TLJ News from April 6-10, 2011

Lapse in Federal Government Funding Averted

4/9. House and Senate passed early on Saturday, April 9, and President Obama signed, HR 1363 [LOC | WW] a short bill that provides for funding of federal agencies through April 15, 2011. House and Senate leaders, and Obama, also announced broader agreement on spending cuts.

Jacob Lew, Director of the Executive Office of the President's (EOP) Office of Management and Budget (OMB) issued a memorandum late on April 8, in anticipation of agreement. It states that "at this time agencies are instructed to continue their normal operations".

Rep. John Boehner (R-OH) and Sen. Harry Reid (D-NV) stated in a joint release issued late on April 8 that "We have agreed to an historic amount of cuts for the remainder of this fiscal year, as well as a short-term bridge that will give us time to avoid a shutdown while we get that agreement through both houses and to the President. We will cut $78.5 billion below the President’s 2011 budget proposal, and we have reached an agreement on the policy riders. In the meantime, we will pass a short-term resolution to keep the government running through Thursday. That short-term bridge will cut the first $2 billion of the total savings."

President Obama stated in a radio address on April 9 that "Last night, after weeks of long and difficult negotiations over our national budget, leaders of both parties came together to avert a government shutdown".

Technology related agencies and committees took divergent positions regarding what would be the consequences of a lapse in funding for their activities and operations.

For example, a member of the staff of the House Judiciary Committee (HJC) wrote to TLJ to state that "If there is a shutdown, Committee hearings will be suspended until further notice." In contrast, a member of the Senate Judiciary Committee (SJC) staff wrote to TLJ on April 8 to state that no decision had been made on whether to continue to hold hearings, and that "During the shutdown in the 90s, the Committee, under Chairman Hatch, did hold some hearings".

The U.S. Patent and Trademark Office (USPTO) issued a release on April 7 in which it stated that in the event of a lapse in funding, the USPTO would maintain full operations for some time, and then "limited staff will be able to continue to work to accept new electronic applications and maintain IT infrastructure, among other functions". See, story titled "Consequences of a Lapse in Government Funding " in TLJ Daily E-Mail Alert No. 2,219, April 7, 2011.

The Copyright Office (CO) did not respond to a request from TLJ for information on the consequences of a lapse in funding for its copyright registration activities, the filing of comments, and comment deadlines.

In contrast, the Federal Communications Commission (FCC) would aggressively suppress agency and personnel activities. The FCC's Alex Roytblat (Designated Federal Officer of the WRC-12 Advisory Committee) wrote in a release that "In the event of a shutdown, until FCC appropriations are resumed, no FCC-sponsored federal advisory committee meetings or activities can take place. This includes face-to-face meetings, teleconferences, electronic meetings, etc. This prohibition covers all meetings, whether of the parent advisory committee or any subcommittees or working groups."

Roytblat added that "Staff and committee members (including subcommittee members) may not volunteer to work. Thus, during any shut down, staff and committee members are not permitted to operate with respect to advisory committee work, including reviewing materials, writing reports or minutes, discussing advisory committee business, etc. This prohibition includes phone and email contacts." (Parentheses in original.)

Moreover, "the Federal Register will not be publishing notices during a government shutdown, and the FCC will not be maintaining its website."

House Passes Resolution Disapproving the FCC's BIAS Rules

4/8. The House passed HJRes 37, a resolution disapproving the Federal Communications Commission's (FCC) rules regulating broadband internet access service (BIAS) providers, by a vote of 240-179.

Republicans voted 234-2. Democrats voted 6-177. See, Roll Call No. 252. The Senate has not yet passed this resolution.

Rep. Eric Cantor (R-VA), the House Majority Leader, stated in a release that "the House took an important step to bring down the FCC’s harmful and partisan plan to regulate the Internet. These regulations give the government unwarranted authority to control broadband networks which ultimately will hinder a thriving industry, harm competition and stifle innovation."

