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Tech Law Journal |
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2/10. The WIPO issued two releases regarding the Milan Forum on Intellectual Property and Small and Medium Sized Enterprises. See, Feb. 9 release and Feb. 10 release. 2/9. The Department of Justice submitted a comment to the Administrative Office of the United States Courts in its proceeding regarding privacy and security implications of public access to electronic case files. The lengthy comment recommends for civil cases maintaining the presumption that all filed documents that are not sealed are available both at the courthouse and electronically. It recommends against electronic access to criminal files. It also addresses bankruptcy files. It recommends requiring less information in bankruptcy petitions and schedules, restricting use of social security and credit card numbers to the last four digits, and segregating certain sensitive information from the public file. See also, cover letter from Kevin Jones. 2/9. The WTO General Council elected officers for 2001. See, list. 2/9. The U.S. Court of Appeals (9th Circuit) announced that it will issue its opinion in the Napster v. A&M Records on Monday, Feb. 12. On Dec. 6, 1999, A&M Records and other record companies filed a complaint against Napster alleging vicarious and contributory copyright infringement. On Aug. 10, 2000 U.S. District Court Judge Marilyn Patel issued her opinion which included a preliminary injunction against Napster. Napster appealed to the 9th Circuit, which issued a stay. Oral argument was on October 2. 2/9. Six Senators sent a letter to President Bush urging an end to the diversion of USPTO user fees to fund other government programs. They argued that "underfunding the PTO delays the development of new technologies." 2/9. Rep. Cliff Stearns (R-FL), the new Chairman of the House Commerce, Trade & Consumer Protection Subcommittee, released a statement that he had "outlined his tentative subcommittee agenda for panel members." The statement continued that he "characterized his e-commerce priorities as falling into three general categories: on-line privacy, cybersecurity, and removing international regulatory barriers to e-commerce. Specific issues noted in his outline included, the protection of personally identifiable information and genetic data, cyberfraud and identify theft, Internet gambling, encryption, data base protection, and Internet sales taxation." It continued that "Certain taxation and privacy policies, jurisdictional restraints and limitations on free speech and commerce by key international actors ... may curtail the growth of e-commerce worldwide." It also stated that the subcommittee "will review the impact of mega-mergers on consumers." Finally, it stated that "a thorough review of the effectiveness in cyberspace of our existing consumer protection laws may also be in order." 2/9. Rep. Bob Goodlatte (R-VA) named Ben Cline to be his Chief of Staff and Shelley Hanger to be his Legislative Director and Counsel. Cline, who is currently Legislative Director, replaced David Lehman, who went to work for the public affairs firm of Hall, Green, Rupli where he will work on technology and telecom issues. Cline has worked for Goodlatte for more than six years, handling policy relating to technology, telecommunications, intellectual property, crime, and agriculture. Hanger, who currently serves as Legislative Counsel, has been with Goodlatte for almost three years. Goodlatte sits on the House Judiciary Committee, and its Courts, Internet, and Intellectual Property Subcommittee. 2/9. The Wall Street Journal published a story which stated that the SEC "is conducting a formal investigation into possible fraudulent accounting practices at Lucent ..." Lucent promptly responded: "This is not new news." It elaborated that "Last November, Lucent identified certain revenue recognition issues and voluntarily and immediately brought them to the SEC's and the public's attention. In December, we announced the results of an external audit and the remedial actions that we took." See, release. 2/9. Feb. 9 was the deadline for final briefs in the appeal of the Microsoft antitrust case. See, Microsoft's final version of its reply brief [88 pages in PDF] and final version of its brief [188 pages in PDF] The government also filed the final version of its appeal brief. See, HTML and PDF versions. Oral argument is scheduled for Feb. 26 and 27. 2/8. The U.S. District Court (WDNY) sentenced Samuel Williams and Dion Wilson for conspiracy to commit wire fraud and to transport stolen property. The defendants, while employed by SoftBank (now ClientLogic) illegally shipped company computer hardware and software totaling more than $700,000 by fraudulently authorizing no-charge shipments of computer products from SoftBank's warehouse to drop locations throughout the Buffalo area. Williams and Wilson were sentenced to 24 and 8 months of incarceration, respectively. See, DOJ release. 