9/26. The Federal Communications Commission (FCC) adopted and released a Declaratory Order [10 pages in PDF] in its proceeding titled "In the Matter of Carriage of Digital Television Broadcast Signals: Amendment to Part 76 of the Commission’s Rules".

This order states that "the carriage elections that must be made by October 1, 2008, will determine a station's carriage rights throughout the entire 2009-2011 carriage election cycle".

It also states that "the channel placement options applicable to digital must-carry stations, based upon the First Report and Order and the statute. Low-power broadcasters, while not required to make their transition to digital by February 17, 2009, nevertheless are doing so in increasing numbers, and will continue to do so of their own volition. For those low-power stations that have the right to demand carriage by cable operators, we clarify that their statutory carriage rights extend to broadcasting in digital."

The FCC adopted this order on September 24, 2008, and released the text on September 26. This order is FCC 08-224 in CS Docket No. 98-120.

9/25/08. The U.S. Patent and Trademark Office (USPTO) entered into agreements with its counterparts in Korea and Australia regarding patent cooperation. Representatives of the US and Japan also signed a statement regarding patent cooperation.

On September 23, 2008, the USPTO and the Korean Intellectual Property Office (KIPO) signed a memorandum of understanding (MOU) regarding patents. The USPTO has not yet published this MOU.

The USPTO stated in a release that "The focus of the MOU is to promote work-sharing by harmonizing the patent examination environment of the Republic of Korea and the U.S. With work-sharing arrangements, each office can take advantage of the examination results of the other office for its own patent examinations. To create this environment, the two countries plan to move forward with various projects, including the establishment of a common search database, the development of a standardized patent classification system, common examiner training, and greater utilization of each other’s examination results."

On September 25, 2008, the USPTO announced in a release that the USPTO and IP Australia (IPAU) entered into an agreement that provides that the "IPAU will act as an available International Searching Authority (ISA) and an International Preliminary Examining Authority (IPEA) for certain international applications filed with the USPTO under the Patent Cooperation Treaty (PCT)."

The USPTO added that this "will allow applicants additional flexibility to choose a given international authority based on the technology disclosed in the international application, speed of services provided and cost of obtaining searches and examinations of international applications."

This agreement, which the USPTO has not yet published, goes into effect on November 1, 2008.

Also, the USPTO announced that Jon Dudas, head of the USPTO, met with Takashi Suzuki, Commissioner of the Japan Patent Office (JPO), in Geneva, Switzerland, on September 24, 2008.

The USPTO stated in a release that the two "discussed how the USPTO and the JPO can further promote the existing close relationship between the two offices" and "agreed that the expeditious protection of intellectual property rights including patents is critical to fostering technological innovation and accelerating economic development".

This release also states that the two "signed a statement focusing on enhanced mutual cooperation".

Also, on September 22, 2008, the USPTO and European Patent Office (EPO) signed a document [6 pages in PDF] pertaining to the Patent Prosecution Highway Pilot Program.

9/22. Francis Gurry of Australia was named Director General of the World Intellectual Property Organization (WIPO) for a six year term that begins on October 1, 2008. He has worked for the WIPO since 1985. He will replace Kamil Idris of Sudan. See, WIPO release.

Gurry gave an acceptance speech on September 22, 2008, in which he discussed, among other topics, the appropriateness of international fora, such as the WIPO, for addressing global intellectual property issues.

He said that "In each country, there are many more consumers than creators and performers, making the political management of the discussion uncomfortable. This feature of domestic politics, as well as the global nature of file-sharing on the Internet, suggests that it may be more appropriate to conduct the discussion at the international, rather than the national level."

He also stated that "The Berne Convention, one of the origins of WIPO, was founded in the nineteenth century as a consequence of the concern of authors about the impact of the international movement of their physical works. I believe that WIPO remains the right forum to conduct the discussion in the twenty-first century about the same question dressed in different technological clothes."

