1/14. President Obama signed three bills that contain technology related provisions. First, he signed HR 6621 [LOC | WW], an untitled bill that would make numerous non-controversial changes to patent law.

Rep. Lamar Smith (R-TX) introduced this bill on November 30, 2012. See, story titled "Rep. Smith Introduces Patent Bill" in TLJ Daily E-Mail Alert No. 2,487, December 10, 2012. The House passed this bill on December 18. See, story titled "House Passes Rep. Smith's Patent Bill" in TLJ Daily E-Mail Alert No. 4,494, December 19, 2012.

The Senate passed it on December 28, but deleted one controversial provision regarding pre-GATT patent applications. The Senate passed a substitute amendment offered by Sen. Patrick Leahy (D-VT) and Sen. Charles Grassley (R-IA). See, "Senate Amends and Passes Rep. Smith's Patent Bill" in TLJ Daily E-Mail Alert No. 2,499, December 30, 2012. The House then passed the Senate version on January 1, 2013. See, story titled "House Passes Smith Patent Bill" in TLJ Daily E-Mail Alert No. 2,501, January 1, 2013.

Second, President Obama signed HR 6029 [LOC | WW], the "Foreign and Economic Espionage Penalty Enhancement Act of 2012," a bill to increase the maximum fines.

Rep. Lamar Smith (R-TX), Rep. John Conyers (D-MI), and others introduced this bill on June 27, 2012. See, story titled "Representatives Introduce Bill to Increase Penalties for Economic Espionage" in TLJ Daily E-Mail Alert No. 2,405, July 9, 2012. The House passed this bill on August 1. See, story titled "House Passes Bill that Increases Penalties for Economic Espionage" in TLJ Daily E-Mail Alert No. 2,418, August 2, 2012.

The Senate amended and passed this bill on December 19, 2012. See, story titled "Senate Passes Economic Espionage Penalties Bill" in TLJ Daily E-Mail Alert No. 2,496, December 21, 2012. The House then passed this Senate version on January 1, 2013. See, story titled "House Passes Senate Version of Foreign and Economic Espionage Penalty Enhancement Act of 2012" in TLJ Daily E-Mail Alert No. 2,501, January 1, 2013.

Third, President Obama signed S 3454 [LOC | WW], the "Intelligence Authorization Act for Fiscal Year 2013". See, White House news office release.

1/15. The U.S. Court of Appeals (DCCir) issued its opinion in Echostar v. FCC, granting the petitions for review of the Federal Communications Commission's (FCC) encoding rules for satellite companies, and vacating.

On December 19, 2002, fourteen consumer electronics companies and seven cable operators announced that they entered into a Memorandum of Understanding (MOU) regarding a national plug and play standard between digital television (DTV) products and digital cable systems. However, the MOU contemplated imposing rules, not only on cable service providers, but all multichannel video programming distributors (MVPDs). The FCC then implemented this MOU with rules.

It issued a Further Notice of Proposed Rulemaking (FNPRM) regarding a proposed set of rules pertaining to plug and play cable compatibility. It received comments. It then released a Second Report and Order and Second Further Notice of Proposed Rulemaking (R&O). This R&O was FCC 03-225 in CS Docket 97-80 and PP Docket 00-67. The FCC also later released an Order on Reconsideration (OR).

See also, stories titled "FCC Seeks Comments on Cable TV Plug and Play MOU" in TLJ Daily E-Mail Alert No. 581, January 13, 2003, and "Comment Period Closes in FCC's Plug and Play Cable Compatibility Rulemaking Proceeding" in TLJ Daily E-Mail Alert No. 655, May 5, 2003, and "FCC Adopts Digital Plug and Play Cable Compatibility Rules" in TLJ Daily E-Mail Alert No. 737, September 11, 2003.

Echostar Satellite (now Dish Network) is a direct broadcast satellite (DBS) service provider. It challenged both the R&O and OR on the grounds that they impose encoding rules, which limit the means of encoding that cable and DBS service providers may employ to prevent unauthorized access to their broadcasts. Dish argued that the FCC lacked statutory authority to impose these encoding rules on DBS service providers, and that they are arbitrary and capricious.

