12/17. Rep. John Conyers (D-MI) and Rep. Mel Watt (D-NC) sent a letter to the Federal Trade Commission (FTC) regarding its investigation of Google's business practices.

They wrote that "While we do not take a position on the merits of the claims alleged against Google, we do believe that concerns about the use of Section 5 are unfounded."

Section 5 of the FTC Act, which is codified at 15 U.S.C. § 45, provides in part that "The Commission is hereby empowered and directed to prevent persons, partnerships, or corporations ... from using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce".

Citing a small number of old cases, they wrote that "Well established legal principles set forth by the Supreme Court provide ample authority for the FTC to address potential competitive concerns in the relevant market, including search."

Rep. Conyers is the ranking Democrat on the House Judiciary Committee (HJC). Rep. Watt is the ranking Democrat on the HJC's Subcommittee on Intellectual Property, Competition and the Internet.

Commentary. The FTC has statutory authority to enforce antitrust laws under the Sherman Act and Clayton Act. There are well developed bodies of judicial case law that construe and give meaning to their various sections.

In contrast, Section 5 of the FTC Act has hardly been invoked as an antitrust statute for decades. The FTC did rely upon Section 5 of the FTC Act in its administrative action against Intel in 2010, but that was settled by consent agreement, so the FTC's authority to proceed under Section 5 was not subjected to judicial review. See, story titled "FTC and Intel Settle Antitrust Claims" and related stories in TLJ Daily E-Mail Alert No. 2,018, August 4, 2010.

There is no body of case law that gives meaning to Section 5 as an antitrust statute. This is what makes it so attractive to advocates of aggressive FTC regulation. Invoking Section 5 may enable the FTC to regulate conduct that is not unlawful under the antitrust statutes.

Since the invocation of Section 5 would mean relying upon four words, without any body of case law, there is little to constrain the FTC in determining what constitutes a violation of Section 5. And, there is little to put Google or other companies on notice in advance as to what might constitute a violation of Section 5.

12/18. Facebook, owner of Instagram, published revised terms of service (TOS) for its Instagram service, that take effect on January 16, 2012, that provide that "you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service".

The new TOS state that "any Content will be non-confidential and non-proprietary and we will not be liable for any use or disclosure of Content" and "None of your Content will be subject to any obligation of confidence on the part of Instagram, and Instagram will not be liable for any use or disclosure of any Content you provide."

The new TOS also state that if users "send us content, information, ideas, suggestions, or other materials, you further agree that Instagram is free to use any such content, information, ideas, suggestions or other materials, for any purposes whatsoever, including, without limitation, developing and marketing products and services, without any liability or payment of any kind to you".

All of these statements lie deep in a long and technically worded document. This long document also states that Facebook "does not claim ownership of any Content that you post on or through the Service".

However, there is also a short and colloquial page in the "Blog" section titled "Privacy and Terms of Service Changes on Instagram" that states that "Nothing has changed about your photos' ownership", without referencing changes regarding licensing and other things. This statement is true.

But, whether it constitutes deception by omission in violation of Section 5 of the FTC Act is a question that might be presented to the Federal Trade Commission (FTC) in a complaint. Section 5, which is codified at 15 U.S.C. § 45, prohibits "unfair or deceptive acts or practices in or affecting commerce".

TLJ spoke with professor William McGeveran of the University of Minnesota law school. He focuses on information law, including intellectual property, data privacy, communications and technology, and free speech.

He said that this new language is "common among other social networks". He said that this change "is a small deal", but that there is criticism "every time Facebook tweaks" its policies.

He also said that the primary use of user content is likely to be things like Facebook's sponsored posts. He elaborated under the new TOS a user who takes and posts pictures grants Instagram license to use those pictures. However, there are likely to be persons in those pictures who have not released their rights. So, for example, Instagram pictures are not likely to appear in commercial magazine ads.

He also said that he would not describe the blog post as "deceptive", but rather as a "mistake". He said that Facebook "tends to use salesmen's language", and this "raises people's suspicions".

Facebook is a company with history at the FTC. In November of 2011 the FTC brought and settled an administrative action against Facebook for the sharing of users' information, in a manner that was inconsistent with its statements to its users, in violation of Section 5 of the FTC Act. See, story titled "FTC Imposes Privacy Related Terms on Facebook" in TLJ Daily E-Mail Alert No. 2,315, November 29, 2012, and story titled "FTC Releases Decision and Order in Administrative Action Against Facebook" in TLJ Daily E-Mail Alert 2,426, August 10, 2012.

