News from March 6-10, 2003

Supreme Court Grants Certiorari in Verizon v. Trinko

3/10. The Supreme Court granted certiorari in Verizon v. Trinko, a case involving the application of Section 2 of the Sherman Antitrust Act, 15 U.S.C. § 2, in the context of telecommunications. The Court's Order List [14 pages in PDF], at page 4, states that "The petition for a writ of certiorari is granted limited to the following Question: ``Did the Court of Appeals err in reversing the District Court's dismissal of respondent's antitrust claims?´´" See, full story.

Supreme Court Denies Cert in Natron v. STMicroelectronics

3/10. The Supreme Court denied certiorari in Nartron v. STMicroelectronics, a trademark case involving the use of the term "smart power" in connection with semiconductors. See, Order List [14 pages in PDF], at page 6. The courts below ruled that "smart power" is a generic term in the semiconductor industry.

Background. Nartron makes electronic devices including sensors, acoustic devices, displays, controls, harnesses and connectors, lamps, flashers and switches. STMicroelectronics (ST) makes semiconductors, including products that combine power and intelligence on a single integrated circuit chip.

Nartron began using "Smart power" in 1978. It obtained a federally registered trademark for "Smart power" for "electrical relay assemblies in combination with electrical logic components and parts thereof" in 1982. Nartron broadened the identification of its goods to "electrical power circuits in combination with electrical logic circuits and parts thereof" in 1986. ST has used "smart power" since 1988. So have others in the semiconductor industry. It is used to refer to technology that combines power transistors and control circuitry on a single integrated circuit.

District Court. Narton filed a complaint in 1998 in U.S. District Court (EDMich) against ST alleging wilfull infringement in violation of 15 U.S.C. §§ 1051-1127, unfair competition in violation of 15 U.S.C. § 1125(a), dilution of the distinctive and valuable quality of the "Smart power" trademark in violation of 15 U.S.C. § 1125(c), and unfair competition and trademark infringement in violation of Michigan common law.

ST moved for summary judgment on Narton's trademark infringement claim on the grounds that "smart power" is a generic term not subject to protection, and that Narton's suit is barred by the doctrine of laches, due to its unreasonable delay of 11 years in filing suit. The District Court granted summary judgment to ST on both grounds.

Appeals Court. Nartron appealed to the U.S. Court of Appeals (6thCir), which issued its opinion affirming the District Court on October 1, 2002, on the grounds of genericness and laches. It wrote that "ST produced overwhelming evidence, which Nartron failed to rebut, that the term ``smart power,´´ as used by ST and other participants in the semiconductor industry, denotes a type of technology, not goods associated with Nartron." It also found that Natron's eleven year delay in brining suit was too long.

See, story titled "6th Circuit Rules on "Smart Power" Trademark", TLJ Daily E-Mail Alert No. 521, October 2, 2002.

DOD Establishes Technology and Privacy Advisory Committee

3/10. The Department of Defense (DOD) published a notice in the Federal Register stating that it is establishing a Technology and Privacy Advisory Committee (TAPAC). The DOD stated that "The TAPAC will advise the Secretary of Defense concerning the legal and policy considerations implicated by the application of pattern queries/data correlation technology to counter-terrorism and counter-intelligence missions."

The notice also states that "The Panel will consist of up to 14 members selected on the basis of their preeminence in the fields of constitutional law and public policy relating to communication and information management."

On February 7, 2003, the DOD announced in a release that it "will establish two boards to provide oversight of the Total Information Awareness Project, the program designed to develop tools to track terrorists. The two boards, an internal oversight board and an outside advisory committee, will work with the Defense Advanced Research Projects Agency (DARPA), as it continues its research. These boards will help ensure that TIA develops and disseminates its products to track terrorists in a manner consistent with U.S. constitutional law, U.S. statutory law, and American values related to privacy."

