7/11. The U.S. Court of Appeals (6thCir) issued its 9-5 en banc opinion [15 pages in PDF] in Warshak v. US, a case regarding the 4th Amendment, the Stored Communications Act (SCA), and government access to e-mail held by internet service providers (ISPs).

A three judge panel issued its opinion [20 pages in PDF] on June 18, 2007. That opinion was a major victory for proponents of privacy rights online, and a major defeat for those who oppose extending privacy rights that have long existed in the offline world to equivalents in the online space.

That opinion was the first Court of Appeals opinion to address the application of the 4th Amendment to personal e-mail accounts in the possession of an ISP. It was the first Court of Appeals opinion to sustain a facial 4th Amendment challenge to the SCA.

The government obtained orders under obsolete provisions of the SCA that enabled it to obtain from two ISPs e-mail from the personal accounts of Steven Warshak, Cincinnati, Ohio, seller of "natural supplements". The government obtained the orders under a mere relevance standard, and provided no notice to Warshak until one year latter.

He then sued the government. The District Court awarded him injunctive relief.

The three judge panel of the Court of Appeals affirmed. It held, among other things, that "individuals maintain a reasonable expectation of privacy in e-mails that are stored with, or sent or received through, a commercial ISP".

Hence, the 4th Amendment's requirement that the government must obtain a warrant based upon probable cause applies to certain stored e-mail. The Court of Appeals added that alternatively the government can give prior notice to the targeted individual. The government cannot merely rely upon the statutory procedure set out in the SCA to seize stored e-mail.

The just released en banc opinion of Court of Appeals undoes the three judge panel opinion. However, the majority opinion of the en banc opinion merely concludes in a long and tenuous argument that Warshak's claim is not ripe for judicial resolution.

Yet, this is a significant victory for the government. A central strategy of the Department of Justice in search and seizure matters involving new information and communications technologies has been to seek to avoid the establishment of judicial precedent construing obsolete and/or vague provisions in statutes.

For example, when federal magistrates or judges in one district have refused to issue orders sought by the government, or issued ruling against the government, the government has sometimes shifted the locus of its investigations or applications to other districts, rather than appeal the adverse rulings. This manner of forum shopping has been facilitated by provisions in the 2001 USAPATRIOT Act and subsequent legislation. It also hampers the development of judicial precedent that would clarify the law.

The majority's conclusion that this case lacks ripeness is hard to reconcile with the law of injunction. The facts of the case regarding the government's prior searches of Warshak's e-mail are established. The complained of acts did in fact occur. The District Court's injunction, in part, enjoins the government from committing the same acts again.

The majority reasoned that "we have no idea whether the government will conduct an ex parte search of Warshak’s e-mail account in the future and plenty of reason to doubt that it will".

But then, injunctions always enjoin future actions that have not yet occurred. The Court never knows whether a future event will take place.

Judge Boyce Martin wrote in his dissent that "In its zeal to uphold the power of the government to intrude into the privacy of citizens, the majority has forgotten where this case lies procedurally. We are merely at the preliminary injunction stage. Every day in civil litigation across this country, private parties seek preliminary injunctions against other private parties relying on past relevant wrongful conduct and the threat of future wrongful conduct. The factual record necessary to support a preliminary injunction does not have to be complete."

He added that this opinion "is but another step in the ongoing degradation of civil rights in the courts of this country."

He concluded with this: "History tells us that it is not the fact that a constitutional right is at issue that portends the outcome of a case, but rather what specific right we are talking about. If it is free speech, freedom of religion, or the right to bear arms, we are quick to strike down laws that curtail those freedoms. But if we are discussing the Fourth Amendment’s right to be free from unreasonable searches and seizures, heaven forbid that we should intrude on the government’s investigatory province and actually require it to abide by the mandates of the Bill of Rights. I can only imagine what our founding fathers would think of this decision. If I were to tell James Otis and John Adams that a citizen’s private correspondence is now potentially subject to ex parte and unannounced searches by the government without a warrant supported by probable cause, what would they say? Probably nothing, they would be left speechless."