He continued that "Under Republican leadership, the House is focusing on ending anti-growth government regulations, and I thank the House Energy and Commerce Committee and Chairmen Upton and Walden for leading the charge against the FCC's attempt to regulate our nation's broadband industry. Broadband networks are more critical than ever to the success and expansion of the private sector, and we will continue to pursue policies that encourage businessmen and women to innovate and expand to ensure their long-term success. The passage of this resolution is part of House Republicans' pro-growth agenda to give business people in this country the chance to grow, innovate and compete so that people can get back to work."

Rep. Henry Waxman (D-CA), the ranking Democrat on the HCC, stated in a release that "If enacted, this bill would give big phone and cable companies control over what websites Americans can visit, what applications they can run, and what devices they can use. Consumer advocates, civil rights organizations, high-tech companies, religious groups, and labor unions all say H.J. Res. 37 should be rejected."

Rep. Fred Upton (R-MI), Chairman of the House Commerce Committee (HCC), stated in a release that "Today the House gave voice to the American people by voting to ensure the Internet remains open and free from unwarranted and unwelcome government regulation. The FCC's rules threaten to chill the very investment and innovation we need to ensure the Internet keeps pace with the growing demands being placed on it. The House vote preserves the Internet and protects jobs and the economy by preventing an unelected and unaccountable bureaucracy from overstepping its authority. I strongly urge the Senate to follow the House's action and end the marketplace uncertainty created by the FCC’s power-grab."

Sen. John Rockefeller (D-WV), the Chairman of the SCC, stated in a release that "Americans want the Internet to remain free and open and the FCC's net neutrality rules provided just that. I'm disappointed that House leadership wants to undo the integrity of the FCC’s process and unravel their good work."

Sen. Kay Hutchison (R-TX), the ranking Republican on the Senate Commerce Committee (SCC), introduced the companion resolution in the Senate, SJRes 6, on February 16, 2011.

She stated in a release that "It is clear that members of the House are just as concerned as I am about the FCC overstepping its legal authority and moving to regulate the Internet. As the cosponsor of an identical measure ... I am anxious to move this forward in the Senate".

Her release also states that the Congressional Review Act (CRA) "allows for the expedited consideration of a privileged resolution of disapproval to stop a federal agency from implementing a rule or regulation with the full force of law. It cannot be filibustered if acted upon within a specific 60-day window and needs only a simple majority in the Senate to pass."

DOJ Imposes Conditions on Google's Acquisition of ITA

4/8. The Department of Justice's (DOJ) Antitrust Division filed a complaint [16 pages in PDF] in the U.S. District Court (DC) against Google, Inc. and ITA Software, Inc. alleging violation of Section 7 of the Clayton Act, which is codified at 15 U.S.C. § 18.

The complaint alleges that Google's proposed acquisition of ITA, "provider of the leading independent airfare pricing and shopping system", named QPX, would "substantially lessen competition in interstate trade and commerce", and therefore, must be blocked.

However, the DOJ, Google and ITA simultaneously entered into a stipulation [5 pages in PDF] that provides for entry of a proposed final judgment [33 pages in PDF] that allows the acquisition, but requires Google to continue to license ITA's QPX.

The DOJ stated in a release that under this proposed settlement, Google will be required "to continue to license ITA's QPX software to airfare websites on commercially reasonable terms. QPX conducts searches for air travel fares, schedules and availability."

The DOJ continued that "Google will also be required to further develop and offer ITA’s next generation InstaSearch product to travel websites, which will provide near instantaneous results to certain types of flexible airfare search queries. InstaSearch is currently not commercially available, but is in development by ITA."

The DOJ also stated that "Google will be required to implement firewall restrictions within the company that prevent unauthorized use of competitively sensitive information and data gathered from ITA's customers. The proposed settlement delineates when and for what purpose that data may be used by Google."

"Google is also prohibited from entering into agreements with airlines that would inappropriately restrict the airlines' right to share seat and booking class information with Google’s competitors. Finally, the proposed settlement provides for a formal reporting mechanism for complainants if Google acts in an unfair manner."

