2/20. The U.S. Court of Appeals (9thCir) issued its opinion [30 pages in PDF] in Video Software Dealers Association v. Schwarzenegger, holding that the state of California's statute that mandates labeling of violent video games violates the First Amendment.

In 2005, the California legislature enacted, and the governor signed, an act that regulates the sale of a "violent video game", which is defined as games that include "killing, maiming, dismembering, or sexually assaulting an image of a human being".

The act imposes a labeling requirement -- a two inch by two inch black and white label on the front of the game's packaging.

This act is codified at California Civil Code §§ 1746-1746.5.

The Video Software Dealers Association (VSDA), which is now the Entertainment Merchant Association (EMA), and the Entertainment Software Association (ESA) filed a complaint in the U.S. District Court (NDCal) against Arnold Schwarzenegger, in his capacity of Governor of California, and others, challenging the constitutionality of the act.

The District Court held the act unconstitutional. California brought the present appeal.

The Court of Appeals affirmed.

It held that the act is a "presumptively invalid content-based restriction on speech", and that it subject to the "strict scrutiny" standard of review, rather than the "variable obscenity" standard articulated by the Supreme Court in its 1968 opinion in Ginsberg v. New York, 390 U.S. 629.

The Court of Appeals held that "the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State's expressed interests."

It also held that "the Act's labeling requirement is unconstitutionally compelled speech under the First Amendment because it does not require the disclosure of purely factual information; but compels the carrying of the State's controversial opinion."

The Court of Appeals did not rule on other grounds for challenging the statute, including void for vagueness and equal protection.

Michael Gallagher (at left), head of the ESA, stated in a release that "This is a clear signal that in California and across the country, the reckless pursuit of anti-video game legislation like this is an exercise in wasting taxpayer money, government time, and state resources. In the end, common sense prevailed with the court determining that, after exhaustive review, video games do not cause psychological or neurological harm to minors. And, that the ESRB rating system, educational campaigns and parental controls are the best tools for parents to help control what their children play."

This case is Video Software Dealers Association and Entertainment Software Association v. Arnold Schwarzenegger, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 07-16620, an appeal from the U.S. District Court for the Northern District of California, D.C. No. CV-05-04188-RMW.

Judge Consuelo Callahan wrote the opinion of the Court of Appeals, in which Judges Alex Kozinski and Sidney Thomas joined.

2/17. The Department of Justice's (DOJ) Antitrust Division filed its memorandum [40 pages in PDF] in support of its motion for summary judgment on the issue of liability with the U.S. District Court (DSCar) in US v. Consolidated Multiple Listing Services. This is an antitrust action involving real estate brokers, in which one allegation is that restrictions on out of area brokers blocks internet and technology based competition.

The US states that Consolidated Multiple Listing Services, Inc. (CMLS) operates the only multiple listing service database in the Columbia, South Carolina, area. The US alleges that CMLS is blocking competition in violation of Section 1 of the Sherman Act, which is codified at 15 U.S.C. § 1.

One of the allegations is that "CMLS insulated itself from competition from brokers outside of the Columbia area by requiring that all brokers maintain an office in the CMLS service area", which restricts competition from internet based brokers.

The memorandum states that "Technology advances have allowed brokers in other parts of South Carolina and around the country to reduce their overhead and expand the territory they serve. ... CMLS has excluded these brokers from the Columbia area."

The memorandum also states that "CMLS required all new members to maintain commercial offices and prohibited them from operating out of their homes."

This case is USA v. Consolidated Multiple Listing Services, Inc., U.S. District Court for the District of South Carolina, Columbia Division, D.C. No. 3:08-CV-01786-SB, Judge Sol Blatt presiding.

2/17. The U.S. Court of Appeals (10thCir) issued its opinion [17 pages in PDF] in La Resolana Architects v. Reno, Inc., a copyright case involving architectural plans. The Court of Appeals affirmed the District Court's judgment for the defendants.

This case illustrates the difficulties faced by authors, such as architects, who create works, show them to prospective licensors, and then try to prove that a prospective licensor infringed the copyright.

The plaintiff copyright holder has the burden of proving copying, as opposed to use of another work created by a second architect or other author. To prove copying, the plaintiff must show access to the work, and substantial similarity. While the burden of proof is in the plaintiff, personal knowledge of key facts is held only by defendants.