The Court of Appeals held that the FCC lacked statutory authority to impose these encoding rules on DBS service providers. It did not reach the arbitrary and capricious argument. The Court of Appeals granted the petitions, and vacated.

The FCC argued that it had statutory authority under Section 629(a) of the Telecommunications Act of 1996, which is codified at 47 U.S.C. § 549(a).

It provides that the FCC "shall, in consultation with appropriate industry standard-setting organizations, adopt regulations to assure the commercial availability, to consumers of multichannel video programming and other services offered over multichannel video programming systems, of converter boxes, interactive communications equipment, and other equipment used by consumers to access multichannel video programming and other services offered over multichannel video programming systems, from manufacturers, retailers, and other vendors not affiliated with any multichannel video programming distributor."

The Court wrote that "§ 629 provides no explicit textual basis for the encoding rules", and the FCC's interpretation founders on the second step of the test set by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Development Council, 467 U.S. 837 (1984).

The FCC also argued that it had ancillary authority under Section 629 and Section 624A of the Communications Act, which is codified at 47 U.S.C. § 544a, which gives the FCC rule making authority with respect to compatibility between electronics equipment and "cable systems".

The Court wrote that "The FCC contends the encoding rules are reasonably ancillary to its mission of assuring the commercial availability of navigation devices because they removed one of the ``stumbling blocks´´ to the consumer electronics industry's production of such equipment for retail: the ``inability of industry to agree on a comprehensive set of technical copy protection measures and corresponding encoding rules´´ that would ``ensure the availability of high value content to consumers in a protected digital environment.´´ ... Yet by this standard, there is little the FCC could not regulate in the name of fulfilling § 629's mandate."

The National Cable and Telecommunications Association (NCTA) intervened in support of the FCC. It wrote in its brief that "Section 624A provides the Commission authority to adopt such rules with respect to cable operators. If Section 629 means anything, it means that the Commission now has authority to apply the same encoding rules to all MVPDs. On that basis, the Court should affirm the encoding rules."

This case is Echostar Satellite LLC v. FCC and USA, respondents, and National Cable and Telecommunications Association, intervenor, U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 04-1033 and 04-1109, petitions for review of a final order of the FCC. Judge Brown wrote the opinion of the Court of Appeals, in which Judge Randolph joined. Judge Edwards wrote a concurring opinion.

1/11. Aaron Schwartz, a troubled young programmer who was facing criminal charges related to hacking and theft of academic articles, hung himself.

He held a deep disrespect for intellectual property rights in works that contain contributions to knowledge. He used his skills in programming, hacking, breaking and entering, and online distribution to make available millions of such works for free.

He stood apart from most other prosecuted hackers and copyright infringers in several respects. For example, he focused on works that contributed to knowledge, such as scientific and academic journal articles and judicial opinions, rather than music, movies, games, and productivity software. Also, he did not seek to financially profit from his theft of other people's works.

One of his projects resulted in federal criminal charges -- theft and redistribution of 4.8 million JSTOR system articles.

JSTOR Criminal Case. On July 19, 2011, the U.S. District Court (DMass) unsealed an indictment [15 pages in PDF], returned by a grand jury on July 14, 2001, that charged Schwartz with unauthorized access to a protected computer system in violation of 18 U.S.C. § 1030, and wire fraud, in connection with his unauthorized accessing of the Massachusetts Institute of Technology's (MIT) computer systems to download digital copies of 4.8 million articles from academic journals in the JSTOR system.

The indictment stated that "JSTOR generally charges libraries, universities, and publishers a subscription fee for access to JSTOR's digitized journals" and does not permit users "to download or export content from its computer servers with automated computer programs such as web robots, spiders and scrapers".

