12/24. President Bush signed into law S 3663 [LOC | WW], "Short-term Analog Flash and Emergency Readiness Act", on December 23, 2008. See, White House news office release.

This act provides an extension of authority to make analog television broadcasts for 30 days beyond the transition date of February 17, 2009, for "public safety information and digital transition information".

On December 24, 2009, the Federal Communications Commission (FCC) adopted and released a notice of proposed rulemaking [21 pages in PDF] regarding implementation of this Act. It is FCC 08-281in MB Docket No. 08-255.

The Senate passed this bill on November 20, 2008. See, story titled "Senate Passes Bill to Allow Select Analog Broadcasts for 30 Days After DTV Transition" in TLJ Daily E-Mail Alert No. 1,862, November 24, 2008. The House passed this bill on December 10, 2008. See, story titled "House Passes Limited Analog Broadcast Extension Bill" in TLJ Daily E-Mail Alert No. 1,871, December 11, 2008.

The FCC published a notice in the Federal Register that sets comment deadlines. January 5, 2009, is the deadline to submit initial comments. January 8, 2009, is the deadline to submit reply comments. See, Federal Register, December 31, 2008, Vol. 73, No. 251, at Pages 80332-80349.

12/29. The Copyright Office (CO) published a notice in the Federal Register that identifies numerous classes of works that various persons and entities have proposed for exemption in the CO's 4th triennial review of DMCA exemptions.

Comments on these proposed exemptions are due by 5:00 PM on February 2, 2009.

Every three years the CO commences a proceeding to to designate exemptions to the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). The CO announced this current proceeding, and requested proposals for exemptions, on October 6, 2008. See, story titled "Copyright Office Announces 4th Triennial Review of DMCA Exemptions" in TLJ Daily E-Mail Alert No. 1,839, October 7, 2008.

The CO has received proposals for exemptions. The just published notice enumerates these proposals, and requests public comments on them. The CO has also created a web page that lists and hyperlinks to the full text of the proposers' filings.

There are four proposals for exemptions for computer programs related to wireless communications devices.

MetroPCS Communications submitted a proposal [22 pages in PDF] for an exemption for "Computer programs that operate wireless telecommunications handsets when circumvention is accomplished for the sole purpose of enabling wireless telephones to connect to a wireless telephone communication network."

The CO adopted an exemption in 2006 for "Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network."

Thus, MetroPCS requests that the CO revise and extend for three more years the wireless handset exemption.

MetroPCS wrote that "Software locks on wireless handsets are unnecessary for the protection of copyrighted works -- the DMCA's primary purpose. Such locks are used exclusively to bind handsets to specific carriers and consequently block consumers' freedom of choice for wireless service."

"Without these software locks, most handsets are capable of being used to receive service on multiple compatible wireless providers’ networks; thus enabling end users to switch carriers without incurring the costs associated with a new handset. Wireless providers handcuff handsets to their networks using a variety of methods, including service provider code (SPC) locking, system operator code (SOC) locking, band order locking and Subscriber Identity Module (SIM) locking."

MetroPCS continued that "Customers who choose to unlock their handsets to obtain service on competing wireless networks -- a practice commonly referred to in the industry as ``re-flashing´´ the handset -- are making a noninfringing, fair use of copyrighted works that they rightfully own."

It argued that "it is clear that wireless carriers are trying to use the anti-circumvention prohibitions as a means to keep customers tied to their networks rather than enforce their own copyright interests. In general, the anti-circumvention prohibition was designed to keep copyright owners from having their works duplicated, displayed, or used without their permission. Since the re-flashing of a phone does not cause a copy of the software to be made, and the user is not displaying or using the software except in connection with the handset, the purposes behind the anti-circumvention prohibition would not apply and neither should the prohibition. Certain wireless providers are simply using § 1201 as a back-door method for controlling customer turnover".

Paul Posner, of Pocket Communications, submitted a similar proposal [5 pages in PDF]. See also, similar proposal [27 pages in PDF] of Jonathan Newman, of the Wireless Alliance, and others. And see, related proposal [37 pages in PDF] of the Electronic Frontier Foundation (EFF).

