6/30. The Copyright Office (CO) released a report [274 pages in PDF] titled "Satellite Home Viewer Extension and Reauthorization Act Section 109 Report".

This report does not examine §109 of the Copyright Act, regarding "Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord". Rather, this is the report required by Section 109 of the Satellite Home Viewer Extension and Reauthorization Act of 2004 (SHVERA), which was enacted in 108th Congress, in late 2004, as one component of HR 4818, an omnibus appropriations bill. It became Public Law No. 108-447.

The SHVERA is also titled the "W. J. (Billy) Tauzin Satellite Television Act of 2004".

This report pertains to the three statutory licenses in the Copyright Act that govern the retransmission of distant and local over the air broadcast station signals, which are codified in §111 (Limitations on exclusive rights: Secondary transmissions), §119 (Limitations on exclusive rights: Secondary transmissions of superstations and network stations for private home viewing) and §122 (Limitations on exclusive rights: Secondary transmissions by satellite carriers within local markets) of the Copyright Act.

§111 license permits a cable operator to retransmit both local and distant radio and television signals to its subscribers who pay a fee for such service. §119 license permits a satellite carrier to retransmit distant television signals, but not radio signals, to its subscribers for private home viewing and to commercial establishments. §122 statutory license permits satellite carriers to retransmit local television signals into the stations' local market on a royalty free basis.

The report recommends that the "Congress move toward abolishing Section 111 and Section 119 of the Act."

It reasons that "The cable and satellite industries are no longer nascent entities in need of government subsidies through a statutory licensing system. They have substantial market power and are able to negotiate private agreements with copyright owners for programming carried on distant broadcast signals."

The report also states that "the Internet video marketplace is robust and is functioning well without a statutory license. The Office concludes that the distant signal programming marketplace could be equally successful if Section 111 and Section 119 were repealed. The Office nevertheless recommends the retention of a royalty-free local-into-local license because it promotes the general welfare of users, broadcasters, and the public."

The report also states that "the digital television transition in 2009 is likely to generate unanticipated signal reception problems". It therefore recommends "the establishment of a new statutory licensing system that would cover the retransmission of distant broadcast signals beginning on January 1, 2010 and ending on December 31, 2014. This will permit users of the license to serve the needs of their subscribers who may experience viewing disruptions."

Chapter V of the report (at pages 181-200) addresses new distribution technologies. It examines three models for open distribution over the internet: (1) streaming video content that may be accessed by anyone with internet access (as is currently done by YouTube), (2) delivering video content to end users is through server downloads (as is currently done by Apple's iTunes), and (3) delivering video content by peer to peer systems.

This chapter also examines Capitol Broadcasting Company's technology that permits the retransmission of television stations' signals by cable systems over the internet or through video delivery systems that use internet protocol.

This chapter also examines delivering video content with IP technology through a closed system available only to subscribers for a monthly fee (as is currently done by AT&T).

Finally, this chapter examines video content on mobile telephones and similar devices.

The report finds "that new systems that are substantially similar to those systems that already use Section 111, should be subject to the license. Thus, systems that use Internet Protocol to deliver video programming, but are the same in every other respect to traditional cable operators, should be eligible to use Section 111 to retransmit broadcast signals, provided that these systems abide by the same broadcast signal carriage statutory provisions and FCC exclusivity requirements currently applicable to cable operators."

The report also recommends that "businesses using the Internet to deliver video programming should not be eligible for a statutory license at least at this time. First, there are serious questions about signal security that need to be addressed. Second, the United States has entered into a number of Free Trade Agreements with several international trading partners that include provisions prohibiting statutory licensing for the retransmission of broadcast content over the Internet. Third, carriage of programming on the Internet has been subject to marketplace negotiations and private licensing with some degree of success. As such, there is no market failure warranting the application of a statutory license in this context. An Internet statutory license would likely remove incentives for individuals and companies to develop innovative business models."

The report states that its principal drafter was Ben Golant, Assistant General Counsel of the CO. Tanya Sandros, General Counsel of the CO was the program manager for this project. Numerous other persons at the CO also contributed.

6/30. The U.S. Court of Appeals (9thCir) issued its opinion [10 pages in PDF] in Fisher Tool Company v. Gillet Outillage, affirming the judgment of the District Court.

In a previous action, Gillet Outillage (GO), a French company that makes hose clamp pliers, filed a complaint in U.S. District Court against Fisher Tool Company and others alleging patent infringement. After the District Court narrowly construed GO's patent claims after a Markman hearing, the case was dismissed.

