12/13. The Supreme Court affirmed the judgment of the U.S. Court of Appeals (9thCir) in Costco v. Omega. The Court issued a one page order stating that the "The judgment is affirmed by an equally divided Court."

Justice Kagan did not participate. She recused herself. The Supreme Court issued no opinions. It did not disclose how Justices voted.

Introduction. This is a victory for large copyright holders, including movie and record companies. This is a loss for operators of online secondary markets, such as eBay and Amazon.

This affirms the September 3, 2008, opinion [17 pages in PDF] of the Court of Appeals, which held that the first sale doctrine does not apply to imported goods manufactured abroad. It applies "only where the disputed copies of a copyrighted work were either made or previously sold in the United States with the authority of the copyright owner".

The interpretation of the relevant provisions of the Copyright Act affect manufacturers as well as retailers, and participants in secondary markets. The crux of the issue is manufacturers' (of copyrighted works) interest in being able to market their works differently in different countries -- including pricing, date of release, and product variation. Secondary markets, including online markets operated by Amazon and eBay, undermine the manufacturers' control.

For goods made and sold in the US the first sale doctrine precludes the use of copyright to limit unauthorized secondary markets. However, because the Copyright Act contains special language for importation of copies, the 9th Circuit held that the law is different for imported works.

Producers of digital works, such as movie and record companies, argue that the Court of Appeals, and now the Supreme Court, ruled correctly. Operators of online secondary markets, such as eBay, argue that the Court of Appeals should have been reversed.

Statutes. 17 U.S.C. § 106 states the exclusive rights of copyright. It provides in relevant part that "Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: ... to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending".

The exclusive rights of copyright are subject to the first sale doctrine, which is codified at 17 U.S.C. § 109. It provides in relevant part that "the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord".

17 U.S.C. § 602, which pertains to "Infringing importation or exportation of copies or phonorecords", provides in part that "Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under section 501."

Background. Omega makes watches in Switzerland and sells them globally through a network of authorized distributors and retailers. Third parties acquired Omega watches overseas, and sold them to Costco, which sold them at retail to consumers in the state of California, without authorization from Omega.

Omega marketed its watches at different prices in different countries. Costco's actions undermined this strategy.

Omega filed a complaint in the U.S. District Court (CDCal) against Costco alleging copyright infringement under 17 U.S.C. §§ 106(3) and 602(a). Omega filed a motion for summary judgment. Costco filed a cross motion for summary judgment asserting the first sale doctrine.

The District Court granted judgment to Costco, without explanation.

Omega appealed to the Court of Appeals, which reversed.

Court of Appeals. The Court of Appeals offered this explanation of the statute:

"The text of the Copyright Act establishes by syllogism that the first sale doctrine of § 109(a) limits § 602(a): First, given that § 106(3) is ``subject to sections 107 through 122´´ and § 109 falls within the designated portion of the Code, § 109(a) limits the exclusive distribution right in § 106(3). Second, infringing importation under § 602(a) is merely a subcategory of ``infringement of the exclusive right to distribute copies ... under section 106,´´ so conduct that does not violate § 106(3) cannot constitute infringement under § 602(a). Finally, because conduct covered by § 109(a) does not violate § 106(3), and because absent a violation of § 106(3) there cannot be infringement under § 602(a), conduct covered by § 109(a) does not violate § 602(a). In short, infringement does not occur under § 106(3) or § 602(a) where ``the owner of a particular copy ... lawfully made under this title´´ imports and sells that copy without the authority of the copyright owner."

The Court of Appeals also examined judicial precedent, and found it consistent with its holding. See especially, the Supreme Court's 1998 opinion in Quality King Distributors, Inc. v. L'anza Research International, Inc., 523 U.S. 135, and the 9th Circuit's 1991 opinion in BMB Music  v. Perez, 952 F.2n 318.

It also wrote that the application of § 109(a) to foreign made copies would impermissibly apply the Copyright Act extraterritorially.

Amicus Briefs Urging Reversal. Numerous entities filed amicus curiae briefs with the Supreme Court. Several contain policy and industry analysis regarding technology related industry sectors.

eBay, Google, Computer and Communications Industry Association (CCIA), and others filed one amicus brief [31 pages in PDF]. In addition to arguing statutory construction, they argued that the holding of the 9th Circuit "will have significant adverse consequences for trade, e-commerce, secondary markets, small businesses, consumers, and jobs in the United States".