Chris Hoofnagle, Director of Information Privacy Programs at the Berkeley Center for Law & Technology, wrote a December 2011 filing with the FTC that "Information-intensive companies such as Facebook follow a Machiavellian public relations strategy when introducing new programs. Without warning, these companies introduce ``features´´ that invariably result in more information being shared with advertisers, wait for a negative reaction, and then announce minimal changes without affecting the new feature. They explain away the fuss with public relations spin ... This strategy works, time and time again."

See also, related TLJ stories:

• "EPIC Complains to FTC About Facebook's Privacy Related Practices" in TLJ Daily E-Mail Alert No. 2,024, December 17, 2009.
• "Representatives Markey and Barton State That Facebook Tracking of Users Violates FTC Act" in TLJ Daily E-Mail Alert No. 2,305, September 28, 2011.

12/17. The U.S. Court of Appeals (9thCir) issued its opinion [21 pages in PDF] in Washington Shoe v. A-Z Sporting Goods, a copyright case involving the issue of personal jurisdiction over a distant defendant. The Court of Appeals took a minimalist view of due process, minimum contacts, and purposefully directing activities at the forum state.

This opinion suggests that a distant defendant can be hauled into federal court in the 9th Circuit when its only contacts with the forum state are allegations of intentional infringement of intellectual property rights of an in forum rights holder, and receipt of cease and desist letters from that rights holder.

A-Z Sporting Goods operates a physical store located in the state of Arkansas. It sold children's rain boots that it purchased from China. These boots were counterfeit knock offs of boots made by the Seattle based Washington Shoe Company (WSC).

A-Z has no facilities or employees in Washington. It has no web store that sells to customers in Washington. WSC sent A-Z cease and desist letters. A-Z then ceased selling the knock off boots in its one store, but sold the remainder to a thrift store.

WSC filed a complaint in the U.S. District Court (WDWash) alleging copyright infringement, trade dress infringement, and unfair competition. A-Z filed a motion to dismiss for lack of personal jurisdiction, which the District Court granted. The Court of Appeals reversed.

The Court of Appeals applied the 9th Circuit's 2010 opinion [20 pages in PDF] in Brayton Purcell v. Recordon & Recordon, also known as Brayton Purcell II, 606 F.3d 1124. That opinion states that the three part test for whether there is specific jurisdiction is as follows:

"(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;
(2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and
(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable."

In the present case, the Court of Appeals focused on the first prong. It wrote that the act of selling the remaining boots to a thrift shop was a purposeful act. And, since A-Z had received letters from WSC stating that it was based in Washington, and that it was a rights holder, A-Z directed its purposeful activity at the state of Washington.

This case is Washington Shoe Company v. A-Z Sporting Goods, Inc. et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. Nos. 11-35166 and 11-35206, appeals from the U.S. District Court for the Western District of Washington, D.C. No. 2:09-cv-01042-RSL, Judge Robert Lasnick presiding. Judge Jay Bybee wrote the opinion of the Court of Appeals, in which Judges Carlos Bea and Michael Hawkins joined.

12/17. The U.S. Court of Appeals (FedCir) issued its opinion [14 pages in PDF] in Intel v. Negotiated Data, a patent infringement case involving the effect on reissue patents of an earlier patent cross licensing agreement in the semiconductor industry, known in this case as the "National Agreement".

Negotiated Data alleged infringement of the reissue patents. The U.S. District Court (EDTex) granted summary judgment of license and noninfringement in favor of Intel. The Court of Appeals affirmed on the grounds that Intel is licensed to practice the reissue patents in suit.

The Court of Appeals wrote that "At bottom, the scheme set forth in § 252 does not support Intel’s simplistic proposition that a reissue patent replaces the original patent nunc pro tunc. The question remains, however, whether the National Agreement itself is properly interpreted, under California law, to extend the license granted thereunder to the Reissue Patents."

It held that it does. "The National Agreement does not explicitly discuss reissue patents, but the grant of license under the National Patents is without limitation and without reference to any specific claims. The Agreement thus evinces the parties’ intent that the license so granted extend not only to the claims then in existence but also to the full scope of any coverage available by way of reissue for the invention disclosed. To interpret the Agreement otherwise would allow the unilateral act of the licensor to place the licensee, which sought to eliminate any infringement risk and effect a global peace with the licensor for all claims in all patents, in a position of being exposed to further risk relating to the exact same inventions that were subject to the license."

