9/20. Sen. Patrick Leahy (D-VT), Sen. Orrin Hatch (R-UT), and others introduced S 3804 [LOC | WW], the "Combating Online Infringement and Counterfeits Act". See also, Sen. Leahy's release, statement in the Senate, and bill summary.

Summary. This creative bill would add a new section to the criminal code that would give the Department of Justice (DOJ) broad authority to bring actions in District Courts against domain names of internet sites dedicated to infringing activities. The bill styles these actions as in rem actions regarding ownership of property. However, these actions are injunctive in nature.

The bill does not give any parallel authority to state or local governments. Nor does it create a private right of action.

The bill would reach not only web sites that distribute copyrighted digital works in violation of the exclusive rights listed in 17 U.S.C. § 106. It would also reach web sites that sell counterfeit versions of trademarked goods. It would also reach web sites dedicated to any violation of Title 17. This also includes, among other things, the anti-circumvention provisions of 17 U.S.C. § 1201. Thus, a web site that sells software or devices that are "primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under" Title 17 could be shut down by the DOJ if this bill were enacted.

Senators and other supporters of this bill used the term "rogue websites" to describe the target of this bill. However, none gave any examples. However, the nine domain names for web sites that were illegally distributing first run movies, and taken by seizure warrants in June of this year by the Department of Homeland Security's (DHS) Immigration and Customs Enforcement (ICE) and the U.S. Attorney for the Southern District of New York, may be what supporters of this bill have in mind. See, DHS/ICE release.

The bill is carefully and effectively drafted to enable organized interests, with the assistance of the DOJ, to shut down certain rogue web sites. It would serve the interests of those organized copyright and trademark based industries that have sufficient influence with the DOJ to induce it to take action.

The bill is under inclusive to the extent that it would afford little relief to those copyright and trademark based small businesses and individuals who, regardless of how devastated they are by internet based infringement, nevertheless lack the ability to pressure the DOJ to act on their behalf.

The bill is also overbroad to the extent that it may harm parties beyond those "rogue websites" described by Sen. Leahy and others. The bill would also result in burdens being placed upon a wide range of third party registrars, registries, internet access providers, financial service providers, and ad serving companies, to carry out the District Court's mandates. (It also gives them broad immunity for complying.)

Finally, this is a new and innovative approach to web site based infringement. It is perhaps over reaching. In some respects it dispenses with traditional judicial procedure. Also, a few aspects of the bill may not square with due process of law.

In Rem and In Personam Actions. In rem is a Latin term meaning against the thing. It is to be contrasted to the Latin term in personam, which means against a person. An in rem action is brought against a thing, such as real property, movables, or intangible property. The purpose is to adjudicate the rights of persons in the thing. It names the thing. In personam actions, which are far more common, seek to impose personal liability against named defendants.

This bill states that it creates an in rem action against domain names of internet sites dedicated to infringing activities. It also provides for injunctive relief against registrars, registries, ad servers, financial entities, and internet service providers.

However, it would not create a genuine in rem action. Rather, this bill might be viewed as providing an in rem action as a pretext for offering quick and relatively procedureless injunctive remedies against third parties that are in a position to put web site operators out of business. That is, neither the DOJ nor the trade groups and companies on whose behalf it would act, would seek to invoke the action created by this bill for the purpose of obtaining the domain name. Rather, they would seek to deprive the infringers and counterfeiters of use of the domain name for the purpose of disrupting and and destroying their businesses. Ordinarily, in rem actions are brought because the plaintiff is genuinely interested in obtaining title to, or adjudicating rights in, the subject property.

(It should be noted that if the domain name sought in an in rem action under this bill were to include a trademark, and the holder of the mark's concern was consumer confusion caused by the use of the mark, then the Anti-Cybersquatting Consumer Protection Act (ACPA), 15 U.S.C. § 1125(d), already provides an in rem remedy against the domain name.)

The pretextual nature of this action is important because many of the rationales and considerations underlying in rem litigation would be absent in actions brought under this bill as currently drafted.

Senators' Explanations. Sen. Leahy (at right) stated that "The Justice Department is currently limited in the remedies available to prevent websites dedicated to offering infringing content. These websites are often based overseas yet target American consumers. American consumers are too often deceived into thinking the products they are purchasing are legitimate because the websites reside at familiar-sounding domain names and are complete with corporate advertising, credit card acceptance, and advertising links that make them appear legitimate." See, statement, also published in the Congressional Record, September 20, 2010, at Pages S7207-8.

