1/16. The U.S. Court of Appeals (6thCir) issued its opinion [9 pages in PDF] in NCR v. Korala, a copyright dispute involving a contract arbitration clause.

NCR Corporation provides automatic teller machines (ATMs), and related equipment, software, and services. NCR has registered or applied for registrations of copyrights in its software. One software application of NCR is named "APTRA XFS". It is installed on ATMs that run on the Windows operating. Another software application of NCR is named "S4i". It is installed on ATMs that run on the OS/2 operating system.

NCR entered into an agreement in 1998 with Korala Associates Ltd. (KAL), which is located in Scotland, titled "Software License Agreement". This agreement provides that Korala will develop and license to NCR three specific software components for NCR's ATMs. NCR also agreed to loan to Korala computer hardware and software that were necessary to enable Korala to develop these components.

NCR alleges that is loaned equipment with the APTRA XFS software, and that Korala illegally copied and analyzed NCR's copyrighted software to produce its own competing software. NCR also alleges that Korala acquired from NCR's licensees ATMs with the S4i software, and that Korala likewise copied that.

The agreement between NCR and Korala provides that "Any controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by arbitration ..."

NCR filed a complaint in U.S. District Court (SDOhio) against Korala pleading numerous copyright related claims, and other claims, but not breach of contract.

NCR pled two counts of direct infringement of two software copyrights -- one each for the copying of the APTRA XFS and S4i software. NCR pled two counts of contributory infringement, based upon Korala's alleged inducement of NCR licensees to breach confidentiality restrictions in NCR licensing agreements. NCR pled one count of tortious interference with NCR contracts with its licensees. NCR pled one count of illegally importing infringing software into the U.S. Finally, NCR pled one count of common law unfair competition.

The District Court issued an order compelling arbitration. NCR brought the present appeal.

The Court of Appeals affirmed as to some counts of the complaint, but reversed as to other counts in the complaint.

The Court of Appeals applied the principle that "the cornerstone of our inquiry rests upon whether we can resolve the instant case without reference to the agreement containing the arbitration clause".

For example, with respect to the claim of direct infringement of the APTRA XFS copyright, the Court of Appeals wrote that "While a court would not need to reference the 1998 Agreement to determine if NCR owns a copyright for APTRA XFS, a court would need to reference the Agreement to determine what, if any, authorization NCR provided to KAL with respect to the APTRA XFS software contained on the ATM that NCR loaned to KAL under the 1998 Agreement." Hence, that claim must be arbitrated.

However, with respect to the claim of direct infringement of the S4i copyright, the Court of Appeals wrote that "No reference to the 1998 Agreement is necessary to determine whether (1) NCR owns a copyright in the S4i software or (2) KAL was licensed or authorized to access and/or copy the S4i software. While the 1998 Agreement is not limited to KAL’s developing software only for ATMs running APTRA XFS software, neither the Agreement itself nor the circumstances surrounding its implementation implicate the S4i software." Hence, that claim must be remanded to the District Court

The Court of Appeals also held that the common unfair competition claim and the illegally importing infringing software claim, as it pertains to APTRA XFS, must also be arbitrated. The Court of Appeals returned the other claims to the District Court.

This case is NCR Corporation v. Korala Associates LTD, U.S. Court of Appeals for the 6th Circuit, App. Ct. No. 06-3685, an appeal from the U.S. District Court for the Southern District of Ohio at Dayton, D.C. No. 04-00407, Magistrate Judge Michael Merz presiding. Judge Alice Batchelder wrote the opinion of the Court of Appeals, in which Judges Kennedy and Clay joined.

1/16. The U.S. Court of Appeals (10thCir) issued a divided opinion [PDF] in NEHCEPF v. Woodruff, Nacchio and Qwest, a class action securities fraud case.

Joseph Nacchio is a former CEO of Qwest Communications. Woodruff is a former Chief Financial Officer of Qwest. The New England Health Care Employees Pension Fund and others filed class action securities fraud actions in U.S. District Courts against Qwest, Nacchio, Woodruff, and others. The present appeal concerns a settlement that was negotiated and approved by the plaintiffs and Qwest and certain others, but not by Nacchio and Woodruff. The District Court approved the settlement. Nacchio and Woodruff appealed.

The Court of Appeals held that Nacchio and Woodruff have standing to challenge the settlement, and remanded the case to the District Court to provide a more extensive explanation for its decision. Judge Kelly wrote the opinion of the Court of Appeals, in which Judge Baldock joined. Judge Briscoe wrote a lengthy dissent.

