News from March 1-5, 2005

EPIC Releases Report on Privacy

3/4. The Electronic Privacy Information Center (EPIC) released a report titled "Privacy Self Regulation: A Decade of Disappointment". It argues that reliance upon free markets, and industry self-regulation of privacy related practices, has failed to protect individuals from threats to privacy presented by private sector entities.

Most, but not all, of the privacy related issues discussed in the report pertain to online activities and/or electronic databases. This report does not address threats to privacy posed by governmental entities. The report urges the Congress and/or the Federal Trade Commission (FTC) to impose a data regulation framework that addresses consumer access to information about them, choice, security, and accountability.

The report reviews the history of the FTC's study of privacy issues. It provides a discussion of existing technologies and business practices that affect privacy. It also offers predictions as to how several emerging technologies may impact individual privacy. Finally, it offers recommendations for new regulation.

The report identifies as culpable entities certain web site operators, data aggregators, retailers and marketers. The EPIC and others have long highlighted the activities of these groups.

The report also identifies the privacy invasive practices of newspaper publishers. It states that the web sites of thirteen of the top twenty-five newspapers, by circulation, require disclosure of some personal information in order to access content. The report concludes that "Compulsory site registration is likely to become a ``vicious cycle´´ of privacy violations -- increasing prevalence of privacy self-defense through providing ``bad´´ or incorrect information might result in an increased tendency on the part of newspapers to require more invasive information from users, and to compare this information to commercial databases to ensure accuracy."

This report also identifies digital rights management (DRM) technologies that are being developed for transactions involving intellectual property. The EPIC report states that "Some DRM technologies are being developed with little regard for privacy protection. These systems require the user to reveal his or her identity in order to access protected content. Upon authentication of identity and valid rights to the content, the user can access the content. Widespread use of DRM systems could lead to an eradication of anonymous consumption of content."

The report was written by Chris Hoofnagle, Director of the EPIC's San Francisco office.

People and Appointments

3/4. Jay Keithley was named acting Chief of the Federal Communications Commission’s (FCC) Consumer & Governmental Affairs Bureau (CGAB). He will Dane Snowden, who will leave on March 11. Keithley has been the Deputy Chief of the CGAB since June 2004. See, FCC release [PDF].

More News

3/4. Acting U.S. Trade Representative (USTR) Peter Allgeier held a news conference by telephone following the informal meeting of trade ministers in Mombassa, Kenya. See, transcript and prepared statement. See also, statement by Peter Mandelson, the EC's Trade Commissioner.

3/4. The U.S. Court of Appeals (2ndCir) issued its opinion [PDF] in Arbitron v. Tralyn Broadcasting. Arbitron is a listener demographics data provider for radio stations. Tralyn Broadcasting operates a radio station in the state of Mississippi. Arbitron licenses its copyrighted listener data to radio stations, such as the one operated by Tralyn, which then use the demographic profiles of station listeners to attract advertisers. The dispute between Arbitron and Tralyn involves application of contract law of the state of New York to the interpretation of a price escalation clause in the licensing contract. The Court of Appeals held for Arbitron, and in so doing, vacated and remanded to the District Court. This case is Arbitron, Inc. v. Tralyn Broadcasting, Inc., App. Ct. Nos. 03-9276(L) and 04-0264-cv(CON).

3/4. Berkley Etheridge was named VP and Counsel at the National Music Publishers' Association (NMPA). She was previously an Attorney Advisor in the Office of Legislative Affairs at the Department of Justice (DOJ). See, NMPA release [PDF].

House CIIP Subcommittee to Take Up Patent Reform

3/3. Rep. Lamar Smith (R-TX) and Rep. Howard Berman (D-CA), the Chairman and ranking Democrat on the House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property (CIIP), spoke with reporters after the CIIP mark up session on Thursday, March 3, 2005. Rep. Smith stated that the CIIP Subcommittee will hold "several hearings in April on patent reform".

Rep. Smith also said that he will then introduce a bill on patent reform. He did not discuss its contents. He added, "the next big thing of this Subcommittee will be patent reform."

Said Rep. Berman, "we are very glad to hear that". See, full story.

House CIIP Subcommittee Approves Family Entertainment and Copyright Act

3/3. The House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property (CIIP) approved, by unanimous voice vote, S 167, the "Family Entertainment and Copyright Act of 2005".