The DARPA web site has described the TIA as a project that "will imagine, develop, apply, integrate, demonstrate and transition information technologies, components and prototype, closed-loop, information systems that will counter asymmetric threats by achieving total information awareness useful for preemption; national security warning; and national security decision making."

The DOD stated that the members of the outside advisory committee will include Newton Minow (Northwestern University), Floyd Abrams (Cahill Gordon & Reindel), Zoe Baird (President of the Markle Foundation), Griffin Bell (King & Spalding), Gerhard Casper (Stanford University Law School), William Coleman (Chief Customer Advocate of BEA), and Lloyd Cutler (Wilmer Cutler & Pickering).

For more information, contact Lisa Davis, Office of the Under Secretary of Defense (Acquisition, Technology, and Logistics), at 703 697-0051. See, Federal Register, March 10, 2003, Vol. 68, No. 46, at Page 11384.

Sen. Lugar Introduces Bill to Extend NTR to Russia

3/10. Sen. Richard Lugar (R-IN), the Chairman of the Senate Foreign Relations Committee, introduced S 580, a bill to extend normal trade relations treatment to the products of Russia. The bill was referred to the Senate Finance Committee.

Sen. Lugar addressed his bill in the Senate. He stated that "I rise today to offer legislation to repeal the Jackson-Vanik amendment to Title IV of the 1974 Trade Act as it relates to Russia and to authorize the President to grant permanent normal trade relations to Russia. Congress passed the 1974 Jackson-Vanik amendment to deny permanent normal trade relations to communist countries that restricted emigration rights. Over the years, it has been an effective tool to promote free emigration, but its continuing applicability to Russia no longer makes sense in the context of the many changes that have occurred since the fall of the Soviet Union." See, Cong. Record, March 10, 2003, at S3412.

He continued that "For more than 8 years, Russia has satisfied the requirements of the Jackson-Vanik legislation. It has supported free emigration and it has signed a bilateral trade agreement with the United States allowing the application of normal trade relations status. Last year, the United States declared that Russia would no longer be considered a nonmarket economy for the purposes of trade remedies laws. Russia has made tremendous strides in the last decade. While Russia currently receives normal trade relations treatment with respect to its exports to the U.S., repealing Jackson-Vanik will remove the requirement of semi-annual reports that have been an irritant in U.S.-Russia relations. Granting permanent normal trade relations also will provide certainty that will improve the investment climate and promote enhanced economic relations between the U.S. and Russia."

People and Appointments

3/10. Secretary of Homeland Security Tom Ridge announced his intent to name Pamela Turner to be the Assistant Secretary for Legislative Affairs at the Department of Homeland Security. She is currently SVP for Government Relations at the National Cable and Telecommunications Association (NCTA).

3/10. Audrey Spivack was named Associate Director of the Federal Communications Commission's (FCC) Office of Media Relations. She worked for the FCC since 1976. See, FCC release [PDF].

3/10. Thomas Bennett was named to the newly created position of Assistant Inspector General for Universal Service Fund (USF) Oversight at the Federal Communications Commission (FCC). Thomas Cline was named Assistant Inspector General for Audits. Robert Shipp was named to the newly created position of Director of Contract and Performance Audits. See, FCC release [PDF].

More News

3/10. The Supreme Court denied a petition for rehearing in Eldred v. Ashcroft. See, Order List [14 pages in PDF], at page 11. On January 15, 2003, the Court issued its opinion [89 pages in PDF] upholding the constitutionality of the Copyright Term Extension Act, which retroactively extended the maximum duration of copyrights. This is No. 01-618. See, TLJ story titled "Supreme Court Upholds CTEA in Eldred v. Ashcroft", January 15, 2003.

3/10. The U.S. Court of Appeals (9thCir) issued its opinion [PDF] in Freeman v. San Diego Association of Realtors, a antitrust action involving a real estate multiple listing service that lets agents share information about properties on the market with the help of a computerized database. The Appeals Court concluded that "Antitrust law doesn't frown on all joint ventures among competitors -- far from it. If a joint venture benefits consumers and doesn't violate any applicable per se rules, it will often be perfectly legal. The decision to combine MLS databases fits comfortably within this category." The Appeals Court concluded that there is federal jurisdiction, and that the District Court appropriately dismissed the Sherman Act Section 2 claim. However, the Appeals Court reversed the District Court's dismissal of the Section 1 claim.

