News from April 21-25, 2004

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4/23. The Department of Homeland Security's (DHS) Science and Technology Directorate announced that its has selected Analytic Services Inc. (ANSER) to operate its Homeland Security Institute (HSI). The DHS describes this HSI as a "Federally Funded Research and Development Center" (FFRDC), and as a "think tank". The DHS states that this HSI "will provide independent analysis on a variety of issues related to securing the homeland", and "will particularly focus on those matters involving policy and security where scientific, technical, and analytical expertise is required such as those in the extremely complex threat and vulnerability assessment areas". See, DHS release.

4/23. The U.S. Court of Appeals (DCCir) issued its opinion [14 pages in PDF] in California Metro Mobile Communications, Inc. v. FCC, affirming the order of the Federal Communications Commission (FCC). CMMC is a provider of mobile radio equipment and two way radio service. It applied to the FCC for a license to operate a trunked radio station on Very High Frequency (VHF) channels in the Industrial/Business radio pool of the Private Land Mobile Radio (PLMR) services. CMMC appealed the FCC's order denying review of the decision of its FCC's Public Safety and Private Wireless Division to modify CMMC’s trunked radio station by removing one frequency.

Senate Judiciary Committee Postpones Consideration of Intellectual Property Bills

4/22. The Senate Judiciary Committee held an executive business meeting. The agenda included consideration of five bills pertaining to intellectual property, and several judicial nominees. However, the Committee postponed consideration of all five bills, and all of the judicial nominees.

Sen. Orrin Hatch (R-UT), the Chairman of the Committee, stated that he intends to move these five intellectual property bills at the Committee's business meeting next week. There was no debate on any of the bills. No amendments were offered.

The bills are S 2192, the "Cooperative Research and Technology Enhancement Act" (CREATE Act), HR 1561, the "United States Patent and Trademark Fee Modernization Act of 2004", S 1933, the "Enhancing Federal Obscemity Reporting and Copyright Enforcement Act of 2003", S 2237, the "Protecting Intellectual Rights Against Theft and Expropriation Act of 2004", S 1932 the "Artists' Rights and Theft Prevention Act of 2003". See, story titled "Senate Judiciary Committee to Take Up Intellectual Property Bills" in TLJ Daily E-Mail Alert No. 882, April 22, 2004.

The postponed judicial nominees are Henry Saad (to be a Judge of the U.S. Court of Appeals for the Sixth Circuit), William Duane Benton (Eighth Circuit), Robert Bryan Harwell (District of South Carolina), and George Schiavelli (Central District of California).

House Subcommittee Holds Hearing on Trademark Dilution

4/22. The House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property held a hearing titled "Committee Print to Amend the Federal Trademark Dilution Act".

This hearing follows the Supreme Court's March 4, 2003 opinion [21 pages in PDF] in Moseley v. Victoria's Secret, a case involving whether the plaintiff in a lawsuit for violation of the Federal Trademark Dilution Act (FTDA), which is codified at 15 U.S.C. § 1125(c), must show actual economic loss. The Sixth Circuit held that economic harm may be inferred. The Supreme Court reversed. See, story titled "Supreme Court Rules in Trademark Dilution Case" in TLJ Daily E-Mail Alert No. 618, March 6, 2003.

Jacqueline Leimer, President of the International Trademark Association (INTA) testified in support of amending the Federal Trademark Dilution Act (FTDA).

She summarized the FTCA in her prepared testimony. It "affords protection that is different from trademark infringement protection. Dilution does not rely upon the standard test of infringement, that is, the likelihood of confusion, deception, or mistake. Rather, the FTDA provides equitable relief to the owner of a famous mark against another person’s commercial use of a mark or trade name that lessens the ``distinctive quality of the [famous] mark,´´ ``regardless of the presence or absence of (1) competition between the owner of the famous mark and other parties, or (2) likelihood of confusion, mistake or deception.´´ The statute also sets forth criteria that a court should consider in determining whether a mark is famous; establishes an injunction as the primary form of relief; and provides statutory defenses to a dilution claim."

She added that the "INTA submits that a dilution cause of action should not require an actual, provable change in the way consumers think about the famous mark. This approach, which the Supreme Court adopted based on the language of the existing FTDA, does not account for the need to prevent dilution at its incipiency, the core concept underlying the dilution remedy."

David Stimson of Kodak wrote in his prepared testimony that "Kodak supports amending the Federal Trademark Dilution Act (FTDA) to address issues raised by the Supreme Court’s decision in Moseley v. V Secret Catalogue, Inc. This decision will hamper the ability of owners of famous trademarks like KODAK to protect their intellectual property from third party uses that either blur or tarnish. Blurring and tarnishment are the two forms that dilution can take. In Moseley, the court said that the owner of a famous mark must wait until there is some sort of demonstrable harm before a judge can issue an injunction in a dilution case. The court also raised the possibility that tarnishment of a famous mark may not be actionable under the current statute."

Robert Sacoff, of the the law firm of Pattishall McAuliffe, wrote in his prepared testimony that "The Federal Trademark Dilution Act should be amended in three ways: (1) creating a ``likelihood of dilution´´ standard; (2) providing a specific cause of action for dilution by tarnishment; and (3) allowing for non-inherently distinctive marks to be eligible for protection."

He continued that "The Supreme Court's recent decision in Moseley requiring actual dilution has led to uncertainty and unpredictability in the lower courts as they struggle with the quantum of proof and type of evidence necessary to establish actual dilution. The actual dilution standard has proven unworkable in practice. There should be no concern about the impact this proposed amendment will have on free speech, since there is no conflict between the likelihood standard and the First Amendment."

"The Moseley decision cast doubt on whether the FTDA creates a cause of action for tarnishment", wrote Sacoff.

Marvin Johnson, of the ACLU, wrote in his prepared testimony [PDF] that "This bill proposes to greatly expand
the existing Act, making dilution actions easier for trademark holders while simultaneously diluting protections for
free speech."

He added that "Trademark law provides an important tool for preventing confusion or deceptive marketing, but trademark laws should not be used as a pretext to stifle criticism, parody or legitimate competition when there is no reasonable likelihood of confusion and no actual dilution caused by use of the trademark."

Rep. Frank Introduces Bill To Require Reimbursement of Some Gains from Sale of Stock Acquired by Option

4/22. Rep. Barney Frank (D-MA) introduced HR 4208, "Executive Stock Option Profit Recapture Act" a bill to require the five top officers and directors of publicly traded companies who exercise stock options to reimburse the company for the gains realized from the sale of the stock if its price declines by a material amount within one year.

This bill would not effect stock options for most employees. It would only apply to the "five most highly compensated executive officers or the directors".

