10/6. The United States, European Union and its members, Japan, and eight other nations concluded their negotiation of an Anti-Counterfeiting Trade Agreement (ACTA). The 24 page draft text has yet to be finalized, and approved by nations.

The U.S. was represented in negotiations by the Office of the U.S. Trade Representative (OUSTR). Ron Kirk, the U.S. Trade Representative, stated in a release that "This text reflects tremendous progress in the fight against counterfeiting and piracy -- a global crime wave that robs workers in the United States and around the world of good-paying jobs and exposes consumers to dangerous products".

Kirk (at right) added that "We must now work quickly with our partners to finalize the results achieved in the Tokyo. This work represents a significant victory for those who care about protecting and enforcing intellectual property rights."

The OUSTR negotiators included Miriam Sapiro (Deputy USTR), Stanford McCoy (Assistant USTR for Intellectual Property & Innovation), and Kira Alvarez (Chief Negotiator for Intellectual Property Enforcement).

The OUSTR stated in another release that this draft ACTA is an "international framework that will assist Parties to the agreement in their efforts to effectively combat the infringement of intellectual property rights, in particular the proliferation of counterfeiting and piracy".

The participating nations are the U.S., EU and its members, Japan, Australia, Canada, Mexico, Morocco, New Zealand, Singapore, South Korea and Switzerland. The parties to the negotiation of this ACTA also contemplate that other nations will join.

See also, related story in this issue titled "Summary of ACTA".

Groups that represent copyright based industries praised this draft of the ACTA and its negotiators, stressed its importance, and urged its finalization. Groups that represent the interests of industries whose business models rely upon fair use of copyrighted works praised improvements in the final draft, but also expressed concerns about the ACTA's content or negotiation process. See, related story in this issue titled "Reaction to ACTA".

10/6. The just released Anti-Counterfeiting Trade Agreement (ACTA) draft text [24 pages in PDF] contains six chapters. The key language, and much of the ACTA, is found in Chapter 2, titled "Legal Framework for Enforcement of Intellectual Property Rights".

It establishes certain minimum requirements for the nations that are parties to the ACTA, and permits parties to establish certain other requirements. It focuses on copyrights and trademarks. However, it does not state that none of its provisions apply in the context of patents. It addresses, among other things, civil enforcement, border measures, criminal enforcement, and digital works.

The draft provides in its initial provisions that "A Party may implement in its domestic law more extensive enforcement of intellectual property rights than is required by this Agreement, provided that such enforcement does not contravene the provisions of this Agreement. Each Party shall be free to determine the appropriate method of implementing the provisions of this Agreement within its own legal system and practice." (Page 3.)

With respect of enforcement generally, the draft provides that "Parties shall ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements." (Page 5).

It adds that "each Party shall take into account the need for proportionality between the seriousness of the infringement, the interests of third parties, and the applicable measures, remedies and penalties". (Page 6.)

Civil Enforcement. The civil enforcement section of Chapter two addresses injunctive relief against infringers and third parties, damages, and destruction of pirated copyright goods and counterfeit trademark goods, as well as "materials and implements the predominant use of which has been in the manufacture or creation of such goods".

The injunction language provides that "Each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities shall have the authority to issue an order against a party to desist from an infringement, and inter alia, an order to that party or, where appropriate, to a third party over whom the relevant judicial authority exercises jurisdiction, to prevent infringing goods from entering into the channels of commerce." (Page 6.)

The damages language provides that "Each Party shall provide that in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer who knowingly or with reasonable grounds to know, engaged in infringing activity of intellectual property rights, to pay the right holder damages adequate to compensate for the injury the right holder has suffered as a result of the infringement. In determining the amount of damages for infringement of intellectual property rights, its judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value submitted by the right holder, which may include the lost profits, the value of the infringed good or service, measured by the market price, the suggested retail price." (Page 7.)

It provides for the award of compensatory damages. In making such an award, "judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value submitted by the right holder, which may include the lost profits, the value of the infringed good or service, measured by the market price, the suggested retail price." It also provides for awarding the "profits of the infringer". It also provides for the award of costs and attorneys fees to the prevailing party.

The draft also provides for pre-trial discovery from the alleged infringer. (Page 8.)

Criminal Enforcement. The draft provides that "Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale." (Page 13.)

Then, "each Party shall provide penalties that include imprisonment as well as monetary fines sufficiently high to provide a deterrent to future acts of infringement, consistently with the level of penalties applied for crimes of a corresponding gravity. (Page 14.)