3/10. Intel announced in a release that it has "invested in four companies involved in Wi-Fi technology". The companies are, a clearinghouse for Wi-Fi service providers, Vivato, a Wi-Fi switch manufacturer, Broadreach Networks Limited, a broadband internet access provider, and Pronto Networks, a provider of carrier-class OSS solutions for large hot spot networks

3/10. The Federal Communications Commission (FCC) announced that it has amended Section 1.17 of its rules to prohibit written and oral statements of fact that are intentionally incorrect or misleading and written statements of fact that are made without a reasonable basis for believing that the statement is correct and not misleading. See, FCC release [PDF].

USTR Releases US Singapore FTA

3/7. The Office of the U.S. Trade Representative (USTR) released the draft text of the U.S. Singapore free trade agreement (FTA). This FTA is over 800 pages, and is arranged in 21 chapters. See, links to individual chapters.

The USTR announced, but did not release, this FTA on November 19, 2002. See, story titled "USTR Announces Agreement for FTA with Singapore", TLJ Daily E-Mail Alert No. 553, November 20, 2002. Under the trade promotion authority bill passed by the last Congress, the Congress can approve or reject, but not amend, this FTA.

See especially, chapters pertaining to intellectual property rights [30 pages in PDF], electronic commerce [4 pages in PDF], and joint statement regarding electronic commerce [5 pages in PDF]. See also, chapter pertaining to telecommunications [16 pages in PDF], Side Letter on State Issues, and Side Letter on Divestment Issues.

The USTR also released chapter summaries of the US Chile FTA. See, links to individual chapters.

7th Circuit Rules in ITOFCA v. MetaTrans

3/7. The U.S. Court of Appeals (7thCir) issued its opinion [29 pages in PDF] in ITOFCA v. MetaTrans Logistics, a case involving copyright interests in a computer program following several transfers, including a bankruptcy proceeding transfer of assets.

Background. ITOFCA developed a computer program to facilitate rail and truck freight shipping. It did not then register a copyright, but its ownership was not in dispute. ITOFCA later transferred most of its assets to another entity, ICI. An agreement referenced "all assets and operations involving freight forwarding services". Also, the person who wrote the program went to work for ICI.

ICI later filed a Chapter 11 bankruptcy petition. The Court approved the sale to another company, Amerifreight, of ICI's "right, title and interest in all patent, copyright and trade secret rights in and to all computer software and corresponding documentation developed or acquired by" ICI. Amerifreight then assigned its rights to MetaTrans. The person who wrote the program, who continued to work for MegaTrans, modified the program, which MegaTrans then licensed to others.

ITOFCA, belatedly, registered a copyright in the program. It also filed a complaint in U.S. District Court (NDIll) against MetaTrans alleging copyright infringement. The District Court granted summary judgment to MetaTrans. This appeal followed.

Court of Appeals. The Court of Appeals affirmed. Judge Richard Posner, who wrote the opinion, stated that "When a bankruptcy court approves the sale of an asset of the debtor, a person who has notice of the sale cannot later void it on the ground that he is the asset's real owner." (The Court cited La Preferida v. Cerveceria Modelo, 914 F.2d 900 (7th Cir. 1990).)

Posner continued that "That was the ground on which the district judge rejected ITOFCA's claim of copyright infringement. ITOFCA argues that all the sale did was transfer whatever copyright interest ICI had, and the only interest it had was a license to use the copyrighted program that had been transferred to it by ITOFCA when ICI was created."

