8/31. The Federal Aviation Administration (FAA) announced in a release on August 27, 2012, that it will study the use of personal electronic devices (PEDs) on commercial aircraft.

The FAA stated that it "is forming a government-industry group to study the current PED policies and procedures aircraft operators use to determine when these devices can be used safely during flight. Current FAA regulations require an aircraft operator to determine that radio frequency interference from PEDs are not a flight safety risk before the operator authorizes them for use during certain phases of flight."

Also, on August 31, the FAA published a notice in the Federal Register (FR) that requests public comments. The deadline to submit comments is October 30, 2012.

This notice states that "We are reviewing the policies, guidance, and procedures that establish the methods and criteria aircraft operators use to determine if they can allow PED usage during flight. The FAA has long recognized that PEDs have the potential for causing interference with aircraft navigation or communication systems."

It continues that "Smart phones, personal computers, and wireless technology have become ingrained in peoples' day-to-day lives. Passengers not only use these devices to remain connected to their work, family, and friends, but also to read books, play games, and accomplish many of their day-to-day tasks. This has naturally led to the passengers' desire to use PEDs from the time they board an aircraft until they exit the aircraft at their destination. In some cases, a transmitting radio is embedded in a PED so that the operation of the transmitter is not apparent to the user. Many of these devices incorporate transmitters such as Bluetooth, Wi-Fi, and cellular phone modems, which may operate without specific actions from the passenger."

It also states that "Under FAA regulation, the aircraft operator is responsible for determining which PEDs may be used by the passengers and during which phase of flight this utilization may occur. The aircraft operator is best suited to make the determination of which PEDs would not cause interference with the navigation or communication system on its aircraft. The operators' PED policy determines what types of devices may be used on board their aircraft and during which phase(s) of flight. The responsibility for enforcing an aircraft operator's PED policy typically falls on the cabin crew. On occasion, enforcement of a commercial airline's PED policy results in a conflict between a flight attendant and a passenger. Noncompliance with crewmember safety instructions on the use of PEDs has resulted in passengers being removed from an aircraft and, in some cases, has caused in-flight diversions."

Doug Johnson of the Consumer Electronics Association (CEA) stated in a release that "We applaud the FAA's announcement regarding the formation of a government-industry group to study the current policies and procedures aircraft operators use to determine when portable electronic devices (PEDs) can be used safely during flight.  E-readers, smartphones and tablets, for example, are commonplace devices for entertainment and business needs during air travel."

See, FR, Vol. 77, No. 170, August 31, 2012, at Pages 53159-53163.

8/29. The IEEE, Internet Architecture Board (IAB), Internet Engineering Task Force (IETF), Internet Society, and World Wide Web Consortium (W3C) released a statement in opposition to proposals that the International Telecommunications Union (ITU) institute an internet regulation regime at the World Conference on International Telecommunications (WCIT) in December in Dubai.

These five internet technical standardization bodies wrote, in full, as follows:

Over the past several decades, the global economy has realized a huge bounty due to the Internet and the World Wide Web. These could not have been possible without the innovations and standardization of many underlying technologies. This standardization occurred with great speed and effectiveness only because of key characteristics of a modern global standards paradigm. The affirmation below characterizes the principles that have led to this success as a means to ensure acceptance of standards activities that adhere to the principles.

We embrace a modern paradigm for standards where the economics of global markets, fueled by technological advancements, drive global deployment of standards regardless of their formal status.

In this paradigm standards support interoperability, foster global competition, are developed through an open participatory process, and are voluntarily adopted globally. These voluntary standards serve as building blocks for products and services targeted at meeting the needs of the market and consumer, thereby driving innovation. Innovation in turn contributes to the creation of new markets and the growth and expansion of existing markets.

The five groups also published a web site titled "OpenStand".

The Center for Democracy and Technology (CDT) praised this statement. See, release and release.