This case is New England Health Care Employees Pension Fund, et al. v. Robert Woodruff, et al., U.S. Court of Appeals for the 10th Circuit, App. Ct. No. 06-1482.

1/17. Susan Schwab, the U.S. Trade Representative (USTR), gave a speech [6 pages in PDF] in Washington DC in which she discussed the People's Republic of China's violations of trade treaty obligations, ongoing Doha round trade negotiations, the Korea US free trade agreement, and other topics.

The US has filed complaints against the PRC with the World Trade Organization (WTO). See, story titled "US to Complain to WTO Regarding PR China's Failure to Protect IPR" in TLJ Daily E-Mail Alert No. 1,562, April 9, 2007.

Schwab said that "we fully expect the WTO to begin handing down decisions early this year that vindicate our claims in the remaining three cases -- auto parts, intellectual property rights enforcement, and market access."

She added that "We hope the Chinese and others will take note that when it comes to our enforcement efforts more generally, we have won or successfully settled the cases we have taken to the WTO 96% of the time."

She also counseled against Congressional legislation that targets the PRC. She said that the Bush administration has "serious concerns about the unintended consequences of proposed legislation targeting China. (And there always are unintended consequences.) Quite frankly, we have serious concerns about some of the intended consequences, too." (Parentheses in original.)

She concluded on this subject with the observation that "This is not a good time for Congress to be seeking quick-fixes for complex international economic challenges."

Regarding the Doha round, she said that "we continue to press ahead in Geneva, pushing for an outcome that will increase economic growth and development and alleviate poverty by generating new trade flows in agriculture, goods, and services."

She also discussed free trade agreements (FTAs). She said that "The first up on our legislative agenda this year is the Colombia Trade Promotion Agreement." However, the Korea US FTA is "the most commercially significant FTA of them all".

Schwab continued that "The good news is that we continue to work in good faith with our Korean colleagues to fully re-open this important market and ensure that U.S. beef gets treated with the respect that international standards of science demand."

"U.S. farmers, ranchers, service providers, and manufacturers have so much to gain by opening this enormous -- and traditionally closed -- market", said Schwab. "I look forward to -- indeed I relish -- having this debate about American competitiveness and how much we stand to gain from a bilateral agreement with this major trading partner, friend and ally in Asia."

1/17. The Progress & Freedom Foundation's (PFF) Adam Thierer released an item that announces that he and Grant Eskelsen of the PFF are working on a project titled "Media Metrics: The True State of The Modern Media Marketplace".

This item also includes the first installment of the project -- its analytical framework. Thierer also published the second installment, which is titled "Household Access to Media Services & Technologies".

Thierer states that he intends to "create a massive online database for the public, the press, and policymakers to use as a resource". He argues that "in recent years, media criticism has been infused with an unprecedented level of raging emotionalism, so much so that it sometimes borders on mass hysteria".

Thierer further state that "there are a number of objective metrics than can be used to prove that we as a society are better off in almost every way possible. Indeed, I hope to show that we are blessed to live in a golden age of media. We have access to more inputs and outlets, more and better news options, more diverse information and entertainment sources, more local fare, more media gadgets, more ways to interact with our fellow citizens, and so on".

1/15. Rep. Richard Baker (R-LA) announced that he "plans to resign his seat in Congress no later than February 6th, 2008". He is a member of the House Financial Services Committee. He was previously Chairman of its Subcommittee on Capital Markets. He will go to work for the Managed Funds Association (MFA). See, Rep. Baker's release. Back in the 108th Congress, he was a leader of unsuccessful efforts to enact legislation that would have overturned the Financial Accounting Standards Board's (FASB) decision to mandate the expensing of stock options. The FASB decision harmed small and start up information technology companies that offered stock options to attract employees. See, HR 3574 (108th), the "Stock Options Accounting Reform Act". See also, See, story titled "FASB Proposes Expensing of Stock Options" in TLJ Daily E-Mail Alert No. 867, April 1, 2004; story titled "Capital Markets Subcommittee Approves Stock Options Bill" in TLJ Daily E-Mail Alert No. 897, May 13, 2004; and story titled "House Financial Services Committee Approves Stock Options Bill" in TLJ Daily E-Mail Alert No. 919, June 16, 2004.

1/17. Tony Scott was named Chief Information Officer (CIO) and Corporate Vice President of Microsoft. He was previously CIO of Walt Disney Company. See, release.

