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Tech Law Journal |
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| News, records, and analysis of legislation, litigation, and regulation affecting the computer, internet, communications and information technology sectors | |
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2/28. The U.S. Court of Appeals (4th Cir) issued its opinion in AOL v. AT&T, a trademark case. Both AOL and AT&T provide e-mail services to their customers. AOL has been using, for varying lengths of time, the words "YOU HAVE MAIL", "YOU'VE GOT MAIL", "BUDDY LIST", and "I M". In Dec. of 1998, AT&T began using these same words in connection with its e-mail service. AOL filed a complaint in U.S. District Court (EDVa) alleging various trademark and unfair trade competition claims. The District Court granted summary judgment to AT&T. See, memorandum. The Appeals Court held that the question whether "Buddy List" is a valid mark raises disputed issues of material fact and therefore cannot be resolved on summary judgment. It affirmed as to the other claimed marks. See also, TLJ case summary. 2/28. A panel of the WIPO Arbitration and Mediation Center ruled on Google's complaint against Namerental.com and Leonard Bensonoff for transfer of the domain ggoogle.com. The panel found that the domain name is confusingly similar to a Google trademark, that respondents have no legitimate interest in the domain name, and that they registered it in bad faith. The panel ordered that the domain name be transferred to Google. See, WIPO opinion. 2/28. A panel of the WIPO Arbitration and Mediation Center issued its opinion in a domain name dispute resolution proceeding involving www.yahooasian.com and 4 other domain names which include the word "yahoo." Yahoo!, the Santa Clara, California, based Internet giant filed a complaint against the Thai company formed in 2000 that registered the five variations on its trademark. The panel found that the five domain names are confusingly similar to the Yahoo! trademark, that the respondent has no rights or legitimate interest in the disputed domain name, and that the disputed domain names were registered in bad faith. It ordered, therefore, that the five domain names be transferred to Yahoo! 2/28. The Senate Judiciary Committee approved S 220, the Senate version of the bankruptcy reform bill, by a vote of 10 to 8. The Committee first approved several amendments, including one offered by Sen. Orrin Hatch (R-UT) and Sen. Pat Leahy (D-VT), known as the Toysmart.com Amendment. This protects personally identifiable information given by a consumer to a business debtor, such as an online retailer, by adding new privacy protections to the Bankruptcy Code and by creating a Consumer Privacy Ombudsman to appear before the bankruptcy court. It provides that "if the debtor has disclosed a policy to an individual prohibiting the transfer of personally identifiable information about the individual to unaffiliated third persons, and the policy remains in effect at the time of the bankruptcy filing, the trustee may not sell or lease such personally identifiable information to any person, unless (A) the sale is consistent with such prohibition; or (B) the court, after notice and hearing and due consideration of the facts, circumstances and conditions of the sale or lease approves the sale or lease." 2/28. The House is scheduled to debate and vote on HR 333, its version of the bankruptcy reform bill, on March 1. On Feb. 28 the House Rules Committee adopted a rule for consideration of the bill. Notably, Rep. Ed Markey's (D-MA) proposed amendment is not in order. It would have required that personal and financial information divulged in a bankruptcy proceeding be disclosed in electronic format only to individuals and entities that have legitimate interests in the case. However, Rep. Mark Green's (R-WI) amendment [PDF] is in order. It would require the removal of the names of children from bankruptcy filings. See, Summary of Amendments Made in Order. See also, HR 333 [huge PDF file] as reported by the House Judiciary Committee on Feb. 14. 2/28. The House Commerce Committee approved HR 90, the Know Your Caller Act, by a unanimous voice vote. The bill, which is sponsored by Rep. Rodney Frelinghuysen (R-NJ), would make it "unlawful for any person … in making any telephone solicitation (A) to interfere with or circumvent the capability of a caller identification service … and (B) to fail to provide caller identification information in a manner that is accessible by a caller identification service …" The bill gives the FCC rule making authority. It also creates a private right of action. A similar bill passed the House by a vote of 420-0 last year, but did not receive a vote in the Senate. 