He also said regarding "counterfeiting of physical products" that the "risks to health and safety and to consumer protection, however, are present globally and the illegal activity occurs everywhere and not only in specific localities. Reflection is needed, therefore, on the appropriate role in this area for WIPO, the international organization responsible for intellectual property".

As Gurry implies, the fora employed for creating rules can impact what rules will be adopted. His observation that "there are many more consumers than creators" suggests that writing rules that protect creators of intellectual property from consumers who do not wish to pay creators for their creations would fare better in a body that is not selected by consumers, or voters.

And, as the following article relates, Google advocates writing rules in the U.S. Congress or courts.

Also, the trade agreement negotiation process is less transparent than the legislative process in democratic nations. Google also complained that the ACTA negotiations should proceed in a "transparent, consultative manner" and "should not be negotiated on a rushed, artificial schedule".

But then, trade agreements are approved or rejected by democratically elected legislatures. Also, companies and groups tend to be better organized and financed for influencing legislatures, courts, and international trade negotiations. And, Google and other internet companies are as able to participate in all governmental processes as are the companies and groups that represent creators of intellectual property.

An alternative hypothesis may have nothing to do with democratic and transparent procedures. IP holders may pursue trade negotiations because over the last dozen years numerous trade agreements have been negotiated and approved, while democratic legislatures have tended not to enact significant IP related legislation. With technological changes threatening their ability to protect their IP rights, they are the ones seeking changes in the legal status quo. For example, the last major U.S. act affecting copyright protection in the internet context was the DMCA, while numerous bills have died in the Congress. Similarly, diligent efforts in the Congress to enact patent reform legislation have failed.

With changes in technology, maintaining the status quo tends to favor companies like Google, rather than copyright and trademark holders. So, IP holders may pursue relief from trade negotiators (who have a record of producing agreements), while internet companies may try to keep the decision making away from the trade negotiators, and leave decision making to the legislatures (which are less able to change the status quo).

9/24. Google submitted a comment to the Office of the U.S. Trade Representative (OUSTR) in advance of its meeting parties interested in the Anti-Counterfeiting Trade Agreement (ACTA), which is currently being negotiated by the US and other nations.

Google argued that many of the issues being considered for inclusion in the ACTA should be dealt with by the U.S. Congress and courts, rather than by a trade agreement.

The OUSTR published in its web site on September 24 as one 89 page PDF document the comments that it received in advance of its September 22, 2008, meeting.

Google submitted a comment in which it argued that the ACTA "should not address issues beyond border and customs enforcement issues".

"Google believes strongly that Internet issues should not be addressed in ACTA". Google elaborated that "there are ongoing legislative debates and litigation in domestic courts that seek to balance the interests of right holders according to the Congressional policy of encouraging innovation".

Google argued that "A trade agreement should not affect or freeze these developments (especially one that will not even be submitted to the Congress)." (Parentheses in original.)

"Internet companies", wrote Google, "do not engage in counterfeiting and piracy; they are legitimate businesses critical to the U.S. economy. To impose potential liability and obligations on them, or to dictate terms of substantive intellectual property law that affect Internet intermediaries, is shooting at the wrong target, potentially contrary to U.S. law, and in any event not appropriate subject matter for an Executive agreement not submitted to the Congress. ... For this reason, provisions on obligations and liability of Internet intermediaries, such as ISP safe harbors, technological protection measures, and statutory damages, have no place in ACTA."

Google also argued, in the alternative, that if the ACTA does address these issues, then it should provide that "indexing, buffering, caching and similar activity that is incident to the ordinary operations of the Internet do not amount to infringing activity".

Google also argued that any safe harbors "must cover passive carriers, e.g., Internet services that act as conduits; the ordinary operations of search engines such as hyperlinking and other information location tools such as indexing and caching; copying incidental to search results that is fair use or otherwise lawful hosting sites; and blogs."

Google also argued that "Filtering is a truly nascent area globally, fraught with legal, technological, and commercial controversy and uncertainty, and should not be imposed or encouraged in any Executive agreement."

Google also argued that the anti-circumvention portion of the Digital Millennium Copyright Act (DMCA) "prevents a wide range of legitimate activity that has nothing to with counterfeiting".

