11/30. The U.S. Court of Appeals (3rdCir) issued its opinion [5 pages in PDF] in Directv v. Seijas, a case regarding whether there is a private right of action for the unlawful interception of encrypted satellite transmissions under 47 U.S.C. § 605(a) and 18 U.S.C. § 2511(1)(a). The District Court and Court of Appeals held that there is.

Background. Directv is a direct broadcast satellite (DBS) service provider. It uses conditional access technology that encrypts its satellite transmissions; it then provides its paying customers with access cards that decrypt these satellite transmissions.

Directv alleges that the defendants below Nelson Seijas, Scott Williamson, and others, illegally intercepted Directv's satellite signals and used illegal pirate access devices.

Directv filed a complaint in the U.S. District Court (DNJ) against Seijas, Williamson and others alleging interception of DIRECTV’s satellite transmissions in violation of 47 U.S.C. § 605(a) and 18 U.S.C. § 2511(1)(a), and possession of pirate access devices in violation of 18 U.S.C. § 2512(1)(b).

Statutes. 47 U.S.C. § 605(a) provides, in part, that "no person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception, ..." Subsection (e)(3) then provides that "Any person aggrieved by any violation of subsection (a) of this section ... may bring a civil action in a United States district court or in any other court of competent jurisdiction."

18 U.S.C. § 2511(1)(a) pertains to "Interception and disclosure of wire, oral, or electronic communications prohibited". It creates a civil remedy for interception of certain communications, including satellite piracy. It provides, in part, that "any person who ... intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication ... shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5)."

18 U.S.C. § 2512(1)(b) provides that "any person who intentionally ... manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications ... shall be fined under this title or imprisoned not more than five years, or both."

In addition, 18 U.S.C. § 2520 pertains to "Recovery of civil damages authorized". Subsection (a) provides that "... any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate."

Subsection (c)(2) provides that "the court may assess as damages whichever is the greater of -- (A) the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation; or (B) statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000."

§§ 2511, 2512, and 2520 are part of the Electronic Communications Privacy Act (ECPA) of 1986.

Court of Appeals. Williamson brought the present appeal of the District Court's grant of summary judgment against him on the counts alleging violation of §§ 605 and 2511. (The District Court also awarded Directv statutory damages, attorneys fees, and injunctive relief.)

The Court of Appeals affirmed.

It wrote that "We held in DIRECTV, Inc. v. Pepe, 431 F.3d 162 (3d Cir. 2005), that private parties may bring an action for damages and injunctive relief for a violation of Section 2511".

It added that "We now hold that the Federal Communications Act, 47 U.S.C. § 605, provides a private right of action for violations of the statute’s prohibition of piracy of airborne transmissions."

This case is Directv, Inc. v. Nelson Seijas, et al., U.S. Court of Appeals for the 3rd Circuit, App. Ct. No. No. 05-1682, an appeal from the U.S. District Court for the District of New Jersey, D.C. No. 03-cv-02429, Judge Stanley Chesler presiding. Judge Roth wrote the opinion of the Court of Appeals, in which Judges Ambro and Jordan joined.

Related Stories: "11th Circuit Holds Award of Liquidated Damages for Violation of ECPA is Discretionary" in TLJ Daily E-Mail Alert No. 908, June 1, 2004; "4th Circuit Rules DBS Providers Can Sue Pirates for Damages" in TLJ Daily E-Mail Alert No. 1,117, April 18, 2005; and "11th Circuit Limits Private Suits by DBS Providers Against Pirates" in TLJ Daily E-Mail Alert No. 922, June 21, 2004.

11/21. The U.S. Court of Appeals (11thCir) issued its opinion [22 pages in PDF] in Custom Manufacturing and Engineering v. Midway Services, a Lanham Act Section 43(a) case, affirming the judgment of the District Court for the infringer.

