TLJ News from June 26-30, 2007

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6/29. The Senate amended and approved by unanimous consent HR 556 [LOC | WW], the "Foreign Investment and National Security Act of 2007", a bill pertaining to the Committee on Foreign Investment in the United States (CFIUS) and regulation of foreign ownership of companies for national security or protectionist purposes. The House passed an earlier version of the bill on February 28, 2007, by a vote of 423-0. See, Roll Call No. 110. The Senate approved the bill as HR 556, but substituted the language of S 1610 [LOC | WW]. The House is scheduled to consider the Senate version of the bill, under suspension of the rules, on Tuesday, July 10, 2007.

People and Appointments

Rachel Brand 6/29. Rachel Brand (at right), Assistant Attorney General in charge of the Department of Justice's (DOJ) Office of Legal Policy (OLP), resigned, effective July 9, 2007. The OLP is involved in the selection and confirmation of federal judges. With Democrats in control of the Senate, and a Presidential election in 16 months, the Senate will likely confirm few judges until the 111th Congress convenes in 2009. See, DOJ release.

Senate Judiciary Committee Subpoenas President, VP, DOJ and NSC Regarding Warrantless Electronic Surveillance

6/28. Sen. Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee (SJC), issued subpoenas on June 27, 2007, to the Department of Justice (DOJ), the Office of the White House, the Office of the Vice President, and the National Security Council (NSC) for documents relating to electronic surveillance program.

The SJC authorized the issuance of these subpoenas on June 21, 2007. See, story titled "Senate Judiciary Committee Authorizes Issuance of Subpoenas Directed at Bush Administration Regarding Surveillance" in TLJ Daily E-Mail Alert No. 1,599, June 21, 2007.

Sen. Leahy issued a release that states that these subpoenas seek documents related to "authorization and reauthorization of the program or programs; the legal analysis or opinions about the surveillance; orders, decisions, or opinions of the Foreign Intelligence Surveillance Court (FISC) concerning the surveillance; agreements between the Executive Branch and telecommunications or other companies regarding liability for assisting with or participating in the surveillance; and documents concerning the shutting down of an investigation of the Department of Justice’s Office of Professional Responsibility (OPR) relating to the surveillance".

See, subpoena [PDF] to Joshua Bolton of the White House Office, subpoena to David Addington of the Office of the Vice President, subpoena [PDF] to Attorney General Alberto Gonzales, and subpoena [PDF] to Phillip Lago of the NSC. These subpoenas set a one month deadline for compliance, and also compel testimony before the SJC on July 18, 2007.

None of these subpoenas are directed to either telecommunications carriers or the National Security Agency (NSA), which carry out this electronic surveillance. The NSA is a huge agency that carries out surveillance programs. The NSC, which is the target of a subpoena, is a unit within the Executive Office of the President.

President Bush has not yet responded to these subpoenas. However, on June 28, 2007, Fred Fielding, Counsel to the President, asserted executive privilege as to other Congressional subpoenas.

Fielding wrote a letter [3 pages in PDF] on June 28, 2007, to Rep. John Conyers (D-MI), the Chairman of the House Judiciary Committee (HJC), and Sen. Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee (SJC), regarding HJC and SJC subpoenas for documents related to the appointment of U.S. Attorneys. The letter states that "the President has decided to assert Executive Privilege and therefore the White House will not be making any production in response to these subpoenas for documents."

The White House press office released Fielding's letter, as well as Solicitor General Paul Clement's letter [8 pages in PDF] of June 27, 2007, to President Bush, in which he advised the President that "It is my considered legal judgment that you may assert executive privilege over the subpoenaed documents and testimony."

SCUS Holds That All Vertical Price Restraints Are Subject to Rule of Reason

6/28. The Supreme Court of the U.S. (SCUS) issued its opinion [55 pages in PDF] in Leegin Creative Leather Products v. PSKS, an antitrust case regarding minimum resale price maintenance by manufacturers and intermediate distributors.

The SCUS reversed the judgment of the Court of Appeals, held that all vertical price restrains are to be judged by the rule of reason, and that the SCUS's 1911 opinion in Dr. Miles Medical Co. v. John D. Park & Sons Co., which is reported at 220 U.S. 373, is overturned.

Resale price maintenance (RPM) exists when a manufacturer agrees with its distributor(s) to set the minimum price that the distributor(s) can charge for the manufacturer's goods. Prior to this opinion, RPM was subject to the antitrust per se rule, rather than the lighter rule of reason standard.