(In 1761 James Otis appeared before a British court in Boston to challenge writs of assistance. See, 1962 essay by Richard Morris titled "Then and There the Child Independence Was Born". John Adams was present, and latter wrote about the proceeding.)

TLJ published an 86 paragraph story on the opinion of the three judge panel that includes, among other things, a summary of the facts of the case, reviews of the relevant statutes and precedents, and a more detailed statement of the issues involved.

See, story titled "6th Circuit Holds That People Have a Reasonable Expectation of Privacy in E-Mail Stored With, or Sent or Received Through, an ISP" in TLJ Daily E-Mail Alert No. 1,597, June 19, 2007.

This case is Steven Warshak v. United States of America, U.S. Court of Appeals for the 6th Circuit, App. Ct. No. 06-4092, an appeal from the U.S. District Court for the Southern District of Ohio, at Cincinnati, D.C. No. 06-00357, Judge Susan Dlott presiding.

7/14. The U.S. Court of Appeals (4thCir) issued its opinion [22 pages in PDF] in Hatfill v. New York Times, a libel action. The Court of Appeals affirmed the District Court's summary judgment for the New York Times, and its writer, Nicholas Kristof.

The Court of Appeals held that, pursuant to the Supreme Court's 1964 opinion in N.Y. Times Co. v. Sullivan, 376 U.S. 254, and its progeny, that Steven Hatfill was a "limited-purpose public figure" because he "voluntarily thrust himself into the controversy surrounding the threat of bioterrorism and the nation's lack of preparedness for a bioterrorism attack".

Hence, he would have to show "actual malice" -- that is, a subjective awareness of probable falsity of the publication. And, since Hatfill could not prove actual malice, the defendants are entitled to summary judgment.

This case is Steven Hatfill v. New York Times Company and Nicholas Kristof, U.S. Court of Appeals for the 4th Circuit, App. Ct. Nos. 07-1124 07-1162, appeals from the U.S. District Court for the Eastern District of Virginia, at Alexandria, D.C. No. 1:04-cv-00807, Judge Claude Hilton presiding.Judge Niemeyer wrote the opinion of the Court of Appeals, in which Judges Michael and Arlen Beam, sitting by designation, joined.

In contrast, Hatfill prevailed in his suit against the US government, which provided journalists with false information about him.

On June 27 the Department of Justice (DOJ) announced that it settled with Hatfill, and that the terms of the settlement provide for the US to pay Hatfill and his attorneys $2.825 Million and purchase for Hatfill an annual annuity of $150,000. See, story titled "US to Pay Hatfill in Anthrax Case" in TLJ Daily E-Mail Alert No. 1,788, July 1, 2008.

7/14. The U.S. Court of Appeals (9thCir) issued its opinion [15 pages in PDF] in USA v. Whitehead, a DMCA circumvention case involving counterfeit DirecTV access cards. The Court of Appeals affirmed the District Court's conviction, and its no jail time sentence.

Thomas Whitehead sold over $1 Million (measured by lost profits) in counterfeit access cards that enabled purchasers to access DirecTV's digital satellite feed without paying for it.

The jury returned a verdict of guilty to circumvention in violation of the Digital Millennium Copyright Act (DMCA). The District Court sentenced Whitehead to community service and restitution, but no incarceration.

Statute. 17 U.S.C. § 1201(a)(1) provides, in part, that "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."

Notably, subsection 1201(a)(1) conspicuously omits any requirement that the party employing the technological measures have authority from the copyright holder(s) either to employ the technological measures, or to copy the copyright holders' works.

The statute adds that the words "this title" refer to Title 17 of the U.S. Code, which codifies copyright law. Thus, the protected works must be subject to copyright. But, the plain meaning of the statute is that the party employing the protection measures need not be the copyright holder.

Subsection 1201(a)(3)(B) provides definitions. It provides that "a technological measure ``effectively controls access to a work´´ if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work."

Subsection 1201(a)(2)(A) provides that "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that ... is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title".

17 U.S.C. § 1204 provides criminal penalties for "Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain".

Court of Appeals. The Court of Appeals heard cross appeals. Whitehead appealed his conviction. The government appealed the District Court's decision not to impose any time in prison.

The Court of Appeals affirmed the judgment of the District Court on both issues.