Rep. Barney FrankThe bill was referred to the House Financial Services Committee. Rep. Frank (at right) is the ranking Democrat on the Committee. The bill has no original cosponsors.

This bill provides that the Securities and Exchange Commission (SEC) "shall prescribe rules requiring that, if, at the end of a period ending one year after one or more of the five most highly compensated executive officers or the directors of an issuer have exercised options on securities of an issuer granted to the executive officer or director as compensation, the stock of the issuer has declined by a material amount, as determined by the Commission by rule, then such executive officer or director shall be required to reimburse the issuer for all gains realized on the sale of securities obtained as a result of the option exercise that are in excess of any gains that would have been realized had the securities been sold at the stock price at the end of such one-year period."

The bill does not define the term "material amount".

The bill recites that its purposes are "to reduce the perverse incentive created by executive stock options for executives to take actions to inflate the value of their shares prior to exercising options" and "to prevent the resulting losses to shareholders by limiting the ability of executive officers and directors to profit from the exercise of stock options when shareholders have suffered substantial losses."

On November 21, 2003, Rep. Richard Baker (R-LA), Rep. Anna Eshoo (D-CA), Rep. David Dreier (R-CA) and others introduced HR 3574, the "Stock Option Accounting Reform Act". This is the House companion bill to S 1890, introduced by Sen. Mike Enzi (R-WY), Sen. Harry Reid (D-NV) and others on November 19. These bills would require the expensing of stock options, but only for the top five executives of companies, with exemptions for small businesses and start ups.

HR 3574 was referred to the House Financial Services Committee. Rep. Baker is the Chairman of its Subcommittee on Capital Markets, Insurance and Government Sponsored Enterprises. See also, story titled "Senators Introduce Bill to Require Expensing of Stock Options Granted to Officers" in TLJ Daily E-Mail Alert No. 784, November 21, 2003.

HR 3574 now has 107 sponsors, including all of the Representatives from the Silicon Valley area -- Rep. Mike Honda (D-CA), Rep. Ellen Tauscher (D-CA), Rep. Zoe Lofgren (D-CA), and Rep. Eshoo -- and numerous other House technophiles. Rep. Frank is not a sponsor.

See also, story titled "FASB Proposes Expensing of Stock Options" in TLJ Daily E-Mail Alert No. 867, April 1, 2004, and story titled "Senators Bash FASB Stock Options Proposal and Class Action Lawyers" in TLJ Daily E-Mail Alert No. 869, April 5, 2004.

District Court Rules on Personal Jurisdiction Over Foreign Web Site Operator in Copyright Infringement Case

4/22. The U.S. District Court (DC) issued a Memorandum Opinion and Order [12 pages in PDF] in Arista Records v. Sakfield Holding Company, a copyright infringement case brought in the U.S. against a Spanish company (Sakfield) that made copyrighted music available through a web site. Sakfield moved to dismiss for lack of personal jurisdiction. The Court, after finding that Sakfield had destroyed electronic evidence relevant to the jurisdictional dispute, rejected this motion. The case will proceed in the U.S. District Court. Sanctions will likely follow.

This opinion is significant for two reasons. First, it contains a detailed application of the law of personal jurisdiction to an out of forum business whose ties to the forum are internet related. More specifically, it applies the law of personal jurisdiction to an online provider of unauthorized electronic copies of copyrighted music. Second, this opinion reviews the procedure to be followed in disputes regarding personal jurisdiction, including the burden upon the plaintiff to provide facts sufficient to establish jurisdiction, the availability and scope of jurisdictional discovery, and the consequences of the defendant's destruction of evidence relevant to personal jurisdiction.

Sakfield Holding Company, a Spanish company located in Madrid, Spain, operated a web site located at and that allowed persons to download copyrighted musical works owned by plaintiffs without their authorization.

Arista Records, and other record companies, filed a complaint in the U.S. District Court against Sakfield Holding Company alleging copyright infringement.

Sakfield filed a motion to dismiss, pursuant to Rules 12(b)(2) and (3) of the Federal Rules of Civil Procedure. These pertain to dismissal for lack of personal jurisdiction, and improper venue, respectively. The District Court rejected this motion.

Sakfield asserted that it "does not have any information or records indicating that any person or entity in the District of Columbia downloaded anything from the website".

The Court wrote that "A plaintiff must establish a factual basis for the Court's exercise of personal jurisdiction over the defendant to withstand a motion to dismiss".

The Court found "as a matter of law that if sufficient District of Columbia residents did in fact access the Puretunes website and, after following the steps previously described, downloaded music files from the Puretunes website, that this constitutes continuous and systematic contacts with the District of Columbia in fulfillment of the requirements of constitutional due process and the District of Columbia long arm statute".

To make this determination, the Court ordered jurisdictional discovery, and particularly, ordered Sakfield to produce computer servers that hosted the website at issue. However, the Court wrote that Arista's expert witness "determined that a program designed to erase electronically stored information had been run over 50 times from a remote location in an effort to erase all electronic information on the servers." In response, Sakfield asserted that it erased "only to preclude further transmissions of copyrighted music."

The Court was not impressed. It wrote that Sakfield's "argument that it destroyed crucial evidence to prevent further transfer of music files is without doubt one of the most ludicrous arguments ever visited upon this Court in written form. Defendant could have disconnected its website from the Internet in any number of ways without destroying one single file."

The Court also noted that Arista's expert "recovered a small amount of information from the computer servers despite defendant’s attempts to destroy all the files. The information recovered showed partial lists of Puretunes users and a partial record of music file downloads. Using this information, plaintiff was able to extrapolate data showing that approximately 241 Puretunes users were located in the District of Columbia".

Sakfield contested this conclusion, but the Court wrote that "But for defendant's destruction of crucial evidence on the servers, plaintiffs would not have had to resort to such methods of analysis. Destruction of evidence raises the presumption that disclosure of the materials would be damaging."

So, the Court found that "Plaintiffs have met the requirements for specific jurisdiction. In order to download a music file a potential Puretunes user located in the District had to subscribe to the Puretunes service by filling out personal information, agree to a license agreement, download and install proprietary Puretunes software, and then download infringing music files through that software. In addition, any users desiring to obtain more than the initial 25 free songs available to new users would have conducted credit card transactions as part of their subscription to the Puretunes service."

This case is Arista Records, Inc., et al. v. Sakfield Holding Company, S.L., et al., U.S. District Court for the District of Columbia, D.C. No. 03-1474 (RCL), Judge Royce Lamberth presiding.

Sen. Leahy and Sen. Feingold Write Colleagues Regarding Data Mining by Federal Agencies

4/22. Sen. Patrick Leahy (D-VT) and Sen. Russ Feingold (D-WI) wrote a letter to other Senators explaining S 1544, the "Data-Mining Reporting Act of 2003", and requesting that they become cosponsors of the bill. This bill would require federal agencies engaged in data mining to submit a report to the Congress explaining their data mining activities.