He said that the bill would provide the DOJ with "an expedited process for cracking down on these rogue websites, regardless of whether the website’s owner is located inside or outside of the United States. This legislation authorizes the Justice Department to file an in rem civil action against the domain name, and to seek an order from the court that the domain name is used to access a website that is dedicated to infringing activities. Once the court issues an order against the domain name, the Attorney General would have the authority to serve the domain name's U.S. based registry or registrar with that order, which would then be required to suspend the infringing domain name."

"Where the registry or registrar is not located in the United States, the Act would provide the Attorney General the authority to serve the order on other specified third parties at its discretion, including Internet service providers, payment processors, and online ad network providers. These third parties, which are critical to the financial viability of the infringing website’s business, would then be required to stop doing business with that website by, for example, blocking online access to the rogue site or not processing the website’s purchases", said Sen. Leahy.

Sen. Hatch (at left) stated in a release that "In today's global economy the Internet has become the glue of international commerce -- connecting consumers with a wide-array of products and services worldwide. But it's also become a tool for online thieves to sell counterfeit and pirated goods, making hundreds of millions of dollars off of stolen American intellectual property". He added that the bill targets "those who are profiting from illegal activity."

The other original cosponsors of the bill are Sen. Amy Klobuchar (D-MN), Sen. Sheldon Whitehouse (D-RI), Sen. Charles Schumer (D-NY), Sen. Herb Kohl (D-WI), Sen. Arlen Specter (D-PA), Sen. Richard Durbin (D-IL), Sen. Evan Bayh (D-IN), and Sen. George Voinovich (R-OH)

Reaction. Patrick Ross, head of the Copyright Alliance, stated in a release that "Chairman Leahy once again is providing visionary leadership on an issue of importance to America's intellectual property-based economy ... He has created an opportunity to have a critically needed conversation about the plague of rogue sites, in which parasitic pirates profit off of the theft of creative works." He said that "greater resources and involvement at the federal level would be a welcome development."

Bob Pisano, head of the Motion Picture Association of America (MPAA), expressed support for the bill. He also stated in a release that "digital theft means declining incomes, lost jobs and reduced health and retirement benefits. Unfortunately, this means nothing to the operators of rogue websites who seek to benefit illegally from the hard work of others. These sites, whose content is hosted and whose operators are located throughout the world, take many forms. But they have in common the simple fact that they all materially contribute to, facilitate and/or induce the illegal distribution of copyrighted works, such as movies and television programs."

Pisano continued that "These sites are increasingly sophisticated and take on many of the attributes of legitimate content delivery sites, often deceiving consumers into believing they are legitimate. They use credit card companies to facilitate payments, include advertising to earn money and provide so-called reward programs for frequent purchasers."

Mitch Bainwol, head of the Recording Industry Association of America (RIAA), stated in a release that "The trafficking of pirated American movies and music from rogue websites outside our borders is a big business ... This bill is a welcome first step toward cutting off the financial lifeline that sustains these illegal operations and threatens the livelihoods of countless members of the American music community. While improvements can be made to strengthen its effectiveness, this legislation is a good start".

	i
	Sherwin Siy Copyright PK

Sherwin Siy (at right) of the Public Knowledge (PK) stated in a release that the PK has "some reservations".

"The bill has some troubling political and technical implications, particularly as it attempts to extend U.S. control over the worldwide Internet addressing system."

Siy continued that "Domestically, we are concerned that the bill would establish an Internet black list of sites that the Justice Department thinks are ‘pirate’ sites but against which it hasn’t taken action. Putting an innocent site on this list could seriously harm the business of legitimate Web site operators. The remedies in the bill for those guilty until they prove themselves innocent are inadequate."

"We are also concerned about some of the vague definitions of what constitutes an infringing site and of the level of proof needed. It's quite possible that this bill would have allowed entertainment companies to throttle YouTube at the beginning of its creation by alleging piracy and the young company would have been unable to defend itself", said Siy.

Precedent. Most copyright and trademark bills revise or expand existing statutory provisions. Occasionally, bills add new provisions that borrow from other well tested areas of law. In contrast, this bill contains a new approach. However, some prior statutes and civil actions may offer some precedent or frame of reference.

The Anti-Cybersquatting Consumer Protection Act (ACPA), enacted a decade ago, provides, in addition to an in personam action, an in rem action, under certain circumstances. (The ACPA was Title III of S 1948 (106th Congress), the "Intellectual Property and Communications Omnibus Reform Act of 1999". S 1948 was enacted as part of HR 3194, the FY2000 Consolidated Appropriations bill, Public Law No. 106-113.)

The ACPA provides that "The owner of a mark may file an in rem civil action against a domain name in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name is located if ... the domain name violates any right of the owner ...and ... the court finds that the owner", among other things, "is not able to obtain in personam jurisdiction", or was not able to find a person who could be a defendant.

