th Cir. 2001): "Preliminary injunctive relief is available to a party who demonstrates either: (1) a combination of probable success on the merits and the possibility of irreparable harm; or (2) that serious questions are raised and the balance of hardships tips in its favor. These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases." It added, quoting from Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115 (9th Cir. 1999), that "Under federal copyright law, ... a plaintiff that demonstrates a likelihood of success on the merits of a copyright infringement claim is entitled to a presumption of irreparable harm."

Hence, the Appeals Court concluded that LGS need only show a reasonable likelihood of success on its copyright infringement claim to obtain a preliminary injunction.

It then stated that "A plaintiff must meet two requirements to establish a prima facie case of copyright infringement: (1) ownership of the allegedly infringed material and (2) violation by the alleged infringer of at least one of the exclusive rights granted to copyright holders", and that "When a licensee exceeds the scope of the license granted by the copyright holder, the licensee is liable for infringement."

In this case, Concordia did not dispute that LGS owns a valid copyright in the architectural plans at issue. Thus, the Court of Appeals concluded that "LGS's likelihood of success on the merits depends solely upon whether Concordia exceeded the scope of its license." And, the Court concluded that "Concordia exceeded the scope of its license when it used the four architectural plans in the construction" of the second project.

The Court also concluded that "Concordia's defense that LGS breached the covenant of good faith and fair dealing by refusing to authorize reuse is unavailing. ... because ... Concordia never tendered any base reuse fee."

So, the Court held that "Because Concordia exceeded the scope of the licensing agreement, LGS is likely to succeed on the merits of its copyright infringement claim. LGS is therefore entitled to a preliminary injunction prohibiting Concordia from reproducing, distributing, publicly displaying, or creating derivative works based upon LGS’s architectural plans."

This case is LGS Architects, Inc., et al. v. Concordia Homes of Nevada, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 04-16677, an appeal from the U.S. District Court for the District of Nevada, D.C. No. CV-04-00574-RCJ, Judge Robert Jones presiding.

1/11. The Securities and Exchange Commission (SEC) announced in a release that it will "offer expedited reviews of registration statements and annual reports to companies that volunteer for a test group as part of the Commission’s interactive data initiative".

The SEC and its new Chairman, Chris Cox, have recently been promoting the use of interactive data and XBRL. See, speech of November 7, 2005, in Tokyo, Japan, and speech of November 11, 2005, in Boca Raton, Florida. See also, story titled "SEC Chairman Cox Discusses Use of Interactive Data in Corporate Reporting" in TLJ Daily E-Mail Alert No. 1,250, Wednesday, November 9, 2005.

The SEC release adds that "Companies that participate in the voluntary program's new test group will furnish financial data contained in their periodic and investment company reports in XBRL format for at least one year and provide feedback on their experiences, including the costs and benefits associated with reporting in the interactive data format. Because of the efficiencies staff anticipates in reviewing their filings prepared in XBRL and to encourage participation in the test group, the Commission staff will offer volunteers expedited reviews of registration statements under the Securities Act of 1933 that the staff has selected for review."

It also states that "For well-known seasoned issuers, the Division of Corporation Finance staff will offer to inform volunteers whether or not the staff will select their annual reports on Form 10-K for review. The staff will notify each well-known seasoned issuer volunteer whether it will select the volunteer's Form 10-K for review within 30 days after filing and will undertake to provide any comments on that filing within 45-60 days of filing."

The SEC adopted rule changes on February 3, 2005 that established its XBRL Voluntary Program, which provides for the submission to the SEC of XBRL documents as exhibits to certain periodic reports and investment company act filings. See also, SEC release summarizing its rule changes.

XBRL is an acronym for "eXtensible Business Reporting Language". The SEC states in a summary of XBRL that "Interactive data relies on standard definitions to ``tag´´ various kinds of information, turning SEC financial reports that have previously been text-only into documents that can be retrieved through computer searches, and analyzed in a variety of spreadsheet programs and analytical software. The data can also be more readily used to compare companies' financial performance, and better identify ``outliers´´ that could represent attractive investment opportunities -- or increased risk of misstatements or fraud."

See also, story titled "SEC Proposes to Allow Internet Delivery of Proxy Materials" in TLJ Daily E-Mail Alert No. 1,263, December 1, 2005.

1/11. President Bush gave a speech, and answered questions, about terrorism, the PATRIOT Act, and the National Security Agency's (NSA) domestic electronic surveillance program, in Louisville, Kentucky.

Bush was asked a question about "that National Security Agency thing".