These tech sector entities also wrote that "It is impossible for secondary market participants to identify each alleged copyright and make a determination regarding its legal status. Moreover, secondary market participants would have no means to determine where the goods were manufactured, whether and where a prior sale occurred and whether the copyright owner had authorized the prior sale."

They continued that "Imposition of such substantial and unmanageable burden is likely to stifle commerce in the secondary market."

Hence, the Court of Appeals opinion "substantially threatens the increasingly important e-commerce sector of the economy, particularly secondary market e-commerce."

Similarly, the Public Knowledge (PK), Electronic Frontier Foundation (EFF), and others submitted an amicus brief [47 pages in PDF] urging reversal.

They argued that if the Court of Appeals is not reversed, then "the copyright owner's distribution right would never be exhausted under § 109(a) so long as the copy was manufactured outside the United States and the copyright owner never authorized its sale within the United States. This restriction on § 109 would chill the entire secondary market for copyrighted goods in the United States, and potentially all foreign-produced goods that merely bear or contain a copyrighted image or logo."

"The uncertainty created by the Ninth Circuit's holding will harm used bookstores, libraries, yard sales, out-of-print book markets, movie and video game rental markets, and innumerable other secondary markets." They added that "Other resellers, like pawnbrokers, auction houses, and online marketplaces would also suffer, fearing potential litigation by manufacturers eager to maintain resale price."

Moreover, the PK and others argued, "online exchanges like eBay, craigslist, and Amazon Marketplace would have to decide between their new liability exposure and the cost of investigating the hundreds of millions of items sold via their sites. Chilling such established facets of the secondary marketplace would have a corrosive economic impact and would not be in keeping with the aims of copyright law."

Amicus Briefs Urging Affirmance. In contrast, the Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA) filed an amicus brief in support of the Court of Appeals.

They argued that "Congress has granted copyright holders an exclusive right to control the first sale of tangible copies of protected works, including the right to obtain whatever economic benefits flow from that first sale. In the run-of-the-mill case, once that first sale of a particular tangible copy is made and the copyright holder has realized the economic benefit afforded under the Copyright Act, it has exhausted its exclusive rights and may no longer control further sales of that copy of the protected work."

But, "Given its natural meaning and the presumption that U.S. law does not apply extraterritorially, that language is properly read to refer to copies made in the United States."

The RIAA/MPAA brief also argues why this interpretation is is important to the motion picture industry. It states that "a studio will frequently treat national markets separately for purposes of theatrical and home video releases. The studio's ability to do so can be critical to a film’s commercial success. In the music industry, recordings are often released at different times in different countries, depending on the strategic considerations of the local territory. Unauthorized importation could undercut these important practices and reduce the value of U.S. movie and music copyrights."

Thus, "Far from achieving the economic benefits that Costco hypothesizes, extending the first sale defense to copies that were made abroad for distribution in a foreign market would thus prevent U.S. copyright holders from obtaining the economic reward Congress intended to provide under U.S. law."

This case is Costco Wholesale Corporation v. Omega, S.A., Supreme Court of the U.S., Sup. Ct. No. 08-1423, a petition for writ of certiorari to the U.S. Court of Appeals for the 9th Circuit, App. Ct. Nos. 07-55368 and 07-52606. The Court of Appeals heard an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-04-05443-TJH, Judge Terry Hatter presiding. Judge Milan Smith wrote the opinion of the Court of Appeals, in which Judges Barry Silverman and Johnnie Rawlinson joined. See also, Supreme Court docket.

12/13. The U.S. International Trade Commission (USITC) released a report [196 pages in PDF] titled "China: Intellectual Property Infringement, Indigenous Innovation Policies, and Frameworks for Measuring the Effects on the U.S. Economy".

The report begins by stating that "As one important aspect of WTO accession, China committed to complying with the requirements of the WTO Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, which addresses intellectual property rights (IPR). However, IPR infringement in China -- including violations of copyrights, trademarks, patents, and trade secrets -- remains a central concern in the U.S.-China bilateral trade relationship."

The report states that "IPR infringement in China reduces market opportunities and undermines the profitability of U.S. firms when sales of their products and technologies are undercut by competition from illegal, lower-cost imitations. Intellectual property (IP) is often the most valuable asset that a company holds, but many companies, particularly small ones, lack the resources and expertise necessary to protect their property in China."