This is a composite bill, containing four copyright related parts. It includes the ART Act, which includes a provision criminalizing certain uses of camcorders in movie theaters, and the Family Movie Act, which pertains to ClearPlay type content skipping technology. It also contains the Film Preservation Act and the Orphan Works Act.

The CIIP Subcommittee held no hearing in this Congress on this bill. However, the items in this bill are carried over from the 108th Congress. The CIIP Subcommittee did hold hearings, and markup sessions, in the 108th Congress.

The Senate promptly approved this bill on February 1, 2005. See, story titled "Senate Approves Copyright Bill" in TLJ Daily E-Mail Alert No. 1,069, February 3, 2005. That story contains are more detailed summary of the contents of this bill.

The debate was brief at the March 3 CIIP Subcommittee markup. No amendments were offered. Only three members spoke, Rep. Lamar Smith (R-TX), Rep. Howard Berman (D-CA), and Rep. Chris Cannon (R-UT).

Rep. Berman has previously spoken in opposition to the "Family Movie Act". He stated on March 3 that he supports this bill, despite its inclusion of the "Family Movie Act". He quipped that it could be named the "Authorizing Profits for ClearPlay Legislation".

Rep. Berman also warned that while this bill allows parents to skip over content that they do not want their children to see, this same technology can also be employed to enable viewers to see movies that are "more explicit ... more pornographic".

Rep. Smith made that argument that this legislation is appropriate because requiring movie viewers not to skip over content would be like requiring book readers not to skip pages.

Rep. Smith and Rep. Berman spoke with reporters after the mark up session. Rep. Smith stated that the Subcommittee's goal is to see S 167, and the other bills just approved by the CIIP Subcommittee, marked up in full Committee, and approved by the House, quickly. In particular, he said that the goal is to obtain final passage of all of these bills before the U.S. Supreme Court issues its opinion in the Grokster case, regarding copyright infringement and peer to peer systems.

Rep. Smith and Rep. Berman stated that they expect that they will have other work once the Grokster opinion is handed down. They predicted that whoever looses that case will come to the Congress seeking legislation, while the winner will urge the Congress to pass no legislation on the subject.

House CIIP Subcommittee Amends and Approves Trademark Dilution Revision Act

3/3. The House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property (CIIP) amended and approved HR 683, the "Trademark Dilution Revision Act of 2005".

Rep. Lamar Smith (R-TX), the Chairman of the CIIP Subcommittee, introduced this bill on February 9, 2005. The CIIP Subcommittee held a hearing on February 17, 2005. See, story titled "CIIP Subcommittee Holds Hearing On Trademark Dilution Revision Act" in TLJ Daily E-Mail Alert No. 1,081, February 23, 2005.

This bill is a reaction to the Supreme Court's March 4, 2003 opinion [21 pages in PDF] in Moseley v. V Secret. See also, story titled "Supreme Court Rules in Trademark Dilution Case" in TLJ Daily E-Mail Alert No. 618, March 6, 2003.

Rep. Smith stated at the mark up that the Supreme Court "compelled" the House to revisit this topic. He said that HR 683 is not new legislation. Rather, it "represents a clarification of what the Congress meant" when it enacted the Federal Trademark Dilution Act (FTDA) in 1995.

The FTDA bars uses of another's mark that blur or otherwise interfere with the ability of that mark to identify the source of goods. The FTDA is codified at 15 U.S.C. § 1125(c). It is also known as Section 43(c) of the Lanham Act.

The Moseley case involved whether the plaintiff in a lawsuit for violation of the FTDA must show actual economic loss. The Sixth Circuit held that economic harm may be inferred. The Supreme Court reversed. Its opinion is also reported at 537 U.S. 418.

The Supreme Court wrote that "The relevant text of the FTDA ... provides that ``the owner of a famous mark´´ is entitled to injunctive relief against another person's commercial use of a mark or trade name if that use ``causes dilution of the distinctive quality´´ of the famous mark. 15 U. S. C. §1125(c)(1) (emphasis added). This text unambiguously requires a showing of actual dilution, rather than a likelihood of dilution."

The amendment approved by the Subcommittee makes 17 changes to the bill as introduced. Many are minor and technical clarifications.

HR 683 would replace the current language of 15 U.S.C. § 1125(c).

Subsection (c)(1) currently provides that "The owner of a famous mark shall be entitled, subject to the principles of equity and upon such terms as the court deems reasonable, to an injunction against another person’s commercial use in commerce of a mark or trade name, if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark, and to obtain such other relief as is provided in this subsection."

