7/25. The House passed S 517 [LOC | WW], the Senate version of the "Unlocking Consumer Choice and Wireless Competition Act", by unanimous consent on Friday afternoon, July 25, 2014. See, Congressional Record, July 25, 2014, at Pages H6835-6.

The Senate passed this bill on July 15. It is now ready for President Obama's signature.

This bill reinstates the Library of Congress's (LOC) 2010 DMCA exemption for unlocking cell phones. Sen. Patrick Leahy (D-VT) stated in a release that "Once the President signs this bill into law, consumers will be able to more easily use their existing cell phones on the wireless carrier of their choice."

The House passed its version of this bill, HR 1123 [LOC | WW], on February 25, 2014. See, story titled "House Passes Bill to Allow Consumers to Unlock Their Cell Phones" in TLJ Daily E-Mail Alert No. 2,630, February 25, 2014.

The Senate passed its version of this bill on July 15, 2014. See, story titled "Senate Passes Cell Phone Unlocking Bill" in TLJ Daily E-Mail Alert No. 2,675, July 16, 2014, and story titled "Senate Judiciary Committee Approves Phone Unlocking Bill" in TLJ Daily E-Mail Alert No. 2,673, July 14, 2014.

Reaction. The CTIA Wireless Association stated in a release that "Today's action by the House moves us closer to alleviating any confusion stemming from the Copyright Office’s 2012 decision and we await the President’s signature on the bill to compete this process. At the same time, it is important to note that CTIA’s members already committed to a set of voluntary principles that enable consumers interested in unlocking their devices to do so. Nonetheless, we greatly appreciate the care that Chairmen Leahy and Goodlatte took in crafting their legislation and avoiding the imposition of any new regulatory obligations on wireless providers."

Laura Moy of the Public Knowledge (PK) stated in a release on July 25 that "Not only will this legislation deliver on consumers' expectations that they can use devices they own the way they see fit, but it will have other positive effects as well. It will make it easier for consumers to switch from one provider to another, improving competition in the wireless market; it will improve the availability of free and low-cost secondhand phones for consumers who cannot afford to purchase new devices; and it will keep millions of devices out of landfills."

FCC Commissioner Ajit Pai stated in a release that "I applaud Congress for passing S. 517, the Unlocking Consumer Choice and Wireless Competition Act. This is a victory for American consumers. This legislation makes clear that Americans will not be subject to criminal prosecution or civil fines just for unlocking their wireless phones in order to move from one carrier to another. Contract law -- not copyright or criminal law -- should govern the relationship between consumers and wireless carriers. This measure will help the free market for wireless phones and services flourish -- freedom that I hope will soon extend to tablets and other wireless devices." See also, story titled "Pai Advocates Amending Definition of Circumvention to Exclude Wireless Device Unlocking" in TLJ Daily E-Mail Alert No. 2,579, June 18, 2013.

Bill Summary. This bill replaces the provision in the LOC's fifth triennial rules, which ended the exemption for unlocking phones, with the provision that had been in the LOC's fourth triennial rules, which provided an exemption for unlocking phones.

It also directs the LOC to determine in its next anti-circumvention exemptions rulemaking whether "to include any other category of wireless devices in addition to wireless telephone handsets".

It also allows consumers to receive assistance in unlocking their phones. It provides that unlocking "may be initiated by the owner of any such handset or other device, by another person at the direction of the owner, or by a provider of a commercial mobile radio service or a commercial mobile data service at the direction of such owner or other person, solely in order to enable such owner or a family member of such owner to connect to a wireless telecommunications network, when such connection is authorized by the operator of such network".

An earlier version of this bill, passed by the House on February 25, 2014, but not the version of the bill passed by both the House and Senate this month, would have also provided that "Nothing in this subsection shall be construed to permit the unlocking of wireless handsets or other wireless devices, for the purpose of bulk resale, or to authorize the Librarian of Congress to authorize circumvention for such purpose under this Act, title 17, United States Code, or any other provision of law."

Background on Unlocking. Unlocking is the circumvention of computer programs on mobile phones or tablets to enable such devices to connect to alternative wireless networks. (Although, this bill allows unlocking as to phones only. It provides for a study regarding tablets.)

Some carriers have employed the business practice of selling consumers phones at discounted prices, in return for the consumers signing wireless service contracts with a minimum fixed term. Carriers have used locking to, among other things, prevent these consumers from switching service providers. Locking has also been used to keep consumers from switching providers after contracts have expired.

