5/14. The Supreme Court of the U.S. denied certiorari in Iowa Network Services v. Qwest. This lets stand the judgment of the U.S. Court of Appeals (8thCir), which affirmed the District Court's summary judgment for Qwest. See, Orders List [16 pages in PDF] at page 4.

The Court of Appeals wrote in its October 31, 2006 opinion [PDF] that "Iowa Network Services, Inc. ("INS") brought this collection action against Qwest Corporation ("Qwest"), alleging violations of its federal and state tariffs, as well as unjust enrichment, for services provided in connecting wireless calls to rural Iowa telephone companies. The district court granted Qwest's motion to dismiss. INS appealed, and we reversed the district court's judgment and remanded for further proceedings." See, the Court of Appeals' April 7, 2004, opinion [PDF] in App. Ct. No. 02-3843, which is also reported at 363 F.3d 683.

The Court of Appeals continued in the October 31, 2006, opinion under review that "On remand, Qwest filed a motion for summary judgment. As outlined in its thorough opinion, the district court granted Qwest's motion for summary judgment on all claims and dismissed the case. INS now appeals from the district court's grant of summary judgment to Qwest, arguing principally that the district court should have applied the filed rate doctrine. We affirm." (Footnote omitted.)

This case is Iowa Network Services, Inc. v. Qwest Corp., Sup. Ct. No. 06-1217, a petition for writ of certiorari to the U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 05-3551. The Court of Appeals heard an appeal from the U.S. District Court for the Southern District of Iowa, Judge James Gritzner presiding. See also, Supreme Court docket.

5/9. The Copyright Office (CO) and the U.S. Patent and Trademark Office (USPTO) jointly held a public roundtable discussion regarding the World Intellectual Property Organization's (WIPO) Standing Committee on Copyright and Related Rights (SCCR) negotiations on a proposed Treaty on the Protection of the Rights of Broadcasting Organizations.

The CO and USPTO are tasked with representing the U.S. position in WIPO negotiations. This roundtable, like other fora, demonstrate that there is no common position. Rather, broadcasters seek a treaty that would require the U.S. to legislate an intellectual property like right, with strict liability, and without exceptions, such as fair use, while many other effected sectors oppose a treaty altogether, or seek a treaty that would merely require the U.S. to create a signal theft like remedy, with a mental state requirement, and defenses.

These is no consensus on fair use as a defense, including a mental state requirement, banning circumvention, or secondary liability of carriers, equipment makers, and internet companies.

Representatives of sports leagues, libraries, technology companies, and telecommunications carriers either opposed or criticized the treaty. Representatives of broadcasters advocated a broadcast treaty.

On May 1, 2007, the WIPO published in its web site its latest draft [10 pages in PDF] of its broadcast treaty. This draft is backdated April 20, 2007, and titled "Non-paper on the WIPO Treaty on the Protection of Broadcasting Organizations". It supersedes the WIPO's March 8, 2007, draft [MS Word]. For a summary of the March 8 draft, see story titled "Copyright Office and USPTO to Hold Roundtable on Draft WIPO Broadcast Treaty" in TLJ Daily E-Mail Alert No. 1,564, April 11, 2007.

Two of the key provisions of the May 1 draft treaty are Article 7, which creates a new exclusive right that is in the nature of an intellectual property right, and Article 9, which prevents circumvention of technology protect measures (TPMs).

The latest version of Article 7 provides that "Broadcasting organizations shall enjoy the exclusive right of authorizing the retransmission of their broadcasts, and the deferred transmission by any means to the public of their fixed broadcasts."

The latest version of Article 9 provides that,

"Contracting Parties shall provide adequate and effective legal protection against unauthorized
  1. decryption of an encrypted broadcast, or circumvention of any technological protection measure having the same effect as encryption;
    (i) manufacture, importation, sale or any other act that makes available a device or system capable of decrypting an encrypted broadcast; and
    (ii) removal or alteration of any electronic rights management information used for the application of the protection of the broadcasting organizations."

Representatives of broadcasters attended the event to argue for a broadcast treaty. Ben Ivins spoke on behalf of the National Association of Broadcasters (NAB). Although, Neal Jackson of National Public Radio (NPR) took an opposing view.

The opposition expressed by the sports leagues is unique among the critics of the proposed treaty. Their lead representative at the roundtable, Robert Garrett of the Washington DC office of the law firm of Arnold & Porter, said that the proposed treaty potentially interferes with the sports leagues' ability to exploit their copyrights.

