7/15. The Library of Congress's (LOC) Copyright Office (CO) published a notice in the Federal Register that announces a limited rulemaking proceeding regarding registration of copyright in online works.

The Copyright Act, and the CO's regulations, have long been out of date in the area of registration of online works, such as web sites, blogs and e-mail. However, this rulemaking addresses only the subject of deposit of electronic works.

This notice announces this rulemaking, sets comment deadlines, and recites and describes the proposed rule changes. The deadline to submit initial comments is August 31, 2009. The deadline to submit reply comments is September 28, 2009. This notice does not announce any hearings or workshops.

This notice states that the CO proposes regulations "governing mandatory deposit of electronic works published in the United States and available only online. The amendments would establish that such works are exempt from mandatory deposit until a demand for deposit of copies or phonorecords of such works is issued by the Copyright Office. They would also set forth the process for issuing and responding to a demand for deposit, amend the definition of a ``complete copy´´ of a work for purposes of mandatory deposit of online-only works, and establish new best edition criteria  for electronic serials available only online."

This is not a comprehensive review of the CO's rules related to registration of works in new media. It only addresses mandatory deposit. This proceeding may pertain more to the LOC's desire to acquire and preserve electronic journals, than to its mission of facilitating the protection of the rights of authors, and thereby, incenting the creation and distribution of new works. The LOC does not have subscriptions to many online publications. Many of its subscriptions are access only. These new rules will enable the LOC to build its collections.

This notice says nothing about how the LOC will, or will not, maintain the security of these electronic collections.

The Copyright Act provides that registration is a prerequisite for bringing a lawsuit for infringement of copyright. See, 17 U.S.C. § 411. The Act also provides certain basic requirements for the registration of copyrights. 17 U.S.C. § 408 addresses registration in general. It provides, in part, that "the material deposited for registration shall include ... in the case of a published work, two complete copies or phonorecords of the best edition". Then, 17 U.S.C. § 409 addresses the application for copyright registration. However, these statutory sections predate the internet.

In addition, the CO has written implementing regulations for registration of copyright. See, 37 C.F.R. § 202. However, the CO has failed to update these regulations to take into account the invention of the internet, the web, e-mail, and the many media in which digital content can be stored, delivered, and read. The regulations were drafted for a time in which daily newspapers, journals, other serials, and other written works were authored and published on paper.

There has long been considerable uncertainty, even among CO examiners and copyright attorneys, as to how to register online works. There is also uncertainty as to whether courts will invalidate diligent and good faith registrations, and deprive owners of copyright protection. See, for example, story titled "District Court Holds Copyright Registration Invalid on Technicality" in TLJ Daily E-Mail Alert No. 1,017, November 12, 2004, and story titled "8th Circuit Rules Against Copyright Owner on Registration Errors" in TLJ Daily E-Mail Alert No. 1,445, September 8, 2006.

The just published notice identifies two CO attorneys associated with this proceeding, Tanya Sandros, the CO's Deputy General Counsel, and Christopher Weston.

Weston is an Attorney Advisor. He has also worked on Section 108 issues (regarding exemptions from liability for infringement for libraries and archives). See for example, March 31, 2008, report [252 pages in PDF] titled "The Section 108 Study Group Report", and story titled "Copyright Office Section 108 Study Group Releases Report" in TLJ Daily E-Mail Alert No. 1,739, March 31, 2008. Before going to work for the CO he worked for the law firms of Verner Liipfert and Piper Rudnick (now DLA Piper). He has also worked for music industry companies.

This notice is published at Federal Register, July 15, 2009, Vol. 74, No. 134, at Pages 34286-34290.

7/15. The Phoenix Center for Advanced Legal and Economic Policy Studies released a paper [61 pages in PDF] titled "The Broadband Adoption Index: Improving Measurements and Comparisons of Broadband Deployment and Adoption". The authors are Randolph Beard, George Ford, and Lawrence Spiwak.

It states that the Organisation of Economic Co-operation and Development's (OECD) often cited ranking of nations on broadband adoption "is inaccurate and can even be misleading". It is based on per capita rather than per household data, and thus understates adoption in nations with larger households, such as the U.S. It also is based only on fixed connections, and therefore omits mobile broadband.

This paper argues that "any meaningful performance index of broadband adoption should include the comparative value of various connection modalities, particularly when establishing deployment and adoption targets." It proposed such a "Broadband Adoption Index" or "BAI".

In addition, Federal Communications Commissioner (FCC) Commissioner Robert McDowell gave a speech [7 pages in PDF] titled "Understanding Broadband Metrics: The Broadband Adoption Index" at this event. He discussed the FCC's ongoing proceeding to write a broadband plan, and various methods for ranking nations' broadband adoption.