2/28. The House Commerce Committee amended and approved HR 496. Both an amendment in the nature of a substitute, and the bill as amended, passed by unanimous voice votes. The bill provides regulatory relief to telecommunications carriers that control less than two percent of the subscriber lines in the U.S. A similar bill passed the House late last year, but did not receive a vote in the Senate. Rep. Ed Markey (D-MA), the ranking Democrat on the Telecom Subcommittee, spoke in opposition to the bill. He argued that if that if 2% carriers get regulatory relief, they should also no longer receive "subsidies". He called this "Adam Smith economics." 2/28. Random House filed a complaint in U.S. District Court (SDNY) against Rosetta Books alleging copyright infringement for publishing e-books. Rosetta Books is a recently formed, privately held, New York City based company that provides electronic publishing. Random House is an English language general trade book publisher. It is a division of the Bertelsmann Book Group of Bertelsmann AG, a large German media company. 2/28. A grand jury of the U.S. District Court (DNJ) returned indictments against Walter Forbes and Kirk Shelton, two former executives of Cendant, alleging securities fraud in connection with accounting practices. The SEC filed a parallel civil complaint in the same court against the two. Forbes and Shelton were Chairman/CEO and COO, respectively, of CUC International, which merged with HFS to create Cendant. Cendant is a hotel, car rental and real estate franchising company. Its other operations include Jackson Hewitt (tax preparation) and WizCom (an information technology services). See, Cendant release. 2/28. FCC Commissioner Harold Furchtgott-Roth addressed the Competitive Carrier Regulatory Summit 2001. 2/28. The FCBA held a closed meeting on "Legislative Outlook 2001: House Perspective" with staff of the House Commerce Committee. 2/28. The Bureau of Export Administration (BXA) announced that "Revisions to the Export Administration Regulations to implement the Trade Sanctions Reform and Export Enhancement Act of 2000 (TSRA) are under interagency review." 2/28. The NIST published in the Federal Register a notice and request for comments regarding its Draft Federal Information Processing Standard (FIPS) for its Advanced Encryption Standard (AES) 2/28. The USITC voted to institute an investigation of Silicon Integrated Systems' (SIS) integrated circuits, processes for making same, and products containing same, of sizes of 0.25 microns or smaller. United Microelectronics, UMC Group, and United Foundry Service filed a complaint with the USITC on Jan. 26, 2001, alleging violations of § 337 in the importation into the U.S. of SIS integrated circuits that infringe patents owned by UMC. See, USITC release and UMC Group release. 2/28. The U.S. Court of Appeals (1stCir) issued its not for publication opinion in Latin American Music Company v. Cardenas Fernandez, a case regarding entitlement to preliminary injunctions in copyright infringement cases. 2/28. The Intellectual Property Owners Association (IPO) named Charles Work to be its General Counsel. He remains a partner in the Washington DC office of the law firm of McDermott, Will & Emery, and the head of its Regulation and Government Affairs Department. 2/28. Slade Smith joined the San Francisco office of the law firm of Townsend and Townsend and Crew. He joins the firm's Electronics & Software Practice Group, focusing on procurement and enforcement of patent rights covering high-technology inventions. He previously worked at Fliesler Dubb. See, release. 2/28. The NCTA announced that the appointment of Lois Richerson as Director - Public Affairs - Education. She was previously Director of Government Relations for NCTA. Her job will be "to carry the message of the cable industry's longstanding commitment to education" to the Congress and Bush administration. See, NCTA release. 2/28. Sen. Max Cleland (D-GA) introduced S 414, a bill to amend the National Telecommunications and Information Administration Organization Act to establish a digital network technology program. The bill was referred to the Senate Commerce Committee. 2/27. Sen. John McCain (R-AZ) introduced S 404, Low Power Radio Act of 2001, a bill that would permit the introduction of low power FM transmitters. The bill was referred to the Senate Commerce Committee, which Sen. McCain chairs. 2/28. Rep. Phil English (R-PA) introduced HR 782, a bill to provide for the establishment of an Internet site on federal financial assistance. The bill was referred to the House Committee on Government Reform. 2/27. Rep. Howard Coble (R-NC), the Chairman of the House Courts, Internet and Intellectual Property (CIIP) Subcommittee, introduced HR 740, a bill to reauthorize the USPTO and end the diversion of user fees. The bill was referred to the House Judiciary Committee. 