5/30. Securities and Exchange Commission (SEC) Chairman Chris Cox gave a speech titled "The Interactive Data Revolution: Improved Disclosure for Investors, Less Expensive Reporting for Companies" at the American Enterprise Institute (AEI) in Washington DC.

He stated that there is a "movement to electronic exchange of financial information that will be standardized across many technologies -- including personal financial software, corporate financial preparation software, and the Internet."

"We are still, today, relying on the open-cry pit system of the 1700s and the printed page of the Guttenberg press of the 15th century", said Cox. "And we want to allow companies to communicate with investors on a constant basis. At a time when we have 24-hour news -- and even 24-hour pizza delivery -- why are we still living by the 10-K and the 10-Q?"

He continued that "we are still talking about 10-Ks once a year and 10-Qs three times a year, when we live in a world of constant change, 24/7? Just as interactive data and the Internet can make the information within financial statements easier to extract and analyze, Internet technologies and Web services such as RSS and ATOM can get investors current financial information the moment it's filed. That is, of course, when they need it the most."

He elaborated that "As part of the XBRL voluntary program ... we are piloting the use of an RSS feed for all filings with XBRL documents. This will allow users to be notified of new filings and to have instant access to the data they contain."

The SEC is currently developing eXtensible Business Reporting Language (XBRL). However, the submission of filings by public companies in digital format with XBRL tags is voluntary. The success of the program will also depend on participation by publicly traded companies, and by software companies that develop the tools to analyze this data.

Cox stated in his speech that "PepsiCo and General Electric this month asked to join the SEC's XBRL Test Group". Also, the SEC issued a release on May 23, 2006, that states that only twenty companies are participating. It lists the twenty.

Most leading software companies are not participating. However, Microsoft and Infosys Technologies are two of the twenty. XM Satellite Radio Holdings is also participating.

Cox spoke at a half day conference. For hyperlinks to copies of the presentations of the other speakers, see the AEI's web page for this event.

5/31. The Federal Communications Commission (FCC) announced and released its Order on Reconsideration [18 pages in PDF] that denies CBS's petition for reconsideration of the FCC's forfeiture order that fines CBS $550,000 for displaying a breast during a broadcast of a football game. See also, FCC release [PDF].

The FCC adopted, but did not announce or release, this item on May 4, 2006. It is FCC 06-68.

On March 15, 2006, the FCC released a forfeiture order [30 pages in PDF] that fines CBS $550,000 in connection with the exposure of the breast of a singer named Janet Jackson in a broadcast music performance within a program titled "Super Bowl XXXVIII". This order is FCC 06-19. See also, story titled "FCC Releases Indecency Orders" in TLJ Daily E-Mail Alert No. 1,332, March 20, 2006.

On April 14, 2006, CBS filed with the FCC a Petition for Reconsideration of Forfeiture Order. See also, story titled "CBS Challenges FCC's Indecency Actions" in TLJ Daily E-Mail Alert No. 1,351, April 17, 2006.

The just released order concludes that "we reaffirm our conclusion in the Forfeiture Order that ``the Super Bowl XXXVIII halftime show contained material that was graphic, explicit, pandering, titillating, and shocking and, in context and on balance, was patently offensive under contemporary community standards for the broadcast medium and thus indecent.´´"

Commissioner Jonathan Adelstein concurred in part and dissented in part. He wrote in a separate statement [PDF]. He wrote that "I continue to believe the Commission has erred in fining only CBS owned and operated stations, not all stations that broadcasted the indecent material."

5/24. The U.S. Court of Appeals (9thCir) issued its opinion [21 pages in PDF] in Debra Laws v. Sony Music Entertainment, a case regarding preemption by the federal Copyright Act of state law claims. Debra Laws, a professional recording artist, sued Sony for invasion of privacy for the misappropriation of her name and voice, and misappropriation of her name and voice for a commercial purpose under California Civil Code § 3344. The Court of Appeals affirmed the judgment of the District Court that Laws's claims are preempted by the Copyright Act.

