9/10. The Federal Communications Commission (FCC) filed its brief [121 pages in PDF] with the U.S. Court of Appeals (DCCir) in Verizon v. FCC, the challenge to the FCC's 2010 rules that regulate the business practices of broadband internet access service (BIAS) providers. These rules are also sometimes referred to as open internet rules or network neutrality rules.

Unfortunately for the FCC and DOJ lawyers briefing and arguing this case, the task of the Court of Appeals is not to determine whether its BIAS regulation would make sound legislative policy. That is a determination for the Congress, and one which the Congress has not yet made. Rather, the question before the Court of Appeals is whether the FCC has statutory authority to write these rules.

This brief grasps for legal authority to write these rules in various statutory sections, but places the most emphasis on Section 706.

This brief squirms to get out from under the weight of this same Court's 2010 opinion in the Comcast case, in which this Court held that the FCC cannot do by adjudication what it now seeks to do by rules. The FCC now argues that this case is different, because since the Comcast case was decided the FCC has produced new and different Section 706 reports.

The FCC promulgated its BIAS rules in its huge Report and Order (R&O) [194 pages in PDF] of late December, 2010. The FCC adopted the R&O on December 21, 2010, and released the text on December 23, 2010. It is FCC 10-201 in GN Docket No. 09-191 and WC Docket No. 07-52. See also, stories in TLJ Daily E-Mail Alert No. 2,186, December 22, 2010, and TLJ Daily E-Mail Alert No. 2,188, December 24, 2010.

The FCC has waged an effective campaign of delay. Hence, nearly two years after adopting rules, the Court of Appeals is still only at the briefing stage. The Court has not yet set the date for oral argument.

The FCC adopted its Comcast order on August 1, 2008. The Court of Appeals heard oral arguments on January 8, 2010, and vacated the order on April 6, 2010. In the present case, the FCC adopted its BIAS rules on December 21, 2010. The Court of Appeals could hear oral argument early next year, and issue its opinion by late Spring or Summer of 2013.

The FCC's order adopting the BIAS rules is vulnerable to challenge on the grounds that the FCC lacks statutory authority to adopt these rules. The FCC's argument that it possesses authority is weak, due to the absence of language in the Communications Act giving the FCC authority to regulate BIAS providers, and the April 6, 2010, opinion [36 pages in PDF] of the U.S. Court of Appeals (DCCir) in Comcast v. FCC. See, story titled "Court of Appeals Vacates FCC's Comcast Order", and related stories, in TLJ Daily E-Mail Alert No. 2,072, April 7, 2010.

The FCC wrote in its just filed brief that "this Court found that the Comcast administrative enforcement order had failed to tie the agency’s authority to a specific statutory grant of power."

The FCC continued that "The Court recognized that Section 706 of the 1996 Act could ``be read to delegate regulatory authority,´´ but the Commission itself in ``an earlier, still-binding order´´ had interpreted the statute otherwise and ``remains bound by its earlier conclusion.´´"

"Congress assigned the FCC", the FCC brief argues, "a central role in protecting Internet openness and the resulting investment in broadband facilities."

Actually, the Comcast opinion states the Section 706 "could at least arguably be read to delegate regulatory authority to the Commission". But, the Court wrote in Comcast, "the Commission remains bound by its earlier conclusion that section 706 grants no regulatory authority". The FCC has since reversed its conclusion. However, the Court did not write in its Comcast opinion that if the FCC were to reverse its conclusion regarding Section 706, then Section 706 would confer a stand alone delegation of regulatory authority.

Section 706 of the Telecommunications Act of 1996, which is codified at 47 U.S.C. § 157 notes, provides, in part, that the FCC shall regularly "initiate a notice of inquiry concerning the availability of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms) ... In the inquiry, the Commission shall determine whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion. If the Commission's determination is negative, it shall take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market." (Parentheses in original.)

The FCC adopted its latest Section 706 report [181 pages in PDF] on August 21, 2012. See, story titled "Divided FCC Adopts Section 706 Report" in TLJ Daily E-Mail Alert No. 2,433, August 21, 2012. This report is FCC 12-90 in GN Docket No. 11-121.

The FCC's adopted and released its previous Section 706 report [99 pages in PDF] on May 20, 2011. It is FCC 11-78 in GN Docket No. 10-159. See also, story titled "FCC Releases 7th Section 706 Report" in TLJ Daily E-Mail Alert No. 2,246, May 27, 2011.

Before that, the FCC released a Section 706 report [79 pages in PDF] on July 20, 2010. It is FCC 10-129 in GN Docket No. 09-137. See also, "FCC Releases 6th Section 706 Report" in TLJ Daily E-Mail Alert No. 2,114, July 29, 2010.

The FCC now argues that its Section 706 conclusions command adoption of its BIAS rules. Whether the Court of Appeals will understand that FCC Chairman Julius Genachowski's (at left) desire to promulgate and defend his BIAS rules commanded the factual findings and legal conclusions of these latest Section 706 reports is another matter.

The FCC's just filed brief argues that "Verizon's attack on the Open Internet Rules rests on two fundamental -- and fundamentally flawed -- premises. Verizon first characterizes the Commission as having ``conjured a role´´ and ``inserted itself´´ into broadband."

"But that description cannot be squared with multiple indications to the contrary: the FCC’s congressionally assigned role in communications, the history of oversight of computer-based services, the agency's discretion, confirmed by the Supreme Court, to classify broadband as an information or telecommunications service, the specific commands of Section 706, the Commission’s established authority to issue and modify spectrum licenses in the public interest, and the Commission’s longstanding authority to craft policy for information services to further its numerous other functions."

The FCC continues that "Verizon's second flawed premise is that the Open Internet Rules are a solution in search of a problem and serve no policy purpose. In fact, the record before the Commission showed multiple incidents of broadband providers interfering with their customers’ ability to use Internet services, from file sharing services to Internet-based telephony. The Commission also identified a trio of powerful economic incentives, amplified by increasing technological capability and limited competition among broadband providers, to discriminate among edge providers and to block customer access to Internet sites of their choosing. That record itself justifies Commission action, but the law does not demand the Commission to wait until harm has already occurred."

