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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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3/9. The SEC filed a civil complaint in U.S. District Court (SDFl) against Families Online Corp. (FOL) and its two principals, Mark Thurman and Robert Fiene, alleging violation of federal securities laws, including fraud and sale of unregistered securities. The complaint states that they sold unregistered of securities of FOL, which they purported would provide Internet filtering software. The complaint further states that the defendants made false statements in the FOL web site. In addition, the USAO (SDFl) unsealed indictments against Thurman and Fiene instituting parallel criminal proceedings. See, SEC release. 3/9. On March 7 the U.S. District Court (NDOhio) permanently enjoined Lloyd Wollmershauser, who operated a web site and newsletter called The PennyStockMan, from violating several sections of the federal securities laws, and to disgorge $205,000. Defendant used his web site, newsletter and emails to provide microcap stock recommendations. Defendant touted the stock of, and made false statements about, a company in which he owned stock. On March 9 the SEC instituted an administrative proceeding, and entered an order, against Wollmershauser, that bars him from participating in any offering of a penny stock, including acting as a promoter, finder, or consultant, or inducing the purchase or sale of any penny stock. The SEC determined that Wollmershauser was an investment adviser as defined by § 202(a)(11) of the Investment Advisers Act of 1940. 3/9. The U.S. Court of Appeals (3rdCir) issued its opinion in In Re Unisys, a class action filed on behalf of retirees and disabled former employees of Sperry, Burroughs, and Unisys against Unisys. The dispute arose out of Unisys' termination of post-retirement medical plans for retirees and disabled former employees of the three companies. On appeal were two orders granting partial summary judgment to the Unisys. Reversed and remanded. 3/9. USTR Robert Zoellick and EU Commissioner for Trade Pascal Lamy held a joint press conference. See, transcript. 3/9. President Bush announced his intent to nominate James Jochum to be Assistant Secretary of Commerce for Export Administration. He is presently a Senior Manager for Government Relations for Accenture. He was previously Majority Counsel for the Senate Banking Committee, and Trade Counsel and Legislative Director for Sen. Charles Grassley (R-IA). See, Bush release. 3/9. Sen. Conrad Burns (R-MT) introduced S 500, the Universal Service Support Act, a bill to amend § 254 of the Communications Act of 1934 to remove the FCC's caps and limitations on universal service support. Sen. Burns is Chairman of the Senate Communications Subcommittee, and a senior member of the full Commerce Committee, which have jurisdiction over the bill. See, Burns release. Senators Max Baucus (D-MT), Tom Daschle (D-SD), Blanche Lincoln (D-AR), and Byron Dorgan (D-ND) are cosponsors. The USTA CEO Gary Lytle said that "Last year alone, the approximately 1,300 rural telephone companies affected by the caps were denied nearly $131 million in vital support for which these companies qualify." See, release. Similarly, NTCA CEO Michael Brunner stated that the bill would ensure "support for the deployment of advanced services to rural America." 3/9. An institutional investor filed a complaint [PDF] in U.S. District Court (NDCal) against Oracle and its CEO Larry Ellison alleging violation of federal securities laws. The plaintiff, who seeks class action status, is represented by the law firm of Milberg Weiss. The factual allegations contained in the complaint include making false statements, and insider trading by Ellison. The complaint states that Ellison "sold ... Oracle stock despite his possession of adverse information about Oracle's business which he knew had not been disclosed to the public." The single count complaint alleges violation of § 10b of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. Oracle, based in Redwood Shores, California, provides database software and support services. Milberg Weiss specializes in bringing securities class action lawsuits against tech companies when their stock prices drop. It has also recently filed suits against AT&T, Broadcom, Covad, Deutsche Telekom, Gateway, Macromedia, MP3.com, Nortel, PSINet, VALinux and many other tech companies. 3/9. The Copyright Office of the Library of Congress issued a Notice of Inquiry requesting public comments regarding the interpretation and application of the mechanical and digital phonorecord compulsory license to certain digital music services. See, 17 U.S.C. § 115. Comments are due by April 23, 2001. Reply comments are due by May 23, 2001. See, Federal Register, March 9, 2001, Vol. 66, No. 47, at Pages 14099 - 14103. 