Whitehead argued that it was error that both the indictment and the jury instructions omitted one element of the offense -- that the technological measures circumvented by the defendant were put in place with the authority of the copyright owner.

This element is not included in the relevant sections of the statute. Hence, the Court of Appeals affirmed. Unfortunately, while the entire opinion and dissent run to 15 pages, the Court devoted only one vaguely worded paragraph to this subject. It wrote, in full, as follows:

"Whitehead argues that his conviction under 17 U.S.C. § 1201 must be reversed because the indictment and jury instructions omitted an element of the offense, namely, that the technological measures he circumvented were put in place ``with the authority of the copyright owner.´´ See 17 U.S.C. § 1201(a)(3)(B) (defining when a technological measure ``effectively controls access to a work´´). But the indictment quoted and cited section 1201(a)(2)(A), and thereby ``adequately apprised the defendant of the charge[ ]´´; any mistake here was ``minor or technical´´ and doesn't require reversal. United States v. Severino, 316 F.3d 939, 943 (9th Cir. 2003) (internal quotation marks and citation omitted). And the jury instructions defined ``technological measure´´ using section 1201(a)(3)(B)'s exact language. Neither the indictment nor the instructions were erroneous." (Parentheses and brackets in original.)

Thus, the Court held that in a criminal prosecution for violation of the DMCA anti-circumvention provisions, the government need not allege or prove that the party whose technological measures were circumvented had authority from the copyright holder to use those technological measures. This is consistent with both the plain meaning and drafters' understanding of the statute.

TLJ Analysis. Consider the ramifications of such a holding for civil actions to enforce copyrights. The logical extension of this opinion would be that in civil actions brought by aggregators / distributors of content, such as DirecTV, record companies, and movie studios, against circumventors / counterfeiters, the plaintiffs need not prove authority from the copyright holders to use technological measures to protect the content. This too would be consistent with the plain meaning and drafters' understanding of the statute.

But, consider also the implications of this opinion in the context of allocation of rights and remedies between creators / copyright holders and aggregators / distributors.

Just as the statute does not require that an aggregator whose product is protected by technological measures allege or prove that it had authority from the copyright holder to use those technological measures, the statute does not require that the aggregator prove that it either holds copyrights in the works wrapped in technological measures, or has license from the copyright holders.

For example, if an aggregator distributes infringing copies, that are wrapped in technological measures, not only can a subsequent circumventer / infringer not defend on the basis of lack of authority to copy and protect, the copyright holder who circumvents (to access his own unlicensed work) cannot defend on the basis that he gave no authority.

As another example, if HR 5889 [LOC | WW], the "Orphan Works Act of 2008", were to become law, then the works of some creators may be aggregated into larger digital works or collections, without license from the creators, that are then distributed with technological measures, under circumstances in which the creators will have no effective injunctive remedy against the infringer. Yet the distributor would have effective remedies against those who circumvent.

The Orphan Works Act would limit remedies for infringement of copyright, but not remedies available under the anti-circumvention provisions of the DMCA.

If the DMCA's Section 1201 is to be construed literally, as the Court of Appeals appears to have done in the present case, and if the Congress proceeds to limit remedies for infringement, but maintain remedies for circumvention, then one consequence may be that for certain types of works, the ability of creators to exclude will be diminished, while the ability of distributors who utilize technological measures to protect the same works, whether with or without license, will be increased.

Copyright ownership would remain unchanged. But the extent to which such ownership is real, rather than nominal, would be lessened.

Property rights subsist in their attributes. The fundamental attribute of property rights in both patent and copyright is the right to exclude. In the case of copyright, remedies that provide the power to exclude may in some cases shift, away from creators, and in favor of commercial enterprises that exploit creative works. However, there will be no payments for these transfers.

In conclusion, this analysis, if it has any merit, suggests there may be a trend underway, for certain types of works, and certain circumstances, of transferring the power to exclude, and in effect, copyright-like rights, from creators to exploiters who utilize technological measures.

This article offers no analysis here of the policy merits of such a development.

Dissent. Judge Bybee dissented, but only on the sentencing issue. He noted first that under the sentencing guidelines, Whitehead would have received a sentence of from 41 to 51 months.