Bush said that the NSA "should protect America by taking the phone numbers of known al Qaeda and/or affiliates and find out why they're making phone calls into the United States, and vice versa. And I did so because the enemy still wants to hurt us. And it seems like to me that if somebody is talking to al Qaeda, we want to know why."

"I understand people's concerns about government eavesdropping. And I share those concerns, as well", said Bush. "So obviously I had to make the difficult decision between balancing civil liberties and, on a limited basis -- and I mean limited basis -- try to find out the intention of the enemy. In order to safeguard the civil liberties of the people, we have this program full scrutinized on a regular basis. It's been authorized, reauthorized many times. We got lawyers looking at it from different branches of government."

He added that "We have briefed the leadership of the United States Congress, both Republican and Democrat, as well as the leaders of the intelligence committees, both Republicans and Democrats, about the nature of this program. We gave them a chance to express their disapproval or approval of a limited program taking known al Qaeda numbers -- numbers from known al Qaeda people -- and just trying to find out why the phone calls are being made."

Bush then discussed the legal authority for this surveillance program. "I have the right as the Commander-in-Chief in a time of war to take action necessary to protect the American people. And secondly, the Congress, in the authorization, basically said the President ought to -- in authorization of the use of troops -- ought to protect us. Well, one way to protect us is to understand the nature of the enemy. Part of being able to deal with this kind of enemy in a different kind of war is to understand why they're making decisions they're making inside our country."

On January 9, 2006, a group of law professors and former government officials wrote a letter to Congressional leaders and the Chief Judge of the FISA court in which they argued that the President lacks legal authority for the NSA domestic surveillance program. See, story titled "Law Professors Assert That NSA Electronic Surveillance Program Violates Law" in TLJ Daily E-Mail Alert No. 1,287, January 11, 2006.

See also, story titled "Bush, Gonzales & Hayden Discuss Presidential Intercepts and PATRIOT Act" in TLJ Daily E-Mail Alert No. 1,276, December 20, 2005.

Bush also discussed extending the sixteen sections of the USA PATRIOT Act that are scheduled to sunset on February 3, 2006. "The Patriot Act is up for renewal. That's another piece of legislation which is important to protect. Do you realize that the Patriot Act has given our FBI and intelligence services the same tools of sharing information that we have given to people that are fighting drug lords. In other words, much of the authorities that we ask for in the Patriot Act to be able to fight and win the war on terror has already been in practice when it comes to dealing with drug lords. And I can't tell you how important it is to reauthorize the legislation."

1/11. Alan Beller, Director of the Securities and Exchange Commission's (SEC) Division of Corporation Finance, will leave the SEC in February. See, SEC release.

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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.

9:30 AM. Day four of the Senate Judiciary Committee's (SJC) hearings on the nomination of Judge Sam Alito to be a Justice of the Supreme Court. The SJC may begin to hear testimony from panels of outside witnesses. See, witness list. Location: Room 216, Hart Building.

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.

5:00 PM. Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding the NIST Draft Special Publication 800-76, titled "Biometric Data Specification for Personal Identity Verification".

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.

Martin Luther King's birthday.

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

Deadline to submit comments to the Executive Office of the President's (EOP) Office of Science and Technology Policy (OSTP) regarding its "Proposed Principles for Federal Support of Graduate and Postdoctoral Education and Training in Science and Engineering". See, notice in the Federal Register, November 16, 2005, Vol. 70, No. 220, at Pages 69563 - 69565.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch titled "The Top Ten Technological Trends Everybody Should Know About". The speakers will be John Wong and the staff of the Federal Communications Commission's (FCC) Media Bureau's Engineering Division. RSVP to Ben Golant at ben dot golant at fcc dot gov. Location: Willkie Farr & Gallagher, 1875 K St., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the notice of proposed rulemaking (NPRM) portion of its Report and Order (R&O) and NPRM of August 5, 2005 regarding regulation of information services. The R&O classified wireline broadband internet access services as information services. The NPRM proposes to impose new regulatory burdens on information services. This item is FCC 05-150 in WC Docket No. 05-271, CC Docket No. 02-33, CC Docket No. 01-337, CC Docket Nos. 95-20 and 98-10, and WC Docket No. 04-242. See, story titled "FCC Classifies DSL as Information Service" in TLJ Daily E-Mail Alert No. 1,190, August 8, 2005. The FCC released the text [133 pages in PDF] of this item on September 23, 2005. See, notice in the Federal Register, October 17, 2005, Vol. 70, No. 199, at Pages 60259 - 60271.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking regarding its rules affecting Wireless Radio Services. This item is FCC 05-144 in WT Docket Nos. 03-264. The FCC adopted this item on July 22, 2005. It released the text [67 pages in PDF] on August 9, 2005. See, notice in the Federal Register, October 19, 2005, Vol. 70, No. 201, at Pages 60770 - 60781.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding a petition for rulemaking of 13 hearing impairment related entities. Their petition requests that the FCC initiate a rulemaking proceeding to mandate captioned telephone relay service and to approve internet protocol captioned telephone relay service. The FCC's Public Notice [PDF] states that "Captioned telephone service is a form of telecommunications relay service (TRS) that permits persons to simultaneously both listen to what the other party is saying and read captions of what the other party is saying on the same device. Presently the service is eligible for compensation from the Interstate TRS Fund (Fund), but is not mandatory. The petition asks the Commission to initiate a rulemaking for the purpose of making captioned telephone service a mandatory form of TRS and approving Internet Protocol (IP) captioned telephone service as eligible for compensation from the Fund." (Footnotes omitted). This notice is DA 05-2961 in CG Docket No. 03-123. See also, notice in the November 30, 2005, Vol. 70, No. 229, at Pages 71849 - 71850.