Section 7 of the Clayton Act provides in part that "No person engaged in commerce or in any activity affecting commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no person subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another person engaged also in commerce or in any activity affecting commerce, where in any line of commerce or in any activity affecting commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly."

Geoffrey Manne (Lewis and Clark law school and Tech Freedom) stated in a release that "The settlement is a big victory for Google, since Google probably would have done most of this anyway: ITA's licensing arrangements have been quite lucrative, and the whole point of the acquisition was to further develop ITA's software."

Manne continued, "Also notable is that DOJ essentially rejected arguments for so-called search neutrality regulation, as none of the settlements substantive remedies address such concerns. Although competitors hoped to constrain Google's ability to promote its own services, consumers would be harmed by such a limitation, and this settlement suggests that the DOJ agrees."

He concluded, "Unfortunately, this settlement doesn't put the ``search neutrality´´ issue to rest. So we'll have to see what more the DOJ and the FTC might have in store."

This case is U.S.A. v. Google, Inc. and ITA Software, Inc., U.S. District Court for the District of Columbia, D.C. No. 1:11-cv-00688, Judge Ellen Huvelle presiding.

Rep. Upton Urges Approval of HJRes 37

4/7. Rep. Fred Upton (R-MI), the Chairman of the House Commerce Committee (HCC), wrote a piece published in The Hill and the HCC web site titled "FCC's overreaching power grab harms innovation, investments and jobs". He urges House approval of HJRes 37, which is now scheduled for a vote on Friday, April 8.

Rep. Fred UptonRep. Upton (at right) wrote that "The Internet’s innovation and success is unmatched and since its inception, it has thrived without government interference. The Federal Communications Commission nonetheless ruled in December to impose Internet regulations, even though Congress has never authorized it to do so. There is also no crisis warranting such intervention."

He also wrote that "This week, the House will vote on a Resolution of Disapproval that reverses the FCC’s Internet regulations. The vote is an opportunity to protect innovation and jobs while restoring Congress’ role as representatives of the people. Reversing the FCC’s regulations will end uncertainty created in the marketplace by the FCC’s overreaching power-grab."

The House began its consideration of HJRes 37, a resolution disapproving the FCC's rules regulating broadband internet access service (BIAS) providers. On Monday, April 4, the House Rules Committee (HRC) adopted a rule. On Tuesday, April 5, the full House debated and approved that rule. See, story titled "House Begins Consideration of HJRes 37" in TLJ Daily E-Mail Alert No. 2,217, April 5, 2011. Rep. Eric Cantor's (R-VA) schedule for Friday, April 8, lists consideration of HJRes 37.

Consequences of a Lapse in Government Funding

4/7. The U.S. Patent and Trademark Office (USPTO) announced in a release that "In the event of a government shutdown on April 9, 2011", the USPTO "will remain open and continue to operate as usual for a period of six business days -- through Monday, April 18, 2011 -- because the USPTO has enough available reserves, not linked to the current fiscal year, to remain in operation until then."

The USPTO continued that "Should a shutdown occur and continue longer than the six-day period, we anticipate that limited staff will be able to continue to work to accept new electronic applications and maintain IT infrastructure, among other functions."

Jacob Lew, Director of the Executive Office of the President's (EOP) Office of Management and Budget (OMB) released a memorandum on April 7 titled "Planning for Agency Operations During a Lapse in Government Funding" in which he addressed a cessation of activities, excepted functions, remote access, and telework.

He wrote that "The current Continuing Resolution (CR) expires at the end of tomorrow, Friday April 8, 2011", but "Negotiations on the budget are continuing, and it remains possible that Congress will reach an agreement by midnight tomorrow on continued funding for the current fiscal year."

He advised that in the event of a lapse in funding, "non-excepted employees will be prohibited, after midnight on Friday night, from working remotely, such as from home -- including by accessing agency information technology (e.g., Blackberries, cell phones, computers, laptops), except to the extent that the agency's contingency plan provides for the agency to use such technology to provide non-excepted employees with updates regarding their furlough and return-to-work status." (Parentheses in original.)