The FCC argues that its BIAS rules are a reasonable exercise of the FCC's discretion under Section 706, which the FCC argues grants "direct authority to set policy for broadband Internet access service".

The 2010 BIAS rules also apply a lighter regulatory regime for wireless broadband access. Hence, the FCC's brief argues that the FCC's "plenary authority over spectrum licenses under Title III of the Communications Act separately authorizes the mobile broadband rules".

The FCC also argues that "Section 201(b) of the Act gives the Commission power to ensure that telephone rates are just and reasonable. Rules that protect Internet-based telephone service from being blocked serve that mandate by preserving competition in the telephone market. Section 628 of the Act gives the Commission authority to protect competition in video distribution."

Verizon also argued that the BIAS rules violate its First Amendment free speech rights because they "limit broadband providers’ own speech and compel carriage of others’ speech".

The FCC brief argues that Verizon is not a speaker, but a conduit, in this case.

Verizon filed its brief on July 2, 2012. Its counsel of record is Helgi Walker (Wiley Rein). She was also counsel to Comcast in its successful challenge.

9/10. The Senate Judiciary Committee (SJC) released a revised agenda for its executive business meeting on Thursday, September 13, 2012. This agenda includes a bill regarding video viewing on social media, the Patent Law Treaties Implementation Act, a bill to give copyright protection to fashion designs, and the William Baer nomination.

The SJC added to the agenda consideration of HR 2471 [LOC | WW], a bill to amend 18 U.S.C. § 2710 regarding video tape privacy and social media. It also added S 3486 [LOC | WW], the "Patent Law Treaties Implementation Act". It also added S 3523 [LOC | WW], the "Innovative Design Protection Act of 2012". Finally, the SJC added consideration of the nomination of William Baer to be Assistant Attorney General in charge of the Department of Justice's (DOJ) Antitrust Division.

The SJC rarely follows its agendas in full. The SJC, which usually meets every Thursday at 10:00 AM when the Senate is in session, often holds over consideration of items the first few times that they are on the agenda. Hence, the SJC may not actually take up all, or any, of these items on September 13. However, any items not taken up on September 13 are likely to be considered within a few weeks.

Judge Bork, Video Privacy, and Social Media. HR 2471 would amend the "Video Privacy Protection Act" or VPPA, which was enacted by the 100th Congress in 1988 just after the public debates and Senate hearings pertaining to the nomination of Judge Robert Bork to be a Justice of the Supreme Court, which involved public disclosure of his video rental records. That bill was Public Law No. 100-68. It is codified at 18 U.S.C. § 2710.

The VPPA provides that "A video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person".

Rep Bob Goodlatte (R-VA) introduced HR 2471 on July 8, 2011. The HJC amended and approved this bill on October 13, 2011. See, story titled "House Judiciary Committee Passes Bill to Ease User Disclosure of Video Viewings in Social Media" in TLJ Daily E-Mail Alert No. 2,307, October 13, 2011. The House passed it on December 6, 2011.

This bill would amend Section 2710 to provide that "A video tape service provider may disclose personally identifiable information concerning any consumer ... to any person with the informed, written consent (including through an electronic means using the Internet) in a form distinct and separate from any form setting forth other legal or financial obligations of the consumer given at one or both of the following times -- (i) the time the disclosure is sought; and (ii) in advance for a set period of time or until consent is withdrawn by such consumer".

That is, a service provider such as Facebook could operate a web site that discloses users' video rentals and recommendations with a one time opt-in procedure, rather than requiring consent every time the user wants to recommend a video.

Patent Law Treaties Implementation Act. Sen. Patrick Leahy (D-VT) and Sen. Charles Grassley (R-IA) introduced S 3486 on August 2, 2012.

This bill would implement two patent law treaties, the "Hague Agreement Concerning International Registration of Industrial Designs" and "Patent Law Treaty". The Senate ratified these treaties in 2007.

Sen. Leahy (at right) stated in the Senate on August 2 that the Hague Agreement "provides a simplified application system for U.S. creators of industrial designs who, by filing a single standardized application for a design patent at the U.S. Patent and Trademark Office, can apply for design protection in each country that has ratified the Treaty." See, Congressional Record, August 2, 2012, at Page S5980.

"American design patent applicants who previously had to file separate applications in numerous countries may now file a single, English-language application at the U.S. Patent Office, reducing the costs and burdens of obtaining international protections. The U.S. Patent Office may also receive applications that have been filed internationally, but its substantive examination process remains unchanged."

Sen. Leahy also stated that the Patent Law Treaty "streamlines the process for American businesses seeking patent protection overseas. It limits the formalities different countries can require in patent applications, which are often used to disadvantage American applications in foreign jurisdictions. American businesses and inventors will benefit from harmonized applications, reducing the cost of doing business and encouraging U.S. innovators to protect and export their products internationally."

Copyright Protection for Fashion Designs. Sen. Charles Schumer (D-NY) introduced S 3523 on September 10, 2012. This is a reintroduction of a related bill from the 111th Congress, S 3728 [LOC | WW], the "Innovative Design Protection and Piracy Protection Act". Sen. Schumer introduced that bill on August 5, 2010. The SJC amended and approved it on December 1, 2010, during the lame duck session. See, story titled "Senate Judiciary Committee Approves Bill to Give Copyright Protection to Fashion Designs" in TLJ Daily E-Mail Alert No. 2,166, December 2, 2010. However, the full Senate did not pass it.

This bill would amend 17 U.S.C. § 1301. This section, which was added to the Copyright Act in 1998 by the Digital Millennium Copyright Act (DMCA), currently protects water vessel hull designs. This bill would add fashion apparel designs items. However, the term of protection would be only three years.

8/23. The Copyright Office (CO) published a notice in the Federal Register (FR) that requests comments regarding establishing a process for adjudicating small copyright claims.

The deadline to submit comments is September 26, 2012. The CO will also hold two hearings, in New York City on November 15-16, and in Los Angeles on November 26-27. See, FR, Vol. 77, No. 164, August 23, 2012, at Pages 51068-51071.

This long and detailed notice contains 32 numbered topics, most of which contain numerous questions.