Judge Posner rejected this argument. "It is true that ICI did not list a copyright among its assets on the asset schedule that it submitted to the bankruptcy court; true, too, that ordinarily persons who might have an interest in property being sold at a bankruptcy auction have a right to rely on the fact that the debtor's schedule of assets does not list the property in which they are interested. But it was apparent on the face of the bankruptcy judge's order that it was conveying the right to sell copies of the modified program -- which is precisely the right that ITOFCA claims to have retained for itself. Its failure to object to the bankruptcy court's order is compelling evidence that its claim of right is an afterthought. It knew it had no basis for objecting to the sale order."

Judge Posner also wrote that "ITOFCA is right of course that a copyright is not transferred automatically with the transfer of the copyrighted good. When you buy a book, you don’t obtain the right to make and sell copies of it. The copyright statute is explicit that there must be a memorandum in writing for the sale of the copyright to be enforceable. 17 U.S.C. §§ 202, 204(a). But it does not follow as ITOFCA believes that the agreement must use the word ``copyright.´´"

Judge Posner also threw in a bit of an economic rationale for affirming the District Court. He noted that neither ICI nor any successor could use the program "profitably unless it could adapt it to changing technology and the needs of particular customers. ITOFCA acknowledges that the sale to ICI carried with it the right to modify the program; and now suppose that ICI or its successor wanted to license the modified work to a customer. Did it have to get a license from ITOFCA to be allowed to do this? ITOFCA no longer had any technical or sales staff. It was a shell. How would it evaluate such a request? Who would evaluate the request? Would ICI have consented to have such an albatross around its neck?"

More Court Opinions

3/7. The U.S. Court of Appeals (1stCir) issued its opinion in Smilow v. Cellular One reversing a District Court order decertifying a class action brought on behalf of wireless phone customers of Cellular One alleging overbilling.

3/7. The U.S. Court of Appeals (9thCir) issued its opinion in Seinfeld v. Bartz. Greg Seinfeld, a shareholder of Cisco Systems, filed a complaint in U.S. District Court (NDCal) against Cisco and several of its directors, including Carol Bartz, alleging violation of federal securities laws in connection with the issuance of a proxy statement which Seinfeld alleged should have included the value of stock options granted to outside directors. The District Court dismissed this derivative action. The Court of Appeals affirmed.

3/7. The U.S. Court of Appeals (DCCir) issued its opinion [16 pages in PDF] in Biltmore Forest Broadcasting v. FCC, an appeal of an order of the Federal Communications Commission (FCC) awarding an FM radio license. The Court of Appeals affirmed. Biltmore Forest Broadcasting FM appealed an order awarding an FM radio station license Liberty Productions, which was the high bidder in the auction of that license, asserting that Liberty should have been disqualified because of errors in Liberty's license application.

FCC Announces Agenda of March 13 Meeting

3/6. The Federal Communications Commission (FCC) announced the agenda for its meeting of Thursday, March 13. The FCC will consider a Notice of Proposed Rulemaking and Memorandum Opinion and Order concerning changes to the service rules applicable to the Multichannel Multipoint Distribution Service and the Instructional Television Fixed Service.

The FCC also stated that it will consider a Notice of Inquiry (NOI) in its DTV conversion proceeding "concerning the possibility of incorporating receiver interference immunity performance specifications into its spectrum policy on a broader basis". This item is titled "Interference Immunity Performance Specifications for Radio Receivers; Review of the Commission’s Rules and Policies Affecting the Conversion to Digital Television". The is MM Docket No. 00-39.

The FCC will also consider a Report and Order concerning electronic filing of applications and forms for the Multichannel Video and Cable Television Service and the Cable Television Relay Service. This is CS Docket No. 00-78.

Finally, the FCC's Consumer & Governmental Affairs Bureau will present the FCC's new Section 504 Programs and Activities Accessibility Handbook

Senators Introduce Bill to Allow Electronic Coverage of Court Proceedings

3/6. Sen. Charles Grassley (R-IA), Sen. Charles Schumer (D-NY) and others introduced S 554, the Sunshine in the Courtroom Act, a bill to allow federal trial and appellate judges to permit, but not require, cameras in their courtrooms.