1/18. The Federal Trade Commission (FTC) announced that it will publish a notice [3 pages in PDF] in the Federal Register that sets upward revisions to the minimum thresholds for the Hart Scott Rodino Antitrust Improvements Act of 1976. This pertains to the premerger notification and waiting period requirements of Section 7A of the Clayton Act, which are codified at 15 U.S.C. § 18a. These thresholds are adjusted annually. For example, the basic threshold for the aggregate total amount of the voting securities and assets of the acquired entity is raised to $252.3 Million. This notice further states that these new thresholds take effect 30 days after publication of a notice in the Federal Register. The FTC has published this notice in its web site, but not yet in the Federal Register.

1/17. Ben Bernanke, Chairman of the Federal Reserve Board (FRB), testified before the House Budget Committee. He stated in his testimony that "In the business sector, investment in equipment and software appears to have been sluggish in the fourth quarter".

1/17. The Federal Communications Commission (FCC) released a Public Notice [12 pages in PDF] that announces that the FCC's Office of Engineering and Technology (OET) "will begin a second phase of laboratory bench testing on the performance of prototype television white space devices on January 24, 2008." This notice is numbered DA 08-118.

1/17. The Federal Communications Commission (FCC) held an event titled "Open Meeting". The FCC Commissioners heard status reports from senior officials in various FCC Bureaus and Offices. See, FCC web page with hyperlinks to presentations.

1/16. Oracle and BEA Systems announced in a release that "they have entered into a definitive agreement under which Oracle will acquire all outstanding shares of BEA for $19.375 per share in cash. The offer is valued at approximately $8.5 billion, or $7.2 billion net of BEA's cash on hand of $1.3 billion." Larry Ellison, CEO of Oracle, stated in this release that "Oracle Fusion middleware has an open ``hot-pluggable´´ architecture that allows customers the option of coupling BEA's WebLogic Java Server to virtually all the components of the Fusion software suite." This transaction requires regulatory approvals.

1/16. Sun Microsystems and MySQL AB announced in a release and release that Sun "has entered into a definitive agreement to acquire MySQL AB, an open source icon and developer of one of the world's fastest growing open source databases for approximately $1 billion in total consideration". This transaction requires regulatory approvals.

1/15. The Securities and Exchange Commission (SEC) filed a civil complaint [PDF] in U.S. District Court (NDCal) against two employees of Price Waterhouse Coopers (PWC) alleging violation of Section 10b of the Securities Exchange Act of 1934 in connection with their alleged use of information acquired at PWC about the plans of PWC clients to acquire technology companies. The complaint alleges that one of the two individuals purchased stock in the companies to be acquired prior to the public announcement of the acquisitions. See also, SEC release.

1/14. The Federal Communications Commission (FCC) released a Public Notice [12 pages in PDF] regarding its Auction Number 73, the 700 MHz auction. This notice, numbered DA 08-83, identifies 214 qualified bidders, and reviews auction procedures and obligations. This auction is scheduled to begin on Thursday, January 24, 2008. See also, Attachment A [PDF] and Attachment B [PDF].

1/8. The Government Accountability Office (GAO) released a report [31 pages in PDF] titled "Information Security: IRS Needs to Address Pervasive Weaknesses". The report finds that the Internal Revenue Service (IRS), which "relies extensively on computerized systems", has "made limited progress toward correcting previously reported information security weaknesses". It elaborates that the "IRS continues to, among other things, use passwords that are not complex, grant excessive access to individuals who do not need it, and install patches in an untimely manner". It also states that the IRS fails to "encrypt sensitive data" and "physically protect its computer resources". It concludes that security weaknesses "threaten the confidentiality and availability of its financial and tax processing systems and information, and limit assurance of the integrity and reliability of its financial and taxpayer information". Moreover, the report concludes that the "IRS is at increased risk of unauthorized access to and disclosure, modification, or destruction of financial and taxpayer information".

Martin Luther King's Birthday. See, Office of Personnel Management's (OPM) list of 2008 federal holidays.

The House will not meet.

The Senate will not meet.

The House will meet at 12:30 PM for morning hour, and at 2:00 PM for legislative business. The House will consider several non-technology related items under suspension of the rules. Votes will be postponed at least until 6:30 PM. See, Rep. Hoyer's 2008 calendar [4.25 MB PDF] and calendar for week of January 21.

The Senate is scheduled to return from recess.

8:00 AM. Secretary of the Treasury Henry Paulson will give a speech regarding the economy, housing and credit markets. See, notice. Location: U.S. Chamber of Commerce, 1615 H St., NW.