He said that the proposed treaty would create a "new layer of rights" for broadcasters of sports programming, while preempting existing contracts between broadcasters and sports leagues. He added that parties should be able to transfer rights by agreement.

David Sohn of the Center for Democracy and Technology (CDT) stated that the CDT is concerned about the effect that the proposed treaty would have upon expression on the internet. He pointed out that even if someone gets permission to retransmit a broadcast of a copyrighted work from the copyright holder, the broadcaster could still withhold permission. He continued that broadcasts contain political discourse. He argued that the proposed treaty would enable broadcasters to serve as gatekeepers of political discussion on the internet.

Doug Comer of Intel argued that the proposed treaty is "impossibly imbalanced". He said that rather than creating an exclusive right, the treaty should merely provide a remedial right that is based upon the concept of signal theft.

The Electronic Frontier Foundation's (EFF) Gwen Hinze participated by teleconference. She argued against the proposed treaty on the grounds that it is inconsistent with fair use and that it restricts public access to information.

She also argued that it will render some consumer devices illegal. She stated for example, that the proposed treaty would prevent a consumer from saving a broadcast program to an iPod, and then later watching the program on the iPod. She added that the treaty would prevent consumers' retransmissions within their own homes.

Hinze also stated that the proposed treaty would expose equipment manufacturers to potential secondary liability. She argued that broadcasters would use their new exclusive rights to control what devices are used by consumers.

The Computer and Communications Industry Association's (CCIA) Matt Schruers argued that the proposed treaty would require the U.S. to create an intellectual property right in broadcast signals, but that the Constitution, as interpreted by the Supreme Court in Feist Publications, Inc. v. Rural Telephone Service Co., 499 US 340 (1991), provides that originality is a prerequisite for protection.

The treaty would require protection of broadcasters' signals even when broadcasters have created nothing, and licensed no copyrighted content.

Sherwin Siy of the Public Knowledge focused his criticism of the treaty on the requirement that member nations enact legal protections of technology protection measures (TPMs).

The NAB's Ivins focused his defense of the draft treaty on Section 7's creation of an exclusive right, rather than on Section 9's ban on circumvention of TPMs.

US Telecom's Kevin Rupy argued that "theft of content is a bad thing", but that the proposed treaty takes an "IP based right" approach, which is the wrong approach. Instead, he said that "the appropriate approach for this treaty is the signal theft approach".

The CO's David Carson and the USPTO's Paul Salmon presided. Carson moderated. Carson noted early in the roundtable that "this was not drafted by us".

Carson attempted to obtain clarity from the roundtable participants on the difference between a remedial or signal theft approach, and Section 7's retransmission of broadcasts approach. The participants were not specific.

However, the CCIA's Schruers said that a signal theft based approach would have a mental state element, while an intellectual property based approach would have strict liability. He also said that the signals theft approach would contemplate enforcement by state action.

The NPR's Jackson argued that any private right of action must have defenses, especially fair use.

The NAB's Ivins said that a private right of action was an absolute necessity. He said that "if you don't have a private right, it is useless".

The CO's Carson asked the NAB's Ivins if he could accept a willfulness or scienter requirement. Ivins rejected these, stating that they are criminal law concepts.

A representative of European broadcasters also spoke in opposition to any willfulness requirement. He said that broadcasters seek a private proprietary right.

5/9. Critics of the proposed World Intellectual Property Organization's (WIPO) broadcast treaty released a document [PDF] on May 9, 2007, titled "Statement Concerning the WIPO Treaty Provided by Certain Information Technology, Consumer Electronics and Telecommunications Industry Representatives, Public Interest Organizations, and Creative Community Representatives".

The entities that joined in the statement include three industry sectors: carriers, electronics makers, and libraries. The carriers include the CTIA, US Telecom, AT&T and Verizon. The consumer electronics makers include the AMD, Consumer Electronics Association (CEA), Dell, HP, Intel, Panasonic, and Tivo. The library groups include the American Library Association (ALA), the American Association of Law Libraries, and others.

Numerous trade and advocacy groups also joined in the statement, including the Center for Democracy and Technology (CDT), Computer and Communications Industry Association (CCIA), Electronic Frontier Foundation, Home Recording Rights Coalition (HRRC), and Media Access Project (MAP), and Public Knowledge (PK).

Finally, Google, which owns YouTube, joined in the statement. Users' posting of broadcast content on YouTube is one reason that broadcasters now seek a broadcast treaty, and implementing legislation in the U.S.