The CO is conducting an inquiry, and writing a report for Congress, pursuant to a request from Rep. Lamar Smith (R-TX), Chairman of the House Judiciary Committee (HJC). He has essentially asked that the CO implement language in several orphan works bills that were introduced in the 109th and 110th Congresses, but that were not enacted into law. See, related story in this issue titled "Orphan Works Legislation and Adjudicating Small Copyright Claims".

Currently, many rights holders, especially individuals and small businesses, do not sue those who copy their works without authorization because the expected costs of litigation far exceed the expected returns. Theft goes unanswered, and this encourages more theft.

This inquiry by the CO pertains to the possibility of establishing a new process that would enable such rights holders to obtain adjudication of claims of infringement, and perhaps some related claims, with simplified procedure, accelerated time schedules, limited discovery, virtual courts, maximum damage awards, and/or other limitations on remedies.

The CO published a shorter first notice in the FR last year requesting comments. See, FR, Vol. 76, No. 208, October 27, 2011, at Pages 66758-66761. See also, CO's web page with hyperlinks to the comments that it received. And see, related story in this issue titled "First Round of Comments on Creating a Process for Adjudicating Small Copyright Claims".

Summary of Questions in Just Released Notice. The second notice asks more questions, and more detailed questions. It may also reveal some of the preliminary conclusions or thoughts of the CO regarding adjudicating small copyright claims.

For example, one approach to creating a copyright small claims adjudication process would be to allow the state courts, which have long and broad experience in operating small claims courts, and providing expedited, simplified and pro se relief in specific cases, such a landlord tenant disputes and domestic violence, to also be a venue for adjudicating small copyright claims.

This could be accomplished by allowing state courts to adjudicate claims arising under the Copyright Act. Alternatively, the federal copyright preemption statute (17 U.S.C. § 301) could be amended to allow states to create a state law copyright cause of action, or small claims copyright cause of action. However, the CO notice relegates use of state court to a brief inquiry in question number 28.

This notice also discloses that the CO has already exonerated itself. This notice also does not ask any questions regarding whether the CO's activities and operations currently contribute to small claims not being adjudicated, or would contribute further to small claims not being adjudicated under a new process.

For example, the CO does not ask if high CO registration fees are a deterrent. Nor does it ask if lengthy CO delays in issuing registrations (a prerequisite under 17 U.S.C. § 411 for bringing a claim for infringement) is a deterrent. Nor does it ask if the CO's failure to provide clear guidance regarding how to register certain copyrights (and the resulting uncertainty as to whether a work has been validly registered) is another deterrent.

These issues were raised in the first round of comments. The National Writers Union (NWU), for example, devoted most of its comments to registration issues.

The CO notice asks about what body should adjudicate small claims. It asks about voluntary and mandatory participation.

It asks about arbitration, including about how decisions would be enforced. Currently, 9 U.S.C. § 2, provides that a "written ... contract ... to settle by arbitration a controversy thereafter arising out of such contract ... shall be valid, irrevocable, and enforceable ..." Rights holders have contracts containing arbitration clauses with few, if any, of their would be infringers.

The CO notice asks questions regarding whether small claims proceedings should be limited as to types of works, types of claims, or size or types of damages. It also asks about limiting defenses and counterclaims. It also asks if small claims courts should have authority to grant declaratory or equitable relief.

The CO notice ask about whether trial by jury should be available, what sort of discovery should be available, the role of attorneys, motion practice, rules of evidence, and paper and teleconference only proceedings.

Public Hearings. The CO will hold a public meeting in the Jerome Greene Annex at Columbia Law School, 410 West 117th Street, New York City, New York, on November 15 from 9:30 AM to 5:30 PM, and on November 16 from 9:30 AM to 3:30 PM.

The CO will hold a public meeting in Room 1314, UCLA School of Law, 405 Hilgard Avenue, Los Angeles, California, on November 26 from 9:30 AM to 5:30 PM, and on November 27 from 9:30 AM to 3:30 PM.

The CO has not yet set a deadline or process for requesting to make a presentation at either of these two meetings.

8/23. The Copyright Office (CO) published a notice in the Federal Register (FR) that requests comments regarding establishing a process for adjudicating small copyright claims. This is the second such request for comments.

This issue is intertwined with the matter of reducing the rights and remedies of rights holders via legislation described by its proponents as "orphan works" bills. Several large organized interests have actively sought such legislation for years.

The CO released a report [133 pages in PDF] titled "Report on Orphan Works" in January of 2006 urging the Congress to enact such legislation. Almost all of the major interests that are well organized to lobby the Congress on copyright issues have either backed, or not opposed, orphan works legislation. See, story titled "Copyright Office Recommends Orphan Works Legislation" in TLJ Daily E-Mail Alert No. 1,302, February 2, 2006.

Maria Pallante (at right), the Register of Copyright, who in 2006 was employed by the Guggenheim Museum, advocated passage of orphan works legislation, and testified at a hearing on March 8, 2006. See, story titled "House CIIP Subcommittee Holds Hearing on Orphan Works" in TLJ Daily E-Mail Alert No. 1,326, March 9, 2006

Orphan works proposals would limit the remedies of rights holders when a defendant infringer asserts that he did not know who owned the copyright, or could not locate the owner. While such a defense could not be credibly asserted by someone who copies blockbuster movies or popular songs, the defense would substantially harm individual and small business rights holders of lesser known works.

Moreover, orphan works legislation could have a devastating impact upon the holders of rights in visual works, such as those created by graphic artists, illustrators, and photographers, in part because of the absence of effective search methods for visual works.

Visual artists and others made their positions known to members of Congress, and the Congress did not enact any of these orphan works bills. Contrary to the arguments of some advocates of campaign finance and lobbying reform, the large corporate interests, and better funded lobbying efforts, do not always prevail.

Nevertheless, there remains strong interest in enacting orphan works legislation.

Rep. Bob Goodlatte (R-VA), Chairman of the House Judiciary Committee's (HJC) Subcommittee on Intellectual Property, Competition, and the Internet, stated in response to question from TLJ on January 17 of this year that he is still interested in enacting an orphan works bill.