7/13. The U.S. Court of Appeals (2ndCir) issued its opinion [10 pages in PDF] in Altvater-Gessler v. Sobieski Destylarnia, trademark and deceptive trade practices case in which venue is in dispute.

Altvater-Gessler-J.A. Baczewski International (USA) Inc., and other companies based in Austria, and owned by the Gessler family, have made alcoholic beverages for centuries. They entered into a licensing agreement with a Polish company, Polmos, authorizing it to make a Gessler product named krupnik. Those agreements had a forum selection clause designating a court in Gdansk, Poland, for litigation of all disputes "resulting from" the licensing agreements. However, those agreements were terminated by mutual agreement. Polmos was later acquired by Sobieski Destylarnia S.A.

Sobieski, without authority, made the Gessler krupnik product, advertised it on the internet as the Gessler product, and shipped product to the U.S., including the Southern District of New York.

Gessler filed a complaint in the U.S. District Court (SDNY) against Sobieski. The District Court dismissed the complaint pursuant to the forum selection clause.

The Court of Appeals reversed. It could have reversed on the grounds that Gessler is not bound by a clause in a terminated agreement. But it did not. Rather, it held that the claims were not breach of agreement claims, and hence did not result from the agreement. The claims of trademark infringement, trademark dilution, unfair competition, and deceptive trade practices sound in U.S. trademark and competition law, not breach of contract; they do not result from the agreement.

If companies engaged in international or interstate business seek to avail themselves of the benefits of forum selection clauses, they must draft the clauses with greater specificity.

This case is Altvater-Gessler-J.A. Baczewski International (USA) Inc., et al. v. Sobieski Destylarnia S.A., et al., U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 07-2273, an appeal from the U.S. District Court for the Southern District of New York.

7/15. The U.S. Court of Appeals (5thCir) issued its opinion [18 pages in PDF] in Xtreme Lashes v. Xtended Beauty, a trademark infringement case involving the question of likelihood of confusion. The Court of Appeals reversed the District Court's summary judgment for the defendant. This case is Xtreme Lashes LLC and Joumana Mousselli  v. Xtended Beauty, U.S. Court of Appeals for the 5th Circuit, App. Ct. No. 08-20578, an appeal from the U.S. District Court for the Southern District of Texas.

7/14. The U.S. Court of Appeals (2ndCir) issued another amended opinion [17 pages in PDF] in Zino Davidoff v. CVS, a trademark case involving unique product codes (UPCs). See, story titled "2nd Circuit Holds Removal of Unique Product Codes From Noncounterfeit Products Can Constitute Trademark Infringement" in TLJ Daily E-Mail Alert No. 1,959, June 22, 2009.

7/14. Jacqueline McCarthy was named Director of State Regulatory Affairs at the CTIA. See, CTIA release.

7/13. The Center for Democracy and Technology (CDT) released a short paper titled "Government Information, Data.gov and Privacy Implications". It states that "While Data.gov has great potential, there are important privacy implications associated with data disclosure. Readying data sets for Data.gov will require, prior to release, checking that their data does not contain personally identifiable information, sensitive information, or other information that could be used to link the released data to individuals."

7/10. The USTelecom announced that Qwest Communications International rejoined the USTelecom, and that Steve Davis, Qwest's SVP Public Policy & Government Relations, will serve on the USTelecom Board of Directors. See, release.

7/8. The Progress and Freedom Foundation (PFF) released a paper [PDF] titled "Inadvertent File-Sharing Re-Invented: The Dangerous Design of LimeWire 5". The author is the PFF's Thomas Sydnor. The paper argues that the latest version of LimeWire "is a dangerous program that can both cause and perpetuate inadvertent sharing" of such files as tax returns and family photos. It states that child predators search peer to peer networks for personal pictures. It argues that the "Congress should work with law-abiding technologists to revise" HR 1319 [LOC | WW], the "Informed P2P User's Act", which would require peer to peer file sharing programs to provide clear and conspicuous notices regarding file sharing, and give the Federal Trade Commission (FTC) civil enforcement authority.

7/13. The U.S. Court of Appeals (8thCir) issued its opinion [PDF] in US v. Moore, an appeal from the sentence imposed following conviction for transporting child pornography (CP) in violation of 18 U.S.C. § 2252A. Moore used the LimeWire file sharing program on his computer. He designated CP files as "shared". At sentencing the District Court assessed a five level increase (which resulted in a longer sentence) because the offense involved distribution for the receipt or expectation of receipt of a thing or value but not for pecuniary gain within the meaning of the U.S. Sentencing Commission's Guildelines Manual, at §2G2.2(b)(3)(B). The Court of Appeals affirmed. It held that downloading and sharing CP files via an internet peer to peer file sharing network constitutes "distribution for the receipt or expectation of receipt of a thing or value". This case is USA v. Jeremy D. Moore, U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 09-1199, an appeal from the U.S. District Court for the Northern District of Iowa.