The present bill follows the ACPA to the extent that it is styled as an in rem action against a domain name to transfer ownership of that domain name. However, the likeness ends there. Under the ACPA the plaintiff's goal is acquisition of the domain name. The goal is usually not putting the defendant out of business. Under the present bill the plaintiff's goal is not the acquisition of the domain name. It is putting the unnamed defendant out of business.

Also, under the ACPA, the plaintiff cannot proceed in rem if the in personam option is viable. Under the present bill the DOJ can proceed in rem even if there is a known defendant subject to service of process.

Finally, under the ACPA, the in rem relief is limited to "transfer of the domain name to the owner of the mark", while under the current bill the relief can include a wide range of orders to third party registrars, registries, internet access providers, financial service providers, and ad serving companies.

A second precedent for this bill is the action initiated in February of this year by Microsoft in the U.S. District Court (EDVa). Microsoft sought to take down a botnet, not stop copyright infringement. Nevertheless, it obtained a court order, on an ex parte basis, seizing domain names, without naming any defendants. See, stories titled "Microsoft Obtains Ex Parte TRO in Waledac Botnet Case" in TLJ Daily E-Mail Alert No. 2,053, March 2, 2010, and "Microsoft Releases Statement on Waledac Botnet" in TLJ Daily E-Mail Alert No. 2,130, September 10, 2010.

Another precedent for this bill is the actions taken by the DHS's Immigration and Customs Enforcement (ICE) and the U.S. Attorney for the Southern District of New York in June to seize nine domain names of web sites being used to distribute movies.

The DHS/ICE stated in a release that "investigators downloaded various newly released movies from the Web sites and their affiliates, to identify those Web sites that were involved in the distribution of stolen content". It added that "This investigation resulted in the execution of federal search warrants for their content and domain name at servers in the United States and the Netherlands."

The Microsoft and DHS/ICE actions also raise a question: if companies, the ICE, and prosecutors can already seize domain names, quickly, on an ex parte basis, and without proceeding directly against the persons who operate the web sites, why is the just introduced bill necessary?

The answer may lie in the bill's provisions regarding orders directed at third parties.

9/20. Sen. Patrick Leahy (D-VT), Sen. Orrin Hatch (R-UT), and others introduced S 3804 [LOC | WW], the "Combating Online Infringement and Counterfeits Act". This bill offers a novel and creative approach to web site based infringement. It also raises a wider range of legal and policy issues than most legislative proposals. This article attempts to offer analysis and commentary on some of these issues.

Four Prerequisites for Granting Injunctive Relief. While this bill styles the cause of action to be brought by the DOJ as an in rem action against the domain name (an action at law regarding ownership of property), most of the remedies would be in the nature of injunctive relief against third parties (which sounds in equity). The law of equity, but not this bill, imposes of a four factor framework in actions for injunctive relief.

The Supreme Court recited the four factors in its 2006 opinion in eBay v. Mercexchange, 547 U.S. 388: "a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction." (Citing Weinberger v. Romero-Barcelo, 456 U. S. 305 (1982).) See also, story titled "Supreme Court Rules on Availability of Injunctive Relief in Patent Cases" in TLJ Daily E-Mail Alert No. 1,371, May 16, 2006.

In general, in rem actions regarding ownership of property are not equitable actions, and the four part framework is not applicable. Yet, this bill is largely injunctive and equitable in nature. It may be drafted with an eye towards evading application of equitable principles.

While the action is in rem and property related in form, in substance it carries many of the attributes in an action for injunctive relief. That is, the DOJ in substance is not seeking to litigate rights in the domain name; it is seeking to shut down a business, which is essentially enjoining the continued operation of that business. Hence, the legal question (and the policy issue) arises as to whether the issuance of in rem relief under this bill would (or should) also be subject to the traditional four factor framework that guides a court's decision whether to grant an injunction?

Consider for example a firm located in another country, that is well capitalized, with an agent for service of process, that is insured against loses arising in intellectual property claims, and that has a history of defending against claims brought against it, and paying money judgments. If that firm is also operating a web site that the DOJ considers to be "dedicated to infringing activities", should the DOJ also be required to prove "that remedies available at law, such as monetary damages, are inadequate to compensate for that injury" before obtaining an order from the District Court?

In Rem Actions Involving Intangibles. In rem actions regarding intangible property are inherently vulnerable to causing courts to exercise extraterritorial jurisdiction, proceed with lack of procedural fairness, issue unenforceable judgments, and create uncertainty.

In rem actions adjudicate the rights of everyone. When the rights are intangible, this means people all over the world. Judgments can be obtained without giving actual notice to anyone concerned. Judgments can be obtained on the far side of the globe from the affected entities. In contrast, when the issue in an in rem action is real property, these things are absent, because the property is fixed and defined, it is clear where the action should proceed, and neighbors and property records disclose who is interested.