This case is Intel Corporation v. Negotiated Data Solutions, Inc., U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 2011-1448, an appeal from the U.S. District Court for the Eastern District of Texas, D.C. Nos. 08-CV-0319 and 11-CV-0247, Judge David Folsom presiding. Judge Linn wrote the opinion of the Court of Appeals, in which Judges Prost and Wallach joined.

12/17. Sen. Daniel Inouye (D-HI) died.

12/17. South Carolina Governor Nikki Haley appointed Rep. Tim Scott (R-SC) to fill the seat vacated by the resignation of former Sen. Jim DeMint (R-SC). Rep. Scott (at right) was first elected to the House of Representatives in 2010. DeMint resigned to become head of the Heritage Foundation. See, story titled "Sen. DeMint to Leave Senate to Lead Heritage Foundation" in TLJ Daily E-Mail Alert No. 2,485, December 7, 2012.

12/13. Yahoo named Max Levchin to its board of directors. See, release.

12/18. Nielsen Holdings announced in a release that "it has signed a definitive agreement to acquire Arbitron".

12/17. The Federal Trade Commission (FTC) granted early termination on December 14 of the HSR waiting period for the transaction involving Thoma Bravo Fund X, L.P., SRS Software, Inc., and SRS Software, LLC.. See, FTC notice of December 17. SRS Software provides electronic health records software and health information technology.

12/17. Sprint announced in a release that it "has entered into a definitive agreement to acquire the approximately 50 percent stake in Clearwire ... it does not currently own for $2.97 per share, equating to a total payment to Clearwire shareholders, other than Sprint, of $2.2 billion."

12/17. The U.S. Court of Appeals (9thCir) issued its amended opinion [22 pages in PDF] in US v. Oliva, a case regarding law enforcement intercepts of cell phone conversations under the Wiretap Act. The Court of Appeals affirmed the District Court's denial of a motion to suppress evidence obtained from wiretaps. The surveillance orders at issue authorized the government to tap "background conversations intercepted in the vicinity of [a target phone number] while the telephone is off the hook or otherwise in use". (Brackets in Court of Appeals opinion.) The opinion also addresses standing to challenge admissibility of wiretap evidence. This case is US v. Jorge Ortiz Oliva and US v. Pablo Barajas Lopez, U.S. Court of Appeals for the 9th Circuit, App. Ct. Nos. 10-30126 and 10-30134, appeals from the U.S. District Court for the District of Oregon. Judge Raymond Fisher wrote the opinion of the Court of Appeals, in which Judges Richard Paez and Richard Clifton joined.

12/17. The U.S. Court of Appeals (FedCir) issued its divided opinion [24 pages PDF] in IGT v. Alliance Gaming, a patent and antitrust case involving computerized gaming machines and systems. The Court of Appeals affirmed the judgment of the U.S. District Court (DNev). This case is IGT v. Alliance Gaming Corporation, et al., U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 2011-1166, an appeal from the U.S. District Court for the District of Nevada, D.C. No. 04-CV-1676, Judge Robert Jones presiding. Judge Jimmie Reyna wrote the opinion of the Court of Appeals, in which Judge Linn joined. Judge Bryson dissented.

12/17. The Government Accountability Office (GAO) released a report [31 pages in PDF] titled "Export Controls: Compliance and Enforcement Activities and Congressional Notification Requirements under Country-Based License Exemptions".

12/13. The Government Accountability Office (GAO) released a report [36 pages in PDF] titled "Electronic Health Records: Number and Characteristics of Providers Awarded Medicaid Incentive Payments for 2011".

12/17. The Electronic Frontier Foundation (EFF) released a chart titled "E-Reader Privacy Chart, 2012 Edition" that describes the performance of nine e-readers on seven criteria.

12/13. Nokia announced in a release that the U.S. District Court (SDNY) dismissed with prejudice the complaint in Chmielinski v. Nokia. The plaintiffs filed this putative class action securities complaint on May 4, 2012.

12/11. Microsoft announced in a release that it and EINS SE "signed a patent licensing agreement that provides broad coverage under Microsoft's patent portfolio for EINS devices running the Android platform." EINS makes Android tablets in Germany.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. The House will consider numerous items under suspension of the rules, including HR 6621 [LOC | WW], an untitled bill that would make numerous changes to the Patent Act, HR 2471 [ LOC | WW], a bill to amend the Video Privacy Protection Act (VPPA), and S 3642 [ LOC | WW], the "Theft of Trade Secrets Clarification Act of 2012". See, Rep. Cantor's schedule. See also, story titled "House to Take Up Tech Bills" in TLJ Daily E-Mail Alert No. 2,491, December 15, 2012.