Personal knowledge of access is held only by the prospective licensor and the second author, both of whom are hostile witnesses. Also, similarities between the two works can be explained as deriving, not from copying, but from a common set of instructions provided by the prospective licensor.

In the present case, the plaintiff, La Resolana Architects, is an architectural firm located in the state of New Mexico. At the request of Southwest Investment Trust (SWIT), Clay, Inc., and associated parties who planned to build homes, La Resolana created a series of plans for these homes, and delivered them by fax. It then sent a price quote, which the builders did not accept. The builders then switched to a second architect, and proceeded to build homes according to his plans.

Key personnel for the builders denied receiving La Resolana's plans, denied providing them to the second architect, and argued that the similarities between La Resolana's plans and the second architect's plans derived from a common set of detailed verbal instructions provided to both architects. La Resolana denied receiving such instructions.

The District Court found the defendant builders to be credible witnesses, and granted judgment to them on the copyright claim. The District Court also rejected a Lanham Act false designation of origin claim, and a state unfair trade practices claim. The Court of Appeals affirmed.

This case is La Resolana Architects, PA v. Reno, Inc., et al., U.S. Court of Appeals for the 10th Circuit, App. Ct. No. 06-2232, an appeal from the U.S. District Court for the District of New Mexico, D.C. No. D.C. No. CIV-05-1017-PK.

2/19. Mary Ellen Callahan was named Chief Privacy Officer of the Department of Homeland Security (DHS). See, release. She works for the law firm of Hogan & Hartson.

2/19. Robert Khuzami was named Director of the Securities and Exchange Commission's (SEC) Division of Enforcement. See, SEC release. He replaces Linda Thomsen.

2/13. Federal Communications Commission (FCC) Chairman Michael Copps named Michele Ellison the acting FCC General Counsel. She replaces Matthew Berry. Ellison has worked at the FCC since 1995. See, FCC release.

2/13. The Intellectual Property Owners' Association (IPO) wrote in its web site that "Gregg’s withdrawal probably means further delay in selecting a new USPTO Director".

2/12. The Senate Commerce Committee (SCC) announced its Subcommittees and Subcommittee Chairmen for the 111th Congress. Sen. John Kerry (D-MA) will be the Chairman of the Subcommittee on Communications and Technology. Sen. John Ensign (R-NV) will be the ranking Republican. See SCC release.

2/19. The U.S. Court of Appeals (1stCir) issued its opinion in Brown v. US, a negligence case involving the location of utility poles. Ian Brown rode a motorcycle into a road side utility pole. He and his parents sued all manner of deep pocket defendants, including Verizon New England.  The present appeal is from the summary judgment for several defendants. The Court of Appeals affirmed. This case is Ian Brown, et al. v. U.S., et al., U.S. Court of Appeals for the 1st Circuit, App. Ct. No. 07-2654, an appeal from the U.S. District Court for the District of Massachusetts.

2/18. The U.S. Court of Appeals (5thCir) issued its opinion [PDF] in Agere Systems v. Samsung Electronics, reversing the judgment of the District Court. Agere filed a complaint in the U.S. District Court (EDTex) alleging breach of a patent licensing agreement. This appeals concerns an arbitration clause in a patent licensing agreement. The District Court denied a motion to compel arbitration. The Court of Appeals reversed. It held that there is a legitimate dispute as to whether the relevant arbitration clause covers the present dispute, and that the arbitrator should decide arbitrability. This case is Agere Systems, Inc. v. Samsung Electronics Company LTD, U.S. Court of Appeals for the 5th Circuit, App. Ct. No. 07-40984, an appeal from the U.S. District Court for the Eastern District of Texas, D.C. No. 2:06-CV-185.