There are also several inherent characteristics that tend to check the potential for abuse of in rem actions involving intangibles. Yet, the point of this commentary is that those adjudicatory processes which can ordinarily be expected to limit and deter abusive in rem actions involving intangible property, and overturn undesirable in rem judgments, would be absent in in rem actions brought under this bill.

For example, in in rem actions involving intangible property the plaintiff may obtain a judgment regarding ownership of the property, without notice or opportunity to be heard being afforded to the owner or other rights holders. But, since intangible property may have no location, the judgment rendered by a court in one location may be vulnerable to subsequent attack on the grounds that that court lacked in rem jurisdiction. If this happens, a court with jurisdiction can then readjudicate. Moreover, the very vulnerability of in rem judgments to attack incents plaintiffs to exercise caution in bringing in rem actions.

The second, and related, consideration is that ownership of the intangible property can be returned or transferred back.

However, under the present bill, the in rem action is not in substance about ownership of the domain name. It is about destroying the business of the domain name holder. In the time that it might take to seek return of a domain name, the owner's web based business will have been ruined, and return of the domain name would be useless and irrelevant. A subsequent review cannot unring this bell.

Third, abusive in rem actions are limited due to the prospective plaintiff's anticipation of liability for malicious prosecution or abuse of process. But, under this bill, the action would be brought by the DOJ. Sovereign immunity and other procedures insulate it. Moreover, the third parties that carry out the injunctive orders are given broad immunity. No one can be held responsible for error or abuse. This limits caution in bringing actions.

Fourth, abusive in rem actions involving intangibles are also limited by the plaintiff's concern that judgments may, as a practical matter, be unenforceable. However, with all of the associated injunctive relief, the present bill's orders provide for effective enforcement.

Jurisdiction, Sovereignty, and Comity Issues. To the extent that this bill would give the U.S. District Court statutory authority to penalize a foreign web based business, located in that foreign country, with servers in that country, and its domain name registrar or registry in that country, this bill would raise a host issues related to jurisdiction, sovereignty and comity.

It may also be the case that some of the third party internet service providers, financial transaction providers, and ad servers that receive injunctive orders from the District Court may be foreign based corporations.

First, the question may arise in certain cases as to whether the exercise of jurisdiction by the District Court in which the action is brought comports with U.S. Constitution's due process of law requirement. The Congress can pass a statute that states that the District Court has jurisdiction. But, the Congress cannot statutorily limit the jurisdictional implications of Constitutional due process limitations stated in the Fifth Amendment: "No person ... shall be ... deprived of life, liberty, or property, without due process of law".

The Supreme Court has not yet attempted to define due process limitations upon the exercise of in personam jurisdiction in which jurisdiction over a distant defendant is asserted to rest solely upon internet based conduct. There are numerous lower court opinions that offer considerable length, and some confusion.

Second, DOJ actions brought under this bill may impinge upon the sovereignty of other nations. Moreover, the DOJ may issue orders directed at persons or companies located in other countries for acts that are legal in those countries and/or for which that other country has declined to take action. Some nations might view some actions taken by the District Court under this bill as hostile and extraterritorial exercises of jurisdiction. Some might react.

Consider for example, the U.S. Congress's recent enactment of HR 2765 [LOC | WW], the "Securing the Protection of our Enduring and Established Constitutional Heritage Act" or "SPEECH Act", now Public Law No. 111-223. The United Kingdom has exercised extraterritorial jurisdiction over U.S. authors for works written and published in the U.S., and which are Constitutionally protected in the U.S. The U.S. responded by passing legislation that provides for non-recognition of certain foreign defamation judgments. See, story titled "Congress Passes Foreign Libel Judgments Bill" in TLJ Daily E-Mail Alert No. 2,117, August 3, 2010.

Third, third parties, whether U.S. or foreign businesses, could be subjected to conflicting court orders. That is, the U.S. District Court could order a financial services company not to process transactions with a particular business or domain name, while another nation's court may issue a conflicting order directing it to continue process transactions.

Aggregators v. Authors. There is a trend under way in intellectual property rights enforcement, away from reliance upon rights holders' actions brought under 17 U.S.C. § 501 for direct infringement under 17 U.S.C. § 106, in which the rights holder obtains damages. There is a trend towards reliance upon other mechanisms, such as (1) actions and threats of actions for indirect, vicarious, contributory, or inducement of, infringement, (2) limiting access to protected works technologically, and (3) assertion of violation of the anti-circumvention provisions of Digital Millennium Copyright Act.

