9/18. Rep. Brad Sherman (D-CA), Rep. Steve Chabot (R-IN), and Rep. Joe Donnelly (D-IN) and Rep. Steve Cohen (D-TN) introduced HR 3578 [LOC | WW], the "Intellectual Property Rights Enforcement Act" or IPREA.

This bill would not create, revise, or restrict any intellectual property rights. Rather, it would attempt to require greater coordination and information sharing among federal government agencies tasked with enforcing intellectual property rights.

It would create an "Intellectual Property Enforcement Network" (IPEN), comprised of eight members, including a new "Coordinator for Intellectual Property Enforcement". However, neither the Register of Copyright, or head of the U.S. Patent and Trademark Office (USPTO), would be members.

Rep. Sherman is a new member of the House Judiciary Committee (HJC) and its Subcommittee on Courts, the Internet, and Intellectual Property (SCIIP). He is also a member of the House Foreign Affairs Committee (HFAC), and the Chairman of its Subcommittee on Terrorism, Nonproliferation and Trade.

The bill recites in its findings that "The success of intellectual property rights enforcement requires that United States Government agencies form an effective network to take advantage of their diverse capabilities and to share information for the purpose of enhancing the enforcement capabilities of each agency and the United States Government-wide intellectual property rights enforcement effort."

Rep. Sherman stated in a release that "The staggering losses to the U.S. economy are more than enough reason to take strong action to stop intellectual property theft ... But this is more than just an economic issue.  This is also about public safety and national security. Bogus drugs and fake airplane parts are serious dangers in and of themselves, and more so since we know that terrorist groups have used the sale of counterfeit goods to finance their activities."

The Senate version of the IPREA is S 522 [LOC | WW], introduced by Sen. Evan Bayh (D-IN) and Sen. George Voinovich (R-OH) on February 7, 2007. That bill was referred to the Senate Judiciary Committee (SJC), which has taken no action.

John Engler, head of the National Association of Manufacturers (NAM) stated in a release that "Our ability to compete in the global marketplace depends increasingly on the protection of intellectual property rights, particularly patents, copyrights, brand names and trade secrets. America’s advantage is in innovation and reputation for quality, and this is being undercut by counterfeit products that don’t meet the high standards of legitimate U.S. brands and are often unsafe for consumers. The Intellectual Property Rights Enforcement Act would help channel more resources and attention to this global problem".

Chris Merida of the U.S. Chamber of Commerce stated in a release that "We will continue to work with the House to ensure that this legislation is given due consideration. ... We hope this will be one of many pieces of legislation addressing intellectual property theft. There is a lot of work to be done, but today's introduction is a great step in the right direction.".

9/17. The Department of Justice (DOJ) held a farewell ceremony for Alberto Gonzales. The speakers praised his work and accomplishments at the DOJ. Some focused on his activities related to online porn and predation. See, transcript.

Federal Bureau of Investigation (FBI) Director Robert Mueller said that "beyond his focus on the counterterrorism mission, Judge Gonzales has ... been tireless in his commitment to reduce the crimes that immediately affect the families across the country, gang violence, online predators."

He added that "as a father he has been struck by the horror of online predators. I know that he has been deeply affected by the pictures that all too often can invade the online space that children inhabit, and those pictures have spurred his dedication to, as he has put it, making America into a place where children's safety is a guarantee."

Johnny Sutton, U.S. Attorney for the Western District of Texas, and Chairman of the Attorney General’s Advisory Committee, said that Gonzales "saw there was an urgent need in this country to go after predators who prey on our children. He recognized that the Internet is an incredible tool to spread freedom and knowledge around the world, but it is also a very dangerous tool that can bring literally a child predator into your home. He recognized that and he began a program called Project Safe Childhood, which is now spread across this nation, and I predict to you that years from now this program will be remembered as one of the most important things that we did in this administration."

Sutton added that "Now we have a coordinated effort to go after these predators who do the most evil things to our kids and the coming disaster that is the proliferation of child pornography and child predators that come into our houses through the internet -- is being attacked on a national basis and a national awareness all because of this man right here."