It also provides that competent authorities shall have the authority to order the seizure of suspected counterfeit trademark goods or pirated copyright goods", "to order forfeiture or destruction of all counterfeit trademark goods or pirated copyright goods", and "to order forfeiture or destruction of materials and implements predominantly used in the creation of counterfeit trademark goods or pirated copyright goods. (Page 14.)

Digital Environment. Section 5, at pages 15-17, begins with a general requirement. "Each Party's enforcement procedures shall apply to infringement of at least trademark and copyright or related rights over digital networks, including the unlawful use of means of widespread distribution for infringing purposes. These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with each Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy."

To this is added the following footnote: "For instance, without prejudice to a Party's law, adopting or maintaining a regime providing for limitations on the liability of, or on the remedies available against, online service providers while preserving the legitimate interests of right holders."

The draft also permits, but does not require, parties to require ISPs to disclose names of infringers. It states, "Each Party may provide, in accordance with its laws and regulations, its competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement, where that right holder has filed a legally sufficient claim of infringement of at least trademark and copyrights or related rights and where such information is being sought for the purpose of protecting or enforcing at least the right holder’s trademark and copyright or related rights."

The draft next requires anti-circumvention provisions. "Each Party shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors, performers or producers of phonograms in connection with the exercise of their rights in, and that restrict acts in respect of, their works, performances, and phonograms, which are not authorized by the authors, the performers or the producers of phonograms concerned or permitted by law."

Patents. This draft does not contain any language that imposes requirements upon the parties with respect to patents by referencing patents or patent law or procedure.

However, this ACTA pertains to "intellectual property rights", which it defines as "all categories of intellectual property that are the subject of Sections 1 through 7 of Part II of the Agreement on Trade-Related Aspects of Intellectual Property Rights." Section 5 of Part II of the TRIPS Agreement covers patents.

Also, some sections require parties to provide certain processes in the case of copyrights and trademarks. Such language excludes patents. It may also suggests that the parties contemplated patents in drafting this ACTA. It may also suggest that the parties intended for some language, in which patents are not expressly excluded, to apply to patents.

Moreover, there is a footnote to the section on border measures that provides in full, "For the purpose of this Agreement, Parties agree that patents do not fall within the scope of this Section." This implies that some other sections of this draft may apply to patents.

10/6. Groups that represent copyright based industries praised the just released draft text [24 pages in PDF] of the Anti-Counterfeiting Trade Agreement (ACTA) and its negotiators, stressed its importance, and urged its finalization.

Groups that represent the interests of industries whose business models rely upon fair use of copyrighted works praised improvements in the final draft, but also expressed concerns about the ACTA's content or negotiation process.

Neil Turkewitz, of the  Recording Industry Association of America (RIAA), stated in a release that "While ACTA does not provide all of the answers about how governments will move forward to tackle online piracy, it is a very important multilateral statement concerning the importance of finding solutions to online theft. It may not be a precise roadmap, but it is a powerful expression of a common vision and unity of purpose."

He added that "We are particularly pleased by the commitment by ACTA parties to take effective enforcement against all forms of piracy, including on the Internet. It is estimated that as much as 95 percent of global Internet traffic in music is illegal, and more forcefully addressing this is a global imperative for creative communities regardless of nationality. We welcome the fact that ACTA parties explicitly note the importance of promoting cooperation between Internet service providers and rights holders with respect to online copyright theft, and make clear that the enforcement provisions of the treaty apply equally to the digital environment."

Greg Frazier, of the Motion Picture Association of America (MPAA), stated in an October 4 release that the "ACTA is an important step forward in strengthening international cooperation and enforcement for intellectual property rights. It is also an important signal that the world's largest economies recognize the critical value of intellectual property rights to their global competitiveness".

The MPAA's members include Disney, Paramount, Sony Pictures Entertainment, Twentieth Century Fox Film, Universal City Studios, and Warner Bros.

The Business Software Alliance (BSA) stated in a release that under the key provisions of the ACTA, nations agree "to impose criminal penalties for software license infringement and other forms of copyright piracy carried out for commercial advantage" and "to make remedies such as statutory damages available to copyright holders to ensure they are compensated when their intellectual property is infringed".

The BSA added that "Experience shows that criminal penalties are critically important in helping to drive down a country's software piracy rates -- and statutory damages ensure that copyright holders have a legal mechanism for recouping commercial losses when their products are misappropriated."