The bill provides that "Notwithstanding any other provision of law, the presiding judge of an appellate court of the United States may, in the discretion of that judge, permit the photographing, electronic recording, broadcasting, or televising to the public of court proceedings over which that judge presides." The bill contains a similar provision for District Court judges. However, the section on District Courts also provides for the obscuring of the faces of witnesses upon their request.

Sen. Grassley stated in the Senate that "Sunshine bill will help the American people to become better informed about the judicial process. Moreover, this bill will help to produce a better judiciary. Increased public awareness and scrutiny will bring about greater accountability and help judges to do a better job." See, Cong. Record, March 6, 2003, at S3276.

Sen. Schumer stated in a release that "From Bush v. Gore to the Amadou Diallo case in New York, we've learned that Justice Brandeis had it right: sunshine is the best disinfectant. Courts are government agencies. The more the public knows about how the government works, the better ... If there are flaws in our governing institutions -- including our courts -- we hide them only at our peril. Allowing cameras in the courtroom would shine even more light on our judicial system, improving public understanding of the judicial process and increasing public scrutiny of our courts."

The bill was referred to the Senate Judiciary Committee, which passed a similar bill in the 107th Congress, S 986 (107th).

Reps. Goodlatte and Boucher Re-Introduce Class Action Fairness Act

3/6. Rep. Bob Goodlatte (R-VA), Rep. Rick Boucher (D-VA) and others introduced HR 1115, the Class Action Fairness Act. The bill would amend 28 U.S.C. § 1332, regarding diversity of citizenship. It would provide federal jurisdiction in certain class actions with a minimum total of aggregated claims where any member of a class of plaintiffs is a citizen of a state different from any defendant.

Rep. Goodlatte stated that "This important legislation will correct a serious flaw in our federal jurisdiction statutes. At present, those statutes forbid federal courts from hearing interstate class actions -- the lawsuits that involve more money and touch more Americans than virtually any other litigation pending in the American legal system ... Federal courts were actually designed by the Framers of the Constitution to handle large cases that crossed state boundaries.  This measure puts these suits in the federal jurisdiction where they belong."

This bill is nearly identical to HR 2341 (107th), the Class Action Fairness Act of 2002. The House passed that bill on March 13, 2002 by a vote of 233-190. See, Roll Call No. 62. See also, story titled "House Passes Class Action Reform Bill", TLJ Daily E-Mail Alert No. 388, March 14, 2002, and TLJ story, "House Committee Holds Hearing on Abusive Class Action Litigation", TLJ Daily E-Mail Alert No. 363, February 7, 2002. However, the Senate did not pass that bill.

Also, on February 4, 2003, Sen. Charles Grassley (R-IA) and others introduced S 274, the Class Action Fairness Act of 2003. See, TLJ story: "Sen. Grassley Introduces Class Action Reform Bill", TLJ Daily E-Mail Alert No. 600, February 10, 2003.

See also, statement of Rep. Lamar Smith (R-TX), who is the Chairman of the Courts, the Internet and Intellectual Property Subcommittee, and a cosponsor of the bill.

Sen. Dayton Introduces Bill to Regulate Computer Technical Support and Spam

3/6. Sen. Mark Dayton (D-MN) introduced S 563, titled the "Computer Owners' Bill of Rights". This bill would require the Federal Trade Commission (FTC) to write standards and guidelines regarding computer, peripheral, and software technical support. It would also establish a do not spam registry.

The bill would do four things. First, it calls for a government study of technical support for computers and computer related products. Second, it requires the FTC to "establish standards" setting technical support requirements. Third, it requires the FTC to "issue guidelines to encourage" covered entities to submit information on technical support to the FTC. Finally, it would create a do not spam registry at the FTC.

The bill covers computer makers, peripheral makers, resellers, software companies, and others.