9/17. The U.S. Court of Appeals (10thCir) issued its opinion [9 pages in PDF] in Triad Consultants v. Wiggins, a civil action involving the federal Computer Fraud and Abuse Act (CFAA), which is codified at 18 U.S.C. § 1030.

This case, like some other Section 1030 cases, is a post employment dispute between a company and an ex-employee. There are numerous claims and counterclaims. However, one claim, asserted by the former employer, is that its former employee engaged in unauthorized access to a protected computer system.

The Court of Appeals held that pleading the making and possessing backup tapes, without also pleading accessing and using information from those tapes, does not satisfy the "obtains anything of value" requirement of Section 1030(a)(4). The Court of Appeals ducked a number of other questions that might have provided guidance as to the meaning of the CFAA.

Jeffrey Wiggins was President and Chief Operating Officer of Triad. His job responsibilities included creating backup tapes of Triad's computer system, and safeguarding them off premises. Triad terminated his employment.

Triad soon after filed a complaint in U.S. District Court (DColo) against Wiggins asserting various state law claims not at issue in this appeal, and unauthorized access to a protected computer system in violation of Section 1030.

Triad alleged that Wiggins made back up tapes, and took them home. It also alleged that he communicated with Triad employees after his termination regarding the tapes. However, it did not allege that he deleted anything from a computer, used any information from a computer to compete, or gave any information to a competitor. It did not allege that he obtained any information from the tapes.

The complaint alleged violation of Section 1030(a)(4), which provides that "Whoever ... knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any 1-year period ... shall be punished ...".

Wiggins counterclaimed, asserting several state law claims not at issue in this appeal, including that compensation was owing to him.

Federal jurisdiction in this case rests solely on the Section 1030 claim.

The District Court granted Wiggins motion to dismiss the Section 1030 claim for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6). Additionally, it granted summary judgment on the Section 1030 claim pursuant to Rule 56. The District Court then declined to exercise supplementary jurisdiction over the state law claims and counterclaims.

The Court of Appeals affirmed the judgment of dismissal on Rule 12(b)(6) grounds, and did not address the Rule 56 grounds.

The Court of Appeals ruled that the complaint failed plead sufficient facts to support the element of "obtains anything of value".

It reasoned that "value" under the statute is relative to the needs and objectives of the defendant. The Court of Appeals explained that "the value of the tapes to Wiggins (and to Triad, for that matter) lay in the information the tapes contained, not in the physical objects themselves. Because Triad alleged no facts showing that Wiggins accessed the information on either tape, it cannot establish one of the elements of a claim under § 1030(a)(4), that Wiggins obtained ``anything of value.´´" (Parentheses in original. Footnote omitted.)

The Court of Appeals' opinion does not address the question of whether accessing backup tapes falls within the statutory requirement of "accesses a protected computer". That is, is a backup tape a "computer" within the meaning of the statute? The Court of Appeals recited the statute's definition of "computer", but provided not further discussion.

Also, the Court of Appeals' opinion does not address the question of whether possessing backup tapes, after termination of employment, constitutes "without authorization" within the meaning of the statute.

Nor does the Court of Appeals' opinion speculate as to whether the Section 1030 claim was included by Triad for the purpose of obtaining federal jurisdiction of an otherwise state law case.

This case is Triad Consultants, Inc. v. Jeffrey Wiggins, U.S. Court of Appeals for the 10th Circuit, App. Ct. No. 07-1007, an appeal from the U.S. District Court for the District of Colorado, D.C. No. 06-CV-1771-PSF-MEH.

9/13. The U.S. Court of Appeals (7thCir) issued its opinion in FreeEats.com v. Indiana, a case about state regulation of automated telephone calls regarding candidates in political elections. However, this opinion does not address substantive state law, federal preemption, or the commerce clause or First Amendment of the U.S. Constitution. Rather, this case only addresses the Younger abstention doctrine.