Enactment of proposed orphan works legislation would also weaken the ability of many rights holders -- particularly individuals, photographers, and graphic artists -- to avail themselves of the remedies afforded for Section 501 infringement. Similarly, enactment of Congressional legislation, or promulgation of Federal Communications Commission (FCC) rules, regarding regulation of the network management practices of broadband internet access service providers in the context of protecting intellectual property, would likely create an FCC based regulatory regime tailored more towards protecting the interests of large rights holders and aggregators than authors.

Registration of copyright, and the filing of Section 501 actions, is available to a wide range of rights holders. In contrast, new and emerging methods of enforcement tend to be limited to large well capitalized rights holders and aggregators.

Enactment of the present bill would contribute to this trend. The DOJ is a political agency with limited intellectual property related resources, and an inability to efficiently handle a large caseload. The DOJ would likely only use in rem actions against domain names on behalf of groups like the MPAA, RIAA, BSA, and their member companies, and trademark based industries. That is the record of the DOJ with respect to its existing criminal enforcement authority under 18 U.S.C. §§ 2318 and 2319.

This bill would be part of the ongoing trend of transforming the Constitutional protection of "authors and inventors" to protection of "aggregators and incorporators".

No doubt many legislators and stakeholders view this trend in enforcement as the most appropriate way to protect and incent creative activity, and pursue other important policy objectives. Nevertheless, it may be worth noting how this bill would contribute to the broader trajectory of intellectual property law and policy.

Conclusion. While this bill offers an innovative and potentially effective way for degrading the capacity of rogue web site operators to make money by distributing other people's intellectual property, there are also numerous issues to be addressed in the forthcoming legislative process.

9/20. S 3804 [LOC | WW], the "Combating Online Infringement and Counterfeits Act", introduced on September 20, 2010, would add a new section to Title 18, which is the criminal code, titled "Internet sites dedicated to infringing activities".

This new section provides that an internet site is "dedicated to infringing activities" if it is "primarily designed, has no demonstrable, commercially significant purpose or use other than, or is marketed by its operator, or by a person acting in concert with the operator, to offer -- (i) goods or services in violation of title 17, United States Code, or enable or facilitate a violation of title 17, United States Code, including by offering or providing access to, without the authorization of the copyright owner or otherwise by operation of law, copies of, or public performance or display of, works protected by title 17, in complete or substantially complete form, by any means, including by means of download, transmission, or otherwise, including the provision of a link or aggregated links to other sites or Internet resources for obtaining such copies for accessing such performance or displays; or (ii) to sell or distribute goods, services, or materials bearing a counterfeit mark ..."

The bill then states that the Department of Justice (DOJ) can bring an "in rem action". Only the DOJ may bring actions under this bill.

The bill also provides that once the DOJ has brought such an in rem action, within that action it may also receive "injunctive relief". The structure of this bill may reflect a purpose of designating the entire action in rem and in the nature of declaring title to property (a legal remedy), bootstrapping to this a vast panoply of injunctive relief (equitable remedies) against known parties, and thereby evading the application of principles of equity (such as the four factor framework applicable to injunctive relief) to what is at bottom an equitable action for injunctive relief.

The bill provides that if the domain name registrar or registry is located in the U.S., then the action shall be brought in the judicial district of the domain name registrar or registry.

The bill also states that it gives the U.S. District Court for the District of Columbia long armed jurisdiction over domain names registered in other countries. The District Court would have jurisdiction if the action is brought "to prevent the importation into the United States of goods and services offered by an Internet site dedicated to infringing activities" and the web site "conducts business directed to residents" of the U.S. and "harms intellectual property rights holders" that are U.S. residents. Furthermore, "business directed to residents" could be demonstrated by "providing goods or services to subscribers located" in the U.S., by offering "services accessible" in the U.S., or by indicating prices in U.S. currency.

The bill provides that "the court may issue a temporary restraining order, a preliminary injunction, or an injunction against the domain name used by an Internet site dedicated to infringing activities to cease and desist from undertaking any infringing activity".

In an action involving an U.S. registered domain name, "the domain name registrar or domain name registry shall suspend operation of, and lock, the domain name".

In the case of non-U.S. registered domain names, the court may issue TROs, PIs, or injunctions directed to any "financial transaction provider", ad server, internet "service provider" as defined by 17 U.S.C. S 512(k)(1), or "operator of a domain name system server".

The court may issue an order to a financial transaction providers directing it "to prevent ... its service from processing transactions for customers located within the United States based on purchases associated with the domain name".

The court may issue an order directing any "service that serves contextual or display advertisements to Internet sites" to "prevent its network from serving advertisements to an Internet site accessed through such domain name".