"China's ``indigenous innovation´´ policies, which promote the development, commercialization, and purchase of Chinese products and technologies, may also be disadvantaging U.S. and other foreign firms and creating new barriers to foreign direct investment (FDI) and exports to China."

The report also finds that "Significant structural and institutional impediments undermine effective IPR enforcement in China. These include a lack of coordination among government agencies, insufficient resources for enforcement, local protectionism, and a lack of judicial independence."

The USITC prepared this report at the request of the Senate Finance Committee (SFC), which has jurisdiction over trade issues. The public release of this report coincides with the meeting this week in Washington DC of senior US and PRC officials as part of the U.S.-China Joint Commission on Commerce and Trade (JCCT).

Sen. Max Baucus (D-MT) (at right), the Chairman of the SFC, stated in a release that "It is time for China to get serious about protecting American innovation ... China continually fails to protect and enforce American intellectual property rights and discriminates against American businesses. Small steps and empty promises won’t cut it when American jobs are on the line. This week's U.S.-China trade talks are the perfect opportunity for China to make serious commitments to address these issues. It is time for action."

Sen. Charles Grassley (R-IA), the ranking Republican on the SFC, stated in the same release that "China has committed to protect U.S. intellectual property ... But this report shows that China isn’t living up to its commitments. It's a serious problem. China needs to work harder to enforce its intellectual property protection laws, and it needs to stop its policies that treat American companies unfairly."

Robert Holleyman, head of the Business Software Alliance (BSA), stated in a release that this report is "the most comprehensive assessment we have seen to date of how practices in China put innovative companies at a competitive disadvantage. He urged this week's JCCT participants "to look carefully at the ITC’s report".

This is the first of two USITC reports on the PRC. The second report is due May 2, 2011.

12/8. Stanford McCoy, Assistant U.S. Trade Representative for Intellectual Property and Innovation, spoke at an event hosted by the Copyright Clearance Center (CCC) on Capitol Hill on Wednesday, December 8, 2010. He spoke about copyright infringement in the People's Republic of China (PRC), notorious internet markets, the copyright reform process in Canada, and how to win respect for intellectual property rights around the world.

He spoke as one member of a panel that discussed copyright protection, infringement, and incenting creativity generally.

PRC. McCoy responded to the question, "What one thing would make this better?" and "What would make your life easier? What would make this issue be more productive for everyone?"

McCoy said, "My one thing is China, China, China, China. I will repeat that for a full minute."

He continued that "If you look at the most tragic web sites in the world, you find web sites like Baidu, Sohu, TaoBao, in the very top of that category because the internet market place is growing tremendously in China."

"Respect for copyright in China has a long way to go. According to the software industry, we loose something like six billion dollars a year in U.S. software sales to China on an annual basis, just because Chinese companies aren't paying for it -- for copyrighted software. I am sure we are in the same boat on all kinds of copyright and creative content in China."

And, McCoy stated, "the rules governing a website like Baidu and its deep linking activities, are not clear. Every ounce of clarity we can add to the legal environment in China surrounding copyright would pay returns to U.S. creators in a big way."

Notorious Markets. The annual Special 301 reports, released every spring by the Office of the U.S. Trade Representative (OUSTR), have for years included a short section on notorious markets, both physical and online.

See for example, the OUSTR's 2010 Special 301 report [54 pages in PDF], released on April 30, 2010, at pages 43-45. It lists four web sites in the PRC -- Baidu, TV Ants, TaoBao, and Alibaba -- as well as business to business and business to consumer web sites in the PRC generally.

The OUSTR announced on October 1, 2010 that it will "begin publishing the notorious market list separately from the annual Special 301 report in which it has previously been included". See, story titled "OUSTR Announces Separate Notorious Markets Process" in TLJ Daily E-Mail Alert No. 2,138, October 4, 2010. See also, story titled "Groups File Comments with OUSTR Regarding Notorious Markets" in TLJ Daily E-Mail Alert No. 2,152, November 10, 2010.

McCoy said that "People who are taking a responsible approach to these issues and are tying to figure out how to work within the law, and work with the strengths and shortcomings of the law, are all very much undermined by the existence of black markets out there, whether you are talking about physical markets or digital markets, where the rules don't apply."