FreeEats.com, Inc., is a Virginia corporation that provides prerecorded telephonic messages. It uses prerecorded telephonic messages to poll households, identify political supporters, deliver political advocacy messages, and encourage supporters to go to the polls to vote for particular candidates. It makes interstate telephone calls into all states, including Indiana.

The Economic Freedom Fund (EFF) is a customer of FreeEats. FreeEats make calls on behalf of the EFF to persons in Indiana in support of various congressional candidates.

The state of Indiana enacted a statute that prohibits the use of automatic dialing machines to send prerecorded messages to Indiana telephone subscribers. It is titled the "Automated Dialing Machine Statute" or ADMS. It is codified at Ind. Code § 24-5-14. This statute contains no exception for political communications.

The federal Telephone Consumer Production Act (TCPA) which is codified at 47 U.S.C. § 227, and the regulations promulgated thereunder by the Federal Communications Commission (FCC), also regulate the use of any "automatic telephone dialing system".

However, the federal TCPA does not preempt more restrictive state statutes. Section 227(e) provides that with certain exceptions, "nothing in this section or in the regulations prescribed under this section shall preempt any State law that imposes more restrictive intrastate requirements or regulations on, or which prohibits ... the use of automatic telephone dialing systems ... the use of artificial or prerecorded voice messages ..."

FreeEats filed a complaint in U.S. District Court (SDInd) seeking declaratory and injunctive relief  to prevent Indiana from enforcing its statute against it on the legal theories that federal law preempts it, that it violates the commerce clause of the US Constitution, and that it violates the First Amendment.

However, three days before filing, Indiana filed a complaint in Indiana state court against one the EFF to enforce the statute against it.

Indiana filed a motion in the U.S. District Court requesting that it abstain from exercising jurisdiction pursuant to the principles stated by the Supreme Court in its 1971 opinion in Younger v. Harris, which is also reported at 401 U.S. 37. FreeEats moved for a preliminary injunction.

The District Court denied the motions.

The District Court denied FreeEats' motion because it found that FreeEats had not shown a likelihood of success on the merits on any of its claims. First, it found that the federal TCPA does not preempt the Indiana ADMS. Second, it found that FreeEats was unlikely to prevail on its commerce clause claim because the ADMS does not impose a clearly excessive burden on interstate commerce in relation to the putative local benefits of protecting residential privacy. Third, it found that FreeEats was unlikely to prevail on its First Amendment claim, because the ADMS is content neutral, narrowly tailored to achieve Indiana's interest in protecting residential privacy, and leaves open alternative channels for communication, such as person to person phone calls and door to door canvassing.

Both Indiana and FreeEats appealed.

The Court of Appeals reversed the District Court's denial of Indiana's motion to dismiss pursuant to the Younger abstention doctrine, and vacated its denial of FreeEats' motion for a preliminary injunction. It remanded the case to the District Court with instructions to dismiss pursuant to the Younger abstention doctrine.

The Court of Appeals wrote that "There is no dispute that this case satisfies the first three factors for abstention under Younger. First, the state proceedings are judicial in nature as Indiana filed in the Brown Country Circuit Court its complaint against the Economic Freedom Fund and FreeEats alleging violations of the ADMS."

Second, wrote the Court of Appeals, "Indiana's complaint clearly implicates an important state interest, specifically the preservation of residential privacy as expressed by the Indiana legislature in its passage of the ADMS."

And third, "FreeEats may potentially avail itself of the same remedies in either the Indiana state court or the district court for its claims that the ADMS is preempted by federal law and unconstitutional. Accordingly, this case qualifies for abstention."

The Court of Appeals concluded that the District Court "erred in declining to abstain from exercising jurisdiction over this case pursuant to the Younger abstention doctrine, because: Indiana filed its complaint in state court before FreeEats filed its complaint in this case; Indiana’s state court complaint seeking to enforce the ADMS implicated important state interests; the Indiana courts offer an adequate opportunity for review of FreeEats’ federal preemption and constitutional claims; and FreeEats did not demonstrate the existence of any ``exceptional circumstances´´ that would exempt this case from the principles of Younger."