Sen. Russ Feingold (D-WI) introduced the bill on July 31, 2003. See, story titled "Sen. Feingold Introduces Data Mining Reporting Act" in TLJ Daily E-Mail Alert No. 712, August 6, 2003.

Sen. Russ FeingoldSen. Leahy and Sen. Feingold (at right) wrote that "The bill addresses the controversial intelligence procedure known as data-mining. The bill would require all federal agencies to report to Congress on their use and experience with data-mining but in the interim would not impose any limits on the use of data-mining. This legislation will enable Congress to engage in effective oversight of federal agencies using this emerging technology."

They added that "We are in a new age where technologies allow for the massive collection, manipulation and assessment of personal information in sophisticated databases. It is possible that these databases may assist law enforcement. But while it is important to provide law enforcement the necessary tools to secure our safety, if left unchecked, the collection of this data and the use of data-mining technologies could threaten the privacy and civil liberties of each and every American. Congressional oversight is an important part of preventing this outcome."

They concluded by stating that "We hope that you will join us in cosponsoring the Data-Mining Reporting Act of 2003".

Sen. Leahy Responds to President Bush's Speeches about the PATRIOT Act

4/22. Sen. Patrick Leahy (D-VT) gave a speech in Washington DC in which he responded to recent speeches made by President Bush regarding extending and expanding the USA PATRIOT Act.

Sen. Patrick LeahySen. Leahy (at right) stated that "Maybe you have heard what the President is saying about the sunset provisions of the USA PATRIOT Act, in his Saturday radio address, and again this week in Pennsylvania and New York. He implies that Congress made the most sensitive parts of the PATRIOT Act subject to review and renewal because of a belief in Congress that the threat of terrorism itself would soon pass. That is simply wrong, and it is irresponsible to mislead the public with assertions like that."

President Bush stated in a speech in Hershey, Pennsylvania on April 19 that "many of the Patriot Act's anti-terrorism tools are set to expire next year, including key provisions that allow our intelligence and law enforcement agencies to share information. In other words, Congress passed it and said, well, maybe the war on terror won't go on very long, and, therefore, these tools are set to expire. The problem is, the war on terror continues."

Sen. Leahy continued that former Representative "Dick Armey and I -- a political odd-couple, to say the least -- insisted on the sunset clauses to force effective and thorough oversight of the Act. Dick Armey and I know full well that the war on terrorism will take years, and maybe even decades, and so do most if not all members of the House and Senate. The straightforward purpose of our sunset provisions is to ensure that these powerful new tools given to government are properly used."

For House Majority Leader Dick Armey (R-TX) stated in the House on October 12, 2001 that "It is good sunset language. It is necessary sunset language. It gives our agencies an opportunity to use these tools of investigation and surveillance, and us the opportunity to fulfill our responsibility to oversee that activity, to review it, and to choose to reauthorize or not." See, Congressional Record, October 12, 2001, at Page H6768.

"In a word, our goal was accountability. Perhaps these new powers have been used responsibly and effectively and should be renewed. Perhaps they should be modified, or even strengthened. Oversight is the way to answer those questions", said Sen. Leahy.

He concluded that "The sunsetted sections do not expire until next year, 20 months from now. Not only is it entirely appropriate, but it is also necessary that Congress have the ability to review the record before renewing extensions of government power such as these, which, if abused, can needlessly compromise the freedoms of the American people."

On April 17 President Bush gave a radio address regarding the PATRIOT Act. See, story titled "Bush Addresses PATRIOT Act" in TLJ Daily E-Mail Alert No. 879, April 19, 2004. On April 19 he gave a speech in Hershey, Pennsylvania. See, story titled "Bush Proposes to Extend and Expand PATRIOT Act" and story titled "Bush Opposes Congressional Proposals to Roll Back Parts of PATRIOT Act" in TLJ Daily E-Mail Alert No. 880, April 20, 2004. On Tuesday, April 20, he gave speech in Buffalo, New York. See, story titled "Bush Continues to Speak About PATRIOT Act" in TLJ Daily E-Mail Alert No. 881, April 21, 2004. On April 21, he gave a speech in Washington DC. See, story titled "Bush Addresses Broadband Policy, Free Trade and the PATRIOT Act" in TLJ Daily E-Mail Alert No. 882, April 22, 2004.

FRB Governor Discusses Labor Markets

4/22. Federal Reserve Board Governor Ben Bernanke gave a speech titled "The economic outlook and monetary policy" at a conference in Washington DC.

He stated that "the recovery in labor markets has not kept pace with the recovery in output, an issue that has been central in recent debates about economic policy. As has been widely noted, the leading explanation for the slow recovery in the labor market has been the remarkable ability of employers and workers to increase labor productivity".

He argued that "this situation cannot persist: As managers exhaust the possibilities for outsized productivity gains and become convinced of the durability of the expansion, they should become increasingly more willing to add employees".

He added, in a footnote, that the "factors affecting labor supply and the efficiency of job matching, including ... increased job search through the Internet, suggest strongly that the sustainable rate of unemployment has steadily declined since the mid-1980s, to a level below the current rate."

DOJ Announces Raids of Online Piracy Organizations

4/22. The Department of Justice (DOJ) announced in a release that on April 21 and 22, 2004 law enforcement agencies in the U.S. and other countries "conducted over 120 searches worldwide to dismantle some of the most well-known and prolific online piracy organizations". The DOJ called this "Operation Fastlink".

The DOJ elaborated that "Operation Fastlink is the culmination of four separate undercover investigations simultaneously being conducted by the FBI, coordinated by the FBI Cyber Division, and the U.S. Department of Justice, coordinated by the Computer Crimes and Intellectual Property Section (CCIPS) of the Criminal Division. As a result of Fastlink, over 120 total searches have been executed in the past 24 hours in 27 states and in 10 foreign countries."

It continued that "Foreign searches were conducted in Belgium, Denmark, France, Germany, Hungary, Israel, the Netherlands, Singapore, Sweden as well as Great Britain and Northern Ireland. Operation Fastlink is the largest multi-national law enforcement effort ever directed at online piracy. Nearly 100 individuals worldwide have been identified by the investigation to date, many of whom are the leaders or high-level members of various international piracy organizations. As the investigations continue, additional targets will be identified and pursued."

The DOJ added that "The investigations focused on individuals and organizations, known as ``warez´´ release groups, that specialize in the Internet distribution of pirated materials. Release groups are the first-providers -- the original source for most of the pirated works traded or distributed online. Once a release group prepares a stolen work for distribution, the material is distributed in minutes to secure, top-level warez servers and made available to a select clientele. From there, within a matter of hours, the pirated works are further distributed throughout the world, ending up on public channels on IRC and peer-to-peer file sharing networks accessible to anyone with Internet access."

