6/30. President Obama signed into law HR 2344 [LOC | WW], the "Webcaster Settlement Act of 2009". See, White House news office release.

This bill makes further changes to 17 U.S.C. § 114, which pertains to the scope of exclusive rights in sound recordings. In the 110th Congress, HR 7084 [LOC | WW], the "Webcaster Settlement Act of 2008", made webcasting related changes to § 114.

See also, stories titled "House Judiciary Committee Approves Webcaster Settlement Act" in TLJ Daily E-Mail Alert No. 1,938, May 13, 2009, and "House Passes Webcaster Settlement Act of 2009" in TLJ Daily E-Mail Alert No. 1,952, June 10, 2009.

7/2. The Judicial Council of the Third Circuit, a panel comprised of eleven Judges of the U.S. Court of Appeals (3rdCir), issued its opinion in its judicial misconduct proceeding regarding Alex Kozinski, Chief Judge of the U.S. Court of Appeals (9thCir).

The panel publicly "admonished" Kozinski for publishing "sexually explicit offensive material" in his publicly available web site. However, other than releasing a detailed opinion containing this public admonishment, the panel determined to take no further action against Kozinski.

The panel opinion contains descriptions of some of the content of Kozinski's web site: "a photo of naked women on all fours painted to look like cows", "a video of a half-dressed man cavorting with a sexually aroused farm animal", and "a graphic step-by-step pictorial in which a woman is seen shaving her pubic hair".

The opinion states that Kozinski published these items, and others, in a web site located at http://alex.kozinski.com/. These items were accessible to anyone with a web browser. They were accessible to web spiders and crawlers. And, they were accessible to a California attorney with grievance against the 9th Circuit, who disclosed their existence to the Los Angeles Times, which wrote a news story about them.

The panel opinion relates in lengthy detail the history of the offensive files, the web site, and its configuration. The gist of Kozinski's main argument on his behalf was that he did not understand that files in his web site were publicly available. The panel accepted and relied upon this in merely admonishing Kozinski.

Whatever this proceeding might reveal about Judge Kozinski's personal life, it shows that he maintained throughout the relevant time period a profound ignorance of the nature of the internet, world wide web, and browsers. Yet, also during this time period Kozinski wrote ground breaking opinions affecting internet based activities, including opinions that disregarded statutory language and appellate precedent.

Judge Kozinski's education regarding the internet began on June 11, 2008, when the first newspaper article was published. See, story by Scott Glover.

Prior to then, Kozinski wrote both the May 15, 2007, three judge panel opinion, and the April 3, 2008, en banc opinion in FHCSFV v. Roommates.com, 521 F.3d 1157. In this case, Kozinski and the majority of the Court held that an interactive computer service, such as Roommates.com, can be held liable for the speech of users, despite language to the contrary in Section 230. Moreover, the web site's search and e-mail notification functions, have no immunity.

See also, stories titled "9th Circuit Holds Roommates.com May be Liable for Speech of Users" in TLJ Daily E-Mail Alert No. 1,581, May 15, 2007; "9th Circuit to Rehear Section 230 Case En Banc" in TLJ Daily E-Mail Alert No. 1,657, September 18, 2007; and "En Banc 9th Circuit Panel Rejects Section 230 Immunity in Roommates.com Case" in TLJ Daily E-Mail Alert No. 1,741, April 2, 2008.

See also, the July 14, 2008, short per curiam opinion of the Court of Appeals in USA v. Whitehead, in which the Court held that in a criminal prosecution for violation of the DMCA anti-circumvention provisions, the government need not allege or prove that the party whose technological measures were circumvented had authority from the copyright holder to use those technological measures. This holding is consistent with the statute. See also, story titled "9th Circuit Affirms DMCA Criminal Conviction" in TLJ Daily E-Mail Alert No. 1,794, July 15, 2008.

The just released panel opinion states that "The identified conduct at the core of this Complaint consists of the possession of sexually explicit offensive material combined with its public accessibility."

It concluded that "We join with the Special Committee in admonishing the Judge that his conduct exhibiting poor judgment with respect to this material created a public controversy that can reasonably be seen as having resulted in embarrassment to the institution of the federal judiciary."

This matter was transferred from the 9th Circuit to the 3rd Circuit because Judge Kozinski is the Chief Judge of the 9th Circuit.

6/29. The Supreme Court granted certiorari in American Needle v. National Football League, and antitrust case involving licensing of intellectual property (NFL and team logos and trademarks). See, Orders List [11 pages in PDF] at page 3, and Supreme Court docket.

NFL Properties, the intellectual property licensing arm of the NFL, previously licensed American Needle to make and sell headware, such as baseball caps and stocking hats, with logos of the NFL and NFL teams. In 2000, NFL Properties negotiated an exclusive headware license with Reebock.

American Needle filed a complaint in the U.S. District Court (NDIll) against the NFL and others alleging violation of Sections 1 and 2 of the Sherman Act. The District Court granted summary judgment to the NFL defendants.

The U.S. Court of Appeals (7thCir) issued its opinion on August 18, 2008, affirming the judgment of the District Court.

