5/7. Rep. James Langevin (D-RI) introduced HR 5983 [LOC | WW], the "Homeland Security Network Defense and Accountability Act of 2008", a bill related to information security at the Department of Homeland Security (DHS).

The bill specifies duties, qualifications, and functions of the DHS's Chief Information Officer (CIO).

The bill also provides that the DHS's CIO shall "establish security control testing protocols that ensure that the Department's information infrastructure is effectively protected against known attacks against and exploitations of Federal and contractor information infrastructure".

The bill also addresses the DHS's use of outside contractors that provide network services to the DHS.

It requires that the DHS "must determine that the contractor has an internal information systems security policy that complies with the Department's information security requirements, including with regard to authentication, access control, risk management, intrusion detection and prevention, incident response, risk assessment, and remote access, and any other policies that the Secretary considers necessary to ensure the security of the Department's information infrastructure."

The bill was referred to the House Homeland Security Committee (HHSC). See also, Rep. Langevin's release.

5/12. The U.S. Court of Appeals (9thCir) issued its third opinion [6 pages in PDF] in Taylor v. Westly, the long running action regarding California's bogus escheat schemes.

Chris Taylor is a former employee of Intel. His wife is former general counsel for Intel in Europe. He owns 52,224 shares of Intel stock. He did not die intestate, or abandon his stock. Nevertheless, California seized his stock, asserting escheat. Taylor and others filed a complaint in the U.S. District Court (EDCal) to get their stock back. California then attempted to hide behind 11th Amendment immunity.

The just released opinion does not recount the factual and procedural history of this case in detail. For further background on this litigation, see story titled "9th Circuit Rejects California's 11th Amendment Defense of Bogus Escheat of Intel Stock" in TLJ Daily E-Mail Alert No. 1,106, March 30, 2005. TLJ wrote in that story that "California's escheat procedure resembles confiscation of property by third world people's republics more than it resembles the doctrine of escheat."

In its first opinion, the Court of Appeals rejected California's claim of sovereign immunity. In a second opinion in 2007, the Court of Appeals held that California's escheat scheme is unconstitutional. The District Court, on remand, then issued an injunction against operation of this unconstitutional escheat scheme.

California then amended its escheat statute and rules, and moved to dissolve the injunction. The District Court granted the motion. And now, the Court of Appeals has affirmed.

The Court of Appeals' short opinion states that since the injunction was issued on a facial challenge to the old statute, and the new statute provides that California is required to provide pre-escheat "notice reasonably calculated, under all the circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections", it survives a facial challenge.

The Court of Appeals continued that "The Controller has hardly begun enforcing the new escheat law. We cannot say, on the record before us, that the district court abused its discretion in dissolving the preliminary injunction. Our review in this case is confined by our limited standard of review, and is not a definitive adjudication of the constitutionality of the new law and administrative procedure."

The Court of Appeals also reversed in part that portion of the District Court's judgment pertaining to the award of attorneys fees.

The 2005 opinion [22 pages in PDF] on sovereign immunity is Taylor I. The 2007 opinion [9 pages in PDF] on the unconstitutionality of the escheat scheme is Taylor II. The just released opinion may be known as Taylor III. The next opinion, on California's new statute and rules as implemented, would then be Taylor IV.

This case is Chris Taylor, et al. v. Steve Westly, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. Nos. 07-16902 and 07-17223, appeals from the U.S. District Court for the Eastern District of California, D.C. Nos. CV-01-02407-WBS/GGH and CV-01-02407-WBS/GGH, Judge William Shubb presiding. The Court of Appeals issued a per curiam opinion of Robert Beezer, Andrew Kleinfeld, and Michael Hawkins.

5/6. The U.S. Court of Appeals (4thCir) issued its opinion [10 pages in PDF] in US v. Armstead, a criminal copyright infringement case involving the sale of 300 counterfeit DVDs to an undercover federal agent. The Court of Appeals affirmed the judgment of the District Court.

Armstead sold 100 counterfeit DVDs of movies for $500, and then another 200 for $1000, to an undercover agent of the Bureau of Immigration and Customs Enforcement. The DVDs were made by using a hand held camcorder to record the films as they played in movie theaters. The movies were then available to the public legally only in theatrical release.