3/9. The U.S. Court of Appeals (1stCir) issued its opinion in Gleason v. Norwest Mortgage, a case involving a "right of first offer" in the sale of a software company. Gleason founded a business that developed and sold computer software to search, store, and retrieve real estate listing information. He then sold it to Norwest, with a clause that provided that if Norwest decided to sell it within five years, it was required to first to offer it to Gleason. Norwest sold the business to a third party. Gleason sued. The District Court granted summary judgment to Norwest. The Appeals Court affirmed in part, reversed in part, and remanded. 3/9. The U.S. Court of Appeals (7thCir) issued its opinion in Berthold Types v. Adobe, a Lanham Act case in which Adobe substantially prevailed in the District Court. The Appeals Court opinion deals primarily with the issues of attorneys fees, the differences between Rules 12(b)(6) and 56, and Rule 41(a)(1)(i) voluntary dismissals. Also, Judge Easterbrook dressed down District Judge Bucklo for not understanding the FRCP and for sloppy case handling. Adobe and Berthold entered into a contract that gave Adobe a non-exclusive right to include Berthold's typefaces in the Adobe Type Library (ATL) in return for royalty payments, but which did not require Adobe to use Berthold typefaces. In 1999 Adobe stopped using Berthold typefaces in the ATL. Berthold filed a complaint against Adobe under various tenuous legal theories, including breach of contract and the Lanham Act. The District Court granted Adobe's Rule 12(b)(6) motion to dismiss some claims, without prejudice, but did so on the basis of contract language which was neither plead nor attached to the complaint. The District Court also denied, without explanation, Adobe's request for attorneys fees. Easterbrook wrote, "The district court's handling of this litigation leaves much to be desired." Held: motion to dismiss should have been treated as a Rule 56 motion for summary judgment, and granted with prejudice; Adobe is entitled to attorneys fees as the prevailing party; and one remaining claim is remanded. 3/9. Friday, March 9 was the deadline to file reply comments with the FCC in response to its notice of proposed rulemaking (NPRM) regarding reallocation of spectrum for use by Third Generation (3G) wireless services. 3G is intended to provide broadband Internet access to portable devices. See, Federal Register, Jan. 23, 2001, Vol. 66, No. 15, Pages 7438 - 7443. ET Docket No. 00-258. See, for example, reply comments [in PDF] by the Wireless Communications Association, Qualcomm, National ITFS Association, and Verizon. 3/9. The National Telecommunications and Information Administration (NTIA) released a report [150 pages in PDF] titled "Assessment of Compatibility between Ultrawideband (UWB) Systems and Global Positioning Systems (GPS) Receivers." 3/8. Sen. Byron Dorgan (D-ND) introduced S 512, the Internet Tax Moratorium and Equity Act, a bill authorizing states to adopt a uniform set of rules for collecting taxes on remote sales, including Internet sales. The bill would extend the existing moratorium on Internet access, multiple and discriminatory taxes through December 31, 2005. It would also encourage states and localities to adopt uniform definitions for goods and services, uniform procedures for the treatment of exempt purchasers, and uniform rules for attributing transactions to particular tax jurisdictions, as well as uniform audit procedures and a seller's option for a single audit. It would authorize states to enter into an Interstate Sales and Use Tax Compact through which member States would adopt this uniform system. Finally, it would prohibit states which have not adopted this uniform system from gaining certain authority extended under the bill. Sen. Dorgan stated that "we believe that our legislation strikes a proper balance between the interests of the Internet industry, State and local governments, local retailers and remote sellers." 3/8. Rep. Bob Goodlatte (R-VA) was assigned to an additional House committee: Education and Workforce. See, Goodlatte release. Goodlatte already sits on the Judiciary Committee and its Subcommittee on Courts, Internet, and Intellectual Property, as well as the Agriculture Committee. He is also a Co-chair of the Internet Caucus. Goodlatte brings an active interest in technology and communications issues to all of his committee assignments. 3/8. The Secret Service executed two search and seizure warrants in Queens and Manhattan, New York, against a music counterfeiting operation. It seized counterfeit music CDs, as well as equipment used to produce counterfeit music CDs, including CD-R burners, computer monitors, computers, thermal imprinters, paper-cutting machines, laptops computer, industrial color copiers, and industrial shrink-wrap machines. The Secret Service was assisted by the RIAA's New York Anti-Piracy Unit. See, RIAA release. 