The DOJ added that it received assistance from the Business Software Alliance (BSA), Entertainment Software Association (ESA), the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA).

Robert Holleyman, P/CEO of the BSA, stated in a release that "Law enforcement agencies attempted to seize counterfeit goods including pirated business software, games, movies and music." He added that "Today's announcement is an excellent example of the increase in law enforcement activity aimed at combating software piracy on the Internet. We commend the FBI for its leadership and initiative in addressing the serious threat of software piracy."

Mitch Bainwol, Ch/CEO of the RIAA, praised the DOJ and others in a release. "They have undertaken and spearheaded an unprecedented, international initiative that strikes a forceful blow at global piracy operations that have been wreaking enormous damage on creative communities around the world. This is a sizeable achievement and creators all over the world owe a debt of gratitude."

He added that "Sophisticated piracy operations like those targeted by the Justice Department often seed unauthorized file sharing networks with new music, particular those songs not yet commercially released."

European Commission Releases Microsoft Decision

4/22. The European Commission released its Commission Decision [302 pages in PDF] regarding Microsoft. This document provides the language of the EC's mandate that Microsoft remove certain code from its products sold in the Europe, and that it license certain proprietary technology and intellectual property rights to its competitors.

The EC announced this decision on March 24, 2004. The Decision is dated March 24, 2004. However, the EC did not release the Decision until April 22, 2004.

Article 2 of the Decision provides that "Microsoft Corporation has infringed Article 82 of the Treaty and Article 54 of the EEA Agreement by:
  (a) refusing to supply the Interoperability Information and allow its use for the purpose of developing and distributing work group server operating system products, from October 1998 until the date of this Decision;
  (b) making the availability of the Windows Client PC Operating System conditional on the simultaneous acquisition of Windows Media Player from May 1999 until the date of this Decision."

For these violations, the EC fines Microsoft 497,196,304 Euros, and orders Microsoft to "bring to an end the infringement", and to "refrain from repeating any act or conduct described in Article 2 and from any act or conduct having the same or equivalent object or effect".

The Decision further provides that "Microsoft Corporation shall, within 90 days of the date of notification of this Decision, offer a full-functioning version of the Windows Client PC Operating System which does not incorporate Windows Media Player". (Emphasis added.)

It further provides that "Microsoft Corporation shall within 90 days of the date of notification of this Decision communicate to the Commission all the measures it has taken to implement" the above requirement.

The Decision then elaborates on Microsoft's "refusing to supply the Interoperability Information".

It provides that Microsoft shall, within 120 days, "make the Interoperability Information available to any undertaking having an interest in developing and distributing work group server operating system products and shall, on reasonable and non-discriminatory terms, allow the use of the Interoperability Information by such undertakings for the purpose of developing and distributing work group server operating system products". (Emphasis added.)

The Decision provides that "the term ``Interoperability Information´´ means the complete and accurate specifications for all the Protocols implemented in Windows Work Group Server Operating Systems and that are used by Windows Work Group Servers to deliver file and print services and group and user administration services, including the Windows Domain Controller services, Active Directory services and Group Policy services, to Windows Work Group Networks".

The Decision further provides that "the term ``Windows Client PC Operating System´´ means any of the software products marketed by Microsoft Corporation as Windows 98, Windows 98 Second Edition, Windows Millennium edition, Windows NT Workstation 4.0, Windows 2000 Professional, Windows XP Home and Windows XP Professional, and updates (including, without limitation, security patches), upgrades and successors to the latter, as well as updates and upgrades of such successors".

The Decision further provides that the term ``Windows Work Group Server Operating System´´ means any of the software products marketed by Microsoft Corporation as Windows NT Server 4.0, Windows 2000 Server and Windows Server 2003 Standard Edition, and updates (including, without limitation, security patches), upgrades and successors to the latter, as well as updates and upgrades to such successors."

The Decision states that the EC's proceeding was initiated following a complaint made by Sun Microsystems regarding operating systems for personal computers. The Decision states that Sun alleged that Microsoft reserved to itself "information that certain software products for network computing, called work group server operating systems, need to interoperate fully with Microsoft's PC operating systems. According to Sun, the withheld interoperability information is necessary to viably compete as a work group server operating system supplier."

The Decision continues that the EC later, on its own initiative, expanded its investigation to include the "``Windows 2000´´ generation of PC and work group server operating systems and Microsoft's incorporation of a software product called ``Windows Media Player´´ into its PC operating system products."

The Decision also notes that Microsoft's U.S. competitors, and anti-Microsoft lobbying groups, participated in the proceeding. These included RealNetworks, AOL Time Warner, the Software & Information Industry Association (SIIA), and the Computer & Communications Industry Association (CCIA).

On April 15, the CCIA wrote a letter [PDF] to Secretary of State Colin Powell, and a letter to U.S. Trade Representative (USTR) Robert Zoellick urging the Bush administration not to intervene on behalf of Microsoft.

Hewitt Pate, the Assistant Attorney General in charge of the U.S. Department of Justice's (DOJ) Antitrust Division has strongly criticized the EC's decision against Microsoft.

For example, he stated in a speech on April 2, 2004 that the EC decision lacks comity, that it will lead to antitrust forum shopping by parties seeking to benefit from regulation, that it may protect competitors rather than competition, and that it may chill lawful product improvement. See, story titled "Pate Criticizes EC Decision Regarding Microsoft" in TLJ Daily E-Mail Alert No. 869, April 5, 2004.

Microsoft issued a response [7 pages in PDF] titled "The European Commission’s Decision in the Microsoft Case and its Implications for Other Companies and Industries". Micosoft repeated that it will appeal the EC's Decision.

It stated in its response that the EC "is seeking to make new law that will have an adverse impact on intellectual property rights and the ability of dominant firms to innovate. This adverse impact will not be confined to the software industry or to Europe. As the case now heads for the Court of First Instance, the novel legal standards announced in the Decision will affect all industries, altering market dynamics and reducing incentives for research and development that are essential to global economic growth."

Microsoft complained that the Decision requires it "to license its proprietary technology and intellectual property rights to its competitors so that they can incorporate that very same technology into their own directly competing products" and prohibits it from incorporating "new components or features that demonstrably improve its finished product".

Microsoft stated that "for the first time in the history of competition law, the Decision compels the creation of a degraded version of a finished product and orders that product to be offered with the same trademarked brand name as an existing product that consumers clearly associate with a particular set of features and level of quality."