The indictment detailed a long running effort by Schwartz, which began on September 24, 2010, and ended on January 6, 2011, to evade repeated countermeasures taken my MIT and JSTOR to block his downloading.

The indictment alleged that Schwartz, among other things, "contrived to ... break into a restricted computer wiring closet at MIT ... access MIT's network without authorization from a switch within that closet ... connect to JSTOR's archive of digitized journal articles through MIT's computer network ... use this access to download a major portion of JSTOR's archive onto his computers and computer hard drives ... avoid MIT's and JSTOR’s efforts to prevent this massive copying, measures which were directed at users generally and at Swartz’s illicit conduct specifically; and ... elude detection and identification".

He was not affiliated with MIT.

U.S. Attorney Carmen Ortiz (at right) stated at the time in a release that "Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars. It is equally harmful to the victim whether you sell what you have stolen or give it away."

See also, story titled "Grand Jury Returns Indictment for Unauthorized Downloading of 4.8 Million JSTOR Articles" in TLJ Daily E-Mail Alert No. 2,264, July 20, 2011.

This case is U.S.A. v. Aaron Schwartz, U.S. District Court for the District of Massachusetts, D.C. No. 1:11-cr-10260-NMG.

Schwartz's Political Activities. Schwartz also campaigned against the Stop Online Piracy Act and PROTECT IP Act. See, HR 3261 [LOC | WW], the "Stop Online Piracy Act" or "SOPA", and S 968 [LOC | WW], the "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011", "PROTECT IP Act", or "PIPA".

He gave a speech [22:52 minutes in YouTube] on May 21, 2012 titled "How We Stopped SOPA".

Schwartz also wrote a piece titled "Guerilla Open Access Manifesto" in 2008 in which he stated that "The world's entire scientific and cultural heritage, published over centuries in books and journals, is increasingly being digitized and locked up by a handful of private corporations."

"Large corporations, of course, are blinded by greed. The laws under which they operate require it -- their shareholders would revolt at anything less. And the politicians they have bought off back them, passing laws giving them the exclusive power to decide who can make copies."

"There is no justice in following unjust laws. It's time to come into the light and, in the grand tradition of civil disobedience, declare our opposition to this private theft of public culture." Schwartz continued that "We need to take information, wherever it is stored, make our copies and share them with the world. ... We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks. We need to fight for Guerilla Open Access."

Commentary on Section 1030. Section 1030 is a broadly and vaguely worded statute. It does enable the government to prosecute malicious hackers who deserve hard time in a federal penitentiary. However, it also enables abusive application in both private rights of action and criminal prosecutions.

Its flexibility enables lawyers in civil cases to manufacture diversity jurisdiction in some cases otherwise comprised entirely of state law claims. It has also been used by employers against former employees for normal computer and network uses. See, story titled "7th Circuit Applies Computer Hacking Statute to Use of Trace Removers on Employee Laptops" in TLJ Daily E-Mail Alert No. 1,326, March 9, 2006, and story titled "9th Circuit Construes Meaning of Without Authorization in Section 1030" in TLJ Daily E-Mail Alert No. 1,983, March 15, 2009.

In criminal cases, there is no consensus regarding just which cases lack merit. For example, some criticized the prosecutions of Schwartz or Lori Drew under Section 1030 as prosecutorial abuse. Others defended these prosecutors.

See, stories titled "Lori Drew Pleads Not Guilty in Section 1030 Case" in TLJ Daily E-Mail Alert No. 1,794, June 23, 2008, "Law Professors Argue for Dismissal of MySpace Section 1030 Prosecution" in TLJ Daily E-Mail Alert No. 1,810, August 11, 2008, and "Jury Returns Guilty Verdict in Lori Drew Case" in TLJ Daily E-Mail Alert No. 1,865, December 2, 2008.

See also, stories titled "Groups Urge Reform of Section 1030" in TLJ Daily E-Mail Alert No. 2,279, August 4, 2011, and "SECURE IT Act Addresses TOS Violations and Lori Drew" in TLJ Daily E-Mail Alert No. 2,367, April 10, 2012.