TLJ asked Rep. Goodlatte (at right), "is an orphan works bill a possibility for the 2nd session?"

He stated that "We have been discussing that. There is no definitive plan to do that, but it is something that certainly has been on my larger list of things that we ought to be figuring out what we can do."

He continued that "One of the big problems there is figuring out what to do with photographs. With a lot of the things it is a lot easier to figure out whether it really is an orphan work or not. But one of the issues with orphan works is, is it really an orphan work. And, since photographs don't come labeled in a way that it is really easy to determine whether it is or not, we have got to figure out a way to handle stuff like that." (Source: TLJ audio file ...\2012a\stateofthenet\7.wma, unpublished.)

Also, Google and book publishers have tried to use class action litigation settlement, that was legislative in scope, to impose an orphan regime for book publishing. However, the U.S. District Court rejected it.

See, story titled "DOJ Files Pleading in Google Books Case" in TLJ Daily E-Mail Alert No. 1,985, September 21, 2009, and story titled "DOJ Criticizes Amended Google Books Settlement" in TLJ Daily E-Mail Alert No. 2,043, February 12, 2010. See also, stories titled "District Court Rejects Google Books Class Action Settlement" in TLJ Daily E-Mail Alert No. 2,206, March 22, 2011, and "Orphan Works and the Court's Rejection of the Google Book Deal" in TLJ Daily E-Mail Alert No. 2,207, March 23, 2011.

If the Congress is to enact orphan works legislation, the vehement opposition of professional photographers, and other visual and authorial rights holders, would have to be overcome. One way to do this would be to pair orphan works legislation with legislation that would create an effective small copyright claims process. Thus, the combined legislation would balance the harm done to small and visual rights holders by orphan works legislation with the benefit to them that would result from a new simplified small claims process.

The bills in the 109th and 110th Congress would not have created such a process. However, they did contain provisions requiring the CO to conduct a study.

Rep. Lamar Smith (R-TX), the Chairman of the House Judiciary Committee (HJC) sent a letter on October 11, 2011 to the CO requesting that it "undertake a study to assess: (1) The extent to which authors and other copyright owners are effectively prevented from seeking relief from infringements due to constraints in the current system; and (2) furnish specific recommendations, as appropriate, for changes in administrative, regulatory and statutory authority that will improve the adjudication of small copyright claims and thereby enable all copyright owners to more fully realize the promise of exclusive rights enshrined in our Constitution."

Rep. Smith (at right) and the CO are essentially proceeding as if Section 6 of HR 5889 [LOC | WW], the "Orphan Works Act of 2008", or Section 5 of S 2913 [LOC | WW], the "Shawn Bentley Orphan Works Act Of 2008", had been enacted into law during the 110th Congress, or Section 4 of HR 5439, the "Orphan Works Act of 2006", had been enacted into law during the 109th Congress.

Section 6 of HR 5889 provided as follows:

(a) In General- The Register of Copyrights shall conduct a study with respect to remedies for copyright infringement claims by an individual copyright owner or a related group of copyright owners seeking small amounts of monetary relief, including consideration of alternative means of resolving disputes currently heard in the United States district courts. The study shall cover the infringement claims to which section 514 of title 17, United States Code, apply, and other infringement claims under such title 17.

(b) Procedures- The Register of Copyrights shall publish notice of the study required under subsection (a), providing a period during which interested persons may submit comments on the study, and an opportunity for interested persons to participate in public roundtables on the study. The Register shall hold any such public roundtables at such times as the Register considers appropriate.

(c) Report to Congress- Not later than 2 years after the date of the enactment of this Act, the Register of Copyrights shall prepare and submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on the study conducted under this section, including such administrative, regulatory, or legislative recommendations that the Register considers appropriate.

Others have also proposed creating a small claims process for copyright. See for example, article [72 pages in PDF] titled "The Copyright Principles Project: Directions for Reform" in Berkeley Technology Law Journal, 2010, Vol. 25, Page 1175, at pages 1207-1208. It proposes that the CO adjudicate small claims.

For more on orphan works bills in the 109th Congress, see stories titled "House CIIP Subcommittee Holds Hearing on Orphan Works" in TLJ Daily E-Mail Alert No. 1,326, March 9, 2006, "Rep. Smith Introduces Orphan Works Act of 2006" in TLJ Daily E-Mail Alert No. 1,377, May 24, 2006, and "House CIIP Subcommittee Approves Orphan Works Act of 2006" in TLJ Daily E-Mail Alert No. 1,378, May 25, 2006.

For more on orphan works bills in the 110th Congress, see stories titled "House IP Subcommittee Approves Orphan Works Bill" in TLJ Daily E-Mail Alert No. 1,762, May 7, 2008, "Senate Judiciary Committee Amends and Approves Orphan Works Bill" in TLJ Daily E-Mail Alert No. 1,767, May 15, 2008, and "Orphan Works Bills Discussed" in TLJ Daily E-Mail Alert No. 1,798, July 23, 2008.

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The House will meet a 10:00 AM for morning hour, and at 12:00 NOON for legislative business. The schedule for the week includes consideration of HR 5949 [LOC | WW], the "FISA Amendments Act Reauthorization Act of 2012", subject to a rule, and HR 6215 [LOC | WW, a technical corrections bill regarding trademark dilution, HR 6131 [LOC | WW], a bill to extend the SAFE WEB Act, and SConRes 17 under suspension of the rules. See, Rep. Cantor's schedule for the week, and story titled "House to Take Up Tech Bills" in TLJ Daily E-Mail Alert No. 2,443, September 7, 2012.

The Senate will meet at 10:00 AM.

8:00 AM - 1:30 PM. The Women in Government Relations (WGR) will host an event titled "Trends in Technology Conference". There will be panels titled "The Buzz with Tech Reporters", "Will Congress Pass Cyber Security Legislation?", and "Outlook for the Lame Duck and Prospect in the 113th Congress". See, notice and registration page. Prices vary. Location: Hyatt Regency Washington on Capitol Hill, 400 New Jersey Ave., NW.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Regulations and Procedures Technical Advisory Committee will hold a partially closed on site and teleconferenced meeting. See, notice in the Federal Register, Vol. 77, No. 162, August 21, 2012, at Page 50463. Location: DOC, Hoover Building, Room 3884, 14th Street between Constitution and Pennsylvania Avenues, NW.