2/8. Sen. Chris Dodd (D-CT) introduced S 290, the Student Privacy Protection Act, to restrict the dissemination data collected by public schools to commercial entities. This bill would amend the Elementary and Secondary Education Act of 1965 to provide that "no State educational agency or local educational agency that receives funds under this Act may (1) disclose data or information the agency gathered from a student to a person or entity that seeks disclosure of the data or information for the purpose of benefiting the person or entity's commercial interests ..." However, data can be disclosed if parental consent is obtained. 2/8. Rep. James Barcia (D-MI) introduced HR 524, the Electronic Commerce Enhancement Act. This bill would require the NIST to assist small and medium-sized manufacturers and to integrate and utilize e-commerce technologies and business practices. The House passed an identical bill in the 106th Congress as HR 4429; but it did not pass the Senate. The House may again pass the bill under suspension of the rules on Feb. 14 or 15. Barcia published a statement in the Congressional Record on Feb. 8 in which he stated that "One of the purposes of this legislation is to provide American small businesses with the information and knowledge they need to make smart decisions on e-commerce related purchases and services." He continued that "The other main goal of this legislation is to address the issue of interoperability in the manufacturing supply chain. Adoption of e-commerce business practices within a supply chain is hindered by a lack of interoperability between software, hardware, and networks in exchanging product data and other key business information." 2/8. Sen. Max Cleland (D-GA) introduced S 292, a bill to amend the Internal Revenue Code of 1986 to expand the enhanced deduction for corporate donations of computer technology to senior centers and community centers. The bill was referred to the Senate Finance Committee. 2/8. Rep. Chris Cox (R-CA) and Sen. Ron Wyden (D-OR) introduced companion bills in the House and Senate to permanently ban Internet access taxes and to extend for five years the existing moratorium on multiple and discriminatory taxes on the Internet. The bills are named the Internet Non-Discrimination Act. Cox and Wyden sponsored the Internet Tax Freedom Act in the 105th Congress, which established the existing moratorium. In addition, Sen. Wyden introduced a bill that would create a set of tax simplification criteria that state and local taxing authorities could use to implement less burdensome tax collection systems for so-called "remote" sales, such as Internet and catalog retail transactions. Once a sufficient number of states have simplified collection, Congress would work on an expedited basis to codify the new system. See, Cox release. 2/8. The House Commerce Committee's Subcommittee on Telecommunications held a hearing titled "Is ICANN's New Generation of Internet Domain Name Selection Process Thwarting Competition?" Subcommittee members criticized the process by which ICANN recently awarded new top level domains -- .areo, .coop, .info, .museum, .name, .pro, and .biz. See, testimony of ICANN Chairman Vint Cerf. See also, prepared statements of Lou Kerner (dotTV), Elana Broitman (register.com), David Short (IATA), Kenneth Hansen (NeuStar), Leah Gallegos (AtlanticRoot Network), Michael Froomkin (Univ. of Miami), and Alan Davidson (CDT). See also, statement of Rep. Billy Tauzin (R-LA). 2/8. The House Courts, Internet and Intellectual Property Subcommittee (which was previously named Courts and Intellectual Property) is close to finalizing its organization for the 107th Congress. This subcommittee has jurisdiction over many high tech issues, including application of copyright law to Napster style file copying, business method patents, database protection, anti-tampering proposals, and oversight of the USPTO. Howard Coble (R-NC) will again be Chairman, and Howard Berman (D-NC) will again be the Ranking Democrat. Bob Goodlatte (R-VA) will be Vice Chairman. The subcommittee will be expanded from 15 to 22 members. Also, many former members are not returning. Hence, there will be many new members. The returning Republicans are likely to be Coble, Goodlatte, Elton Gallegly (R-CA), Bill Jenkins (R-TN), Chris Cannon (R-UT), and Henry Hyde (R-IL) (who was an ex officio member). The departing Republicans are James Rogan (R-CA) (who lost his election to Adam Schiff), Ed Pease (R-IN) (who retired) and Mary Bono (R-CA) (who moved to the Commerce Committee). The new Republicans are likely to be Asa Hutchinson (R-AR), Lindsey Graham (R-SC), Spencer Bachus (R-AL), Joe Scarborough (R-FL), John Hostettler (R-IN), Rick Keller, and Joe Sensenbrenner (now ex officio). The returning Democrats are Berman, Rick Boucher (D-VA), Zoe Lofgren (D-CA), Bill Delahunt (D-MA), Robert Wexlar (R-FL), and John Conyers (D-MI). The new Democrats are likely to be Tammy Baldwin (D-WI), Marty Meehan (D-MA), and Maxine Waters (D-CA). There is likely to be one more new Democrat -- either Anthony Weiner (D-NY) or Adam Schiff (D-CA). 