More Information. Schwartz was one of the developers of RSS. Later, he was one of the founders of Reddit, which Conde Nast acquired in late 2006. Schwartz left the company in 2007.

The U.S. Attorney, Ortiz, filed a Dismissal on January 14.

1/15. Authors Guild (AG) published a short piece on January 14 titled "Condé Nast Moves to Seize, Lowball Freelancers' Film/TV Rights", and another short piece on January 15 titled "Condé Nast query: What makes a rights grab?" The AG complains that Conde Nast, which owns Ars Technica, Wired, The New Yorker, and numerous other publications, has changed its standard contract for free lance writers to obtain an option in dramatic and multimedia rights to articles appearing in its magazines. See also, January 13, 2013 article in the New York Times by Christine Haughney titled "Condé Nast Writer Deals Stir Dispute".

1/15. David Kappos, head of the U.S. Patent and Trademark Office (USPTO), wrote a short piece titled "Interviews and Patent Quality". He wrote that "well-documented interviews lead to high quality patents by enhancing understanding and issue-resolution for both applicants and examiners". Moreover, the USPTO has just analyzed data to back this up. Kappos wrote that "The findings, which are statistically significant, show that interviews conducted prior to final disposition (allowance or final rejection) of the application increase the probability that the subsequent action will be in full compliance with all applicable quality standards. The data shows that interviews help decrease both improper allowances and improper rejections by approximately 40 percent compared to applications without interviews prior to the final disposition." (Parentheses in original.)

1/15. The U.S. Court of Appeals (1stCir) issued its opinion in Latin American Music v. Media Power Group, a music copyright infringement case. The main issue was proof of ownership of copyrights. The plaintiff, Latin American Music, lost in the District Court as to all copyrights, either on summary judgment, or by jury verdict. The Court of Appeals affirmed the judgment of the District Court. This case is Latin American Music Co., Inc., et al.  v. Media Power Group Inc., et al., U.S. Court of Appeals for the 1st Circuit, App. Ct. No. 11-2108, an appeal from the U.S. District Court for the District of Puerto Rico. Judge Howard wrote the opinion of the Court of Appeals, in which Judges Torruella and Thompson joined.

The House will not meet.

The Senate will not meet.

Day two of a three day conference hosted by the National Institute of Standards and Technology (NIST) titled "NIST Cloud Computing and Big Data Forum and Workshop". Free. See, NIST notice and notice in the Federal Register Vol. 77, No. 243, December 18, 2012, at Pages 74829-74830. Location: NIST, Red Auditorium, Administration Building, 100 Bureau Drive, Gaithersburg, MD.

10:00 AM. The Supreme Court will hear oral argument in City of Arlington v. FCC (Sup. Ct. No. 11-1545) and Cable, Telecommunications and Technology v. FCC (Sup. Ct. No. 11-1547). See, Supreme Court calendar. See also, FCC merits brief. At issue is whether, in reviewing an agency's interpretation of its statutory authority, a court should apply the two part analysis set forth in Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984). Location: Supreme Court, 1 First St., NW.

10:00 AM. Sen. Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee (SJC), will give a speech titled "The Agenda for the Senate Judiciary Committee for the 113th Congress". Reporters may register by contacting mediarelations at law dot georgetown dot edu. Location: Georgetown University law school, Hart Auditorium, McDonough Hall, 600 New Jersey Ave., NW.

12:00 NOON - 1:30 PM. The Georgetown Center for Business and Public Policy (GCBPP) will host a panel discussion titled "U.S. Trade Policy: Where We've Been and Where We're Going". The speakers will be Linda Dempsey (National Association of Manufacturers), Bill Reinsch (National Foreign Trade Council), Howard Rosen (Peterson Institute for International Economics), Bradford Jensen (GCBPP), and Robert Vastine (GCBPP). Location: Room B-318, Rayburn Building.

12:10 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Wireline Committee will host a brown bag lunch titled "The Lifeline Broadband Pilot Program". Location: Wiley Rein, 1750 K St., NW.