This opinion changes the law for vertical RPM. After this opinion, horizontal agreements among competitors to fix prices remain per se violations of the Sherman Act.

The case will impact the way some consumer information technology (IT) and other electronics products are marketed. It will also likely incent IT sector manufacturers to develop new products.

See, full story.

People and Appointments

6/28. President Bush nominated Admiral Mike Mullen to be the next Chairman of the Joint Chiefs of Staff, and General James Cartwright to be the next Vice Chairman of the Joint Chiefs of Staff. See, transcript of White House ceremony.

6/28. President Bush nominated Reed O'Connor to be a Judge of the U.S. District Court for the Northern District of Texas. O'Connor is a federal prosecutor. See, White House release and release of Sen. Jon Cornyn (R-TX) and Sen. Kay Hutchison (R-TX).

6/28. Michael Baye was named Director of the Federal Trade Commission's (FTC) Bureau of Economics. He is a professor at the Kelley School of Business at Indiana University. He will replace Michael Salinger, who will return to the Boston University School of Management. See, FTC release.

6/28. President Bush nominated Christopher Egan to be the U.S. Representative to the Organization for Economic Cooperation and Development (OECD). Egan is President and Managing Member of Carruth Capital. See, White House release and release.

6/28. President Bush nominated Donald Marron to be a member of the Council of Economic Advisers (CEA). Marron is Deputy Director of the Congressional Budget Office (CBO). See, White House release and release.

More News

6/28. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register that announces that "upon the completion of development and testing of its new redundant design coding system,
but no earlier than sixty (60) days from the date of this Notice, the USPTO will: (1) Begin coding with the new coding system all new registrations of marks that include design elements; (2) stop adding design coded registrations to the paper search collection; and (3) begin microfilming the paper search collection of registered marks that include design elements. When microfilming is complete, the USPTO will remove the paper search collection of registered marks that include design elements. The microform collection will be available to the public in the Public Search Facility at 600 Dulany Street, Alexandria, Virginia. This will ensure that all information currently available in the paper search collection remains available to the public." See, Federal Register, June 28, 2007, Vol. 72, No. 124, at Pages 35429-35432.

6/28. A grand jury of the U.S. District Court (DUtah) returned an indictment that charges Sami R. Harb and Michael Harb with operation of an obscene DVD distribution business and related offenses. The defendants reside and do business in Cleveland, Ohio. The prosecution is in Utah. The two operate a web site through which consumers can purchase DVDs. DVDs were sold and shipped to persons in Utah. The Department of Justice's (DOJ) release does not assert that the defendants sold any child pornography.

Senate Commerce Committee Approves Caller ID Bill

6/27. The Senate Commerce Committee (SCC) approved S 704 [LOC | WW] the "Truth in Caller ID Act of 2007". See, SCC release.

This bill is similar, but not identical, to HR 251 [LOC | WW], which is also titled the "Truth in Caller ID Act of 2007". The House approved this bill by voice vote on June 12, 2007. See, story titled "House Approves Caller ID Spoofing Bill" in TLJ Daily E-Mail Alert No. 1,594, June 13, 2007.

The Senate version of the bill, which is sponsored by Sen. Bill Nelson (D-FL), would amend 47 U.S.C. § 227 to provides that "It shall be unlawful for any person within the United States, in connection with any telecommunications service or IP-enabled voice service, to cause any caller identification service to transmit misleading or inaccurate caller identification information, unless such transmission is exempted pursuant to" Federal Communications Commission (FCC) rules. The bill provides that the FCC could exempt anything that it "determines appropriate".

The House version of the bill adds a limitation to the basic prohibition -- "with the intent to defraud or cause harm". The House bill would leave the FCC less discretion.

The two bills contain differently worded law enforcement exceptions.

The Senate bill adds a criminal prohibition. The House bill has none.

The Senate bill also authorizes enforcement by states. The House bill does not.

The Senate bill also allows for damages of up to "$1,000,000 for any single act or failure to act".

Senate Commerce Committee Again Approves Bill to Create MSI Tech Grant Bill

6/27. The Senate Commerce Committee (SCC) approved S 1650 [LOC | WW], the "Max Cleland Minority Serving Institution Digital and Wireless Technology Opportunity Act". See, SCC release. Bills to provide grants to minority serving institutions (MSI) for technology have also been considered in prior Congresses.

This latest bill, which is sponsored by Sen. John Kerry (D-MA), would create at the National Science Foundation (NSF) an Office of Minority Serving Institution Digital and Wireless Technology.