And then, "during the employee's next scheduled work day (i.e., 2 Saturday or Sunday for weekend employees; Monday for all other employees), an agency shall have its non-excepted employees perform -for up to a half-day (e.g., up to four hours) -such "orderly shutdown" activities as are needed for the agency's implementation of its contingency plan (e.g., turning in equipment if required). Non-excepted employees who are scheduled to telework on their next scheduled work day may perfonn these shutdown activities from their telework location, if an existing telework agreement is in place." (Parentheses in original.)

On April 7, Rep. John Boehner (R-OH), the Speaker of the House, and Sen. Harry Reid (D-NV), the Senate Majority Leader, stated in a joint release that "We have narrowed the issues, however, we have not yet reached an agreement. We will continue to work through the night to attempt to resolve our remaining differences." See also, April 7 remarks by Sen. Reid.

Rep. Eric Cantor (R-VA), the House Majority Leader, stated in a release on April 7 that "I've just been informed that President Obama has threatened to veto the only bill before us to keep the government functioning ahead of tomorrow's deadline, cut spending and ensure that our troops are paid." On April 7, the OMB issued a veto threat.

See also, transcript of April 7 news conference of Rep. Nancy Pelosi (D-CA), the House Democratic Leader, and Rep. Chris Van Hollen (D-MD), the ranking Democrat on the House Budget Committee (HBC).

FCC Adopts Data Roaming Rules

4/7. The Federal Communications Commission (FCC) adopted and released a Second Report and Order [79 pages in PDF] that imposes common carrier like regulations for data roaming. The Commission divided 3-2, with Democrats Julius Genachowski, Michael Copps and Mignon Clyburn supporting the item, and Republicans Robert McDowell and Meredith Baker dissenting.

The FCC has long imposed voice roaming rules. This order provides that any "Commercial Mobile Data Service" is required to offer roaming arrangements on "commercially reasonable terms and conditions". It puts the FCC in the position of regulating rates.

The order would also be vulnerable if subjected to judicial review.

See, full story.

Public Knowledge Urges Court of Appeals Not to Require Filtering As Prerequisite for DMCA Safe Harbor

4/7. The Public Knowledge (PK) filed an amicus curiae brief [PDF] with the U.S. Court of Appeals (2ndCir) in Viacom v. YouTube.

Viacom International and others filed a complaint [PDF] in the U.S. District Court (SDNY) against YouTube on March 12, 2007, alleging copyright infringement in connection with the operation of a commercial web site that permits users to publish copies of copyrighted works, without license. See, story titled "Viacom Files Complaint Against Google and YouTube Alleging Violations of Copyright Law" in TLJ Daily E-Mail Alert No. 1,551, March 13, 2007.

On June 23, 2010, the District Court issued an opinion and order [30 pages in PDF] granting summary judgment to the defendants. The District Court held that the activities of YouTube at issue in this action fall within the safe harbor protection of the Digital Millennium Copyright Act (DMCA), codified at 17 U.S.C.§ 512(c). See, story titled "District Court Grants Summary Judgment to YouTube in Copyright Infringement Case" TLJ Daily E-Mail Alert No. 2,100, June 23, 2010.

The PK wrote in its just filed brief that "Appellants make several arguments regarding filtering, each amounting to the theory that the existence of filtering technology and Youtube's failure to use it in certain specific ways excludes YouTube from the safe harbor provisions of Section 512."

The PK argued that "whatever the accuracy of automated filtering technology in identifying content, the technology cannot make reliable legal determinations about when and whether specific uses of that content are infringing".

It also argued that "disqualifying YouTube from the safe harbor because it declined to use filters in the ways preferred by Appellants ... would effectively make adoption of certain technologies a new prerequisite for the safe harbor, in direct contradiction to both the plain meaning and the purpose of the DMCA."