In the present action, Fisher and others filed a complaint in U.S. District Court (CDCal) against GO alleging (1) that the previous action constituted malicious prosecution under California law, (2) that the GO's public allegations of patent infringement violated section 43(a) of the Lanham Act and various California tort laws, and (3) that GO violated federal antitrust laws. The District Court granted summary judgment to GO on all claims.

The Court of Appeals affirmed.

The Court of Appeals wrote that there is no malicious prosecution where, as in the present case, the defendants show that they have in good faith consulted a lawyer, have stated all the facts to him, have been advised by the lawyer that they have a good cause of action and have honestly acted upon the advice of the lawyer.

The Court of Appeals next wrote that "the Federal Circuit has held that where Lanham Act claims and state tort claims are based on a defendant’s representation that someone infringed his patent, plaintiff must show that defendant’s representation was made in bad faith. ... We adopt these holdings." (Citations to Federal Circuit opinion omitted.)

However, the Court added in a footnote that "We do not consider whether plaintiffs would have to show bad faith in order to bring a Lanham Act or state tort claim against a third party who stated that a product infringed another’s patent but who did not do so in concert with the patent-holder."

Finally, the Court of Appeals held that the antitrust claims are barred by the Noerr-Pennington doctrine. This doctrine arises from two Supreme Court opinions. See, Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) and United Mine Workers v. Pennington, 381 U.S. 657 (1965).

This case is Fisher Tool Company, Inc., et al. v. Gillet Outillage, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. Nos. 06-55996 and 06-56165, appeals from the U.S. District Court for the Central District of California, D.C. No.CV-04-07550-ABC, Judge Audrey Collins presiding. Judge Alex Kozinski wrote the opinion of the Court of Appeals, in which Judges Diarmuid O'Scannlain and William Fletcher joined.

6/30. The U.S. Court of Appeals (11thCir) issued its 7-5 en banc opinion [85 pages in PDF] in Greenberg v. National Geographic Society, a copyright case. Like the three judge panel, this en banc panel reversed the judgment of the District Court. This is a victory for the National Geographic Society (NGS) and publishers generally, and a defeat for photographers and authors.

This is a long running action involving copyright in works that have been licensed to a publisher of a collective work when that publisher decides to later include the copyrighted article or photograph in subsequent collective works, such as electronic databases, or CD versions of print publications.

TLJ published a story titled "11th Circuit Rules in Collective Work Copyright Case" in TLJ Daily E-Mail Alert No. 1,595, June 14, 2007. That story reviews the facts of the case, the applicable statutes, proceedings in the District Court, the 11th Circuit's opinions in Greenberg I and Greenberg II, the 2nd Circuit's opinion in Faulkner v. National Geographic Society, and the Supreme Court's opinion in New York Times v. Tasini.

The plaintiffs are Jerry Greenberg, an independent photographer, and his wife Idaz. The defendants are the NGS, National Geographic Enterprises, Inc., and Mindscape, Inc., a software company. Greenberg's photographs were published, pursuant to license, in four monthly issues of National Geographic magazine.

In 1997, National Geographic produced a 30 disc CDROM product titled "The Complete National Geographic" or CNG. It reproduced each monthly issue of the print magazine from 1888 through 1996, including Greenberg's pictures. However, he still holds the copyrights. The NGS did not obtain permission from Greenberg to include his pictures in CNG.

The en banc panel, like the three judge panel, followed the Supreme Court's opinion in New York Times v. Tasini and concluded that National Geographic is privileged to reproduce and distribute the CNG under the revision prong of 17 U.S.C. § 201(c).

The majority wrote that "The CNG -- albeit in a different medium than print or microform -- is a permissible reproduction of the National Geographic Magazine. Greenberg’s photographs are preserved intact in the CNG and can only be viewed as part of the original collective works in which they appeared. Similar to the microforms of Tasini, which preserve the context of multiple issues of magazines, the CNG’s digital CD-ROMs faithfully preserve the original context of National Geographic’s print issues. The CNG’s additional elements -- such as its search function, its indexes, its zoom function, and the introductory sequence -- do not deprive National Geographic of its § 201(c) privilege in that they do not destroy the original context of the collective work in which Greenberg’s photographs appear."

The CNG has three components. First, there is the replica of the print issues. Second, there is a program created by Mindscape that compresses and decompresses the images and allows users to search an electronic index. The en banc opinion addresses these. However, there is also a third component -- a 25 second segment in which ten images of actual magazine covers from past issues, including Greenberg's January 1962 cover photograph, digitally fade into one another. The three judge panel held that this is not privileged under §201(c). The en banc panel adopted this holding.

Barkett wrote the opinion of the Court of Appeals, in which Judges Dubina, Black, Carnes, Marcus, Pryor and Kravitch joined. Judges Birch, Wilson, Edmondson, Anderson, and Tjoflat dissented.

