8/26. Rick Kaplan, Chief of the Federal Communications Commission's (FCC) Wireless Telecommunications Bureau (WTB), sent at letter to AT&T's counsel in the FCC's proceeding regarding the merger of AT&T and T-Mobile USA, stating that "we are restarting the informal clock effective today. As such, today, August 26, 2011, is Day 83 under the time clock".

Kaplan elaborated that "By letter dated July 20, 2011", the WTB "advised you that it was stopping the Commission's informal 180-day clock in view of AT&T's announcement that it had developed and would be submitting new models to bolster its arguments concerning the size of the efficiencies made possible by the merger as weighed against the potential anti-competitive effects."

Since then, "AT&T has submitted the models and subsequently updated one of them". Kaplan stated that "We have now received AT&T's answers to our specific questions as well as AT&T's confirmation that it believes our record is complete with respect to the models. Our understanding is that, unless specifically prompted by a request from the Commission or the Department of Justice, AT&T will not be submitting any further revisions to the models".

Gigi Sohn, head of the Public Knowledge (PK), stated in a release that "We are glad the Commission has decided that AT&T has had more than enough chances to make its case, and is restarting the clock on the merits. Now that AT&T has conceded that it has played its last card, it is time for the FCC and the DoJ to bring this proceeding to a close by rejecting the merger."

8/28. Federal Communications Commission (FCC) Chairman Julius Genachowski released a statement regarding Hurricane Irene.

He wrote that "current reports indicate no 9-1-1 center is without service, and we have received no reports of public safety communications outages. Overall, broadcast and radio are largely unaffected, though in North Carolina a significant number of cable customers are out of service."

He also used this opportunity to advocate several of his policy goals, "including getting an interoperable mobile broadband public safety network funded and built".

Sen. John Rockefeller (D-WV) and Sen. Kay Hutchison (R-TX) sent a letter to Genachowski on August 26 in which they wrote that "Because first responders still do not have a nationwide wireless broadband network of their own, they must rely on these same commercial networks if they hope to access any mobile data services, such as text messaging and emails. Despite being six years from the devastation caused by Hurricane Katrina and ten years from the tragic events of 9/11, we still do not have an interoperable wireless broadband network for public safety.  We must not allow any more potentially life-threatening disasters to occur before our nation's first responders get the interoperable public safety communications system they need to keep us safe."

Genachowski also advocated "launching PLAN nationwide, a new mobile alerting system which would provide a ``fast-track´´ for emergency alerts around network congestion; and accelerating the move to Next Gen 911 so that people can send text, video or photos to 9-1-1 in times of emergency."

Gordon Smith, head of the National Association of Broadbasters (NAB), stated in a release on August 29 that broadcasters "did a remarkable job this weekend keeping citizens informed during Hurricane Irene. While cellphone, electricity and cable system outages were occurring up and down the East Coast, broadcasters were a trusted resource that millions of Americans relied upon for accurate information. Our stations used a combination of 'boots on the ground' reporting and social media to keep citizens informed, proving our contention that broadcasting and broadband are complimentary services. As we work with policymakers on a broadband policy that best serves local communities across the U.S., NAB will continue to make the case that no technology can replace broadcasting's 'one-to-everyone' lifeline role in an emergency."

Verizon Wireless announced in a release on August 28 that "As power outages and recovery efforts continue along the coast in the aftermath of devastating storms Saturday, Verizon Wireless has charging stations at all retail stores in North Carolina ... Residents without working cell phones can make calls free of charge from the company’s pool of working handsets. Additionally, battery charging stations will be set up to allow customers to charge their cell phones and smartphones."

8/15. The U.S. Court of Appeals (2ndCir) issued its divided opinion [28 pages in PDF] in John Wiley & Sons v. Kirtsaeng, holding that the first sale doctrine does not apply to works manufactured outside of the United States.

This ruling facilitates business models for copyright based industries that include variation in product features and product prices for the US and non-US markets.

The first sale doctrine, which is codified in the Copyright Act, permits the owner of a lawfully purchased copyrighted work to resell it without limitations imposed by the copyright holder. However, another section of the Copyright Act restricts importation into the U.S. of copies without the authority of the owner of copyright under the Copyright Act.

John Wiley & Sons, the plaintiff, publishes academic, scientific, and educational journals and books, including textbooks, for sale in domestic and international markets. It makes outside of the US those copies for sale outside of the US. It makes in the US those copies for sale inside the US.

Wiley's books for non-US sale include statements such as "Authorized for sale in Europe, Asia, Africa and the Middle East Only" and "This book ... may not be exported."

Supap Kirstsaeng, the defendant, imported into the US Wiley books published outside the US, and sold them on websites such as eBay. His revenues totaled about about one million dollars.