The current statute then enumerates several factors that the court may consider in determining whether a mark is distinctive and famous.

Under HR 683, as introduced, subsection (c)(1) would provide that "Subject to the principles of equity, the owner of a famous mark that is distinctive, inherently or through acquired distinctiveness, shall be entitled to an injunction against another person who, at any time after the owner's mark has become famous, commences use of a mark or trade name in commerce as a designation of source of the person's goods or services that is likely to cause dilution by blurring or dilution by tarnishment, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury."

The amendment approved on March 3 makes two change to this language. First, it deletes the phrase "as a designation of source of the person's goods or services". Second, it replaces the word "tarnishment" with "tarnishment of the famous mark".

The bill, as introduced, also provides that "a mark is famous if it is widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark's owner. In determining whether a mark possesses the requisite degree of recognition, the court may consider all relevant factors, including the following:
  (i) The duration, extent, and geographic reach of advertising and publicity of the mark, whether advertised or publicized by the owner or third parties.
  (ii) The amount, volume, and geographic extent of sales of goods or services offered under the mark.
  (iii) The extent of actual recognition of the mark." The amendment does not alter this language.

The bill also defines, and enumerates factors to be considered by the court regarding, dilution by blurring. It also defines dilution by tarnishment. The amendment approved on March 3 makes several changes to these definitions. The amendment replaces references to "designation of source" with "mark or trade name".

The bill, as introduced, also contains a list of exemptions. These only slightly modify the exemptions in the current statute. The bill, as introduced, provides that "The following shall not be actionable as dilution by blurring or dilution by tarnishment under this subsection:
  (A) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark.
  (B) Noncommercial use of a designation of source.
  (C) All forms of news reporting and news commentary."

One of the key items in the amendment approved on March 3 replaces the noncommercial use language (subsection (c)(3)(B) quoted above). The amended language provides that there is an exemption for "Fair use of a famous mark by another person, other than as a designation of source for the person's goods or services, including for purposes of identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner."

Rep. Howard Berman Rep. Howard Berman (D-CA) (at left), the ranking Democrat on the CIIP Subcommittee, also spoke at the March 3 mark up session. He expressed support for the bill, and emphasized dilution should remain an extraordinary remedy. He said that dilution "will only be available in rare circumstances, and not as an alternative to trademark infringement".

Rep. Berman commented on the amendment that exempts fair use, including parody, criticism and comment. He said that dilution will not be available to "trump First Amendment rights".

FCC Releases Agenda for March 10 Meeting

3/3. The Federal Communications Commission (FCC) announced the agenda [PDF] for its Thursday, March 10, 2005 event titled "Open Meeting". The agenda includes an order regarding unlicensed use of the 3650-3700 MHz band by wireless internet service providers (WISPs), and an order regarding cognitive radio technology.

WISPs. The FCC will consider a Report and Order and Memorandum Opinion and Order regarding use of the 3650-3700 MHz Band. This is ET Docket Nos. 04-151, 02-380, and 98-237.

On April 15, 2004, the FCC adopted a Notice of Proposed Rulemaking (NPRM) [43 pages in PDF] regarding unlicensed use of the 3650-3700 MHz band. The FCC released this NPRM on April 26, 2004. See also, stories titled "FCC Announces NPRM Regarding Unlicensed Use in the 3650-3700 MHz Band" in TLJ Daily E-Mail Alert No. 878, April 16, 2004, and "FCC Releases NPRM on Unlicensed Use of the 3650-3700 MHz Band" in TLJ Daily E-Mail Alert No. 886, April 28, 2004.

The NPRM stated that "the central proposal of this Notice would allow unlicensed devices to operate in either all, or portions of, this radiofrequency (RF) band under flexible technical limitations with smart/cognitive features that should prevent interference to licensed satellite services. Specifically, we propose to allow these devices to operate with higher power than currently authorized under Part 15 of the Rules subject to cognitive technology safeguards."

Cognitive Radio Technology. The FCC will consider a Report and Order regarding the use of cognitive, or smart, radio technology. This proceeding is titled "Facilitating Opportunities for Flexible, Efficient, and Reliable Spectrum Use Employing Cognitive Radio Technologies" and numbered ET Docket No. 03-108.

The FCC adopted its Notice of Proposed Rule Making and Order [53 pages in PDF] on December 17, 2003. It released this NPRM on December 30, 2003. This NPRM is FCC 03-322. See also, story titled "FCC Releases Cognitive Radio Technology NPRM" in TLJ Daily E-Mail Alert No. 808, December 31, 2003.