This case is Jerry Greenberg v. National Geographic Society, et al., U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 05-16964, an appeal from the U.S. District Court for the Southern District of Florida, D.C. No. 97-03924-CV-AMS.

The House will not meet. See, Rep. Hoyer's schedule for the week of July 7.

The Senate will return from it July 4th recess. It will meet at 2:00 PM for morning business. At 3:00 PM, it will resume consideration of the House message to accompany HR 3221 [LOC | WW], the "American Housing Rescue and Foreclosure Prevention Act of 2008".

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Lucent v. Gateway, App. Ct. No. 2007-1546. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Carnegie Melleon v. Hoffman-La Roche, App. Ct. Nos. 2007-1266 and 2007-1267. Location: Courtroom 201, 717 Madison Place, NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Second Further Notice of Proposed Rulemaking regarding assignment of Educational Broadband Service (EBS) spectrum in the Gulf of Mexico. The FCC adopted this item on March 18, 2008, and released the text [111 pages in PDF] on March 20, 2008. This item is FCC 08-03 in WT Docket Nos. 03-66; 03-67, and 02-68, IB Docket No. 02-364, and ET Docket No. 00-258.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Second Further Notice of Proposed Rulemaking (2ndFNPRM) regarding reauctioning the D block of the 700 MHz auction (Auction No. 73). The FCC adopted this item on May 14, 2008. See, story titled "FCC Announces NPRM for D Block Auction" in TLJ Daily E-Mail Alert No. 1,766, May 14, 2008. The FCC later released the text [101 pages in PDF]. It is FCC 08-128 in WT Docket No. 06-150 and PS Docket No. 06-229. See, notice in the Federal Register, May 21, 2008, Vol. 73, No. 99, at Pages 29581-29623.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding Verizon's and Qwest's request that the FCC grant them the same forbearance that it granted to AT&T in its April 24, 2008, Memorandum Opinion and Order [31 pages in PDF]. That MOO is FCC 08-120 in WC Docket No. 07-21 and WC Docket No. 05-342. See, notice in the Federal Register, June 12, 2008, Vol. 73, No. 114, at Pages 33430-33431.

The House will return from its July 4th recess. It will meet at 2:00 PM for legislative business. It will consider numerous non-technology related items under suspension of the rules. Votes will be postponed until 6:30 PM. See, Rep. Hoyer's schedule for the week of July 7.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Broadcom v. ITC, App. Ct. No. 2007-1164. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Kyocera Wireless v. ITC, App. Ct. No. 2007-1493. Location: Courtroom 201, 717 Madison Place, NW.

11:00 AM. The Public Knowledge (PK), Free Press (FP) and the Center for Democracy and Technology (CDT) will host a news briefing titled "Privacy, the Internet and Behavioral Advertising". The speakers will be Ari Schwartz (CDT) and Robert Topolski (consultant to the PK and FP). This briefing is scheduled for the day before the Senate Commerce Committee's (SCC) hearing titled "Privacy Implications of Online Advertising". The CDT will release at this event a paper that argues that arrangements between ISPs and ad networks to mine customer data streams for behavioral advertising could violate federal wiretap laws, which are codified at 18 U.S.C. § 2510, et seq. See also, PK and FP paper tilted "NebuAd and Partner ISPs: Wiretapping, Forgery and Browser Hijacking" and story titled "Free Press and Public Knowledge Allege More ISP Bad Behavior" in TLJ Daily E-Mail Alert No. 1,782, June 18, 2008. The call in number is 800-377-8846; the participant code is 92874158#. Location: CDT, 1634 Eye St., NW.

1:30 - 4:30 PM. The Department of Homeland Security's (DHS) National Infrastructure Advisory Council, which provides advice on critical infrastructure sectors and their information systems, will meet. This meeting may be closed to the public. See, notice in the Federal Register, June 16, 2008, Vol. 73, No. 116, at Page 34028. Location: undisclosed.

5:00 PM. The House Rules Committee will meet. Its agenda includes adopting a rule for consideration of HR 5811 [LOC | WW], the "Electronic Message Preservation Act". Location: Room H-313, Capitol Building.

The House will meet at 10:00 AM for legislative business. The House may consider HR 5811 [LOC | WW], the "Electronic Message Preservation Act", subject to a rule. See, Rep. Hoyer's schedule for the week of July 7.

8:00 AM - 5:00 PM. The Information Technology Association of America (ITAA) will host a one day conference titled "Defense 2.0: Transforming DoD Through the New Paradigm of IT". See, notice. Prices vary. Location: Ritz Carlton, Pentagon City.

