11/3. The Library of Congress's (LOC) Copyright Office (CO) published a notice in the Federal Register that announces, describes, and sets comment deadlines for its Notice of Inquiry (NOI) regarding federal coverage of sound recordings fixed before February 15, 1972.

HR 1105 [LOC | WW], an omnibus appropriations bill, which is now Public Law No. 111-8, directed the LOC to conduct this NOI.

Prior to 1972 sound recordings were not protected by the federal Copyright Act. However, state criminal law, civil law, and/or common law provided protection. A 1971 Congressional statute provided federal copyright protection for sound recording fixed after February 15, 1972. Then, the 1976 copyright act preempted all state laws that provided rights equivalent to the federal Copyright Act, but provided an exemption for pre-1972 sound recordings.

This notice states that "One consequence of the continued protection under State law of pre-1972 sound recordings is that there are virtually no sound recordings in the public domain in the United States."

It continues that "Faced with the uncertain patchwork of State laws that cover pre-1972 recordings, libraries, archives and educational institutions have voiced serious concerns about their legal ability to preserve pre-1972 recordings, and provide access to them to researchers and scholars."

HR 1105 directed the LOC to conduct a study of "the effect of federal coverage on the preservation of such sound recordings, the effect on public access to those recordings, and the economic impact of federal coverage on rights holders".

The NOI propounds 30 numbered questions -- many of which contain multiple questions.

This notice states that the deadline to submit initial comments is December 20, 2010. It states that the deadline to submit reply comments is December 3, 2010. The LOC web site corrects the reply comment deadline: January 19, 2011. See, Federal Register, November 3, 2010, Vol. 75, No. 212, at Pages 67777-67781. This proceeding is LOC Docket No. 2010-4.

11/4. The Federal Communications Commission released a tentative agenda [PDF] for its event on November 30, 2010, titled "Open Meeting".

The tentative agenda states that the FCC is scheduled to adopt a Notice of Proposed Rulemaking (NPRM) regarding "rules to facilitate the most efficient use of the UHF and VHF TV bands".

Second, the tentative agenda states that the FCC is scheduled to adopt a NPRM regarding "rules to facilitate greater experimentation in the wireless space." The agenda adds that this NPRM proposes to make the FCC's "experimental licensing rules more flexible, including by easing testing restrictions on universities, research organizations, and other institutions that are developing new wireless services and devices.

Third, the tentative agenda states that the FCC is scheduled to adopt a Notice of Inquiry (NOI) regarding "ways to accelerate ``opportunistic use´´ of underdeveloped spectrum in both licensed and unlicensed bands, including how technological innovations can effectively foster secondary markets."

This event is scheduled for Tuesday, November 30, 2010, in the FCC's Commission Meeting Room, 445 12th Street, SW.

11/6. Rep. Lamar Smith (R-TX), the ranking Republican on the House Judiciary Committee (HJC), stated in a release on November 3, 2010, that on the HJC, "we will focus on initiatives that protect Americans and create jobs, including strengthening national security, enforcing immigration laws, protecting intellectual property, preventing frivolous lawsuits and keeping children safe from sex predators."

While this list does include intellectual property, it does not include reforming and updating the Electronic Communications Privacy Act (ECPA), updating criminal laws related to cyber security, oversight of the antitrust activities of the Department of Justice (DOJ), or other technology related issues that fall within the jurisdiction of the HJC.

Rep. Smith added that the "112th Congress will have our hands full."

Rep. Joe Barton (R-TX), the ranking Republican on the House Commerce Committee (HCC), released a post election statement regarding his legislative goals for the 112th Congress. It does not address communications or technology related issues.

Sen. Mitch McConnell (R-KY), the Senate Republican leader gave a speech at the Heritage Foundation in Washington DC on November 4, 2010, in which he discussed the consequences of the November 2 elections. He did not discuss technology related issues, other than to advocate "completing free trade agreements", and to oppose "any further job-killing regulations". However, he did not name any particular trade agreements, or regulation writing agencies.

Sen. Harry Reid (D-NV), the Senate Democratic leader, also gave a speech, in which he did not discuss technology related issues. See also, post election statement by Sen. Lamar Alexander (R-TN), and statement by Sen. John Barrasso (R-WY).

Also, technology related issues did not play a prominent role in election campaigning prior to November 2. However, Senator elect Rob Portman (R-OH), a former U.S. Trade Representative, campaigned on the issue of free trade, and 95 House Democratic candidates signed a pledge to support net neutrality.

Finally, President Obama gave a speech on November 6 regarding the November 2 elections, without discussing any technology related issues.

11/5. Several persons expressed views on the consequences of the November 2, 2010, House and Senate elections for technology policy.