2/8. Intellectual Property Owners Association (IPO) Executive Director Herbert Wamsley told Tech Law Journal that the IPO's top legislative priority for the 107th Congress will be ending the diversion of USPTO user fees to fund other government programs. He added that he is hopeful, now that Rep. Frank Wolf (R-VA) is Chairman of the House Appropriations Committee's subcommittee that has jurisdiction over the USPTO. His district is in northern Virginia. "He is interested in high technology," said Wamsley, and "he has patent attorneys and Patent and Trademark Office employees in his district." 2/8. The Senate Health, Education, Labor, and Pensions Committee held a hearing on the Department of Health and Human Services' patient privacy regulations. 2/8. The House Government Reform Committee held its organizational meeting for the 107th Congress. 2/8. The House Judiciary Committee held two days of hearings on HR 333, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2001. This almost the same bill as HR 2415 (106th Congress), which both the House and Senate passed last year, but which Clinton vetoed. Meanwhile, the Senate Judiciary Committee held its own hearing on bankruptcy reform. See, statement by Sen. Orrin Hatch (R-UT) and statement by Sen. Pat Leahy (D-VT). 2/8. Sun Microsystems Chairman and CEO Scott McNealy stated that the government should pursue its antitrust case against Microsoft. He gave a luncheon address at the National Press Club in Washington DC. The U.S. Court of Appeals (DCCir) will hear oral arguments in the case on Feb. 26 and 27. 2/8. The U.S. Court of Appeals (1stCir) issued its opinion in In Re Boston's Children's First on Feb. 5. This is a school case. However, the issue on appeal was whether a sitting district court judge should have recused herself after commenting publicly on the case. She spoke with a newspaper reporter about the merits of the case while the case was pending. The extent of her contacts were less that those of Judge Jackson in the Microsoft antitrust case. The Appeals Court held that it was an abuse of discretion for her not to recuse herself. Microsoft's attorney, John Warden, promptly brought this opinion to the attention of the U.S. Court of Appeals (DCCir) in a letter [PDF] on Feb. 8. 2/8. The U.S. Court of Appeals (FedCir) heard oral argument in Imatec v. Apple, an appeal from a final judgment of the U.S. District Court (SDNY) in a patent infringement case. The claimed inventions measure the colors and tone of a screen image and matches them to what is produced by a printer. Plaintiffs allege that Apple's ColorSync software, which is incorporated into Apple operating systems, infringes the patents. The trial court dismissed for lack of standing (plaintiffs do not own the patents in suit) and for non-infringement. 2/8. The Recording Industry Association of America (RIAA) announced that Matthew Oppenheim will become head of its Litigation Department. Prior to joining the RIAA in 1998, Oppenheim worked at the law firm of Proskauer Rose. Oppenheim replaces George Borkowski, a litigation partner at the Los Angeles law firm Mitchell Silberberg and Knupp, who has been on loan to RIAA as the acting Director of Civil Litigation since Steven Fabrizio left. 2/8. The Electronic Privacy Information Center (EPIC) announced the creation of the Internet Public Interest Opportunities Program (IPIOP), a program for law students interested in public interest law and the Internet. It is made possible by a $1,000,000 grant from Pamela Samuelson and Robert Glushko. See. EPIC release. 2/8. The Software and Information Industry Association (SIIA) settled its copyright infringement lawsuit against Julian Kish. The SIIA filed a complaint in U.S. District Court (NDIll) on Jan. 25 on behalf of Adobe, SGI, and Macromedia. The parties settled for an undisclosed payment from Kish, a letter of apology from Kish, and a consent order barring Kish from future copyright infringement. See also, SIIA release. 2/7. 