8/12. David Rehr, head of the National Association of Broadcasters (NAB), sent a letter [PDF] to Kevin Martin, Chairman of the Federal Communications Commission (FCC), regarding a resolution adopted by the NAB's Television Board of Directors concerning transitioning to digital television.

This resolution states that "... NAB's Television Board of Directors and their member companies hereby commit, on a voluntary basis, to continue to make available to all their distribution partners those broadcast signals being provided as of February 4, 2009; for a period of time beginning on February 4, 2009 through March 4, 2009 -- a full two weeks prior to and after the DTV transition date of February 17, 2009. In addition, the TV board is making every effort to secure the same voluntary commitment from the television broadcast industry, including NAB's television members, the networks and the network affiliate stations."

This resolution also lists which NAB members have endorsed this resolution.

Kyle McSlarrow, head of the National Cable & Telecommunications Association (NCTA) responded in a release that "In recent months, we have discussed with NAB the need to recognize the potential for consumer confusion and disruption involved with retransmission consent disputes that might arise as we approach the broadcasters' digital TV transition on February 17, 2009. We appreciate NAB's acknowledgment that this is a very real concern, and continue to support efforts to minimize potential consumer confusion through the adoption of a quiet period."

However, he continued that "the reality is that many outstanding retransmission consent agreements expire by the end of 2008. Any voluntary quiet period that does not begin before the agreements actually expire -- or which is too brief to preclude potentially confusing messages about broadcast carriage during the time of the actual DTV transition -- represents the illusion of a commitment and does not serve the consumer."

Matthew Polka, head of the American Cable Association (ACA), stated in a release that the ACA "welcomes the actions of some members of the National Association of Broadcasters for a retransmission consent ``quiet period´´ during the 2009 DTV transition. Retransmission consent disputes harm consumers, and ACA appreciates this step. Taking retransmission consent disputes off the table before the DTV transition and for a reasonable time afterward will benefit cable customers and television viewers everywhere and encourage a smoother transition to digital television."

He added that "While we appreciate those NAB members' willingness to embrace a retransmission consent quiet period, a start date of Feb. 4, 2009, is simply too late and will not go far enough to protect consumers, whose signals could be pulled by broadcasters before Feb. 4. ACA believes that a quiet period should begin no later than Jan. 1, 2009, if not earlier, and run through May 31, 2009, to ensure consumers are not confused or lose broadcast signals during this critical transition period, and ACA urges prompt FCC action to require such a quiet period."

He concluded that "FCC action is necessary to implement a quiet period for all broadcasters and cable operators. The pledge announced today by some NAB members, while appreciated, does not cover all broadcasters, many of whom are in markets served by ACA's members."

On April 24, 2008, Cequel Communications, Charter Communications, GCI Cable, Insight Communications, and Mediacom Communications filed a Petition for Expedited Rulemaking [23 pages in PDF] with the FCC requesting FCC to initiate a quiet period rulemaking.

8/11. Tiffany announced in a release that it has filed an appeal with the U.S. Court of Appeals (2ndCir) of the judgment of the U.S. District Court (SDNY) in Tiffany v. eBay, a trademark case.

Tiffany, Inc. and Tiffany and Company, jewelry companies, filed their original complaint in the District Court on June 14, 2004, against eBay, which operates an auction web site.

Tiffany does not allege that eBay makes counterfeit Tiffany products. Rather, Tiffany asserts that eBay is liable for the sale of counterfeit Tiffany products by eBay users.

Tiffany alleged six claims in its amended complaint: direct and contributory trademark infringement in violation of 15 U.S.C. § 1114(1) and 15 U.S.C. § 1116(d), trademark infringement and the use of false descriptions and representations in violation 15 U.S.C. § 1125(a)(1)(A) and (B), direct and contributory trademark infringement under common law, direct and contributory unfair competition under common law, trademark dilution in violation of Section 15 U.S.C. § 1125(c), and trademark dilution in violation of New York General Business Law § 360-1.

The District Court held, in its July 14, 2008, opinion [66 pages in PDF], that "eBay is not liable for contributory trademark infringement."

The Court wrote that "In determining whether eBay is liable, the standard is not whether eBay could reasonably anticipate possible infringement, but rather whether eBay continued to supply its services to sellers when it knew or had reason to know of infringement by those sellers."