The Copyright Act preemption section, which is codified at 17 U.S.C. § 301, provides, in Subsection (a), that "On and after January 1, 1978, all legal and equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State."

Subsection (b) then provides exceptions.

Section 301(a), on its face, gives rise to considerable uncertainty. For example, this section uses undefined and unexplained terms. What is an "equivalent"? What does it mean to "come within the subject matter of copyright"? Both are issues in the present case. The statute leaves other questions unanswered, and the exceptions create further confusion. Moreover, the courts have added to the body of law on this subject, without substantially increasing the clarity. The opinion in the present case provides an outcome for the parties, but adds little to others' understanding of copyright preemption. In particular, it may be difficult to reconcile the holding in this case on the subject matter component with the holdings in other court opinions.

Perhaps the most significant part of this opinion is the Court's lengthy analysis of the subject matter component of copyright preemption.

Debra Laws entered into an agreement with Elektra/Asylum Records which gave Elektra "sole and exclusive right to copyright such master recordings". However, it also provided that "we shall not, without your prior written consent, utilize or authorize others to utilize the Masters in any so-called ‘audio-visual’ or ‘sight and sound’ devices intended primarily for home use", and "we or our licensees shall not, without your prior written consent, sell records embodying the Masters hereunder for use as premiums or in connection with the sale, advertising or promotion of any other product or service."

Laws recorded a song titled "Very Special" back in 1981, pursuant to this agreement with Elektra. Elektra copyrighted it. In 2002, Electra licensed Sony Music Entertainment to use a sample from Laws' "Very Special" in a song titled "All I Have", which was performed by two recording artists who use the names Jennifer Lopez and L.L. Cool J. And, Sony sold CDs titled "This is Me ... Then" [Amazon], that included the song "All I Have". It included about ten seconds from Laws' "Very Special". See also, music CD [Amazon] titled "Very Special". [Amazon has short sound clips from both songs.]

Laws then filed a complaint in state court in California against Sony alleging invasion of privacy for the misappropriation of her name and voice, and misappropriation of her name and voice for a commercial purpose under California Civil Code § 3344. Sony removed the case to U.S. District Court (CDCal), based upon diversity of citizenship. (The Court of Appeals opinion does not involve copyright infringement or breach of contract claims.) The District Court dismissed the case on the grounds that these state law claims are barred by the federal Copyright Act.

One of the 9th Circuit's leading cases on copyright preemption is the September 13, 2001, opinion [27 pages in PDF], in Downing v. Abercrombie & Fitch, which is reported at 265 F.3d 994. See also, story titled "Ninth Circuit Rules in Downing v. Abercrombie" in TLJ Daily E-Mail Alert No. 268, September 14, 2001.

The Court of Appeals quoted from Downing: "We have adopted a two-part test to determine whether a state law claim is preempted by the Act. We must first determine whether the ``subject matter´´ of the state law claim falls within the subject matter of copyright as described in 17 U.S.C. §§ 102 and 103. Second, assuming that it does, we must determine whether the rights asserted under state law are equivalent to the rights contained in 17 U.S.C. § 106, which articulates the exclusive rights of copyright holders." (Footnotes omitted.)

The Court of Appeals first held that the subject matter of Laws's state law claims is within the subject matter of the Copyright Act. That is, Sony copied ten seconds from the sound recording "Very Special", which is copying from a copyrighted medium. The Court of Appeals wrote that the result might have been different if Sony only had a license to the song, and not the sound recording featuring Laws's voice, citing the Bette Midler case. In that case the defendant had license to use the song, and then used someone who could imitate Midler's voice to sing the Midler song. See, Midler v. Ford, 849 F.2d 460 (1989).

On the other hand, in the Downing case, the defendant was sued under the state law theory of violation of right to publicity for publishing photographs, when it had purchased the copyrights to those photographs from the photographer. Yet, the Court of Appeals held that that claim was not within the subject matter of copyright, and that the Copyright Act did not preempt the state law claim.

