11/6. The U.S. Court of Appeals (3rdCir) issued its opinion [12 pages in PDF] in DirecTV v. Leto. This is a direct broadcast satellite signal piracy case. However, the facts of the case are not important to this appeal. At issue are the bizarre procedural decisions of the U.S. District Court (WDPenn), Judge Gary Lancaster presiding.

DirecTV filed a timely complaint in the District Court against Garry Bloch, and seven other individual defendants, including Bennie Leto. The defendants moved to severe the cases. Judge Lancaster did so. He wrote that "As to each of the other defendants, the case shall proceed as a separate action under a separate civil action number upon payment by plaintiff of the requisite filing fee as to each defendant." Lancaster later ruled that his severance order constituted a dismissal with prejudice, and that the new actions were filed beyond the statute of limitations.

Of course, the Court of Appeals reversed. It wrote that "when a court ``severs´´ a claim against a defendant under Rule 21, the suit simply continues against the severed defendant in another guise. ... The statute of limitations is held in abeyance, and the severed suit can proceed so long as it initially was filed within the limitations period." The Court of Appeals added that while the order was a severance, it would have been improper, and an abuse of discretion, to dismiss the case.

Lancaster is better known for the reversal of his dismissal in U.S. v. Extreme Associates, a criminal obscenity case involving internet downloads, and mail distribution of DVDs and videos. The Court of Appeals bluntly wrote in its December 8, 2005, opinion [30 pages in PDF] that Lancaster "improperly set aside applicable Supreme Court precedent". See also, Department of Justice (DOJ) release.

The present case is DirecTV, Inc. v. Bennie Leto, U.S. Court of Appeals for the 3rd Circuit, App. Ct. No. 05-3908, an appeal from the U.S. District Court of the Western District of Pennsylvania, D.C. No. 04-cv-00020, Judge Gary Lancaster presiding. Judge Ambro wrote the opinion of the Court of Appeals, in which Judges McKee and Nygaard joined.

11/6. The Office of the U.S. Trade Representative (OUSTR) released a statement in which it announced that it has completed it out of cycle review of Indonesia, and decided "to improve Indonesia's standing on the Special 301 Watch List". This statement adds that "sustained efforts and continued progress on key IPR issues will be essential to avoid a future return to the Priority Watch List."

The USTR's 2006 Special 301 Report placed Indonesia on the Priority Watch List [PDF]. That report stated that "Indonesia will remain on the Priority Watch List in 2006, but the United States will conduct an Out-of-Cycle Review to monitor Indonesia’s progress on IPR issues. The United States commends Indonesia for its progress in strengthening its IPR enforcement regime in 2005, particularly with respect to fighting retail piracy and taking steps to implement its optical disc regulations to combat pirate production in optical disc factories. The United States also commends Indonesia for the re-establishment earlier this year of a Ministerial-level National IP Task Force as a focal point for future work to coordinate protection and enforcement of IPR. The United States urges Indonesia to build on this momentum by enforcing its IPR laws effectively and in a deterrent manner against piracy and counterfeiting, including through raids on pirate optical disc factories; by conducting seizures of pirated goods and the machinery used to make them; by arresting and prosecuting IPR infringers; and by ensuring that courts impose jail sentences for IPR crimes and that offenders actually serve such sentences. The United States will assess Indonesia’s progress on these issues during the Out-of-Cycle Review. In addition, the United States will continue to use the bilateral Trade and Investment Framework Agreement process to work with Indonesia to improve its IPR enforcement regime."

The OUSTR's November 6 release states that "throughout 2006, Indonesia bolstered implementation of its regulations designed to stop illegal production of pirated optical discs such as CDs and DVDs by controlling the licensing of factories and conducting raids against pirate optical disc production facilities. Indonesia’s authorities also conducted numerous raids on retail outlets selling pirated goods. During this period, the Indonesian Government activated its minister-level National Intellectual Property Task Force and its working groups to coordinate IPR enforcement strategy among agencies as well as to conduct public awareness campaigns. Indonesia also passed a new Customs Law that clarifies the authority for Customs officers to seize goods that infringe on IPR."

11/6. The Cato Institute released a short paper titled "U.S. Response to Gambling Dispute Reveals Weak Hand". The author is the Cato's Sallie James.

Antigua and Barbuda have complained to the World Trade Organization (WTO) that various U.S. laws, including the Wire Act, and laws affecting international money transfers and payments, violate the U.S.'s treaty obligations.