Wiley filed a complaint in the U.S. District Court (SDNY) against Kirtsaeng, alleging copyright infringement, trademark infringement, and violation of the state of New York's unfair competition statute. Later, Wiley dropped all but the copyright claim.

The District Court ruled that the first sale doctrine is not an available defense in the circumstances, and did not give the jury a first sale doctrine instruction.

Kirtsaeng appealed the first sale doctrine ruling. Wiley also appealed on the issue of damages. This article only addresses the first sale doctrine issue.

Statute. 17 U.S.C. § 106 lists the exclusive rights of copyright. Subsection 106(3) is the exclusive right "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". However, the Copyright Act then provides numerous exceptions to the exclusive rights of copyright.

The first sale doctrine, which is codified at 17 U.S.C. § 109, provides, in part, that "Notwithstanding the provisions of section 106(3), 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." (Emphasis added.)

However, 17 U.S.C. § 602(a)(1) 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."

Court of Appeals. The Court of Appeals wrote that "There is at least some tension between § 602(a)(1), which seemingly seeks to give copyright holders broad control over the circumstances in which their copyrighted material may be imported (directly or indirectly) into the United States, and § 109(a), which limits the extent to which the copyright holder may limit distribution following an initial sale." (Parentheses in original.)

However, it held, based upon its interpretation of the two sections, and dicta in the Supreme Court's 1998 opinion in Quality King Distributors v. L'anza Research International, 523 U.S. 135, that the first sale doctrine does not apply to works manufactured outside of the US.

In Quality King, the defendant purchased copies that had been made in the US by the plaintiff, and sold outside the US by one of the plaintiff's foreign distributors. The defendant purchased and reimported these copies back into the US and resold them. This was profitable for the defendant because the plaintiff sold copies to foreign distributors at lower prices than it charged domestic distributors.

The Supreme Court held that Section 109 imposes a limit on Section 602, and that the defendant's resale of copies in the US is allowed under the first sale doctrine. However, in that case, unlike the present case, the copies were made in the US.

The Supreme Court wrote that "Even in the absence of a market allocation agreement between, for example, a publisher of the United States edition and a publisher of the British edition of the same work, each such publisher could make lawful copies. If the author of the work gave the exclusive United States distribution rights enforceable under the Act-to the publisher of the United States edition and the exclusive British distribution rights to the publisher of the British edition, however, presumably only those made by the publisher of the United States edition would be ‘lawfully made under this title’ within the meaning of § 109(a). The first sale doctrine would not provide the publisher of the British edition who decided to sell in the American market with a defense to an action under § 602(a)".

Also, Justice Ginsburg wrote in her concurring opinion that "This case involves a 'round trip' journey, travel of the copies in question from the United States to places abroad, then back again. I join the Court's opinion recognizing that we do not today resolve cases in which the allegedly infringing imports were manufactured abroad."

In the present case, the Court also interpreted the meaning of the two sections at issue. "Section 602(a)(1) prohibits the importation into the United States of copyrighted works acquired abroad without the authorization of the copyright holder. This provision is obviously intended to allow copyright holders some flexibility to divide or treat differently the international and domestic markets for the particular copyrighted item. If the first sale doctrine codified in § 109(a) only applies to copyrighted copies manufactured domestically, copyright holders would still have a free hand -- subject, of course, to other relevant exceptions enumerated in Title 17, such as those in §§ 107, 108, and 602(a)(3) -- to control the circumstances in which copies manufactured abroad could be legally imported into the United States."

The Court wrote the the meaning of the phrase "lawfully made under this title" is key. If it were to mean "lawfully made in the US", then Wiley would prevail. The Court noted that the Copyright Act primarily applies only territorially. On the other hand, if it were to mean "any work subject to protection under the Copyright Act", then Kirtsaeng would prevail.

In the end, the Court concluded that "the phrase ``lawfully made under this Title´´ in § 109(a) refers specifically and exclusively to works that are made in territories in which the Copyright Act is law, and not to foreign-manufactured works."

The Court added that "We freely acknowledge that this is a particularly difficult question of statutory construction in light of the ambiguous language of § 109(a), but our holding is supported by the structure of Title 17 as well as the Supreme Court’s opinion in Quality King. If we have misunderstood Congressional purpose in enacting the first sale doctrine, or if our decision leads to policy consequences that were not foreseen by Congress or which Congress now finds unpalatable, Congress is of course able to correct our judgment."

Dissent. Judge Murtha wrote that "I conclude the first sale defense should apply to a copy of a work that enjoys United States copyright protection wherever manufactured."