The Court of Appeals explained that in the Downing case, the defendant placed the photographs within a larger work, and identified the plaintiff. But, Sony did both of these in the present case. In Downing the Court reasoned that this amounted to using a person's name, and suggesting endorsement, while in the present case the Court reasoned that this amounted to "attribution".

The plaintiffs in Downing may not have wanted their names and likenesses associated with Abercrombie & Fitch products. But, many recording artists would not want their names and voices associated with Jennifer Lopez and L.L. Cool J.

This case is Debra Laws v. Sony Music Entertainment, dba Epic Records, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 03-57102, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-03-02038-LGB, Judge Lourdes Baird presiding. Jay Bybee wrote the opinion of the Court of Appeals, in which Judges Jerome Farris and Ferdinand Fernandez joined.

5/31. The Antitrust Modernization Commission (AMC) published a notice in the Federal Register requesting public comments regarding antitrust criminal remedies. See, Federal Register, Federal Register, May 31, 2006, Vol. 71, No. 104, at Pages 30863-30864.

5/31. The Government Accountability Office (GAO) released a report [155 pages in PDF] regarding adoption of information technology at the Department of Homeland Security's (DHS) Customs and Border Protection. It is titled "Information Technology: Customs Has Made Progress on Automated Commercial Environment System, but It Faces Long-Standing Management Challenges and New Risks".

5/31. The Securities and Exchange Commission (SEC) institute, and simultaneously settled, an administrative cease and desist proceeding against Tribune Company for reporting inflated paid circulation data for two print newspapers. The SEC order [7 pages in PDF] states that "From at least January 2002 to March 2004, two Tribune newspapers, Newsday and Hoy, falsely inflated their paid circulation figures. As a consequence, Tribune reported inflated average paid circulation figures and erroneous circulation trends for these newspapers to the Commission and the investing public in its Forms 10-K for the years ended December 29, 2002, and December 28, 2003. The company also reported erroneous circulation trends based on the inflated paid circulation figures for these newspapers in its Forms 10-Q for the first quarter ended March 31, 2002, through the first quarter ended March 28, 2004." Linda Thomsen, Director of the SEC's Division of Enforcement, stated in a release that "Circulation figures are a key measure used by publishers and advertisers to establish advertising rates. Because publishers typically generate the majority of their revenues from advertising sales, they must ensure that the circulation figures they report to the public are accurate so as not to mislead investors about the profitability of their most significant business operation."

5/22. The U.S. Court of Appeals (9thCir) issued its revised opinion [10 pages in PDF] in Sprint v. La Canada Flintridge, a cell tower construction case. The Court of Appeals issued its original opinion [14 pages in PDF] on January 17, 2006. That opinion reversed the District Court's summary judgment for the city. See also, story titled "9th Circuit Rules in Cell Tower Case" in TLJ Daily E-Mail Alert No. 1,294, January 23, 2006. The revised opinion also reverses the District Court. In addition, the three judge panel denied a motion for rehearing, and the Court of Appeals denied a motion for rehearing en banc. This case involves an unusual set of facts for a 47 U.S.C. § 332(c)(7) case. The city's denial of the construction permit was based upon a city ordinance that is preempted by state law. This case is Sprint PCS Assets, et al. v. City of La Canada Flintridge, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 05-55014, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-03-00039-DOC, Judge David Carter presiding. Judge Diarmuid O'Scannlain wrote both the original and revised opinions of the Court of Appeals, in which Judges Cynthia Hall and Richard Paez joined.

The House will not meet on Monday, May 29, through Monday, June 5. The House will next meet on Tuesday, June 6, at 2:00 PM. See, Republican Whip Notice.

The Senate will not meet on Monday, May 29, through Friday, June 2. See, 2006 Senate calendar.