"While those markets may be great from some perspectives, they are not great from a rule of law perspective, and from creating an environment where creators can be compensated and make a living out of doing creative work, it is not great. The real challenge that we face internationally now is how do we work with other governments to approach cooperatively this problem of the notorious marketplaces that are out there on the internet, and get a handle on some of this illegal activity. And, you have seen some enforcement activities by the U.S. government, by governments around the world, trying to do exactly that."

Copyright Reform in Canada. McCoy said that "Copyright reform in Canada is something that has been a priority for the U.S. government for a long time. It has frankly been a priority for successive Canadian governments for a long time. We are happy to see this Canadian government moving forward with copyright reform that they feel is in their interests."

"In terms of the particular package that is out there now, I think it has got a number of strong points to it. The important thing for us is that Canada fully implements the WIPO internet treaties that they signed more than a decade ago and haven't yet implemented into Canadian law. And, many of you know that that has caused legal problems in the Canadian courts, and its has caused Canada to be a haven market frankly for some disreputable web sites that are engaged in some of the problem activities that these folks are all contending with."

He concluded that "the U.S. government is four square behind moving forward with copyright reform in Canada. We have been for a long time. Our special 301 reports have echoed that for a long time. We are aware of the concerns about certain exceptions that are reflected in the Canadian law, and different groups who are talking about what the scope of the exceptions should be. That is a healthy debate to have. It is the kind of debate we would have in the U.S., if we were talking about legislation. I don't think that it is going to be helpful for me as the U.S. government to jump into that debate right now. It is a good discussion for Canada to be having on Canada's terms. And, we want to be back here encouraging Canada to move forward with the larger project of copyright reform that has been so long awaited and so overdue."

Getting Respect for IPR. McCoy also addressed his approach to getting respect for intellectual property around the world.

He said that "I tend to worry about three things. One is political will. One is economic development. And the third is the rule of law."

"Those to me are the big ingredients in getting respect for intellectual property, and copyright in particular, to put down roots in foreign markets."

"Without political will -- without a sense on the part of the government that providing an atmosphere of protection is something that they want to do -- you won't have any progress. Without a sense of economic development -- that there is something in it for them -- you won't have respect for property rights. And, without rule of law, you won't have respect for intellectual property rights", said McCoy.

(TLJ transcribed all quotations from TLJ's audio recording. PRC 20101208/10044/C17; NM&GR __34/C7; Canada __38/C11.)

12/9. A trial jury of the U.S. District Court (EDTenn) returned a verdicts of guilty against Clark Alan Roberts and Sean Edward Howley on charges of theft of trade secrets. They used a cell phone camera to photograph a device they sought to replicate for a company in the People's Republic of China (PRC).

The jury returned verdicts of guilty on one count of conspiracy to commit trade secret theft, one count of trade secret theft, one count of unlawful photographing of trade secrets, three counts of transmittal of trade secrets, one count of possession of trade secrets, two counts of wire fraud and one count of conspiracy to commit wire fraud.

Both were engineers at Wyko Tire Technology Inc. Both stole trade secrets from Goodyear Tire and Rubber Company.

The Department of Justice (DOJ) stated in a release that "the defendants used a cell phone camera to surreptitiously take seven unauthorized photographs of a Goodyear" device. Moreover, "Wyko secured a $1.2 million contract in early 2007 with the Haohua South China Guilin Rubber Company Limited (HHSC), a Chinese tire manufacturing company located in Guilin, Peoples Republic of China", including the type of device that the defendants photographed.

The DOJ added that "The ruling in this case will send a message that complicated trade secret violations will be aggressively investigated and prosecuted".

12/9. A group of individuals representing interest groups and companies that advocate regulation of broadband internet access service (BIAS) held a meeting with FCC Commissioner Michael Copps and his legal advisors on December 9, 2010, at which they expressed "unwillingness to support" FCC Chairman Julius Genachowski's proposed but undisclosed rules. See, notice of ex parte meeting [2 pages in PDF].

The participants included representatives of the interest groups Public Knowledge (PK), New America Foundation (NAF), Free Press (FP), Media Access Project (MAP), Consumers Union (CU), and Writers Guild West. Also present were representatives of the companies Amazon, Netflix, Skype, and Dish Network.