Section 512 defines "service provider" as "an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received". The bill provides that the court may issue an order directing these providers to "prevent a domain name from resolving to that domain name's Internet protocol address". That is, this bill provides that the court may order ISPs to block access to domain names.

The bill also provides broad immunity for the third parties that comply with court orders. "No cause of action shall lie in any Federal or State court or administrative agency against any entity receiving a court order issued under this section, or against any director, officer, employee, or agent thereof, for any action reasonably calculated to comply with this section or arising from such order."

The bill provides that "a defendant or owner or operator of a domain name subject to the order, or any party required to take action based on the order, may petition the court to modify, suspend, or vacate the order, based on evidence that ... the Internet site associated with the domain name subject to the order is no longer dedicated to infringing activities".

Other than this very limited grounds, and a vague reference to "the interests of justice", there are no other grounds for changing an order.

The bill also requires the DOJ to maintain a public list of web sites that it has not filed in rem actions against. It provides that "the DOJ "shall maintain a public listing of domain names that, upon information and reasonable belief, the Department of Justice determines are dedicated to infringing activities but for which the Attorney General has not filed an action under this section".

The bill does not impose any requirements upon third parties to take any actions regarding web sites on this list. However, some might block access to, block e-mail from, decline to process financial transactions with, or refuse to serve ads to, web sites on this list.

The House will meet at 10:00 AM for legislative business. It will consider numerous non-technology related items under suspension of the rules. See, Rep. Hoyer's schedule for the week of September 20.

9:30 AM - 5:00 PM. The Federal Communications Commission's (FCC) North American Numbering Council (NANC) will meet. Location: FCC, Commission Meeting Room.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Keeping Us Safe: The Need for a Nationwide Public Safety Network". See, notice. Location: Room 253, Russell Building.

11:00 AM. The House Judiciary Committee's (HJC) Subcommittee on the Constitutional, Civil Rights and Civil Liberties will hold a hearing titled "ECPA Reform and the Revolution in Cloud Computing". The HJC will webcast this event. See, notice. Location: Room 2141, Rayburn Building.

TIME? The American Bar Association (ABA) will host a webcast and teleconferenced event titled "MySpace and the Workplace: What Employers Need to Know About Social Networking". Prices vary. CLE credits.

2:40 PM. The Federal Trade Commission's (FTC) Bureau of Economics will host a presentation titled "Privacy and Online Advertising". The speakers will be Catherine Tucker (MIT business school) and Avi Goldfarb. For more information, contact Loren Smith at lsmith2 at ftc dot gov or Tammy John at tjohn at ftc dot gov. Location: ground floor Conference Center, 601 New Jersey Ave., NW.

6:00 - 8:15 PM. The DC Bar Association will host a presentation titled "Beginner’s Guide to Publishing Law and Publishing Agreements". The speaker will be Gail Ross (Lichtman Trister & Ross). The price to attend ranges from $89 to $129. Reporters are barred from attending most DC Bar events. This event qualifies for CLE credits. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Broadcast Indecency Regulation after Fox". The speakers will include Jacob Lewis (FCC Associate General Counsel), Sam Feder (Jenner & Block), Mathew Berry, Andrew Tollin (Wilkinson Barker Knauer), and Maureen O'Connell (News Corp.). See, notice. CLE credits. Prices vary. The FCBA bars reporters from many of its events. Location: Wiley Rein, 1776 K St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [110 pages in PDF] regarding changes to its universal service rural health clinics tax and subsidy program. The FCC adopted and released this item on July 15, 2010. It is FCC 10-125 in WC Docket No. 02-60. See, FCC Public Notice and notice in the Federal Register, August 9, 2010, Vol. 75, No. 152, at Pages 48235-48272. See also, story titled "FCC Proposes to Expand Rural Health Clinic Universal Service Program" in TLJ Daily E-Mail Alert No. 2,105, July 15, 2010.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) [3 pages in PDF] that announces that the FCC will write a "plan" or "roadmap" pertaining to cyber security and communications networks. This PN asks: "What are the most vital cybersecurity vulnerabilities for communications networks or users? How can these vulnerabilities be addressed? What role should the Commission play in addressing them? What steps should the Commission take, if any, to remediate them? If the FCC does not play a role in addressing these vulnerabilities and problems, what agency or entity would fulfill that role? How should the Commission coordinate its efforts with other agencies of government?" This PN is DA 10-1354 in PS Docket No. 10-146 and GN Docket No. 09-51.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding AT&T's petition for reconsideration of the action taken by the FCC's Wireline Competition Bureau's (WCB) Pricing Policy Division rejecting AT&T's petition to suspend for one day, investigate and issue an accounting order for the July 1, 2010 interstate access tariff filing by Minnesota Independent Equal Access Corporation (MIEAC). See, FCC Public Notice.