He wrote that "This was not an exercise of discretion so much as an abdication of responsibility." He concluded that Whitehead deserved 33 months in prison.

Bybee did not dissent on the affirmance of the conviction.

Case Information. This case is USA v. Thomas Michael Whitehead, U.S. Court of Appeals for the 9th Circuit, App. Ct. Nos. 05-50458 and 05-50506, appeals from the U.S. District Court for the Central District of California, Judge Christina Snyder presiding, D.C. No. CR-03-00053-CAS-1.

A three judge panel of the Court of Appeals issued this per curiam opinion. One judge, Jay Bybee dissented. The two judges who joined in the per curiam opinion are Diarmuid O'Scannlain and Alex Kozinski.

Judge Kozinski. The Court of Appeals decided an appeal regarding Whitehead's misconduct on the internet. One of the two judges who affirmed the no jail time sentence for Whitehead is currently under investigation himself for internet based judicial misconduct.

Judge Kozinski published pornographic pictures on the web. See, story by Scott Glover titled "9th Circuit’s chief judge posted sexually explicit matter on his website" published in the Los Angeles Times on June 11, 2008. Attempts to access Judge Kozinski's web site (alex.kozinski.com) now produce an error message. Although, the Los Angeles Times story describes the content of some of the pictures.

See also, 9th Circuit order requesting the Chief Justice to reassign this proceeding, and letter of the Chief Justice transferring this judicial misconduct proceeding from the 9th Circuit to the 3rd Circuit.

Perhaps it should also be noted that Judge Kozinski wrote the April 3, 2008, en banc opinion [54 pages in PDF] of the Court of Appeals in FHCSFV v. Roommates.com, a Section 230 immunity case. He also wrote the May 15, 2007, three judge panel opinion [23 pages in PDF]. Both opinions have been widely criticized in information technology communities. See also, story titled "9th Circuit Holds Roommates.com May be Liable for Speech of Users" in TLJ Daily E-Mail Alert No. 1,581, May 15, 2007; story titled "9th Circuit to Rehear Section 230 Case En Banc" in TLJ Daily E-Mail Alert No. 1,657, September 18, 2007; and story titled "En Banc 9th Circuit Panel Rejects Section 230 Immunity in Roommates.com Case" in TLJ Daily E-Mail Alert No. 1,741, April 2, 2008.

The House will meet at 9:00 AM for morning hour, and at 10:00 AM for legislative business. The House will consider numerous non-technology related items under suspension of the rules. See, Rep. Hoyer's schedule for week of July 14, and schedule for July 15.

The Senate will meet at 10:00 AM for morning business. It will then resume consideration of S 2731 [LOC | WW], the "Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008".

9:00 AM. The Information Technology and Innovation Foundation (ITIF) will host a breakfast book discussion. The speakers will be Richard Lipsey, author of the book [Amazon] titled "Economic Transformations: General Purpose Technologies and Long Term Growth", and Robert Atkinson (ITIF). See, notice. Location: ITIF, Suite 200, 1250 Eye St., NW.

10:00 AM. The House Homeland Security Committee's (HHSC) Subcommittee on Emergency Communications, Preparedness and Response will hold a hearing titled "Assessing the Framework and Coordination of the National Emergency Communications Plan". The witnesses will be Robert Jamison (Department of Homeland Security), Chris Essid (DHS), Richard Mirgon (Douglas County, Nevada), Charles Werner (Charlottesville, Virginia Fire Department), and Michael Alagna (Motorola). See, notice. The HHSC will webcast this hearing. Location: Room 311, Cannon Building.

10:00 AM. The House Science Committee (HSC) will hold a hearing titled "The Role of Non-Governmental Organizations and Universities in International Science and Technology Cooperation". Location: Room 2318, Rayburn Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "International Enforcement of Intellectual Property Rights and American Competitiveness". The witnesses will be Andrew Lack (Chairman, Sony BMG Music Entertainment), Jeffrey Kindler (Ch/CEO of Pfizer Inc.), John Barton (Stanford Law School), Walter Cahill (International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts). See, notice. Location: Room 215, Dirksen Building.