2/27. Rep. Coble and Rep. Howard Berman (D-CA), the ranking Democrat on the CIIP Subcommittee, introduced HR 741, a bill to amend the Trademark Act of 1946 to provide for the registration and protection of trademarks used in commerce, in order to implement the Madrid trademark treaty, and for other purposes. The bill was referred to the House Judiciary Committee. Sen. Pat Leahy (D-VT) and Sen. Orrin Hatch (R-UT), the ranking Democrat and Chairman of the Senate Judiciary Committee, introduced S 407, the Senate version of this bill. 2/27. The U.S. Court of Appeals (DCCir) held its second day of oral argument U.S. v. Microsoft. See, transcript. 2/27. President Bush gave an address to a joint session of the House and Senate on his proposed budget and tax cuts. He also asked the Congress to grant him fast track trade negotiating authority. "Each of the previous five presidents has had the ability to negotiate far-reaching trade agreements. Tonight, I ask you to give me the strong hand of presidential trade promotion authority and to do so quickly." He did not address technology related issues. 2/27. The Senate Finance Committee held a hearing on trade policy. Chairman Chuck Grassley (R-IA) said in his opening statement that "thanks to a well-funded, well-organized anti-free trade campaign, the 50-year, American-led effort to enhance global prosperity and peace through reducing barriers to trade is now in jeopardy. Thanks to the distortions fostered by the opponents of free trade, the increasingly integrated world economy is often seen as nothing more than a source of global inequality and exploitation. ... It's time to set the record straight. That's what today's hearing is about." See also, prepared statement of witnesses: David Aaron (former Under Secretary of Commerce for International Trade), William Daley (Former Secretary of Commerce), Carla Hills (former USTR), Robert Hormats (Vice Chairman, Goldman Sachs). 2/27. Sen. Grassley also advocated giving the President fast track trade negotiating authority. "However, the one thing we must not do is employ trade sanctions to enforce labor and environmental provisions in trade agreements. This would be a prescription for disaster in terms of rebuilding an international consensus for trade liberalization. ... I will strongly oppose any legislation that directly or indirectly involves the use of trade sanctions to enforce such provisions in trade agreements. I will fight such legislation if it is brought before this Committee, and I will work hard to defeat it." 2/27. For years some of the user fees paid to the USPTO have been diverted to subsidize other government programs. Proponents of ending this diversion waged an effort, in advance of the President's budget address, to end this diversion. On Feb. 16 Rep. Howard Coble (R-NC), Chairman of the House Courts, Internet and Intellectual Property Subcommittee (CIIP), gave a speech in which he said that "Since 1992 through this year, the President and Congress have taken more than $650 million in patent fees ... I am elevating the end of the fee diversion to my number one patent and trademark priority." On Feb. 26, Rep. John Conyers (D-MI), Ranking Democrat on the House Judiciary Committee, and Rep. Howard Berman (D-CA), Ranking Democrat on CIIP, sent a letter to President Bush urging him to allow the USPTO to "devote all of its user fees to modernizing and professionalizing its office." On Feb. 23 Ron Myrick, President of the Intellectual Property Owners Association (IPO), wrote a letter to Commerce Sec. Don Evans in which he argued that the USPTO's "effectiveness is now in jeopardy. It is faced with an unprecedented increase in patent and trademark filings." On Feb. 27 the Information Technology Association of America (ITAA) sent a letter to Sec. Evans. See, ITAA release. 2/27. The Department of Justice published in its web site a copy of its Petition for Writ of Certiorari filed with the U.S. Supreme Court earlier this month in the legal proceeding challenging the constitutionality of the Child Online Protection Act (COPA). This proceeding is now titled Ashcroft v. ACLU. The COPA Act, which was passed at the end of the 105th Congress in late 1998, makes it unlawful to make any communication for commercial purposes by means of the World Wide Web that is available to minors and that includes material that is "harmful to minors," unless good faith efforts are made to prevent children from obtaining access to such material. The U.S. Court of Appeals (3rdCir) issued its opinion on June 22, 2000, upholding the U.S. District Court's order enjoining enforcement of the Act. 2/27. The Recording Industry Association of America (RIAA) announced that former Montana Governor Marc Racicot (R) will join the RIAA as outside counsel. See, RIAA release. He is currently a partner in the Washington DC office of the law firm of Bracewell & Patterson. He was Attorney General of Montana before being elected governor in 1992. He was re-elected in 1996 with 79% of the vote. He will bolster the RIAA's ability to lobby the Congress and President on intellectual property issues affecting the music recording industry. He was a very early supporter of President Bush's candidacy for President. His fellow Montanans hold key posts in the Senate. Sen. Conrad Burns (R-MT) is Chairman of the Communications Subcommittee. Sen. Max Baucus (D-MT) is Ranking Democrat on the Finance Committee. 