Scott Cleland of the Precursor LLC wrote a short piece in which he stated that "Every single one of the 95 House and Senate candidates that FreePress/PCCC got to publicly pledge support for net neutrality -- lost their election in the mid-terms. Yes, that is indeed a 0-for-95 record here."

Cleland added that "The lesson for the FCC here is that FreePress' and Google's net neutrality semantic sleights of hand and tongue have not resulted in political support or consensus, but extreme political divisiveness", and "the next few months is no time for the FCC to become politically polarizing by pushing forward with FreePress' election-repudiated agenda to regulate the Internet via Open Internet or Title II regulations."

In contrast, Ben Doernberg of the Public Knowledge, wrote in another short piece that "The story of the election was very simple; if you were a Democrat, you were probably going to lose." He argued that "95% of the House challengers who supposedly lost because of Net Neutrality come from districts that lean Republican".

Phillip Berenbroick of the Computer and Commmunications Industry Association (CCIA) wrote in a piece titled "Net Neutrality In The Wake Of The Election" that "In May 73 Democrats signed on to a letter outlining their opposition to the FCC imposing net neutrality rules through reclassification. In June 32 Democrats signed a letter in support of reclassification. In late October 95 Democratic candidates signed a pledge, organized by the Progressive Change Campaign Committee (PCCC) to support net neutrality rules."

He argued that in the November 2 elections that "voters supported Democratic incumbents on the record in favor of net neutrality unanimously, while rejecting more than one-third of those who oppose Internet freedom. The tale-of-the-tape is in the numbers: 27 of 73 Democrats who opposed FCC reclassification were defeated, while all 32 who signed on in support of reclassification were re-elected."

Berenbroick concluded that "Claims of victory by net neutrality opponents are wildly overblown; net neutrality was not a defining issue in this year’s congressional elections. According to exit polls, the economy and jobs were voters’ top concerns."

Also, Ed Black, head of the CCIA wrote in a broader piece on the consequences of the November 2 elections that some issues, such as privacy, cybersecurity, and spectrum will not be affected.

However, wrote Black, "Republicans tend to be supportive of trade, so that could boost momentum on several pending trade agreements that have broad support from the tech industry. The Republican gains though are likely to make it more difficult to get comprehensive immigration reforms passed, which the tech industry has supported. Tax repatriation issues are likely to get favorable treatment."

Black also wrote that "Much has been written about the Tea Party's stance on getting government out of peoples' lives. What will be interesting to see once these candidates get to Washington is what their stance on government interference means for Internet freedom, privacy and government surveillance. Will proposals to increase government surveillance of domestic phone calls and emails get these Constitutional fundamentalists worked up?"

Bert Foer, head of the American Antitrust Institute (AAI), stated in a release that "the election will have relatively little impact on the enforcement of the nation's antitrust laws".

He argued that there are "five reasons why U.S. competition policy enforcement will stay its course following the election: (1) the appointees in charge of policy at both the Federal Trade Commission and the Department of Justice Antitrust Division are expected to remain in place; (2) their policies to date have been of a moderate nature, not breaking in substantial ways with previous  administrations; (3) a bipartisan but conservative blue ribbon commission established by Congress recently concluded that major changes in the law are not needed; (4) enforcement by private plaintiffs will continue to account for more than 95 percent of antitrust cases;  and (5) antitrust  continues to serve the vast majority of businesses as well as consumers as a fundamental protection against anticompetitive practices."

11/4. Rep. Joe Barton (R-TX), the ranking Republican on the House Commerce Committee (HCC), sent an letter [PDF] to incoming freshmen Republicans. He wrote that "I'm supporting John Boehner for speaker. I also hope to participate, myself, as chairman of the Energy and Commerce Committee. I'll need the support of people like you who are coming to Washington with change on their minds and determination in their hearts."

However, Rep. Barton did not discuss in this letter any of the communications or technology related issues that fall within the jurisdiction of the HCC.

The Hill published an article by Ben Geman on November 4, which Rep. Fred Upton (R-MI), a senior member of the HCC, republished in his web site. It states that "Upton is burnishing his conservative bona fides as he seeks to be chairman when the GOP assumes House control next year." It adds that "Various lobbyists and aides say Upton has the pole position to head the committee, but Rep. Joe Barton (R-Texas) -- who is currently the panel's senior Republican -- and others are also eyeing chairmanship."

11/4. The White House news office issued a statement on November 2, 2010, regarding trade with Korea.

