9/30. Member companies of the Motion Picture Association of America (MPAA) and RealNetworks filed complaints against each other in different U.S. District Courts regarding the legality of RealNetworks' new RealDVD service, which enables users to copy DVDs that are protected by the DVD Content Control Association's (CCA) Content Scramble System (CSS).

The movie companies filed their complaint in federal court in Los Angeles, a district that is more supportive of copyright and the content industries. RealNetworks filed its complaint in federal court in the Northern District of California, a district that is more supportive of information technology companies.

RealNetworks' RealDVD web site allows users to download the RealDVD software for $29.99. RealNetworks states that this software enables purchasers to "Save your entire DVD collection to your PC or portable hard drive, then play them back without the discs."

The movie companies assert that this violates the Digital Millennium Copyright Act (DMCA) and the CSS licensing agreement. RealNetworks asserts that this is permitted by the licensing agreement, and is fair use.

Movie Companies' Complaint. MPAA members filed a complaint [18 pages in PDF] in U.S. District Court (CDCal) against RealNetworks alleging violation of the anti-circumvention provisions of the DMCA, and breach of contract, in connection with its RealDVD software.

The MPAA stated in a release [PDF] that "The Content Scramble System (CSS) built into DVDs prevents the unauthorized reproduction and distribution of copyrighted material released in DVD format. The RealDVD software illegally circumvents this copyright protection system. Among other things, the RealDVD software enables users to engage in an illegal practice known as “rent, rip and return,” whereby a person rents a DVD from a legitimate business like Blockbuster or Netflix, uses the RealDVD software to make multiple permanent illegal copies of the movie, and returns the DVD, only to rent another popular title and make permanent copies of it, repeating the cycle of theft over and over again without ever making a purchase."

It added that "The RealDVD software would enable massive theft of creative content that would have a direct, negative impact on the delivery of movies, television shows and other entertainment to consumers through the home entertainment and digital distribution markets."

"In manufacturing and selling RealDVD, RealNetworks Inc., a CSS licensee, has attempted to leverage its license improperly by making a product that permits users to circumvent the protections of CSS. Such a product was never intended to be authorized by the CSS license", wrote the MPAA.

Count 1 of the complaint alleges violation of 17 U.S.C. § 1201. Subsection (a)(1)(A) provides, in part, that "No person shall circumvent a technological measure that effectively controls access to a work protected under this title".

Subsection (a)(2) 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 (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title; (B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or (C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title".

Subsection (b) 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 (A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; (B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or (C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof."

17 U.S.C. § 1203 provides a private right of action for violation of Section 1201.

Count 2 alleges breach of contract, namely, the DVD-CCA License Agreement. The movie companies and RealNetworks are merely licensees. However, the movie companies state in their complaint that the license agreement provides that they are beneficiaries who are granted a cause of action under the agreement.

The movie companies ask the District Court for a temporary restraining order, a preliminary injunction, and a permanent injunction. They also seek all profits derived by RealNetworks from its alleged violation of the DMCA.

They also seek preliminary and permanent injunctive relief for the alleged breach of contract. Also, they seek costs, attorneys fees, and other amounts.

The movie companies' action is Universal City Studies Productions LLLP, et al. v. RealNetworks, Inc. et al., U.S. District Court for the Central District of California, Western Division. Glen Pomerantz of the Los Angeles office of the law firm of Munger Tolles & Olsen signed the movie companies' complaint.

RealNetworks Complaint. RealNetworks filed its own complaint in U.S. District Court (NDCal) against movie companies seeking declaratory relief.

It wrote in a release that "RealDVD allows consumers to securely store, manage and play their DVDs on their computers. It does not enable users to distribute copies of their DVDs. RealDVD not only maintains the DVD's native CSS encryption intact, it also adds another layer of digital rights management encryption that effectively locks the DVD copy to the owner's computer to ensure that the content can not be improperly copied or shared. RealDVD provides consumers with a great solution for the playback and management of their DVD collections while adding security that is more robust than CSS."

RealNetworks stated that it "took this legal action to protect consumers' ability to exercise their fair-use rights for their purchased DVDs."

However, fair use, which is codified at 17 U.S.C. § 107, is an affirmative defense to infringement of the exclusive rights of copyright under 17 U.S.C. § 106. Fair use is not a defense to circumvention in violation of 17 U.S.C. § 1201, or to breach of contract. Moreover, the movie companies' complaint does not name as defendants any consumers.

Patrick Ross, head of the Copyright Alliance (CA), wrote a piece titled "RealNetworks: Make $$$ Now, Worry About the Law Later". He wrote that "The courts will have to settle this, and it will take some time. But common sense suggests that RealNetworks is grasping at straws in thinking it can charge people to practice what it calls ``fair use´´ but what is in fact the domain of the copyright owner through licensing. Unfortunately, this illegal DVD-copying door has now been opened just a bit further, making it that much more difficult for copyright owners to find a place for legitimate business models to flourish. Consumers lose with that result."