The WIPO released its latest draft treaty [10 pages in PDF] on May 1, 2007. The WIPO titled this draft "non-paper", and backdated it to April 20, 2007.

The joint statement requests that the U.S. delegation to the WIPO negotiations support a "narrow, signal theft-oriented vision for the treaty, and to oppose the Nonpaper treaty draft in its current form."

It states that "We continue to believe that an approach to signal piracy that focuses on infringement of an intellectual property right is deeply problematic. A better approach is to focus on prohibiting particular actions, done for particular purposes, by identifiable actors (i.e., the ``theft´´ model)." (Parentheses in original.)

It also states that "The rights-based approach creates the specter of direct and secondary infringement liability risks for telecommunications intermediaries, network service providers, device manufacturers and end users of broadcast and cablecast content."

The statement also criticizes the proposed treaty's section that prohibits circumvention of technology protect measures. It states that "The Non-paper's call for global legal rules that would regulate the `making available´ of `devices capable of decrypting an encrypted broadcast´ would presumably require wholesale regulation of general purpose computers and other devices, and have significant harmful consequences for the technology industry generally."

5/10. The House amended and approved HR 2082, the intelligence authorization bill. The vote on final approval was 225-197. See, Roll Call No. 341. Almost all of the Democrats voted yes. Almost all of the Republicans voted no. Final approval was early on May 11, but still part of the legislative session of May 10.

5/10. The House amended and approved HR 2206, the supplemental appropriations bill for FY 2007. The vote on final approval was 221-205. See, Roll Call No. 333. Almost all of the Democrats voted yes. Almost all of the Republicans voted no. It contains the following language for the Federal Bureau of Investigation (FBI) and its use of National Security Letters: "For an additional amount for `Salaries and Expenses´, $268,000,000, of which $258,000,000 is to remain available until September 30, 2008 and $10,000,000 is to remain available until expended to implement corrective actions in response to the findings and recommendations in the Department of Justice Office of Inspector General report entitled, `A Review of the Federal Bureau of Investigation's Use of National Security Letters´, of which $500,000 shall be transferred to and merged with `Department of Justice, Office of the Inspector General´." This bill also contains additional funding for "International Broadcasting Operations".

The House will meet at 9:00 AM for morning hour, and at 10:00 AM for legislative business. The House will consider numerous non-technology related items under suspension of the rules. See, Rep. Hoyer's weekly calendar [PDF].

8:30 AM - 3:00 PM. The American Enterprise Institute (AEI) will host an event titled "The Role of Competition Analysis in Regulatory Decisions". See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

8:30 AM - 3:00 PM. The National Institute of Standards and Technology (NIST) Advanced Technology Program Advisory Committee will hold a partially closed meeting. See, notice in the Federal Register, April 13, 2007, Vol. 72, No. 71, at Page 18632. Location: NIST, Administration Building, Employees' Lounge, Gaithersburg, MD.

10:00 AM - 12:00 NOON. The House Science Committee's (HSC) Subcommittee on Research & Science Education will hold a hearing titled "Federal STEM Education Programs: Educators' Perspectives". The witnesses will be Linda Froschauer (National Science Teachers Association), Michael Lach (Chicago Public Schools), George Nelson (Western Washington University), Van Reiner (Maryland Science Center), and Iris Weiss (Horizon Research, Inc.). See, hearing charter [PDF]. Location: Room 2318, Rayburn Building.

12:30 PM. The Federal Communications Bar Association's (FCBA) will host a brown bag lunch titled "Payola Compliance". For more information, contact Erin Dozier at 202-772-5312 or  edozier at sheppardmullin dot com or David O'Connor at 202-828-1889 or david dot oconnor at hklaw dot com. Location: Sheppard Mullin, 11th floor, 1300 I St., NW.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's weekly calendar [PDF].

The Federal Communications Commission (FCC) will begin Auction 71, the broadband PCS spectrum auction. See, DA 07-30 [69 pages in PDF].