This case is FreeEats.com, Inc. v. State of Indiana and Steve Carter, U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 06-3900, an appeal from the U.S. District Court for the Southern District of Indiana, Indianapolis Division, D.C. No. 06 C 1403, Judge Larry McKinney presiding. Judge Manion wrote the opinion of the Court of Appeals, in which Judges Evans and Williams joined.

The state court action is Indiana v. Economic Freedom Fund, Brown County Circuit Court, No. 07C01-0609-MI-0425.

Yom Kippur begins at sundown.

The House will not meet.

The Senate will meet at 9:15 AM. It will resume consideration of HR 1585 [LOC | WW], the Department of Defense authorization bill.

12:00 NOON - 1:30 PM. The DC Bar Association will host a program titled "50 Hot Technology Tips, Tricks & Web Sites for Lawyers". The speakers will be Reid Trautz. The price to attend ranges from $15 to $35. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Engineering and Technical Practice will host a brown bag lunch titled "Understanding Technical Basics Involved in FCC Regulation". The speakers will be Robert Kubik (Motorola) and Ira Keltz (FCC's Office of Engineering and Technology). For more information, contact Christy Hammond at chammond at wileyrein dot com or 202-719-7365. Location: Wiley Rein, 10th floor conference room, 1750 K St., NW.

EXTENDED TO OCTOBER 12. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding Section 612 of the Communications Act, which is codified at 47 U.S.C. § 532, which requires cable operators to set aside channel capacity for commercial use by video programmers unaffiliated with the operator, and Section 616 of the Communications Act, which is codified at 47 U.S.C. § 536, which prohibits a cable operator or other multichannel video programming distributor (MVPD) from requiring a financial interest in any program service as a condition for carriage of such service, from coercing a programmer to grant exclusive carriage rights, or from engaging in conduct that unreasonably restrains the ability of an unaffiliated programming vendor to compete fairly by discriminating against such vendor on the basis of affiliation or nonaffiliation. The FCC adopted this item on March 2, 2007, and released the text on June 15, 2007. This NPRM is FCC 07-18 in MB Docket No. 07-42. See, notice in the Federal Register, July 18, 2007, Vol. 72, No. 137, at Pages 39370-39377. See also, Public Notice [PDF] (DA 07-3736) extending comment deadlines.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its Draft Special Publication 800-113 [85 pages in PDF] titled "Guide to SSL VPNs".

Deadline to submit to the Office of the United States Trade Representative (OUSTR) pre-hearing briefs and requests to appear at the GSP Subcommittee Public Hearing in connection with the 2007 Generalized System of Preferences (GSP) Annual Review. See, notice in the Federal Register, September 6, 2007, Vol. 72, No. 172, at Pages 51264-51266.

Yom Kippur.

The House will meet at 12:30 PM.

The Supreme Court will hold the opening conference of its October Term 2007.

12:00 NOON - 2:00 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Proposed Free Trade Agreements with Peru, Panama, Colombia and Korea". The speakers will be Jamie Estrada (Deputy Assistant Secretary for Manufacturing at the Department of Commerce), Marc Lautenbach (IBM), John Zogby (pollster), and Robert Atkinson (ITIF). Lunch will be served. Location: Room B-354, Rayburn Building.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Privacy and Data Security Committee will host a brown bag lunch titled "Why Privacy Matters to Your Company or Clients". For more information, contact Lisa Cordell at lcordell at fh-law dot com, Yaron Dori at YDori at HHLAW dot com, Ronnie London at ronnielondon at dwt dot com, or Jenell Trigg at strigg at lsl-law dot com. RSVP to Lisa Cordell at lcordell at fh-law dot com. Location: Hogan & Hartson, Litigation Center Moot Court Room (one level below the main lobby), 555 13th St., NW.