James argues in this paper that "the results so far in a landmark World Trade Organization dispute over Internet gambling support Antigua and Barbuda's claim that it is being unfairly treated by U.S. policies".

Last month President Bush signed into law a port security bill. It includes the Unlawful Internet Gambling Enforcement Act. James states that this legislation provides exemptions for "transactions made in accordance with the Interstate Horseracing Act (for example, intrastate online bets made on domestic and some overseas horseracing through U.S. sites such as YouBet.com) and remote gambling conducted by Native American tribal groups". (Parentheses in original.)

She argues that "Those exemptions would seem to back the claim by Antigua and Barbuda that the U.S. laws are aimed at discriminating against foreign Internet gambling interests rather than at restricting gambling in general."

James adds that "eBay was a chief proponent of the new act that prohibits online gambling and monetary transfers to pay for it. PayPal, a subsidiary of eBay, has already promised lawmakers that it will bar its customers from using PayPal accounts for Internet gambling and other ``adult-oriented´´ goods and services. Having excluded itself from the market for those types of money transfers, PayPal will gain from this act to the extent that it prevents competitors from gaining market share." (Footnote omitted.)

See also, June 7, 2006, Cato paper by Radley Balko titled "Federal Ban on Internet Gambling Marches On" June 7, 2006, and June 11 piece titled "eBay Invites Internet Regulation, Backs Online Gambling Ban".

A WTO panel may issue a report at any time regarding whether the U.S. is in compliance with its original ruling. James writes that if the panel finds that the U.S. is not in compliance, "Antigua and Barbuda is reportedly planning to ask for permission to allow intellectual property rights violations against U.S. firms to occur unabated on its territory".

See, WTO's July 7, 2006 notice of Antigua and Barbuda's request for a compliance panel.

See also, stories titled "WTO Panel Instructs Congress to Amend Wire Act to Legalize Internet Gambling" in TLJ Daily E-Mail Alert 1,016, November 11, 2004; "WTO Appellate Body Upholds U.S. Laws Affecting Internet Gambling" in TLJ Daily E-Mail Alert No. 1,111, April 8, 2005; and "Allgeier Addresses Trade Agreements and Internet Gambling" in TLJ Daily E-Mail Alert No. 1,118, April 19, 2006.

11/6. The Federal Communications Commission (FCC) issued an Order [36 pages in PDF] on remand regarding complaints that four broadcast television programs contained indecent and/or profane material. The Order concludes that comments made by Nicole Richie during "The 2003 Billboard Music Awards" and by Cheryl LaPiere during the "The 2002 Billboard Music Awards" were indecent and profane. The Order concludes that material on the "The Early Show" was neither indecent nor profane. Finally, the Order dismisses on procedural grounds the complaints involving "NYPD Blue". See also, FCC release [PDF].

FCC Commissioner Jonathan Adelstein wrote in his statement [4 pages in PDF] that "It was my hope that the Commission would use this remand to clarify and rationalize our indecency regime, but regulatory convenience and avoidance have prevailed instead." (Footnote omitted.) He concurred in part and dissented in part.

FCC Chairman Kevin Martin stated in a release that "I am pleased the Commission acted with appropriate deliberation in responding to the Court's limited remand. The Commission has always held that the use of certain words could be indecent. Consistent with that precedent, this order affirms that the use of the F and S words in the 2002 and the 2003 Billboard Music awards was indeed indecent. Hollywood continues to argue they should be able to say the F-word on television whenever they want. Today, the Commission again disagrees."

He added that "It is oftentimes difficult to distinguish between true news programming and infotainment. While I found the interview with a contestant on ``Survivor: Vanuatu´´ to be extremely close to that line, I believe the Commission's exercise of caution with respect to news programming was appropriate in this instance."

This order is FCC 06-166.

11/6. NTP, Inc. filed a complaint in U.S. District Court (EDVa) against Palm alleging patent infringement. Palm stated in a release that "The NTP lawsuit claims that certain Palm products infringe seven NTP patents. All seven of the patents asserted are being re-examined by the U.S. Patent and Trademark Office (PTO) and have been rejected by the re-examiners as invalid. Palm also noted that the NTP patents disclose a pager-based email service that has nothing in common with the mobile-computing devices invented by Palm." Palm added that "Palm has been in occasional contact with NTP concerning a license to these patents. When Palm last communicated with NTP many months ago, however, each of the patents already was the subject of re-examination proceedings by the PTO. Palm is disappointed that, after many months of silence and repeated rejections of NTP's claims by the PTO, NTP has chosen to sue on patents of doubtful validity." NTP previous sued RIM, the maker of Blackberry devices, with success. RIM paid NTP $612.5 Million to settle that case. See, story titled "RIM and NTP Settle Blackberry Related Patent Litigation" in TLJ Daily E-Mail Alert No. 1,323, March 6, 2006.