See also, related stories: "EU and Microsoft Fail to Reach Settlement" in TLJ Daily E-Mail Alert No. 859, March 19, 2004; "European Commission Seeks 497 Million Euros and Code Removal from Microsoft", "US Antitrust Chief Says EU's Microsoft Decision Could Harm Innovation and Consumers" and "Microsoft Will Challenge EC Decision in Court" in TLJ Daily E-Mail Alert No. 863, March 25, 2004; and "U.S. Legislators Criticize EU Action Against Microsoft" in TLJ Daily E-Mail Alert No. 866, March 30, 2004.

More News

4/22. The Internet Corporation for Assigned Names and Numbers (ICANN) filed a motion and memorandum in support [20 pages in PDF] with the U.S. District Court (CDCal) in VeriSign v. ICANN to strike several of VeriSign's claims as strategic lawsuits against public participation, in violation of the California anti-SLAPP statute, which is codified at Cal. Civ. Proc. Code § 425.16.

4/22. The International Competition Network (ICN), which held its third annual conference in Seoul, South Korea on April 21 and 22, announced that it adopted four recommended practices for merger notification procedures. See, ICN release.

4/22. The Department of Homeland Security (DHS) and the National Security Agency (NSA) announced "an agreement to expand the NSA Centers of Academic Excellence in Information Assurance Education to the national level, renaming the program the National Centers of Academic Excellence in Information Assurance Education. The partnership will strengthen information assurance higher education programs to meet America’s growing requirements for professional cyber security skills." See, DHS release and NSA release.

4/22. The Department of Homeland Security (DHS) and the National Science Foundation (NSF) announced "an agreement to co-sponsor and expand the existing NSF Federal Cyber Service: Scholarship for Service (SFS) program. The partnership helps strengthen America's cybersecurity posture by promoting higher education courses that increase the number of information security professionals trained to protect public and private sector IT systems." See, DHS release.

4/22. The National Institute of Standards and Technology (NIST) Computer Security Division (CSD) published in its website its report [PDF] titled "Card Technology Development and Gap Analysis Interagency Report". This is NIST InterAgency Report 7056.

4/22. The European Commission release a report [20 pages in PDF] titled "A pro-active Competition Policy for a Competitive Europe".

FCC Rules on AT&T's VOIP Petition

4/21. The Federal Communications Commission (FCC) announced and released its Order [27 pages in PDF] on AT&T's petition for a declaratory ruling that access charges do not apply to its service in which calls originate and terminate on circuit switched PSTN facilities, but are routed on internet backbone. The FCC rejected AT&T's request, and ruled that the service at issue is "telecommunications service upon which interstate access charges may be assessed". See, full story.

Bush Addresses Broadband Policy, Free Trade and the PATRIOT Act

4/21. President Bush gave a speech to the Newspaper Association of America in Washington DC in which he discussed many issues, including broadband policy, free trade, and extending the USA PATRIOT Act.

Broadband policy. Bush stated that "The proper role of the federal government, in my judgment on this, is to help set a national standard so that the myriad of producers have something around which to make proper decision-making when it comes to the use of IT technology. I believe there ought to be broadband in every community, and available to every house by the year 2007, in order to make sure America has lasting prosperity. And that's just the beginning. I think not only should broadband be accessible, but there ought to be ample providers available to every house and every community in America."

President Bush also gave a speech that focused on broadband policy in Albuquerque, New Mexico on March 26, 2004. See also, stories titled "Bush Calls for Universal Broadband Access by 2007" and "Bush Speech Omits Reference to FCC" in TLJ Daily E-Mail Alert No. 865, March 29, 2004.

Bush continued in his latest speech that "two thoughts pop in my mind about making sure that the broadband technology is expanding properly. One, there needs to be good tax policy in order to encourage the spread of broadband technology, which means we shouldn't tax access. If we want it to spread rapidly, and if we want it to be available in all communities, in my judgment the federal government should deny taxation to broadband technology access. And, secondly, there needs to be good regulatory policy out of the administration so as to encourage the spread of competitive -- of services throughout our country."

Finally, President Bush praised Federal Communications Commission (FCC) Chairman Michael Powell. He said that "We're lagging a little bit on broadband technology, the access of broadband technology. And I think we need to kind of accelerate it with good policy and -- particularly good regulatory policy out of the FCC. I think we're getting that from Chairman Powell. I feel comfortable he's got a good and positive vision about how to spread broadband."

Free trade. Bush said that "I'm a big believer in free trade. If we want to have lasting prosperity, it is essential that the nation reject the economic isolationism and promote trade."

He continued that "Our markets are relatively open to other nations. It's a decision, by the way, of administrations from both political parties that it makes sense for the consumers to be able to have more choices and more decisions -- when you have more choices and more decisions in the marketplace, you generally get better quality goods at a better price."

"And, yet, other countries haven't reciprocated. And, to me, the proper role of the administration to make sure there's lasting prosperity is to insist that other countries open up their markets as opposed to closing ours. And we'll continue to do so. We filed a WTO suit against China. We've made some noise here and there. We will insist that the trade laws be enforced", said Bush.

In March the U.S. submitted a complaint to the World Trade Organization (WTO) regarding the PR China's value added tax on integrated circuits. See, story titled "US Complains to WTO About PR China's Tax Preference for Domestic Producers of Integrated Circuits" in TLJ Daily E-Mail Alert No. 859, March 19, 2004.

Bush concluded that "it's essential that the country reject economic isolationism if we want to have lasting prosperity. Trade wars will make it incredibly difficult for us to be prosperous -- and also, by the way, hurt countries on the continent of Africa, for example -- desperate, poor little countries trying to develop markets and trying to develop a business community and small businesses. If we don't open up our markets to them, if we don't trade freely, it'll be difficult for there to be hope in impoverished parts of the world."

However, while Bush condemned protectionism, he did not specifically address protectionism in the context of offshore outsourcing.

PATRIOT Act. Bush again discussed the USA PATRIOT Act. He said that "Two-thirds of the Americans think we're going to get hit again? Well, I can understand why they think they're going to get hit again: They saw what happened in Madrid. This is a hard country to defend. We are making good progress in the defense of America. We've got a Department of Homeland Security that now enables people to better coordinate, and cooperate, and share information. We've got a Patriot Act -- which needs to be renewed, by the way, and strengthened, in my judgment -- that is really important to allow the criminal division and the intelligence division of the FBI to share information, which they could not do before."

He has been speaking about the PATRIOT Act frequently since Saturday, April 17. On April 17 he gave a brief radio address. See, story titled "Bush Addresses PATRIOT Act" in TLJ Daily E-Mail Alert No. 879, April 19, 2004. On April 19 he gave a speech in Hershey, Pennsylvania. See, stories titled "Bush Proposes to Extend and Expand PATRIOT Act" and "Bush Opposes Congressional Proposals to Roll Back Parts of PATRIOT Act" in TLJ Daily E-Mail Alert No. 880, April 20, 2004. On Tuesday, April 20, he gave speech in Buffalo, New York. See, story titled "Bush Continues to Speak About PATRIOT Act" in TLJ Daily E-Mail Alert No. 881, April 21, 2004.