3/8. Bill O'Neill joined the Washington DC office of the law firm of Latham & Watkins as a partner. He previously was a partner in the Washington DC office of Crowell & Moring, where he was chair of the corporate department. He has handled mergers, asset purchases, and other transactions in the telecommunications, aerospace, defense, and energy industries. He also represented Raytheon in the formation and initial capitalization of Exostar, an aerospace B2B exchange. See, release. 3/8. Peter Shields was elected to be the next President of the Federal Communications Bar Association. He is a partner in the communications and business law practice groups of the Washington DC office of the law firm of Wiley Rein & Fielding. He assumes office in July 2001. See, release. 3/8. Thomas White, Thomas Hicks, and others opened a Tysons Corner, Northern Virginia, office for the law firm of Wilmer Cutler & Pickering. See, release. 3/8. Steven Green, who was U.S. Ambassador to Singapore from November 1997 through March 1, 2001, has joined the board of directors of Asia Global Crossing. AGCX provides broadband data and voice communications to businesses and telecom carriers in Asia. It was formed in 1999 by Global Crossing, which is the majority shareholder of AGCX. Global Crossing is developing a global network of undersea fiber optic cable. See, release. 3/8. The House passed HR 3, the Economic Growth and Tax Relief Act of 2001, President Bush's proposal to reduce tax rates, by a vote of 230 to 198. See, Roll Call No. 45. 3/8. The House Commerce Committee's Subcommittee on Commerce, Trade, and Consumer Protection held a long hearing titled EU Data Protection Directive: Implications for the U.S. Privacy Debate. The event provided several subcommittee members and witnesses the opportunity to criticize the EU Privacy Directive, as well as the Safe Harbor. Committee Chairman Billy Tauzin (R-LA) was not present, but submitted a scathing criticism of the EU Privacy Directive for the record. He called it "an effort to impose the EU's will on the U.S." It also "could be the imposition of one of the largest trade barriers ever seen and is a direct reversal of the efforts we have made in various free trade agreements." Moreover, "the costs would be in the multi-billions, and are all costs that will be passed on to consumers." He also wrote that the Europeans do not enforce it against themselves; "In fact, a number of nations have not even bothered to ... enact implementing legislation." He suggested that EU enforcement against U.S. companies would therefore constitute a "double standard." He also pointed out that the EU Privacy Directive creates a private right of action. This, Tauzin wrote, would infringe U.S. sovereignty, and subject U.S. companies to financially crippling class action lawsuits. Tauzin also criticized the Safe Harbor. Subcommittee Chairman Cliff Stearns (R-FL) presided. He stated that "I am concerned about the potentially regressive impact of the Directive ... on international commerce and more specifically on commerce between the European Community and the United States. I am not convinced ... that the safe harbor provisions negotiated by Ambassador Aaron in the previous administration will help mitigate the concern over regressive effects." Rep. Steve Buyer (R-IN) attacked the EU for trying to set standards for the rest of the world, and for opposing free trade. He also quipped that he understands "the good judgment of my ancestors to leave the continent." Two Democrats had kind words for the EU Privacy Directive, Rep. Diana DeGette (D-CO) and Rep. Ed Markey (D-MA). However, Markey's comments were directed mostly at the privacy provisions of the Gramm Leach Bliley bill, which he called "a pathetic joke", the Republican Party, for denying him floor votes on privacy amendments, and corporate America, for violating privacy. Two Europeans testified, Stefano Rodota (Chairman of the EU Data Protection Working Party) and David Smith (Office of the UK Information Commissioner). Smith often qualified his remarks with the statement that he did not speak on behalf of the EU. Rodota speaks English with difficulty. Moreover, the two confused subcommittee members with contradictory or non-responsive responses to questions about EU law and procedure. See, Rodota statement and Smith statement. Finally, the subcommittee heard from a panel of U.S. and Canadian witnesses. Jonathan Winer, an attorney with the law firm of Alston & Byrd, condemned the EU Privacy Directive in his testimony; "The stakes are not just protecting privacy, but simultaneously protecting sovereignty, protecting Constitutional freedoms, especially the freedom of expression, and preventing the risk of serious harm to the U.S. and to the global economy." Former Ambassador David Aaron read a statement in which he said that "there are a number of fundamental problems with the European Directive. First, it was conceived over a dozen years ago when there was no World Wide Web ..." In contrast, Joel Reidenberg, a law professor at Fordham University, praised the Directive. See, statement. Barbara Lawler of Hewlitt Packard explained her company's participation in the Safe Harbor. Denis Henry of Bell Canada also testified. 