There is no law that prohibits cell phone or tablet unlocking. However, there are contracts between service providers and consumers. (This bill would not abrogate any contracts.) Also, there is the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA), which are codified at 17 U.S.C. § 1201. Unlocking of wireless devices may violate the anti-circumvention provisions of the DMCA.

Subsection 1201(a)(1)(A) provides that "No person shall circumvent a technological measure that effectively controls access to a work protected under this title ...".

Then, § 1201(a)(2)(A) provides that "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that --- (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;"

Furthermore, § 1201(b)(1)(A) provides that "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that --- (A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; ..."

Then, Subsections 1201(a)(1)(B) through (E) provide for rulemaking proceedings conducted by the CO every three years to establish exemptions to the prohibition of (a)(1)(A) for certain non-infringing uses.

That is, the LOC conducts a proceeding every three years to adopt rules that create exemptions to the ban on circumvention. Nominally, the rules are adopted by the Librarian, but in practice the Register of Copyright, Maria Pallante, and her staff attorneys write these rules. These triennial rules are codified at 37 C.F.R. § 201.40.

The CO's fourth triennial rules contained exemptions related to unlocking. See, story titled "Copyright Office Releases 4th Triennial DMCA Exemptions" in TLJ Daily E-Mail Alert No. 2,115, July 30, 2010. The CO's fifth set of rules, now in effect, ended the exemption for unlocking phones at the end of January of 2013. See, story titled "Librarian of Congress Adopts 5th Triennial § 1201 Exemptions" in TLJ Daily E-Mail Alert No. 2,467, October 24, 2012. Hence, there is now no exemption.

The purpose of the exclusive rights of copyright is to incent creation, by protecting the creator's or assignee's ability to derive revenue from the sale, licensing or streaming or copyrighted works. The object of the DMCA is to further this purpose by banning circumvention of technological measures that effectively control access to copyrighted works.

The process of unlocking entails circumventing a technological measure that controls access to copyrighted software. There is copyrighted software on locked phones that enables those phone to connect to a wireless network.

But, that software is not being sold or licensed to consumers separate from the phones. Rather, it is part of the process of enforcing a business model that ties a phone to a wireless service contract. That is, the DMCA has been invoked by service providers in a manner not envisioned by the members of the Congress that enacted the DMCA back in 1998.

7/11. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register (FR) that announces, describes, recites, and requests comments on, proposed changes to its rules regarding the exchange of information and documents between patent offices.

The deadline to submit comments is September 9, 2014. See, FR, Vol. 79, No. 133, July 11, 2014, at Pages 40035-40040.

The USPTO proposes to add a "provision by which an applicant can authorize the Office to give a foreign IP office access to all or part of the file contents of an unpublished U.S. patent application in order to satisfy a requirement for information imposed on a counterpart application filed with the foreign intellectual property office".

The USPTO's FR notice explains that "Currently, for unpublished U.S. patent applications, applicants follow one regulatory provision to provide the Office with authorization for a foreign IP office to access an application-as-filed via a PDX program and follow another regulatory provision to provide the Office with authorization to share the file contents with a foreign IP office."

It adds that "The proposed changes to the rules will consolidate the specific provisions of the regulations by which applicants give the Office authority to provide a foreign IP office with access to an application in order to satisfy a requirement for information of the foreign IP office. Additionally, along with changes to the application data sheet (ADS) form, the proposed rule changes will simplify the process for how applicants provide the Office with the required authorization, thereby reducing the resources applicants must expend to comply with these foreign IP office requirements, and enhance the quality of patent examination."

7/9. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register (FR) that requests comments regarding optimal patent first action and total pendency target levels.

This notice states that its purpose "is to gather stakeholder input on optimal patent pendency levels. This information will be used to help the USPTO plan for patent pendency targets that are optimal for the Office, stakeholders, and the public at large."

"The current targets are ten month average first action pendency and twenty month average total pendency were established about five years ago in the USPTO's 2010-2015 Strategic Plan." See, that Plan.

The notice adds that "These targets have guided the USPTO in making significant reductions to pendency over the past four years, specifically: (1) A thirty percent reduction in average first action pendency, from an average first action pendency of 25.7 months in fiscal year (FY) 2010 to the current average first action pendency of 18.1 months; and (2) a twenty percent reduction in average total pendency, from an average total pendency of 35.3 months in FY 2010 to the current average total pendency of 28.1 months."