8/29. The Department of Justice (DOJ) filed a voluntary dismissal with the U.S. District Court (SDNY) of its in rem complaint regarding two domain names owned and used by Puerto 80 Projects, S.L.U.

This will allow the return of seized domain names.

On February 1, 2011, Immigration and Customs Enforcement (ICE) agents enforced a warrant signed by a federal Magistrate Judge authorizing the seizure of rojadirecta.com and rojadirecta.org, based upon the Court's finding of probable cause to believe that the domain names were subject to forfeiture because they had been used to commit criminal violations of copyright law.

Puerto 80 contested the seizures. Also, several US based interest groups made this seizure a cause celebre in their opposition to U.S. government policies regarding seizure of domain names to enforce intellectual property rights.

The Electronic Frontier Foundation (EFF), Public Knowledge (PK) and Center for Democracy and Technology (CDT), filed an amicus curiae brief with the District Court in this case.

See also, August 4, 2011, order of the District Court denying Puerto 80's petition for the return of the seized domain names. And see, amicus curiae brief filed with the U.S. Court of Appeals (2ndCir) by the EFF, PK and CDT.

Sherwin Siy of the PK stated in a release on August 29 that "this case shows that the procedures for seizing domain names are flawed. It is far too easy for the government to seize domain names and hold them for an extended period even when it is unable to make a sustainable case of infringement."

He added that "The constant expansion of copyright enforcement laws has given us a system where website owners are effectively treated as guilty until proven innocent. These sorts of abuses are likely to continue until there are adequate safeguards to assure accountability."

David Sohn of the CDT stated in a release that "the seizure of Rojadirecta's domain names was an unconstitutional prior restraint on speech. Giving back the domain names now can't change the fact that significant impairment to speech rights has already occurred. Even worse, the Government's decision to walk away from the case means that there won't be any appellate ruling on the important legal issues at stake. So if law enforcement engages in a similar seizure tomorrow -- perhaps against an entity that lacks the resources to contest the seizure in court -- there's nothing to stop this saga from repeating itself all over again."

8/27. The U.S. Court of Appeals (2ndCir) issued its opinion [38 pages in PDF] in WPIX v. ivi, holding that a business that streams copyrighted broadcast TV programming over the internet without consent is not a "cable system" within the meaning of 17 U.S.C. § 111 that is entitled to a compulsory license.

This is a victory for TV broadcasters. Also, since this case concerns an injunction, the Court applied the four part test for the award of equitable relief, which includes a weighing of the public interest. The Court found that consumers benefit from this holding, because "the public has a compelling interest in protecting copyright owners' marketable rights to their work and the economic incentive to continue creating television programming".

The National Association of Broadcasters' (NAB) Dennis Wharton stated in a release that "This confirms that Congress never intended to allow Internet providers to retransmit broadcast programming without the consent of copyright owners."

The numerous plaintiffs below, and appellants before the Court of Appeals, are producers and owners of copyrighted television programming. Defendant ivi, Inc. streamed plaintiffs' programming over the internet, live, to its paying subscribers, without plaintiffs' consent. Defendant Todd Weaver is CEO of ivi.

Defendants argued that ivi is a "cable system" entitled to a compulsory license under 17 U.S.C. § 111. The District Court held that ivi is not cable system, and granted plaintiffs an injunction.

This appeal followed. The Court of Appeals affirmed.

It wrote that "the principal issue presented is whether ivi, a service that streams copyrighted television programming live and over the Internet, constitutes a cable system under § 111 of the Copyright Act. If so, ivi has a statutory defense to plaintiffs' claims of copyright infringement, and ivi is entitled to a compulsory license to continue retransmitting plaintiffs' programming."

Section 111 provides, in part, that "secondary transmissions to the public by a cable system of a performance or display of a work embodied in a primary transmission made by a broadcast station licensed" by the Federal Communications Commission (FCC) "shall be subject to statutory licensing upon compliance with the requirements of subsection (d) where the carriage of the signals comprising the secondary transmission is permissible under the rules, regulations, or authorizations" of the FCC.