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The House will meet at 10:00 AM for legislative business. The House will consider HR 3170 [LOC | WW], the "Fiscal Year 2010 Financial Services and General Government Appropriations". This bill includes appropriations numerous technology related entities, including the federal judiciary, Executive Office of the President (EOP) and its Office of Management and Budget (OMB), Federal Communications Commission (FCC), Federal Trade Commission (FTC), Securities and Exchange Commission (SEC), Department of the Treasury (DOT), and its Internal Revenue Service (ITS) and Financial Crimes Enforcement Network (FinCEN). See, Rep. Hoyer's schedule for week of July 13, and schedule for July 16.

The Senate will meet at 9:30 AM. It will resume consideration of of S 1390 [LOC | WW], the "National Defense Authorization Act for Fiscal Year 2010".

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "The Role of Information Technology in Creating New Kinds of High Schools". The speakers will be Robert Atkinson (ITIF), Curtis Johnson, Tim MacDonald, and Alan Shusterman. See, notice. This event is free and open to the public. A light breakfast will be served. Location: ITIF, Suite 610, 1101 K St., NW.

12:00 NOON - 2:00 PM. 6:00 - 9:15 PM. The DC Bar Association will host an event titled "The ABCs of IP: A Primer on Patent, Copyright, and Trademark Law". The speakers will be Janet Fries (Drinker Biddle), Gary Krugman (Sughrue Mion), Steven Warner (Fitzpatrick Cella), and Mark Williamson (Fitzpatrick Cella). See, notice. The price to attend ranges from $25-$35. Location: DC Bar Conference Center, 1101 K St., NW.

6:00 - 9:15 PM. The DC Bar Association will host an event titled "Antitrust Investigations: Tactical and Ethical Issues". The speakers will be Ann O'Brien (Department of Justice), Ray Hartwell (Hunton & Williams), Kathryn Fenton (Jones Day), and Donald Klawiter (Mayer Brown). The price to attend ranges from $89 to $129. Most DC Bar events are not open to the public. See, notice. Location: DC Bar Conference Center, 1101 K St., NW.

6:00 - 8:00 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee and Wireless Committee will host an event titled "Happy Hour". For more information, contact Micah Caldwell at mcaldwell at fh-law dot com or Leslie Moylan at lesliemoylan at dwt dot com. Location: The Roof Terrace Restaurant & Bar, Kennedy Center, 2700 F St., NW.

The House may meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of July 13.

10:00 AM - 1:00 PM. The Heritage Foundation will host two panel discussions titled "Scholars & Scribes Review the Rulings: The Supreme Court's 2008-2009 Term". The speakers on the first panel will be Michael Carvin (Jones Day), Miguel Estrada (Gibson Dunn), Neal Katyal (Office of the Solicitor General), and Todd Gaziano (Heritage). The speakers on the second panel will be Lyle Denniston (SCOTUS Blog), Quin Hillyer (Washington Times), Juan Williams (NPR), and Robert Alt (Heritage). See, notice. Location: Heritage, 214, Massachusetts Ave., NE.

Deadline to submit reply 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.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft NIST IR 7502 [42 pages in PDF] titled "The Common Configuration Scoring System (CCSS): Metrics for Software Security Configuration Vulnerabilities".

Day one of a two day conference hosted by the American Intellectual Property Law Association (AIPLA) titled "2009 Patent Cooperation Treaty Seminar". See, notice. Location?

? 9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host an event titled "Structuring an Energy Technology Revolution". The speaker will be William Bonvillian (MIT). This event is free and open to the public. A light breakfast will be served. Location: ITIF, Suite 610, 1101 K St., NW.

12:00 NOON - 2:00 PM. The Technology Policy Institute (TPI) will host a panel discussion titled "Reforming Universal Service". The speakers will be Robert Crandall (Brookings Institution), Howie Hodges (One Economy), Jonathan Nuechterlein (Wilmer Hale), F.J. Pollak (P/CEO, TracFone Wireless), Gregory Rosston (Stanford Institute for Economic Policy Research). This event is free. Lunch will be served. See, registration page. Location: Room B-340, Rayburn Building.