BSA's members include Adobe, Apple, Autodesk, CA Technologies, Cisco Systems, Corel, Dell, HP, IBM, Intel, Intuit, McAfee, Microsoft, Siemens, Sybase, Symantec, and other companies.

Michael Gallagher (at left), head of the Entertainment Software Association (ESA), stated in a release that "Strong intellectual property protection, enforcement, and cooperation with foreign governments are crucial to opening markets and creating growth for the computer and video game industry. This agreement signals the beginning of a new and productive era in protecting the vital interests of all parties concerned."

Eric Smith, head of the International Intellectual Property Alliance (IIPA), stated in a release that the "ACTA marks the launch of an evolving partnership among all countries that recognize the importance of strong intellectual property protection in developing the creative and innovative sectors of their economies, creating good jobs, increasing cultural diversity, promoting technological advances, enhancing the rule of law, and boosting legal trade in products and services protected by intellectual property laws."

The IIPA is a coalition of seven copyright related groups: Association of American Publishers (AAP), BSA, ESA, Independent Film & Television Alliance (IFTA), MPAA, National Music Publishers' Association (NMPA), and the RIAA.

The Computer and Communications Industry Association (CCIA) stated in a release that the ACTA draft "seeks to implement U.S. digital copyright laws in nations without copyright limitations and exceptions. This means US companies could face charges in other countries for practices that are entirely legal in the United States. Given continuing uncertainty about the scope of the agreement, however, the technology industries will likely be reserving final judgment."

Ed Black, head of the CCIA, stated in this release that "Exceptions to copyright law such as ``fair use,´´ largely do not exist in the countries negotiating ACTA. As a result, should ACTA increase intellectual property protections without fair-use-like safeguards that allow legitimate businesses to operate, it would expose U.S. Internet and technology companies to liability in foreign courts for things that are perfectly legal here."

The CCIA's Matt Schuers praised the OUSTR for listening to technology and telecommunications companies, and making improvements over earlier drafts, such as removing "secondary liability". He said that "Creating broad new categories of liability for legitimate businesses not engaged in piracy was never an appropriate subject for an IP enforcement agreement."

But, he added that "We remain concerned that the agreement permits limitations and exceptions, but doesn't require them.  Thus, a US Internet or technology business depending upon certain exceptions to copyright (including fair use) has no certainty in foreign markets as to whether or not they could be liable for business models permitted and encouraged by US law." (Parentheses in original.)

	Gigi Sohn Copyright PK

Gigi Sohn, head of the Public Knowledge (PK), stated in a release that this version of the ACTA "should be seen as a qualified victory for those who want to protect the digital rights of consumers around the world. Some of the most egregious provisions from earlier drafts have been removed on topics ranging from digital protection measures to the liability of intermediaries like Internet Service Providers and search engines. The agreement would give more flexibility to the signatories than did previous versions."

She also stated that "the way this agreement was produced is still deeply flawed. The inclusiveness was not arrived at easily, nor was it ever complete. USTR had to be taken to court and taken to task in the court of public opinion for months before agreeing to allow other than the privileged industry representatives to be part of the agreement's development. The fact that several national legislatures around the world rejected both the process and the substance of the agreement is an indication of the dissatisfaction not only here in the U.S. but in many other nations."

10/4. The Copyright Office (CO) published a notice in the Federal Register that announces, describes, recites, and sets comment deadlines for, it proposed rules regarding refunds under the cable statutory license.

This notice of proposed rulemaking (NPRM) asks "whether a cable operator may receive refunds in situations where it has failed to pay for the carriage of distant signals on a system-wide basis under the Copyright Act, before it was amended to allow a cable system to calculate its royalty fees on a community-by-community basis."

17 U.S.C. § 111 provides cable operators with a statutory license to retransmit to the public a performance or display of a work embodied in a primary transmission made by a television station licensed by the Federal Communications Commission (FCC). These cable systems are then required to pay royalty fees to the CO, which eventually distributes funds to copyright owners.

Earlier this year the Congress enacted S 3333 [LOC | WW], the "Satellite Television Extension and Localism Act of 2010" or STELA. It is now Public Law No. 111-175. Among other things, it amended Section 111 to address phantom signals. This NPRM is occasioned by that change. See also, story titled "Obama Signs Satellite TV Bill" in TLJ Daily E-Mail Alert No. 2,089, May 28, 2010.

The notice states that initial comments are due by November 3, 2010. It then states that reply comments are due by November 3, 2010, the same day. (This is one of Ben Golant's proceedings.)