It provides that the "Comptroller General of the United States shall carry out a study of the technical support (also known as customer service) provided computer owners by the computer industry." (Parentheses in original.)

It also provides that "Not later than 90 days after the date of the enactment of this Act, the Federal Trade Commission shall establish standards for the provision of technical support (also known as customer service) for computers and computer-related products". (Parentheses in original.)

The bill also provides that "Not later than 90 days after the date of the enactment of this Act, the Federal Trade Commission shall issue guidelines to encourage each entity covered by the standards for the provision of technical support for computers and computer-related products ... to collect and submit ... information on technical support".

Finally, the spam section provides that the FTC "shall establish a registry in which any person or entity that does not seek to receive unsolicited marketing e-mail (commonly referred to as `spam´) to a computer may register the e-mail address or addresses of such computer for that purpose."  (Parentheses in original.) It then bans sending "unsolicited marketing e-mail", a term left undefined by the bill, to e-mail addresses in the registry. It would also impose a "civil penalty not to exceed $10,000 for each violation".

Sen. Dayton stated in a release that "My experience with the computer industry is that it's akin to the car industry before Ralph Nader. It's buyer beware ... It sells you products and then doesn't help you with problems. I've heard from people who have had problems with their computers, called a help line and then got stuck for an hour or two before getting any help."

He added that "My intention is to start a dialogue on this issue and see what people have to say about their experiences with the computer industry. I have a feeling that a lot of people feel the way I do".

The bill was referred to the Senate Commerce Committee.

Bills Introduced

3/6. Rep. Lamar Smith (R-TX) and others introduced HR 1161, the Child Obscenity and Pornography Prevention Act. The bill was referred to the House Judiciary Committee. The Crime Subcommittee will meet to hold a hearing, and then a markup session, on this bill on Tuesday, March 11. In the 107th Congress, Rep. Smith introduced, and the House passed, HR 4623, the Child Obscenity and Pornography Prevention Act of 2002. The final vote was 413-8. See, Roll Call No. 256. However, the Senate passed a much different bill. Rep. Smith's bill reacts to the Supreme Court's April 16, 2002, opinion [PDF] in Ashcroft v. Free Speech Coalition, in which the Court held unconstitutional on First Amendment and overbreadth grounds provisions of the Child Pornography Prevention Act of 1996 (CPPA) banning computer generated images depicting minors engaging in sexually explicit conduct.

Hearings Held

3/6. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property held a hearing titled "Copyright Piracy Prevention and the Broadcast Flag". See, opening statement of Subcommittee Chairman Rep. Lamar Smith (R-TX). See also, prepared testimony in PDF of witnesses: Marybeth Peters (Register of Copyrights), Kenneth Ferree (Bureau Chief, Media Bureau, Federal Communications Commission), Fritz Attaway (Motion Picture Association of America), Edward Black (Computer & Communications Industry Association).

3/6. The Senate Commerce Committee held a hearing on the Federal Communications Commission's (FCC) Spectrum Policy Task Force's (SPTF) report [PDF] and spectrum issues. See, opening statement of Sen. Conrad Burns (R-MT) and opening statement of Sen. Ernest Hollings (D-SC). See also, prepared testimony of Steven Berry of the Cellular Telecommunications and Internet Association, prepared testimony of Kevin Kahn of Intel, prepared testimony of Paul Kolodzy, a former Chair of the FCC's SPTF, prepared testimony of Gregory Rosston of Stanford University, and prepared testimony of Michael Calabrese of the New America Foundation.

Third Circuit Rules in COPA Case

3/6. The U.S. Court of Appeals (3rdCir) issued its opinion [59 pages in PDF] in ACLU v. Ashcroft on remand from the Supreme Court. The Third Circuit, once again, affirmed the District Court's judgment granting a preliminary injunction against enforcement of the Child Online Protection Act (COPA).

The Statute. The COPA, which is codified at 47 U.S.C. § 231, prohibits any person from "knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, mak[ing] any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors".