The House will meet at 9:00 AM for legislative business. It will consider numerous non-technology related items under suspension of the rules. See, Rep. Hoyer's schedule for the week of September 20.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch titled "Anatomy of a Rulemaking". The speakers will be David Horowitz (FCC Assistant General Counsel) and Heather Zachary (Wilmer Hale). For more information, contact Micah Caldwell at mcaldwell at fh-law dot com or Mark Brennan at mark dot brennan at hoganlovells dot com. Location: Wilmer Hale, 1875 Pennsylvania Ave., NW.

1:00 - 2:00 PM. The American Bar Association (ABA) will host a webcast and teleconferenced event titled "Patent Reform Act of 2009/2010: Effects on Small Businesses and Startups". Prices vary. CLE credits. See, notice.

12:00 NOON - 1:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "The Future of Privacy Online". The speakers will be Rob Atkinson (ITIF), Daniel Castro (ITIF), Marc Eichorn (FTC), Fernando LaGuarda (Time Warner Cable), Tom Lenard (Technology Policy Institute), Tim Sparapini (Facebook), and Daniel Weitzner (NTIA). See, notice. This event is free and open to the public. Location: ITIF, Suite 610A, 1101 K St., NW.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding its further interim guidance for the patent examining corps to use when determining subject matter eligibility under 35 U.S.C. § 101 following the June 28, 2010, opinion [71 pages in PDF] of the Supreme Court in Bilski v. Kappos. See, notice in the Federal Register, July 27, 2010, Vol. 75, No. 143, at Pages 43922-43928. See also, story titled "USPTO Releases and Seeks Comment on Post Bilski Guidance for Examiners" in TLJ Daily E-Mail Alert No. 2,113, July 28, 2010.

12:00 NOON. Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) 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). The OUSTR seeks comments on, among other things, "intellectual property rights (including intellectual property rights enforcement)". See, notice in the Federal Register, August 3, 2010, Vol. 75, No. 148, at Pages 45693-45694.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding extending the electronic tariff filing requirement for incumbent local exchange carriers to all carriers that file tariffs and related documents. This NPRM is FCC 10-127 in WC Docket No. 10-141. See, FCC Public Notice and notice in the Federal Register, August 11, 2010, Vol. 75, No. 154, at Pages 48629-48641.

Deadline to submit comments to the Federal Trade Commission (FTC) regarding the Agreement Containing Consent Order in the FTC's administrative action against Reverb Communications, Inc. and Tracie Snitker. See, story titled "Marketer's Posting of Product Comments in iTunes Store Violates FTC Act" in TLJ Daily E-Mail Alert No. 2,129, September 9, 2010, and notice in the Federal Register, September 2, 2010, Vol. 75, No. 170, at Pages 53968-53969.

Day one of a three day conference hosted by the New America Foundation (NAF) titled "The Broadband Act of 2011: Designing a Communications Act for the 21st Century". Location: NAF, 4th floor, 1899 L St., NW.

8:30 AM - 1:00 PM. The Department of Homeland Security's (DHS) Data Privacy and Integrity Advisory Committee will meet. See, notice in the Federal Register,August 27, 2010, Vol. 75, No. 166, at Page 52769-52770. Location: Carl Hayden Room, 8th floor, U.S. Government Printing Office, 732 North Capitol St., NW.

12:00 NOON - 1:00 PM. The American Bar Association (ABA) will host a webcast and teleconferenced event titled "Intellectual Property Audits". Prices vary. CLE credits. See, notice.

6:00 - 8:30 PM. The DC Bar Association will host a presentation titled "Effectively Navigating The E-Discovery Process with a Government Agency". The speakers will be Tracy Greer (Department of Justice, Antitrust Division), Jeffrey Perry (Federal Trade Commission, Mergers IV), Antonia Chion (Securities and Exchange Commission), Patrick Oot (Electronic Discovery Institute). The price to attend ranges from $20 to $40. Reporters are barred from attending most DC Bar events. No CLE credits. See, notice. For more information, call 202-626-3463. Location: DC Bar Conference Center, 1101 K St., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled titled "ECPA Reform -- Protecting Privacy and Security in the Digital Age". There will be one panel discussion titled "ECPA's Wild Ride: 1986 to 2010", and another titled "ECPA Reform: What We Need May Depend on Where You Sit". The speakers will include Marc Zwillinger (Zwillinger Genetski), Genie Barton (USTelecom), and John Heitmann (Kelley Drye & Warren). The speakers may also include Congressional staff and Department of Justice (DOJ) personnel. The price to attend ranges from $25 to $150. CLE credits. See, notice. For more information, contact Genie Barton at gbarton at ustelecom dot org or 202-326-7223. The FCBA excludes reporters from many of its events. Location?