37 economists filed a comment [8 pages in PDF] with the FCC in response to its Notice of Proposed Rulemaking [PDF] regarding secondary markets in spectrum. The proceeding is titled In the Matter of Promoting Efficient use of Spectrum Through Elimination of Barriers to the Development of Secondary Markets. (See, WT Docket No. 00-230). The comment states that "We strongly encourage the Commission to adopt market-oriented rules opening the radio spectrum and capturing its full potential for society. Current spectrum policies continue to decrease consumer welfare and reduce the effectiveness of the wireless half of our telecommunications world. Without an initiative to eliminate unnecessary bureaucratic restrictions, spectrum will continue to be artificially scarce in some uses and wasted in others." 2/7. Rep. Elton Gallegly (R-CA) introduced HR 489, the Math and Science Teacher Recruitment Act, a bill to amend Higher Education Act of 1965 to expand the teacher loan forgiveness programs under the guaranteed and direct student loan programs for teachers of mathematics and science. 2/7. Rep. Barbara Cubin (R-WY) introduced HR 486, the Independent Telecommunications Consumer Enhancement Act, a bill to reduce regulatory burdens on local exchange carriers with fewer than 2% of the nation's subscriber lines. Like HR 267, S 88, and S 150, it states that its purpose is to promote the deployment of broadband Internet access facilities. Rep. Cubin also sponsored similar legislation in the 106th Congress (HR 3850); the House passed it; the Senate did not. She stated that "the FCC has not made it any easier for small telephone companies to deploy advanced services in rural areas -- in some cases they've actually made it more difficult. The reason is that the FCC more often than not uses a one size fits all model in regulating all Incumbent Local Exchange Carriers (ILECs). This type of model may be fine for the big companies than have the ability to hire legions of attorneys and staff to interpret and ensure compliance with the federal rules." 2/7. Sen. Max Baucus (D-MT) introduced S 274, a bill to establish a Congressional Trade Office. this CTO would provide the Senate Finance Committee and the House Ways and Means Committee with additional independent, nonpartisan, neutral trade expertise. Sen. Baucus is the ranking Democrat on the Finance Committee. 2/7. A Michael Blitzer filed a complaint [PDF] in U.S. District Court (NDIll) against Comdisco [ticker: CDO] and two of its officers and directors alleging violation of federal securities laws. Blitzer, who is represented by the law firm of Milberg Weiss and others, seeks class action status. Count one alleges violation of § 10b of the Exchange Act, and Rule 10b-5 thereunder. Count two alleges violation of § 20(a) of the Exchange Act by the individual defendants. Comdisco is a Delaware corporation based in Rosemont, Illinois. It is an equipment leasing and technology services company. It provides web hosting, storage, network, and financial management services. It leases equipment used in semiconductor and electronic manufacturing, in telecommunications, and in other industries. Its stock traded at a high of over 57 dollars per share early last year. It closed at under 14 on Friday, Feb. 9. Milberg Weiss is a law firm that specializes in bringing class action securities suits against technology companies when their stock prices drop. The Law Offices of Charles Piven filed a separate class action securities complaint against Comdisco. 2/7. The Business Software Alliance (BSA) sent a letter [PDF] to President Bush advocating strong copyright protection (both domestically and internationally), free trade, math and science education, and H1B visas. The letter elaborated that the U.S. should negotiate trade "agreements for countries to improve their efforts in enforcing copyright laws against piracy." The letter was signed by Andy Grove (Intel), Steve Ballmer (Microsoft), George Semanuk (Network Associates), Eric Schmidt (Novell), John Thompson (Symantec), and heads of seven other software companies. See also, BSA release. 2/7. Rep. Jim Saxton (R-NJ) introduced H. Con. Res. 22, which expresses the sense of Congress regarding Internet security and cyberterrorism. 2/7. The U.S. District Court (NDCal) sentenced Richard Rood to 41 months in prison for unlawful possession of child pormography in violation of 18 U.S.C. § 2252A(a)(5)(B). Rood also sent and received images over the Internet, via e-mail, and published many images to personal web sites. He was charged by Information on Oct. 20, 2000. AUSA Miles Ehrlich prosecuted the case. See, release. 