The District Court elaborated that "Here, when Tiffany put eBay on notice of specific items that Tiffany believed to be infringing, eBay immediately removed those listings. eBay refused, however, to monitor its website and preemptively remove listings of Tiffany jewelry before the listings became public. The law does not impose liability for contributory trademark infringement on eBay for its refusal to take such preemptive steps in light of eBay’s “reasonable anticipation” or generalized knowledge that counterfeit goods might be sold on its website. Quite simply, the law demands more specific knowledge as to which items are infringing and which seller is listing those items before requiring eBay to take action."

The District Court added that "Tiffany must ultimately bear the burden of protecting its trademark".

James Swire, a lawyer with Tiffany's law firm, Arnold & Porter, stated in the release that "we do not believe the law allows auction sites like eBay to continue to turn a blind eye to this problem while reaping profits from the listing and sale of counterfeit merchandise. Trademark law does not impose a duty on Tiffany to police eBay's site: eBay designed the site and has the responsibility to police it."

8/12. The Center for American Progress (CAP) and the Center for Democracy and Technology (CDT) released a joint report [44 pages in PDF] titled "Online Consumers At Risk and the Role of State Attorneys General". The report urges states to do more to investigate and prosecute online fraud.

It states that "Currently, there is insufficient incentive against committing online fraud and abuse. Internet crime requires almost no expense to execute, carries potentially high financial rewards, and involves relatively little risk of being caught and punished. It is thus unsurprising that online fraud and abuse are at such high levels. What’s needed now is a stronger deterrent. Through committed action and vigorous enforcement, state attorneys general can help provide one."

It argues that the benefits of internet commerce "are being threatened by the rise in Internet fraud and abuse".

The report recommends that states "Devote greater resources to Internet enforcement efforts", "Train investigators and prosecutors on how to identify online fraud and abuse", and "Develop computer forensic capabilities to trace and catch Internet fraudsters", among other things.

The authors are Reece Rushing (CAP), Ari Schwartz and Alissa Cooper (CDT).

8/12. The International Court of Justice in the Hague, Netherlands, announced in a release that the Republic of Georgia filed a complaint against Russia alleging violation of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination in connection with war crimes associated with Russia's invasion of Georgia.

Also, various news media have reported that Russia launched cyber attacks on Georgia. See for example, story in CNET by Tom Espiner titled "Georgia accuses Russia of coordinated cyberattack".

Google issued a release on August 12 in which it rebutted statements regarding removal of maps for Georgia, Azerbaijan, and Armenia. It wrote that "Data for these countries were never on Google Maps in the first place." It also wrote that "we never launched coverage in those countries because we simply weren't satisfied with the map data we had available".

The House will not meet.

The Senate will not meet.

The Federal Communications Commission (FCC) will commence 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.

9:00 AM - 12:15 PM. The DC Bar Association will host a panel discussion titled "Legal Cybersleuth's Guide to Investigative Research". The speakers will be Carole Levitt and Mark Rosch (both of Internet For Lawyers). The price to attend ranges from $109 to $149. For more information, contact 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

12:00 NOON - 1:30 PM. The Center for American Progress (CAP) will host an event titled "A Progressive Strategy Toward China". The speakers will be Stapleton Roy (Kissinger Associates), Harry Harding (George Washington University), Michael Schiffer (Stanley Foundation), Robert Sussman (CAP), and Nina Hachigian (CAP). See, notice. Location: CAP, 10th floor, 1333 H St., NW.

6:00 - 9:15 PM. Part two of a two part continuing legal education (CLE) seminar hosted by the DC Bar Association titled "Software Patent Primer: Acquisition, Exploitation, Enforcement, and Defense". The speakers will be Martin Zoltick (Rothwell Figg), Stephen Parker (Watchstone P&D), Brian Rosenbloom (Rothwell Figg), and David Temeles (Bean Kinney & Korman). The price to attend ranges from $105 to $160. For more information, call 202-626-3488. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

The House will not meet.

The Senate will not meet.