Day two of a three day conference hosted by the New America Foundation (NAF) titled "The Broadband Act of 2011: Designing a Communications Act for the 21st Century". Location: NAF, 4th floor, 1899 L St., NW.

Day one of a three day event hosted by the Radio Advertising Bureau (RAB) and the National Association of Broadcasters (NAB) titled "Radio Show". See, web site. Location: Grand Hyatt Washington, 1000 H St., NW.

10:00 AM - 4:00 PM. Day one of a two day meeting of the U.S.-China Economic and Security Review Commission to consider drafts of material for its 2010 Annual Report to the Congress. See, notice in the Federal Register, August 10, 2010, Vol. 75, No. 153, at Page 48412. Location: Room 233, Hall of States, 444 North Capitol St., NW.

6:00 - 8:00 PM. The University of Colorado's Silicon Flatirons Center (SFC) will host an event titled "Dale Hatfield Scholars and Research Program Reception". The SFC requests donations of $100 to $250 from attendees. Location: Conference Center, 1400 16th St., NW.

Day three of a three day conference hosted by the New America Foundation (NAF) titled "The Broadband Act of 2011: Designing a Communications Act for the 21st Century". Location: NAF, 4th floor, 1899 L St., NW.

Day two of a three day event hosted by the Radio Advertising Bureau (RAB) and the National Association of Broadcasters (NAB) titled "Radio Show". See, web site. Location: Grand Hyatt Washington, 1000 H St., NW.

10:00 AM. Senate Energy and Natural Resources Committee's (SENRC) Subcommittee on Energy will hold a hearing on S 3521 [LOC | WW], the "Rare Earths Supply Technology and Resources Transformation Act of 2010" or RESTART Act. See, notice. Location: Room 366, Dirksen Building.

10:00 AM - 4:00 PM. Day two of a two day meeting of the U.S.-China Economic and Security Review Commission to consider drafts of material for its 2010 Annual Report to the Congress. See, notice in the Federal Register, August 10, 2010, Vol. 75, No. 153, at Page 48412. Location: Room 233, Hall of States, 444 North Capitol St., NW.

1:00 - 3:00 PM. The Federal Communications Commission (FCC) Public Safety and Homeland Security Bureau (PSHSB) will hold a webcast event regarding methods for combating the use of contraband cell phones in prisons. The deadline to register is September 28, 2010. See, notice. Location: FCC, Commission Meeting Room.

6:00 - 8:15 PM. The DC Bar Association will host a panel discussion titled "What Every Lawyer Needs to Know About Antitrust Law". The speakers will be Michael Brockmeyer (Frommer Lawrence & Haug) and Michael Kelly. The price to attend ranges from $89 to $129. Reporters are barred from attending most DC Bar events. This event qualifies for CLE credits. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

Final deadline to submit "white papers" to the National Institute of Standards and Technology (NIST) regarding the NIST's Technology Innovation Program (TIP). See, notice in the Federal Register, September 4, 2009, Vol. 74, No. 171, at Pages 45823-45825.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) regarding disability access and wireless communications devices. The FCC released this PN on July 19, 2010. This PN is DA 10-1324 in CG Docket No. 10-145. See also, story titled "FCC Releases Two Public Notices Regarding Disability Access" in TLJ Daily E-Mail Alert No. 2,108, July 20, 2010, and notice in the Federal Register, August 5, 2010, Vol. 75, No. 150, at Pages 47304-47305.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking and Notice of Inquiry (NPRM) [43 pages in PDF] regarding terrestrial broadband services within spectrum allocated to mobile satellite services (MSS). This NOI is FCC 10-126 in ET Docket No. 10-142. The FCC adopted and released this NOI on July 15, 2010. See, notice in the Federal Register, August 16, 2010, Vol. 75, No. 157, Pages 49871-49879. See also, story titled "FCC Adopts NPRM and NOI Regarding Use of MSS Spectrum for Mobile Broadband" in TLJ Daily E-Mail Alert No. 2,105, July 15, 2010.

Tech Law Journal publishes a free access web site and a subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year for a single recipient. There are discounts for subscribers with multiple recipients.

Free one month trial subscriptions are available. Also, free subscriptions are available for journalists, federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until two months after writing.

For information about subscriptions, see subscription information page.

Tech Law Journal now accepts credit card payments. See, TLJ credit card payments page.

TLJ is published by David Carney
Contact: 202-364-8882.
carney at techlawjournal dot com
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998-2010 David Carney. All rights reserved.