Cognitive radio technology, among other things, enables devices to determine their location, sense spectrum use by other devices, change frequency, adjust output power, and alter transmission parameters and characteristics.

UWB. The FCC will consider an order concerning ultrawideband (UWB) transmitters that operate under Part 15 of the FCC's rules. This proceeding is titled "Petition for Waiver of the Part 15 UWB Regulations Filed by the Multi-band OFDM Alliance Special Interest Group" and numbered ET Docket No. 04-352.

On August 26, 2004, the Multi-band OFDM Alliance Special Interest Group (MBOA-SIG) filed a request for a waiver of Part 15 of the FCC's rules regarding UWB systems that employ multi-band orthogonal frequency division multiplexed (MB-OFDM) modulation techniques. The MBOA-SIG requested that the average emission levels from UWB MB-OFDM transmitters, which are sequenced between three frequency bands according to one of four deterministic and fixed hopping patterns, be measured under normal operating conditions instead of with the band sequencing stopped.

Other Items. The FCC will consider an order designating 811 as the national abbreviated dialing code to be used by state One Call notification systems for providing advanced notice of excavation activities to underground facility operators in compliance with the Pipeline Safety Improvement Act of 2002. This item is CC Docket No. 92-105.

The FCC adopted its NPRM on May 13, 2004, and released the text [34 pages in PDF] on May 14, 2004. This NPRM is FCC 04-111. See also, story titled "FCC Adopts NPRM Regarding One Call Notification System" in TLJ Daily E-Mail Alert No. 899, May 17, 2004.

The FCC will also consider a Second Report and Order, Declaratory Ruling, and Second Further Notice of Proposed Rulemaking regarding the truth in billing rules and a related petition for declaratory ruling filed by the National Association of State Utility Consumer Advocates (NASUCA). This is CC Docket No. 98-170 and CG Docket No. 04-208.

The FCC's notice also lists several consent agenda items.

This event is scheduled for 9:30 AM on Thursday, March 10, 2005 in the Commission Meeting Room, Room TW-C305, 445 12th Street, SW. The event will be webcast by the FCC. The FCC does not always take up all of the items on its agenda. The FCC does not always start its monthly meetings at the scheduled time.

FCC Stops Broadband Provider From Blocking VOIP Traffic

3/3. The Federal Communications Commission (FCC) adopted and released an order [1 page in PDF] that adopts a Consent Decree [4 pages in PDF] negotiated by the FCC's Enforcement Bureau and Madison River Communications.

The Consent Decree states that it pertains to "the blocking of ports used for Voice over Internet Protocol (``VoIP´´) applications, thereby affecting customers' ability to use VoIP through one or more VoIP service providers." The Consent Decree provides that "Madison River agrees, that Madison River shall not block ports used for VoIP applications or otherwise prevent customers from using VoIP applications."

The FCC also fined Madison River $15,000. The Consent Decree states that Madison River "agrees to make a voluntary payment" to the government.

The Madison River companies provide phone and data services in rural markets in southern and midwestern states.

This consent decree is a part of an enforcement action that constrains one set of companies. It is not the adoption of rules of general applicability to all. FCC Chairman Michael Powell wrote in a release that "In my view, the surest way to preserve `Net Freedom´ is to handle these issues in an enforcement context where hypothetical worriers give way to concrete facts and -- as we have shown today -- real solutions".

Chairman Powell has spoken about his concept of "net freedom" on several occasions. For example, he gave a speech [PDF] titled "Preserving Internet Freedom: Guiding Principles for the Industry" on February 8, 2004 at the Silicon Flatirons Symposium at the University of Colorado School of Law in Boulder, Colorado.

He argued in that speech for a concept that he called "Net Freedom" -- the concept that consumers should be able to use their broadband connections to "use the content, applications and devices they want", without restrictions imposed by their broadband service providers.

Michael PowellPowell (at right) argued that "the case for government imposed regulations regarding the use or provision of broadband content, applications and devices is unconvincing and speculative". However, he outlined a voluntary "road map" of rules to be followed by broadband service providers.

Powell argued that this "Net Freedom" includes the principles that "consumers should have access to their choice of legal content", "consumers should be able to run applications of their choice", and "consumers should be permitted to attach any devices they choose to the connection in their homes".

See also, story titled "Powell Opposes Regulations to Impose Broadband Network Neutrality" in TLJ Daily E-Mail Alert No. 883, February 10, 2004.