2/19. The U.S. Court of Appeals (FedCir) issued its divided opinion [PDF] in SKF USA v. U.S. Customs and Border Protection, a case regarding the trade protectionism statute know as the "Byrd Amendment" and as the "Continued Dumping and Subsidy Offset Act of 2000". The U.S. Customs and Border Protection denied SKF USA's request for Byrd money on the grounds that it had not been a petitioner and had not supported the petition resulting in the relevant antidumping duty order. SKF challenged the constitutionality of these requirements. The U.S. Court of International Trade held that these requirements violated the First Amendment and equal protection. The Court of Appeals reversed, holding that the Byrd Amendment is constitutional. This case is SKF USA, Inc. v. U.S. Customs and Border Protection, et al., U.S. Court of Appeals for the Federal Circuit, App. Ct. Nos. 2008-1005, 2008-1006, 2008-1007, and 2008-1008, appeals from the U.S. Court of International Trade. Judge Dyk wrote the opinion of the Court of Appeals, in which Judge Richard Stearns (USDC/DMass) joined. Linn wrote a long dissent.

2/17. The U.S. Court of Appeals (9thCir) issued an order [2 pages in PDF] and an opinion [12 pages in PDF] in Sullivan v. Oracle, a case regarding overtime compensation for workers employed to train Oracle customers in the use of its software. The Court of Appeals issued its initial opinion on November 6, 2008. See, "More News" in TLJ Daily E-Mail Alert No. 1,853, November 5, 2008. The Court of Appeals now withdraws that opinion, and certifies several questions to the Supreme Court of California. This case is Donald Sullivan, et al. v. Oracle Corporation, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 06-56649, a appeal from the U.S. District Court for the Central District of California, D.C. No. CV-05-00392-AHS.

2/17. The Federal Communications Commission (FCC) published a notice in the Federal Register that announces, describes, recites, and sets the effective date (March 19, 2009) for, its new rules regarding allowing unlicensed radio transmitters to operate in the broadcast television spectrum at locations where that spectrum is not being used by licensed services. These are the rules adopted in the FCC's white space order. This item is FCC 08-260 in ET Docket No. 04-186. See, story titled "FCC Adopts White Space Order" in TLJ Daily E-Mail Alert No. 1,852, November 4, 2008. See, Federal Register, February 17, 2009, Vol. 74, No. 30, at Pages 7314-7332.

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This issue contains the following items:
 • 9th Circuit Holds California Video Games Statute Unconstitutional
 • Antitrust Division Files Brief in US v. CMLS
 • 10th Circuit Considers Access and Substantial Similarity in Copyright Cases

The House will return from its one week recess. It will meet at 2:00 PM for legislative business. It will consider several non-technology related items under suspension of the rules. Votes will be postponed until 6:30 PM. See, Rep. Hoyer's schedule for week of February 23.

The Senate will return for its one week recess. It will meet at 2:00 PM. It will resume consideration of S 160, a bill to provide the District of Columbia a seat in the House.

10:00 AM - 12:00 NOON. The Federal Communications Commission's (FCC) World Radiocommunications Conference (WRC-11) Advisory Committee's Informal Working Group 4: Regulatory Issues will meet. See, notice and FCC's WRC-11 web site. Location: FCC, North Conference Room, 6th floor, Rooms 6-B112 and 6-B142, 445 12th St., SW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the October 8, 2008, Petition for Rulemaking [18 pages in PDF] submitted by the CTIA regarding transitioning certain cellular licensing rules to a geographic market area based licensing system. See, FCC's Public Notice numbered DA 09-5, and notice in the Federal Register, January 22, 2009, Vol. 74, No. 13, at Pages 4036-4037. This proceeding is RM No. 11510.

The House will meet at 10:30 AM for morning hour, and at 12:00 NOON for legislative business. It will consider several non-technology related items under suspension of the rules. At about 9:00 PM President Obama will give a speech to a joint session of the House and Senate. See, Rep. Hoyer's schedule for week of February 23.

9:00 AM - 5:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "The Communications Act and the FCC at 75 Seminar". Prices vary. See, registration page. Location: Wiley Rein, 1776 K St., NW.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Communications, Technology, and the Internet will hold a hearing titled "Reauthorization of the Satellite Home Viewer Extension and Reauthorization Act". The witnesses will be Derek Chang (DirecTV), Thomas Cullen (Dish Network), Martin Franks (CBS), Willard Rowland (Colorado Public Television), James Yager (Barrington Broadcasting Group), Gigi Sohn (Public Knowledge), and Kenneth Ferree (Progress & Freedom Foundation). The HCC will webcast this hearing. See, notice. Location: Room 2123, Rayburn Building.