This case is American Needle, Inc. v. National Football League, et al., Supreme Court of the U.S., Sup. Ct. No. 08-661, a petition for writ of certiorari to the U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 07-4006.

6/29. The Supreme Court of the U.S. (SCUS) denied certiorari in both Level 3 Communications v. St. Louis and Sprint v. San Diego. See, Orders List [11 pages in PDF] at page 4. These are disputes between telecom companies and municipalities involving 47 U.S.C. § 253.

§ 253(a) provides that "No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." Then, § 253(c) provides that "Nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed by such government."

This lets stands September 4, 2008, opinion [7 pages in PDF] of the U.S. Court of Appeals (8thCir), which affirmed the District Court's summary judgment for the municipality, and the September 11, 2008, opinion [17 pages in PDF] of the U.S. Court of Appeals (9thCir), which held that San Diego's ordinance does not effectively prohibit Sprint from providing wireless services.

For more information about these cases, see story titled "DOJ and FCC Urge SCUS to Deny Cert in Section 253 Cases" in TLJ Daily E-Mail Alert No. 1,945, June 1, 2009.

6/29. The Supreme Court issued two Orders Lists and concluded its October 2008 Term. The opening conference of the October 2009 Term will be held on September 29, 2009. The Supreme Court adjourned without ruling on the petition for writ of certiorari filed by Joseph Nacchio on March 20, 2009. The Supreme Court docket states that this petition was "DISTRIBUTED for Conference of June 25, 2009."

See, stories titled "5-4 En Banc Panel Affirms Nacchio Conviction" in TLJ Daily E-Mail Alert No. 1,906, February 27, 2009, and "10th Circuit Reverses Nacchio's Conviction" in TLJ Daily E-Mail Alert No. 1,732, March 18, 2008.

See also, story titled "Bush Responds to USA Today Story Regarding NSA Database of Phone Calls" in TLJ Daily E-Mail Alert No. 1,369, Friday, May 12, 2006, and story titled "BellSouth and Verizon Attack USA Today Story" in TLJ Daily E-Mail Alert No. 1,372, Wednesday, May 17, 2006.

The Office of the Solicitor General filed a brief on May 29, 2009, urging the Supreme Court to deny certiorari.

See also, National Association of Criminal Defense Lawyers (NACDL) amicus brief, Washington Legal Foundation (WLF) amicus brief, and U.S. Chamber of Commerce amicus brief in support of Nacchio.

This case is Joseph Nacchio v. U.S., Supreme Court of the U.S., Sup. Ct. No. 08-1172, a petition for writ of certiorari to the U.S. Court of Appeals for the 10th Circuit, App. Ct. No. 07-1311. The Court of Appeals heard an appeal from the U.S. District Court for the District of Colorado, D.C. No. 05-CR-545-N.

7/1. News media have reported that the People's Republic of China's (PRC) Ministry of Industry and Information Technology (MIIT) announced a delay of its Green Dam mandate, which had been scheduled to take effect on July 1, 2009.

The Office of the U.S. Trade Representative (OUSTR) and the Department of Commerce (DOC) stated on June 24, 2009, that they wrote to the PRC about the Green Dam mandate. See, story titled "OUSTR and Department of Commerce Write PRC Regarding Green Dam Mandate" in TLJ Daily E-Mail Alert No. 1,962, June 29, 2009.

Leslie Harris, head of the Center for Democracy and Technology (CDT), stated in a release that "The Chinese government's pull back demonstrates that a strong push back on government demands that threaten free expression and privacy can make a difference. The open disapproval of Chinese users and the unambiguous, collaborative response from industry and the United States government had a tremendous impact."

She added that government mandates "put companies in the position of assisting with censorship or unlawful surveillance, are not just concerns for Internet companies."

Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "This shows that when US trade officials get involved, they get results. Internet censorship is a widespread problem and for too long companies have been left on their own to negotiate with other nations. Companies don't want to be caught in the middle. It's hard for individuals and companies to fight governments. You need governments to fight governments."

Black added that "we would like to see the US government negotiate issues of Internet openness and freedom in a broad, systematic way as part of trade and other international agreements."

Gary Shapiro, head of the Consumer Electronics Association (CEA), stated in a release that "Technology mandates are dangerous. Access to information is vital, and mandating one system makes that system vulnerable to control and to hacking."

He also said that "We remain concerned that this is a delay and not a death of this proposal."

The House will not meet the week of June 29 through July 3. It will next meet on July 7, 2009, at 2:00 PM.

The Senate will not meet the week of June 29 through July 3. It will next meet on July 6, 2009, at 2:00 PM. See, Senate calendar.

TIME CHANGE. 11:30 AM. The Federal Communications Commission (FCC) is scheduled to hold an event titled "Open Meeting". The FCC's latest agenda includes no items for adoption. Its states that "The Meeting will include a presentation on the status of the Commission’s process for developing a National Broadband Plan and a presentation on the Digital Television transition." Location: FCC, Room TW-C305, 445 12th St., NW.

Federal Holiday. See, OPM list of holidays.

Independence Day.