A grand jury returned an indictment charging Armstead with two felony counts of willful copyright infringement for private financial gain by distributing at least 10 unauthorized DVDs on each occasion, having a total retail value of more than $2,500, in violation of 17 U.S.C. § 506(a)(1) and 18 U.S.C. § 2319(b)(1).

A trial jury returned a verdict of guilty on both counts.

Armistead brought the present appeal, arguing that the total amount of his sales did not meet the minimum threshold for felony infringement.

Section 506(a)(1) provides, in part, that "Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed --- (A) for purposes of commercial advantage or private financial gain; (B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or ..."

The Section 2319(b)(1) provides that "Any person who commits an offense under section 506 (a)(1) of title 17 --- (1) shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution, including by electronic means, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, which have a total retail value of more than $2,500".

18 U.S.C. § 2311 defines "value" as "the face, par, or market value, whichever is the greatest, and the aggregate value of all goods, wares, and merchandise, securities, and money referred to in a single indictment shall constitute the value thereof".

Specifically, Armistead argued that he could not be convicted and sentenced under Section 2319(b)(1) because he sold the DVDs for a total of $1,500, which is less than $2,500.

The District Court and Court of Appeals both rejected this argument.

The Court of Appeals held that "retail value" within the meaning of Section 2319(b)(1) "refers to the value of copies of the copyrighted material at the time the defendant committed the violation and sold the copies and that the retail value is determined by taking the highest of the ``face value,´´ ``par value,´´ or ``market value´´ of copies of the copyrighted material in a retail context. See 18 U.S.C. § 2311."

Also, even though the prosecution obtained a felony conviction, the sentence was only six months of home detention.

This case is USA v. David Armstead, U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 05-5157, an appeal from the U.S. District Court for the Eastern District of Virginia, at Alexandria, D.C. No. CR-05-13, Judge Leonard Wexler presiding.

5/6. The National Football League (NFL) filed a administrative complaint with the Federal Communications Commission (FCC) against Comcast alleging discriminatory and anticompetitive behavior in violation of the Cable Act of 1992.

The NFL states in a web page titled "Truth About Cable Monopolies" that "Football fans are being held hostage: either they pay extra to subscribe to the cable company’s ``sports tier´´ and spend hundreds of dollars a year for additional channels they don’t want -- or they're totally blocked from receiving high-quality NFL football programming on NFL Network."

It adds that "Comcast, Time Warner and Cablevision have a double standards when it comes to sports channels. Channels they own, like Versus and the Golf Channel are included in the basic lineup. Independent channels like NFL Network get left out in the cold. This is unfair and anti-consumer."

47 U.S.C. § 548 addresses "Development of competition and diversity in video programming distribution" and 47 U.S.C. § 536 addresses "Regulation of carriage agreements".

Neither the NFL, nor its counsel, responded to requests from TLJ for a copy of the complaint.

5/8. The Progress & Freedom Foundation (PFF) released a paper [20 pages in PDF] titled "State Mandates for Program Carriage Dispute Resolution: Welcome to the Wide World of Regulation". The author is the PFF's Barbara Esbin.

She states that "Several state legislatures are being asked to consider adoption of legislation proposed by the NFL Network that would compel vertically integrated cable operators to submit carriage disputes with independent programmers to commercial arbitration if the parties fail to strike program carriage deals."

She adds that the NFL Network has complained that "vertically-integrated cable operators who own competing programming are treating it unfairly by seeking to place the NFL Network on a sports, rather than widely-distributed basic, digital programming tier, for which subscribers would pay extra."

Esbin states that these proposals would "effectively require vertically integrated cable operators to carry every sports, news and entertainment programming service at a price set by an arbitrator on the terms and conditions of carriage proposed by the programmer."

She argues against the creation of "new, unnecessary and undoubtedly unconstitutional state carriage mandates".

She argues that the Communications Act, as amended by the Cable Act of 1992, already provides remedies at the Federal Communications Commission (FCC).

She also argues that "State mandated arbitration would substantially increase the bargaining power of some video programming suppliers at the expense of video programming distributors. Yet, there is no demonstration of market failure supporting such one-sided interference into private commercial negotiations."