Sen. McConnell Advocates Extension of Expiring Sections of the PATRIOT Act

4/21. Sen. Mitch McConnell (R-KY) spoke in the Senate about the USA PATRIOT Act. He said that "we should renew the parts of the PATRIOT Act that will expire". He focused on two sections that are scheduled to sunset next year -- § 201 (regarding expanding the list of predicate offenses for the issuance of wiretap orders) and § 206 (regarding roving wiretaps).

"The PATRIOT Act has been a vital tool in our ongoing efforts to prevent future attacks of terrorism against Americans at home", said Sen. McConnell. "Unfortunately, we are in the middle of an election year and some Washington politicians would rather demagog the PATRIOT Act and the Attorney General for his use of it. For example, the junior Senator from Massachusetts voted for the act. But since becoming his party's presumptive nominee, he has taken an entirely different tack. For example, last month, he said: It is time to end the era of John Ashcroft. That starts with replacing the PATRIOT Act with a new law that protects our people and our liberties at the same time." See, Congressional Record, April 21, 2004 at Page S4172.

He added that "Sixteen key provisions of the act will expire on December 31 of next year. It is crucial that law enforcement not be deprived of these tools. While I cannot prevent election year politics, I can try to disabuse my colleagues of erroneous assumptions about some of these provisions."

President Bush has been giving speeches in the past week in which he has advocated extending and expanding the PATRIOT Act. Like Sen. McConnell, the President has focused on roving wiretaps in his speeches. However, Bush has not focused on predicate offenses for issuance of wiretap orders.

Predicate Offenses for Issuance of Wiretap Orders. § 201 of the PATRIOT Act provides, in part, that "Section 2516(1) of title 18, United States Code, is amended ... by inserting ... the following new paragraph: ... any criminal violation of section 229 (relating to chemical weapons); or sections 2332, 2332a, 2332b, 2332d, 2339A, or 2339B of this title (relating to terrorism)". (Parentheses in original.)

18 U.S.C. § 2516 pertains to "Authorization for interception of wire, oral, or electronic communications". It provides a list of the persons in the Department of Justice who have authority to authorize an application to a federal judge for a "an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency".

It then provides a list of crimes that can serve as predicate offenses for the issuance of a wiretap order. The list was already large. § 201 of the PATRIOT Act expands this list of predicate offences to include crimes relating to terrorism.

For example, it adds 18 U.S.C. § 2332a, which pertains to the use of certain weapons of mass destruction, 18 U.S.C. § 2332d, which pertains to certain crimes involving financial transactions, 18 U.S.C. § 2339A, which pertains to providing material support to terrorists, and 18 U.S.C. § 2339B, which pertains to providing material support or resources to designated foreign terrorist organizations.

Sen. McConnell stated that § 201 "allows law enforcement to use existing electronic surveillance authorities to investigate certain crimes that terrorists are likely to commit. Now, the myth about section 201 is as follows: Some contend that the Government already has the authority to investigate cases of suspected terrorism and, therefore, section 201 is completely overkill. But the fact is, before section 201 of the PATRIOT Act, law enforcement had the authority to conduct some electronic surveillance when investigating ordinary nonterrorism crimes. But law enforcement could not use wiretaps to investigate all of the crimes that terrorists will commit."

He emphasized the point. "Let's go over that one more time. Law enforcement could use wiretaps to investigate mail fraud but not for chemical weapons offenses or offenses related to dirty bombs, killing Americans overseas, or terrorism financing. That is an absurd position for the law to be in."

Sen. McConnell referenced "politicians" who "would rather demagog the PATRIOT Act". The leading bill in the Senate to allow some sections of the PATRIOT Act to sunset, and to rollback still other sections, is sponsored by Sen. Larry Craig (R-ID) and others. It would allow § 201 to sunset.

Notably, Sen. McConnell did not reference § 202, which also expands the list of predicate offenses for the issuance of a wiretap order. The PATRIOT Act provides that it too will sunset next year. Sen. Craig's bill would also sunset it. It adds felony violations of 18 U.S.C. § 1030, regarding computer fraud and abuse, to the list of predicate offenses.

(On October 2, 2003, Sen. Craig introduced S 1709, the "Security and Freedom Ensured Act of 2003". There are now 19 sponsors. See, story titled "Senators Craig and Durbin Introduce Bill to Modify PATRIOT Act" in TLJ Daily E-Mail Alert No. 753, October 6, 2003.)

Roving Wiretaps. Sen. McConnell stated that "Another section that has been misunderstood is section 206. This provision allows roving wiretaps in national security investigations. But it only allows them when the FISA court finds that a suspect may thwart surveillance. In a roving wiretap, the tap attaches to a suspect rather than to a device so that the suspect cannot defeat surveillance simply by changing cell phones, for example. The myth is that section 206 is a broad expansion of power without privacy protections."

Sen. McConnell added that "the facts are that those assertions are incorrect. For over a quarter of a century, law enforcement has used roving wiretaps to solve ordinary crimes such as drug offenses."

The USA PATRIOT Act is an acronym for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001". It was passed quickly after the terrorist attacks of September 11, 2001 by the 107th Congress as HR 3162. It became Public Law 107-56 on October 26, 2001.

President Bush has been speaking about the PATRIOT Act frequently since Saturday, April 17. On April 17 he gave a brief radio address. See, story titled "Bush Addresses PATRIOT Act" in TLJ Daily E-Mail Alert No. 879, April 19, 2004. On April 19 he gave a speech in Hershey, Pennsylvania. See, stories titled "Bush Proposes to Extend and Expand PATRIOT Act" and "Bush Opposes Congressional Proposals to Roll Back Parts of PATRIOT Act" in TLJ Daily E-Mail Alert No. 880, April 20, 2004. On Tuesday, April 20, he gave speech in Buffalo, New York. See, story titled "Bush Continues to Speak About PATRIOT Act" in TLJ Daily E-Mail Alert No. 881, April 21, 2004. On April 21, he gave a speech in Washington DC. See, story titled "Bush Addresses Broadband Policy, Free Trade and the PATRIOT Act" in TLJ Daily E-Mail Alert No. 882, April 22, 2004.

Sen. Edwards Introduces Telehealth Bill

4/21. Sen. John Edwards (D-NC) introduced S 2325, the "Telehealth Improvement Act of 2004". This bill would amend the Social Security Act to expand the list of facilities that qualify for Medicare's telehealth coverage.