TIME? The Federal Communications Commission (FCC) will hold a mock spectrum auction by internet and telephone in advance of its Auction Number 73, which is scheduled to begin on January 24, 2008. This is the 700 MHz band auction. See also, story titled "FCC Adopts 700 MHz Band Order" in TLJ Daily E-Mail Alert No. 1,619, July 31, 2007. And see, FCC's Public Notice [122 pages in PDF] dated October 5, 2007, and numbered DA 07-4171, and Public Notice [12 pages in PDF] dated January 14, 2008, and numbered DA 08-83.

9:00 - 10:30 AM. The Information Technology and Information Foundation (ITIF) will host an event titled "Framing a National Broadband Policy". The speakers will be Blair Levin (Stifel Nicolaus) and Robert Atkinson (ITIF). Breakfast will be served. See, notice. Location: ITIF, Suite 200, 1250 Eye St., NW.

11:30 AM - 2:00 PM. The New America Foundation (NAF) will host an event titled "Free My Phone: Is Regulation Needed to Ensure Consumer Choice". The speakers will be Michael Copps (FCC Commissioner), Walt Mossberg (Wall Street Journal), Stephen Wildstrom (Business Week), Tony Lewis (Verizon Wireless), Blair Levin (Stifel Nicolaus), Christopher Libertelli (Skype), Robert Frieden (University of Pennsylvania Law School), and Michael Calabrese (NAF). See, NAF notice. Location: Room 253, Russell Building, Capitol Hill.

12:15 - 2:00 PM. The Federal Communications Bar Association's (FCBA) Wireless Practice Committee will host lunch. The topic will be "Hot Topics in the CMRS Industry for 2008". The speakers will be Brian Fontes (VP, AT&T Services Inc.), Lawrence Krevor (VP -- Spectrum, Sprint Nextel), Grant Spellmeyer (Director -- Regulatory Affairs, US Cellular), and Thomas Sugrue (VP, T-Mobile USA). The price to attend is $15. See, notice and registration page. Location: Sidley Austin, 1501 K St., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Intellectual Property Practice Committee will host a brown bag lunch. The topic will be "Cable and Satellite Content Protection Technologies". The event is free. See, notice and registration page. Location: Dow Lohnes, 1200 New Hampshire Ave, NW.

2:00 PM. The Senate Judiciary Committee (SJC) will hold a hearing on the nominations of Kevin O’Connor (to be Associate Attorney General) and Gregory Katsas (to be Assistant Attorney General in charge of the Civil Rights Division). See, notice. Location: Room 226, Dirksen Building.

Effective date of the Copyright Royalty Judges' final 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, December 20, 2007, Vol. 72, No. 244, at Pages 72253-72256.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding its program access and retransmission consent rules and whether it may be appropriate to preclude the practice of programmers to tie desired programming with undesired programming. The FCC adopted this NPRM on September 11, 2007, and released the text [144 pages in PDF] on October 1, 2007. It is FCC 07-169, in MB Docket No. 07-198. See also, story titled "FCC Adopts R&O and NPRM Regarding Program Access Rules" in TLJ Daily E-Mail Alert No. 1,640, September 17, 2007. The original comments deadlines were November 30 and December 17, 2007. See, original notice in the Federal Register, October 31, 2007, Vol. 72, No. 210, at Pages 61590-61603. See, also notice of extended deadlines, Federal Register, December 28, 2007, Vol. 72, No. 248, at Pages 73744-73745.

The House will meet at 10:00 AM for legislative business. It will consider several non-technology related items. See, Rep. Hoyer's 2008 calendar [4.25 MB PDF] and calendar for week of January 21.

12:30 - 1:30 PM. The DC Bar Association will host closed panel discussion titled "Public Safety and Critical Infrastructure : Key Issues for 2008 and Beyond". The speakers will be Allan Manuel (FCC's Public Safety and Homeland Security), Mike Keogh (National Association of Regulatory Utility Commissioners), Patrick Halley (National Emergency Number Association), Robert Mayer (USTA). The price to attend ranges from $5 to $10. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

The House will not meet. Day one of the three day House Republican Retreat. See, Rep. Hoyer's calendar for week of January 21.

The Federal Communications Commission (FCC) will commence its spectrum Auction Number 73. This is the 700 MHz band auction. See also, story titled "FCC Adopts 700 MHz Band Order" in TLJ Daily E-Mail Alert No. 1,619, July 31, 2007. And see, the FCC's Public Notice [122 pages in PDF] dated October 5, 2007, and numbered DA 07-4171, and Public Notice [12 pages in PDF] dated January 14, 2008, and numbered DA 08-83.