"President Lee called the President yesterday evening to discuss the forthcoming G20 Summit that will be held in Seoul on November 11 - 12. They also discussed the bilateral aspect of the President’s upcoming visit and economic and trade issues, including the KORUS Free Trade Agreement. The President underscored that we hope to use the next week to make progress toward an agreement. If we can reach a satisfactory agreement on the key issues for American workers, we will have a deal."

The Office of the U.S. Trade Representative (OUSTR) stated in a release on November 3, 2010, that "working-level discussions on the U.S.-Korea trade agreement will be held in Seoul November 4-5 between Assistant United States Trade Representative for Korea, Japan, and APEC Affairs Wendy Cutler and Korean Deputy Minister for Trade Choi Seok-young."

The OUSTR added in a release on November 4 that "further discussions on the U.S.-Korea trade agreement will be held in Seoul November 8-9 between United States Trade Representative Ron Kirk and Korean Minister for Trade Kim Jong-hoon."

The OUSTR issued a release that states that on November 12 "Ambassador Kirk will travel to Yokohama, Japan for the Asia-Pacific Economic Cooperation (APEC) Leaders Meeting."

11/4. Edward Felten (Princeton University) was named Chief Technologist of the Federal Trade Commission (FTC), effective January of 2011. He is already a part time consultant for the FTC. See, FTC release.

11/4. Eileen Harrington was named Executive Director of the Federal Trade Commission (FTC). See, FTC release.

The House is in recess until November 15.

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

9:00 AM - 5:30 PM. The Federal Communications Commission (FCC) will host an event titled "Open Developer Day". The FCC stated in a release that the purpose of this event is to "promote collaboration between web developers in the public and private sectors in furtherance of FCC goals to foster citizen participation in open government and further innovation in accessible technologies". Location: FCC, 445 12th St., SW.

10:00 AM. The Supreme Court will hear oral argument in Costco Wholesale Corp. v. Omega S.A., Sup. Ct. No. 08-1423, a petition for writ of certiorari to the U.S. Court of Appeals (9thCir). At issue is the application of the copyright first sale doctrine to imported items. See, Supreme Court docket.

10:00 AM - 1:00 PM. The Department of Commerce's (DOC) National Telecommunications and Information Administration's (NTIA) Commerce Spectrum Management Advisory Committee will meet. See, notice in the Federal Register, October 20, 2010, Vol. 75, No. 202,  at Pages 64699-64700. Location: DOC, Room 4830, 1401 Constitution Ave., NW.

6:00 - 9:15 PM. The DC Bar Association will host a panel discussion titled "Copyright Law and Litigation". The speaker will be Kenneth Kaufman (Manatt Phelps & Phillips). The price to attend ranges from $89 to $129. Reporters are barred from attending most DC Bar events. CLE credits. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

Day one of a three day event titled "Open Web Application Security Project (OWASP) AppSec 2010 Conference". See, OWASP web site. Location: Washington Convention Center, 801 Mount Vernon Place, NW.

8:00 -10:00 AM. Broadband Census News LLC will host a panel discussion titled "Approaches by Internet Service Providers Around the World to Copyright Infringement". The speakers will be Herve Rannou (ITEMS International), Jean-Baptiste Soufron (Think Digital), Robin Twyman (UK embassy), and Sydney White (DLA Piper). 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. The U.S. Court of Appeals (DCCir) will hear oral argument in Kristin Brooks Hope Center v. FCC, App. Ct. No. 09-1310. Judges Henderson, Williams and Randolph will preside. See, FCC's brief [42 pages in PDF]. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. The Supreme Court will hear oral argument in AT&T Mobility LLC v. Vincent and Liza Concepcion, Sup. Ct. No. 09-893, a petition for writ of certiorari to the U.S. Court of Appeals (9thCir). The question presented is "Whether the Federal Arbitration Act preempts States from conditioning the enforcement of an arbitration agreement on the availability of particular procedures-here, class-wide arbitration-when those procedures are not necessary to ensure that the parties to the arbitration agreement are able to vindicate their claims." See, Supreme Court docket.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument en banc in Therasense v. Bection, App. Ct. No. 2008-1511, a patent infringement case involving the issue of inequitable conduct. See, order granting en banc hearing. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument en banc in Tivo v. Echostar, App. Ct. No. 2009-1374, a patent infringement case. See, order granting rehearing en banc. Location: Courtroom 201, 717 Madison Place, NW.

2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division's (AD) Economic Analysis Group (EAG) will host a presentation titled "Cumulative Innovation and Competition Policy". The speaker will be Alex Raskovich (EAG). For more information, contact Thomas Jeitschko at 202-532-4826 or atr dot eag at usdoj dot gov. Location: Liberty Square Building, 450 5th St., NW.