2/27. On Thursday, March 1, the House will likely debate and vote on HR 333, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2001, sponsored by Rep. George Gekas (R-PA). The Judiciary Committee passed the bill on Feb. 14 by a vote of 19-8. On Wednesday, Feb. 28, the Rules Committee will meet to adopt a rule for consideration of the bill. Numerous amendments have been submitted to the Rules Committee, including several pertaining to privacy. 2/27. Rep. Ed Markey (D-MA) sent an amendment to the Rules Committee that would add privacy protections afforded to electronic bankruptcy records by requiring that personal and financial information divulged in a bankruptcy proceeding be disclosed only to individuals and entities that have legitimate interests in the case. It provides that the "clerk of the bankruptcy court ... may provide electronic access to a paper filed in a case", but that the clerk "may not provide electronic access (A) to the debtor’s social security number, date of birth, mother's maiden name, telephone number, or account numbers (including bank account and credit card account numbers); (B) to any of the single line items in the debtor’s schedule of assets or statement of income and expenditures; or (C) to any personal, medical, or financial information regarding the debtor or a relative of the debtor." However, the amendment continues that the clerk may provide electronic access to "a party in interest ... an entity that requires any such information to determine whether it is a party in interest ... the trustee ... the United States trustee; or ... a governmental unit that requires any such information for a bona fide law enforcement purpose". 2/27. Rep. Mark Green (R-WI) sent an amendment to the Rules Committee that would remove the names of children from bankruptcy filings in order to protect their identity from those who prey on children. See, summary of amendments. 2/27. The Senate Judiciary Committee has scheduled a business meeting for Feb. 28 at 9:30 AM to resume markup of its version of the bankruptcy reform bill. 2/27. FCC Chairman Michael Powell appointed Mary Beth Richards to be Special Counsel responsible for an FCC reform project. She has held a number of positions at the FCC, including Deputy Chief of the Common Carrier Bureau, Deputy Managing Director of the FCC, Special Counsel to the Commission for Reinventing Government, Chief of the Enforcement Divisions of the Common Carrier Bureau and the former Field Operations Bureau, and Legal Advisor to the Chief of the Common Carrier Bureau. For more information, contact David Fiske at 202-418-0513. 2/27. Joseph Lombard will join Archipelago as EVP in its soon to be opened Washington DC office. Until recently Lombard was Senior Counsel to former SEC Chairman Arthur Levitt. See, SEC release. 2/27. The ICANN published in its web site a request for comments on internationalized domain names -- that is, the use of non-Roman characters, such as Chinese, Japanese, Arabic, Hebrew, Sanskrit, and Cyrillic characters. 2/27. FCC Commissioner Harold Furchtgott-Roth addressed the Washington DC Bar Association and the Federal Communications Bar Association on "Ex Parte Contacts: How Can Agencies Achieve Neutrality and Transparency?" 2/27. The FCC's Network Reliability and Interoperability Council held a meeting. See, agenda. 2/27. Anna Kraus joined the Washington DC office of the law firm of Covington & Burling as of counsel. She will concentrate on medical privacy, biotech, food and drug regulation, and health care financing issues. She was previously Deputy General Counsel of the Department of Health and Human Services. See, release. 2/26. Former Sen. Connie Mack (R-FL) joined the Washington DC office of the law firm of Shaw Pittman. He will be a senior policy adviser in the government relations practice. Mack choose not to run for re-election in 2000. He served two terms in the Senate, and before that, three terms in the House. See, release. 2/26. Gregory Cirillo, Daniel Hassett, and Christopher Mills joined the northern Virginia office of the law firm of Wiley Rein & Fielding. Cirillo represents technology companies in mergers, acquisitions, venture structuring, asset-backed financing, major technology licenses, technology transfers, and technology alliances. Hassett represents financial institutions, professional service firms, ISPs, Internet commerce participants, software developers and computer systems integrators. Mills focuses on Internet and corporate licensing matters. See, release. 