Specifically, it would amend 42 U.S.C. § 1395m(m) pertaining to "Payment for telehealth services". Currently, Subsection (m)(4)(C)(ii) lists as eligible sites the following: "The office of a physician or practitioner", "critical access hospital", "rural health clinic", "Federally qualified health center" and "hospital".

Sen. Edwards' bill would add to this list the following: "skilled nursing facility", "assisted-living facility", "board-and-care home", "county or community health clinic", "community mental health center", "facility operated by the Indian Health Service or by an Indian tribe, tribal organization, or an urban Indian organization", and "site in a State in which the respective State medical board has adopted a formal policy regarding licensing or certification requirements for providers at distant sites who do not have a license to practice medicine at the originating site".

The bill has no original cosponsors. It was referred to the Senate Committee on Health, Education, Labor, and Pensions. Sen. Edwards is a member.

Sen. John EdwardsSen. Edwards (at right) issued a release that states that "A recent study found that 36 million Americans, including 1.7 million North Carolinians, live in areas without enough doctors. Many in the medical community see the expansion of health programs using the Internet and other technologies, known as telehealth, as the key to providing adequate health care for Americans in all parts of the country."

It adds that "Present policy limits Medicare beneficiaries to telehealth services at hospitals or doctors’ offices.  Senator Edwards’ legislation would expand Medicare’s telehealth coverage to other medical facilities, including assisted living centers and skilled nursing facilities."

The bill would also create three demonstration projects, and establish a Joint Working Group on Telehealth at the Department of Health and Human Services.

5th Circuit Rules in Cyber Squatting and Trademark Dilution Case

4/21. The U.S. Court of Appeals (5thCir) issued its opinion [15 pages in PDF] in TMI v. Maxwell, a domain name registration case involving the Federal AntiCybersquatting Consumer Protection Act (ACPA), the Federal Trademark Dilution Act (FTDA), and the Texas state anti-dilution statute.

Maxwell registered domain names, and operated a web site, using names very similar to that of TMI. However, as the Appeals Court concluded, it was a consumer's non-commercial website published for the purpose of complaining. The District Court had little sympathy for Maxwell, and granted judgment under the ACPA and Texas law. It also awarded TMI $80,000. But, the Court of Appeals reversed.

The Appeals Court provided a detailed analysis of multi-part test of the ACPA, which is codified at 15 U.S.C. § 1125(d). The Appeals Court, however, did not discuss the FTDA, or the Supreme Court's recent decision in the Moseley case. The District Court did not base its decision upon the FTDA.

This case is TMI, Inc. v. Joseph Maxwell, U.S. Court of Appeals for the 5th Circuit, Nos. 03-20243 and 03-20291, appeals from the U.S. District Court for the Southern District of Texas.

FCC Files Amicus Brief in Vonage v. Minnesota PUC

4/21. The Federal Communications Commission (FCC) filed an amicus curiae brief [38 pages in PDF] with the U.S. Court of Appeals (8thCir) in Vonage v. Minnesota Public Utilities Commission in which it requested that the Court defer its resolution of this appeal.

The FCC wrote that it is "is currently engaged in administrative proceedings that will address Vonage's regulatory status in particular and the regulatory status of Internet telephony services more generally. There is a significant public interest in ensuring that the FCC's regulatory authority is not impaired by premature judicial resolution of these issues", and that the Court should wait until these proceedings are completed.

The FCC's brief discusses at length the regulatory framework for telecommunications services and information services, and reviews the FCC's completed and pending proceedings. However, it does not take a position on whether Vonage offers an information service.

The FCC refers to its notice of proposed rulemaking (NPRM) [97 pages in PDF] regarding regulation of internet protocol services, including voice over internet protocol (VOIP). This NPRM is FCC 04-28 in Docket No. WC 04-36. See, story titled "FCC Adopts NPRM Regarding Regulation of Internet Protocol Services" in ATLJ Daily E-Mail Alert No. 837, Monday, February 16. See also, notice in the Federal Register, March 29, 2004, Vol. 69, No. 60, at Pages 16193 - 16202.

Vonage provides a service that permits voice communications over the internet. It sells a service called Vonage DigitalVoice that enables its customers to engage in voice communications, with broadband internet connections, using voice over internet protocol (VOIP). It has customers in the state of Minnesota.

The Minnesota Public Utilities Commission (MPUC) issued an order on September 13, 2003 requiring Vonage to comply with Minnesota laws that regulate telephone companies. Vonage then filed the present action.

On October 16, 2003, the U.S. District Court (DMinn) issued its Memorandum and Order [PDF] in holding that Vonage is an information service provider, and that the MPUC cannot apply state laws that regulate telecommunications carriers to Vonage. The Court wrote that "State regulation would effectively decimate Congress's mandate that the Internet remain unfettered by regulation." See, story titled "District Court Holds that Vonage's VOIP is an Information Service" in TLJ Daily E-Mail Alert No. 760, October 17, 2003.

The conclusion that a service provider offers an information service, rather than telecommunications service, would prevent state and federal government entities from applying rules that apply to telecommunications, such as those pertaining to the filing of tariffs, cross subsidies, unbundling, wiretapping and other electronic surveillance by the FBI and other law enforcement agencies, and 911.

This case is Vonage Holding Corporation v. Minnesota Public Utilities Commission, App. Ct. No. 04-1434, an appeal from the U.S. District Court for the District of Minnesota, D.C. No. 03-5287 (MJD/JGL), Judge Michael Davis presiding.

Senate Judiciary Committee to Take Up Intellectual Property Bills

4/21. The Senate Judiciary Committee (SJC) has scheduled an executive business meeting for 11:00 AM on Thursday, April 22. The agenda includes consideration of five major bills affecting intellectual property.

Although, this Committee has a history of placing items on its agenda, and then not taking them up.

CREATE Act. First, the SJC agenda includes S 2192, the "Cooperative Research and Technology Enhancement Act" (CREATE Act). This is a non-controversial bill to promote collaborative research.

The House passed its version of the bill, HR 2391, on March 10, 2004 by a voice vote. See, story titled "House Passes CREATE Act" in TLJ Daily E-Mail Alert No. 854, March 11, 2004. Sen. Orrin Hatch (R-UT), the Chairman of the SJC, Sen. Patrick Leahy (D-VT), the ranking Democrat on the SJC, and others, introduced S 2192 on March 10. Its substantive language matches that of the HR 2391. Sen. Hatch and Sen. Leahy both spoke in the Senate in support of the bill. See, Congressional Record, March 10, 2004, at Pages S2558-9.

The bill would amend Section 103(c) of the Patent Act, which is codified at 35 U.S.C. § 103, to address the August 8, 1997 opinion of the U.S. Court of Appeals for the Federal Circuit in OddzOn Products, Inc. v. Just Toys, Inc., which ruled that derived prior art may serve as evidence of obviousness.