The Senate will convene for the 2nd Session of the 109th Congress. See, 2006 Senate calendar.

8:30 AM - 5:30 PM. The Cyber Security Industry Alliance (CSIA) will host a conference titled "The Legal Implications of Data Integrity". See, agenda. The price to attend ranges from $95 to $195. Location: Jack Morton Auditorium, Media and Public Affairs Building, George Washington University, 805 21st St., NW.

12:00 NOON - 1:15 PM. The DC Bar Association's Intellectual Property Law Section and Patent Section will host a panel discussion titled "Current Topics in Patent Law: Patent Pools and Standards Bodies". The speakers will include James Kulbaski (Oblon Spivak). The price to attend ranges from $10-$30. For more information, call 202 626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

2:00 - 4:00 PM. The Department of State's International Telecommunication Advisory Committee (ITAC) will hold the second 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.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "50 Tips For Ethical and Effective Web Sites for Lawyers and Law Firms". The speakers will include Walter Effross (American University law school). 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 initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [24 pages in PDF] regarding amendments to its unsolicited facsimile advertising rules and the established business relationship (EBR) exception to the rules. This NPRM was adopted by the FCC on December 9, 2005, and released on December 9, 2005. It is FCC 05-206 in CG Docket No. 02-278. See, notice in the Federal Register, December 19, 2005, Vol. 70, No. 242, at Pages 75102 - 75110.

8:00 - 9:30 AM. The U.S. Chamber of Commerce will host an event titled "Policy Insiders with FBI Director Robert Mueller". See, notice. The price to attend ranges from $55 to $75. For more information, contact Matt Haller at mhaller at uschamber dot com or 202 463-3176. Location: U.S. Chamber 1615 H St., NW.

9:00 AM - 4:30 PM. The Information Technology Association of America (ITAA) will host an event titled "Base Realignment and Closure: Moving Forward with Information Technology". See, notice. Location: Ritz Carlton, Pentagon City, VA.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Decency". Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. The hearing will be webcast by the SCC. Location: __.

12:00 NOON - 1:30 PM. The DC Bar Association's Intellectual Property Law Section and Trademark Committee will host a panel discussion titled "Trademark Policing And Enforcement". The speakers will include Melise Blakeslee (McDermott Will & Emery) and Alan Cooper (Howery & Simon). 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.

1:00 - 4:00 PM. The Antitrust Modernization Commission (AMC) will hold a hearing titled "Economists' Roundtable on U.S. Merger Enforcement". See, notice in the Federal Register, December 29, 2005, Vol. 70, No. 249, at Page 77121. Location: Federal Trade Commission, Conference Center, 601 New Jersey Ave., NW.

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing titled "Internet Pornography". Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. The hearing will be webcast by the SCC. Location: __.

7:30 - 10:30 AM. The National Venture Capital Association (NVCA) will host an event titled "Personal Liability of Private Company Directors & Officers: How to Protect Yourself in Today's Environment". The NVCA notice states that "Attendance at this event is by invitation only". Location: Ritz Carlton, 1700 Tysons Blvd., McLean, VA.

Deadline to submit oppositions to the U.S. Telecom Association's petition [PDF] seeking reconsideration and clarification of the Federal Communications Commission's (FCC) 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." See, notice in the Federal Register.January 4, 2006, Vol. 71, No. 2, at Pages 345 - 346.