2/7. The House Commerce Committee held its organizational meeting for the 107th Congress. The Committee adopted six resolutions regarding rules, jurisdictions, and subcommittee membership and chairs. See resolutions [PDF]: No. 1: Rules. No. 2: Jurisdiction. No. 3: Subcommittees. No. 4: Subcommittee Chairs. No. 5: Repub. Subcomm. Membership. No. 6: Dem. Subcomm. Membership. Billy Tauzin (R-LA), who was Chairman of the Telecom Subcommittee, is now the full Committee Chairman. John Dingell (D-MI) is again the Ranking Member. The Telecom Subcommittee, which has jurisdiction over many high tech related issues, will be chaired by Fred Upton (R-MI). He has not been as active on Internet issues as many other members of the subcommittee. The Ranking Member will again be Ed Markey (D-MA). The rest of the Republicans on the Subcommittee are Mike Bilirakis (R-FL), Joe Barton (R-TX), Cliff Stearns (R-FL), Paul Gillmor (R-OH), Chris Cox (R-CA), Nathan Deal (R-GA), Steve Largent (R-OK), Barbara Cubin (R-WY), John Shimkus (R-IL), Heather Wilson (R-NM), John Shadegg (R-AZ), Chip Pickering (R-MS), Vito Fossella (R-NY), Roy Blunt (R-MO), Tom Davis (R-VA), Bob Ehrlich (R-MD), and Billy Tauzin (R-LA). The rest of the Democrats on the Subcommittee will be Bart Gordon (D-TN), Bobby Rush (D-IL), Anna Eshoo (D-CA), Eliot Engel, (D-NY), Gene Green (D-TX), Karen McCarthy (D-MO) Bill Luther (D-MN), Bart Stupak (D-MI), Diana DeGette (D-CO), Jane Harman (D-CA), Rick Boucher (D-VA), Sherrod Brown (D-OH), Thomas Sawyer (D-OH), John Dingell (D-MI) (Ex Officio). Upton, Davis, Stupak, and Brown are new members of the Telecom Subcommittee. See also, statement by John Dingell. 2/7. House Commerce Committee Chairman Billy Tauzin (R-LA) issued a statement concerning the fifth anniversary of the Telecom Act of 1996. "For the most part, the Act has been a catalyst for change and competition. Consumers all across America, for example, have benefited from new innovations in wireless technology. But, clearly, a lack of high-speed broadband services in this country is now threatening to stifle e-commerce and our New Age economy. Congress can prevent this from happening by simply completing work on the Act. If we made one mistake in 1996, its that we did not reform the FCC at the same time we reformed the law. As a result, the agency has created roadblocks to competition in both the telephone and broadband markets. My goal is to remove those roadblocks, create true competition and provide consumers with exciting, new choices in the marketplace." See, release. 2/7. Sen. Conrad Burns (R-MT), Chairman of the Senate Communications Subcommittee, announced his high tech agenda for the 107th Congress, which he has named "Tech 7". The issues include high speed Internet access, online privacy, spam, spectrum allocation, wireless privacy, ICANN, and e-government. He plans to introduce legislation to provide tax incentives to companies that build high speed Internet facilities. He plans to introduce a bill similar to his 1999 privacy bill; he will also introduce a bill to provide more protections against the monitoring and recording of cell phone calls. He also plans to re-introduce anti-spam legislation, and hold hearings on ICANN and domain names. See, release. See also, USTA reaction and BSA reaction. 2/7. The House Ways and Means Committee held its organizational meeting. See, Committee and Subcommittee assignments. 2/7. The Senate Banking Committee held a hearing on export controls, and S 149, the Export Administration Act (EAA), introduced by Sen. Mike Enzi (R-WY) on Jan. 23. Sen. Enzi said in his opening statement that "The goal of the EAA of 2001 is to eliminate unnecessary trade barriers, while focusing controls on the items most sensitive to our national security." He added that "the bill recognizes that items available from foreign sources or available in mass-market quantities cannot be effectively controlled." Sen. Phil Gramm (R-TX) said in his opening statement that "the basic premise of the bill is that if something is mass marketed or if you can buy it in the marketplace of the world, while it may have defense uses, there is no way you can prevent a would-be user of that technology from having access to it." Dan Hoydysh of Unysis testified. He praised the bill, and its Section 202, which empowers the President, Secretary of Commerce, and Secretary of Defense to review the National Security Control List and determine whether an item can and should be controlled. But, he added that "its application to computers is seriously undermined by another statute, the National Defense Authorization Act (NDAA), which imposes mandatory, rigid controls on high performance computer (HPC) exports." He advocated its repeal. See, statement. See also, statements of Paul Freedenberg, and Richard Cupitt, and Larry Christensen. 2/7. The Copyright Office published a Distribution Order in the Federal Register regarding distribution of 1995, 1996, 1997, and 1998 digital audio recording technology royalties. See, Federal Register, Feb. 7, 2001, Vol. 66, No. 26, Pages 9360-9365. 2/7. David Marsh joined the law office of Arnold & Porter as a partner. He will focus on intellectual property counseling and patent procurement, predominantly in the biotechnology area. Marsh is also an Adjunct Professor at Georgetown University Law Center, where he teaches Biotechnology and Patent Law. He previously practiced at Howrey Simon Arnold & White. See, release. 