Section 111 also defines "cable system" as "a facility, located in" the US, "that in whole or in part receives signals transmitted or programs broadcast by one or more television broadcast stations licensed" by the FCC, "and makes secondary transmissions of such signals or programs by wires, cables, microwave, or other communications channels to subscribing members of the public who pay for such service."

The statute is silent as to whether internet streamers can qualify as a cable service.

The Court wrote that the Copyright Office (CO), "the federal agency charged with overseeing § 111 -- has spoken on the issue of whether § 111's compulsory licenses extend to Internet retransmissions." The CO has determined that internet steaming is not a cable service.

The Court held that the CO's determination is entitled to Chevron deference.

The Court held as follows:

"(1) the statutory text is ambiguous as to whether ivi, a service that retransmits television programming over the Internet, is entitled to a compulsory license under § 111;

(2) the statute's legislative history, development, and purpose indicate that Congress did not intend for § 111 licenses to extend to Internet retransmissions;

(3) the Copyright Office's interpretation of § 111 -- that Internet retransmission services do not constitute cable systems under § 111 -- aligns with Congress's intent and is reasonable; and

(4) accordingly, the district court did not abuse its discretion in finding that plaintiffs were likely to succeed on the merits of the case."

The Court also discussed the purpose and public interest of copyright protection, as applied to this case.

It wrote that "Copyright law inherently balances the two competing public interests presented in this case: the rights of users and the public interest in the broad accessibility of creative works, and the rights of copyright owners and the public interest in rewarding and incentivizing creative efforts".

"Here, streaming television programming live and over the Internet would allow the public -- or some portions of the public -- to more conveniently access television programming."

"On the other hand, the public has a compelling interest in protecting copyright owners' marketable rights to their work and the economic incentive to continue creating television programming. ... Inadequate protections for copyright owners can threaten the very store of knowledge to be accessed; encouraging the production of creative work thus ultimately serves the public's interest in promoting the accessibility of such works."

The Court continued that "Plaintiffs' desire to create original television programming surely would be dampened if their creative works could be copied and streamed over the Internet in derogation of their exclusive property rights."

Moreover, "the public will still be able to access plaintiffs' programs through means other than ivi's Internet service, including cable television."

This case is WPIX, Inc., et al. v. ivi, Inc. and Todd Weaver, U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 11-788-cv, an appeal from the U.S. District Court for the Southern District of New York. Judge Buchwald granted the District Court injunction.

Judge Denny Chin wrote the opinion of the Court of Appeals, in which Judges Winter and Droney joined.

While most federal judges go for long stretches without trying a copyright case, or ruling on a complex copyright motion, Judge Chin has considerable experience with copyright law.

As a District Court Judge, he wrote the 2007 opinion of the District Court in Cartoon Network v. CSC Holdings, which is also known as the Cable News Network case and the DVR case. Although, the Court of Appeals reversed in its 2008 opinion [PDF].

He is also the Judge who rejected the proposed class action settlement in Google Books copyright infringment litigation. See, opinion [48 pages in PDF] in Authors Guild v. Google, and story titled "District Court Rejects Google Books Class Action Settlement" in TLJ Daily E-Mail Alert No. 2,206, March 22, 2011.

See also, story titled "Obama Nominates Judge Chin to 2nd Circuit" in TLJ Daily E-Mail Alert No. 1,998, October 7, 2009.

9/3. James Waterworth joined the Computer and Communications Industry Association (CCIA) as head of its Brussels, Belgium office. See, CCIA release. He has previously worked for Nokia, Cable and Wireless, and Telefonica.

8/28. Mike Zerdu announced his departure from interactive gaming company Zynga. See, release.

8/27. Kathy Savitt joined Yahoo as Chief Marketing Officer. See, Yahoo release.

Labor Day. This is a federal holiday. See, OPM list of 2012 federal holidays.

Day one of three of the Democratic National Convention.