Others have argued that the FCC should write rules that impose "network neutrality" or "nondiscrimination" upon broadband service provides. The Coalition of Broadband Users and Innovators (CBUI) has filed numerous comments with the FCC urging that it write a nondiscrimination rule. See especially, comment [3 pages in PDF] filed on November 18, 2002, and comment [23 pages in PDF] filed on July 17, 2003.

See also, comment [17 pages in PDF] submitted by law professors Lawrence Lessig (Stanford) and Timothy Wu (University of Virginia) on August 22, 2003 urging that the FCC adopt a network neutrality rule. See also, story on this subject titled "Cato Study Opposes FCC Imposition of Network Neutrality", in TLJ Daily E-Mail Alert No. 816, January 15, 2004.

Also, FCC Commissioner Michael Copps delivered an address on Capitol Hill on network neutrality on March 26, 2004. See, story titled "FCC Commissioner Copps Addresses Broadband Network Neutrality" in TLJ Daily E-Mail Alert No. 868, April 2, 2004.

Jeff Pulver wrote a statement regarding the Madison River enforcement action in his website. He said that the FCC "seems to have demonstrated a meaningful commitment to Net Freedom. I suspect carriers and others that might control a user's access to the Internet will now think twice before blocking ports needed for VoIP and other IP-based applications, or otherwise interfering with the user's Internet experience."

Pulver added that "Chairman Powell has done much to move the communications industry to a less regulated model, while simultaneously attempting to ensure a sustainable competitive marketplace, an environment that encourages innovation and entrepreneurship, and a regulatory structure that provides for parity across platforms and encourages deployment of more robust, IP-capable, broadband networks. This is an insanely delicate tight-rope walk. I think Chairman Powell has masterfully negotiated the course, but it was essential for him to solidify his vision and the path before he stepped down."

This proceeding is titled "In the Matter of Madison River Communications, LLC and affiliated companies". This order is DA 05-543 in File No. EB-05-IH-0110.

People and Appointments

3/3. Andrew Noyes was named Associate Managing Editor of Washington Internet Daily, a Warren Communications News publication. He replaces Randy Barrett, who went to National Journal's Technology Daily. Noyes will also write on intellectual property rights, cyber security, and internet issues for Warren's Communications Daily. Noyes has worked for Communications Daily since November of 2004, covering satellite issues. He can be reached at

More News

3/3. The Federal Communications Commission (FCC) released the agenda [PDF] for its meeting of Thursday, March 10, 2005.

Federal Circuit Vacates in Eolas Patent Case

3/2. The U.S. Court of Appeals (FedCir) issued its opinion [29 pages in PDF] in Eolas v. Microsoft, vacating in part, and affirming in part, the judgment of the District Court, and remanding.

The Court of Appeals held the the District Court "improperly granted judgment as a matter of law (JMOL) in Eolas’ favor on Microsoft's anticipation and obviousness defenses and improperly rejected Microsoft’s inequitable conduct defense, this court vacates the district court's decision and remands for a new trial on these issues."

However, the Court of Appeals affirmed the District Court on other issues. It affirmed the District Court's claim construction of "executable application". It also found the the District Court did not err in its jury instruction with regard to the claim limitation "utilized by said browser to identify and locate." And, it affirmed the District Court's holding that "components" under 35 U.S.C. § 271(f)(1) (regarding foreign sales) includes software code on golden master disks.

See, full story.

7th Circuit Rules in Indian Jewelry IPR Case

3/2. The U.S. Court of Appeals (7thCir) issued its opinion [8 pages in PDF] in Native American Arts v. Waldron Corporation, an intellectual property case involving native American products. The Court of Appeals affirmed, on other grounds, the District Court's refusal to give a jury instruction based upon a regulation implementing the statute under which the suit was brought.

This case involves a little known, and rarely litigated intellectual property rights (IPR) statute, the Indian Arts and Crafts Act (IACA). Because it forbids selling a good "in a manner that falsely suggests it is ... an Indian product", it is conceptually similar to certain provisions of the Lanham Act, which provides protection for trademarks (see, 15 U.S.C. §§ 1051, et seq.), and protection against false designations of origin (see, 15 U.S.C. § 1125(a)).