10:00 AM. The Senate Banking Committee (SBC) will hold a hearing to receive the Federal Reserve Board's (FRB) Semiannual Monetary Policy Report to the Congress. The witness will be Ben Bernanke, FRB Chairman. See, notice. Location: Room 216, Hart Building.

11:00 AM. The Supreme Court will hear oral argument in Carlsbad Technology v. HIF Bio, Sup. Ct. No. 07-1437, a petition for writ of certiorari to the U.S. Court of Appeals (FedCir), App. Ct. No. 2006-1522. See, Supreme Court docket and question presented. Location: Supreme Court, 1 First St., NW.

12:00 NOON - 2:00 PM. The DC Bar Association and the DC Chapter of the Copyright Society will host a closed event titled "The Copyright Office Speaks". The speaker will be Marybeth Peters, Register of Copyright. See, notice. Prices vary from $55 to $65. For more information, call 202-626-3488. Location: City Club of Washington, 1300 I St., NW.

2:30 PM. The Senate Judiciary Committee's (SJC) Subcommittee on Antitrust, Competition Policy and Consumer Rights will hold a hearing titled "The Ticketmaster/Live Nation Merger: What Does it Mean for Consumers and the Future of the Concert Business?". The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

6:00 - 7:00 PM. The DC Bar Association will host an event titled "Kauffman Foundation Distinguished Lecture in Antitrust, Entrepreneurship & Innovation". See, notice. For more information, call Jennifer Dabson at 202-274-4077. Location: American University law school, 6th floor, 4801 Massachusetts Ave., NW.

Ash Wednesday.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of February 23.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host an event to release a report titled "The Atlantic Century: Benchmarking U.S. and EU Innovation and Competitiveness". This report report ranks 36 countries, the NAFTA region, and the EU-15, EU-10, and EU-25 areas, on 16 indicators of the extent to which their economies are able to compete based on innovation. The speakers will be Robert Atkinson (ITIF), John Kao, and Vivek Wadhwa. Kao is also the author of the 2007 book [Amazon] titled "Innovation Nation: How America Is Losing Its Innovation Edge, Why It Matters, and What We Can Do to Get It Back". See, registration page. Location?

9:00 AM - 12:15 PM. The The Federal Communications Commission's (FCC) Public Safety and Homeland Security Bureau (PSHSB) will host an event titled "Summit on Deployment and Operational Guidelines for Next Generation IP-Enabled 911 and Enhanced 911 Services". See, notice and agenda [3 pages in PDF]. Location: FCC, Commission Meeting Room (TW-C305).

10:00 AM. The House Homeland Security Committee (HHSC) will hold a hearing titled "DHS: the Path Forward". The witness will Janet Napolitano, Secretary of Homeland Security. The HHSC will webcast this hearing. Location: Room 311, Rayburn Building.

10:00 AM. The House Judiciary Committee (HJC) will hold a hearing titled "Copyright Licensing in a Digital Age: Competition, Compensation and the Need to Update the Cable and Satellite TV Licenses". See, notice. The HJC will webcast this hearing. Location: Room 2141, Rayburn Building.

10:00 AM. The House Science Committee (HSC) will hold a hearing titled "Impacts of U.S. Export Control Policies on Science and Technology Activities and Competitiveness". See, notice. Location: Room 2318, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Ensuring Television Carriage in the Digital Age". See, notice. The SJC will webcast this event. Location: Room 226, Dirksen Building.

2:00 PM. The Senate Judiciary Committee (SJC) will hold a hearing on the nominations of Dawn Johnsen to be Assistant Attorney General in charge of the Office of Legal Counsel (OLC), and David Kris to be Assistant Attorney General in charge of the National Security Division (NSD). The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

6:00 - 8:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Happy Hour". For more information, contact Neil Chilson at nchilson at wbklaw dot com. Location: Beacon Bar and Grill, 1615 Rhode Island Ave., NW.

Deadline to submit requests to testify orally at the Office of the U.S. Trade Representative's (OUSTR) March 4, 2009, hearing regarding its plans to initiate negotiations on a Trans-Pacific Partnership free trade agreement with Singapore, Chile, New Zealand, Brunei Darussalam, Australia, Peru and Vietnam. See, notice in the Federal Register, January 26, 2009, Vol. 74, No. 15, at Pages 4480-4482.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of February 23.