12:00 NOON. Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding Canada's participation in the negotiation of a Trans Pacific Partnership (TPP) trade agreement. September 4 is also the deadline to submit requests to present oral testimony at the OUSTR's hearing on September 24, 2012 See, notice in the Federal Register Vol. 77, No. 141, July 23, 2012, at Pages 43131-43133.

12:00 NOON. Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding Mexico's participation in the negotiation of a Trans Pacific Partnership (TPP) trade agreement. September 4 is also the deadline to submit requests to present oral testimony at the OUSTR's hearing on September 21, 2012 See, notice in the Federal Register Vol. 77, No. 141, July 23, 2012, at Pages 43131-43133.

Deadline to submit comments to the Copyright Royalty Board (CRB) in response to its notice in the Federal Register (FR) that requests comments regarding (1) a motion of Phase I claimants for partial distribution in connection with the 2010 satellite royalty funds, and (2) the existence of Phase I and Phase II controversies with respect to the distribution of 2010 satellite royalty funds. See, FR, Vol. 77, No. 150, Friday, August 3, 2012, at Page 46526.

Deadline to submit comments to the Copyright Royalty Board (CRB) in response to its notice in the Federal Register (FR) that requests comments regarding (1) a motion of Phase I claimants for partial distribution in connection with the 2010 cable royalty funds, and (2) the existence of Phase I and Phase II controversies with respect to the distribution of 2010 cable royalty funds. The deadline to submit comments in September 4, 2012.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the National Cable & Telecommunications Association's (NCTA) Petition for Partial Reconsideration [7 pages in PDF] of the FCC's Report and Order implementing the Commercial Advertisement Loudness Mitigation Act, or CALM Act, which is codified at 47 U.S.C. § 621. The FCC adopted and released this R&O on December 13, 2011. It is FCC 11-182 in MB Docket No. 11-93. The NCTA argues, among other things, that the FCC confused promotion of television programming for commercial advertisements. See, notice in the Federal Register, Vol. 77, No. 161, Monday, August 20, 2012, at Page 50071. See also, story titled "NCTA Petitions FCC for Reconsideration of CALM Act Rules" in TLJ Daily E-Mail Alert No. 2,432, August 20, 2012.

Day two of three of the Democratic National Convention.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Raylon v. Complus Data Innovations, App. Ct. No. 2011-1355. This is an appeal from the U.S. District Court (EDTex) in patent infringement cases. The issues are denials of FRCP Rule 11 motions for sanctions, and denials of motions for attorneys fees under 35 U.S.C.§ 285. HR 6245 [LOC | WW | TLJ], the "Saving High-tech Innovators from EgregiousPresident's Export Council Subcommittee on Export Administration (PECSEA) w Court to Award Costs and Attorneys Fees to Prevailing Parties in IT Patent Cases" in TLJ Daily E-Mail Alert No. 2,420, August 4, 2012. Panel D. Location: Courtroom 201.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Alcohol Monitoring System v. Actsoft, App. Ct. No. 2012-1066. This is another appeal from the U.S. District Court (DColo) in the patent infringement case involving technology used in the Lindsay Lohan SCRAM ankle bracelet. Panel D. Location: Courtroom 201.

12:00 NOON. The World Wide Web Consortium's (W3C) Tracking Protection Working Group will meet by teleconference. The call in number is 1-617-761-6200. The passcode is TRACK (87225).

12:15 - 1:45 PM. The New America Foundation (NAF) will host a panel discussion titled "Upgrading America: Better, Faster, Cheaper Broadband and Energy". The speakers will be Reed Hundt, Harold Furchtgott-Roth (Hudson Institute), Blair Levin, Mark Cooper (Consumer Federation of America), and Michael Calabrese (NAF). See, notice. Location: NAF, Suite 400, 1899 L St., NW.

12:15 - 1:30 PM. The Federal Communications Commission's (FCC) Bobby Baker (Media Bureau) and Hope Cooper (Media Bureau) will discuss the FCC's political advertising rules. This is a free brown bag lunch. The Federal Communications Bar Association (FCBA) states that this is an event hosted by its Mass Media Committee. Location: National Association of Broadcasters, 1771 N St., NW.