3/8. The House Commerce Committee's Subcommittee on Telecommunications and the Internet held an information gathering hearing titled Technology and Education: A Review of Federal, State, and Private Sector Programs. See, witness statements: Kate Moore (USAC), David Spencer (Michigan Virtual Univ.), Dan Domenech (Fairfax County Pub. Sch.), Dale McDonald (Nat. Cath. Educ. Assoc.), Judith McHale (Discovery Comms.), Hal Krisbergh (WorldGate Comms.), Rae Grad (PowerUP), Jennifer House (Classroom Connect), Emlyn Koster (Liberty Science Center). 3/8. The House Judiciary Committee approved several tech related bills at a mark up session. HR 809, a bill to make minor technical corrections to various antitrust laws, was approved without debate or amendment. S 320, a bill to make technical corrections in patent, copyright, and trademark laws, was adopted quickly with a technical amendment. HR 741 was also adopted. It amends the Trademark Act of 1946 to implement the Madrid Protocol, an international trademark treaty. The Protocol seeks to provide a one-stop inexpensive method for trademark registration and protection. 3/8. The FBI's NIPC issued an advisory and a release regarding "a series of organized hacker activities specifically targeting U.S. computer systems associated with e-commerce or e-banking. Despite previous advisories, many computer owners have not patched their systems, allowing these kinds of attacks to continue ..." The advisory states that "several organized hacker groups from Eastern Europe, specifically Russia and the Ukraine ... have penetrated U.S. e-commerce computer systems by exploiting vulnerabilities in unpatched Microsoft Windows NT operating systems." They download proprietary information, customer databases, and credit card information, and then extort money under the guise of providing security services. Microsoft also commented. "One of the most troubling aspects of these attacks is that virtually all of them were carried out via known vulnerabilities for which patches have been available for months or, in some cases, years," said Scott Culp, Security Program Manager of the Microsoft Security Response Center, in a Security Bulletin. See also, Microsoft companion article. 3/8. EU Trade Commissioner Pascal Lamy gave a speech in Washington DC on EU US trade disputes. 3/8. The U.S. Court of Appeals (DC Cir) heard oral argument in Platte River Cellular Limited Partnership v. FCC. 3/8. A grand jury of the U.S. District Court (EDCal) returned an indictment against three individuals for wire fraud and mail fraud for operating a fraudulent bidding ring on the eBay auction web site. The indictment alleges that the defendants created more than 40 User IDs on eBay using false registration information, and then used those aliases to place fraudulent bids to artificially inflate the prices of hundreds of paintings they auctioned on eBay. The case is being prosecuted by AUSAs Christopher Sonderby and Michael Malecek. See, DOJ release. 3/8. The U.S. District Court (NDIll) approved a settlement agreement in the SEC's civil enforcement action against Yun Soo Oh Park, an Internet stock picker known as Tokyo Joe, and the company that he controls. Tokyo Joe and his company consented to entry of an order that enjoins them from violating the antifraud and other provisions of the federal securities laws, and orders them to pay $324,934 in ill-gotten gains and $429,696 in civil penalties. They also agreed to post a hyperlink to the court order on the home page of their stock picking web site. The SEC had charged Tokyo Joe and his company with defrauding subscribers by failing to disclose that he purchased shares of the stock that he was recommending and that he planned to sell his shares when the price rose following his recommendations. The SEC had also charged Tokyo Joe with illegal touting. The Court had previously rejected Tokyo Joe's argument that he was not an "investment advisor" within the meaning of the Investment Advisors Act. Said SEC Enforcement Director Richard Walker, "This case has established groundbreaking precedent. Those who are in the business of offering investment advice on the Internet may take on the same duties and responsibilities as other investment advisers." See, SEC release. 3/7. Jesus Oquendo was convicted in U.S. District Court (SDNY) of illegal computer intrusion and electronic eavesdropping. He is a former computer security specialist whose hacking began with access to the offices of his first victim. See, DOJ release. 