Unlike the Communications Decency Act, which the Supreme Court held unconstitutional in Reno v. ACLU, the COPA only affects the web, only affects commercial communications, and only restricts material that is harmful to minors (rather than all indecency).

Prior Proceedings. Promptly after enactment, the ACLU and others filed a complaint in U.S. District Court (EDPenn) against then Attorney General Janet Reno challenging the constitutionality of the act. The District Court issued a preliminary injunction on First Amendment grounds. The U.S. Court of Appeals (3rdCir) affirmed.

The Supreme Court then vacated and remanded to the Third Circuit. On May 13, 2002, the Supreme Court of the U.S. issued its opinion [54 pages in PDF] upholding the constitutionality of the community standards component of the COPA. It wrote that "This case presents the narrow question whether the Child Online Protection Act's (COPA or Act) use of ``community standards´´ to identify ``material that is harmful to minors´´ violates the First Amendment. We hold that this aspect of COPA does not render the statute facially unconstitutional."

The Supreme Court wrote that "The scope of our decision today is quite limited. We hold only that COPA's reliance on community standards to identify ``material that is harmful to minors´´ does not by itself render the statute substantially overbroad for purposes of the First Amendment. We do not express any view as to whether COPA suffers from substantial overbreadth for other reasons, whether the statute is unconstitutionally vague, or whether the District Court correctly concluded that the statute likely will not survive strict scrutiny analysis once adjudication of the case is completed below. While respondents urge us to resolve these questions at this time, prudence dictates allowing the Court of Appeals to first examine these difficult issues." (Emphasis in original.)

The Court also noted that the Attorney General did "not ask us to vacate the preliminary injunction entered by the District Court, and in any event, we could not do so without addressing matters yet to be considered by the Court of Appeals. As a result, the Government remains enjoined from enforcing COPA absent further action by the Court of Appeals or the District Court."

Present Opinion. On remand, the Third Circuit affirmed the District Court injunction, but on different grounds. It held that "the District Court did not abuse its discretion in granting the plaintiffs a preliminary injunction on the grounds that COPA, in failing to satisfy strict scrutiny, had no probability of success on the merits. COPA is clearly a content-based restriction on speech. Although it does purport to serve a compelling governmental interest, it is not narrowly tailored, and thus fails strict scrutiny. COPA also fails strict scrutiny because it does not use the least restrictive means to achieve its ends. The breadth of the ``harmful to minors´´ and ``commercial purposes´´ text of COPA, especially in light of applying community standards to a global medium and the burdens on speech created by the statute’s affirmative defenses, as well as the fact that Congress could have, but failed to employ the least restrictive means to accomplish its legitimate goal, persuade us that the District Court did not abuse its discretion in preliminarily enjoining the enforcement of COPA."

The Appeals Court also held that the COPA is overbroad.

Now, the case is likely to go back to the Supreme Court.

People and Appointments

3/6. The Senate rejected a motion to invoke cloture on the nomination of Miguel Estrada to be a Judge of the U.S. Court of Appeals for the District of Columbia by a vote of 55-44. See, Roll Call No. 40. Cloture motions require a super majority of 60 votes to pass. Senate Democrats have been filibustering this nomination. The motion would have cut off debate. See, statement of Sen. Orrin Hatch (R-UT) and statement of Sen. Patrick Leahy (D-VT), the Chairman and ranking Democrat on the Senate Judiciary Committee. President Bush said afterwards that "Miguel Estrada is a well-qualified nominee to the U.S. Court of Appeals who has been waiting nearly two years for an up or down vote in the United States Senate. The decision today by 44 Senators to continue to filibuster and block a vote on this nomination is a disgrace." See, transcript.

3/6. The Senate confirmed Janet Hale to be Under Secretary for Management at the new Department of Homeland Security.

3/6. The Senate confirmed Timothy Stanceu to be a Judge of the U.S. Court of International Trade.

Go to News from March 1-5, 2003.