Day three of three of the Democratic National Convention.

10:00 AM. The President's Export Council's (PEC) Subcommittee on Export Administration will hold a partially closed meeting. See, notice in the Federal Register, Vol. 77, No. 162, August 21, 2012, at Page 50463. Location: Department of Commerce, Hoover Building, Room 4830, 14th Street between Pennsylvania and Constitution Avenues, NW.

10:00 AM - 3:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (NCOHIT) HIT Policy Committee will meet. See, notice in the Federal Register, Vol. 77, No. 163, August 22, 2012, at Page 50690-50691. Location: Washington Marriott, 1221 22nd St., NW.

1:00 - 2:00 PM. The law firm of Fulbright & Jaworski (FJ) will host a webcast panel discussion titled "FTC Speaks Through Spokeo: When Privacy Meets FCRA: Web and Social Media Data Collection in the Crosshairs". See, June 7, 2012, Complaint, Stipulation, and Consent Decree in USA v. Spokeo, U.S. District Court (CDCal), D.C. No. 2:12-cv-05001-MMM-SH. The speakers will be Jamie Hine (FTC Division of Privacy & Identity Protection), Shauna Clark (FJ), Erika Lee (FJ), Sue Ross (FJ), and Pamela Harbour (FJ). See, registration page.

1:00 - 2:00 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "Privacy and Information Security Update". The speakers will be Benita Kahn (Vorys Sater Seymour & Pease), Kelly DeMarchis (Venable), and Julia Kernochan Tama (Venable). No CLE credits. See, notice.

1:30 - 4:30 PM. The U.S. Patent and Trademark Office (USPTO) will hold a public roundtable regarding its notice of proposed rulemaking and a notice of proposed examination guidelines to implement the first inventor to file provisions of the Leahy Smith America Invents Act. See, notice of proposed rules in the Federal Register (FR) Vol. 77, No. 144, July 26, 2012, at Pages 43742-43759; notice of proposed examination guidelines in the FR, Vol. 77, No. 144, July 26, 2012, at Pages 43759-43773; and, notice of public roundtable in the FR, Vol. 77, No. 159, August 16, 2012, at Pages 49427-49428. See also, story titled "USPTO Announces First Inventor to File NPRM and Roundtable" in TLJ Daily E-Mail Alert No. 2,430, August 16, 2012. Location: USPTO, Madison Auditorium, Madison Building, 600 Dulany Street, Alexandria, VA.

Deadline to submit comments to the Copyright Royalty Board regarding the Alliance of Artists and Recording Companies' (AARC) motion for partial distribution in connection with 2011 DART Sound Recordings Fund royalties. See, notice in the Federal Register, Vol. 77, No. 152, August 7, 2012, at Pages 47120-47121.

The Department of Labor's (DOL) Bureau of Labor Statistics (BLS) is scheduled to release its August 2012 unemployment data.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the Wireline Competition Bureau's WCB) Public Notice [23 pages in PDF] regarding expanding FCC subsidies for rural health care providers to include broadband. The FCC released this item on July 19, 2012. It is DA 12-1166 in WC Docket No. 02-60. See, notice in the Federal Register, Vol. 77, No. 144, Thursday, July 26, 2012, at Pages 43773-43780.

The House will return from its August recess.

The Senate will return from its August recess.

9:00 AM - 5:30 PM. The Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) will host a public workshop titled "Most Favored Nation Clauses and Antitrust Enforcement and Policy". See, event web site. See also, story titled "Antitrust Agencies to Host Workshop on MFN Clauses" in TLJ Daily E-Mail Alert No. 2,429, August 15, 2012. Location: FTC, Satellite Building and Conference Center, 601 New Jersey Ave., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry [29 pages in PDF] that requests information to assist it in preparing its next video competition report. This NOI is FCC 12-80 in MB Docket No. 12-203. See, story titled "FCC Releases Video Competition Report" in TLJ Daily E-Mail Alert No. 2,411, July 25, 2012. See also, notice in the Federal Register, Vol. 77, No. 153, August 8, 2012, at Pages 47383-47392.