The Court of Appeals held that there was no likelihood of confusion when one printed circuit board maker made printed circuit boards with the trade name of another printed circuit board maker on them. The Court of Appeals declined to apply the 11th Circuit's seven part test for analyzing the likelihood of confusion in trademark cases, and instead relied on the argument that few people read what is on components inside of boxes.

Companies that make components that are installed inside of information technology and communications equipment might be concerned about this opinion.

Background. Custom Manufacturing & Engineering, Inc. is the appellant in this case, and the plaintiff below. The Court of Appeals described it as a "technology company that provides research and development, engineering, software, and manufacturing services to the government and industrial markets". What is pertinent to this case is that it makes printed circuit boards for water meter reading systems.

NTU Electronics, Inc., one of the appellees and defendants below in this case, also makes printed circuit boards for water meter reading systems. It made circuit boards with Custom's name on them, without permission from Custom.

The other appellees are Midways Services, Inc. (the general contractor on the project for which the water meter reading systems were installed), Automated Engineering Corporation (AEC), and MDCO, Inc., (both electronics manufacturers).

Custom filed a complaint in U.S. District Court (MDFl) against alleging violation of Section 43(a) of the Lanham Act by all appellees, violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTRA) by all appellees, and tortious interference with a business relationship by AEC. (This article only covers the Lanham Act claim.)

The District Court granted summary judgment for the appellees, on the basis that there was no likelihood of confusion. This appeal followed. The Court of Appeals affirmed.

Statute. Section 43(a) of the Lanham Act, which is codified at 15 U.S.C. § 1125(a)(1)(A), provides that "(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person ... shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act."

Court of Appeals Opinion. The 11th Circuit has a seven part test for determining whether a likelihood of confusion exists. See, Frehling Enters., Inc. v. Int’l Select Group, Inc., 192 F.3d 1330 (1999). However, neither the District Court nor the Court of Appeals applied it.

Had the Courts applied the Frehling test, they would have found that most of the Frehling factors weighed in favor of Custom. The Court of Appeals wrote that it must "take into account the unique facts of each case".

The Court of Appeals offered an analysis of likelihood of confusion. It also offered some circumstances not related to likelihood of confusion that might have affected its decision. First, it noted that "this trademark infringement case surfaced during the litigation of a contract action". Its assessment of the merits of the other action, or the mere fact that there was another action, might have colored its analysis in the present action.

It also noted that the number of falsely designated circuit boards was only "approximately 6000 or 7000 in total". It also wrote that "None of the defendants noticed" the false designation of origin. However, the Court of Appeals did not expressly hold that there is a de minimus exception to, or mens rea element in, this statutory cause of action.

The Court of Appeals also wrote that few will see the false designation of origin, because the circuit boards are placed into of boxes which are placed in attics of residential units. It could have used this argument to limit the amount of damages awarded. Rather, it seized upon this to conclude that there was no likelihood of confusion.

The Court of Appeals also based its analysis on a very narrow interpretation of whose confusion is relevant to the likelihood of confusion analysis. It rejected Custom's arguments that repair technicians, fire marshals, and other inspectors would be confused as to the origin of the circuit boards on the basis that they cannot "properly be regarded as the customers". (The Court of Appeals also rejected this argument for lack of evidence in the record.)

The Court of Appeals also wrote that Midway (the general contractor on the project) was not confused. The Court wrote, without explanation, that the "water meter reading systems were initially installed and maintained by Midway technicians who would not be confused as to the subject circuit boards' origin."

This case is Custom Manufacturing & Engineering, Inc. v. Midway Services, Inc., et al., U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 05-12906, an appeal from the U.S. District Court for the Middle District of Florida, D.C. No. 03-02671-CV-T-30MAP.

11/30. The Federal Trade Commission's (FTC) Bureau of Consumer Protection's Division of Privacy and Identity Protection released a document [49 pages in PDF] titled "Staff Summary of Comments and Information Received Regarding the Private Sector's Use of Social Security Numbers". See also, FTC release. The FTC will host a workshop on December 10-11, 2007, titled "Security in Numbers: SSNs and ID Theft". See, workshop web site.