See, Federal Register, October 4, 2010, Vol. 75, No. 191, at Pages 61116-61118.

The House is in recess until November 15.

The Senate is in recess until November 12, except for pro forma sessions.

Columbus Day. This is a federal holiday. See, Office of Personnel Management's (OPM) web page titled "2010 Federal Holidays".

5:00 PM. Deadline to submit comments to the National Science Foundation (NSF) National Coordination Office (NCO) for Networking and Information Technology Research and Development (NITRD) regarding the draft NITRD Strategic Plan. See, notice in the Federal Register, September 21, 2010, Vol. 75, No. 182, at Page 57521.

Deadline to submit comments to the Commodity Futures Trading Commission's (CFTC) Technology Advisory Committee in advance of its October 12, 2010, meeting. See, notice in the Federal Register, September 24, 2010, Vol. 75, No. 185, at Pages 58367-58368.

8:00 -10:00 AM. Broadband Census News LLC will host a panel discussion titled "Finding Solutions to Problems of Copyright Infringement". The speakers will include Howard Symons (Mintz Levin) and Michael Zaneis (Interactive Advertising Bureau). Breakfast will be served. This event is free and open to the public. See, notice and registration page. This event is also sponsored by the National Cable & Telecommunications Association (NCTA) and the Public Knowledge (PK). Location: Clyde's of Gallery Place, 707 7th St., NW.

9:30 AM - 12:15 PM. The Office of the U.S. Trade Representative's (OUSTR) Committee of Chairs of the Industry Trade Advisory Committees (ITACs) will meet. The meeting will be closed to the public from 9:30 to 11:15 AM. See, notice in the Federal Register, September 22, 2010, Vol. 75, No. 183, at Page 57827. Location: Department of Commerce, Room 4830, 14th St. and Constitution Ave., NW.

10:00 AM - 4:00 PM. Day one of a three 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 231, Hall of States, 444 North Capitol St., NW.

12:00 NOON - 2:00 PM. The Free State Foundation (FSF) will host a panel discussion titled "Looking Forward: Will Congress Establish Broadband Policy?". The speakers will be Neil Fried (House Commerce Committee staff), David Quinalty (Senate Commerce Committee staff), Daniel Sepulveda (Sen. John Kerry's (D-MA) staff), and Bruce Wolpe (HCC staff). Lunch will be served. Location: Congressional Meeting Room North, Capitol Visitor Center.

1:00 - 5:00 PM. The Commodity Futures Trading Commission's (CFTC) Technology Advisory Committee will hold a public meeting. See, notice in the Federal Register, September 24, 2010, Vol. 75, No. 185, at Pages 58367-58368. Location: CFTC, 1st floor hearing room, Three Lafayette Centre, 1155 21st St., NW.

3:00 - 5:00 PM. The Department of Commerce's (DOC) National Advisory Committee on Innovation and Entrepreneurship will meet by teleconference. The call in number is 888-942-9574; the passcode is 6315042. See, notice in the Federal Register, September 28, 2010, Vol. 75, No. 187, at Pages 59685-59686.

8:30 AM - 5:00 PM. Day one of a two day meeting of the Department of Commerce's (DOC) National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology. See, notice in the Federal Register, September 29, 2010, Vol. 75, No. 188, at Pages 60082-60083. Location: NIST, Portrait Room, Administration Building, Gaithersburg, MD.

8:30 AM. The Department of Homeland Security's (DHS) Critical Infrastructure Partnership Advisory Council (CIPAC) will meet. The agenda is "panel discussions between participating Sectors regarding Regionalization and Resilience and Information Sharing". See, notice in the Federal Register, October 1, 2010, Vol. 75, No. 190, at Page 60771. Location: Bethesda, MD.

10:00 AM. Status conference in USA v. Microsoft, D.C. No. 98-1232 (CKK). See, latest joint status report. Location: Courtroom 28A, 333 Constitution Ave., NW.

10:00 AM - 4:00 PM. Day two of a three 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 231, Hall of States, 444 North Capitol St., NW.

6:00 - 8:30 PM. The Public Knowledge will host a fundraising event titled "Public Knowledge IP3 Awards". The price to attend is $35. Location: Eastern Market, North Hall, 225 7th St., SE.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding competitive bidding procedures for Auction 91. This auction, which is scheduled to commence on March 29, 2011, pertains to FM Broadcast Construction Permits. See, September 21, 2010, FCC Public Notice (DA 10-1711 in AU Docket No. 10-183) and notice in the Federal Register, October 6, 2010, Vol. 75, No. 193, at Pages 61752-61756.