Deadline to submit comments to the Federal Trade Commission (FTC) in response to its further notice of proposed rulemaking implementing the Children's Online Privacy Protection Act (COPPA). See, FTC notice [43 pages in PDF] and story titled "FTC Releases COPPA Further NPRM" in TLJ Daily E-Mail Alert No. 2,418, August 2, 2012.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rule Making (FNPRM) [67 pages in PDF] regarding Medical Body Area Network (MBAN) coordinators for the 2360-2390 MHz band. The FCC adopted and released this item on May 24, 2012. It is 12-54 in ET Docket No. 08-59. See, notice in the Federal Register, Vol. 77, No. 143, Wednesday, July 25, 2012, at Pages 43567-43570.

8/31. The Minority Media and Telecom Conference (MMTC) published a short piece titled "Facebook Should Not Be for Kids". The author is Deborah Tate (at right), a former Federal Communications Commission (FCC) Commissioner. She wrote that "A lot of people are wondering why Facebook would be contemplating adding children under 13 as users. In fact, as we all know millions of children are already participating in this social media platform even though there has been a policy against it." She added that "As more examples of personal data are made public and more kids face online issues such as cyberbullying, geo tracking and stalking, teens and their parents are becoming increasingly concerned. And they should be. There are very real consequences to sharing highly personal data on Facebook." She argued that "Facebook is not and should not be for kids".

8/30. The American Antitrust Institute (AAI) released a paper [28 pages in PDF] titled "Music Industry Consolidation: the Likely Anticompetitive Effect of the Universal/EMI Merger". The author is the AAI's Flavia Fortes. She argues that this is a four to three merger that would "negatively impact innovation incentives in an industry that is currently being shaped by nascent platform competition. There is a substantial risk that, post-merger, Universal would have the ability and incentive to leverage its extensive music catalogue to restrain entry of new digital service providers, likely leading to less innovation and fewer choices for digital music listeners". She urges the Federal Trade Commission (FTC) to block the merger.

8/29. Kobo, Inc. and the American Booksellers Association (ABA), a trade group that represents independent book sellers, announced "a new partnership". Kobo will sell e-book readers, and e-books of ABA members. Kobo stated in a release that "Booksellers will be able to offer a total experience for their customers including a full line of eReaders, eReading accessories, and ebooks from Kobo’s catalog of nearly 3 million titles. ABA members will share in the revenue on every sale. The program includes valuable training, in-store merchandising, marketing, sales, and logistics solutions to help independents be successful. ABA members will also be able to offer ebooks directly to their customers online." This service will compete with the e-book retail sales operations of Amazon, Barnes and Noble, and Apple.

8/29. Google resumed its sale of the Grooveshark app in its Android app store on August 28, and then ceased sales on August 30. Grooveshark is an online music service that enables users to upload copyrighed sound recordings, which other users can access. There is pending litigation, brought by major record companies. Grooveshark argues in part that since all music on its servers is uploaded by users, and since it complies with take down requests from rights holders, it is immune from liability for infringement under 17 U.S.C. § 512.

8/28. The American Antitrust Institute (AAI) released a paper [28 pages in PDF] titled "The Latest Issues at the Crossroads of Antitrust and IPR", to be delivered by AAI head Albert Foer at the 7th Seoul International Competition Forum, in Seoul, Korea, on September 5, 2012.

8/23. The CTIA released a document [3 pages in PDF] titled "Guidelines for Federal Political Campaign Contributions via Wireless Carrier's Bill, Version 1.0". The release of these guidelines follows the Federal Election Commission's (FEC) release of its Advisory Opinion 2012-28 on August 2, 2012.

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