The deadline to submit comments is September 8, 2014. See, FR, Vol. 79, No. 131, July 9, 2014, at Pages 38854-38855.

Data published by the USPTO for Fiscal Year 2011 shows delays for information and communications technology related patents are far greater than the USPTO's targets.

7/25. The Federal Trade Commission (FTC), Telephone Science Corporation, and Twilio, Inc. will host a competition at the information security conference titled "DEF CON 22", to be held on August 7-10, 2014 in Las Vegas, Nevada.

The purpose of the competition is to incent people to develop information systems intended to attract perpetrators of illegal robocalls and gather knowledge about robocaller tactics.

The FTC will award monetary prizes to nine contestants totaling $17,423. See, notice in the Federal Register, Vol. 79, No. 143, July 25, 2014, at Pages 43466-43473.

The FTC stated also that "The vast majority of prerecorded sales calls are illegal under the Telemarketing Sales Rule unless the recipient has provided express written consent to receive them." See, 16 CFR § 310.4(b)(1)(v). Also, "The Telephone Consumer Protection Act also prohibits any type of call (other than a call made for emergency purposes) using automated telephone equipment or an artificial or prerecorded voice to a cellular telephone in the absence of prior express consent." See, 47 U.S.C. § 227(b)(1)(A)(iii).

See also, conference web site.

Tech Law Journal publishes a free access web site and a subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year for a single recipient. There are discounts for subscribers with multiple recipients.

Free one month trial subscriptions are available. Also, free subscriptions are available for federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until two months after writing.

For information about subscriptions, see subscription information page.

Tech Law Journal now accepts credit card payments. See, TLJ credit card payments page.

TLJ is published by David Carney
Contact: 202-364-8882.
carney at techlawjournal dot com
3034 Newark St. NW, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998-2014 David Carney. All rights reserved.

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

The Senate will not meet.

The House Science Committee (HSC) will meet to mark up HR 2996 [LOC | WW], the "Revitalize American Manufacturing and Innovation Act of 2013". See, amendment in the nature of a substitute to be considered. This bill states that its goals include increasing domestic production, improving U.S. competitiveness, and facilitating "access by manufacturing enterprises to capital-intensive infrastructure, including high-performance electronics and computing". It proposes to accomplish these goals by government planning and spending. See, notice. Location: Room 23__, Rayburn Building.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to Part VI(B-H) of its Further Notice of Proposed Rulemaking (FNPRM) regarding closed captioning of video programming. The FCC adopted this FNPRM on February 20, 2014, and released it on February 24, 2014. It is FCC 14-12 in CG Docket No. 05-231. See, notice in the Federal Register, Vol. 79, No. 59, March 27, 2014, at Pages 17093-17106.

Deadline to submit to the U.S. Patent and Trademark Office (USPTO) nominations for membership on the Patent Public Advisory Committee (PPAC) and the Trademark Public Advisory Committee (TPAC). See, notice in the Federal Register, Vol. 79, No. 118, June 19, 2014, Pages 35152-35153.

The House will meet at 12:00 NOON for morning hour, and at 2:00 PM for legislative business. The House will consider numerous bill under suspension of the rules, including HR 3696 [LOC | WW], the "National Cybersecurity and Critical Infrastructure Protection Act", HR 2952 [LOC | WW], the "The Critical Infrastructure Research and Development Act", HR 3107 [LOC | WW], the "Homeland Security Cybersecurity Boots-on-the-Ground Act", HR 3635 [LOC | WW], the "Safe and Secure Federal Websites Act of 2013", and HR 4490 [LOC | WW], the "United States International Communications Reform Act of 2014". Votes will postponed until 6:30 PM. See, Rep. Cantor's schedule.

The Senate will meet at 2:00 PM.

Day one of a two day event hosted by the Minority Media & Telecom Council (MMTC) titled "12th Annual Access to Capital and Telecom Policy Conference". See, notice. Location: Embassy Suites Convention Center Hotel, 900 10th St., NW.

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 event hosted by the Minority Media & Telecom Council (MMTC) titled "12th Annual Access to Capital and Telecom Policy Conference". See, notice. Location: Embassy Suites Convention Center Hotel, 900 10th St., NW.

9:30 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Judicial Nominations". Webcast. See, notice. Location: Room 226, Dirksen Building.