9:30 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Oversight of the U.S. Department of Justice". Attorney General Michael Mukasey will testify. See, notice. Location: Room 106, Dirksen Building.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Privacy Implications of Online Advertising". See, notice. Location: Room 253, Russell Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Gammino v. Davel Communications, App. Ct. No. 2008-1089, a patent infringement action involving international call blocking technology. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Asyst Technologies v. Emtrak, App. Ct. No. 2007-1554. This is a patent case involving an inventory management system used in the production of integrated circuits Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Tavory v. NTP, App. Ct. Nos. 2007-1527 and 2008-1090, patent and copyright cases involving e-mail push software. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Broadcomm v. Qualcomm, App. Ct. No. 2008-1199. Location: Courtroom 203, 717 Madison Place, NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch titled "The Role of Trade Association Policymakers and Counsel". The speakers will be Jane Mago (National Association of Broadcasters), Jonathan Banks (USTelecom), Carolyn Brandon (CTIA), and Dan Brenner (National Cable & Telecommunications Association). For more information, contact Brendan Carr at BCarr at wileyrein dot com or Tarah Grant at tsgrant at hhlaw dot com. Location: Willkie Farr & Gallagher, 1875 K St., NW.

The House will meet at 10:00 AM for legislative business. The House may consider HR 5811 [LOC | WW], the "Electronic Message Preservation Act", subject to a rule. See, Rep. Hoyer's schedule for the week of July 7.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will hold a hearing titled "Politicization of the Justice Department and Allegations of Selective Prosecution". See, notice. Location: Room 2141, Rayburn Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in NetMoneyIn v. Verisign, App. Ct. No. 2007-1565. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Uniloc USA v. Microsoft, App. Ct. No. 2008-1121, a patent infringement case involving technology for registering software. Location: Courtroom 402, 717 Madison Place, NW.

2:30 PM. The Senate Foreign Relations Committee will hold a hearing on numerous treaties. See, notice. Location: Room 419 Dirksen Building.

The House will meet at 9:00 AM for legislative business. See, Rep. Hoyer's schedule for the week of July 7.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Cooper Technologies v. Dudas, App. Ct. No. 2008-1130. See, U.S. District Court's (EDVa) opinion [PDF] holding that the USPTO's interpretation that the term "original application" in the American Inventor's Protection Act of 1999 to include continuation applications was not arbitrary, capricious or contrary to law. Location: Courtroom 201, 717 Madison Place, NW.

12:00 NOON. The Cato Institute will host a panel discussion titled "Securing Economic Growth through Trade Facilitation". The speakers will be Simeon Djankov (World Bank) and Daniel Ikenson (Cato). Lunch will be served. See, notice and registration page. Location: Room B-339, Rayburn Building.

Deadline to submit comments to the Office of the United States Trade Representative (OUSTR) regarding the OUSTR's complaint filed with the World Trade Organization (WTO) on May 28, 2008, regarding European tariff treatment accorded to set-top boxes with a communication function, flat panel displays, input or output units, and facsimile machines. See, notice in the Federal Register, June 17, 2008, Vol. 73, No. 117, at Pages 34350-34351. See also, story titled "US and Japan File Complaints with WTO Regarding EU Duties on Tech Products" in TLJ Daily E-Mail Alert No. 1,776, June 4, 2008.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding numerous applications to change the community of AM or FM licenses. See, notice in the Federal Register, May 14, 2008, Vol. 73, No. 94, at Pages 27824-27825.

Accelerated deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding small, minority owned and women owned businesses in broadcasting. See, original notice in the Federal Register, May 16, 2008, Vol. 73, No. 96, at Page 28400-28407, and notice accelerating comment deadlines in the Federal Register, May 29, 2008, Vol. 73, No. 104, at Page 30875. The FCC adopted this NPRM on December 18, 2007, and released the text on March 5, 2008. See, NPRM [70 pages in PDF], first corrections [2 pages in PDF] and second correction [2 pages in PDF]. This NPRM is FCC 07-217 in MB Docket Nos. 07-294, 06-121, 02-277, and 04-228, and MM Docket Nos. 01-235, 01-317, and 00-244.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding whether the eligible telecommunications carrier (ETC) obligation to provide monthly digital television (DTV) transition notices to low income subscribers should be expanded to require the provision of such notices to all subscribers, and whether multichannel video programming distributors (MVPDs) should be required to provide on air DTV transition education on their systems. This FNPRM [30 pages in PDF] is FCC 08-119 in MB Docket No. 07-148. See also, correction [PDF]. See, notice in the Federal Register, May 28, 2008, Vol. 73, No. 103, at Pages 30591-30596.

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