11/6. The Supreme Court issued an order in Bell Atlantic v. Twombly. It wrote that "The motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument is granted. The motion of respondents for divided argument is denied." See, Order List [8 pages in PDF] at page 2. Oral argument is scheduled for Monday, November 27. This case pertains to whether a complaint against a regional bell operating company (RBOC) that alleges parallel or similar behavior, and conspiracy to limit competition, but includes no allegations in support other than the similar or parallel conduct, is sufficient to survive a motion to dismiss. See also, amicus brief of the Office of the Solicitor General and story titled "Supreme Court Grants Cert in Bell Atlantic v. Twombly" in TLJ Daily E-Mail Alert No. 1,399, June 26, 2006. See also, Supreme Court docket. This is Sup. Ct. No. 05-1126.

11/7. Attorney General Alberto Gonzales, Secretary of Homeland Security Michael Chertoff, Secretary of State of the German Federal Ministry of the Interior August Hanning, Minister of Justice of Finland Leena Luhtanen, Minister of the Interior of Finland Kari Rajamaki, and Vice President of the European Union Franco Frattini held a joint news conference in Washington DC on November 7, 2006. They discussed international information sharing to fight terrorism. However, Hanning also commented on surveillance of the internet. He said that the "Internet is so very important. Internet is an important platform for recruiting of terrorists, as a communication platform. And therefore, we want to stress the surveillance of Internet as one of the most important points of our presidency." He did not elaborate. Germany's Bundesministerium des Innern, or Federal Ministry of the Interior, is responsible for interior security. Before joining this ministry, Hanning was President of the Bundesnachrichtendienst, the Federal Intelligence Service.

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Election Day.

The House will not meet. It may return from it elections recess on Monday, November 13, 2006. See, Republican Whip Notice. However, the adjournment resolution, HConRes 483, provides for returning on Thursday, November 9, at 2:00 PM.

The Senate will not meet. See, HConRes 483.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Plumtree Software v. Datamize, App. Ct. No. 06-1017, an appeal from the U.S. District Court (NDCal). Location: Courtroom 201, 717 Madison Place, NW.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Thompson v. Microsoft, App. Ct. No. 06-1073. Location: Courtroom 203, 717 Madison Place, NW.

ON THE BRIEFS. 2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Missiontrek v. Onfolio, App. Ct. No. 06-1271, an appeal from the Trademark Trial and Appeal Board (TTAB). Location: Courtroom 203, 717 Madison Place, NW.

Day two of a four day a partially closed conference hosted by the Federal Trade Commission (FTC) titled "Protecting Consumers in the Next Tech-ade". The topics to be addressed include "The Changing Nature of Consumer Products, Mobile Devices and Marketing, Data Security and Privacy, Convergence, The Evolving Internet, Payment Systems and Trends, Advertising and Marketing Trends, and Demographic Shifts". The November 9 session is closed to the public. See, notice and conference web site. Location: George Washington University, Lisner Auditorium, 730 21st Street, NW.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee will meet. The agenda includes "Graphics Processors Technology", "Frequency Standards", "Telephony Signaling", "Phase Noise", and "Frequency Synthesizer Assemblies". See, notice in the Federal Register, October 25, 2006, Vol. 71, No. 206, at Page 62416. Location: Room 3884, Hoover Building, 14th Street between Constitution and Pennsylvania Avenues, NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Diversity Committee and Young Lawyers Committee will host a panel discussion titled "The Role of Mentoring in the Legal Profession". The speakers may include Kyle Dixon (Wilmer Hale), Marvin Ammori (Georgetown University Law Center), Judy Harris (Reed Smith) and James Sandman (Arnold & Porter). RSVP by November 3 to Colin Sandy at csandy at neca.org or LadyStacie Rimes at 202-682-5995. Location: Sidley Austin, , 6th Floor, 1501 K Street, NW.