The American Federation for the Blind (AFB) proposes an exemption for literary works' distributed in ebook format when all existing ebook editions of the work, including digital text editions made available by authorized entities, contain access controls that prevent the enabling either of the ebook's read aloud function or of screen readers that render the text into a specialized format.

The CO adopted this exemption in 2006. The AFB requests that it be extended for three more years.

Megan Carney, who is no relation to the publisher of the Tech Law Journal, submitted a proposal [PDF] for an exemption for subscription based services that offer DRM protected streaming video where the provider has only made available players for a limited number of platforms, effectively creating an access control that requires a specific operating system version and/or set of hardware to view purchased material.

Mark Rizik proposed an exemption for "Motion pictures protected by anti-access measures, such that access to the motion picture content requires use of a certain platform."

Various persons submitted eight different proposals for exemptions for certain audio visual works used in connection with teaching, studying, schools, colleges or universities.

In 2006 the CO adopted an exemption for "Audiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors."

There is a proposal [PDF] to revise and extend the existing dongle exemption. The current rules exempt "Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace." The new proposal is to exempt "Computer programs protected by dongles that prevent access due to malfunction or damage or hardware or software incompatibilities or
require obsolete systems or obsolete hardware as a condition of
access."

There is also a proposal [PDF] to exempt "Computer programs". However, the text of the proposal states that the exemption should be for certain undefined uses by a "forensic investigator".

There are two proposals from one person to provide exemptions for "the purpose of good faith testing, investigating, or correcting such security flaws or vulnerabilities".

Matt Perkins proposes to exempt "Audiovisual works delivered by digital television (``DTV´´) transmission intended for free, over-the-air reception by anyone, which are marked with a ``broadcast flag´´ indicator that prevents, restricts, or inhibits the ability of recipients to access the work at a time of the recipient's choosing and subsequent to the time of transmission, or using a machine owned by the recipient but which is not the same machine that originally acquired the transmission."

He also proposes an exemption for "Audiovisual works embedded in a physical medium (such as Blu-Ray discs) which are marked for `down-conversion' or `down-resolutioning´ (such as by the presence of an Image Constraint Token ``ICT´´) when the work is to be conveyed through any of a playback machine's existing audio or visual output connectors, and therefore restricts the literal quantity of the embedded work available to the user (measured by visual resolution, temporal resolution, and color fidelity)." (Parentheses in original.)

Perkins does not identify himself. See, proposal [PDF].

Christopher Soghoian, of Harvard's Berkman Center, proposes an exemption for "Lawfully purchased sound recordings, audiovisual works, and software programs distributed commercially in digital format by online music and media stores and protected by technological measures that depend on the continued availability of authenticating servers, when such authenticating servers cease functioning because the store fails or for other reasons."

He also proposes an exemption for "Lawfully purchased sound recordings, audiovisual works, and software programs distributed commercially in digital format by online music and media stores and protected by technological measures that depend on the continued availability of authenticating servers prior to the failure of [authenticating] servers for technologists and researchers studying and documenting how the authenticating servers that effectuate the technological measures function." (Brackets in CO notice.)

The EFF proposes an exemption for "Audiovisual works released on DVD, where circumvention is undertaken solely for the purpose of extracting clips for inclusion in noncommercial videos that do not infringe copyright."

Kartemquin Educational Films, Inc. and the International Documentary Association proposes an exemption for "Motion pictures and other audiovisual works in the form of Digital Versatile Discs (DVDs) that are not generally available commercially to the public in a DVD form not protected by Content Scramble System technology when a documentary filmmaker, who is a member of an organization of filmmakers, or is enrolled in a film program or film production course at a post-secondary educational institution, is accessing material for use in a specific documentary film for which substantial production has commenced, where the material is in the public domain or will be used in compliance with the doctrine of fair use as defined by federal case law and 17 U.S.C. Sec. 107."