9:30 AM - 5:00 PM. Day one of a three day meeting of the Department of Transportation's (DOT) Federal Aviation Administration (FAA) RTCA Special Committee 222, Inmarsat Aeronautical Mobile Satellite (Route) Services. See, notice in the Federal Register, Vol. 77, No. 157, August 14, 2012, at Pages 48584-48585. Location: RTCA, Inc., Suite 910, 1150 18th St., NW.

10:00 AM - 2:00 PM. The Department of Commerce's (DOC) Economic Development Administration's (EDA) National Advisory Council on Innovation and Entrepreneurship will hold an on site and teleconferenced meeting. See, notice in the Federal Register Vol. 77, No. 174, September 7, 2012, at Page 55182. Location: DOC, 1401 Constitution Ave., NW.

1:00 - 2:00 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "The Limits of the FTC’s Data Security Program: Where is the line, and where should it be?". The speakers will be Thomas Zych (Thompson Hine), Janis Kestenbaum (FTC), Michael Scott (Southwestern Law School), and David Zetoony (Bryan Cave). No CLE credits. See, notice.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "Video Games and Digital Media: A Litigation Update". The speakers will be Alex Chachkes (Orrick Herrington & Sutcliffe), William Coats (Kaye Scholer), Judith Keyes (Davis Wright Tremaine), and Cydney Tune (Pillsbury Winthrop). CLE credits. Prices vary. See, notice.

RESCHEDULED FOR SEPTEMBER 19. 2:15 PM. The Senate Foreign Relations Committee (SFRC) will hold an executive business meeting. The agenda includes numerous items, including consideration of SConRes 50, a resolution "Expressing the sense of Congress regarding actions to preserve and advance the multistakeholder governance model under which the Internet has thrived". See, notice. Location: Room S-116, Capitol Building.

6:00 - 9:15 PM. The DC Bar Association will host a panel discussion titled "Trade Secret Fundamentals: What You Can and Can’t Do". The speakers will be Richard Horowitz and Peter Toren (Weisbrod Matteis & Copley). The price to attend ranges from $89 to $129. CLE credits. See, notice. For more information, call 202-626-3488. The DC Bar has a history of barring reporters from its events. Location: DC Bar Conference Center, 1101 K St., NW.

TIME? The American Bar Association (ABA) will host a webcast panel discussion titled "Video Games and Digital Media: A Litigation Update".

The House will meet a 10:00 AM for morning hour, and at 12:00 NOON for legislative business. See, Rep. Cantor's schedule for the week, and story titled "House to Take Up Tech Bills" in TLJ Daily E-Mail Alert No. 2,443, September 7, 2012.

TIME? The U.S. International Trade Commission (USITC) will hold a hearing on the probable economic effect of providing duty free treatment for imports under the U.S.-Trans-Pacific Partnership Free Trade Agreement. See, notice in the Federal Register, Vol. 77, No. 155, August 10, 2012, at Pages 47880-47882. Location: USITC, 500 E St., SW.

9:00 AM - 5:00 PM. The U.S. China Economic and Security Review Commission will meet to consider drafts of material for its 2012 annual report to Congress. See, original notice in the Federal Register (FR), Vol. 77, No. 143, July 25, 2012, at Pages 43662-43663, and second notice in the FR, Vol. 77, No. 171, September 4, 2012, at Pages 53965-53966. Location: Hall of the States, Conference Room 233, 444 North Capitol St., NW.

9:00 AM - 1:00 PM. The Federal Communications Commission's (FCC) Communications Security, Reliability, and Interoperability Council (CSRIC) will meet. See, September 6 Public Notice, and notice in the Federal Register, Vol. 77, No. 156, August 13, 2012, at Page 48153. Location: FCC, Commission Meeting Room, Room TW-C305, 445 12th St., SW.

9:30 AM - 5:00 PM. Day two of a three day meeting of the Department of Transportation's (DOT) Federal Aviation Administration (FAA) RTCA Special Committee 222, Inmarsat Aeronautical Mobile Satellite (Route) Services. See, notice in the Federal Register, Vol. 77, No. 157, August 14, 2012, at Pages 48584-48585. Location: RTCA, Inc., Suite 910, 1150 18th St., NW.

9:45 AM. The House Commerce Committee's (HCC) Subcommittee on Commerce, Manufacturing and Trade will hold a hearing titled "Where the Jobs Are: There’s an App for That". See, notice. Location: Room 2322, Rayburn Building.

10:00 AM. The House Homeland Security Committee's (HHSC) Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies will hold a hearing titled "The EMP Threat: Examining the Consequences". See, notice. Location: Room 211, Cannon Building.

10:00 AM. The House Judiciary Committee (HJC) will hold a hearing titled "The Obama Administration's Abuse of Power". See, notice. Location: Room 2141, Rayburn Building.

10:30 AM - 5:00 PM. The U.S. Patent and Trademark Office (USPTO) will host an event titled "roadshow" to explain and answer questions about USPTO rules that implement provisions of the Leahy Smith America Invents Act, which take effect on September 16, 2012. See, notice and agenda. Location: USPTO, Alexandria, Virginia.

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).

2:00 PM. The House Homeland Security Committee's (HHSC) Subcommittee on Emergency Preparedness, Response, and Communications will hold a hearing titled "Resilient Communications: Current Challenges and Future Advancements". See, notice. Location: Room 311, Cannon Building.

2:00 PM. The House Financial Services Committee's (HFSC) Subcommittee on Financial Institutions and Consumer Credit will hold a hearing titled "Examining the Uses of Consumer Credit Data". See, notice. Location: Room 2128, Rayburn Building.