10:00 AM. The Senate Banking Committee (SBC) will hold a hearing titled "The Semiannual Monetary Policy Report to the Congress". The witness will be Ben Bernanke, Chairman of the Federal Reserve Board. See, notice. Location: Room 325, Russell Building.

10:00 AM. The Senate Homeland Security and Governmental Affairs Committee will hold a hearing on the nomination of Gus Coldebella to be General Counsel of the Department of Homeland Security (DHS). See, notice. Location: Room 342, Dirksen Building.

10:30 AM. The Senate Judiciary Committee's (HJC) Subcommittee on Antitrust, Competition Policy and Consumer Rights will hold a hearing titled "The Google Yahoo Agreement and the Future of Internet Advertising". The witnesses will be David Drummond (Google), Michael Callahan (General Counsel of Yahoo), Brad Smith (SVP & General Counsel of Microsoft), Matthew Crowley (Yellowpages.com), and Tim Carter (P/CEO of Askthebuilder.com). See, notice. Location: Room 226, Dirksen Building.

12:00 NOON - 1:00 PM. The Center for American Progress (CAP) will host a discussion of the book [Amazon] titled "Arts, Inc.: How Greed and Neglect Have Destroyed Our Cultural Rights". This book contains a criticism of copyright law. The speakers will be Bill Ivey (the author), Robert Lynch (America for the Arts) and Sally Steenland (CAP). See, notice. A light lunch might be served. Location: CAP, 10th floor, 1333 H St., NW.

12:30 PM. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will meet to mark up three bills, including HR 3010 [LOC | WW], the "Arbitration Fairness Act of 2007". See also, story titled "House Subcommittee Holds Hearing on Limiting Arbitration of Consumer Disputes" in TLJ Daily E-Mail Alert No. 1,663, October 26, 2007, and story titled "House Judiciary Committee to Hold Hearing on Arbitration Fairness Act" in TLJ Daily E-Mail Alert No. 1,658, October 19, 2007. Location: Room 2237, Rayburn Building.

1:30 PM. The House Judiciary Committee's (HJC) Antitrust Task Force may hold a hearing titled "Competition on the Internet". The HJC will webcast this hearing. See, notice. Location: Room 2141, Rayburn Building.

2:30 PM. The House Rules Committee (HRC) will meet to adopt a rule for consideration of HR 5959 [LOC | WW], the "Intelligence Authorization Act for Fiscal Year 2009". Location: Room H-313, Capitol Building.

CHANGED TO JUNE 30. Deadline to submit initial 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, notice in the Federal Register, May 16, 2008, Vol. 73, No. 96, at Page 28400-28407. 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. See, notice accelerating comment deadlines in the Federal Register, May 29, 2008, Vol. 73, No. 104, at Page 30875.

The House will meet at 10:00 AM for legislative business. The House may consider HR 5959 [LOC | WW], the "Intelligence Authorization Act for Fiscal Year 2009", subject to a rule. See, Rep. Hoyer's schedule for week of July 14.

TIME? Day one of a two day hearing of the U.S.-China Economic and Security Review Commission titled "Research and Development and Technological Advances in Key Industries in China". Location?

8:30 - 10:30 AM. The Institute for Policy Innovation (IPI) will host an event titled "Broadband Gets Personal: An International Perspective on Mobile Broadband". The speakers will be David Gross (Deputy Assistant Secretary of State for International Communications & Information Policy), Matthew Kirk (Vodafone), Kathleen Abernathy (Akin Gump), Barry Aarons (IPI), Massimiliano Trovato (Fellow, Istituto Bruno Leoni), David Jeppsen (NTT DoCoMo). RSVP to Erin Humiston at 972-874-5139 or erin at ipi dot org. Breakfast will be served. Location: Lisagor Room, National Press Club, 13th Floor, 529 14th St., NW.

10:00 AM. The House Foreign Affairs Committee will meet to mark up several items, including HRes 1069, a resolution condemning the use of children's television programming by Hamas' Al-Aqsa TV to indoctrinate hatred, violence, and anti-Semitism toward Israel. Location: Room 2172, Rayburn Building.