It also creates a grant program for MSIs. It also authorizes the appropriation of $250,000,000 for each of the fiscal years 2008 through 2012.

This is not a new bill. It is the 110th Congress version of S 432 (109th Congress), the "Minority Serving Institution Digital & Wireless Technology Opportunity Act of 2005", and S 196 (108th Congress) and HR 2183 (108th Congress). Former Sen. George Allen (R-VA) was the sponsor of earlier versions of the bill in the Senate. He lost his bid for re-election in 2006. Former Sen. Max Cleland (D-GA) lost his bid for re-election in 2002. He was the sponsor of an even earlier version of the bill, S 414 (107th Congress), the "NTIA Digital Network Technology Program Act".

These bills, which have enjoyed more success in the Senate Commerce Committee than in the House, would provide grants to Alaska Native serving institutions and Native Hawaiian serving institutions, among other MSIs.

FTC Report on Broadband Policy Cautions Against Network Neutrality Mandate

6/27. The Federal Trade Commission (FTC) released a report [170 pages in PDF] titled "Broadband Connectivity Competition Policy". See also, FTC release.

It finds that "There is evidence that the broadband Internet access industry is moving in the direction of more, not less, competition, including fast growth, declining prices for higher-quality service, and the current market-leading technology (i.e., cable modem) losing share to the more recently deregulated major alternative (i.e., DSL). We nonetheless recognize that not every local broadband market in the United States may enjoy vigorous competition."

It recommends that "policy makers proceed with caution in evaluating proposals to enact regulation in the area of broadband Internet access. The primary reason for caution is simply that we do not know what the net effects of potential conduct by broadband providers will be on all consumers, including, among other things, the prices that consumers may pay for Internet access, the quality of Internet access and other services that will be offered, and the choices of content and applications that may be available to consumers in the marketplace."

It continues that "With respect to data discrimination, broadband providers have conflicting incentives relating to blockage of and discrimination against data from non-affiliated providers of content and applications. In the abstract, it is impossible to know which of these incentives would prove stronger for each broadband provider. Further, even assuming such discrimination were to take place, it is unknown whether the net effect on consumer welfare would be adverse. Likewise, it is not possible to know in the abstract whether allowing content and applications providers to pay broadband providers for prioritized data transmission will be beneficial or harmful to consumers."

The report adds that "Policy makers also should carefully consider the potentially adverse and unintended effects of regulation in the area of broadband Internet access before enacting any such regulation. Industry-wide regulatory schemes -- particularly those imposing general, one-size-fits-all restraints on business conduct – may well have adverse effects on consumer welfare, despite the good intentions of their proponents."

FTC Commissioner Jonathan Liebowitz wrote in a concurring statement [3 pages in PDF] that "There is a real reason to fear that, without additional protections, some broadband companies may have strong financial incentives to restrict access to content and applications."

He wrote, citing the FCC's Madison River proceeding, that "a broadband provider with monopoly power in a local market might use that power to block or degrade some applications or content that compete with applications or content the broadband company itself provides."

Groups that represent providers of broadband access services praised the FTC report.

Steve Largent, head of the CTIA -- The Wireless Association, stated in a release that "The Internet regulation scheme has forever been built on a hypothetical, ``what-if´´ scenario and today this flimsy theory has met yet another round of cold, hard, real-world facts that render it unworthy of our nation’s attention and resources."

Walter McCormick, head of the USTelecom, stated in a release that "The FTC found what consumers already know – that they have a variety of competitive choices from cable, DSL, wireless, satellite and other alternative providers for high-speed Internet services, and there is no problem that requires regulation of the Internet. We applaud the FTC’s thorough analysis and appreciate its commitment to ensuring that consumers continue to have access to a robust marketplace.”

Kyle McSlarrow, head of the National Cable & Telecommunications Association (NCTA), praised the report in a release.

Advocates of network neutrality mandates criticized the FTC report.

Gigi Sohn, head of the Public Knowledge, stated in a release that "the report falls far short in its analysis of a competitive market and the related issue of Net Neutrality. Despite the fervent wishes of the FTC staff, there is not a competitive market for high-speed Internet services. New technologies, particularly wireless technologies, are not soon going to have the same robust qualities or market penetration as the duopoly cable and telephone-company services."

Derek Turner of the Free Press stated in a release that "The same phone and cable companies whose anti-competitive policies created this sorry situation are now proposing to become gatekeepers over Internet content and services. But the FTC seems content to stand on the sidelines."