3/7. Rep. Mark Udall (D-CO) introduced HR 932, the Science Teacher Scholarships for Scientists and Engineers Act, a bill to provide scholarships for scientists and engineers to become certified as science, mathematics, and technology teachers in elementary and secondary schools. It was referred to the House Science Committee. See, release. 3/7. Sen. Mike Crapo (R-ID) introduced S 473, a bill to amend the Elementary and Secondary Education Act of 1965 to improve training for teachers in the use of technology. It was referred to the Senate Committee on Health, Education, Labor, and Pensions. 3/7. Sen. Pat Roberts (R-KS) introduced S 478, a bill to establish and expand programs relating to engineering, science, technology and mathematics education. It was referred to the Committee on Health, Education, Labor, and Pensions. He stated that "the American educational system is not producing enough students with specialized skills in engineering, science, technology, and math ... As a result of this shortage of skilled workers, Congress had to increase the number of H-1B visas by almost 300,000 from fiscal year 2000 to fiscal year 2002." He also stated that this is a national security issue. "We don't have the people to do the job to protect our country in regard to cyber threats ..." 3/7. Sen. Orrin Hatch (R-UT) and Sen. Patrick Leahy (D-VT) introduced S 487, the Technology Education and Copyright Harmonization Act -- TEACH Act. This bill would amend § 110(2) of the Copyright Act to expand the educational use exemption in the copyright law to include online distance learning. 3/7. Sen. Hatch stated in the Senate that "copyright law contains a number of exemptions to copyright owners' rights relating to face-to-face classroom teaching and instructional broadcasts. While these exemptions embody the policy that certain uses of copyrighted works for instructional purposes should be exempt from copyright control, the current exemptions were not drafted with online, interactive digital technologies in mind. As a result, the Copyright Office concluded that the current exemptions related to instructional purposes are probably inapplicable to most advanced digital delivery systems ..." He added that "the primary goal of this legislation is ... to promote digital distance learning by permitting certain limited instructional activities to take place without running afoul of the rights of copyright owners." 3/7. Sen. Leahy stated in the Senate that S 487 "makes three significant expansions in the distance learning exemption in our copyright law ... First, the bill eliminates the current eligibility requirements for the distance learning exemption that the instruction occur in a physical classroom or that special circumstances prevent the attendance of students in the classroom. Second, the bill clarifies that the distance learning exemption covers the temporary copies necessarily made in networked servers in the course of transmitting material over the Internet. Third, the current distance learning exemption only permits the transmission of the performance of 'non-dramatic literary or musical works,' but does not allow the transmission of movies or videotapes, or the performance of plays." 3/7. Rep. John Dingell (D-MI), ranking Democrat on the House Commerce Committee, gave an address at a USTA conference in which he advocated FCC reform and interlata data relief for phone companies. He stated that "FCC reform is one of the top priorities of the Energy and Commerce Committee. Too often, the FCC is hamstrung by dint of its antiquated design. Separate bureaus assigned to each segment of the industry may have worked well enough in days gone by. But today the FCC's smokestack mentality is simply a relic, ill-equipped to handle the convergence of technologies that are at the heart of your modern industry." He said that he and Rep. Billy Tauzin (R-LA) would soon re-introduce their bill (HR 2420 in the 106th Congress) that "simply draws a line in the sand when it comes to the regulation of advanced services such as high-speed Internet connections. The idea is to establish a regulatory-free zone so that telephone companies can compete with cable companies and others on a level playing field." He concluded that "the distinction between local and long distance telephone service will become increasingly irrelevant in the days to come. It is an artificial distinction based on geography that means little in a world of fiber optics and packet-switched networks." 3/7. FCC Chairman Michael Powell stated at the USTA conference that, in light of the opinion of the U.S. Court of Appeals (DCCir) in Time Warner Entertainment v. FCC overturning the FCC's cable ownership caps on March 2, AT&T may not be required to sell some of its cable assets, as the FCC required in its June 5, 2000 order [PDF] in its AT&T MediaOne merger proceeding. 