10:15 AM. The House Commerce Committee's (HCC) Subcommittee on Commerce, Manufacturing, and Trade will hold a hearing titled "Nanotechnology: Understanding How Small Solutions Drive Big Innovation". The witnesses will be __. Webcast. See, notice. Location: Room 2322, Rayburn Building.

12:00 NOON - 1:00 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "Blurred: Lines: Intersection of Antitrust and Consumer Protection". The topics to be discussed include false advertising and deception as a component of an antitrust claim, Retractable Technologies v. Becton Dickinson (USDC/EDTex, D.C. No. 07-CV-0250), and Section 5 of the FTC Act. The speakers will be Valentina Rucker (Wilson Sonsini), Christopher Cole (Crowell & Moring), Jonathan Klarfeld (Ropes & Gray), David Balto, and Diana Moss (American Antitrust Institute). The price to attend ranges from free to $25. No CLE credits. See, notice. Location: Wilson Sonsini, 5th floor, 1700 K St., NW.

1:00 -2:00 PM. The National Science Foundation's (NSF) National Science Board's (NSB) Committee on Strategy and Budget will hold a closed meeting by teleconference. See, notice in the Federal Register, Vol. 79, No. 142, July 24, 2014, at Page 43099.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "Surviving a Cyber Attack on Your Law Practice". The speakers will be Lucy Thomson, Randy Sabett, Jill Rhodes, and Vincent Polley. Prices vary. CLE credits. See, notice.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "Navigating Legal Issues of Healthcare in the Cloud". The speakers will be Jean Marie Pechette, Ericka Watson, and Dominique Shelton (Alston & Bird) The price to attend ranges from $150 to $195. CLE credits. See, notice.

2:00 - 5:00 PM. The House Foreign Affairs Committee's (HFAC) Subcommittee on Terrorism, Nonproliferation, and Trade will hold a hearing titled "A U.S.-EU Trade Agreement: Bolstering Economic and National Security". The witnesses will be Todd Cohen (eBay), James Jones, Jeffrey Schott (Peterson Institute for International Economics), and Celeste Drake (Trade and Globalization Policy Specialist). Webcast. See, notice. Location: Room 2172, Rayburn Building.

4:00 PM. The House Commerce Committee (HCC) will meet to begin its mark up several bills, including HR 3670 [LOC | WW], the "Anti-Spoofing Act of 2013", HR 5161 [LOC | WW], the "E-LABEL Act", and HR 1575 [LOC | WW], the "Kelsey Smith Act". This meeting is for opening statements only. Webcast. See, notice. Location: Room 2123, 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.

10:00 AM. The House Commerce Committee (HCC) will meet to conclude its mark up several bills, including HR 3670 [LOC | WW], the "Anti-Spoofing Act of 2013", HR 5161 [LOC | WW], the "E-LABEL Act", and HR 1575 [LOC | WW], the "Kelsey Smith Act". This meeting is for amendments, debate, and votes. Webcast. See, notice. Location: Room 2123, Rayburn Building.

10:00 AM. The Senate Homeland Security and Governmental Affairs Committee (SHSGAC) will hold a business meeting. The agenda includes consideration of S 2664 [LOC | WW], the "Integrated Public Alert and Warning System Authorization Act of 2014". See also, HR 3283 [LOC | WW], an IPAWs bill pending in the House. The House Homeland Security Committee (HHSC) approved it on April 30, 2014. Location: Room 342, Dirksen Building.

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing titled "Cramming on Wireless Phone Bills: A Review of Consumer Protection Practices and Gaps". The witnesses will be __. Location: Room 253, Russell Building.

3:00 PM. The House Judiciary Committee's (HJC) Subcommittee on Courts, Intellectual Property, and the Internet will hold a hearing titled "The U.S. Patent and Trademark Office: The America Invents Act and Beyond, Domestic and International Policy Goals". The witnesses will be __. See, notice. Location: Room 2141, Rayburn Building.

3:00 - 8:00 PM. The American Bar Association's (ABA) Section of International Law will host a program on the U.S. International Trade Commission (USITC) and its Section 337 intellectual property exclusion proceedings. The first panel will be comprised of USITC Commissioners. The deadline to submit questions for the Commissioners is July 23. The second panel is titled "Jurisdiction Under Section 337". The speakers will be Monty Fusco (Fish & Richardson), Barbara Murphy (Foster Murphy Altman & Nickel), Stephen Smith (Cooley), and Geoffrey Goodale (Trade Law Advisors). Section 337, which is codified at 19 U.S.C. § 1337, provides, in part, that "The importation into the United States, the sale for importation, or the sale within the United States after importation by the owner, importer, or consignee, of articles that ... infringe a valid and enforceable United States patent or a valid and enforceable United States copyright registered under title 17". This section empowers the USITC to issue exclusion orders. Refreshments and hors d'oeuvres will be served after the program. The price to attend is $25. No CLE credits. See, notice. Location: King & Spalding, Suite 200, 1700 Pennsylvania Ave., NW.