The notice states that "the participants expressed their unanimous unwillingness to support the proposed open Internet framework in its present form as they understand it".

They "expressed strong support for use of the same framework for both wireless and wireline services".

They "discussed the importance of rejecting paid prioritization. Absent that, ISP's will be in a position to exploit their dominant position and favor their own content and services, or those of select paying partners. Thus, paid prioritization must be identified as an unjust and unreasonable form of discrimination."

They also "discussed the importance of a strong definition of" BIAS. "The proposed definition provides numerous loopholes and means for carriers to circumvent the proposed rules ..."

They also argued that "any rules adopted exclusively on the basis of Title I jurisdiction are much more likely to face rejection upon judicial review. The participants argued that the Commission should, at the least, employ Title II as a basis of its jurisdiction."

The House will meet at 12:30 PM for morning hour, and at 2:00 PM for legislative business. Votes will be postponed until 6:00 PM. The schedule for the week also includes HR 4853 [LOC | WW], the vehicle for extending certain expiring tax provisions. See, Rep. Hoyer's notice.

The Senate will meet at 10:00 PM. The Senate will resume consideration of HR 4853 [LOC | WW], the vehicle for extending certain expiring tax provisions.

RESCHEDULED FOR FEBRUARY 8. 8:00 -10:00 AM. Broadband Census News LLC will host a panel discussion titled "Meet The Chinese Embassy IP Attache". The speakers will be Fuli Chen (Intellectual Property Rights Attache for the Chinese Embassy to the US), Steven Adkins (Orrick), Drew Clark, and others. 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.

8:30 AM. Day two of a two day partially closed meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Emerging Technology and Research Advisory Committee. See, notice in the Federal Register, November 26, 2010, Vol. 75, No. 227, at Pages 72792-72793. Location: Room 3884, DOC, Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.

TIME CHANGE. 10:00 AM - 1:00 PM. The Federal Communications Commission (FCC) will host an event titled "Generation Mobile Forum". The speakers will include FCC Chairman Julius Genachowski. The topics to be discussed include cyber bullying. See, notice. Location: McKinley Technology High School, Auditorium, 151 T St., NE.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Mass Media Committee will host a brown bag lunch titled "Views from the Fourth Estate". The speakers will be Amy Schatz (Wall Street Journal), Cecilia Kang (Washington Post), Kim Hart (Politico), and Dennis Wharton (NAB). The FCBA bars reporters from some of its events. Location: Wiley Rein, 1776 K St., NW.

2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics will host a presentation by Wallace Mullin (George Washington University Department of Economics). He will present a paper [PDF] titled "Diversity, Social Goods Provision, and Performance in the Firm". For more information, contact Loren Smith at lsmith2 at ftc dot gov or Tammy John at tjohn at ftc dot gov. Location: Room 8089, 1800 M St., NW.

5:00 PM. Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking (NPRM) regarding practice before the Board of Patent Appeals and Interferences (BPAI) in ex parte patent appeals. See, notice in the Federal Register, November 15, 2010, Vol. 75, No. 219, at Pages 69827-69849.

6:00 - 9:15 PM. The DC Bar Association will host an event titled "Intellectual Property Law 2010: Year in Review Series:Copyright and Trademark Update". The speakers will be Brian Banner (H&A Intellectual Property Law) and Terence Ross (Crowell & Moring). The price to attend ranges from $89 to $129. For more information, contact 202-626-3488. See, notice. CLE credits. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

TIME? U.S. Trade Representative Ron Kirk, Secretary of Commerce Gary Locke, and others will participate in a closed meeting of the U.S.-China Joint Commission on Commerce and Trade (JCCT). See, OUSTR calendar.

The House will meet at 10:00 AM for legislative business. The schedule includes consideration of S 30 [LOC | WW], the "Truth in Caller ID Act of 2009", and S 3386 [LOC | WW], the "Restore Online Shoppers' Confidence Act". The schedule for the week also includes HR 4853 [LOC | WW], the vehicle for extending certain expiring tax provisions. See, Rep. Hoyer's notice.

9:30 AM. The Common Cause will host a news conference regarding Senate filibuster reform. For more information, contact Mary Boyle at 202-736-5770 or mboyle at commoncause dot org. Location: National Press Club.