3/7. The USTA held its annual National Issues Conference in Washington DC. See, release. See also, release re address by Rep. John Dingell (D-MI), release re address by Rep. Rick Boucher (D-VA), and release re address by Rep. Roy Blunt (R-MO). 3/7. Michael Trollinger and John Hechendorn plead guilty to identity theft, possession of stolen mail, and possession of a counterfeit postal key in U.S. District Court (WDWash). Defendants did not use the Internet, computers, or electronic databases to commit identity theft. They did it an old fashioned way: by stealing other people's USPS mail. See, release. 3/7. The U.S. Court of Appeals (5thCir) issued its opinion in USA v. Grimes, a criminal case involving search and seizure of files stored on a computer hard drive. Defendant's wife took his Windows computer to a private repair business because it would not boot. A repair technician determined, among other things, that the hard drive was low on space. He then proceeded to delete JPG files, after first opening them. He found 17 files in the My Briefcase directory that contained pictures of girls. He reported this to his supervisor, who called police, who called in the FBI. Defendant was charged with possession of çhild pormography in violation of 18 U.S.C. § 2252(a)(4)(B). He challenged the admission of pictures and other evidence on 4th Amendment grounds. The Appeals Court rejected the argument because the search was conducted by a private party, not law enforcement agents. Conviction vacated on other grounds. 3/7. Microsoft announced the settlement of three lawsuits filed in U.S. District Court (DColo) in 1999 and 2000 alleging copyright infringement. All three companies consented to a permanent injunction prohibiting future infringement of Microsoft's copyright and trademark rights, and to pay a total of $400,000. See, release. 3/7. Will Poole, VP of Microsoft's Windows Digital Media Division, commented on the Napster decision and peer to peer distribution. "This week's Napster court ruling reaffirms the rights of intellectual property owners everywhere, including musicians, record labels, film studios and software companies. The court ruling makes it crystal clear that copyright ownership counts." See, statement. 3/7. The FTC published in the Federal Register a notice of amendment to its rule regarding the appearances of former members and employees. See, Federal Register, March 7, 2001, Vol. 66, No. 45, at Page 13645. 3/7. The London law firms of Paisner & Co and Berwin Leighton announced that they will merge, effective May 1. The new firm will be known as Berwin Leighton Paisner. See, release. 3/7. EMusic.com filed a complaint in U.S. District Court (NDCal) against Napster alleging contributory and vicarious copyright infringement and unfair competition. EMusic President Gene Hoffman stated in a release that "We welcome the injunction that the court has issued against Napster. It is a major step towards leveling the playing field for legitimate downloadable music companies." 3/7. eToys Inc. and eToys Distribution LLC filed Chapter 11 petitions for bankruptcy in U.S. Bankruptcy Court (DDel). 3/7. "The U.S. Court of Appeals (FedCir) heard oral argument in Lans v. Digital Equipment Corp." 3/7. The Senate Commerce Committee held a hearing to examine voting technology reform. Sen. John McCain (R-AZ) and Sen. Ernest Hollings (D-SC), the Chairman and Ranking Democrat on the Committee, respectively, are cosponsors of S 368, the American Voting Standards and Technology Act, which would direct the NIST to conduct a study of several voting related topics, including "any future and emerging technologies for use in elections, such as Internet voting." Sen McCain said in his opening statement [PDF] that "we must modernize our voting machinery and improve our voting process without barraging the states and local governments with excessive rules and regulations." See also, prepared statements [in PDF] of witnesses: • Sen. Chris Dodd (D-CT). • Rep. Asa Hutchinson (R-AR). • Sen. Charles Schumer (D-NY). • Bill Bradbury (Secretary of State, Oregon). • Cathy Cox (Secretary of State, Georgia). • Ron Thornburgh (Secretary of State, Kansas). • Wade Henderson (LCCR). • Mary Jane O’Gara (AARP). • Raul Yzaguirre (La Raza). 3/7. The House Science Committee held a hearing titled "K-12th Grade Math and Science Education: the View from the Blackboard." It heard from a panel of school teachers. 