4:00 - 5:30 PM. The American Enterprise Institute (AEI) will host an on site and webcast event titled "Still a series of tubes? The dynamic Internet and competition policy". The speakers will be Jeffrey Eisenach (Navigant Economics), Christopher Yoo (University of Pennsylvania law school), Jonathan Nuechterlein (Wilmer Hale), and Kevin Hassett (AEI). See, notice. Free. Open to the public. Location: AEI, 12th Floor, 1150 17th St., NW.

The House will not meet. See, House calendar for 113th Congress, 1st Session.

The Senate will not meet.

Day three of a three day conference hosted by the National Institute of Standards and Technology (NIST) titled "NIST Cloud Computing and Big Data Forum and Workshop". Free. See, NIST notice and notice in the Federal Register Vol. 77, No. 243, December 18, 2012, at Pages 74829-74830. Location: NIST, Red Auditorium, Administration Building, 100 Bureau Drive, Gaithersburg, MD.

10:00 AM - 1:00 PM. The Department of Commerce's (DOC) National Telecommunications and Information Administration's (NTIA) Commerce Spectrum Management Advisory Committee will meet. See, notice in the Federal Register, Vol. 77, No. 224, November 20, 2012, at Pages 69597-69598. Location: DOC, Hoover Building, Room 4830, 1401 Constitution Ave., NW.

1:00 - 5:00 PM. The National Telecommunications and Information Administration (NTIA) will hold another in its series of meetings regarding mobile application transparency. See, notice. This event will also be teleconferenced. The dial in number is 888-957-9870 or 210-839-8914. The passcode is "privacy msh". Location: American Institute of Architects, 1735 New York Ave.,  NW.

1:00 PM. The US Telecom will host a webcast presentation titled "LTE Essentials". The speaker will be Annabel Dodd (Northeastern University). See, notice.

5:15 - 6:45 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Chased by the Dragon: Competition and Innovation in China and the United States". The speakers will be Robert Atkinson (ITIF), Nicholas Bloom (Stanford), Philip Levy (University of Virginia), Jimmy Goodrich (ITIC), and Alan Wolff (McKenna Long & Aldridge). See, notice. Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.

6:00 - 7:30 PM. The Federal Communications Bar Association's (FCBA) International Committee will host a reception in honor of WCIT Ambassador Terry Kramer. Location: Wiley Rein, 1776 K St., NW.

Deadline to submit comments to the Federal Trade Commission (FTC) in response to its request for comments regarding how to "block illegal robocalls on landlines and mobile phones". The FTC states that this is a "competition". See, notice in the Federal Register, Vol. 77, No. 205, October 23, 2012, at Pages 64802-64808.

The House will meet at 3:00 PM in pro forma session. See, House calendar for 113th Congress, 1st Session.

The Senate will not meet.

Supreme Court conference day. See, Supreme Court calendar.

12:00 NOON. There will be a closed event titled "Evolving Your Facebook Strategy". The speaker will be Mary Nahorniak (USA Today Social Media Editor). This event is open only to members of the National Press Club (NPC). Sold out. See, notice. For more information, contact Anthony Shop at anthony at socialdriver dot com. Location: NPC, McClendon Room, 13th Floor, 529 14th St., NW.

Inauguration Day.

The House will meet. See, House calendar for 113th Congress, 1st Session.

The Senate will meet at 11:30 AM.

Martin Luther King's birthday. This is a federal holiday. See, OPM list of 2013 federal holidays.

The House will meet. See, House calendar for 113th Congress, 1st Session.

10:00 AM. The House Commerce Committee (HCC) will hold its organizational meeting for the 113th Congress. See, notice. Location: Room 2123, Rayburn Building.