He reasoned that the phrase "lawfully made under this title" "does not refer to a place of manufacture: It focuses on whether a particular copy was manufactured lawfully under title 17 of the United States Code." And, "regardless of place of manufacture, a copy authorized by the U.S. rightsholder is lawful under U.S. copyright law. Here, Wiley, the U.S. copyright holder, authorized its subsidiary to manufacture the copies abroad, which were purchased and then imported into the United States."

He added that the language of the statute demonstrates that the Congress never intended the phrase "lawfully made under this title" to mean "lawfully manufactured in the US".

He also wrote that "Economic justifications also support applicability of the first sale doctrine to foreign made copies. Granting a copyright holder unlimited power to control all commercial activities involving copies of her work would create high transaction costs and lead to uncertainty in the secondary market. An owner first would have to determine the origin of the copy -- either domestic or foreign -- before she could sell it. If it were foreign made and the first sale doctrine does not apply to such copies, she would need to receive permission from the copyright holder."

"Such a result would provide greater copyright protection to copies manufactured abroad than those manufactured domestically: Once a domestic copy has been sold, no matter where the sale occurred, the copyright holder's right to control its distribution is exhausted. I do not believe Congress intended to provide an incentive for U.S. copyright holders to manufacture copies of their work abroad."

Likelihood of Supreme Court Review. This may be a case in which the Supreme Court would grant certiorari. It heard a similar case 2010, and divided 4 to 4. Omega v. Costco was also a case involving the interplay of Section 109 and 602.

However, the Supreme Court merely issued a one page order stating that the "The judgment is affirmed by an equally divided Court." Justice Kagan had recused herself. See also, story titled "Supreme Court Affirms in Costco v. Omega on 4-4 Vote" in TLJ Daily E-Mail Alert No. 2,178, December 14, 2010.

That order affirmed the September 3, 2008, opinion [17 pages in PDF] of the U.S. Court of Appeals (9thCir), 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 present case is John Wiley & Sons, Inc. v. Supap Kirtsaeng, U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 09-4896-cv, an appeal from the U.S. District Court for the Southern District of News York, Judge Donald Pogue (U.S. Court of International Trade, sitting by designation) presiding. Judge Jose Cabranes wrote the opinion of the Court of Appeals, in which Judge Katzmann joined. Judge Garvan Murtha (USDC/DVermont, sitting by designation) wrote a dissent.

The House will not meet.  It is in recess until 2:00 PM on September 7. However, it will hold pro forma sessions twice per week until then.

The Senate will not meet. It is in recess until 2:00 PM on September 6. However, it will hold pro forma sessions twice per week until then.

Deadline to submit comments to the Department of Transportation's (DOT) Research and Innovative Technology Administration (RITA) in response to the notice in the Federal Register requesting comments regarding Intelligent Transportation Systems (ITS) learning, including "connected vehicle technology that will feature a connected transportation environment among vehicles, the infrastructure, and passengers' portable devices". See, Federal Register, Vol. 76, No. 145, Thursday, July 28, 2011, at Pages 45334-45335.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Third Notice of Proposed Rule Making (3rdNPRM) [32 pages in PDF] regarding the impact of the enactment of the Local Community Radio Act of 2010 (LCRA) on "the procedures previously adopted to process the approximately 6,500 applications which remain pending from the 2003 FM translator window". The FCC adopted and released this item on July 12, 2011. It is FCC 11-105 in MM Docket No. 99-25 and MB Docket No. 07-172. See, notice in the Federal Register, Vol. 76, No. 146, Friday, July 29, 2011, at Pages 45491-45499, and story titled "FCC Adopts LPFM NPRM" in TLJ Daily E-Mail Alert No. 2,258, July 14, 2011.

The House will meet in pro forma session at 10:00 AM.

The Senate will meet in pro forma session at 10:00 AM.

2:00 - 2:15 PM. The American Bar Association (ABA) will host a Training Tuesday webcast event titled "From Signature to E-Signature". See, notice. Free.

3:00 PM. Extended deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding the governance structure for its National Strategy for Trusted Identities in Cyberspace (NSTIC). See, notice in the Federal Register, Vol. 76, No. 158, Tuesday, August 16, 2011, at Page 50719.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [27 pages in PDF] regarding rights of way policies and wireless facilities siting requirements. The FCC adopted and released this item on April 7, 2011. It is FCC 11-51 in WC Docket No. 11-59. See, notice in the Federal Register, Vol. 76, No. 95, Tuesday, May 17, 2011, at Pages 28397-28403.