9:15 AM - 4:00 PM. The Free State Foundation will host a one day conference titled "New Directions in Communications Policy". The keynote speaker will be Rep. Marsha Blackburn (R-TN). There will be panels on broadband policy and net neutrality, universal service and intercarrier compensation issues, and media regulatory policy. The speakers will include Michael Powell, Deborah Tate, Richard Wiley, Robert Atkinson (ITIF), Steve Davis (Qwest), Gerald Brock (George Washington University), Jeff Campbell (Cisco), Jim Cicconi (AT&T), Robert Crandall (Brookings Institution), Diane Disney (Pennsylvania State University), James Gattuso (Heritage Foundation), Ellen Goodman (Rutgers School of Law), John Mayo (Georgetown University), Kyle McSlarrow (NCTA), Glen Robinson (University of Virginia Law School), Jim Speta (Northwestern University School of Law), Tom Sugrue (T-Mobile), Tom Tauke (Verizon), Joe Waz (Comcast), Steven Wildman (Michigan State University), and Christopher Yoo (University of Pennsylvania Law School). This event is free. RSVP to Susan Reichbart at sreichbart at freestatefoundation dot org. Location: National Press Club, 13th Floor, 529 14th St. NW.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Courts and Competition Policy will hold a hearing titled "Competition in the Ticketing and Promotion Industry". See, notice. The HJC will webcast this hearing. Location: Room 2141, Rayburn Building.

10:00 AM. The House Science Committee (HSC) will hold a hearing titled "Beyond the Classroom: Informal STEM Education". See, notice. Location: Room 2318, Rayburn Building.

Deadline to submit written comments to the U.S. Patent and Trademark Office (USPTO) regarding whether or not to adopt some form of deferred examination for patent applications. See, notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Pages 4946-4947.

Rep. Hoyer's schedule for week of February 23 states that no votes are expected in the House.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Legislative, Wireless and Wireline Committees will host a brown bag lunch titled "Broadband and the Economy: What should be the role of Broadband in Stimulating U.S. Economic Recovery". Location: USTelecom, Suite 400, 607 14th St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding application of the closed captioning rules to digital broadcasting, specifically to broadcasters that choose to use their digital allotment to multicast several streams of programming. The FCC adopted this item on November 3, 2008, and released the text [57 pages in PDF] on November 7, 2008. It is FCC 08-255 in CG Docket No. 05-231. See, notice in the Federal Register, January 13, 2009, Vol. 74, No. 8, at Pages 1654-1661.

Deadline to submit initial comments to the Federal Communications Commission (FCC) to assist it in preparing a report to the Congress on the status of competition in markets for the delivery of video programming. The FCC engaged in the legal fiction of adopting a Notice of Inquiry (NOI) on November 27, 2007. It did not release the text [41 pages in PDF] of a NOI until January 16, 2009. It is FCC 07-207 in MB Docket 07-269. This NOI requests comments regarding "changes in the marketplace between 2006 and 2007". See, notice in the Federal Register, February 11, 2009, Volume 74, No. 27, at Pages 6875-6882.

5:00 PM. Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division regarding its draft [149 pages in PDF] of Special Publication 800-85A-1, titled "PIV Card Application and Middleware Interface Test Guidelines".

10:00 - 11:30 AM. The Interactive Advertising Bureau (IAB) will host an event titled "Political Online Advertising in the 2008 Election: Politics Will Never Be the Same Again". See, notice and registration page. Location: Venable, 575 7th St., NW.

10:00 AM. Deadline for foreign governments to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. These comments assist the OUSTR in fulfilling its obligations under Section 182 of the Trade Act Act of 1974. See, notice in the Federal Register, January 23, 2009, Vol. 74, No. 14, Page 4263-4264.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding possible revision or elimination of rules under the Regulatory Flexibility Act. See, notice in the Federal Register, December 30, 2008, Vol. 73, No. 250, at Pages 79667-79683.

Deadline to submit FCC Form 477 to the Federal Communications Commission (FCC). This is the FCC semi-annual form for collection of data on local telephone and broadband internet access lines. See also, February 12, 2009, Public Notice [2 pages in PDF].