Turner added that "The FTC has an explicit duty to protect consumers. Yet this study includes no empirical research on competition in the local broadband market. They simply take the incumbents at their word that the U.S. broadband marketplace is competitive -- even though most U.S. consumers have at best two choices for broadband at home. The phone and cable companies have a tremendous incentive to favor their own applications and content at the expense of their competitors. In fact, that's exactly what their top executives have announced they plan to do."

AG Gonzales Discusses International IP Enforcement

6/27. Attorney General Alberto Gonzales gave a speech in Seattle, Washington, regarding government enforcement of intellectual property laws.

He said that the Department of Justice (DOJ) is "committed more than ever before to aggressively enforcing the law in this area and to advocating for stronger legal protections from Congress for American entrepreneurs and their products".

The DOJ submitted draft legislation [29 pages in PDF] titled "Intellectual Property Protection Act of 2007" to the Congress on May 14, 2007. See also, DOJ summary of Gonzales' May 14, 2007,  speech to the U.S. Chamber of Commerce regarding intellectual property protection and this draft bill.

Alberto GonzalesGonzales (at right) continued that "We must strengthen our global law enforcement efforts, ensure strong intellectual property laws, increase resources devoted to IP law enforcement, and work to increase the number of international operations we conduct jointly with other countries."

He noted that "in 2006, we convicted 57 percent more defendants for criminal copyright and trademark offenses than in 2005. Of those convictions, the number of defendants receiving prison terms of more than two years increased even more sharply -- up 130 percent."

He also said that "when I travel abroad and meet with my counterparts in other countries, I make sure to include IP crimes in the discussion. Just last month, at a meeting of G8 Justice and Home Affairs ministers in Germany, my counterparts and I adopted a set of principles to enhance international cooperation in fighting IP crime, and we'll continue this work over the coming year."

Gonzales also touched on investigation and prosecution of cyber crimes, including the use of botnets.

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6/27. The Department of Justice (DOJ) announced in a release that Citizens Communications "has agreed to remove restrictive terms from settlement agreements that Commonwealth Telephone Enterprises had previously entered into with two cable companies in Pennsylvania, Blue Ridge and Service Electric, in order to alleviate antitrust concerns raised" by the DOJ.

House Committee Holds Hearing on SEC

6/26. The House Financial Services Committee (HFSC) held a hearing at which the five Commissioners of the Securities and Exchange Commission (SEC) testified. The SEC submitted prepared testimony. SEC Chairman Chris Cox gave a lengthy opening statement.

Both the written testimony, and Cox, addressed the SEC's development of interactive data, which is currently a voluntary program. See, the SEC's interactive data web site.

The SEC testimony states that "the SEC itself is tagging the 2007 executive compensation information for all of the S&P 500 with XBRL labels. We will soon be posting a set of easy to use interactive data software tools on our website that will make the executive pay data interactive. Beyond performing calculations and comparisons online, anyone will be able to download the information directly into an Excel spreadsheet or other software program of their choice."

It adds that the "SEC is committed to doing everything in our power to ensure that XBRL remains an international, stateless, and open source standard".

The prepared testimony also states that the SEC "considering ways to facilitate greater online interaction among shareholders by removing any obstacles in the current rules, such as the ambiguity concerning whether use of an electronic shareholder forum could constitute a proxy solicitation".

Rep. Brad Sherman (D-CA), a member of the HFSC, asked Chairman Cox if the SEC might permit public companies to change their charters to provide for mandatory arbitration of shareholder disputes. Cox responded, "We do not have a pending or proposed or more mature rule or procedure governing this." Cox also later stated that "private litigation is a very important adjunct to SEC enforcement".

2nd Circuit Addresses Personal Jurisdiction in Web Based Defamation Case

6/26. The U.S. Court of Appeals (2ndCir) issued its opinion [36 pages in PDF] in Best Van Lines v. Tim Walker, a case regarding personal jurisdiction over an out of district defendant in a defamation action where the defendant published the allegedly defamatory statements in a web site. The Court of Appeals affirmed the District Court's dismissal for lack of jurisdiction, based upon an interpretation of the New York jurisdiction statute.

Introduction. The Court of Appeals held that Tim Walker, who lives in the state of Iowa, cannot be sued in the distant forum of New York based solely upon his publication of comments on the internet. While this opinion is a victory for bloggers and some other internet speakers, its reach is limited, to the extent that it was decided under the state of New York's long arm jurisdiction statute, rather than the due process clause of the Constitution, and its minimum contacts limitation.