9/26. The Electronic Frontier Foundation (EFF), and other groups that are frequently at odds with intellectual property owners on copyright issues, filed an amicus brief [PDF] with the U.S. District Court (SDNY) in Arista Records v. Lime Wire, a case regarding secondary liability of technology vendors who make products that are used by consumers to infringe copyrights.

Lime Wire is a peer to peer client that uses the Gnutella network. Consumers use this to obtain and distribute infringing copies of copyrighted sound recordings.

Arista and other record companies filed their original complaint [PDF] in the District Court on August 4, 2006, alleging inducement of copyright infringement, vicarious copyright infringement, contributory copyright infringement, and other claims.

The parties to this amicus brief include the EFF, Center for Democracy and Technology (CDT), Computer & Communications Industry Association (CCIA), Public Knowledge (PK), Consumer Electronics Association (CEA), Home Recording Rights Coalition (HRRC), American Library Association (ALA), and Information Technology Association of America (ITAA).

They argue that the court should not interpret the inducement standard, announced by the Supreme Court in its 2005 opinion [55 pages in PDF] in MGM v. Grokster, 545 U.S. 913, to eviscerate the holding of the Supreme Court in its 1984 opinion in Sony v. Universal City Studios, 464 U.S. 417. See, story titled "Supreme Court Rules in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.

They urge the court to limit the circumstances under which vendors of technologies used by consumers to infringe copyrights can be held liable under the inducement doctrine.

Ed Black, head of the CCIA, stated in a release that "our copyright law does not seek to punish innovators merely because a product is used for some infringing purpose. We have to ensure that the incentive to invent does not get buried under a stack of lawsuits".

This case is Arista Records, LLC, et al. v. Lime Wire LLC, et al., U.S. District Court for the Southern District of New York, D.C. No. 06 CV 5936 (GEL)

9/23. The Digital Media Association (DiMA), National Music Publishers' Association (NMPA), Recording Industry Association of America (RIAA), Nashville Songwriters Association International (NSAI), and Songwriters Guild of America (SGA) today announced an agreement regarding compensation for music creators for music distributed through certain online models.

The DiMA, NMPA and RIAA issues similar releases. All wrote that "The agreement, in the form of draft regulations submitted to the Copyright Royalty Judges, proposes for the first time mechanical royalty rates for interactive streaming and limited downloads, including for subscription and ad-supported services. The agreement proposes a flexible percentage of revenue rate structure, with minimum payments in certain circumstances."

They added that "Limited download and interactive streaming services will generally pay a mechanical royalty of 10.5 percent of revenue, less any amounts owed for performance royalties. In certain instances, royalty-free promotional streaming is allowed. Outside the scope of the draft regulations, the parties confirmed that non-interactive, audio-only streaming services do not require reproduction or distribution licenses from copyright owners."

Finally, they stated that "The agreement does not address royalty rates for physical product or permanent music downloads."

Some of the releases also offer the prediction that "The Copyright Royalty Judges are expected to issue a ruling on those rates on or before October 2."

See, DiMA release, NMPA release, and RIAA release.

9/22. September 22, 2008, was the deadline to submit to the Office of the U.S. Trade Representative's (OUSTR) Trade Policy Staff Committee (TPSC) written testimony to assist it in preparing its annual report to the Congress on the People's Republic of China's (PRC) compliance with the commitments made in connection with its accession to the World Trade Organization (WTO).

The OUSTR will hold a hearing on October 2 on this matter. See, notice in the Federal Register, July 31, 2008, Vol. 73, No. 148, at Pages 44783-44785.

The International Intellectual Property Alliance (IIPA) submitted a comment [41 pages in PDF] in which it stated that "China fails to comply with its WTO obligations in two areas."

The IIPA wrote that "The first area is intellectual property rights protection. China fails to meet its obligations under the TRIPS agreement, both in its statutory regime and in the area of enforcement of rights, specifically, its failure to employ the law to provide effective and deterrent remedies, particularly criminal remedies, against “copyright piracy on a commercial scale” (as it is obligated to do under Articles 41 and 61 of the TRIPS Agreement)." (Parentheses and quotations in original.)

It added that "The second area is market access. China fails to meet its obligations to provide market access as agreed for some goods and services."

The OUSTR has already complained to the WTO. See, story titled "US to Complain to WTO Regarding PR China's Failure to Protect IPR" in TLJ Daily E-Mail Alert No. 1,562, April 9, 2007.

The IIPA is a coalition of seven groups: Association of American Publishers (AAP), Business Software Alliance (BSA), Entertainment Software Association (ESA), Independent Film & Television Alliance (IFTA), Motion Picture Association of America (MPAA), National Music Publishers’ Association (NMPA), and Recording Industry Association of America (RIAA).

9/26. President Bush signed into law HR 5938 [ LOC | WW], a bill to amend 18 U.S.C. § 1030, the computer hacking statute. See, White House press office release.