11/21. The U.S. Court of Appeals (2ndCir) issued an opinion [23 pages in PDF] in Motorola v. Uzan affirming the District Court's award of $1 Billion in punitive damages from Kemal Uzan and other defendants. See also, stories titled "2nd Circuit Dismisses Uzan Appeal" in TLJ Daily E-Mail Alert No. 1,228, October 6, 2005; "Supreme Court Denies Certiorari in Uzan v. Motorola" in TLJ Daily E-Mail Alert No. 1,137, May 17, 2005; "2nd Circuit Rules in Motorola v. Uzan" in TLJ Daily E-Mail Alert No. 1,008, November 1, 2004; "Judge Awards Motorola $4,265,793,811.32 From Turkish Telecom Deadbeats" in TLJ Daily E-Mail Alert No. 709, August 1, 2003; and "Motorola & Nokia Sue Turkish Cellular Company for RICO Violations and Computer Hacking" in TLJ Daily E-Mail Alert No. 357, January 30, 2002. This case is Motorola Credit Corporation and Nokia Corporation v. Kemal Uzan, et al., U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 06-1222-cv, an appeal from the U.S. District Court for the Southern District of New York.

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The House will not meet.

The Senate will meet at 2:00 PM for morning business.

Deadline for states, territories and the District of Columbia to submit to the Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) their Statewide Communications Interoperability Plans and Investment Justification under the PSIC Grant Program. See, notice in the Federal Register, August 20, 2007, Vol. 72, No. 160, at Pages 46442-46444. See also, story titled "Public Safety Interoperable Communications Grant Applications Due in 30 Days" in TLJ Daily E-Mail Alert No. 1,612, July 19, 2007, and story titled "NTIA Clarifies Deadlines for PSIC Grant Applications" in TLJ Daily E-Mail Alert No. 1,625, August 21, 2007.

12:15 - 1:45 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch. The topic will be "Meet the Press". Location: National Association of Broadcasters (NAB), 1771 N St., NW.

2:00 PM. Deadline for respondent (LG Electronics) to file its opposition brief with the Supreme Court of the US (SCUS) in Quanta Computer v. LG Electronics, a patent infringement case. See, story titled "Supreme Court Grants Certiorari in Patent Exhaustion Case" in TLJ Daily E-Mail Alert No. 1,647, September 27, 2007.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding the Emergency Alert System (EAS). The FCC adopted this NPRM on May 31, 2007, and released the text [75 pages in PDF] on July 12, 2007. It is FCC 07-109 in EB Docket No. 04-296. See, notice in the Federal Register, November 2, 2007, Vol. 72, No. 212, at Pages 62195-62198. See also, story titled "FCC Expands EAS Program" in TLJ Daily E-Mail Alert No. 1,589, May 31, 2007.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding post-reconfiguration 800 MHz band plans for the U.S.-Canada border regions. This FNPRM is DA 07-4489 in WT Docket No. 02-55. See, notice in the Federal Register, November 13, 2007, Vol. 72, No. 218, at Pages 63869-63871.

Hanukkah begins at sundown.

The House will return from its Thanksgiving recess at 2:00 PM. The House will meet for legislative business. It will consider numerous non-technology related items under suspension of the rules. Votes will be postponed until at least 6:30 PM. See, Rep. Hoyer's schedule for the week.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Electronic Prescribing of Controlled Substances: Addressing Health Care and Law Enforcement Priorities". See, notice. The witnesses will be Joseph Rannazzisi (Drug Enforcement Administration), Tony Trenkle (Office of E-Health Standards and Services, Centers for Medicare and Medicaid Services), Laura Adams (Rhode Island Quality Institute), Kevin Hutchinson (Sure Scripts), David Miller (Covisint), and Mike Podgurski (Rite Aid Corporation). Location: Room 226, Dirksen Building.