2/26. The GAO issued a report [PDF] titled "Information Security: Advances and Remaining Challenges to Adoption of Public Key Infrastructure Technology." The report found that implementation of Public Key Infrastructrure (PKI) is not commonplace in government, for several reasons, including interoperability problems, high monetary cost of implementation, and the lack of well-defined policies and procedures for ensuring that an appropriate level of security is maintained. The report was requested by Rep. Steve Horn (R-CA), Chairman of the Subcommittee on Government Efficiency, Financial Management and Intergovernmental Relations of the House Committee on Government Reform. 2/26. Rep. Patsy Mink (D-HI) introduced HR 726, a bill that would amend the criminal code to provide that "It shall be unlawful for any person to use the Internet to obtain or dispose of, or offer to obtain or dispose of a firearm." The bill has been referred to the House Judiciary Committee. 2/26. BT announced the appointment of Anne Fletcher as Group General Counsel. She will take over the role in April. She is currently Director of Regulatory Compliance with BT. She will replace Alan Whitfield, who is joining the accountancy firm KPMG. See, BT release. 2/26. The U.S. Court of Appeals (2ndCir) issued its opinion in Conboy v. AT&T, a case regarding the Telecommunications Act of 1996 and electronic privacy. The Appeals Court affirmed the District Court's decision dismissing the plaintiffs' complaint. The plaintiffs, Edward and Eileen Conboy, filed a complaint in U.S. District Court (SDNY) alleging that AT&T improperly disseminated proprietary information about them to AT&T Universal Card Services (UCS) to help UCS collect credit card debt, in violation of § 222 of the Telecommunications Act of 1996, FCC regulations thereunder, the Fair Debt Collection Practices Act, and New York State law. Plaintiffs were neither the debtors, nor guarantors of the debt: their daughter is law was the debtor. Nevertheless, AT&T gave UCS their unlisted phone. UCS made between 30 and 50 harassing phone calls to them, some at unusual hours. The District Court dismissed the entire complaint for failure to state a claim upon which relief can be granted. The Appeals Court affirmed. The Electronic Privacy Information Center filed an amicus brief with the Court of Appeals. 2/26. The Supreme Court of the United States denied certiorari in both Semiconductor Energy Laboratory v. Samsung Electronics (00-127) and Samsung Electronics v. Semiconductor Energy Laboratory (00-138). See, Order List [PDF], at page 3. 2/26. The FTC appointed Dale Hatfield to be its monitor trustee in its AOL Time Warner merger proceeding. Until the end of last year Hatfield was the Chief of the FCC's Office of Engineering and Technology. See, FTC release and FTC letter [PDF] to AOL and Time Warner. 2/26. The U.S. Court of Appeals (DCCir) held the first of two days of oral arguments in U.S. v. Microsoft. Arguments continue on Feb. 27 at 9:30 AM. See, transcript. 2/26. The NTIA released a copy of a notice to be published in the Federal Register requesting comments on Section 105(a) of the Electronic Signatures in Global and National Commerce (E-SIGN) Act. Section 105(a) of the E-SIGN Act directs the Secretary of Commerce to prepare a study comparing the effectiveness of electronic mail in the delivery of electronic records with the effectiveness of traditional methods of document delivery, such as mail and express delivery services, and to report the findings of the study to Congress no later than June 30, 2001. Comments will be due within 30 of publication in the Federal Register. See also, NTIA release. 2/26. Qualcomm announced that it has settled one class action suit brought by former employees arising out of the sale of Qualcomm's infrastructure division to Ericsson. Qualcomm settled the suit filed San Diego County Superior Court filed by the law firm of Milberg Weiss. Qualcomm stated that "Under the terms of the settlement, $11 million (minus attorneys' fees and costs), which is being contributed by third parties, will be distributed to the more than 800 former employees in the class." The Court has yet to approve the agreement. Qualcomm develops wireless telecommunications technologies, including CDMA. See, Qualcomm release. 2/26. eToys.com announced that it intends to file for bankruptcy protection. 2/26. The ICANN published a notice in its web site that "one of the topics to be discussed at the ICANN public forum on 12 March 2001 in Melbourne is agreements between ICANN and the selected sponsors or operators of the new, proof-of-concept TLDs." 2/26. President Bush nominated Mark Weinberger to be an Assistant Secretary of the Treasury. See, release. 2/26. Feb. 26 was the deadline to file comments with the USTR pertaining to the WTO dispute settlement proceeding regarding § 110(5)(B) of the U.S. Copyright Act. A WTO Dispute Settle Body has found the statute is inconsistent with U.S. treaty obligations under the TRIPs Agreement. See, notice and request for comments in the Federal Register. |
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