8:30 AM - 1:00 PM. The American Enterprise Institute (AEI) will host an event titled "Biotechnology and the Patent System: The Economic Implications of the Proposed Patent Reform Act of 2007". See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

9:00 AM - 1:00 PM. The National Telecommunications and Information Administration (NTIA) will hold a public meeting regarding its Digital-to-Analog Converter Box Coupon Program. See, NTIA notice, and notice in the Federal Register, July 20, 2007, Vol. 72, No. 139, at Page 39799. Location: Department of Commerce, Auditorium, 1401 Constitution Ave., NW.

9:00 AM - 1:30 PM. The Federal Communications Commission (FCC) will host an event titled "Summit on Communications Network Surge Management in Emergencies". See, notice. Location: FCC, Commission Meeting Room, 445 12th St., SW.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Commerce, Trade, and Consumer Protection will hold a hearing titled "From Imus to Industry: The Business of Stereotypes and Degrading Images". The hearing will be webcast by the HJC. Location: Room 2123, Rayburn Building.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on the Constitution, Civil Rights and Civil Liberties will hold a hearing titled "Oversight Hearing on the Employment Section of the Civil Rights Division of the U.S. Department of Justice". See, notice. Location: Room 2141, Rayburn Building.

12:00 NOON - 2:00 PM. The DC Bar Association will host a program titled "Digital Music and Practice Before the Copyright Royalty Board". The speakers will be Jacqueline Charlesworth (National Music Publishers' Association), Michael Huppe (SoundExchange, Inc.), David Oxenford (Davis Wright Tremaine), Steven Englund (Jenner & Block), and Lee Knife (Digital Media Association). The price to attend ranges from $10 to $30. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

12:00 NOON - 2:00 PM. The Federal Communications Bar Association's (FCBA) FCC Enforcement Practice Committee will host a brown bag lunch. It will be a "Kick Off meeting for Enforcement Committee Members". RSVP to Kerry Loughney at kerry at fcba dot org. Location: Wilmer Hale, 1875 Pennsylvania Ave., NW.

1:00 - 4:00 PM. The Department of Transportation's (DOT) Intelligent Transportation Systems Program Advisory Committee (ITSPAC) will meet. See, DOT's ITS web page, and notice in the Federal Register, September 6, 2007, Vol. 72, No. 172, at Page 51290. Location: Conference Room 7, lobby level, West Building, DOT, 1200 New Jersey Ave., SE.

1:00 PM. The House Judiciary Committee's (HJC) Antitrust Task Force will hold a hearing titled "Oversight Hearing of the Antitrust Agencies: Department of Justice Antitrust Division and Federal Trade Commission Bureau of Competition". See, notice. Location: Room 2141, Rayburn Building.

2:30 PM. The Senate Judiciary Committee (SJC) will hold a hearing on judicial nominations. Location: Room 226, Dirksen Building.

TIME?. The U.S.-China Economic and Security Review Commission (USCC) will hold a hearing. Location?

8:00 AM - 4:15 PM. The Federal Communications Commission (FCC) will host a day long event titled "Digital Television Consumer Education Workshop". See, FCC release. Location: FCC, 445 12th St., SW.

8:00 - 9:30 AM. The Federal Communications Bar Association's (FCBA) and the Northern Virginia Technology Council (NVTC) will host an event titled "Digital Media and Emerging Legal Challenges". The speakers will include Lauren Van Wazer (Cox Enterprises), David Gardy (TV Worldwide), Raj Sharma (3CLogic), Thomas Sydnor (Progress & Freedom Foundation), and Kurt Wimmer (General Counsel of Gannett). See, notice. Prices vary. Location: Ritz-Carlton, 1700 Tysons Boulevard, McLean, VA.

10:00 AM - 12:00 NOON. The House Science Committee (HSC) will hold a hearing titled "Meeting the Need for Interoperability and Information Security in Health IT". The hearing will be webcast by the HSC. For more information, all 202-225-6375. Location: Room 2318, Rayburn Building.