1/5. Griffin Bell died. He was Attorney General during the administration of former President Carter. Before that, he was a Judge of the U.S. Court of Appeals for the old 5th Circuit, before it was divided into the current 5th Circuit and 11th Circuit. He worked for the law firm of King & Spalding after leaving the Department of Justice. Attorney General Michael Mukasey stated in a release that "Judge Bell's long record of public service, especially his efforts to enact FISA and champion civil rights, exemplified his dedication, integrity, and fearless pursuit of justice." See also, King & Spalding biography [7 pages in PDF].

1/5. Steve Jobs, CEO of Apple, wrote in a statement that he has lost weight recently because of "a hormone imbalance that has been ``robbing´´ me of the proteins my body needs to be healthy. Sophisticated blood tests have confirmed this diagnosis. The remedy for this nutritional problem is relatively simple and straightforward, and I've already begun treatment. But, just like I didn't lose this much weight and body mass in a week or a month, my doctors expect it will take me until late this Spring to regain it. I will continue as Apple's CEO during my recovery."

1/4. Bill Richardson, who had been President elect Obama's selection for the position of Secretary of Commerce, withdrew from consideration.

12/24. President Bush announced his intent to appoint Kevin Johnson (CEO of Juniper Networks) and Kay Sears (President of Intelsat General) to be members of the President's National Security Telecommunications Advisory Committee. See, White House news office release. Johnson was head of Microsoft's Platforms & Services Division until September 3, 2008. See also, Johnson's Microsoft biography.

12/24. President Bush announced his intent to appoint Carol Ann Bartz, Maria Cino, and Israel Hernandez to be members of the Advisory Committee for Trade Policy and Negotiations for terms of four years. See, White House news office release.

12/19. President elect Obama announced that he will name John Holdren Assistant to the President for Science and Technology and Director of the White House Office of Science and Technology Policy. He also announced that Holdren, as well as Eric Lander and Harold Varmus, will be named Co-Chairs of the President’s Council of Advisors on Science and Technology (PCAST). None has a background in information or communications technologies. See, Obama transition office release.

12/19. President elect Obama announced that he will nominate Jane Lubchenco, to be head of the Department of Commerce's National Oceanic and Atmospheric Administration (NOAA). The NOAA has responsibilities with respect to the Public Alert and Warning System. See, Obama transition office release.

12/19. President elect Obama announced that he will nominate Ron Kirk to be the U.S. Trade Representative. He is a former mayor of the city of Dallas, Texas. Sen. Charles Grassley (R-IA), the ranking Republican on the Senate Finance Committee, stated in a release that "I look forward to working with Mayor Kirk through the confirmation process. I hope to hear that he's planning a pro-active trade agenda. With the condition of the economy, we need more than ever to work for new markets for American manufacturers, farmers, service suppliers and workers. I'm also looking for clear signs from the President-elect that trade expansion will play a central role in his economic agenda. A very good first step would be confirming that the U.S. Trade Representative will have rank as a member of his Cabinet."

This issue contains the following items:
 • Bush Signs Limited Analog Broadcast Extension Bill
 • Copyright Office Seeks Comments on Proposed DMCA Exemptions
 • Defendants in Hizballah TV Case Plead Guilty

The House will not meet.

The Senate will not meet.

9:00 AM - 12:30 PM. The Public Knowledge and the Silicon Flatirons will host an event titled "Reforming The Federal Communications Commission". See, agenda. Location: Holeman Lounge, National Press Club, 13th Floor, 529 14th St. NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Panavise Product v. National Product, App. Ct. No. 2008-1441, an appeal from the U.S. District Court (CDCal) in a case regarding patent declaratory judgment jurisdiction. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in ICU Medical v. Alaris Medical Systems, App. Ct. No. 2008-1077, regarding needle-less connector valves for intravenous lines. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Depuy Spine v. Medtronic Sofamor, App. Ct. No. 2008-1240, a patent case involving medical implant devices. Location: Courtroom 402, 717 Madison Place, NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking regarding implementation of S 3663 [LOC | WW], "Short-term Analog Flash and Emergency Readiness Act". The FCC adopted and released this NPRM [21 pages in PDF] on December 24, 2008. It is FCC 08-281in MB Docket No. 08-255. See, notice in the Federal Register, December 31, 2008, Vol. 73, No. 251, at Pages 80332-80349.