10:00 AM - 4:00 PM. The U.S.-China Economic and Security Review Commission will hold a public meeting to work on its 2008 Annual Report to Congress. See, notice in the Federal Register, July 29, 2008, Vol. 73, No. 146, at Pages 43978-43979. Location: Conference Room 333, Hall of the States, 444 North Capitol St., NW.

6:00 PM. Extended end of settlement period for the Federal Communications Commission's (FCC) Auction 85, regarding LPTV and TV Translator Digital Companion Channels. See, Public Notice [PDF] of extension of settlement period, and notice in the Federal Register, August 7, 2008, Vol. 73, No. 153, at Page 46005.

Deadline to file Petitions to Participate and the accompanying $150 filing fee with the Copyright Royalty Judges regarding its proceeding to determine the Phase I distribution of 2004 and 2005 royalties collected under the cable statutory license. See, notice in the Federal Register, July 15, 2008, Vol. 73, No. 136, at Pages 40623-40624.

Deadline to file a Petition to Participate and the accompanying $150 filing fee with the Copyright Royalty Judges in connection with its proceeding to determine the Phase I distribution of 2004 and 2005 royalties collected under the cable statutory license. See, notice in the Federal Register, July 15, 2008, Vol. 73, No. 136, at Pages 40623-40624.

The House will not meet.

The Senate will meet at 10:00 AM in pro forma session only.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its SP 800-41 Rev. 1 [43 pages in PDF] titled "Guidelines on Firewalls and Firewall Policy".

EXTENDED TO AUGUST 28. Deadline to submit initial comments to the Copyright Office in response to its notice of proposed rulemaking regarding the scope and application of the Section 115 compulsory license to make and distribute phonorecords of a musical work by means of digital phonorecord deliveries. See, original notice in the Federal Register, July 16, 2008, Vol. 73, No. 137, at Pages 40802-40813. See also, extension notice in the Federal Register, August 13, 2008, Vol. 73, No. 157, at Pages 47113-47114.

Deadline to submit comments to the Bureau of Industry and Security (BIS) in response to its Notice of Inquiry (NOI) regarding recommendations made by the Deemed Export Advisory Committee (DEAC) with respect to BIS's deemed export licensing policy. The BIS seeks comments on, among other things, whether the scope of technologies on the Commerce Control List (CCL) that are subject to deemed export licensing requirements should be narrowed, and if so, which technologies should be subject to deemed export licensing requirements. See, notice in the Federal Register, May 19, 2008, Vol. 73, No. 97, at Pages 28795-28797.

Deadline to submit comments to the Federal Bureau of Investigation (FBI) in response to it notice of proposed rulemaking (NPRM) regarding fees for providing fingerprint based and name based Criminal History Record Information (CHRI) checks and other identification services for noncriminal justice purposes including employment and licensing. See, notice in the Federal Register, June 19, 2008, Vol. 73, No. 119, at Pages 34905-34913.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking (NPRM) regarding revisions to its rules of practice to adjust the transmittal and search fees for international applications filed under the Patent Cooperation Treaty (PCT). See, notice in the Federal Register, June 18, 2008, Vol. 73, No. 118, at Pages 34672-34676.

Deadline to submit comments to the Department of Justice's (DOJ) Civil Rights Division (CRD) in response to its notice of proposed rulemaking (NPRM) regarding accessibility standards under the Americans with Disabilities Act of 1990. One topic addressed by this NPRM is regulation of state and local government agencies' communications with individuals with disabilities with the assistance of broadband video interpreting services (VIS). VIS allows an individual who is deaf or hard of hearing to view and sign to a video interpreter, who is at another location, who can see and sign to the individual through a camera. See, notice in the Federal Register, June 17, 2008, Vol. 73, No. 117, at Pages 34465-34508.

CANCELLED. 1:00 - 5:00 PM. The Department of Health and Human Services' (DHHS) American Health Information Community Consumer Empowerment Workgroup will meet. See, notice in the Federal Register, July 29, 2008, Vol. 73, No. 146, at Page 43937. Location: Room 1114, Switzer Building, 330 C St., SW.

No events listed.

8/6. The Federal Communications Commission (FCC) filed its brief [64 pages in PDF] with the U.S. Court of Appeals (FedCir) in Biltmore Forest Broadcasting FM, Inc. v. U.S., App. Ct. No. 07-CV-316.

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