3:30 - 5:15 PM. The American Enterprise Institute (AEI) will host an event titled "China in 2013 and Beyond". The speakers will be Frank Lavin (Export Now), Carolyn Bartholomew (US-China Economic and Security Review Commission), Dan Blumenthal (AEI), Phillip Swagel (AEI), and Danielle Pletka (AEI). Webcast. Free. Open to the public. See, notice. For more information, contact Lara Crouch at lara dot crouch at aei dot org or 202-862-7160. Location: AEI, 12th floor, 1150 17th St., NW.

5:00 PM. Deadline to submit reply comments to the Copyright Office (CO) in response to its notice in the Federal Register regarding its proposed fee schedule for filing cable and satellite statements of account. See, FR, Vol. 77, No. 235, December 6, 2012, at Pages 72788-72791.

Day one of a two day conference titled "State of the Net Conference". Prices vary. See, notice and registration page. Location: Hyatt Regency, 400 New Jersey Ave., NW.

Deadline to submit reply 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.

EXTENDED TO FEBRUARY 13. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding its licensing and operating rules for satellite services. The FCC adopted and released this NPRM on September 28, 2012. It is FCC 12-117 in IB Docket No. 12-267. See, original notice in the Federal Register, Vol. 77, No. 217, November 8, 2012, at Pages 67171-67201. See also, extension notice in the Federal Register, Vol. 77, No. 250, December 31, 2012, at Pages 77001-77002.

The House will meet. See, House calendar for 113th Congress, 1st Session.

Day two of a two day conference titled "State of the Net Conference". Prices vary. See, notice and registration page. Location: Hyatt Regency, 400 New Jersey Ave., NW.

1/15. The National Telecommunications and Information Administration (NTIA) released a discussion draft [5 pages in PDF] titled "Mobile App Voluntary Transparency Screens". The NTIA will host an on site and telecast meeting on this subject on Thursday, January 17 from 1:00 to 5:00 PM at the American Institute of Architects, 1735 New York Ave., NW. See, notice.

1/10. The California Department of Justice released a report [27 pages in PDF] titled "Privacy on the Go: Recommendations for the Mobile Ecosystem". It offers a "set of privacy practice recommendations to assist app developers, and others, in considering privacy early in the development process".

1/9. The Association for Competitive Technology (ACT) announced the launch of an "ACT 4 Apps Initiative" to "educate app makers on issues including privacy and data security". See, ACT release.

1/15. The National Telecommunications Cooperative Association (NTCA) appointed Don Richards of the law firm of Richards Elder & Green it chief counsel. See, NTCA release.

1/15. David Grim was named Deputy Director of the Securities and Exchange Commission's (SEC) Division of Investment Management. See, SEC release. Grim is a long time SEC employee.

1/15. Greg Berman was named Associate Director of the Securities and Exchange Commission's (SEC) Division of Trading and Markets' (DTM) Office of Analytics and Research. See, SEC release.

1/14. Gene Kimmelman joined the American Antitrust Institute's (AAI) Advisory Board. See, AAI release. He recently worked for three years in the Obama Antitrust Division. Before that he worked for the Consumers Union. He has also worked for the Senate Judiciary Committee's (SJC) antitrust subcommittee, and for Public Citizen's Congress Watch.

1/14. The Ontario Superior Court of Justice issued its judgment in Her Majesty The Queen v. Frank Dunn, Douglas Beatty and Michael Gollogly, finding the three former Nortel executives not guilty of financial fraud.

1/3. Member countries of the World Trade Organization (WTO) nominated nine persons for the position of WTO Director General. The nomination period closed on December 31, 2012. The nine are Roberto Carvalho de Azevêdo (Brazil), Taeho Bark (Korea), Tim Groser (New Zealand), Herminio Blanco (Mexico), Alan John Kwadwo Kyerematen (Ghana), Anabel González (Costa Rica), Mari Elka Pangestu (Indonesia), Amina Mohamed (Kenya), and Ahmad Thougan Hindawi (Jordan). The WTO stated in a release that "The selection process will conclude with a decision by the General Council no later than 31 May 2013.". The current DG is Pascal Lamy. His term expires on August 31, 2013.

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