The House will meet at 12:00 NOON to convence the 111th Congress. It will hold a quorum call, elect the Speaker of the House, administer the oath of office, and adopt rules for the 111th Congress.

The Senate will meet at 12:00 NOON to convene the 111th Congress.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Autogenomics v. Oxford Gene Tech, App. Ct. No. 2008-1217, a appeal from the U.S. District Court (CDCal) in a case regarding personal jurisdiction in patent cases. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in E-Pass Technologies v. 3Com, App. Ct. No. 2008-1144, a patent infringement case. Location: Courtroom 203, 717 Madison Place, NW.

Deadline to submit comments to the Copyright Office (CO) regarding its interim regulation to clarify 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 (DPDs). See, notice in the Federal Register, November 7, 2008, Vol. 73, No. 217, at Pages 66173-66182. See also, story titled "Copyright Office Releases Interim Section 115 Digital Phonorecord Delivery Regulation" in TLJ Daily E-Mail Alert No. 1,854, November 10, 2008.

The House will meet at 10:00 AM. See, Rep. Hoyer's schedule for week of January 5, 2009.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a news conference to announce and release a paper titled "The Digital Road to Recovery: A Stimulus Plan to Create Jobs, Boost Productivity and Revitalize America". Location: National Press Club, 13th floor, 529 14th St.,  NW.

10:00 AM. The House Financial Services Committee (HFSC) will hold a hearing titled "Priorities for the Next Administration: Use of TARP Funds under EESA". See, notice. The HFSC will webcast this hearing. Location: Room 2128, Rayburn Building.

The House and Senate will meet in joint session at 1:00 PM to conduct the formality of counting electoral votes for President. See, Rep. Hoyer's schedule for week of January 5, 2009.

RESCHEDULED FOR JANUARY 15. 9:30 AM. The Senate Judiciary Committee (SJC) may hold a hearing on the likely nomination of Eric Holder to be Attorney General in the Obama administration. The SJC will webcast this hearing. Location? See, notice of extension.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Narton v. Schukra USA, App. Ct. No. 2008-1363. This is an appeal to the U.S. District Court (EDMich) in a patent infringement case involving the issue of lack of standing to sue based upon failure of all inventors to be named on a patent and to join in the suit. Location: Courtroom 402, 717 Madison Place, NW.

10:30 - 11:45 AM. Federal Communications Commission (FCC) Chairman Kevin Martin will give a speech titled "Balancing Deregulation and Consumer Protection". See, notice. Location: American Enterprise Institute, 12th floor, 1150 17th St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking regarding implementation of S 3663 [LOC | WW], "Short-term Analog Flash and Emergency Readiness Act". The FCC adopted and released this NPRM [21 pages in PDF] on December 24, 2008. It is FCC 08-281in MB Docket No. 08-255. See, notice in the Federal Register, December 31, 2008, Vol. 73, No. 251, at Pages 80332-80349.

The House may meet at 10:00 AM. See, Rep. Hoyer's schedule for week of January 5, 2009.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in RFID Tracker v. Wal-Mart Stores, App. Ct. No. 2008-1412. Location: Courtroom 402, 717 Madison Place, NW.

12:00 - 1:30 PM. Google and the New America Foundation (NAF) will host a panel discussion titled "Wiki White House: Can Obama Use Technology to Transform Government?". The speakers will be Craig Newmark (Craigslist), Mindy Finn (former Director of E-Strategy for Mitt Romney for President), Ellen Miller (Sunlight Foundation), Sascha Meinrath (NAF), and Nicholas Thompson (NAF). The NAF states in its notice for this event that it is full. Location: Google, 1101 New York Ave., NW.

12:30 - 2:30 PM. The Department of Homeland Security's (DHS) Homeland Security Advisory Council (HSAC) will hold a closed meeting. See, notice in the December 30, 2008, Vol. 73, No. 250, at Pages 79894-79895. Location: DHS, Nebraska Avenue Complex.