10:00 AM. The Senate Judiciary Committee (SJC) may hold a hearing titled "Rogue Online Pharmacies: The Growing Problem of Internet Drug Trafficking". The witnesses will be Francine Haight (founder of Ryan's Cause), Joseph Rannazzisi (Office of Diversion Control, Drug Enforcement Administration), Joseph Califano (National Center on Addiction and Substance Abuse at Columbia University), Philip Heymann (Harvard Law School), and Thomas McClellan (Treatment Research Institute). Press contact: Tracy Schmaler (Leahy) at Tracy_Schmaler at judiciary dot senate dot gov or 202-224-2154. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "U.S. Preference Programs: How well do they work?". The witnesses will include Meredith Broadbent (Assistant U.S. Trade Representative for Industry, Market Access and Telecommunications). See, notice. Location: Room 215, Dirksen Building.

12:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch to elect Co-Chairs and plan. Send nominations and self-nominations to Natalie Roisman at nroisman at akingump dot com and Chris Fedeli chrisfedeli at dwt dot com by May 9. Location: Davis Wright Tremaine, 1919 Pennsylvania Ave., 2nd Floor.

2:30 PM. The Senate Commerce Committee (SCC) will meet in executive session. See, notice. Location: Room 253, Russell Building.

2:30 PM. The House Homeland Security Committee (HHSC) will hold a hearing titled "The Impact of Foreign Ownership and Foreign Investment on the Security of Our Nation’s Critical Infrastructure". Press contact: Dena Graziano or Adam Comis at 202-225-9978. Location: Room 1539, Longworth Building.

3:15 - 5:00 PM. The American Enterprise Institute (AEI) will host a book forum on the book "Antitrust Consent Decrees in Theory and Practice" by Richard Epstein (University of Chicago law school). The book examines the 1982 consent decree that broke up the Bell system, the 1994 Microsoft consent decree, and the 2002 Microsoft final judgment. The speakers will be Epstein, Douglas Melamed (Wilmer Hale) and Michael Greve (AEI). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Engineering and Technical Practice Committee will host a continuing legal education (CLE) seminar titled "Regulating for Innovation". See, registration form [PDF]. The price to attend ranges from $50-$125. The deadline to register is 5:00 PM on May 14. Location: Skadden Arps, 700 14th St., NW.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's weekly calendar [PDF].

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Media Violence". See, notice. Location: Room 253, Russell Building.

10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda, which the SJC rarely follows, includes consideration of S 1027, the "Prevent All Cigarette Trafficking Act of 2007" or "PACT Act", a bill to regulate internet tobacco sales to facilitate the collection of federal, state, and local taxes. Location: Room 226, Dirksen Building.

12:15 - 1:45 PM. The Federal Communications Bar Association's (FCBA) Comms Law, Copyright & Digital Rights Management Committee will host a brown bag lunch titled "Administrative Practice Before the United States Copyright Office". The speakers will include representatives of the Copyright Office's (CO) Examining Division and Licensing Division. For more information, contact Ben Golant at bgol at loc dot gov or 202-707-9127. Location: National Association of Broadcasters (NAB), 1771 N St., NW.

2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will hold the third of a series of three meeting to prepare advice for the next meetings of the Organization for Economic Co-operation and Development Working Parties on the Information Economy (WPIE) and Communications and Infrastructure Services Policy (CISP). See, notice in the Federal Register, April 5, 2007, Vol. 72, No. 65, at Page 16868. Location: Room 2533a, Harry Truman Building, 2201 C St., NW.

? 2:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will hold the third of a series of three teleconferences to prepare advice for the next meeting of the International Telecommunication Union's Study Group 9 (Integrated broadband cable networks and television and sound transmission). See, notice in the Federal Register, April 5, 2007, Vol. 72, No. 65, at Page 16868.

2:00 PM. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing on a discussion draft of a yet to be introduced bill that addresses broadband mapping and data collection. Location: Room 2322, Rayburn Building.

6:00 - 8:00 PM. The law firm of Tobin O'Connor and Alteritech will host a seminar titled "Technology for Law Firms: Electronic Document Management". See, notice. RSVP by May 7, 2007 to RSVP at alteritech dot com. The event is open to attorneys. Location: Maggiano's Little Italy, 5333 Wisconsin Ave., NW.

Deadline to submit comments to the Copyright Royalty Board in response to its proposed rules setting certain royalty rates. See, notice in the Federal Register, April 17, 2007, Vol. 72, No. 73, at Pages 19138-19144.

The House will meet at 9:00 AM for legislative business. See, Rep. Hoyer's weekly calendar [PDF].

12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a panel discussion titled "The Complexities of Regulating TV Violence". The speakers will include Adam Thierer (PFF), Robert Corn-Revere (Davis Wright Tremaine), Jonathan Freedman (author of  Media Violence and its Effect on Aggression [Amazon]), and Henry Geller (former FCC and NTIA official). See, notice. Lunch will be served. Location: Room B354, Rayburn Building.