The Senate passed it on July 30, 2008. The House passed it on September 15, 2008. President Bush signed it on September 26, 2008. It is now Public Law Number 110-326.

For summaries of the legislative history and content of this bill, story titled "House Passes Section 1030 Bill" in TLJ Daily E-Mail Alert No. 1,826, September 16, 2008.

Title I of this bill is the "Former Vice President Protection Act". Title II is the "Identity Theft Enforcement and Restitution Act". Although, it has more to do with unauthorized access to computers, cyber crime, and 18 U.S.C. § 1030, than identity theft.

9/29. The U.S. Department of Homeland Security (DHS) and Department of Justice (DOJ) and the Estonian Ministry of the Interior and Ministry of Justice signed an agreement on "Enhancing Cooperation in Preventing and Combating Serious Crime".

In April and May of 2007 Russia and persons located in Russia launched cyber attacks on government, financial, communications and news media servers in Estonia.

The agreement does not reference cyber-crime, or any other categories of crime. Rather, it broadly addresses criminal justice cooperation between the two nations.

It contains specific terms regarding searching for and sharing DNA profile data, fingerprint data, and other personal data. It also addresses privacy and the security of the two nations' criminal justice data.

Secretary of Homeland Security Michael Chertoff stated a release that "This agreement will jointly enable law enforcement officers on both sides to investigate crime more quickly and efficiently, and will help to further prevent criminal and terrorist travel."

A DHS spokesman stated to TLJ that this agreement "does not address cyber security".

The House will not meet.

The Senate will meet at 10:00 AM. It will begin consideration of HR 7081 [ LOC | WW], the "United States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act.".

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.

The House is scheduled to meet at 12:00 NOON.

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.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Core Communications v. FCC, App. Ct. No. 07-1381. See, FCC's brief [61 pages in PDF]. Judges Rogers, Tatel and Williams will preside. Location: Courtroom 22 Annex, 333 Constitution Ave., NW.

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.

Day one of a two day conference hosted by the Information Technology Association of America (ITAA) titled "IdentEvent". See, conference web site. Location: JW Marriott Hotel, 1331 Pennsylvania Ave., NW.

Yom Kippur begins at sundown.

9:00 AM - 3:00 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.

RESCHEDULED FOR NOVEMBER 6. 10:00 AM - 12:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee will meet to prepare for the International Telecommunication Union (ITU) Council Meeting to be held on November 12-21, 2008, in Geneva, Switzerland. See, notice in the Federal Register, September 22, 2008, Vol. 73, No. 184, at Page 54655. Location: 10th floor, 1120 20th St., NW. See, rescheduling notice in the Federal Register, September 26, 2008, Vol. 73, No. 188, at Pages 55891-55892.

1:00 PM. The Department of Health and Human Services' (DHHS) American Health Information Community's (AHIC) Confidentiality, Privacy, & Security Workgroup may meet. AHIC meetings are often noticed, but cancelled. Location: Switzer Building, 330 C St., SW.

Day two of a two day conference hosted by the Information Technology Association of America (ITAA) titled "IdentEvent". See, conference web site. Location: JW Marriott Hotel, 1331 Pennsylvania Ave., NW.

Deadline to submit comments to the Bureau of Industry and Security (BIS) regarding foreign policy based export controls contained in the export administration regulations (EAR) implementing the Export Administration Act of 1979, as expired. See, notice in the Federal Register, September 8, 2008, Vol. 73, No. 174, at Pages 52006-52007.

9/29. Verizon announced in a release that William Barr, an EVP and General Counsel, will "retire at the end of this year". Barr was briefly the Attorney General in the administration of the first President Bush. Verizon also announced that it "expects to name a successor soon".

9/26. Jaime Chico Pardo was elected to AT&T's Board of Directors. He Chico is also Chairman of Teléfonos de México, S.A.B. de C.V., also know as Telmex. See, AT&T release.

9/29. The U.S. Court of Appeals (FedCir) issued its divided opinion [44 pages in PDF] in Praxair v. ATMI, a patent infringement case involving inequitable conduct and invalidity for indefiniteness. This case is Praxair, Inc. and Praxair Technology, Inc. v. ATMI, Inc. and Advanced Technology Materials, Inc., U.S. Court of Appeals for the Federal Circuit, App. Ct. Nos. 2007-1483 and 2007-1509, appeals from the U.S. District Court for the District of Delaware, D.C. No. 03-CV-1158, Judge Sue Robinson presiding. Judge Dyk wrote the opinion of the Court of Appeals, in which Judge Bryson joined. Judge Lourie wrote a partial dissent.

9/25. The Progress & Freedom Foundation (PFF) released a report [PDF] titled "FCC Reform: Scalpel or Steamroller?" The author is the FCC's Barbara Esbin. She reviews Rep. Joe Barton's (R-TX) recent proposal to reform Federal Communications Commission (FCC) procedure. She also offers additional proposals. She concludes that "It is high time to begin the debate on reforming our current approach to communications regulation and the agency charged with its implementation."

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