The Defendant, The Waldron Corporation, made and sold jewelry that it advertised under the names ``Navajo,´´ ``Crow,´´ ``Southwest Tribes,´´ and ``Zuni Bear´´. However, none of this jewelry was made by ``Navajo,´´ ``Crow,´´ ``Southwest Tribes,´´ ``Zuni Bear´´, or any member of any other Indian tribes. Moreover, the tags affixed to these jewelry items also included information about various Indian tribes. The defendant did not qualify its advertising with any statement that its jewelry is not Indian products.

Native American Arts, Inc., and others, filed a complaint in U.S. District Court (NDIll) against Waldron alleging violation of the IACA.

The jury returned a verdict for Waldron. However, the District Court first denied the plaintiffs' request for a jury instruction based upon a regulation implementing the IACA. See, Memorandum Opinion [22 pages in PDF] of the District Court. Hence, the error asserted upon appeal is the District Court's refusal to grant this jury instruction.

The Seventh Circuit hears few IPR cases. A disproportionate share of its opinions in IPR cases, including this one, are written by Judge Richard Posner. He has recently written and spoken much on this area of law. See, for example, The Economic Structure of Intellectual Property Law [Amazon].

The IACA is codified at 25 U.S.C. §§ 305, et seq. § 305 creates an "Indian Arts and Crafts Board", and § 305b gives this Board authority to promulgate rules and regulations implementing the IACA.

The key section for the purpose of this case is § 305e. It creates a private right of action for falsely suggesting that a product is an Indian product.

It provides that an Indian tribe, or an Indian arts and crafts organization, may "in a civil action in a court of competent jurisdiction, bring an action against a person who, directly or indirectly, offers or displays for sale or sells a good, with or without a Government trademark, in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization, resident within the United States". § 305e further provides that the plaintiff may obtain injunctive relief, treble or statutory damages, punitive damages, and attorneys fees.

While the original statute dates back to 1935 (see, Public Law No. 87-23), § 305e was enacted in 1990 as a part of HR 2006 in the 101st Congress. It is now Public Law No. 101-644. It was sponsored by then Rep. Jon Kyl (R-AZ). He is now Sen. Jon Kyl, and a senior member of the Senate Judiciary Committee. This bill had four cosponsors, two of whom are now also Senators -- Ron Wyden (R-OR) and Tim Johnson (D-SD).

The Indian Arts and Crafts Board promulgated a regulation implementing § 305e that provides, in part, that "the unqualified use of the term `Indian´ or ... of the name of an Indian tribe ... in connection with an art or craft product is interpreted to mean ... that the art or craft product is an Indian product." See, 25 C.F.R. § 309.24(a)(2).

The District Court held that this regulation is an unconstitutional restraint upon freedom of speech. It consequently refused to give the jury an instruction based upon this regulation.

Judge Posner, writing for the Court of Appeals, rejected this conclusion. He wrote, "He indeed was wrong. If he were right, trademark law would be unconstitutional. In effect the regulation makes ``Indian´´ the trademark denoting products made by Indians ... A non-Indian maker of jewelry designed to look like jewelry made by Indians is free to advertise the similarity but if he uses the word ``Indian´´ he must qualify the usage so that consumers aren't confused and think they're buying not only the kind of jewelry that Indians make, but jewelry that Indians in fact made. There is no constitutional infirmity."

However, Judge Posner affirmed the refusal to give a jury instruction based upon this regulation on other grounds. First, he concluded that the Indian Arts and Crafts Board lacked authority under the statute to promulgate such a rule.

Posner did not discuss what degree of deference to accord the Board. He did not discuss the Chevron case, or any other cases dealing with judicial deference to administrative agencies. See, Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).

Rather, he pointed out that the Indian Arts and Crafts Board is a "small office". Perhaps Posner means to suggest that big agencies, such as the FCC, write sound regulations, based upon statutory authority, that always withstand judicial scrutiny.

He also wrote that "the Board's enforcement role is extremely limited". He did not explain why enforcement authority is pertinent when § 305b gives this Board authority to promulgate rules.

Nevertheless, he concluded that "There is no indication that Congress delegated to the Department authority to determine what constitutes sufficient proof of false advertising".

He also wrote that litigants are not entitled to jury instructions on all regulations.

Finally, while the above quoted language from the opinion makes clear that Judge Posner understood that the IACA's civil remedy provisions are similar to Lanham Act remedies, he did not also address how the IACA may be different from the Lanham Act. For example, constitutional authority for trademark legislation derives from the clause, "To regulate Commerce ... among the several States", while authority for the IACA also derives from the clause "To regulate Commerce ... with the Indian tribes". Also, while the trademark laws serve the purposes of distinguishing the origin of products, and protecting consumers from false advertising, the IACA serves these purposes, and the additional purpose stated in § 305a. It provides that "It shall be the function and the duty of the Secretary of the Interior through the Board to promote the economic welfare of the Indian tribes and Indian individuals through the development of Indian arts and crafts and the expansion of the market for the products of Indian art and craftsmanship."