RESCHEDULED FOR DECEMBER 21. 10:30 AM. The Federal Communications Commission (FCC) may hold an event titled "open meeting". The agenda may include adoption of a network neutrality order. Location: FCC, Commission Meeting Room, 445 12th St., SW.

6:00 - 8:15 PM. The DC Bar Association will host an event titled "Intellectual Property Law 2010: Year in Review Series: Patent Update". The speakers will be Eric Wright (Stites & Harbison) and Bradley Wright (Banner & Witcoff). The price to attend ranges from $89 to $129. For more information, contact 202-626-3488. See, notice. CLE credits. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

Deadline to submit applications to participate in the Federal Communications Commission's (FCC) Auction 90, regarding certain VHF construction permits. See, FCC September 8, 2010, 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. See also, November 1, 2010, Public Notice (DA 10-2008 in in AU Docket No. 10-147). And see, notice in the Federal Register, December 1, 2010, Vol. 75, No. 230, at Page 74719-74731.

The House will meet at 10:00 AM for legislative business. The schedule for the week also includes HR 4853 [LOC | WW], the vehicle for extending certain expiring tax provisions. See, Rep. Hoyer's notice.

8:00 AM - 2:00 PM. The Atlantic and Government Executive will host an event titled "Cyber Security Forum". See, notice. Location: National Press Club,13th Floor, 529 14th St. NW.

9:30 AM - 5:00 PM. The Federal Communications Commission's (FCC) North American Numbering Council (NANC) will meet. See, notice in the Federal Register, November 30, 2010, Vol. 75, No. 229, at Pages 74051-74052. Location: FCC, Commission Meeting Room (Room TW-C305), 445 12th St., SW.

9:30 AM. The House Judiciary Committee (HJC) will hold a hearing titled "Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks". See, notice. The HJC will webcast this event. Location: Room 2141, Rayburn Building.

9:30 AM - 4:00 PM. The Department of Justice's (DOJ) Civil Right Division (CRD) will hold a hearing regarding its four notice of proposed rulemakings (NPRMs) that propose to expand the scope of the Americans with Disabilities Act (ADA) to regulate certain communications and information technologies. See, story titled "DOJ/CRD Releases Advance NPRMs Proposing Expansion of ADA" in TLJ Daily E-Mail Alert No. 2,111, July 26, 2010. Location: U.S. Access Board, 1331 F St., NW.

12:00 NOON - 1:30 PM. The Federal Communications Bar Association's (FCBA) will host a lunch. The speaker will be Erwin Chemerinsky. The topic will be "Approaches to First Amendment regulations with the distinctions between traditional mediums disappearing with a lot of discussion of the Fox indecency case". The price to attend ranges from $25 to $40. See, registration form. Registrations and cancellations are due by 12:00 NOON on December 14. Location: Hogan Lovells, 555 13th St., NW.

5:30 - 7:30 PM. The Federal Communications Bar Association's (FCBA) Homeland Security and Emergency Communications Committee will host an event titled "Holiday Happy Hour Mentoring Opportunity for Young Lawyers. The speakers will include James Barnett (Chief of the FCC's Public Safety and Homeland Security Bureau). For more information, contact Jeff Cohen at jeff dot cohen at mail dot house.gov or Mark Brennan at mark dot brennan at hoganlovells dot com. Location: Mandarin Hotel, Empress Lounge, 1330 Maryland Ave., SW.

TIME? U.S. Trade Representative Ron Kirk and European Commissioner for Trade Karel DeGucht will hold a closed meeting. See, OUSTR calendar.

TIME? Miriam Sapiro (Deputy USTR) will hold a closed meeting with the member companies of the Information Technology Industry Council (ITIC). See, OUSTR calendar.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [58 pages in PDF] regarding universal service subsidies and certain 3G and next generation wireless services. The FCC adopted and released this item on October 14, 2010. It is FCC 10-182 in WT Docket No. 10-208. See, notice in the Federal Register, November 1, 2010, Vol. 75, No. 210, at Pages 67060-67077. See also, story titled "FCC Adopts NPRM Regarding Universal Service Subsidies for 3G and Next Generation Wireless" in TLJ Daily E-Mail Alert No. 2,142, October 19, 2010.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding expanding the FCC's universal service program to subsidize certain 3G and next generation wireless services. The FCC calls this its "Mobility Fund". The FCC adopted and released this item on October 14, 2010. It is FCC 10-182 in WT Docket No. 10-208. See, notice in the Federal Register, November 12, 2010, Vol. 75, No. 218, Page 69374-69395. See also, story titled "FCC Adopts NPRM Regarding Universal Service Subsidies for 3G and Next Generation Wireless" in TLJ Daily E-Mail Alert No. 2,142, October 19, 2010.