See also, stories titled "OUSTR to Hold Meeting on Anti-Counterfeiting Trade Agreement" in 1,828, September 19, 2008, and "OUSTR Holds Meeting Regarding ACTA" in TLJ Daily E-Mail Alert No. 1,830, September 23, 2008.

9/23. The Government Accountability Office (GAO) released a report [36 pages in PDF] titled "Information Technology: FBI Is Implementing Key Acquisition Methods on Its New Case Management System, but Related Agencywide Guidance Needs to Be Improved".

This is another in a long series of GAO reports, Department of Justice (DOJ) Office of the Inspector General (OIG) reports, and Congressional hearings that have documented the FBI's continuing failure, delays, and/or difficulties in adopting and deploying new information technologies.

This report pertains only to the FBI's Sentinel system.

The report states that the FBI "is 3 years into its 6-year, $451 million system acquisition program to replace its antiquated, paper-based legacy systems for supporting mission-critical intelligence analysis and investigative case management activities. This program, known as Sentinel, is being executed through the integration of commercially available hardware and software components in a series of phases".

The report states that the FBI began an IT modernization program in 2000, and accelerated it as a result of its post September 11, 2001, change of mission. The report states that "This program, later named Trilogy, was the FBI's largest IT initiative to date and consisted of three parts: (1) the Information Presentation Component to upgrade FBI’s computer hardware and system software, (2) the Transportation Network Component to upgrade the agency’s communication network, and (3) the User Application Component to upgrade and consolidate the bureau’s five key investigative software applications. The heart of this last component became the Virtual Case File (VCF) project, which was intended to replace the obsolete Automated Case Support system."

The first two components are now operational, but the FBI failed to complete the VCF project. This GAO report states that the Sentinel program "began in 2005, and is intended to be both the successor to and an expansion of VCF."

The report states that the Sentinel program has four phases. The first is complete. It is now working on the second phase, which includes "An enterprise portal for accessing Sentinel case management capabilities, Web-application reengineering to provide faster response time, electronic authoring and approval of forms, and calendaring".

Then, the third phase will provide, among other things, capabilities for "Online searches".

The report adds that the FBI estimates that Sentinel's "four phases will cost about $451 million through fiscal year 2012".

Other Sentinel Reports. On December 4, 2006, the DOJ/OIG released a report [112 pages in PDF, redacted] titled "Sentinel Audit II: Status of the Federal Bureau of Investigation's Case Management System". See also, stories titled "DOJ Report Discusses FBI's Failures in Creating a Secure Web Accessed File System" in TLJ Daily E-Mail Alert No. 1,499, December 5, 2006, and "FBI Director Mueller Testifies Before Senate Judiciary Committee" in TLJ Daily E-Mail Alert No. 1,500, December 7, 2006.

On October 16, 2006, the GAO released its report [31 pages in PDF] titled "Information Technology: FBI Has Largely Staffed Key Modernization Program, but Strategic Approach to Managing Program’s Human Capital Is Needed".

On July 30, 2007, the GAO released its report [61 pages in PDF] titled "Information Technology: FBI Following a Number of Key Acquisition Practices on New Case Management System, but Improvements Still Needed".

9/29. President Bush awarded recipients of the National Medal of Technology and Innovation (NMTI) and National Medal of Science (NMS) at a White House ceremony. See, transcript and story titled "Department of Commerce Announces National Medal of Technology Awards" in TLJ Daily E-Mail Alert No. 1,819, August 28, 2008.

9/26. President Bush nominated Judge Philip Simon to be a Judge of the U.S. Court of Appeals for the 7th Circuit. See, White House news office release. He is currently a Judge of the U.S. District Court for the Northern District of Indiana.

Rosh Hashana begins at sundown.

The House will meet at 8:00 AM for legislative business. See, Rep. Hoyer's schedule for September 29.

The Senate will meet at 11:00 AM. It will consider the House message to accompany HR 2095 [ LOC | WW], the "Federal Rail Safety Improvement Act".