2/7. The NTIA and FTC announced that they are requesting comments on, and will hold a workshop on, the benefits and burdens of requiring consumer consent to receive information electronically. These agencies are required by the E-SIGN Act, passed last year, to conduct this study. Comments and papers are due by March 16, 2001. The workshop will be held at the FTC on April 3, 2001 from 8:30 AM to 5:00 PM. See, notice to be published in the Federal Register. 2/6. The U.S. Court of Appeals (2nd Cir.) issued its short opinion in Hapco Farms v. Idaho Potato Commission, a trademark and antitrust case against a state agency that was dismissed by the trial court on 11th Amendment grounds. The Appeals court affirmed. 2/6. House Commerce Committee Chairman Billy Tauzin (R-LA) named Howard Waltzman to be telecom counsel. For the last four years he was general counsel to Sen. Sam Brownback (R-KS), a member of the Senate Commerce Committee. Waltzman has also worked for Empower America and as press secretary to former Rep. Gary Franks (R-CT). See, release. 2/6. Kodak announced that it "has completed its acquisition of substantially all of the imaging businesses of Bell & Howell Company." The Antitrust Division of the Department of Justice (DOJ) announced that Kodak agreed to restructure its plans to purchase assets of Bell & Howell, by abandoning its purchase of the document scanner business, in order to resolve the DOJ's antitrust concerns. The DOJ asserted that the acquisition as originally proposed would have led to a loss of competition for high speed document scanners. See, Kodak release, Bell & Howell release, and DOJ release. 2/6. Sen. Patrick Leahy (D-VT) and Sen. John McCain (R-AZ) will introduce a Senate resolution to provide Internet access to certain Congressional Research Service reports, lobbyist disclosure reports, and Senate gift disclosure reports. Said Leahy, "these reports are indeed 'public' for those who can afford to hire a lawyer or lobbyist or who can afford to travel to Washington to come to the Office of Public Records in the Hart Building and read them. That is not very public." 2/6. Sen. Bob Smith (R-NH) introduced S 245, a bill to make permanent the moratorium on the Federal imposition of Internet taxes, and S 246, a bill to extend the moratorium on the imposition of taxes on the Internet for an additional 5 years. Both bills have been referred to the Senate Commerce Committee. However, the proposal that is likely to get more attention is a bill to extend for five more years the existing moratorium on new or discriminatory Internet taxes, to be introduced by Sen. Ron Wyden (D-OR) and Rep. Chris Cox (R-CA) on Feb. 8. 2/6. Rep. Ed Royce (R-CA) introduced HR 375, the Department of Commerce Elimination Act. The bill would terminate the Department, but continue many of its functions. The USPTO would be transferred to the Justice Department. The NIST would be renamed the "National Bureau of Standards" and transferred to the NOAA, which would be made independent. Several of the NTIA's grant giving functions would be eliminated; its Boulder laboratory would be privatized; and most of its remaining functions would be transferred to the FCC. 2/6. The U.S. Court of Appeals (DCCir) issued a scheduling order [PDF] in the Microsoft antitrust case which sets the amount of time allotted for each appeal argument. The Court's time assignments differ significantly from those recommended by the parties in their joint filing of Feb. 2, and perhaps reflects the thinking of some members of the Court regarding the relative importance of the different issues. The parties had agreed to have the court consider the issue of Judge Jackson's out of court statements on written submissions. However, the Court's order provides for one hour of oral argument on this issue. The Court also assigned the most amount of time (150 minutes) to the monopoly maintenance issue; the parties had recommended 90 minutes. The Court also raised the amount of time for the remedies issue from 60 to 90 minutes. The Court also assigned 90 for the tying issue, as the parties had urged. The Court also hinted that it may actually take much more time for arguments and questions. Its order further states that "The court reserves the possibility that the time allotted will be extended if it is determined to be insufficient to address the questions at issue. The parties, therefore, should be available between 9:30 a.m. and 4:00 p.m. on both February 26 and 27, 2001. If argument extends into the afternoon on either day, the court will take a ninety (90) minute recess for lunch." 