The Court of Appeals did not address whether either or both of these have any bearing upon construction of the statute and regulation, the deference to be given to the Board, or the plaintiffs' entitlement to a jury instruction.

This case is Native American Arts, Inc., et al. v. The Waldron Corporation, U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 04-3182, an appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division, D.C. No. 01 C 2370, Judge Samuel Der-Yeghiayan presiding.

People and Appointments

3/2. Adam Thierer will join the Progress and Freedom Foundation (PFF) as Senior Fellow and the Director of PFF's new Center for Digital Media Freedom, effective March 7, 2005. He was previously Director of Telecommunications Studies at the Cato Institute. See, Thierer's Cato biography. His new contact information will be athierer at pff dot org and 202 289-8928.

3/2. Bill Gates, Chairman and Chief Software Architect of Microsoft, was made a Knight Commander of the British Empire (KBE) in a private ceremony conducted by her royal majesty, Queen Elizabeth II, at Buckingham Palace in London. Membership in the Order of the British Empire entitles Gates to attach the letters "KBE" after his name, and to attach the motto of the Order to his coat of arms, but not to attach Windows Media Player to the Windows operating system. Said Gates, "I am humbled and delighted". See, Microsoft release.

3/2. John Trewin was named SVP and CFO of Covad, effective March 16, 2005. See, Covad release.

More News

3/2. The House Commerce Committee's Subcommittee on Telecommunications and the Internet held a hearing titled "Competition in the Communications Marketplace: How Technology Is Changing the Structure of the Industry". See, prepared testimony [4 pages in PDF] of Edward Whitacre (Ch/CEO of SBC), prepared testimony [14 pages in PDF] of David Dorman (Ch/CEO of AT&T), prepared testimony [6 pages in PDF] of Ivan Seidenberg (Ch/CEO of Verizon), prepared testimony [8 pages in PDF] of Michael Capellas (CEO of MCI), prepared testimony [12 pages in PDF] of Gary Forsee (Ch/CEO of Sprint), prepared testimony [11 pages in PDF] of  Timothy Donahue (P/CEO of Nextel), prepared testimony [13 pages in PDF] of Mark Cooper (CFA), prepared testimony [7 pages in PDF] of Jeff Halpern (equity research analyst at Sanford Bernstein), and prepared testimony [24 pages in PDF] of James Speta (Northwestern University School of Law), and prepared testimony [14 pages in PDF] of Phil Weiser (University of Colorado School of Law).

Senator Stevens Discusses Indecency

3/1. Sen. Ted Stevens (R-AK), the Chairman of the Senate Commerce Committee, gave a speech to a National Association of Broadcasters (NAB) convention. See, audio [MP3] of prepared speech. (This audio file does not include his followup statements, or his statements to reporters after the speech.)

Most of the speech focused on broadcast indecency. However, he also touched on media concentration, must carry, DTV transition, the operations of the Senate Commerce Committee, and other topics.

He again stated that he and Sen. Daniel Inouye (D-HI), the ranking Democrat on the Committee, cooperate like brothers. He also said that the Committee is holding closed "listening sessions", rather than open public hearings, to obtain information on various issues.

Stevens said in his prepared speech that "I'm not prude", but "sexual content is rampant on television", and that cable TV is worse.

He said in his prepared speech, which he cleared with Sen. Inouye, that "no one wants censorship; but we want your cooperation".

In comments to reporters afterwards he said that he favors extending the indecency requirements from broadcast radio and television to cable TV and satellite radio and TV.

Sen. Stevens reviewed HR 310, the "Broadcast Decency Enforcement Act of 2005", which would amend the Communications Act by increasing the maximum penalty for obscene, indecent, or profane material in radio or television broadcasts from $32,500 to $500,000 per violation. He also discussed Senate Commerce Committee consideration of related legislation.

The House approved its bill on February 18, 2005. See also, story titled "House Commerce Committee Approves Bill to Increase Broadcast Indecency Fines" in TLJ Daily E-Mail Alert No. 1,074, February 10, 2005.