5:00 PM. Deadline to submit reply comments to the Copyright Office (CO) in response to its notice in the Federal Register (FR) regarding its proposed rules that implement the provision of the Satellite Television Extension and Localism Act of 2010 (STELA) that allows copyright owners to audit certain Statements of Account filed with the CO. See, FR, Vol. 77, No. 115, Thursday, June 14, 2012, at Pages 35643-35652. See also, story titled "Copyright Office Issues Proposed STELA Rules Regarding Auditing Statements of Account" in TLJ Daily E-Mail Alert No. 2,398, June 18, 2012.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Seminar on Next Generation 9-1-1". The speakers will be Trey Forgety (NENA), Brian Hurley (FCC), Robert Gojanovich (TeleCommunication Systems), John Kelly (Ottosen Britz), and Tim Stelzig (Deputy Chief of the FCC's WCB's Competition Policy Division). CLE credits. Prices vary. Registrations and cancellations are due by 12:00 NOON on Tuesday, September 11. See, notice. Location: Drinker Biddle & Reath, 1500 K St., NW.

The House will meet a 10:00 AM for morning hour, and at 12:00 NOON for legislative business. See, Rep. Cantor's schedule for the week, and story titled "House to Take Up Tech Bills" in TLJ Daily E-Mail Alert No. 2,443, September 7, 2012.

8:30 - 10:30 AM. FairSearch, a group organized around the proposition that "Google is abusing its search monopoly to thwart competition", will host an event titled "Searching for Innovation and Competition in the Online Marketplace". The speakers will be Susan Athey (Harvard University), Robert Birge (KAYAK), Mark Corallo, Albert Foer (American Antitrust Institute), Rodman Forter (Skyhook Wireless), Pamela Harbour (Fulbright & Jaworski), Patrick Lynch, Nathan Newman, Jim O’Connell (Covington & Burlington), and Dan Savage (TradeComet.com). See, notice. Location: Newseum, 555 Pennsylvania Ave., NW.

9:00 AM - 5:00 PM. The U.S. China Economic and Security Review Commission will meet to consider drafts of material for its 2012 annual report to Congress. See, original notice in the Federal Register (FR), Vol. 77, No. 143, July 25, 2012, at Pages 43662-43663, and second notice in the FR, Vol. 77, No. 171, September 4, 2012, at Pages 53965-53966. Location: Hall of the States, Conference Room 231, 444 North Capitol St., NW.

9:00 - 11:00 AM. The Information Technology and Innovation Foundation (ITIF) will host a discussion of the book titled "Innovation Economics: The Race for Global Advantage". The speakers will include the authors, Robert Atkinson (ITIF) and Stephen Ezell (ITIF). See, notice. Location: Holeman Lounge, National Press Club, 529 14th St., NW.

9:30 AM - 5:00 PM. Day three of a three day meeting of the Department of Transportation's (DOT) Federal Aviation Administration (FAA) RTCA Special Committee 222, Inmarsat Aeronautical Mobile Satellite (Route) Services. See, notice in the Federal Register, Vol. 77, No. 157, August 14, 2012, at Pages 48584-48585. Location: RTCA, Inc., Suite 910, 1150 18th St., NW.

10:00 AM - 1:00 PM. The House Intelligence Committee (HIC) will hold a hearing titled "National Security Threats Posed by Chinese Telecom Companies Working in the U.S." This hearing is open to the public. See, notice. Location: Room HVC-210, Capitol Visitor Center.

10:00 AM. The House Financial Services Committee's (HFSC) Subcommittee on Capital Markets and Government Sponsored Enterprises and the House Oversight and Government Reform Committee (HOGRC) will hold a joint hearing titled "The JOBS ACT: Importance of Prompt Implementation for Entrepreneurs, Capital Formation, and Job Creation". In March of this year the Congress enacted HR 3606 [LOC | WW], the "Jumpstart Our Business Startups Act" or JOBS Act", a bill that reduces securities regulation for small and start up companies. See, stories titled "House Passes Securities Regulation Bill" and "Summary of HR 3606" in TLJ Daily E-Mail Alert No. 2,350, March 19, 2012. It is now Public Law No. 112-106. See, notice. Location: Room 2154, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes consideration of HR 2471 [LOC | WW], a bill to amend 18 U.S.C. § 2710, S 3486 [LOC | WW], the "Patent Law Treaties Implementation Act", and S 3523 [LOC | WW], the "Innovative Design Protection Act of 2012". The agenda also includes consideration of the nomination of William Baer to be Assistant Attorney General in charge of the Department of Justice's (DOJ) Antitrust Division. See, SJC notice. Location: Room 226, Dirksen Building.

10:15 AM. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology will hold a hearing titled "Creating Opportunities through Improved Government Spectrum Efficiency". The witnesses will be Douglas Smith (P/CEO of Oceus Networks), Mark Goldstein (Government Accountability Office), Karl Nebbia (NTIA's Office of Spectrum Management), Steve Sharkey (T-Mobile USA), Preston Marshall (University of Southern California), and Robert Wheeler (USAF, Deputy Chief Information Officer for Command, Control, Communications and Computers and Information Infrastructure). See, notice. Location: Room 2123, Rayburn Building.

12:15 - 1:45 PM. The Federal Communications Bar Association's (FCBA) Privacy and Data Security Committee will hold a brown bag lunch and planning meeting. Location: Kelley Drye & Warren, Suite 400, 3050 K St., NW.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed hearing on undisclosed matters. See, notice. Location: Room 219, Hart Building.

5:30 - 9:00 PM. The Public Knowledge (PK) will host a fundraising event titled "9th Annual IP3 Awards". The price to attend is $50. See, registration page. Location: Ronald Regan Building and International Trade Center.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Meet and greet new FCC Commissioners Reception". Prices vary. See, notice and registration form. Location: Capital Hilton, 1001 16th St., NW.

8:00 - 9:00 PM. The American Bar Association's (ABA) Section of Antitrust Law will host a webcast panel discussion titled "Cartel Enforcement Around the World: Chapter 5: Korea". The speakers will be Douglas Tween (Baker & McKenzie), Cholsoo Han (Secretary General, Korea Fair Trade Commission), Hoil Yoon (Yoon & Yang), and Stephen Harris (Baker & McKenzie). No CLE credits. Free. See, notice and notice.

11:59 PM. Deadline to submit annual license and regulatory fees to the Federal Communications Commission (FCC). See, notice.