3/7. The U.S. Court of Appeals (FedCir) issued its opinion in Crystal Semiconductor v. Tritech Microelectronics, a patent infringement case. At issue were U.S. Patent Nos. 4,746,899, 5,220,483, and 4,851,841, which involve analog to digital converter technology used in the compact disc burners and sound cards of PC systems. The Court of Appeals affirmed the district court's claim interpretation and judgments holding the '899, '841, and '483 patents willfully infringed by TriTech. It also affirmed the judgment that Crystal is not entitled to price erosion damages or prejudgment interest. It also vacated the judgment that the '841 patent is not invalid due to an on-sale bar and remands for trial. It also reversed the judgment that Crystal is not entitled to lost profit damages. Finally, it vacated the damages order, and remanded the case to the District Court to enter damages totaling $34,929,379 for Crystal to be paid by TriTech. 3/7. The U.S. Court of Appeals (FedCir) issued its opinion in Micron Technology v. US and LG Semicon, a case regarding dumping margins for imports of dynamic random access memory semiconductors from Korea that involved interpretation of the 1994 amendments to the Tariff Act of 1930. 3/6. The California Court of Appeal issued its opinion in Kathleen R. v. Livermore, a case brought by the mother of a child who used Internet access computers at the Livermore Public Library; she seeks to compel the library to install filtering software on children's computers at the library. The Court of Appeal affirmed the trial court's dismissal of the case. The plaintiff's original complaint against the City of Livermore asserts three novel legal theories under California state law: (1) the use of public funds to pay for children's access to pormography constitutes a "waste of public funds" under § 526 of the Calif. Code of Civil Proc., (2) the library's policy constitutes a "nuisance", and (3) "premises liability." The amended complaint added a fourth theory: substantive due process. The City of Livermore argued that Section 230 of the Telecom Act of 1996 bars the action. See, respondent's brief. (See also, amicus brief filed by the ACLU Northern Cal. and PFAW, and amicus brief filed by the Calif. State Assoc. of Counties.) The Court of Appeal, like the trial court, held that the state causes of action are precluded by § 230(c)(1) of the Telecom Act, which states that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." The Court of Appeal relied upon previous § 230 cases, including Blumenthal v. Drudge, Zeran v. AOL, and the Mainstream Loudoun v. Loudoun cases, Loudoun I and Loudoun II. The Court also held that the claim to a "right to substantive due process also fails. The government has an interest in protecting minors from harmful materials on the Internet ... but it does not have a constitutional duty to do so." 3/6. Rep. Rick Boucher (D-VA) gave a major policy address in which he advocated changes to copyright law to "reaffirm the fair use doctrine" in the context of digital and Internet media. Rep. Boucher is a senior member of the House Courts, Internet and Intellectual Property Subcommittee, and has long been active in debating and drafting IP legislation. He criticized the anti-circumvention provisions of the Digital Millennium Copyright Act. He would like to amend the law to provide that only circumvention for the purpose of infringement be prohibited. He also stated that "the time has come for the motion picture studios to present a proposal" to protect copyright in digitally broadcast TV programs along the model that Section 1201(k) provides for VCR copying. He next proposed that the Congress "reaffirm the fair use doctrine" in six specific areas. First, the existing copyright exemption for distance learning applications in broadcast and closed circuit television should be extended to personal computers and the Internet. Second, the "the first sale doctrine should be made applicable for online sales of copyrighted material." Third, "temporary copies, which are essential to the operation of digital products and networks, should be made unequivocally lawful under the copyright law." Fourth, computer users should be permitted to back up data associated with programs. Fifth, the in store exemption that permits musical sampling in record stores should be extended to the Internet. Sixth, it should be lawful for people who buy CDs to archive the content of their music CDs on the Internet, and listen to these recordings anywhere. 3/6. The RIAA appointed of Rafael Fernandez to be its Vice President of Latin Music. Previously, Fernandez worked for served 17 years at the Miami-Dade Police Department, most recently as the Major Fraud Section Commander in the Economic Crimes Bureau. He directed anti-piracy investigations in conjunction with the RIAA and the MPAA. 3/6. Morgan Stanley Dean Witter submitted a Request for Advisory Opinion [26 pages in PDF] to the Federal Election Commission requesting an opinion that it is permissible, pursuant to the E-SIGN Act, to use electronic signatures to authorize payroll deductions for the MSDW political action committee. It wrote: "Given the near-ubiquitous use of computer and Internet technology in the workplace today, MSDWPAC would like to solicit its restricted class members via the Internet and accept their payroll deduction authorizations in a form other than the traditional, written signature on a hard copy. Specifically, MSDWPAC intends to establish an Internet website which would enable its restricted class members to authorize payroll deductions via electronic signature. To ensure that only restricted class members have access to this website, it will be password protected." 