The Senate will meet at 10:00 AM. It will resume consideration of HR 1 [LOC | WW], the vehicle for the supplemental appropriations bill.

Day one of a two day closed meeting of the U.S.-China Joint Commission on Commerce and Trade.

8:30 AM - 5:00 PM. Day one of a two day meeting of the National Institute of Standards and Technology's (NIST) Smart Grid Advisory Committee. The agenda includes presentations on cyber security coordination. See, notice in the Federal Register, Vol. 77, No. 230, November 29, 2012, at Pages 71169-71170. Location: NIST, Lecture Room A, Administration Building, 100 Bureau Drive, Gaithersburg, MD.

9:30 - 11:30 AM. The Senate Banking Committee's (SBC) Subcommittee on Securities, Insurance, and Investment will hold a hearing titled "Computerized Trading Venues: What Should the Rules of the Road Be?". See, notice. Location: Room 538, Dirksen Building.

12:30 - 2:00 PM. The American Bar Association (ABA) will host an on site and webcast panel discussion titled "Upturn Downturn -- Should Antitrust Care?". The speakers will be Jeffrey Jacobovitz (McCarthy Sweeney & Harkaway), Michele Lee (Visa), Richard Parker (O'Melveny & Myers), Albert Foer (American Antitrust Institute), and Robert Levinson (Charles River Associates). Free. No CLE credits. See, notice. Location: O’Melveny & Myers, 10th floor, 1625 Eye St., NW.

1:00 - 2:00 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "International Data Governance and Legal Issues in New Data-Related Service Models". The speakers will be Ken Dreifach (ZwillGen), Gregory Voss (Toulouse Business School), and Jonathan Rubens (Javid Rubens). Prices vary. CLE credits. See, notice.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "Navigating the Right of Publicity in the Age of Social Media". The speakers will be Sarah Bro (McDermott Will & Emery), Vineeta Gajwani (Electronic Arts), Lindy Herman (Wang Hartmann Gibbs & Cauley), and Lynne Boisineau (McDermott Will & Emery). Prices vary. CLE credits. See, notice.

2:00 PM. The Public Knowledge (PK) will host a teleconferenced event titled "Post WCIT Press Call". The speaker will be the PK's Harold Feld. The dial in number is 424-203-8400. The access code is 358683#.

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

3:00 - 4:30 PM. The Center for Strategic and International Studies (CSIS) will host a panel discussion titled "Japan's Election Result and the U.S.-Japan Alliance" The speakers will be Yoshihisa Komori (Sankei Shimbun), Kurt Tong (Deputy Chief of Mission, U.S. Embassy, Tokyo), and Michael Green (CSIS). See, notice. Location: CSIS, basement conference room, 1800 K St., NW.

LOCATION CHANGE. 3:30 PM. The Senate Commerce Committee (SCC) will hold an executive session at which it vote on numerous nominations, including Mignon Clyburn (FCC) and Joshua Wright (FTC). See, notice. Location: Room S-216, Capitol Building.

4:30 PM. The House Intelligence Committee (HIC) will hold a closed hearing titled "Ongoing Intelligence Activities". See, notice. Location: Room HVC-304. Capitol Visitor Center.

TIME? The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) will hold another in a series of meetings regarding consumer data privacy in the context of mobile applications. See, notice in the Federal Register, Vol. 77, No. 149, August 2, 2012, Pages 46067-46068. See also, NTIA web page titled "Privacy Multistakeholder Process: Mobile Application Transparency". Location?

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [42 pages in PDF] regarding disability access to televised emergency information. This NPRM is FCC 12-142 in MB Docket No. 12-107. The FCC adopted it on November 16, and released the text on November 19. See, notice in the Federal Register, Vol. 77, No. 229, November 28, 2012, at Pages 70970-70987.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. See, Rep. Cantor's schedule.

Day two of a two day closed meeting of the U.S.-China Joint Commission on Commerce and Trade.

8:30 AM - 12:00 NOON. Day one of a two day meeting of the National Institute of Standards and Technology's (NIST) Smart Grid Advisory Committee. The agenda includes presentations on cyber security coordination. See, notice in the Federal Register, Vol. 77, No. 230, November 29, 2012, at Pages 71169-71170. Location: NIST, Lecture Room A, Administration Building, 100 Bureau Drive, Gaithersburg, MD.

9:00 AM - 3:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) HIT Standards Committee will meet by webcast. Open to the public. See, notice in the Federal Register, Vol. 77, No. 210, October 30, 2012, at Pages 65690-65691.