10:00 AM. The Department of Commerce's (DOC) International Trade Administration (ITA) President's Export Council will meet. See, notice in the Federal Register, November 8, 2007, Vol. 72, No. 216, at Page 63164. Location: DOC, Room 4830, 1401 Constitution Ave., NW.

10:00 AM. The Center for Democracy and Technology (CDT) will host a news briefing on FISA reform legislation. For more information, contact Brook Meeks at 202-637-9800 ext. 114. Location: CDT conference room, 11th floor, 1634 I St., NW.

12:00 NOON - 4:00 PM. The DC Bar Association will host an event titled "Resolving Commercial Disputes with Chinese Parties: Trends in International Arbitration and WTO". The lunch speaker will be Yu Jianlong, Secretary-General of the China International Economic and Trade Arbitration Commission (CCPIT). There will be a panel discussion of arbitration. The speakers will be Mu Zili (Deputy Secretary-General of CCPIT), Fei Ning (Haiwen & Partners), Patrick Norton (Steptoe & Johnson), and Jean Kalicki (Arnold & Porter). There will also be a panel discussion on the WTO. The speakers will be Claire Reade (Chief Counsel for China Trade Enforcement, USTR), Matthew Yeo (Steptoe & Johnson), Lucille Barale (Georgetown University Law Center), and Mary Michel (McKenna Long & Aldridge). The price to attend ranges from $5 to $35. For more information, call 202-626-3488. See, notice. Location: Arnold & Porter, 555 12th St., NW.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "Survey to Win! How to Successfully Use Surveys in Trademark Litigations". The speakers will be Michael Mazis (American University) and Danny Awdeh (Finnegan, Henderson). The price to attend ranges from $20 to $30. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

1:00 - 3:00 PM. The Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee will meet by teleconference. See, notice in the Federal Register, November 1, 2007, Vol. 72, No. 211, at Pages 61827-61828.

2:30 PM. The Senate Commerce Committee (SCC) will hold an executive business meeting. The agenda includes consideration of S 2332 [LOC | WW], the "Media Ownership Act of 2007". See, notice. Location: Room 253, Russell Building.

First day of Hanukkah.

The House will meet at 10:00 AM for legislative business. The agenda for the week includes consideration under suspension of the rules of HR 3526 [LOC | WW], a bill to include all banking agencies within the existing regulatory authority under the Federal Trade Commission Act (FTCA) with respect to depository institutions, HR 2517 [LOC | WW], the "Protecting Our Children Comes First Act of 2007", and HR 3791, [LOC | WW], the "Securing Adolescents From Exploitation-Online Act of 2007" or "SAFE Act". The agenda for the week also includes consideration of conference reports on HR 2082, the "Intelligence Authorization Act for Fiscal Year 2008" and HR 1585, the "National Defense Authorization Act for Fiscal Year 2008". See, Rep. Hoyer's schedule for the week.

9:30 AM. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing titled "Oversight of the Federal Communications Commission: Media Ownwership". The hearing will be webcast by the HCC. Location: Room 2322, Rayburn Building.

12:00 NOON. The Cato Institute will host a program titled "The Real Story about Trade, Jobs, and Living Standards". The speaker will be Daniel Griswold. See, notice and registration. Location: Room B-339, Rayburn Building, Capitol Hill.

The Federal Communications Bar Association (FCBA) will host a dinner. The speaker will be FCC Chairman Kevin Martin. Location: Washington Hilton Hotel.