Effective date of the U.S. Patent and Trademark Office's (USPTO) rules of practice amendments that adjust the transmittal and search fees for international applications filed under the Patent Cooperation Treaty (PCT). See, notice in the Federal Register, November 12, 2008, Vol. 73, No. 219, at Pages 66754-66759.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Second Further Notice of Proposed Rule Making (2ndFNPRM) regarding rules to protect AM stations from the potential effects of nearby tower construction. The FCC adopted this 2ndFNPRM on September 24, 2008, and released the text [28 pages in PDF] on September 26, 2008. It is FCC 08-228 in MM Docket No. 93-177. See, notice in the Federal Register, December 11, 2008, Vol. 73, No. 239, at Pages 75376-75381.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding creating a new replacement digital television translator service that will permit full service television stations to continue to provide service to viewers within their coverage area who have lost service as a result of those stations' digital transition. The FCC adopted this item on December 22, 2008, and released the text [14 pages in PDF] on December 23, 2009. It is FCC 08-278 in MB Docket No. 08-253. See, notice in the Federal Register, January 2, 2009, Vol. 74, No. 1, at Pages 61-67.

12/30. Saleh Elahwal and Javed Iqbal pled guilty in U.S. District Court (SDNY) to providing material support or resources to a foreign terrorist organization, in violation of 18 U.S.C. § 2339B.

This relates to their involvement in providing satellite transmission services in the U.S. to Al Manar, a television station in Lebanon that is operated by Hizballah, which is a designated Foreign Terrorist Organization.

Iqbal pled guilty on December 23. Elahwal pled guilty on December 30. See, Department of Justice release.

Section 2339B provides, in part, that "Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization ..., that the organization has engaged or engages in terrorist activity ..., or that the organization has engaged or engages in terrorism ..." (Statutory references deleted.)

See also, stories titled "Grand Jury Indicts US Providers of Hizballah TV" in TLJ Daily E-Mail Alert No. 1,493, November 21, 2006, and "US Attorney in New York Prosecutes Provider of Hizballah TV Broadcasts" in TLJ Daily E-Mail Alert No. 1,438, August 24, 2006.

12/30. The National Institute of Standards and Technology (NIST) published a notice in the Federal Register regarding its 2009 SURF grant programs. These are the NIST's Gaithersburg Summer Undergraduate Research Fellowship Program, and Boulder Summer Undergraduate Research Fellowship Program. The NIST distributes grants for, among other topics, electronics and electrical engineering, and information technology. The deadline for applications is 5:00 PM on February 17, 2006. See, Federal Register, December 30, 2008, Vol. 73, No. 250, at Pages 79817-79822.

12/30. The Copyright Royalty Judges published a notice in the Federal Register that announces, describes, recites, and sets the comment deadline for, its proposed rules changes regarding filing notice of use and the delivery of records of use of sound recordings under two statutory licenses of the Copyright Act. The deadline to submit comments is January 29, 2009. See, Federal Register, December 30, 2008, Vol. 73, No. 250, at Pages 79727-79734.

12/30. The Federal Communications Commission (FCC) published a notice in the Federal Register that requests comments regarding possible revision or elimination of rules under the Regulatory Flexibility Act. The deadline to submit comments is March 2, 2009. See, Federal Register, December 30, 2008, Vol. 73, No. 250, at Pages 79667-79683.

12/30. The National Science Foundation's (NSF) National Coordination Office for Networking Information Technology Research and Development (NCO/NITRD) published a notice in the Federal Register that requests comments that contain "promising game-changing ideas with the potential to reduce vulnerabilities to cyber exploitations by altering the cybersecurity landscape". The deadline to submit comments is February 20, 2009. See, Federal Register, December 30, 2008, Vol. 73, No. 250, at Pages 79919-79921.

12/22. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released a draft of SP 800-120 [50 pages in PDF] titled "Recommendation for EAP Methods Used in Wireless Network Access Authentication". Comments are due by January 30, 2009.

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