2/6. The U.S. Senate confirmed Robert Zoellick to be USTR by a vote of 98-0. He was widely praised. The debate was not over whether to confirm, but rather, how he should proceed on several issues. Senate Finance Committee Chairman Charles Grassley (R-IA) stated that "The President, any President, needs trade negotiating authority from Congress because his negotiating credibility is diminished without it." However, he added, "I don't have any illusions that this will be easy to accomplish." The main source of contention is that many Democrats want fast track trade negotiating authority to include non trade related social issues. For example, Sen. Max Baucus (D-MT) the ranking Democrat on the Finance Committee, stated again that he will oppose any proposal to give the President fast track trade negotiating authority that does not also extend to labor and environmental issues. 2/6. The new FCC Chairman, Michael Powell, held his first press conference as Chairman. He revealed that he will lead the FCC much differently from his predecessors, William Kennard and Reed Hundt. He stated that he favors a less regulatory and less legislative agency; he will be more cautious and more aware of the FCC's limitations. Also, he stated that he will implement the laws passed by the Congress, and refrain from policy making, or even speaking out on many policy questions. He indicated that the FCC will continue to conduct antitrust merger reviews, but he hopes to speed up the process, and treat similar parties similarly. He stated that the FCC will try to facilitate the development of 3G wireless technologies, but added that it will not be an easy process. He praised the Telecom Act for unleashing broadband Internet access; he elaborated that it allowed AT&T to buy cable companies, and provide cable Internet access, which in turn prompted the phones companies to provide DSL service. He answered questions for about an hour with a command of the issues, and a sense of direction. He also joked about several topics. When asked about the "digital divide", he added, "I think there is a Mercedes divide. I would like one. I can't afford one." When asked if he could give his definition of the "public interest", he said, "I have no idea." 2/6. The Antitrust Division of the U.S. Department of Justice (DOJ) announced that it has approved the merger of JDS Uniphase (JDSU) and SDL, subject to JDS Uniphase's agreement to sell its Zurich subsidiary to Nortel Networks. JDSU is an optical fiber network component maker. It makes semiconductor lasers, high speed external modulators, and transmitters for fiber optic networks. Fiber optic networks are enabling the rapid growth of Internet bandwidth. SDL makes products that power the transmission of data over fiber optic networks. Nortel is a communications company. According to the DOJ, the issue was that the merger "as originally proposed, would have led to the loss of head-to-head competition in the production of 980 nm pump laser chips." The DOJ stated that "Under the divestiture, JDS Uniphase has agreed to sell its entire Uniphase Laser Enterprise (ULE) division to Nortel Networks in a transaction valued at about $3 billion. ULE is a major manufacturer of 980 nm pump laser chips." See, JDSU release, Nortel release, SDL release, and DOJ release. 2/6. The Intellectual Property Owners Association (IPO) is holding its midwinter meeting in Florida. Its Board of Directors announced that it has reaffirmed the statement on business method patents that it first adopted on June 28, 2000. This document states that, "IPO does not believe that Congress should legislate in the area of business method patents at the present time. Additionally, IPO is not aware of any legislative proposals today that merit serious consideration or debate." Since this statement was first adopted, Rep. Howard Berman (D-CA) and Rep. Rick Boucher (D-VA) introduced the Business Method Patent Improvement Act. The bill was introduced late in the 106th Congress, but the two stated that they would refile in the current Congress. The IPO Board also adopted a position that intellectual property should not be a subject for the next round of global trade negotiations. 2/6. The U.S. District Court (4thCir) issued its opinion in ALS Scan v. RemarQ, a case regarding copyright infringement under the Digital Millennium Copyright Act (DMCA). Title II of the DMCA provides a ISPs a limited immunity from liability for copyright infringement for certain acts, including storage of information on its systems or networks at the direction of users. However, the DMCA also requires that ISPs take down or block infringing material upon notice from a copyright holder that complies with DMCA. This case addresses the effect of a defective notice. The Appeals Court ruled that an ISP cannot rely on a defense of defective notice to maintain the immunity defense provided by the DMCA safe harbor provision where there was substantial compliance. Here are the facts. ALS is a pornographer; it holds copyrights in porn