Section 103(c) currently provides a safe harbor for inventions that are the product of collaboration involving co-inventors within a single company. However, scientific research is increasingly being conducted jointly by multiple companies, universities, government labs, and/or other entities.

The holding in the OddsOn case threatens to discourage collaborative research, where the scientists involved are not employed by the same company or entity. Basically, the Court interpreted Section 103(c) to mean that prior art under Sections 102(f) or 102(g) could be used to determine the obviousness of an invention where there is no common ownership or assignment of the invention and information being shared among the collaborators, and the information exchanged is not publicly known. The bill amends Section 103 to provide that patentability is not precluded in the case of research conducted across entities pursuant to a joint research agreement.

USPTO Fee Bill. Second, the agenda includes HR 1561, the "United States Patent and Trademark Fee Modernization Act of 2004".

The House passed this bill on March 3, 2004 by a vote of 379-28. See, Roll Call No. 38. See also, story tiled "House Passes USPTO Fee Bill" in TLJ Daily E-Mail Alert No. 849, March 4, 2004.

The bill contains increases in user fees that implement the U.S. Patent and Trademark Office's (USPTO) 21st Century Strategic Plan. It also provides for U.S. outsourcing of patent searches, and an end to the diversion of user fees to subsidize other government programs.

EnFORCE Act. Third, the agenda includes S 1933, the "Enhancing Federal Obscemity Reporting and Copyright Enforcement Act of 2003", also know as the EnFORCE Act. This bill might more accurately be described as six mostly unrelated amendments to the Copyright Act.

Sen. Orrin Hatch (R-UT), Sen. Dianne Feinstein (D-CA) and Sen. John Cornyn (R-TX) introduced this bill on November 21, 2003. See, story titled "Sen. Hatch Introduces Bill With Numerous Amendments to Copyright Act" in TLJ Daily E-Mail Alert No. 791, December 3, 2003. (This story summarizes all of the changes to the Copyright Act that this bill would make.)

PIRATE Act. Fourth, the agenda includes S 2237, the "Protecting Intellectual Rights Against Theft and Expropriation Act of 2004".

Sen. Leahy and Sen. Hatch introduced this bill on March 25, 2004. See, story titled "Leahy and Hatch Introduce Bill to Give DOJ Authority to Bring Civil Actions for Copyright Infringement" in TLJ Daily E-Mail Alert No. 866, March 30, 2004.

The bill has two provisions. First, it would authorize the Department of Justice (DOJ) to bring civil actions for copyright infringement for conduct that already constitutes criminal copyright infringement under 17 U.S.C. § 506. This would accomplish two things. It would make it easier to prevail, because, among other things, the civil action would have a lower burden of proof. It would also provide a less punitive action for youthful P2P music pirates.

Second, the bill would establish a training program (and authorize funding of $2,000,000) to educate DOJ and U.S. Attorneys Office personnel in copyright enforcement matters.

ART Act. Fifth, the agenda includes S 1932 the "Artists' Rights and Theft Prevention Act of 2003". Sen. Cornyn and others introduced this bill on November 22, 2003. See, story titled "Senators Introduce Bill to Increase Protection of Pre-Released Movies and Other Unpublished Works" in TLJ Daily E-Mail Alert No. 786, November 25, 2003. (This story contains a summary of the bill.)

The agenda also includes consideration of several non-technology related bills.

Finally, the agenda also includes consideration of the following judicial nominees: Henry Saad (to be a Judge of the U.S. Court of Appeals for the Sixth Circuit), William Duane Benton (Eighth Circuit), Robert Bryan Harwell (District of South Carolina), and George Schiavelli (Central District of California). However, the SJC frequently places on its agenda consideration of judicial nominees, and then postpones consideration of those nominees. For example, Committee Democrats have long been delaying a vote on Henry Saad.

More Capitol Hill News

2/21. The House Financial Services Committee's (HFSC) Subcommittee on Capital Markets held a hearing to evaluate the Financial Accounting Standards Board's (FASB) exposure draft on share-based payments, or stock options, and its effects on publicly traded companies. See, opening statement [PDF] of Rep. Mike Oxley (R-OH), the Chairman of the HFSC. See, also prepared testimony of witnesses in PDF: Jeff Thomas (Altera Corporation), Douglas Holtz-Eakin (Congressional Budget Office), Kevin Hassett (American Enterprise Institute), Douglas Kruse (Rutgers University), Phil Smith (Taser International, Inc.), Robert Grady (Carlyle Venture Partners), George Scalise (Semiconductor Industry Association).

2/21. The House Homeland Security Committee's Subcommittee on Infrastructure and Border Security and Subcommittee on Cybersecurity, Science and Research and Development, held a joint hearing to examine the relationship between the Department of Homeland Security (DHS) and the critical infrastructure sectors. See, opening statement by Rep. Chris Cox (R-CA), the Chairman of the Committee. See also, prepared testimony [43 pages in PDF] of Robert Dacey of the General Accounting Office (GAO) titled "Critical Infrastructure Protection: Establishing Effective Information Sharing with Infrastructure Sectors".

People and Appointments

4/21. The Department of Justice (DOJ) announced the membership of the DOJ's Intellectual Property Task Force. it will include David Israelite (Chairman of the Task Force), Daniel Bryant (AAG in charge of the Office of Legal Policy), Jack Goldsmith (AAG in charge of the Office of Legal Counsel), Peter Keisler (AAG in charge of the Civil Division), Christopher Wray (AAG in charge of the Criminal Division), Hewitt Pate (AAG in charge of Antitrust Division), William Moschella (AAG in charge of the Office of Legislative Affairs), Paul Clement (Principal Deputy Solicitor General), Makan Delrahim (Deputy AAG in the Antitrust Division), Valerie Caprioni (General Counsel for the Federal Bureau of Investigation), Debra Yang (U.S. Attorney for the Central District of California), and Kevin Ryan (U.S. Attorney for the Northern District of California). See, DOJ release.

More News

4/21. The Office of the U.S. Trade Representative (USTR) published a notice in the Federal Register requesting comments on the complaint that the USTR submitted to the World Trade Organization (WTO) regarding the PR China's value added tax on integrated circuits. The deadline to submit comments is May 17, 2004. See, Federal Register, April 21, 2004, Vol. 69, No. 77, at Pages 21593 - 21594. See also, story titled "US Complains to WTO About PR China's Tax Preference for Domestic Producers of Integrated Circuits" in TLJ Daily E-Mail Alert No. 859, March 19, 2004.

4/21. Tech Law Journal published in the TLJ website a table titled "Summary of Comments Submitted to the FCC in Response to the DOJ's CALEA Petition (RM-10865)". Reply comments are due by April 27, 2004. See, FCC notice [PDF].

Go to News from April 16-20, 2004.