The House may meet at 9:00 AM for legislative business. The schedule for the week also includes HR 4853 [LOC | WW], the vehicle for extending certain expiring tax provisions. See, Rep. Hoyer's notice.

10:00 AM. Deadline for foreign governments to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding its Special 301 out of cycle review of the Philippines and Thailand. These reviews pertain to identifying countries that deny adequate and effective protection of intellectual property rights (IPR) or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. See, notice in the Federal Register, November 12, 2010, Vol. 75, No. 218, at Pages 69519-69520.

11:00 AM. The Broadcasting Board of Governors will meet. See, notice in the Federal Register, December 13, 2010, Vol. 75, No. 238, at Page 77613. Location: Cohen Building, Room 3321, 330 Independence Ave., SW.

12:00 NOON. Deadline to submit initial comments to the Office of the U.S. Trade Representative (OUSTR) regarding its review of the operation, effectiveness, and implementation of and compliance with various telecommunications agreements, including the World Trade Organization (WTO) General Agreement on Trade in Services. See, notice in the Federal Register, November 18, 2010, Vol. 75, No. 222, at Pages 70770-70771.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding the appropriate date for the termination of analog operations in the low power television and Class A television services. The FCC adopted and released this item on September 17, 2010. This item is FCC 10-172 in MB Docket No. 03-185. See, notice in the Federal Register, October 18, 2010, Vol. 75, No. 200, at Pages 63766-63773.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding assignment of telephone numbers associated with internet based Telecommunications Relay Service (iTRS), Video Relay Service (VRS) and IP Relay. The FCC adopted this item on September 16, 2010, and released the text on September 17. It is FCC 10-161 in CG Docket No. 03-123, WC Docket No. 05-196, and WC Docket No. 10-191. See, notice in the Federal Register, November 2, 2010, Vol. 75, No. 211, at Pages 67333-67341.

EXTENDED TO JANUARY 31. Deadline to submit initial comments to the Library of Congress's (LOC) Copyright Office (CO) in response to its Notice of Inquiry (NOI) regarding federal coverage of sound recordings fixed before February 15, 1972. See, notice in the Federal Register, November 3, 2010, Vol. 75, No. 212, at Pages 67777-67781. This proceeding is LOC Docket No. 2010-4. See also, story titled "Library of Congress Issues NOI on Extending Copyright Act to Pre 1972 Sound Recordings" in TLJ Daily E-Mail Alert No. 2,150, November 8, 2010. See also, extension notice in the Federal Register, December 1, 2010, Vol. 75, No. 230, at Pages 74749-74750.

RESCHEDULED FROM DECEMBER 15. 10:30 AM. The Federal Communications Commission (FCC) may hold an event titled "open meeting". The tentative agenda [PDF] includes adoption of a network neutrality order. Location: FCC, Commission Meeting Room, 445 12th St., SW.

12:00 NOON - 2:00 PM. The DC Bar Association will host an event titled "False Patent Marking: Now What?". The speakers will be Elizabeth Winston (Catholic University law school), Robert Shaffer (Finnegan), Maureen Browne (Covington & Burling). See, 35 U.S.C. § 292, regarding false marking. See also, the December 28, 2009, opinion [16 pages in PDF] of the U.S. Court of Appeals (FedCir) in The Forest Group, Inc. v. Bon Tool Company construing Section 292. See also, HR 4954 [LOC | WW]], an untitled bill, and HR 6352 [LOC | WW], the "Patent Lawsuit Reform Act of 2010"; both would amend Section 292; the House has passed neither. And see, story titled "Representatives Introduce Bill to Amend Patent Act Regarding Remedies for False Markings" in TLJ Daily E-Mail Alert No. 2,067, March 30, 2010. The price to attend ranges from $40 to $55. For more information, contact 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

12/10. Sen. Al Franken (D-MN), who is a proponent of FCC regulation of broadband internet access service (BIAS), sent a letter [6 pages in PDF] to the Federal Communications Commission (FCC) in which he urged it not to adopt FCC Chairman Julius Genachowski's proposal. He wants a more regulatory approach, and argues that doing nothing would be better than adopting Genachowski's proposal.