The House will not meet.

The Senate will meet at 2:00 PM.

10:00 AM. The U.S. Court of Appeals (FedCir) will consider on the briefs Orenshteyn v. Citrix Systems, App. Ct. No. 2003-1427. Location: Courtroom 201.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the March 12, 2009, petition filed by Denali Spectrum License Sub, LLC asking the FCC to forbear from applying the unjust enrichment provisions of the FCC's competitive bidding rules. See, notice in the Federal Register, June 9, 2009, Vol. 74, No.109, at Pages 27318-27319.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its public notice regarding technical specifications for FM digital audio broadcasting (DAB). This public notice is DA 09-1127 in MM Docket No. 99-325. See, notice in the Federal Register, June 12, 2009, Vol. 74, No. 112, at Pages 27985-27988.

The House will return from its Independence Day District Work Period at 2:00 PM.

8:30 AM - 3:00 PM. The National Institute of Standards and Technology's (NIST) Technology Innovation Program Advisory Board will meet. See, notice in the Federal Register, June 23, 2009, Vol. 74, No. 119, at Pages 29675-29676. Location: NIST, Administration Building, Employees' Lounge, Gaithersburg, MD.

2:30 PM. The Senate Judiciary Committee's (SJC) Subcommittee on Antitrust will hold a hearing titled "The Bowl Championship Series: Is it Fair and In Compliance with Antitrust Law?". See, notice. Location: Room 226, Dirksen Building.

TIME? The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to discuss the International Telecommunication Union's (ITU) Regional Preparatory Meeting for the World Telecommunication Development Conference on August 13-25, 2009 in Lima, Peru. See, notice in the Federal Register, June 22, 2009, Vol. 74, No. 118, at Pages 29529-29530. Location: AT&T, 10th floor, 1120 20th St., NW.

Effective date of the Federal Communications Commission's (FCC) final rule regarding the reconfigured 800 MHz band plan established for the U.S.-Canada border contained in the Fourth Memorandum Opinion and Order released on February 25, 2009. This 4thMO&O is DA 09-442 in WT Docket No. 02-55. See, notice in the Federal Register, May 5, 2009, Vol. 74, No. 85, at Pages 20602-20605.

9:30 AM. There will be an event to release a report titled "PointSmart ClickSafe. Task Force Best Practice Recommendations for Child Online Safety". The report is the product of a coalition of companies and groups, including AOL, Comcast, Cox, Google, Symantec, Yahoo, Verizon, Common Sense Media, Internet Keep Safe Coalition, PTA, Family Online Safety Institute, and Children's Partnership. Location: Room HC-6, Capitol Building.

9:30 AM - 12:30 PM. The National Archives and Records Administration's (NARA) Information Security Oversight Office's (ISOO) Public Interest Declassification Board (PIDB) will meet. See, notice in the Federal Register, June 23, 2009, Vol. 74, No. 119, at Pages 29729-29730. Location: NARA, Room 105, 700 Pennsylvania Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Sky Technologies v. SAP, App. Ct. No. 2008-1606. Location: Courtroom 201.

2:00 PM. The Senate Commerce Committee (SCC) will meet to mark up several bills, including S 649 [LOC | WW], the "Radio Spectrum Inventory Act". See, notice. Location: Room 253, Russell Building.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry [59 pages in PDF] regarding the drafting of a "national broadband plan", as required by Section 6001(k) of HR 1 [LOC | WW], the huge spending bill passed by the Congress in February. See also, "Broadband Plan Statute: Public Law No. 111-5, § 6001(k)" and stories titled "FCC Releases NOI on Broadband Plan" and "Additional Questions Asked by FCC's Broadband Plan Notice of Inquiry" in TLJ Daily E-Mail Alert No. 1,924, April 11, 2009. This NOI is FCC 09-31 in Docket No. GN 09-51.

Deadline to submit comments to the Internet Corporation for Assigned Names and Numbers (ICANN) regarding its document [PDF] titled "Proposals for the Systematization of ICANN’s Organizational Review Processes".

RESCHEDULED FROM JUNE 18. 10:00 AM. The House Foreign Affairs Committee's (HFAC) Subcommittee on Terrorism, Nonproliferation and Trade will hold a hearing titled "The Export Administration Act: A Review of Outstanding Policy Considerations". See, notice. Location: Room 2172, Rayburn Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Resqnet.com v. Lansa, App. Ct. No. 2008-1365. Location: Courtroom 201.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in L-3 Communications v. US, App. Ct. No. 2008-5111. Location: Courtroom 201.

12:00 NOON. The National Economists Club (NEC) will host a lunch titled "Green Jobs and Patent Protection: The Clean Technologist Case for Consistent Policymaking". The speaker will be Robert Shapiro (ecoIDEA Institute). To make reservations, contact 703-493-8824 or info at national-economists dot org. Location: Chinatown Garden Restaurant, 2nd floor, 618 H St., NW.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its "Release 1.0 of the Smart Grid Interoperability Standards Framework". See, notice in the Federal Register: June 9, 2009, Vol. 74, No. 109, at Pages 27288-27289.

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