8:00 AM - 3:00 PM. The Department of Homeland Security's (DHS) Homeland Security Advisory Council (HSAC) will hold a closed meeting. The agenda includes "Lessons Learned from the cyber exercise". See, notice in the Federal Register, September 27, 2010, Vol. 75, No. 186, at Page 59278. Location: DHS Headquarters, Nebraska Avenue Complex.

8:30 AM - 2:30 PM. Day two of a two day meeting of the Department of Commerce's (DOC) National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology. See, notice in the Federal Register, September 29, 2010, Vol. 75, No. 188, at Pages 60082-60083. Location: NIST, Portrait Room, Administration Building, Gaithersburg, MD.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in MetroPCS California v. FCC, App. Ct. No. 10-1003. See, FCC's brief [PDF]. Location: Courtroom 11.

10:00 AM - 4:00 PM. Day three of a three 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 231, Hall of States, 444 North Capitol St., NW.

10:00 - 11:30 AM and 1:00 - 2:30 PM. The Federal Communications Commission (FCC) will hold initial usability test sessions for its proposed Consolidated Licensing System (CLS). See, notice. Location: FCC, Room TW-B445b/c, 445 12th St., SW.

10:30 AM. The Federal Communications Commission (FCC) will hold an event titled "open meeting". The agenda [PDF] states that the FCC is scheduled to (1) adopt a NPRM regulating the billing and notice practices of mobile carriers, (2) adopt a NPRM to expand universal service subsidies to cover certain 3G and next generation wireless services, and (3) a Report and Order amending the FCC's CableCARD rules. Location: FCC, Commission Meeting Room, 445 12th St., SW.

2:00 PM. The Federal Communications Commission's (FCC) Advisory Committee on Diversity for Communications in the Digital Age will meet. See, notice in the Federal Register, September 30, 2010, Vol. 75, No. 189, at Pages 60458. Location: FCC, 445 12th St., SW.

2:40 PM. The Federal Trade Commission's (FTC) Bureau of Economics will host a presentation by Wallace Mullin (George Washington University Department of Economics). 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 - 8:00 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Young Lawyers Pre-Charity Auction Happy Hour". For more information, contact Mark Brennan at mark dot brennan at hoganlovells dot com. Location: 14K Restaurant, 1001 14th St., NW.

Deadline to submit reply comments to the The Federal Communications Commission (FCC) regarding bidding procedures for Auction 90, regarding certain VHF construction permits. See, FCC Public Notice (DA 10-1351 in AU Docket No. 10-147) and notice in the Federal Register, September 23, 2010, Vol. 75, No. 184, at Pages 57947-57952. The auction is scheduled to commence on February 15, 2010.

9:00 - 10:30 AM. The New America Foundation (NAF) will host an event titled "Opening up Technology in Service of Teaching: What it Will Take". The speakers will be Tim Vollmer (Creative Commons), Lynne Munson (Common Core), Michael Levine (Joan Ganz Cooney Center), Mark Osborne (Albany Senior High School, New Zealand), Lisa Guernsey (NAF), and Sascha Meinrath (NAF). See, notice. Coffee will be served. Location: NAF, Suite 400, 1899 L St., NW.

Deadline to submit comments to the Department of Commerce's (DOC) Bureau of Industry and Security (BIS) regarding its proposed "Best Practices for Transit, Transshipment, and Reexport of Items Subject to the Export Administration Regulations". See, notice in the Federal Register, September 1, 2010, Vol. 75, No. 169, at Pages 53639-53640.

10/5. The Department of Commerce's (DOC) Internet Policy Task Force (IPTF) published a notice in the Federal Register requesting comments regarding the relationship between the availability and protection of online copyrighted works and innovation in the internet economy.

Secretary of Commerce Gary Locke stated in a related release that U.S. policies "explicitly recognize the legitimate rights and expectations of those whose creation and distribution of digital works strengthen our economy, expand our exports, and create jobs in America. Our ongoing challenge and commitment is to align the flexibility needed for innovation in the Internet economy with effective means of protecting copyrighted works that are accessible online."

This inquiry also involves the U.S. Patent and Trademark Office (USPTO) and the National Telecommunications and Information Administration (NTIA), both of which are DOC components.

This notice asks numerous questions in three broad areas: (1) the nature of online infringement, (2) internet intermediaries and DMCA Section 512 notice and takedown procedure, and (3) Section 512 counter notification.