10:15. The House Judiciary Committee (HJC) will meet to mark up eight bills, including HR 4081 [LOC | WW], the "Prevent All Cigarette Trafficking Act of 2007" or "PACT Act", a bill that would affect internet sales of tobacco products. This bill is in part a reaction to the litigation that culminated in the Supreme Court's February 20, 2008, opinion [17 pages in PDF] in Rowe v. New Hampshire Motor Transport Association. See, story titled "Supreme Court Affirms in Rowe v. New Hampshire Motor Transport Association" in TLJ Daily E-Mail Alert No. 1,720, February 20, 2008. The HJC will webcast this meeting. Location: Room 2141, Rayburn Building.

12:00 NOON - 1:30 PM. The Alliance for Public Technology (APT) will host a brown bag lunch titled "The Telehealth Promise: Better Health Care and Cost Savings for the 21st Century". The speakers will be Jonathan Linkous (American Telemedicine Association), Alexander Vo (University of Texas Medical Branch), and Joy Howell (APT). See, notice. Location: APT, 10th floor, 919 18th St., NW.

6:00 - 9:15 PM. The DC Bar Association will host a program titled "Antitrust Investigations: Tactical and Ethical Issues". The speakers will be Kathryn Fenton (Jones Day), Ray Hartwell (Hunton & Williams), Donald Klawiter (Mayer Brown), and James Fredricks (Department of Justice). The price to attend ranges from $80 to $115. For more information, contact 202-626-3488. This event qualifies for continuing legal education (CLE) credits. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

EXTENDED TO AUGUST 11. Deadline to submit reply comments to Federal Communications Commission (FCC) in response to its further notice of proposed rule making (FNPRM) regarding service rules for licensed fixed and mobile services, including Advanced Wireless Services (AWS), in the 1915-1920 MHz, 1995-2000 MHz, 2155-2175 MHz, and 2175-2180 MHz bands. See, notice in the Federal Register, June 25, 2008, Vol. 73, No. 123, at Pages 35995-36013. See, notice of extension in the Federal Register, July 14, 2008, Vol. 73, No. 135, at Pages 40271-40272.

The House will meet at 10:00 AM for legislative business. The House may consider HR 5959 [LOC | WW], the "Intelligence Authorization Act for Fiscal Year 2009", subject to a rule. See, Rep. Hoyer's schedule for week of July 14.

TIME? Day two of a two day hearing of the U.S.-China Economic and Security Review Commission titled "Research and Development and Technological Advances in Key Industries in China". Location?

9:30 AM. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing titled "What Your Broadband Provider Knows About Your Web Use: Deep Packet Inspection and Communications Laws and Policies". The HCC will webcast the hearing. Location: Room 2123, Rayburn Building.

TIME CHANGE. 11:30 AM. 10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of S 2746 [LOC | WW], the "OPEN FOIA Act of 2008". The SJC rarely follows its published agendas. Location: Room 226, Dirksen Building.

1:00 - 4:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) American Health Information Community Electronic Health Records Workgroup will hold a meeting. See, notice in the Federal Register, June 20, 2008, Vol. 73, No. 120, at Page 35138. Location: Switzer Building, Conference Room 1114, 330 C St., SW.

6:00 PM. Deadline to submit upfront payments to the Federal Communications Commission (FCC) for Auction 78, the AWS-1 and Broadband PCS auction. See, Public Notice (DA 08-1090) and notice in the Federal Register, May 29, 2008, Vol. 73, No. 104, at Pages 30919-30938.

6:30 - 8:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Happy Hour". For more information, contact David Redl at dredl at ctia dot org, Marlo Go at mgo at ctia dot org or Cathy Hilke at CHilke at wileyrein dot com. Location: Marvin, 2007 14th St., NW.

Deadline to submit initial comments to the Copyright Office (CO) in response to its proposed rule changes regarding retransmission of digital television broadcast signals by cable operators pursuant to 17 U.S.C. § 111. See, notice in the Federal Register, June 2, 2008, Vol. 73, No. 106, at Pages 31399-31415.