The House will meet a 9:00 AM for legislative business. See, Rep. Cantor's schedule for the week, and story titled "House to Take Up Tech Bills" in TLJ Daily E-Mail Alert No. 2,443, September 7, 2012.

9:00 - 10:30 AM. The US Telecom will host an on site and teleconferenced event titled "Broadband Internet Competition in the Digital Age Breakfast Briefing". The speakers will be Jonathan Salet (O'Melveny & Myers), Rob Atkinson (Information Technology and Innovation Foundation), and Jeffrey Eisenach (Navigant Economics). This event is free, but registration is required. See, notice. Location: US Telecom Executive Conference Center, Suite 400, 607 14th St., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in EchoStar Satellite v. FCC, App. Ct. No. 04-1033. This case pertains to FCC rules, adopted in 2003, regarding digital plug and play compatibility. See, story titled "FCC Adopts Digital Plug and Play Cable Compatibility Rules" in TLJ Daily E-Mail Alert No. 737, September 11, 2003. See also, FCC brief filed on March 30, 2012. Judges Brown, Edwards, and Randolph will preside. This is the third item on the Court's agenda. Location: Courtroom 11, 4th floor, Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM - 4:00 PM. The Securities and Exchange Commission (SEC) will host an event titled "Technology and Trading: Promoting Stability in Today's Markets". See, notice and agenda. Location?

10:30 AM - 3:30 PM. The Federal Communications Commission's (FCC) Emergency Access Advisory Committee (EAAC) will hold a meeting regarding next generation 911 accessibility by persons with disabilities. See, Public Notice (DA 12-1372) and notice in the Federal Register, Vol. 77, No. 175, September 10, 2012, at Page 55473. Location: FCC, Commission Meeting Room, 445 12th St., SW.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-147 B [31 pages in PDF] titled "BIOS Protection Guidelines for Servers".

Deadline to submit reply 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.

Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) in response to its notice in the Federal Register (FR) requesting comments to assist it in preparing its 2012 Notorious Markets List, which identifies internet and physical notorious markets located outside of the US that make available intellectual property infringing products. See, FR, Vol. 77, No. 157, August 14, 2012, at Pages 48583-48584. See also, story titled "USTR Seeks Comments on Notorious Markets" in TLJ Daily E-Mail Alert No. 2,431, August 17, 2012.

Rosh Hoshanah begins at sundown.

Deadline to submit post hearing briefs and statements to the U.S. International Trade Commission (USITC) regarding the probable economic effect of providing duty free treatment for imports under the U.S.-Trans-Pacific Partnership Free Trade Agreement. See, notice in the Federal Register, Vol. 77, No. 155, August 10, 2012, at Pages 47880-47882.

12:00 NOON - 1:00 PM. The American Bar Association's (ABA) Section of Antitrust Law will host a teleconferenced panel discussion titled "July-August 2012 Antitrust Update". The speakers will be Dorothy Raymond and Francis Fryscak, Jackie Grise, Howard Morse, and Marc Schildkraut (all of Cooley). No CLE credits. Free. See, notice.

12:00 - 1:15 PM. The American Bar Association (ABA) will host a teleconferenced panel discussion titled "Locked Down: Keeping Confidential Information Confidential". CLE credits. Prices vary. See, notice.

1:30 - 5:00 PM. Melbourne IT will host a panel discussion titled "Trademarks and New gTLDs: Minimizing the Need for Defensive Registrations and the Second Level of New Generic Top Level Domains". The speakers will be Andrew Abrams (Google), James Bikoff (Silverberg Goldman & Bikoff), Steve DelBianco (NetChoice), Dan Jaffe (Association of National Advertisers), Jon Nevett (Donuts), Russell Pangborn (Microsoft), Craig Schwartz (fTLD Registry Services), and Brian Winterfeldt (Steptoe & Johnston). See, notice. Location: Capitol Hilton, 1001 16th St., NW.

8/23. The Copyright Office (CO) published a notice in the Federal Register (FR) on August 23, 2012 that requests comments regarding establishing a process for adjudicating small copyright claims. See, FR, Vol. 77, No. 164, August 23, 2012, at Pages 51068-51071.

This is the second such request for comments. The CO published a shorter first notice in the FR last year requesting comments. See, FR, Vol. 76, No. 208, October 27, 2011, at Pages 66758-66761.

See, CO's web page with hyperlinks to the comments that it received. And see, related stories in this issue titled "Copyright Office Seeks Comments on Creating a Process for Adjudicating Small Copyright Claims" and "Orphan Works Legislation and Adjudicating Small Copyright Claims".

While the CO received 55 comments, taken as a whole, they did not provide the CO with an extensive body of data, analysis, and opinion. First, many were one page comments of individuals. Second, few law professors with expertise in civil procedure and/or copyright law submitted comments. But see, comments of June Besek (Columbia law school).

Third, few practicing attorneys submitted comments. However, David Nimmer (Irell & Manella, and author of Nimmer on Copyright) submitted very extensive comments on behalf of the American Photographic Artists (APA). See also, comments of Michael Traynor, Katherine Spelman, and Sophie Cohen of the Cobalt law firm, brief comments of Atkinson & Atkinson, and brief comments of Megan Gray (now at the FTC).

Fourth, many of the entities that might be relied upon by the CO to provide extensive and informed comments, either submitted nothing, or stated that they have not yet developed their positions.

See for example, comments of the Recording Industry Association of America (RIAA) and comments of the Association of American Publishers (AAP), taking no positions.

Most of the large companies, and trade groups that represent the large companies, that aggregate and distribute copyrighted works did not submit comments. No major record or movie companies submitted comments. Neither the Motion Picture Association of America (MPAA), Business Software Alliance (BSA), Entertainment Software Association (ESA), nor International Intellectual Property Alliance (IIPA) submitted comments.

In contrast, numerous individuals and small businesses that create visual works or written works, and the groups and attorneys who represent them, submitted comments in support of creation of a small claims process. These are the prospective plaintiffs who find little recourse under the current copyright litigation process, and who would be most harmed by enactment of orphan works legislation.