There will be an event "2011 Homeland Security Leadership Conference". At 3:30 PM, Brandon Wales (Director of the DHS's NPPD's Homeland Infrastructure Threat and Risk Analysis Center, will participate in a panel discussion about cybersecurity and infrastructure protection priorities. Location: The Caucus Room, 401 9th St., NW.

Day two of a three day event titled "Open Web Application Security Project (OWASP) AppSec 2010 Conference". See, OWASP web site. Location: Washington Convention Center, 801 Mount Vernon Place, NW.

9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. See, notice and notice in the Federal Register, October 18, 2010, Vol. 75, No. 200, at Pages 63830-63831. Location: FCC, Room TW-C305, 445 12th St., SW.

6:00 - 8:15 PM. The DC Bar Association will host a panel discussion titled "Export Controls and Economic Sanctions 2010: Recent Developments and Current Issues". The speakers will be Thomas Scott (Ladner & Associates) and Carol Kalinoski. The price to attend ranges from $89 to $129. Reporters are barred from attending most DC Bar events. CLE credits. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

9:00 - 10:30 AM. The US Telecom will host a panel discussion titled "Role of Broadband Providers in Utility Communications Networks". The speakers will be Robert Mayer (US Telecom), Mike Oldak (Utilities Telecom Council), Larry Plumb (Verizon), and Nick Sinai (FCC). Breakfast will be served. See, notice. Location: US Telecom, Suite 400, 607 14th St., NW.

Day three of a three day event titled "Open Web Application Security Project (OWASP) AppSec 2010 Conference". See, OWASP web site. At 10:45 AM, Joe Jarzombek (DHS's NPPD's Director of Software Assurance) will participate in a panel discussion of software security automation and management. Location: Washington Convention Center, 801 Mount Vernon Place, NW.

Deadline to submit requests to the Office of the U.S. Trade Representative (OUSTR) to present oral testimony at the OUSTR's November 19, 2010, public hearing regarding Malaysia's participation in ongoing negotiation of a Trans-Pacific Partnership (TPP) trade agreement. The OUSTR seeks comments on, among other things, "electronic commerce issues" and "trade-related intellectual property rights issues that should be addressed in the negotiations". See, notice in the Federal Register, October 20, 2010, Vol. 75, No. 202, at Pages 64778-64779.

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

9:00 AM - 12:30 PM. The University of Colorado's Silicon Flatirons (SF), Information Technology and Innovation Foundation (ITIF), and other groups will host a half day conference titled "The Unfinished Radio Revolution: New Approaches to Handling Wireless Interference". The speakers will be Robert Atkinson (ITIF), Pierre de Vries (SF), Dale Hatfield (SF), Michael Calabrese (New America Foundation), Ellen Goodman (Rutgers University -- Camden), Bruce Jacobs (Pillsbury Winthrop Shaw Pittman), Evan Kwerel (FCC Office of Plans and Policy), Gregory Rosston (Stanford University), Ari Fitzgerald (Hogan Lovells), Harold Feld (Public Knowledge), Thomas Hazlett (George Mason University), Michael Marcus (Marcus Spectrum Solutions LLC), Charla Rath (Verizon), and Cheryl Tritt (Wilkinson Barker Knauer). CLE credits. See, SF notice and ITIF notice. The ITIF will webcast this event. Location: ITIF/ITIC, 6th floor, 1101 K St., NW.

10:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Materials Technical Advisory Committee will meet. See, notice in the Federal Register, November 2, 2010, Vol. 75, No. 211, at Pages 67347-67348. Location: DOC, Room 3884, 14th Street between Constitution & Pennsylvania Avenues, NW.

5:00 PM. Deadline to submit comments to the Department of Health and Human Services (DHHS) regarding its interim final rule regarding standards, implementation specifications, and certification criteria for electronic health record technology. The DHHS announced and recited this interim final rule in a notice in the Federal Register, October 13, 2010, Vol. 75, No. 197, at Pages 62686-62690.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in American Bar Association v. FTC, App. Ct. No. 10-5057. Judges Rogers, Griffith and Edwards will preside. This case pertains to the Federal Trade Commission's (FTC) attempt to regulate attorneys as "creditors" within the meaning of Fair and Accurate Credit Transactions Act of 2003, Public Law No. 108-159. See, FTC brief. Location: Courtroom 11, Prettyman Courthouse, 333 Constitution Ave., NW.

Deadline to submit comments to the Department of Commerce's (DOC) National Telecommunications and Information Administration's (NTIA) Internet Policy Task Force (IPTF) regarding government policies that restrict global information flows on the internet. See, notice in the Federal Register, September 29, 2010, Vol. 75, No. 188, at Pages 60068-60073, and 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.

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