10:00 AM. The House Intelligence Committee (HIC) will hold a closed hearing titled "Ongoing Intelligence Activities". See, notice. Location: Room HVC-304. Capitol Visitor Center.

12:00 NOON. Sen. John Rockefeller (D-WV) and Federal Trade Commission (FTC) Chairman Jonathan Leibowitz will hold a news conference to announce the release of the FTC's new COPPA rules. The Senate Commerce Committee (SCC) will webcast this event. Location: Room 253, Russell Building.

12:00 NOON - 2:00 PM. The Georgetown University's (GU) Georgetown Center for Business and Public Policy (GCBPP) will host an event titled "Challenge to the Net: What Happened in Dubai?" The speakers will be Jonathan McHale (Office of the U.S. Trade Representative, Deputy Assistant USTR for Telecommunications and Electronic Commerce Policy), Michael Wack (Department of State, Office of the U.S. Coordinator for International Communications and Information Policy), David Gross (Wiley Rein), Amy Alvarez (AT&T), and Jacquelynn Ruff (Verizon Communications). Lunch will be served. Twitter #GCBPPontheHill. See, notice and registration page. Location: Room B-318, Rayburn Building..

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. See, Rep. Cantor's schedule.

9:00 AM. The House Intelligence Committee (HIC) will hold a closed business meeting. The agenda includes "Investigative Report on the U.S. National Security Issues Posed by Chinese Telecommunications Companies Huawei and ZTE". See, HIC notice. See also, story titled "House Intelligence Committee Report Finds Huawei and ZTE Could Undermine US National Security" in TLJ Daily E-Mail Alert No. 2,461, October 15, 2012. Location: Room HVC-304, Capitol Visitor Center.

9:30 AM. The House Intelligence Committee (HIC) will hold a closed hearing titled "Ongoing Intelligence Activities". See, notice. Location: Room HVC-304. Capitol Visitor Center.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda contains no technology related items. Location: Room 226, Dirksen Building.

12:00 NOON - 1:30 PM. The Center for Strategic and International Studies (CSIS) will host panel discussion titled "The Results and Impact of the 2012 Korean Presidential Elections". See, notice. Location: CSIS, basement conference room, 1800 K St., NW.

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

Rep. Cantor's schedule states that the House will meet at 9:00 AM for legislative business.

Deadline to submit requests to participate in the U.S. Patent and Trademark Office (USPTO) January 11, 2013 roundtable on the possibility of changing USPTO rules of practice to require the disclosure of real party in interest information during patent prosecution and at certain times post-issuance. See, notice in the Federal Register, Vol. 77, No. 227, November 26, 2012, at Pages 70385-70389. See also, story titled "USPTO to Host Roundtable on Requiring Real Party in Interest Disclosures" in TLJ Daily E-Mail Alert No. 2,483, December 5, 2012.

EXTENDED TO JANUARY 25. Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [205 pages in PDF] regarding incentive auctions. The FCC adopted this NPRM on September 28, and released the text on October 2. It is FCC 12-118 in Docket No. 12-268. See, notice in the Federal Register,  Vol. 77, No. 225, November 21, 2012, at Pages 69933-69992. See also, stories titled "FCC Adopts NPRM on Incentive Auctions" and "FCC Adopts Spectrum Aggregation NPRM" in TLJ Daily E-Mail Alert No. 2,455, October 1, 2012. See, extension notice in the Federal Register, Vol. 77, No. 239, December 12, 2012, at Page 73969.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) regarding implementation of Phase II of the Mobility Fund, which pertains to universal service fund subsidies for mobile broadband. The FCC released this PN on November 27, 2012. It is DA 12-1853 in WC Docket No. 10-90 and WT Docket No. 10-208.  See, notice in the Federal Register, Vol. 77, No. 238, December 11, 2012, at Pages 73586-73589.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [50 pages in PDF] regarding spectrum aggregation limits and analyzing spectrum holdings. The FCC adopted and released this item on September 28, 2012. It is FCC 12-119 in WT Docket No. 12-269. See, notice in the Federal Register Vol. 77, No. 195, October 9, 2012, at Pages 61330-61350. See also, TLJ story titled "FCC Adopts Spectrum Aggregation NPRM" in TLJ Daily E-Mail Alert No. 2,455, October 1, 2012.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [18 pages in PDF] regarding the amateur radio service. The FCC adopted this NPRM on October 1, 2012, and released the text on October 2. It is FCC 12-121 in WT Docket Nos. 12-283 and 09-209. See, notice in the Federal Register, Vol. 77, No. 206, October 24, 2012, at Pages 64947-64949.

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

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