8:00 PM. The American Enterprise Institute (AEI) will host a dinner. Chris Cox, Chairman of the Securities and Exchange Commission (SEC), will give a speech titled "The Rise of the Sovereign Business". See, notice. Location: Ronald Reagan Building & International Trade Center, Pavilion Room, 1300 Pennsylvania Ave., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding potential interference unique to the reverse band operating environment in the 17/24 GHz BSS. This FNPRM is FCC 07-76 in IB Docket No. 06-123. See, notice in the Federal Register, August 22, 2007, Vol. 72, No. 162, at Pages 46939-46949.

9:00 AM - 4:30 PM. The Information Technology and Innovation Foundation (ITIF) will host an event titled "Voluntary Voting System Guidelines" or "VVSG". At 9:15 - 10:15 AM there will be a panel titled "VVSG in Context". The speakers will be Caroline Hunter (EAC), Barbara Guttman (NIST), and Sharon Laskowski (NIST). At 10:20 - 11:20 AM there will be a panel titled "Effect of VVSG on Cost and Innovation". The speakers will be Alan Dechert (Open Voting Consortium), David Beirne (Election Technology Council), and Stefan Popoveniuc (PunchScan). At 11:30 AM - 12:30 PM there will be a panel titled "New metrics and standards in the VVSG". The speakers will be Alec Yasinsac (Florida State University), Ed Smith (Sequoia Voting Systems), and Jim Dickson (AAPD). At 12:45 - 1:45 PM there will be a panel titled "Beyond VVSG: Next steps". The speakers will be Rebecca Mercuri, Lillie Coney (EPIC), and David Chaum. See, notice and agenda and web page for registering and ordering a box lunch. Location: ITIF, 1250 I St., NW.

10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of three internet related bills: S 1829 [LOC | WW], the "Protect Our Children First Act of 2007", S 431 [LOC | WW], the "Keeping the Internet Devoid of Sexual Predators Act of 2007", and S 2344 [LOC | WW], the "Internet Safety Education Act of 2007". The agenda also includes consideration of S 352 [LOC | WW], the "Sunshine in the Courtroom Act of 2007", S 344 [LOC | WW], a bill to require the Supreme Court to permit television coverage of all open events, except in cases where it would violated the due process rights of a party, and S 1638 [LOC | WW], the "Federal Judicial Salary Restoration Act of 2007". The SJC rarely follows its published agendas. Location: Room 226, Dirksen Building.

12:30 - 2:00 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications Practice Committee will host a brown bag lunch titled "Outcome of the 2007 ITU World Radio Conference (WRC)". The speakers will be Richard Russell and Richard Beaird of the Department of State. For more information, contact Fiona Alexander at falexander at ntia dot doc dot gov. Location: Verizon Communications, 1300 I Street, NW.

1:30 - 4:30 PM. The National Telecommunications and Information Administration's (NTIA) Commerce Spectrum Management Advisory Committee will meet. See, notice. Location: Room 4830, 1401 Constitution Ave., NW.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "Export Controls and Economic Sanctions 2007". The speakers will be Thomas Scott and Carol Kalinoski. The price to attend ranges from $80 to $115. For more information, call 202-626-3488. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

Day one of a two day workshop hosted by the Federal Trade Commission (FTC) titled "Security in Numbers: SSNs and ID Theft". See, workshop web site. Location: FTC Conference Center, 601 New Jersey Ave., NW.

2:00 PM. Deadline to file amicus briefs on the merits in support of the respondent (LG Electronics) with the Supreme Court of the US (SCUS) in Quanta Computer v. LG Electronics, a patent infringement case. See, story titled "Supreme Court Grants Certiorari in Patent Exhaustion Case" in TLJ Daily E-Mail Alert No. 1,647, September 27, 2007.

Deadline to submit comments to the Copyright Royalty Judges regarding their proposed regulations that set the rates and terms for the use of sound recordings in transmissions made by new subscription services and for the making of ephemeral recordings necessary for the facilitation of such transmissions for the period commencing from the inception of the new subscription service through December 31, 2010. See, notice in the Federal Register: November 9, 2007 Vol. 72, No. 217, at Pages 63532-63535.