Day three of a four day a partially closed conference hosted by the Federal Trade Commission (FTC) titled "Protecting Consumers in the Next Tech-ade". The topics to be addressed include "The Changing Nature of Consumer Products, Mobile Devices and Marketing, Data Security and Privacy, Convergence, The Evolving Internet, Payment Systems and Trends, Advertising and Marketing Trends, and Demographic Shifts". The November 9 session is closed to the public. See, notice and conference web site. Location: George Washington University, Lisner Auditorium, 730 21st Street, NW.

Deadline to submit comments to the Office of the U.S. States Trade Representative's (USTR) Trade Policy Staff Committee (TPSC) regarding barriers to U.S. exports of goods, services and overseas direct investment for inclusion in the USTR's annual report titled "National Trade Estimate Report on Foreign Trade Barriers", or "NTE". See, notice in the Federal Register, August 14, 2006, Vol., No. 156, at Pages 46525-46527.

Deadline to submit reply comments to the Federal Communications Commission's (FCC) Federal-State Joint Board on Universal Service in response to the FCC's public notice [PDF] requesting comments regarding the use of reverse auctions to determine high cost universal service funding to eligible telecommunications carriers. This proceeding is WC Docket No. 05-337 and CC Docket No. 96-45. See, notice in the Federal Register, August 25, 2006, Vol. 71, No. 165, at Pages 50420-50421.

The House and Senate may meet at 2:00 PM. See, HConRes 483.

CANCELLED. 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).

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Managing E-Discovery Requests Under the New 2006 Federal Rules Amendments". The speaker will be Conrad Jacoby. The price to attend ranges from $80 to $135. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

Day four of a four day a partially closed conference hosted by the Federal Trade Commission (FTC) titled "Protecting Consumers in the Next Tech-ade". The topics to be addressed include "The Changing Nature of Consumer Products, Mobile Devices and Marketing, Data Security and Privacy, Convergence, The Evolving Internet, Payment Systems and Trends, Advertising and Marketing Trends, and Demographic Shifts". The November 9 session is closed to the public. See, notice and conference web site. Location: George Washington University, Lisner Auditorium, 730 21st Street, NW.

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

2:00 - 3:00 PM. The Information Technology Association of America (ITAA) will host a webcast titled "The FTC's Privacy & Data Security Jurisdiction, implications of the BJ's Wholesale Case and Other Recent Enforcement Actions". The speakers will be Stuart Ingis (Venable) and Emilio Cividanes (Venable). See, notice and registration page.

Deadline to submit comments to the Federal Trade Commission (FTC) regarding its proposed consent agreements with Information and Real Estate Services, LLC, and other real estate businesses. See, story titled "FTC Charges Real Estate Groups that Limited Publication of Listings on Certain Web Sites" in TLJ Daily E-Mail Alert No. 1,469, October 16, 2006, and notice in the Federal Register, October 18, 2006, Vol. 71, No. 201, at Pages 61474-61478.

Veterans Day.

The House and Senate return from their elections recess. See, HConRes 483.

12:00 NOON - 1:15 PM. The DC Bar Association will host a panel discussion titled "The Future of Obviousness: Will Teaching/Suggestion/Motivation to Combine Remain the Test?". The speakers will include Delano Jordan (Kenyon & Kenyon). The price to attend ranges from $15 to $35. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Legislative Committee will host a brown bag lunch. This is a planning meeting. RSVP to Amy Levine amy dot levine at mail dot house dot gov or 202-225-3861. Location: Verizon, Suite 400 West 1300 I St., NW.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Basics of Intellectual Property Taxation". The speakers will be Kenneth Appleby (Foley & Lardner). The price to attend ranges from $80 to $135. 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 five day meeting of the Department of Commerce's Judges Panel of the Malcolm Baldrige National Quality Award. See, notice in the Federal Register, October 20, 2006, Vol. 71, No. 203, Pages 61958-61959. Location: National Institute of Standards and Technology, Building 222, Room A230, Gaithersburg, MD.