For a court to hear a case, it must have jurisdiction, both over the subject matter of the case (federal courts have jurisdiction over diversity actions and actions arising under federal law), and over the person of the defendant. States, including New York, enact statutes in which they assert the jurisdiction of their courts. (In diversity actions in federal courts, the relevant state's jurisdictional statute applies in determining whether there is personal jurisdiction.)

In addition, the Supreme Court of the U.S. (SCUS) has long held that the due process clause imposes limitations upon the exercise of jurisdiction over out of state defendants. The SCUS held in International Shoe v. Washington, 326 U.S. 310 (1945), that "For due process to be satisfied, a defendant, if not present in the forum, must have ``minimum contacts´´ with the forum state such that the assertion of jurisdiction ``does not offend traditional notions of fair play and substantial justice.´´"

States tend to write very broad jurisdictional statutes. Hence, they are called "long arm" statutes. In most leading cases on personal jurisdiction, the state jurisdictional statute reaches the distant defendant, or the statute asserts all jurisdiction consistent with the Constitution. Thus, in most of these cases the key issue is whether the due process rights of the defendant would be violated by the distant court's exercise of jurisdiction.

However, in this case, New York's statute imposes limitations on the exercise of jurisdiction over out of state defendants, and the District Court and Court of Appeals both held that the state statute does not provide for personal jurisdiction over Walker.

District Court. Tim Walker is a resident of the state of Iowa. He operates a a not-for-profit internet website that  provides information and opinions about household movers. He published information critical of Best Van Lines (BVL) in his web site. BVL asserts that this information is defamatory.

BVL filed a complaint in U.S. District Court (SDNY) against Walker alleging defamation. Walker moved to dismiss for lack of personal jurisdiction. The District Court dismissed the complaint. BVL brought the present appeal.

Statute. The New York statute, which is codified at N.Y. C.P.L.R. § 302(a), provides in relevant part as follows:

"As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:
  1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or
  2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or
  3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he
    (i) regularly does or solicits  business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or
    (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or
  4. owns, uses or possesses any real property situated within the state."

Court of Appeals. The Court of Appeals affirmed.

It wrote that "This appeal raises a single question: whether the United States District Court for the Southern District of New York had personal jurisdiction over Walker for purposes of entertaining this lawsuit. To answer that question, we look first to the law of the State of New York, in which the district court sits."

It continued that "If, but only if, our answer is in the affirmative, we must then determine whether asserting jurisdiction under that provision would be compatible with requirements of due process established under the Fourteenth Amendment to the United States Constitution."

It concluded that "under well-settled principles of New York law, the district court did not have such jurisdiction. We therefore need not address the second question: whether, if New York law conferred it, asserting such jurisdiction would be permissible under the Due Process Clause".

Nevertheless, the Court of Appeals did summarize and discuss the due process limitations.

The court found that Walker's online activities did not amount to transaction business within the state within the meaning of the statute.

Related Cases. This case turned upon an interpretation of the New York statute. However, other courts have held that even though a state long arm jurisdiction statute may allow an action to proceed, the due process clause does not.

In 2002, the U.S. Court of Appeals (4thCir) issued its opinion [12 pages in PDF] in Young v. New Haven Advocate, holding that a court in Virginia does not have jurisdiction over two small newspapers, and their editors and reporters, located in Connecticut, who wrote allegedly defamatory stories about a Virginia prison warden and published them on the internet. The Court of Appeals held that the web publication did not establish minimum contacts because the newspapers are not directed at a Virginia audience.

In Young v. New Haven Advocate the long arm statute analysis and due process analysis merged, because the state statute provided that personal jurisdiction of the Virginia courts extends to the maximum extend allowed by the due process clause.

See, story titled "4th Circuit Rules in Internet Jurisdiction Case" in TLJ Daily E-Mail Alert No. 568, December 16, 2002. See also, story titled "Supreme Court Denies Cert in Case Involving Personal Jurisdiction in Internet Defamation Suit" in TLJ Daily E-Mail Alert No. 665, May 20, 2003.

However, not all personal jurisdiction cases involving allegations of internet based defamation have been decided in favor of the internet speaker.

For example, in 2002, the U.S. Court of Appeals (9thCir) issued its "not for publication" opinion in Northwest Healthcare Alliance v. holding that the District Court has personal jurisdiction over an out of state defendant in defamation case, based solely upon its publication of the allegedly defamatory statements in its "passive" internet web site. See also, story titled "Supreme Court Denies Certiorari in Internet Jurisdiction Case" in TLJ Daily E-Mail Alert No. 652, April 30, 2003.