Brent Bozell, President of the Parents Television Council (PTC), commented on Sen. Stevens' statements. Bozell wrote in the PTC web site that "We support cable consumer choice as the best way to protect families from content they find offensive or that may be indecent and to protect free speech concerns. But if the cable operators refuse to allow consumer choice, then we believe that any cable network which is included in the basic or expanded basic tiers should be forced to comply with the same decency standards as the broadcast networks. Such a policy would force those networks that don’t adhere to such standards onto a separate subscription tier."

EPIC Opens West Coast Office

3/1. The Electronic Privacy Information Center (EPIC), heretofore a Washington DC based group, announced the opening of an office in San Francisco, California. The Director of this new office will be Chris Hoofnagle. He was previously Associate Director of the Washington DC office.

Hoofnagle stated that the EPIC is interested in leveraging the power of the states to protect privacy. He noted, for example, that ChoicePoint's sale of information about 145,000 individuals to identity thieves may not have been exposed, but for the state of California's security breach notice law.

See, stories titled "Senate Judiciary Committee Could Hold Hearings on ChoicePoint, Technology, Privacy and Security" in TLJ Daily E-Mail Alert No. 1,083, February 25, 2005, and "ChoicePoint Describes Its Sale of Data to Identity Thieves" in TLJ Daily E-Mail Alert No. 1,081, February 23, 2005.

A San Francisco office will also provide the EPIC a presence close to many of its supporters. In addition, the EPIC is a frequent Freedom of Information Act (FOIA) litigant. The 9th Circuit is a more favorable forum for FOIA plaintiffs than the District of Columbia Circuit.

People and Appointments

3/1. Michael Sievert was named corporate vice president for Windows product management at Microsoft. He will be responsible for "marketing, product management and product planning for the Windows Client, including the next version of Microsoft Windows, code-named ``Longhorn,´´ slated for release in 2006". See, Microsoft release. He was previously EVP and Chief Marketing Officer at AT&T Wireless Services. Before that, he was EVP and chief global marketing and sales officer at E*TRADE. And before that, he worked for IBM.

3/1. Robert Sachs, the former P/CEO of the National Cable & Telecommunications Association (NCTA), rejoined Continental Consulting Group, LLC, effective March 1. He was replaced at the NCTA by Kyle McSlarrow. See, NCTA release. See also, story titled "NCTA Picks Kyle McSlarrow to Replace Sachs" in TLJ Daily E-Mail Alert No. 1,065, January 28, 2005.

More News

3/1. The Supreme Court issued a short order in the Brand X case. This case pertains to the regulatory classification of cable modem service. The Court wrote that "The motion of the Acting Solicitor General for divided argument is granted." See, Order List [19 pages in PDF] at page 12. This proceeding is NCTA v. Brand X Internet Services, No. 04-277, and FCC v. Brand X, No. 04-281. Oral argument is scheduled for Tuesday, March 29, 2005. See, March calendar [PDF]. See also, story titled "Supreme Court Grants Certiorari in Brand X Case" in TLJ Daily E-Mail Alert No. 1,029, December 3, 2004.

3/1. The National Telecommunications and Information Administration (NTIA) released a report titled "Interference Potential of Ultrawideband Signals: Part 1: Procedures to Characterize Ultrawideband Emissions and Measure Interference Susceptibility of C-Band Satellite Digital Television Receivers". This report is the first in a series of three. See, short abstract, table of contents [2 pages in PDF], and report [huge PDF file].

3/1. Tessera Technologies, Inc. filed a complaint in U.S. District Court (EDTex) against Infineon Technologies AG and Micron Technology, Inc. alleging patent infringement. See, Tessera release. Tessera is based in San Jose, California. Infineon, which was spun off from Siemens AG, is based in Germany. Micron is based in Boise, Idaho. The Eastern District of Texas is a forum of choice for corporate plaintiffs in certain technology cases.

3/1. The Office of the U.S. Trade Representative (USTR) released a report [437 pages in PDF] to the Congress titled "2005 Trade Policy Agenda and 2004 Annual Report of the President of the United States on the Trade Agreements Program". See also, USTR release.

3/1. The Office of Management and Budget (OMB) submitted to the Congress its report [43 pages in PDF] titled "FY 2004 Report to Congress on Implementation of The E-Government Act of 2002".

3/1. The Office of Management and Budget (OMB) submitted to the Congress its report [56 pages in PDF] titled "Federal Information Security Management Act (FISMA) 2004 Report to Congress".

Go to News from February 26-28, 2005.