5/7. The Senate Judiciary Committee (SJC) held an executive business meeting. S 1738 [LOC | WW], the "Combating Child Exploitation Act" was on the agenda. However, it was held over. This bill is now on the agenda for the SJC's executive business meeting of May 14, 2008. S 1738 would, among other things, provide for more Department of Justice (DOJ) regional computer forensic laboratories, and provide that "crimes against children" are predicate offenses for the issuance of wiretap orders to state law enforcement agencies.

The House will meet at 2:00 PM in pro forma session. See, Rep. Hoyer's schedule for week of May 12.

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

12:00 NOON - 1:00 PM. The Heritage Foundation will host a panel discussion titled "Winning the Global Talent War: H-1B Visa Reform". The speakers will be James Sherk (Heritage), William Beach (Heritage), Kelly Hunt (U.S. Chamber of Commerce), and George Fisherman (Chief Counsel, House Judiciary Committee's Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law ). See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

TIME?. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet. The agenda may include advice for the U.S. government on the ITU World Telecommunication Standardization Assembly 2008 (WTSA 08), meetings of the Telecommunication Sector Advisory Group (TSAG), and group meetings on the International Telecommunication Regulations, cybersecurity, and other subjects. See, notice in the Federal Register, February 28, 2008, Vol. 73, No. 40, at Page 10854. Location?

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding information collection practices, and paperwork reduction, pursuant to the Paperwork Reduction Act of 1995. See, 44 U.S.C. § 3506(c)(2)(A) and notice in the Federal Register, March 12, 2008, Vol. 73, No. 49, at Pages 13211-13214.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding SP 800-116 [55 pages in PDF], titled "DRAFT A Recommendation for the Use of PIV Credentials in Physical Access Control Systems (PACS)".

The House will meet at 12:30 PM for morning hour debate, and at 2:00 PM for legislative business. Votes will be postponed until 6:30 PM. The House will consider numerous non-technology related items under suspension of the rules. See, Rep. Hoyer's schedule for week of May 12.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch titled "DTV Consumer Education Requirements: FCC Form 388 and Beyond". The speakers will be Eloise Gore (FCC) and Ann Bobeck (National Association of Broadcasters). Location: NAB, 1771 N St., NW.

The House will meet at 10:00 AM for legislative business. Rep. Hoyer's schedule for week of May 12.

9:30 AM. The Federal Communications Commission (FCC) may hold an event titled "Open Meeting". The agenda may include a Second Further Notice of Proposed Rulemaking related to the failed D Block component of Auction No. 73 (700 MHz auction), and a Fourth Memorandum Opinion and Order on narrowbanding. See, notice. Location: FCC, Commission Meeting Room, 445 12th St., SW.

RESCHEDULED FROM APRIL 21. 10:00 AM. The Securities and Exchange Commission (SEC) will meet. The agenda states that the SEC "will consider whether to propose amendments to provide for corporate financial statement information to be filed with the Commission in interactive data format, and a near- and long-term schedule therefor." See, notice of postponement. Location: SEC,  Room L-002, 100 F St., NE.

CANCELLED. 12:30 - 2:00 PM. The Progress & Freedom Foundation (PFF) will host an event titled "The Future of Broadcast Regulation: Markets or Mandates?".

The House will meet at 10:00 AM for legislative business. Rep. Hoyer's schedule for week of May 12.

10:00 AM. The Senate Commerce Committee will hold a business meeting. The agenda includes consideration of of the nomination of Lily Claffee to be General Counsel of the Department of Commerce. See, notice. Location: Room 253, Russell Building.

10:00 AM - 5:00 PM. Day one of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Cyberinfrastructure. See, notice in the Federal Register, April 11, 2008, Vol. 73, No. 71, at Page 19904. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

11:00 AM. The House Judiciary Committee's (HJC) Antitrust Task Force will hold a hearing on HR 5546, the "Credit Card Fair Fee Act of 2008". See, notice. Location: Room 2141, Rayburn Building.

12:00 NOON. The Heritage Foundation will host an event titled "U.S. International Broadcasting on the Frontlines of Freedom". The speakers will be James Glassman (Chairman of the Broadcasting Board of Governors) and Helle Dale (Heritage). Location: Heritage, 214 Massachusetts Ave., NE.

12:00 NOON - 1:30 PM. The Alliance for Public Technology (APT) and The Children's Partnership (TCP) will host a brown bag lunch titled "Information Technology Making a Difference in Children's Lives". The speakers will be Joy Howell, Laurie Lipper, and Ken Kelly. Location: APT, 10th floor, 919 18th St., NW.