The SCUS has not yet decided a case involving personal jurisdiction based upon internet conduct. There is some lack of clarity as to the state of U.S. law, particularly in other types of actions, such as actions alleging violation of intellectual property laws.

Also, in 2002 the High Court of Australia issued its opinion in Dow Jones v. Gutnick, a tort action brought in Australia for an allegedly defamatory news story published on the internet by Dow Jones, a U.S. publisher. The Court held that because of publication on the internet, the Australian courts have jurisdiction, that Australian law applies, and that the case should proceed in the trial court in the Australian state of Victoria. See, story titled "High Court Rules Australia Has Jurisdiction Over Dow Jones Based on Web Publication" in TLJ Daily E-Mail Alert No. 564, December 10, 2002.

Cases such as Gutnick may pose little threat to individuals like Walker. He has no assets in Australia. Hence, if someone in Australia, or any other country, is offended by his internet speech, sues him there, and obtains a money judgment, that plaintiff will not be able to execute upon any of his assets. However, for companies with international operations, including news businesses, Gutnick remains a threat.

Jack Goldsmith, who was recently the Assistant Attorney General in charge of the Office of Legal Counsel wrote in his 2006 book, Who Controls the Internet: Illusions of a Borderless World [Amazon], that "the First Amendment does not reflect universal values; to the contrary, no other nation embraces these values, and they are certainly not written into the Internet's architecture."

He continued that "Australia can effectively coerce Dow Jones because Dow Jones is a multinational company with employees, facilities, contracts, and bank accounts in Australia. But the vast majority of Internet users -- students, e-consumers, porn purveyors, chat room participants, web-page operators, bloggers, and over 99 percent of other Net users -- have no connection to Australia or to any other country ..."

He concluded that Gutnick affects "content providers like CNN, Dow Jones, and The Economist; systems operations like Yahoo, Google, eBay, and AOL; and financial intermediaries like MasterCard, PayPal, and Citibank".

Tim Walker proceeded pro se. At the request of the Court of Appeals, Kate Bolger and Slade Metcalf of the New York City office of the law firm of Hogan & Hartson supported Walker as amicus curiae.

TLJ spoke with Bolger, who focuses on First Amendment and media law. She said that this opinion is "very good news" for internet speakers and free speech. While it primarily addressed New York law, "it builds up the case law", and providers speakers another case to cite.

She also commented that the Australian court's opinion in Gutnick was "such an unfortunate decision". She added that while that case caused concern, the U.S. courts are "building up a significant body of case law" that offers protection to internet speakers.

This case is Best Van Lines v. Tim Walker, U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 04-3924-cv, an appeal from the U.S. District Court for the Southern District of New York, Judge Gerard Lynch presiding.

EC Commissioner Discusses Regulation of Video Games

6/26. Viviane Reding, the EC Commissioner for Information Society and Media, gave a speech regarding regulation of interactive games. She wrote that "there are growing concerns in Europe and in the US, especially among policy makers, about the effects upon minors of violent video games". She advocated both "self- and co-regulation".

She said that "there is a renewed need for industry, including retailers and proprietors of games arcades, to shoulder its responsibility in this respect. Therefore, I strongly encourage you to find adequate, flexible solutions to the problem of under-age sales of video games and to regularly redefine classification criteria."

She also said that the European Commission "through legislative proposals as well as through its other actions, has endeavoured to support such a responsible approach."

She added that "I am a strong believer in self- and co-regulation. However, for a self- or co-regulatory system to be effective, the public has to be made aware of its existence. If the parents are not aware of the system and how it works, they will not be able to use it to their children’s advantage."

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6/26. The U.S. District Court (DC) issued a Memorandum Opinion [PDF] in U.S. v. SBC and AT&T and U.S. v. Verizon and MCI, denying COMPTEL's and Michael Lovern's motions to intervene for the purpose of appealing the District Court's final judgment in the Tunney Act proceedings related the the merger of SBC and AT&T and the merger of Verizon and MCI. These cases are U.S. v. SBC Communications, Inc. and AT&T Corp., D.C. No. 05-2102, and U.S. v. Verizon Communications, Inc. and MCI, Inc., D.C. No. 05-2103, U.S. District Court for the District of Columbia, Judge Emmet Sullivan presiding.

Go to News from June 21-25, 2007.