pictures. RemarQ is an ISP that provided its subscribers two porn newsgroups. RemarQ's subscribers posted porn pictures copyrighted by ALS in these newsgroups. ALS mailed to RemarQ a demand that it "cease carrying these newsgroups". RemarQ responded that it would take down infringing pictures if ALS identified them "with sufficient specificity", as required by the DMCA. ALS did not provide specificity. Instead, it filed a complaint in the U.S. District Court (DMd) alleging violations of the Copyright Act (both direct and contributory infringement) and Title II of the DMCA, as well as unfair competition. RemarQ moved to dismiss on the grounds that ALS's failure to comply with the DMCA notice requirements provided it with a defense to ALS's copyright infringement claim. The District Court agreed, and dismissed. This appeal followed. The Appeals Court reversed. Defective notice under Title II of the DMCA that is in substantial compliance is sufficient. 2/6. The California Court of Appeal (1st Appellate Dist., Div. 1) issued its opinion [PDF] in In Re Aaron Collins, a case regarding access to e-mail messages by prison inmates. The Court of Appeal reversed a trial court order granting a petition for habeas corpus filed in connection with a prison policy that denied access to materials sent by e-mail. Aaron Collins, a prisoner in California's maximum security Pelican Bay State Prison, was a subscriber to a service for prison inmates that prints any e-mail messages received by the inmate subscriber and sends them to the inmate by regular U.S. mail. The prison warden adopted a policy that the prison mailroom would not accept such mail. Collins filed a petition for habeas corpus. The trial court granted the petition on First Amendment grounds, and ruled that inmates could receive printed copies of e-mail. The Court of Appeal reversed, stating that the prison had legitimate security concerns, particularly, preventing inmates from participating in criminal activity via mail. The court concluded that the potential high volume of e-mail, the relative anonymity of the senders, and the ability of senders to easily send or attach lengthy articles and other publications would greatly increase the risk that prohibited criminal communications would enter the prison undetected and would make tracing their source more difficult. 2/6. The U.S. Court of Appeals (DCCir) issued its opinion in Bachow Communications v. FCC, a case regarding the FCC's conversion of its system for awarding licenses in the 39 GHz band from a comparative application process to a public auction. The Court affirmed the FCC's orders. 2/6. The U.S. District Court (DDC), held a status hearing in EPIC v. DOJ. This is a FOIA suit regarding the production of documents pertaining to the FBI's e-mail surveillance system named Carnivore. The parties stated that only 3 pages remain to be processed by the government. 2/6. The Federal Communications Bar Association hosted a seminar titled "Technology and the FCC: What Every Advocate Should Know." Topics included the AOL Time Warner merger reviews, secondary markets for spectrum rights, ultrawideband technologies, and spectrum sharing policies. 2/6. NCTA CEO Robert Sachs gave a speech in Washington DC in observance of the fifth anniversary of the Telecom Act of 1996 in which he stated that "Internet protocol (IP) telephony over broadband cable networks is next on cable's priority chart." See, release. 2/6. The FTC's Bureau of Consumer Protection held a workshop on alternative dispute resolution. 2/6. The Senate is scheduled to debate the nomination of Robert Zoellick to be USTR at 2:15 on Tuesday, Feb. 6. The outcome of the vote is not in question. Zoellick's nomination enjoys broad bipartisan support. Senators will likely address current trade issues, including a new round of trade negotiations, bilateral agreements, fast track trade negotiating authority, Chinese accession to the WTO, and trade disputes with Europe. 2/6. Paul Coggins joined the Dallas office of the law firm of Fish & Richardson (FR) as a principal. He was previously the U.S. Attorney for the Northern District of Texas for seven years. Coggins helped establish a regional computer forensics laboratory in Dallas to help Texas law enforcement agencies investigate computer-aided crimes. The USAO also prosecuted several cases involving computer hacking and network disruption. FR practices exclusively in the areas of intellectual property, complex litigation, and technology law. See, release. 2/6. William Daley was elected to the EDS Board of Directors. Most recently, he was chairman of Gore Lieberman presidential campaign. Before that he headed the Department of Commerce. He is also a former partner in the law firm of Mayer, Brown & Platt. See, EDS release. |
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