These comments state the views book authors and other writers, artists, medical illustrators, but especially photographers

The American Society of Media Photographers (ASMP) submitted extensive comments that address the nature of the photography profession, the nature and extent of infringement, and the high costs of copyright litigation.

The ASMP comments, written by Victor Perlman, state that current procedures "allow a defendant with a deep pocket to put a sole proprietor plaintiff in the poor house through endless discovery requests, depositions and motions".

The ASMP proposes a small claims process that dispenses with the requirement of registration, proceeds on a mandatory pro se basis, in some kind of federal tribunal (none is specified), with "very limited" pretrial discovery, and an accelerated schedule. Most hearings and trials conducted by video conferencing. Claims would be limited to somewhere between $10,000 to $25,000 maximum, and injunctive remedies would be available.

Nimmer (APA) wrote that the current system works well "when the stakes are high and both sides are financially prepared to enforce their rights to the hilt", but that the "rules can actually serve to hinder justice when the stakes are relatively low, with one party more intent on erecting procedural roadblocks and multiplying expenses than on reaching resolution of the matter at hand".

Nimmer and the APA, who submitted the only comments with the proposed text of statutory and rules changes, suggest adjudication before magistrate judges of the U.S. District Courts, without a jury, of claims up to $80,000, in cases in which both parties agree to small claims process. Only infringement claims would be heard. Remedies would be damages and final (but not preliminary) injunctive relief. The Court would apply a "rocket docket" with limited discovery. Also, Nimmer and the APA would maintain the registration requirement.

The National Press Photographers Association (NPPA) also submitted comments. It wrote that the CO "should create a less burdensome method for adjudicating copyright claims -- so long as rights holders are not unreasonably pressured to settle their claims for less than rights-managed market values."

The Songwriters Guild of America (SGA) and the Nashville Songwriters Association International (NSAI) submitted a comment to state that they "strongly endorse the concept of establishing a forum in which individual copyright owners could pursue infringement claims that have a relatively small economic value".

Google, owner of YouTube, submitted comments. Its business model benefits from its users posting and viewing infringing copies of copyrighted works. As an interactive computer service it avoids liability for the actions of its users, provided that it complies with the notice and take down regime of 17 U.S.C. § 512. Hence, providing all rights holders processes that enable them to effectively enforce their copyrights is not in Google's interest.

However, some people post content to YouTube, which is either not infringing, or falls within the scope of fair use, which is taken down as a result of wrongful take down demands. Providing persons who post such content a small claims process to litigate their claims of wrongful take down notices could be in the interest of Google and other similarly situated interactive computer services.

Google's comments argue that if a small claims process is created, there should be limitations. These limitations would have the effect of rendering the process ineffective and toothless. First, Google argues that claims should be drastically limited. For example, the small claims process should not have authority to adjudicate any claims involving allegations of secondary liability, or defenses of fair use. On the other hand, Google advocates allowing small claims that allege wrongful take down notices.

Google argues against any discovery. Google also argues that remedies should be drastically limited. Damages should have a very low cap -- no more than $10,000. And, there should be no injunctive relief.

Google argues that there should be an "appeal" process for "defendants". Although, what Google describes is actually a trial de novo in the U.S. District Court, with the full panoply of FRCP discovery and other procedures.

Google also argued that states should have no role in this.

Google also references use of the small claims process by "a movie studio that wants to bring 10,000 cases against P2P downloaders".

There is a history of mass P2P litigation, but it has stopped. These actions were brought by record companies, and were limited to defendants who made copies available over P2P systems, not mere downloaders. Moreover, the large movie and record companies can afford to hire lawyers to bring expensive lawsuits, while most P2P defendants cannot afford to defend such suits.

Google may have more to worry about from hundreds of thousands of individual creators filing small claims, that Google could not remove to full scale litigation, that allege vicarious liability, or direct liability notwithstanding the Section 512 safe harbor due to its failure to comply with the notice and take down procedures.

The Public Knowledge (PK), whose advocacy on many issues, including copyright, spectrum, and FCC regulation, often parallels that of Google, submitted comments that made some of the same points as Google's comments. The Electronic Frontier Foundation (EFF) and Future of Music Coalition (FOMC) joined in the PK's comments.

They argue that a small claims process should only have authority to adjudicate cases in which both the rights holder and alleged infringer "voluntarily submit their dispute to the new forum". Then damages should be limited to $5,000 per dispute. And, "Statutory damages, injunctions, attorney’s fees and costs, seizure, and forfeiture should not be available as remedies".

The large movie and record industry interests have not shown any enthusiasm for a small claims process either.

On the on hand, the movie and record companies can afford to bring actions in the U.S. District Court under ordinary procedure. On the other hand, record companies may have reason to fear that a small claims process would be used by singers and songwriters to litigate copyright ownership and contract disputes with record companies.

The National Music Publishers Association (NMPA) and American Society of Composers, Authors and Publishers (ASCAP) wrote in their comment that "we have not recognized a discernible grass roots desire in the copyright community to create a copyright small claims court", and creating one could have "unintended consequences".

The ASCAP and SESAC (once an acronym for Society of European Stage Authors & Composers), both of which are music performing rights organizations (PROs) or societies within the meaning of 17 U.S.C. § 101, wrote in a joint comment that "no alternative adjudication or resolution system need be implemented to hear actions concerning the public performance of copyrighted musical works. For these actions, an alternative system is simply unnecessary." Moreover, "an alternative system for small claims can potentially be damaging" to PROs such as the ASCAP and SEAC.

In contrast, the third PRO in the US, Broadcast Music, Inc. (BMI), submitted a comment in which it stated that it "supports the Office’s interest in investigating other possible legal or regulatory processes that would be available to adjudicate a small claim".

Microsoft submitted comments, written by Jule Sigall. It states that "Microsoft does not have a view on whether any particular method of resolving small claims would be effective or desirable". However, it goes on to express more detailed views than most commenters.

This comment may be particularly important to the CO, because Sigall is the former CO attorney who wrote the 2006 orphan works report. See, story titled "Jule Sigall Joins Microsoft" in TLJ Daily E-Mail Alert No. 1,510, December 27, 2006.