Deadline to submit comments to the Copyright Royalty Board regarding its amendments to the procedural regulations governing the practices and procedures of the Copyright Royalty Judges in royalty rate and distribution proceedings. See, notice in the Federal Register, September 11, 2006, Vol. 71, No. 175, at Pages 53325-53331.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to it notice of proposed rulemaking (NPRM) regarding compensation of providers of telecommunications relay services (TRS) from the Interstate TRS Fund. The FCC adopted this item on July 13, 2006, and released it on July 20, 2006. It is FCC 06-106. This proceeding is titled "Telecommunications Relay Services and Speech-to-Speech Services for Individuals With Hearing and Speech Disabilities" and numbered CG Docket No. 03-123. See, notice in the Federal Register, September 13, 2006, Vol. 71, No. 177, at Pages 54009-54017.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to it further notice of proposed rulemaking (FNPRM) regarding maritime Automatic Identification Systems (AIS). The FCC adopted this item on July 20, 2006, and released it on July 24, 2006. It is FCC 06-108 in WT Docket No. 04-344. See, notice in the Federal Register, October 12, 2006, Vol. 71, No. 197, at Pages 60102-60106.

9:30 AM - 4:00 PM. The Antitrust Modernization Commission (AMC) will meet. The agenda of this meeting includes discussion of the role of state attorneys general in merger enforcement, the application of antitrust in regulated industries, and the Foreign Trade Antitrust Improvements Act (FTAIA). See, notice in the Federal Register, October 27, 2006, Vol. 71, No. 208, at Pages 62991-62992. Location: Mogan Lewis, 1111 Pennsylvania Ave., NW.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet by teleconference to discuss proposed U.S. contributions to Study Group 17 (Security, languages and telecommunication software) of the International Telecommunication Union's Telecommunication Standardization Sector. See, notice in the Federal Register, October 31, 2006, Vol. 71, No. 210, at Page 63828.

11:00 AM - 1:00 PM. The Progress and Freedom Foundation's (PFF) Digital Age Communications Act (DACA) project's Institutional Reform Working Group will present and discuss a paper that contains proposals for reforming the structure of the Federal Communications Commission (FCC). The speakers will include Sen. Jim DeMint (R-SC). Lunch will be served. See, PFF notice and registration page. Location: Room 188, Russell Building, Capitol Hill.

12:00 NOON - 1:00 PM. The Federal Communications Bar Association's (FCBA) Annual Seminar Committee will host a brown bag lunch. RSVP to Yaron Dori at ydori at hhlaw dot com. Location: Harris Wiltshire & Grannis, 1200 18th Street, NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Joint Cable Practice and Mass Media Practice Committees will host a brown bag lunch titled "Meet the Legal Advisors". The speakers will be Heather Dixon (advisor to FCC Chairman Kevin Martin), Rudy Brioché (Jonathan Adelstein), Cristina Pauzé (Robert McDowell), Chris Robbins (Deborah Tate), and Jessica Rosenworcel (Michael Copps). RSVP to Daphney Sheppard at dsheppard at sidley dot com or 202-736-8019. For more information, contact Erin Dozier at edozier at sheppardmullin dot com or Jennifer Tatel at jtatel at sidley dot com. Location: Sidley Austin, 6th floor, 1501 K St., NW.

2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to discuss the upcoming meeting of the ITU Radiocommunication Sector's Conference Preparatory Meeting (CPM) for the 2007 World Radiocommunication Conference, to be held on February 19 through March 2, 2007 in Geneva, Switzerland. See, notice in the Federal Register, October 10, 2006, Vol. 71, No. 195, at Page 59580. Location: Boeing Company, 1200 Wilson Blvd., Arlington, VA.

5:00 PM. Deadline to submit comments to the Department of Commerce's (DOC) Bureau of Economic Analysis (BEA) regarding it notice in the Federal Register that announces, describes, and recites its notice of proposed rulemaking (NPRM) regarding the mandatory reporting of transactions with foreign person involving services (including telecommunications, information services, and news gathering) and intangible assets (including intellectual property). See, Federal Register, September 15, 2006, Vol. 71, No. 179, at Pages 54448-5445. The current rule is codified at 15 C.F.R. § 801.10 [3 pages in PDF]. See also, story titled "Commerce Department Proposes to Mandate Reporting of International IP Transactions" in TLJ Daily E-Mail Alert No. 1,451, September 18, 2006.

5:00 - 7:00 PM. The AEI-Brookings Joint Center will host a lecture by Roger Noll (Stanford) titled "Still Reforming Regulation". See, notice. Location: American Enterprise Institute, 12th floor, 1150 17th St., NW.

Day two of a five day meeting of the Department of Commerce's Judges Panel of the Malcolm Baldrige National Quality Award. See, notice in the Federal Register, October 20, 2006, Vol. 71, No. 203, Pages 61958-61959. Location: National Institute of Standards and Technology, Building 222, Room A230, Gaithersburg, MD.