The House will meet at 9:00 AM for legislative business. See, Rep. Cantor's schedule.

9:30 AM - 5:00 PM. The DC Bar Association will host a program titled "Cybersleuth’s Guide to Effective Internet Research Strategies for Lawyers". The speakers will be Carole Levitt and Mark Rosch (both of Internet For Lawyers). The price to attend ranges from $169 to $219. CLE credits. For more information, call 202-626-3488. The DC Bar has a history of barring reporters from its events. See, notice. Location: DC Bar Conference Center, 1101 K St., NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes __. Webcast. See, notice. Location: Room 226, Dirksen Building.

12:00 NOON - 1:00 PM. The National Nanotechnology Coordination Office (NNCO) will host a webcast event to discuss its "Progress Review on the Coordinated Implementation of the National Nanotechnology Initiative (NNI) 2011 Environmental, Health, and Safety Research Strategy". See, notice in the Federal Register, Vol. 79, No. 140, July 22, 2014 at Pages 42559-42560.

12:00 NOON - 1:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "From Big Data to Cloud Computing: How IT is Creating a New Era of Disruptive Innovation". The speakers will be Robert Atkinson (ITIF), Daniel Castro (ITIF), Larry Downes (Tech Freedom), David Moschella (CSC), Malcolm Frank (Cognizant), Ben Pring (Cognizant), and Paul Roehrig (Cognizant). See, notice. Location: ITIF/ITIC, Suite 610, 1101 K St., NW.

12:15 - 2:00 PM. The Tech Freedom (TF) will host a panel discussion titled "First Apple, Now Amazon: Where is the FTC Heading on Digital Consumer Protection?" The keynote speaker will be Joshua Wright (FTC Commissioner). The panel speakers will be __. Free. Open to the public. Webcast. Lunch will be served from 11:45 AM to 12:15 PM. See, TF notice. See also, the FTC's July 10, 2014 complaint in FTC v. Amazon (USDC/WDWash, D.C. No. 2:14-cv-01038). Location: Woolly Mammoth Theatre Company, Rehearsal Hall, 641 D St., NW.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "A Whole New World at the ITC: Jurisdiction over Electronic Transmissions". The speakers will be Elizabeth Winston, Charles Duan, and John Thorne. See, April 10, 2014 opinion [174 pages in PDF] of the U.S. International Trade Commission (USITC) in In the Matter of Certain Digital Models, Inv. No. 337-TA-833. Prices vary. CLE credits. See also, ABA notice.

See, Rep. Cantor's schedule states that "no votes are expected" in the House.

8:30 AM. The Department of Labor's (DOL) Bureau of Labor Statistics (BLS) is scheduled to release its July 2014 employment data.

8:30 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Emerging Technology and Research Advisory Committee (ETRAC) will meet on site and via teleconference. The agenda includes a "Deemed export exemption proposal", "Space security", "Unmanned Aerial Vehicles", "Text mining", "Additive manufacturing", "Semiconductor Process Design Kits", and other topics. Open to the public. See, notice in the Federal Register, Vol. 79, No. 132, July 10, 2014, at Page 39366. Location: Room 6087B, DOC, Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding wireless broadband services in the 3550-3650 MHz band.. The FCC adopted and released this item on April 23, 2014. It is FCC 14-49 in 12-354. See, notice in the Federal Register, Vol. 79, No. 105, June 2, 2014, at Pages 31247-31282. See also, story titled "FCC Adopts NPRM Regarding 3550-3650 MHz Band" in TLJ Daily E-Mail Alert No. 2,645, April 23, 2014.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its second draft of NIST IR 7924 [94 pages in PDF] titled "Reference Certificate Policy".

Deadline to register to attend, and to submit comments in advance of, the Department of the Air Force's Global Positioning System Directorate (GPSD) August 22, 2014 event in El Segundo, California titled "2014 Public Open Forum". See, notice in the Federal Register, Vol. 79, No. 131, July 9, 2014, at Pages 38857-38858.