The notice poses many questions regarding online infringement. It begins by asking, "What are stakeholders' experiences and what data collection has occurred related to trends in the technologies used to engage in online copyright piracy, and what is the prevalence of such piracy? What new studies have been conducted or are in-process to estimate the economic
effects of this piracy? What assumptions are made in such studies on the substitution rates among the different forms of content?"

It asks "What technologies are currently used to detect or prevent online infringement and how effective are these technologies? What observations, if any, have been made as to patterns of online infringement as broadband Internet access has become more available? Is litigation an effective option for preventing Internet piracy?"

It also asks "what incentives could encourage use of detection technologies by online services providers, as well as assistance from payment service providers, to curb online copyright infringement?"

The notice then propounds numerous questions regarding intermediaries and the notice and take down procedure under 17 U.S.C. § 512. For example, "What are stakeholders' experiences with the volume and accuracy of takedown notices issued for allegedly infringing content across the different types of online services (i.e., storage, caching, and search) and technologies (e.g., P2P, cyber lockers, streaming, etc.)?" (Parenthses in original.)

It asks, "What processes are employed by rights holders to identify infringers for purposes of sending takedown notices? What processes do Internet intermediaries employ in response to takedown notices? Are Internet intermediaries' responses to takedown notices sufficiently timely to limit the damage caused by infringement?"

It also asks, "What are stakeholders' experiences with Section 512(i) on the establishment of policies by online service providers to inform subscribers of service termination for repeat infringement? What are stakeholders' experiences with the framework in Section 512(j) for injunctive relief to prevent or restrain online infringement?"

Finally, it asks, "Would stakeholders recommend improvements to existing legal remedies or even new and additional legal remedies to deal with infringing content on a more timely basis?"

Other than this, this notice asks no questions regarding S 3804 [LOC | WW], the "Combating Online Infringement and Counterfeits Act", or proposals to give the Department of Justice (DOJ) authority to bring in rem actions against domain names, and obtain injunctions against intermediaries.

The final topic of this notice is counter-notification. It asks, "What are stakeholders' experiences with the awareness and appropriate use by Internet users of the counter-notification mechanism? What are stakeholders' experiences regarding inappropriate use by Internet users of the counter-notification mechanism, if any? What are stakeholders' experiences with the volume of counter-notices filed?"

It also asks, "are independent creators and Internet users able to fully exploit the Internet platform for the distribution of their works and, if not, what barriers have been encountered? What mechanisms are there, or should there be, for creators of user-generated content to seek compensation for their work?"

The deadline to submit comments is November 19, 2010. See, notice in the Federal Register, October 5, 2010, Vol. 75, No. 192, at Pages 61419-61424.

The DOC/IPTF also has an open inquiry regarding the global free flow of information. Comments in that proceeding are due by November 15, 2010. See, notice in the Federal Register, September 30, 2010, Vol. 75, No. 189, at Pages 60408-60409. See also, story titled "NTIA Seeks Comments on Governments' Restrictions of Free Flow of Information on the Internet" in TLJ Daily E-Mail Alert No. 2,137, October 1, 2010.

In addition, the Office of the U.S. Trade Representative (OUSTR), which is not a component of the DOC, has an open proceeding regarding "potential Internet and physical notorious markets that exist outside the United States". See, notice in the Federal Register, October 1, 2010, Vol. 75, No. 190, at Pages 60854-60855, and story titled "OUSTR Announces Separate Notorious Markets Process" in TLJ Daily E-Mail Alert No. 2,138, October 4, 2010.

10/6. The Copyright Alliance announced in a release that its Executive Director, Patrick Ross, "is returning to a full-time writing career". It added that "a search has begun for a new Executive Director, and that Ross will continue serving in his current position for a period of time while that search is underway".

Ross has been head of the Copyright Alliance since its beginning in May of 2007. See, story titled "Copyright Alliance Announces Its Formation" in TLJ Daily E-Mail Alert No. 1,583, May 18, 2007. Before that, he worked for the Progress & Freedom Foundation (PFF). And before that, Ross held various positions at Warren News and CNET, where he wrote about communications and technology.

10/7. YoungSuk Chi was elected President of the International Publishers Association (IPA). He is also Vice Chairman and CEO of Elsevier Science & Technology. The IPA also elected new members to its Board of Directors. See, IPA release.

10/6. The CTIA announced the election of new members to its Board of Directors. See, CTIA release.

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