9:00 AM - 5:00 PM. The Federal Communications Bar Association (FCBA) will host a continuing legal education seminar titled "Communications Law 101". See, notice and registration form [PDF]. The price to attend ranges from $95-$395. Location: Wiley Rein, 1776 K St., NW.

10:00 AM - 12:00 NOON. The Department of State's (DOS) Advisory Committee on International Communications and Information Policy (ACICIP) will hold a public meeting to discuss various upcoming international telecommunications meetings and conferences. See, notice in the Federal Register, December 28, 2007, Vol. 72, No. 248, at Page 73962. Location: Loy Henderson Auditorium, DOS, 2201 C St., NW.

12:00 NOON - 1:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a program titled "How Information Technology Can Help Fix America's Ailing Construction Industry". The speaker will be Barry LePatner. See, notice. Refreshments will be served. Location: ITIF, Suite 200, 1250 Eye St., NW.

12:00 NOON - 2:00 PM. The DC Bar Association will host panel discussion titled "Practicing Law in the E-Court of Public Opinion: How the Internet Can Make or Break a Lawyer's or Law Firm's Reputation and What You Can Do about It". The speakers will be Carolyn Elefant (www.myshingle.com), Mark Britton (Avvo.com), Andrew Mirsky (Mirsky & Company), and David Lat (AboveTheLaw.com). The price to attend ranges from $10 to $25. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

12:30 - 2:00 PM. The DC Bar Association will host a brown bag lunch on celebrity domain name arbitration. The speaker will be Neil Brown, arbitrator on the Domain Name Panel of the World Intellectual Property Organization (WIPO)'s Arbitration and Mediation Center. The price to attend ranges from free to $30. For more information, call 202-626-3463. See, notice. Location: Arnold and Porter, 555 12th St., NW.

2:00 - 4:00 PM. The National Telecommunications and Information Administration (NTIA) will host a public meeting regarding the DTV converter box program. See, NTIA notice and notice in the Federal Register, January 2, 2008, Vol. 73, No. 1, at Page 171. Location: Room 4830, Department of Commerce, 1401 Constitution Ave., NW.

2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for advice for the U.S. on positions for the February 2008 meeting of the Telecommunication Development Advisory Group (TDAG) of the International Telecommunication Union (ITU-D). See, notice in the Federal Register, December 19, 2007, Vol. 72, No. 243, at Page 71992. Location: DOS Main, Room 5804, 2201 C St., NW.

5:00 - 7:00 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a public event titled "Happy Hour" and "Comm Law 101 Postlude". For more information, contact Chris Fedeli at chrisfedeli at dwt dot com or Tarah Grant at tsgrant at hhlaw dot com. Location: Restaurant K by Alison Swope, 1700 K St., NW.

The House will not meet. Day two of the three day House Republican Retreat. See, Rep. Hoyer's calendar for week of January 21.

12:00 NOON EST - 1:30 PM. National Venture Capital Association will host a webcast seminar titled "The Latest Trends in Venture Capital Deal Terms". The speakers will include John Hession (Cooley Godward & Kronish). See, registration page. For more information, contact Sara Stark at sara at ibfconferences dot com or 763-497-2067.

12:00 NOON. Deadline to submit reply comments to the Office of the US Trade Representative (OUSTR) regarding compliance with telecommunications trade agreements. See, notice in the Federal Register, November 19, 2007, Vol. 72, No. 222, at Pages 65109-65111.

The DC Bar Association will host a panel discussion titled "China's New Anti-Monopoly Law". The speakers will be Stuart Chemtob (DOJ Antitrust Division), Mark Whitener (General Electric), Yee Wah Chin (Ingram Yuzek), Yingxi Fu-Tomlinson (Kaye Scholer), and Xiang Ji. The price to attend ranges from $10 to $35. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

The House will not meet. Day three of the three day House Republican Retreat.

The President will give a speech titled "State of the Union Address". Location: House of Representatives.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) in which it proposes to extend the current five year registration period for the Do Not Call Registry. This NPRM is FCC 07-203 in CG Docket No. 02-278. See, notice in the Federal Register, December 14, 2007, Vol. 72, No. 240, at Pages 71099-71102. See also, story titled "FCC Adopts NPRM Regarding Extending Do Not Call Registrations" in TLJ Daily E-Mail Alert No. 1,680, November 30, 2007.

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