The Supreme Court will hold the opening conference of its October 2008 term.

12:00 NOON - 2:00 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "The Millennials: The Dumbest Generation or the Next Great Generation?". The speakers will be Mark Bauerlein, author of the book titled "The Dumbest Generation: How the Digital Age Stupefies Young Americans and Threatens Our Future", Neil Howe, and Frederick Hess (AEI). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

2:00 - 4:00 PM. The Department of State's (DOS) Advisory Committee on International Economic Policy will hold a meeting titled "Policies, Programs and Total Economic Engagement with China". See, notice in the Federal Register, September 15, 2008, Vol. 73, No. 179, at Page 53317. Location: DOS, Room 1107, 2201 C St., NW.

Day one of a three day event hosted by the National Association of Broadcasters (NAB) titled "NAB Satellite Uplink Operators Training Seminar". Location: NAB, 1771 N St, NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding telecommunications relay services and speech to speech services for individuals with hearing and speech disabilities, and speech to speech services and internet protocol speech to speech telecommunications relay service. The FCC adopted this NPRM on June 11, 2008, and released the text [19 pages in PDF] on June 24, 2008. It is FCC 08-149 in CG Docket Nos. 03-123 and 08-15. See, notice in the Federal Register, August 13, 2008, Vol. 73, No. 157, at Pages 47120-47122.

Rosh Hashana.

9:00 - 11:00 AM. The Information Technology and Innovation Foundation (ITIF) will host an event. The speaker will be Gregory Tassey, Senior Economist at the National Institute of Standards and Technology (NIST), and author of the book [Amazon] titled "The Technology Imperative", and the book [Amazon] titled "The Economics of R&D Policy". See, notice. Coffee and parties will be served. Location: ITIF, Suite 200, 1250 Eye St., NW.

Day two of a three day event hosted by the National Association of Broadcasters (NAB) titled "NAB Satellite Uplink Operators Training Seminar". Location: NAB, 1771 N St, NW.

Second of three deadlines for the Federal Communications Commission (FCC) and National Telecommunications and Information Administration (NTIA) to comply with the request of Rep. John Dingell (D-MI), Chairman of the House Commerce Committee (HCC), and Rep. Ed Markey (D-MA), Chairman of the HCC's Subcommittee on Telecommunications and the Internet, for a series of three written status reports on whether the FCC and NTIA anticipate that additional funds will be needed for the DTV transition converter box coupon program. See, March 5, 2008, letter [3 pages in PDF].

Deadline for repeat manufacturers of digital to analog converter boxes to submit to the National Telecommunications and Information Administration (NTIA) notices of intent to participate with addition converter boxes in the NTIA's TV Converter Box Coupon Program. See, notice in the Federal Register, July 24, 2008, Vol. 73, No. 143, at Pages 43211-43212.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-37, Revision 1 [81 pages in PDF] titled "Guide for Security Authorization of Federal Information Systems: A Security Lifecycle Approach".

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the CTIA's Petition for Declaratory Ruling [44 pages in PDF] regarding 47 U.S.C. § 332(c)(7)(B), ensuring timely siting review, and preemption under 47 U.S.C. § 253 of state and local ordinances that classify all wireless siting proposals as requiring a variance. This is WT Docket No. 08-165. See, August 14, 2008, Public Notice (DA 08-1913) and notice in the Federal Register, August 29, 2008, Vol. 73, No. 169, at Pages 50972-50973.

8:30 AM. The Internet Corporation for Assigned Names and Numbers (ICANN) will host an event titled "Improving Institutional Confidence". For more information, contact Maria Farrell at 310-823-9358 or maria dot farrell at icann dot org. Location: Ballroom, National Press Club, 13th Floor, 529 14th St., NW.