2:00 - 4:00 PM. The Brookings Institute will host an event titled "The State of Homeland Security". Secretary of Homeland Security Michael Chertoff will speak at 3:00 PM. See, notice. Location: Brookings, 1775 Pennsylvania Ave., NW.

Deadline to submit comments to the Federal Trade Commission (FTC) in response to its Notice of Proposed Rulemaking (NPRM) to amend the Telemarketing Sales Rule (TSR) to revise the fees charged to entities accessing the National Do Not Call Registry. See, notice in the Federal Register, May 1, 2006, Vol. 71, No. 83, at Pages 25512-25516.

12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a panel discussion titled "The Role of Music Licensing in the Digital Age". The speakers will be Michael Petricone (Consumer Electronics Association), Mitch Glazier (Recording Industry Association of America), Christian Castle, and Lee Knife (Digital Media Association). Patrick Ross (PFF) will moderate. See, notice. Lunch will be served. Location: Room B-354, Rayburn Building.

The House will return from its Memorial Day recess. See, Majority Whip's calendar.

The Senate will return from its Memorial Day recess. See, 2006 Senate calendar.

9:00 - 11:00 AM. The Office of the Deputy Director of National Intelligence for Collection will hold a meeting. See, notice in the Federal Register, May 12, 2006, Vol. 71, No. 92, at Page 27745. Location: Heritage Conference Center, TASC Northrop Grumman, 4803 Stonecroft Boulevard, Chantilly, VA.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Wireless Agents v. Sony Ericsson. This case is App. Ct. No. 2006-1054. Location: Courtroom 203, 717 Madison Place, NW.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Integra LifeSciences v. Merck. This case is App. Ct. No. 2002-1052. Location: Courtroom 203, 717 Madison Place, NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the petition of the Georgia Public Service Commission (GPSC) for a declaratory ruling that the GPSC is not preempted by federal law from regulating rates under 47 U.S.C. § 271 for local switching, high capacity loops and transport, and line sharing. See, FCC notice [PDF]. This is WC Docket No. 06-90.

Deadline to submit initial comments to theFederal Communications Commission (FCC) regarding the transfer of licenses associated with the AT&T, BellSouth, and Cingular transaction. This is nominally a license transfer proceeding, but is also in the nature of an antitrust merger review. This proceeding will be governed by "permit but disclose" ex parte communications procedures under Section 1.1206 of the FCC's rules. See, FCC notice [10 pages in PDF] and FCC web page for its AT&T/SBC/Cingular merger review. This proceeding is WC Docket No. 06-74.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding Draft Special Publication 800-38D [23 pages in PDF], titled "Recommendation for Block Cipher Modes of Operation: Galois/Counter Mode (GCM) for Confidentiality and Authentication".

The House will return from its Memorial Day District Work Period. It will meet at 2:00 PM. See, Republican Whip Notice.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Motionless Keyboard v. Microsoft. This case is App. Ct. No. 2005-1574. Location: Courtroom 201, 717 Madison Place, NW.

CANCELLED. 12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a lunch. The featured speaker will be Brian Roberts, Ch/CEO of Comcast Corporation. The other speakers will be Aryeh Bourkoff (UBS Investment Research), Blair Levin (Legg Mason), and Craig Moffett (Sanford Bernstein & Co.) See, notice. Location: South American Room, Capitol Hilton, 1001 16th Street, NW.