3/6. President Bush sent to Congress a report titled 2001 Trade Policy Agenda and 2000 Annual Report of the President of the United States on the Trade Agreements Program. See, USTR release. 3/6. The European Patent Office published in its web site PDF copies of 88 decisions of its Board of Patent Appeals from 2000 and early 2001. 3/6. Mark Dipadova and Theresa Ford plead guilty in U.S. District Court (DSC) to conspiracy to traffic in counterfeit watches and other goods, in violation of 18 U.S.C. § 371. They conducted their criminal operation through a website formerly located at www.fakegifts.com. This case is being prosecuted by AUSA Dean Eichelberger. See, DOJ release. 3/6. The ICANN published a statement of the recommendations of its .com/.net/.org Whois Committee. 3/6. The ICANN published a statement regarding proposals to revise the agreements between the ICANN and VeriSign. 3/6. The ICANN announced that eighteen additional companies have qualified to be accredited as domain name registrars in the .com, .net and .org domains. See, release. The ICANN will hold its next round of meetings on March 9-13 in Melbourne, Australia. 3/6. A report [62 pages in PDF] commissioned by the National Science Foundation (NSF) and the Internet Policy Institute concluded that "Trials should proceed in which Internet terminals are used at traditional polling places, but remote voting from home or the workplace is not viable in the near future." The report states that "remote Internet voting systems pose significant risk and should not be used in public elections until substantial technical and social science issues are addressed." It also states that "Internet-based voter registration poses significant risk to the integrity of the voting process ... ." See, release. 3/6. On The Senate Commerce Committee will hold a hearing on Wednesday morning to examine voting technology reform. Sen. John McCain (R-AZ) and Sen. Ernest Hollings (D-SC), the Chairman and Ranking Democrat on the Committee, respectively, are cosponsoring S 368, the American Voting Standards and Technology Act, that would direct the NIST to conduct a study of several voting related topics, including "any future and emerging technologies for use in elections, such as Internet voting." 3/6. The FBI's Internet Fraud Complaint Center (IFCC) and the National White Collar Crime Center released a report [PDF] on Internet fraud trends and statistics. It states that "The IFCC began operating on May 8, 2000. Between the inception date and November 8, 2000 ... 20,014 filings were made. ... auction fraud is by far the most reported Internet fraud, comprising nearly two-thirds of all referred complaints. Non-deliverable merchandise and payment accounts for another 22% of complaints, and credit and debit card fraud make up almost 5% of complaints." See, FBI release. 3/6. The FBI's NIPC released a statement in which it stated that it "is evaluating an Internet worm by the name of ... that has been propagating in the wild. The NIPC considers this to be a medium threat due to its destructive payload and mass mailing capability." 3/6. A WIPO Arbitration and Mediation Center panel issued its decision in Ingram Micro Inc v. Noton Inc. The petitioner, Ingram Micro, a large wholesale provider of technology products and services, has registered the trademark "Ingram Micro". The respondent is a company that deals in domain names. It registered several misspellings of Ingram Micro -- ingramicro.com, ingrammirco.com, and ingrimmicro.com. The respondent did not answer the complaint. The panel found that the domain names are confusingly similar to Ingram Micro's trademark, that respondent has no rights or legitimate interests in respect of the domain names, and that it registered them in bad faith. The panel ordered the domains transferred to Ingram Micro. 3/6. The GAO issued a report [PDF] titled "Financial Services Regulators: Better Information Sharing Could Reduce Fraud." It concluded that "a more integrated financial services industry as envisioned by the passage of the Gramm-Leach-Bliley Act highlights the need for strong information-sharing capabilities among financial services regulators." 3/6. President Bush announced his intent to nominate John Graham to be Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget. He is now a Professor of Policy and Decision Sciences at the Harvard School of Public Health and founding director of the Harvard Center for Risk Analysis. See, release. |
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