12:00 NOON - 1:30 PM. The DC Bar Association will host a program titled "An Election Year Round-up of International Trade and Customs Issues". The speakers will be Warren Maruyama (General Counsel, OUSTR), Alice Kipel (Steptoe & Johnson), Timothy Reif (Chief Democratic Trade Counsel, House Ways and Means Committee), Demetrios Marantis (Chief International Trade Counsel, Senate Finance Committee), Jonathan Stoel (Hogan & Hartson), Daniel Pearson (Vice Chair, International Trade Commission), David Spooner (Department of Commerce). The price to attend ranges from $10 to $35. For more information, contact 202-626-3463. See, notice. Location: Hogan & Hartson, 13th floor, 555 13th St., NW.

6:00 - 9:15 PM. The DC Bar Association will host a program titled "How to Protect and Enforce Trademark Rights: A Primer". The speakers will be Steven Hollman (Hogan & Hartson) and Shauna Wertheim (Roberts Mardula & Wertheim). The price to attend ranges from $80 to $115. For more information, contact 202-626-3488. See, notice. This event qualifies for continuing legal education (CLE) credits. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

Day three of a three day event hosted by the National Association of Broadcasters (NAB) titled "NAB Satellite Uplink Operators Training Seminar". Location: NAB, 1771 N St, NW.

TIME? The Office of the U.S. Trade Representative's (OUSTR) Trade Policy Staff Committee (TPSC) hold a public hearing to hear testimony to assist it in preparing its annual report to the Congress on the People's Republic of China's compliance with the commitments made in connection with its accession to the World Trade Organization (WTO). This report is requires by Section 421 of the Trade Act of 1974, the relevant portion of which section is codified at 22U.S.C. § 6951. See, notice in the Federal Register, July 31, 2008, Vol. 73, No. 148, at Pages 44783-44785. Location?

9:30 AM - 12:00 NOON. The American Enterprise Institute (AEI) will host an event titled "Trade Tsunami: Will U.S.-Japanese Trade Stay Afloat in a Global Crisis". The speakers will be Wendy Cutler (Office of the U.S. Trade Representative), Kenji Goto (Embassy of Japan), Matthew Goodman (Stonebridge International), Claude Barfield (AEI), and Michael Auslin (AEI). See, notice. Location: 12th floor, 1150 17th St., NW.

12:00 NOON - 1:30 PM. The DC Bar Association will host a program titled "50 Hot Technology Tips, Tricks & Web Sites For Lawyers". The price to attend ranges from $15 to $35. For more information, contact 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 level, 1250 H St., NW.

8:00 AM - 12:30 PM. The National Institutes of Health's (NIH) Biomedical Computing and Health Informatics Study Section will hold a closed meeting. See, notice in the Federal Register, September 3, 2008, Vol. 73, No. 171, at Page 51493. Location: Hilton Washington DC/Rockville, 1750 Rockville Pike, Rockville, MD.

12:30 - 2:00 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications Committee will host a brown bag lunch titled "Discussion on the interplay between Team Telecom, CFIUS, and the FCC, and how to make the review process faster and easier". For more information, contact Troy Tanner at troy dot tanner at bingham dot com or 202-373-6560. Location: Bingham McCutchen, 11th floor, 2020 K St., NW.

1:00 - 2:30 PM. The Information Technology and Innovation Foundation (ITIF) will host an event titled "Understanding Our Digital Quality of Life". The ITIF will release a report titled "Digital Quality of Life: Understanding the Personal and Social Benefits of the Information Technology Revolution". The speakers will be Craig Mundie (Chief Research and Strategy Officer for Microsoft) and Rob Atkinson (ITIF). Light refreshments will be served. See, notice and r egistration page. Location: Room LJ 162, Library of Congress, Thomas Jefferson Building.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "FCBA Fall Reception with the FCC and NTIA Bureau and Office Chiefs". Prices vary. See, registration form [PDF]. Location: Mayflower Hotel, 1127 Connecticut Ave., NW.

8:30 AM. The Gore Commission, 10 Years Later: The Public Interest Obligations of Digital TV Broadcasters in Perfect Hindsight

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Cable Practice and Wireline Committees will host a brown bag lunch titled "The effects of the Commission's Network Management Order on broadband providers and their customers". Location: Harris Wiltshire & Grannis, 12th floor, 1200 18th St., NW.