12:00 NOON - 2:00 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "How Will the New CFIUS Reform Legislation Affect FDI in the US?". The speakers will be Nova Daly (Deputy Assistant Secretary for Investment Security, Department of Treasury), Joseph Dennin (McKenna Long & Aldridge), Jamie Gorelick (Wilmer Hale), Scott Morris (House Committee on Financial Services), and Linda Menghetti (Emergency Committee for American Trade). The price to attend ranges from $0 to $30. For more information, call 202-626-3463. See, notice. Location: Wilmer Hale, 1875 Pennsylvania Ave., NW.

10:00 AM. The Federal Communications Commission's (FCC) Advisory Committee on Diversity for Communications in the Digital Age will meet. See, notice in the Federal Register, July 26, 2007, Vol. 72, No. 143, at Pages 41074-41075. Location: FCC, Room TW-C305, Commission Meeting Room, 445 12th St., SW.

12:15 - 2:00 PM. The Federal Communications Bar Association's (FCBA) Cyberspace Practice and Wireless Telecom Practice Committees will host a lunch titled "700 MHz Auction: Will the Reality Match the Hype?". The speakers will be Christopher Guttman-McCabe (CTIA - Wireless Association), Harlin McEwen (International Association of Chiefs of Police), Janice Obuchowski (Frontline Wireless), and Richard Whitt (Google). The price to attend is $15. Reservations and cancellations are due by 12:00 NOON on September 25. See, registration form [PDF]. Location: Sidley Austin, 6th Floor, 1501 K St., NW.

TIME? The Alliance for Public Technology (APT), National Catholic Educational Association (NCEA), and National Association of Independent Schools (NAIS) will hold a brown bag lunch. RSVP to apt at apt dot org. Location: __?

2:00 - 3:00 PM. The President's National Security Telecommunications Advisory Committee (NSTAC) will meet by teleconference. See, notice in the Federal Register, December 29, 2006, Vol. 71, No. 250, at Page 78451.

3:00 - 5:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. See, FCC Public Notice (DA 07-3842) and notice in the Federal Register, September 11, 2007, Vol. 72, No. 175, at Page 51814. Location: FCC, Room 3-B516, 445 12th St., SW.

TIME? The Office of the U.S. Trade Representative (OUSTR) will hold a hearing to assist it in preparing its annual report to the Congress on the People's Republic of China's compliance with the commitments made in connection with its accession to the World Trade Organization (WTO). The OUSTR will consider, among other things, intellectual property rights (IPR) and IPR enforcement. The hearing may also be continued on September 28. See, notice in the Federal Register, July 25, 2007, Vol. 72, No. 142, at Pages 40905-40906. Location: Room 1, 1724 F St., NW.

Deadline to submit comments to the Department of Transportation's (DOT) Research and Innovative Technology Administration (RITA) regarding the Nationwide Differential Global Positioning System (NDGPS) Program. See, notice in the Federal Register, August 1, 2007, Vol. 72, No. 147, at Pages 42219-42220.

12:15 - 2:00 PM. The Federal Communications Bar Association's (FCBA) Cable Practice and Young Lawyers Committees will host a brown bag lunch titled "Translating the Set Top Box Debate and Visualizing the Living Room of the Future". For more information, contact Chris Fedeli at chrisfedeli at dwt dot com or Tarah Grant at tsgrant at hhlaw dot com. Location: Willkie Farr & Gallagher, Suite 200, 1875 K St., NW.

1:30 - 3:30 PM. The American Enterprise Institute (AEI) will host another panel discussion titled "Is Sarbanes-Oxley Impairing Corporate Risk-Taking?". The speakers will be Peter Wallison (AEI), Katherine Litvak (University of Texas at Austin School of Law), Henry Butler (Northwestern University), and Richard Geddes (Cornell University). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

4:00 PM. Abdoulaye Wade, President of Senegal, will give a speech titled "I Don't Want Money. I Want Trade Agreements". See, notice. Location: Cato Institute, 1000 Massachusetts Ave., NW.

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