1:00 - 3:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee will meet to prepare for ITU Radiocommunication Sector's Special Committee on Regulatory/Procedural Matters that will take place on December 4-8, 2006, in Geneva, Switzerland. See, notice in the Federal Register, May 4, 2006, Vol. 71, No. 86, at Pages 26397-26398. Location: Boeing Company, 1200 Wilson Blvd., Arlington, VA.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "How to Conduct Business in the Current Chinese Legal Environment: Myths and Facts". The seminar will address, among other topics, "technology transfer issues, including the Chinese government policy on intellectual property, licensing of intellectual property, structuring of technology transfers and some of the legal and practical measures to help protect licensed intellectual property". The speakers will include Paul Manca (Hogan & Hartson), Grace Fremlin (Foley & Lardner), and Steve Robinson (Hogan & Hartson). 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) regarding creation of broadband channels in the 700 MHz public safety band. The FCC adopted this NPRM on March 17, 2006. See, story titled "FCC Adopts NPRM Re Public Safety Communications in the 700 MHz Band" in TLJ Daily E-Mail Alert No. 1,332, March 20, 2006. The FCC released the text [30 pages in PDF] of this NPRM on March 21, 2006. This NPRM is FCC 06-34 in WT Docket No. 96-86. See, notice in the Federal Register, April 7, 2006, Vol. 71, No. 67, at Pages 17786-17790.

8:30 AM - 3:00 PM. The National Institute of Standards and Technology (NIST) Malcolm Baldrige National Quality Award Board of Overseers will meet. See, notice in the Federal Register, May 3, 2006, Vol. 71, No. 85, at Page 26052. Location: NIST, Administration Building, Lecture Room A, Gaithersburg, MD.

9:30 AM - 5:30 PM. The Antitrust Modernization Commission will meet to deliberate regarding its report and/or recommendations to the Congress. See, notice in the Federal Register, 24, 2006, Vol. 71, No. 100, Page 29915. Location: Federal Trade Commission, Conference Center, 601 New Jersey Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Intel v. Commonwealth Scientific, App. Ct. No. 2006-1032, and Microsoft v. Commonwealth Scientific, App. Ct. No. 2006-1040. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Microsoft v. Amado. This case is App. Ct. No. 2005-1531. Location: Courtroom 203, 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 "Structuring Your License Agreements So You Get Paid And What To Do If You Think You Are Not Receiving The Royalties You Bargained For". The speakers will include Michael Dansky and Barry Sussman (both of the Huron 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.

2:00 PM. The House Commerce Committee's (HCC) Subcommittee on Commerce, Trade, and Consumer Protection will hold a hearing titled "Violent and Explicit Video Games: Informing Parents and Protecting Children". See, notice. The hearing will be webcast by the HCC. Location: Room 2322, Rayburn Building.

RESCHEDULED FROM MAY 25. 2:00 PM. The House Science Committee HSC) will meet to mark up several bills, including HR 5356, the "Early Career Research Act of 2006", HR 5357, the "Research for Competitiveness Act of 2006", and HR 5358, the "Science and Mathematics Education for Competitiveness Act of 2006". The hearing will be webcast by the HSC. Location: Room 2318, Rayburn Building.

TIME? The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a continuing legal education (CLE) seminar. Location?

8:30 AM - 5:00 PM. Day one of a two day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, May 31, 2006, Vol. 71, No. 104, at Pages 30876-30877. Location: Doubletree Hotel and Executive Meeting Center, 1750 Rockville Pike, Rockville, MD.

POSTPONED. 10:00 AM. The Senate Commerce Committee (SCC) will meet to mark up S 2686 [135 pages in PDF], the "Communications, Consumer's Choice, and Broadband Deployment Act of 2006". Press contact: Aaron Saunders (Stevens) at 202-224-3991 or Andy Davis (Inouye) at 202-224-4546.

TIME? Day one of a two day hearing held by the U.S.-China Economic and Security Review Commission titled "China's Enforcement of IPR; Movement of Pirated Goods into U.S. and their Dangers". Location: __.

MOVED TO JUNE 15. 9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. The event will be webcast by the FCC. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

5/31. President Bush today named Raul Yanes to be Assistant to the President and Staff Secretary. He is currently General Counsel in the Office of Management and Budget. Before that, he was Senior Counselor to Attorney General Alberto Gonzales. Before that, he was an Associate Counsel to the President, where he worked for Gonzales. And before that he worked for the law firm of Davis Polk & Wardwell. See, White House release.

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