Deadline to submit initial comments to the Federal Communications Commission's (FCC) Notice of Proposed Rulemaking (NPRM) regarding broadcast low power auxiliary stations operating in the 700 MHz band, such as wireless microphones. This NPRM is FCC 08-188 in WT Docket Nos. 08-166 and 08-167. The FCC adopted this NPRM on August 15, 2008, and announced it and released the text [24 pages in PDF] on August 21, 2008. See, story titled "FCC Releases NPRM on Wireless Microphones Operating in 700 MHz Band" in TLJ Daily E-Mail Alert No. 1,817, August 21, 2008. See, notice in the Federal Register, September 3, 2008, Vol. 73, No. 171, at Pages 51406-51415.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding expanding the scope of services and products covered by the FCC's schools and libraries tax and subsidy program. The FCC adopted this item on July 25, 2008, and released the text [26 pages in PDF] on July 31, 2008. It is FCC 08-173 in CC Docket No. 02-6. See, notice in the Federal Register, August 19, 2008, Vol. 73, No. 161, at Pages 48352-48359.

Deadline to submit to the Office of the U.S. Trade Representative's (OUSTR) pre-hearing briefs and requests to appear in connection with the 2008 Generalized System of Preferences (GSP) Annual Review. See, notice in the Federal Register, September 12, 2008, Vol. 73, No 178, at Pages 53054-53056.

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, and notice in the Federal Register, September 18, 2008, Vol. 73, No. 182, at Page 54205. Location: Conference Room 333, Hall of the States, 444 North Capitol St., NW.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking regarding changes to its rules of practice to limit the types of correspondence that may be submitted to the USPTO by facsimile, and to increase the minimum font size for use on papers submitted to the USPTO for a patent application, patent or reexamination proceeding. See, notice in the Federal Register, August 6, 2008, Vol. 73, No. 152, at Pages 45662-45673.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to certain ex parte filings submitted by the Association of Public Safety Communications Officials, International (APCO), National Emergency Number Association (NENA), AT&T, Sprint Nextel, and Verizon Wireless regarding the FCC's location accuracy mandates. See, FCC Public Notice [13 pages in PDF], Public Notice [PDF] and notice in the Federal Register, September 25, 2008, Vol. 73, No. 187, at Pages 55473-55495. These Public Notices are DA 08-2129 and DA 08-2149 in PS Docket No. 07-114.

Deadline to submit reply comments to the Federal Communications Commission's (FCC) Media Bureau in response to the PPM Coalition's (PPMC) September 2, 2008, filing titled "Emergency Petition for Section 403 Inquiry." This petition asks the FCC to open an inquiry into Arbitron's use of Portable People Meters (PPM). This item is DA 08-2048 in MB Docket No. 08-187.

9/26. The Wireless Communications Association International (WCAI) will host a four day conference titled "WCA's 14th Annual International Symposium and Business Expo" on November 4-7, 2008. The Federal Communications Commission (FCC) announced that its Federal-State Joint Conference on Advanced Services will hold a meeting on broadband policy on November 6 at this conference. See, FCC release [PDF].

9/26. The Government Accountability Office (GAO) released a report [49 pages in PDF] titled "Information Security: Actions Needed to Better Protect Los Alamos National Laboratory’s Unclassified Computer Network".

9/26. AT&T announced in a release that AT&T and Directv entered into "a commercial agreement by which AT&T will market and sell DIRECTV's service as a co-branded satellite television service after Jan. 31, 2009." AT&T did not release the text of the agreement.

9/22. The Government Accountability Office (GAO) released a report [36 pages in PDF] titled "Information Technology: Treasury Needs to Better Define and Implement Its Earned Value Management Policy".

9/24. Ben Bernanke, Chairman of the Federal Reserve Board (FRB) testified before the Joint Economic Committee. In addition to addressing financial markets, he wrote in his prepared testimony that "Business outlays for equipment and software also appear poised to slow in the second half of this year, assuming that production and sales slow as anticipated."

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