Deadline to submit initial comments regarding broadband availability mapping (BAM) to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding BAM and modifications to the FCC Form 477 data collection. The FCC adopted this FNPRM on March 19, 2008, but did not release the text [81 pages in PDF] until June 12, 2008. It is FCC 08-89 in WC Docket No. 07-38.See, notice in the Federal Register, July 2, 2008, Vol. 73, No. 128, at Pages 37911-37922. See also, story titled "FCC Adopts Order Regarding Broadband Data Collection" in TLJ Daily E-Mail Alert No. 1,734, March 20, 2008.

Rep. Hoyer's schedule for week of July 14 states that "no votes are expected in the House".

3:00 PM. Deadline to submit applications for grants to the National Institute of Standards and Technology (NIST) for construction of research science buildings. See, notice in the Federal Register, May 27, 2008, Vol. 73, No. 102, at Pages 30380-30381.

12:30 - 1:30 PM. The DC Bar Association will host a panel discussion titled "Will Orphan Works Finally Find a Home". The topic is HR 5889 [LOC | WW], the "Orphan Works Act of 2008". The speakers will be Allan Adler (Association of American Publishers), Gigi Sohn (Public Knowledge), Victor Perlman (American Society of Media Photographers), Joe Keeley (Arent Fox), and Maria Pallante (Copyright Office). See also, Joe Keeley's web site OrphanWorks.net. The price to attend ranges from $20 to $30. For more information, contact 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

2:00 PM. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing titled "Issues in Telecommunications Competition". This hearing will also address HR 3914 [LOC | WW], the "Protecting Consumers through Proper Forbearance Procedures Act". The HCC will webcast this hearing. Location: Room 2123, Rayburn Building.

7/14. Arthur Brooks was selected by the American Enterprise Institute's (AEI) Board of Trustees to be its next President. He is currently a professor at Syracuse University and a visiting scholar at the AEI. He will replace Christopher DeMuth, who has been President of the AEI since 1986, on January 1, 2009.

7/14. Meridith Mitchell was named Deputy General Counsel for Legal Policy and Administrative Practice at the Securities and Exchange Commission (SEC). She replaces Alexander Cohen, who is now the SEC's Deputy Chief of Staff. See, SEC release.

7/11. President Bush named Ashok Pinto to be Associate Counsel to the President. See, White House release.

7/11. President Bush named Ryan Bounds to be Special Assistant to the President for Domestic Policy. Previously, he worked in the U.S. Attorney's Office for the District of Columbia, and in the Department of Justice's (DOJ) Office of Legal Policy (OLP). See, White House release.

7/9. Elisse Walter took the oath of office to become a Commissioner of the Securities and Exchange Commission (SEC). See, SEC release.

7/14. The Copyright Office (CO) published a notice in the Federal Register announcing that it has extended the deadlines to submit comments in response to its Notice of Proposed Rulemaking (NPRM) regarding the retransmission of digital television broadcast signals by cable operators under 17 U.S.C. § 111. The new deadline to submit initial comments is July 31, 2008. The new deadline to submit reply comments is September 16, 2008. See, Federal Register, July 14, 2008, Vol. 73, No. 135, at Page 40203. The previous deadlines were July 14 and September 2. See, old notice in the Federal Register, June 2, 2008, Vol. 73, No. 106, at Pages 31399-31415. The reason for this extension is the recent release by the CO of its Section 109 Report to Congress. See, report [274 pages in PDF] titled "Satellite Home Viewer Extension and Reauthorization Act Section 109 Report", and story titled "Copyright Office Releases Section 109 Report" in TLJ Daily E-Mail Alert No. 1,789, July 7, 2008. The National Cable and Telecommunications Association (NCTA) requested this extension.

7/14. The Copyright Office (CO) published a notice in the Federal Register that announces the receipt of six notices of intent to audit various eligible nonsubscription and new subscription services that transmit sound recordings under statutory licenses. SoundExchange submitted the notices. They pertain to Yahoo, Real Networks, AOL, MTV Networks, Susquehanna Radio Corp., and Last.fm. See, Federal Register, July 14, 2008, Vol. 73, No. 135, at Page 40392.

7/14. The Federal Trade Commission (FTC) published in its web site a section titled "FTC Guide to the Antitrust Laws".

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