12:15 - 1:00 PM. The Department of Commerce (DOC), AAP, BSA, IFTA, IIPA, MPAA, NMPA, and RIAA will host an event to release a report titled "Copyright Industries in the U.S. Economy: The 2003-2007 Report". Registration required. Contact Molly Torsen at molly dot torsen at mail dot doc dot gov or 202-482-0849. Location: Auditorium, DOC, 1401 Constitution Ave., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking regarding reinstating an exemption for 4.9 GHz band applications from coordination via a certified frequency coordinator. This item is FCC 09-29 in WP Docket No. 07-100. See, notice in the Federal Register, May 21, 2009, Vol. 74, No. 97, at Pages 23816-23822.

9:00 AM - 5:00 PM. Day one of a three day closed meeting of the Department of Homeland Security's (DHS) Homeland Security Science and Technology Advisory Committee (HSSTAC). See, notice in the Federal Register, June 25, 2009, Vol. 74, No. 121, at Page 30301. Location: Strategic Analysis, Inc., Executive Conference Center, 3601 Wilson Blvd., Suite 600, Arlington, VA.

9:30 AM - 5:00 PM. The District of Columbia Bar Association will host an event titled "Eighth Annual Hot Topics in Patent Law Symposium". The speakers will include John Doll (acting head of the USPTO), Judge Paul Michel (U.S. Court of Appeals for the Federal Circuit), Lynn Levin (USITC), and Judge Liam O'Grady (USDC/EDVa). Prices vary. Most DC Bar events are not open to the public. See, notice. Location: FDIC Virginia Square Seidman Center, 3501 Fairfax Drive, Arlington, VA.

10:00 AM. The House Ways and Means Committee's (HWMC) Subcommittee on Trade will hold a hearing titled "Trade Advisory Committee System". See, notice. Location: Room B-318, Rayburn Building.

10:30 AM - 12:00 NOON. The Heritage Foundation will host a panel discussion titled "The New Strategic and Economic Dialogue with China: Fresh Start or Waste of Time?". The speakers will be Steven Dunaway (Council on Foreign Relations), Edward Gresser (Democratic Leadership Council), Taiya Smith (Carnegie Endowment for International Peace), and Derek Scissors (Heritage). See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

2:00 PM. The Senate Judiciary Committee's (SJC) Subcommittee on Immigration, Border Security and Citizenship will hold a hearing titled "Ensuring a Legal Workforce: What Changes Should be Made to Our Current Employment Verification System?". The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

Day two of a two day conference hosted by the American Intellectual Property Law Association (AIPLA) titled "2009 Patent Cooperation Treaty Seminar". See, notice. Location?

9:00 AM - 5:00 PM. Day two of a three day closed meeting of the Department of Homeland Security's (DHS) Homeland Security Science and Technology Advisory Committee (HSSTAC). See, notice in the Federal Register, June 25, 2009, Vol. 74, No. 121, at Page 30301. Location: Strategic Analysis, Inc., Executive Conference Center, 3601 Wilson Blvd., Suite 600, Arlington, VA.

10:00 AM. The Senate Commerce Committee's (SCC) Subcommittee on Consumer Protection, Product Safety, and Insurance will hold a hearing titled "Advertising Trends and Consumer Protection". See, notice. Location: Room 253, Russell Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Promoting Job Creation and Foreign Investment in the United States: An Assessment of the EB-5 Regional Center Program". The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing titled "Rethinking the Children's Television Act for a Digital Media Age". See, notice. Location: Room 253, Russell Building.

6:00 - 8:00 PM. The District of Columbia Bar Association will host an event titled "Speed Mentoring for Consumer Law and Antitrust Attorneys". The DC Bar states that this is "designed to mimic speed dating", and will be followed by "a wine and cheese reception". For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, 1101 K St., NW.

9:00 AM - 3:00 PM. Day three of a three day closed meeting of the Department of Homeland Security's (DHS) Homeland Security Science and Technology Advisory Committee (HSSTAC). See, notice in the Federal Register, June 25, 2009, Vol. 74, No. 121, at Page 30301. Location: Strategic Analysis, Inc., Executive Conference Center, 3601 Wilson Blvd., Suite 600, Arlington, VA.

12:00 NOON - 1:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Corporate Tax Reform for the Innovation-Based, Global Economy". The speakers will be Pete Engardio (Business Week), Robert Atkinson (ITIF), Robert Shapiro (Sonecon), and Fritz Foley. See, notice. This event is free and open to the public. Lunch will be served. Location: Room 485, Russell Building, Capitol Hill.

CANCELLED. 6:00 - 8:00 PM. The Federal Communications Bar Association's (FCBA) Professional Responsibility Committee will host an event titled "Lobbying Rules for the New Administration". Location: Wiley Rein, 1776 K St., NW.