Extended deadline for Bloomberg to file with the Federal Communications Commission (FCC) its reply to Comcast's answer to its complaint regarding channel placement. See, story titled "Sen. Franken Writes FCC Regarding Bloomberg's Complaint Against Comcast" in TLJ Daily E-Mail Alert No. 2,280, August 5, 2011.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-67 Rev. 1 [35 pages in PDF] titled "Recommendation for the Triple Data Encryption Algorithm (TDEA) Block Cipher".

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice regarding certain universal service and intercarrier compensation reform issues. The FCC released this item on August 3, 2011. It is DA 11-1348 in WC Docket Nos. 10-90, 07-135, 05-337, and 03-109, CC Docket Nos. 01-92 and 96-45, and GN Docket No. 09-51. See, notice in the Federal Register, Vol. 76, No. 154, Wednesday, August 10, 2011, at Pages 49401-49408.

10:00 AM - 2:30 PM. The American Constitution Society for Law and Policy will host an event titled "Legal Policy Shifts Since 9/11". At 10:00 - 11:30 AM there will be a panel titled "Surveillance". The speakers will be Kenneth Wainstein (O’Melveny & Myers, and former head of the DOJ's National Security Division), Jeffrey Rosen (George Washington University law school), Michael German (ACLU), Deepa Iyer (South Asian Americans Leading Together), Gregory Nojeim (Center for Democracy and Technology), and Suzanne Spaulding (Bingham Consulting Group). William Lietzau (Deputy Assistant Secretary of Defense for Rule of Law and Detainee Policy) will be the lunch speaker. At 1:00 - 2:30 PM there will be a second panel. The speakers will be Charlie Savage (New York Times), David Cole (Georgetown University Law Center), Richard Klingler (Sidley Austin), Wendy Patten (Open Society Foundations), Deborah Pearlstein (Princeton University), Geoffrey Stone (University of Chicago Law School). Location: National Press Club, 13th floor, 529 14th St., NW.

12:00 NOON - 1:00 PM. Shannon Rossmiller, an independent online terrorism investigator, will give a speech. See, notice. Location: Heritage Foundation, 214 Massachusetts Ave., NE.

Deadline to submit Form 477 to the Federal Communications Commission (FCC).

The House will meet in pro forma session at 10:00 AM.

The Senate will meet in pro forma session at 10:00 AM.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [36 pages in PDF] regarding removing the International Settlements Policy (ISP) from all U.S. international routes except Cuba. The FCC adopted this NPRM on May 12, 2011, and released the text on May 13, 2011. This item is FCC 11-75 in IB Docket No. 11-80. See, notice in the Federal Register, Vol. 76, No. 138, Tuesday, July 19, 2011, at Pages 42625-42631.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [82 pages in PDF] regarding reporting requirements for providers of international telecommunications services. The FCC adopted this NPRM on May 12, 2011, and released the text on May 13, 2011. This item is FCC 11-76 in IB Docket No. 04-112. See, notice in the Federal Register, Vol. 76, No. 138, Tuesday, July 19, 2011, at Pages 42613-42625.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) seeking further comments in response to its Notice of Proposed Rulemaking (NPRM) regarding its Lifeline and Link Up Universal Service programs. The FCC released this PN on August 5, 2011. It is DA 11-1346 in WC Docket Nos. 03-109 and 11-42, and CC Docket No. 96-45. The FCC adopted this NPRM on March 3, 2011, and released it on March 4. It is FCC 11-32. See also, notice in the Federal Register, Vol. 76, No. 159, Wednesday, August 17, 2011, at Pages 50969-50971.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-53 Appendix J [24 pages in PDF] titled "Privacy Control Catalog".

Labor Day. This is a federal holiday. See, OPM list of 2011 federal holidays.

8/29. Yoshihiko Noda was selected leader of the Democratic Party of Japan, and Prime Minister of Japan.

8/29. President Obama announced his intent to nominate Alan Krueger as a member of the Council of Economic Advisers (CEA), and to designate him as CEA Chairman. He is a labor economist and professor at Princeton University. See, White House news office release.

8/25. The American Association of Law Libraries, ACLU, Constitution Project, Electronic Frontier Foundation (EFF), Electronic Privacy Information Center (EPIC), and other groups sent a letter to President Obama urging him to make appointments to the Privacy and Civil Liberties Oversight Board (PCLOB). They wrote that "without nominated and confirmed members to serve on this board, the PCLOB does not currently exist". President Obama nominated two person -- James Dempsey and Elisebeth Cook -- in December of 2010. However, the Senate has not yet confirmed them. Moreover, the PCLOB is a five member body. See also, story titled "Obama to Nominate Dempsey and Cook to Privacy and Civil Liberties Oversight Board" in TLJ Daily E-Mail Alert No. 2,181, December 17, 2010.

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