Sen. Franken (at left) wrote that he is "very worried that the draft Order", which he has not seen, "does not do enough". And, "As it is currently written, the draft Order may do more harm doing nothing at all."

He praised the draft order for its "strong language on transparency" and for allowing "law enforcement to combat the theft of intellectual property". (His long letter is silent on the subject of allowing BIAS providers to combat theft of intellectual property.)

He expressed three areas of concern: wireless BIAS, paid prioritization, and the definition of BIAS.

He addressed wireless BIAS first, and at greatest length. He said that his understanding is that Genachowski's proposal would "permit the blocking of lawful content, applications, and devices on mobile Internet connections -- and would in fact fail to impose any non-discrimination protections for users of mobile Internet services."

"This is dangerous", warned Sen. Franken. "Choosing not to apply the same consumer protections for mobile Internet users as for fixed would send a loud signal to the market that this Commission endorses anticompetitive behavior by mobile ISPs, discouraging innovation and investment in the wireless ecosystem."

Second, he addressed paid prioritization. He wrote that his understanding is that instead of following the October 2009 NPRM, which he stated adheres "to a clean prohibition on paid prioritization", the Chairman's proposal "merely states that paid prioritization for fixed Internet services raises cause for concern".

"Paid prioritization is the antithesis of net neutrality. One cannot commit to the principle of a free and open Internet and simultaneously allow a company to purchase a fast lane through that Internet to beat out small businesses, start-ups and other competitors."

He argued that the FCC should, "at a bare minimum, create a rebuttable presumption that paid prioritization is prohibited -- regardless of how Americans choose to access the Internet."

Third, he argued that the definition of BIAS is "excessively narrow". He recited his understanding of the proposed definition: "consumer retail service, by wire or radio, that provides high-speed capability to transmit data to and receive data from all or substantially all Internet endoints."

He explained that he does not want FCC regulation of BIAS to be limited to residential use.

He also argued that the "substantially all" clause could mean that BIAS providers could exempt themselves from regulation by blocking access. He wrote that "you could get out of your obligations not to block websites by blocking websites".

12/13. Many companies, groups, and others have in recent days submitted numerous written items to the Federal Communications Commission (FCC), and held ex parte meetings or conversations with Commissioners and FCC staff, regarding FCC Chairman Julius Genachowski's proposed but undisclosed rules for broadband internet access service (BIAS), scheduled to be adopted at the December 21, 2010 meeting of the FCC.

Most notice of ex parte meetings filed with the FCC contain only a cursory sentence or two description of the statements made during the meeting. A few contain more details.

The Media Access Project (MAP) wrote in its December 10 notice of ex parte meeting [2 pages in PDF], that the FCC "should classify the transmission component of broadband Internet access as a telecommunications service". The proposed Title I basis "could lead to years of uncertainty".

It added that the MAP does not support the proposed rules because of their "diminished protection for mobile wireless broadband", because "incomplete protection against unreasonable discrimination could allow for paid prioritization", and because "Overly broad and loophole-laden definitions for the types of ``broadband Internet access services´´ covered or ``reasonable network management practices´´ permitted by the rules, which could provide openings for broadband providers to exempt themselves from and evade any protections

See also:

• NCTA December 10 notice of ex parte meeting [7 pages in PDF] regarding FCC legal authority to adopt the proposed rules.
• NARUC December 10 notice of ex parte meeting [4 pages in PDF], in support of the rules in the NPRM, and commenting on intercarrier compensation and traffic pumping.
• CCIA December 13 notice of ex parte meeting [2 pages in PDF].

The Wireless Internet Service Providers Association (WISPA) submitted aletter [4 pages in PDF] on December 10 in which it stated that the rules, "if adopted, could severely diminish the ability of millions of consumers to received fixed wireless broadband services."

The WISPA wrote that "It would be ill-advised to imposed on fixed wireless Internet service providers ("WISPs") the same regulation imposed on cable modem, DSL, and other fixed-wire providers." If the FCC is to adopt rules, the WISPA asks that they exempt fixed wireless broadband providers from certain requirements.

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