2:00 - 3:00 PM. The Information Technology Association of America (ITAA) will host teleconferenced seminar titled "Executive Compensation -- High Tech Trends in Equity Awards". See, notice. The speaker will be Robert Marshall of the San Francisco office of the law firm of Baker & McKenzie.

Deadline to submit requests to the Federal Trade Commission (FTC) to participate as a panelist in the FTC's two day event on July 11-12, 2007, titled "Spam Summit: The Next Generation of Threats and Solutions". Requests should be sent to SpamSummit at ftc dot gov. See, FTC notice and Spam Summit web page.

Deadline to submit to the Federal Trade Commission (FTC) written comments on the topics to be addressed in the FTC's two day event on July 11-12, 2007, titled "Spam Summit: The Next Generation of Threats and Solutions". See, FTC notice and Spam Summit web page.

9:00 - 10:00 AM. Rep. Adam Schiff (D-CA) and Robert Atkinson, head of the Information Technology and Innovation Foundation (ITIF), will release a report on patent reform. RSVP to Torey Liepa at tliepa at itif dot org. Location: Room 2226, Rayburn Building.

12:00 NOON - 1:30 PM. The Federal Bar Association's (FBA) Capitol Hill Chapter will host an event titled "Luncheon with Chief Justice John G. Roberts Jr., Chief Justice of the United States". See, notice and registration form [PDF]. Location: West Conference Room, Supreme Court of the United States (enter through either the Maryland Ave. or 1st Street, NE, entrances.)

12:00 NOON - 2:00 PM. The Institute for Policy Innovation (IPI) will host a lunch titled "Intellectual Property: Fueling the Growth of India’s Knowledge Economy". The speaker will be Prabuddha Ganguli (CEO VISION-IPR). RSVP to Sonia Blumstein at 205-620-2087 or soniab at ipi dot org Location: Bobby Van's Grill, 1201 New York Ave., NW (12th and New York Ave.).

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Common Carrier Committee will host a continuing legal education (CLE) seminar titled "The Evolution of Common Carrier Regulation and Its Future Applicability in an IP World". The price to attend ranges from $50 to $125. See, registration form [PDF]. Location: Sidley Austin, 1501 K St., NW.

TIME? The Federal Aviation Administration's (FAA) Commercial Space Transportation Advisory Committee's (COMSTAC) working groups will meet. Location: undisclosed.

5/11. The Rural Utilities Service (RUS) published a notice in the Federal Register that announces, describes, and sets the comment deadline (July 10, 2007) for, its notice of proposed rulemaking (NPRM) regarding its Rural Broadband Access Loan and Loan Guarantee Program. The RUS proposes to change its rules regarding funding in competitive markets and new eligibility requirements, new equity and market survey requirements, and new legal notice requirements. See, Federal Register, May 11, 2007, Vol. 72, No. 91, at Pages 26742-26759

5/10. The U.S. Court of Appeals (7thCir) issued its opinion [12 pages in PDF] in US v. Genendo Pharmaceutical, a case regarding seizure by the U.S. of prescription drugs imported into the U.S. for repackaging and distribution by Genendo that were intended for sale in other countries. The Court of Appeals affirmed the District Court's seizure and condemnation of the drugs, and its permanent injunction barring further importation. The case involves interpretation of the Federal Food, Drug, and Cosmetic Act. This case is USA v. Genendo Pharmaceutical NV, U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 05-4608, an appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division, D.C. No. 03 C 6495.

5/10. The U.S. Court of Appeals (6thCir) issued its opinion [PDF] in J.B.D.L. Corporation v. Wyeth-Ayerst Laboratories, a class action brought under Section 2 of the Sherman Act by pharmaceutical wholesalers and retailers against Wyeth-Ayerst in connection with its to protect its market share in the oral estrogen replacement therapy market through the use of contractual agreements with third party payer entities. The Court of Appeals affirmed the District Court's summary judgment for Wyeth-Ayerst. This case is J.B.D.L. Corporation, et al. v. Wyeth-Ayerst Laboratories, Inc., U.S. Court of Appeals for the 6th Circuit, App. Ct. Nos. 05-3860 and 05-3988, appeals from the U.S. District Court for the Southern District of Ohio at Cincinnati, D.C. Nos. 01-0070 and 03-00781.

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