2:00 PM. The Senate Committee on Foreign Relations will hold a hearing titled "U.S. China Relations in the Era of Globalization". The witnesses will be John Negroponte (Deputy Secretary of State), Richard Haass (Council on Foreign Relations), Kurt Campbell (Center for a New American Security), and Harry Harding (George Washington University). See, notice. Location: Room 419, Dirksen Building.

2:00 PM. The Senate Homeland Security and Governmental Affairs Committee's (SHSGAC) Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia will hold a hearing titled "National Security Bureaucracy for Arms Control, Counterproliferation, and Nonproliferation Part I: The Role of the Department of State". See, notice. Location: Room 342, Dirksen Building.

TIME CHANGE. 3:30 PM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of S 2913 [LOC | WW], the "Shawn Bentley Orphan Works Act Of 2008", and S 1738 [LOC | WW], the "Combating Child Exploitation Act". S 2913 degrades the remedies available to copyright owners in civil actions for infringement of copyright. S 1738 would, among other things, provide for more Department of Justice (DOJ) regional computer forensic laboratories, and provide that "crimes against children" are predicate offenses for the issuance of wiretap orders to state law enforcement agencies. The agenda also includes consideration of the nomination of Steven Agee to be a Judge of the U.S. Court of Appeals (4thCir). See, notice. The SJC rarely follows its published agendas. All three of these items were held over from the May 8 meeting. Location: Room 226, Dirksen Building.

Rep. Hoyer's schedule for week of May 12 states that "no votes are expected in the House".

8:00 AM - 12:00 NOON. Day two of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Cyberinfrastructure. See, notice in the Federal Register, April 11, 2008, Vol. 73, No. 71, at Page 19904. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

12:00 NOON - 2:00 PM. The DC Bar Association will host panel presentation titled "Arbitration of Antitrust Claims in the U.S. and Europe". The speakers will be Daniel Margolis, Mark Joelson, Donald Baker (Baker & Miller), and Gordon Blanke (SJ Berwin). The price to attend ranges from $5 to $30. For more information, contact 202-626-3463. See, notice. Location: Arnold & Porter, 10th floor, 555 12th St., NW.

9:00 AM - 12:45 PM. The Federal Communications Commission's (FCC) Public Safety and Homeland Security Bureau will host an event titled "Promoting an Effective Emergency Alert System on the Road to a Next Generation EAS". The FCC will webcast the event. Location: FCC, Commission Meeting Room, TW-C305, 445 12th St., SW.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to it Notice of Proposed Rulemaking (NPRM) regarding the Recommended Decision of the Federal State Joint Board on Universal Service, released on November 20, 2007, regarding comprehensive reform of high cost universal service taxes and subsidies. The FCC adopted this NPRM on January 15, 2008, and released the text on January 29, 2008. It is FCC 08-02 in WC Docket No. 05-337 and CC Docket No. 96-45. See, original notice in the Federal Register, March 4, 2008, Vol. 73, No. 43, at Pages 11587-11591. See also, notice [PDF] of extension (DA 08-674).

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to it Notice of Proposed Rulemaking (NPRM) regarding the use of reverse auctions to determine the amount of high cost universal service subsidies provided to eligible telecommunications carriers serving rural, insular, and high cost areas. The FCC adopted this NPRM on January 9, 2008, and released the text on January 29, 2008. It is FCC 08-05 in WC Docket No. 05-337 and CC Docket No. 96-45. See, original notice in the Federal Register, March 4, 2008, Vol. 73, No. 43, at Pages 11591-11602. See also, notice [PDF] of extension (DA 08-674).

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding the FCC's rules governing the amount of high cost universal service subsidies provided to competitive eligible telecommunications carriers (ETCs). This NPRM also tentatively concludes that the FCC should eliminate the existing identical support rule, which is also known as the equal support rule. The FCC adopted this NPRM on January 9, 2008, and released the text on January 29, 2008. It is FCC 08-04 in WC Docket No. 05-337 and CC Docket No. 96-45. See, original notice in the Federal Register, March 4, 2008, Vol. 73, No. 43, at Pages 11580-11587. See also, notice [PDF] of extension (DA 08-674).

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