The PK urged the Court of Appeals "not to require the adoption of specific technological identification measures as a
prerequisite for DMCA safe harbor."

See also, story titled "PFF Paper Predicts Reversal of Viacom v. YouTube DMCA Judgment" in TLJ Daily E-Mail Alert No. 2,119, August 5, 2010.

This case is Viacom International, Inc., et al. v. YouTube, Inc., et al., U.S. Court of Appeals for the 2nd Circuit, App. Ct. Nos. 10-3270 and 10-3342, an appeal from the U.S. District Court for the Southern District of New York, D.C. Nos. 07 Civ. 2103 (LLS) and 07 Civ. 3582 (LLS), Judge Louis Stanton presiding.

Senators Introduce Bill to Provide Additional Compensation to STEM Teachers

4/7. Sen. Al Franken (D-MN), Sen. Joe Lieberman (D-CT), and Sen. Jeanne Shaheen (D-NH) introduced S 758 [LOC | WW], the "STEM Master Teacher Corps Act of 2011".

It would amend the Elementary and Secondary Education Act of 1965 to create a $35 Million per year federal subsidy program titled "STEM Master Teacher Corps".

The concept embodied in this bill is, in part, to give money to the states to enable them to hire and retain science, technology, engineering and math (STEM) teachers "by offering them additional compensation, instructional resources, and instructional leadership roles".

The annual teacher payment would be $5,000, and $15,000 for "a high-need public school".

Also, the bill's dedication to STEM education is diluted by its inclusion of special education and English language teachers, and by its lack of meaningful teacher eligibility criteria, such as a four year university degree with a major in a STEM field.

This bill was referred to the Senate Health, Education, Labor, and Pensions Committee.

Also on April 7, Sen. Lieberman introduced S 763 [LOC | WW], the "Securing Teacher Effectiveness, Leaders, Learning, And Results Act of 2011" or "STELLAR Act". It would amend the Elementary and Secondary Education Act of 1965 to require that states receiving certain federal education subsidies submit to the Department of Education (DOE) annual reports regarding that state's system for evaluating teachers' and principals' performances. It would also require the DOE to write a report.

People and Appointments

4/7. The Senate Judiciary Committee (SJC) held an executive business meeting at which it approved the nomination of Goodwin Liu to be a Judge of the U.S. Court of Appeals for the 9th Circuit by a partisan vote of 10-8. Sen. Charles Grassley (R-IA), the ranking Republican on the SJC, stated that Liu has a "very activist agenda", believes that "courts should play a role in creating and expanding constitutional welfare rights", and "has been very openly critical of the current Supreme Court". He said that Liu would move the 9th Circuit "even further to the left". Sen. Dianne Feinstein (D-CA) praised Liu, and listed Democrats and Republicans, liberals and conservatives, who have endorsed his nomination.

4/7. The Senate Judiciary Committee (SJC) held an executive business meeting at which it approved by voice votes the nominations of Esther Salas (USDC/DNJ), Paul Oetken (USDC/SDNY), and Paul Engelmayer (USDC/SDNY).

4/7. The Senate Foreign Relations Committee (SFRC) held a hearing on the nomination of Kurt Tong to be U.S. Senior Official for the Asia-Pacific Economic Cooperation (APEC) Forum. See, Tong's prepared testimony.

4/7. President Obama announced his intent to nominate David Johanson to be a member of the U.S.International Trade Commission (USITC). See, White House news office release. He is a Republican staffer for the Senate Finance Committee (SFC). He has also worked for the law firm of Stewart & Stewart.

4/7. President Obama announced his intent to nominate William Lineberger to be a member of the National Science Foundation's (NSF) National Science Board. See, White House news office release.

More News

4/7. The Senate Judiciary Committee (SJC) approved S 410 [LOC | WW], the "Sunshine in the Courtroom Act", by a vote of 12-6. See, statement of Sen. Charles Grassley (R-IA), sponsor of the bill. See also, story titled "Senate Judiciary Committee Continues to Consider Cameras and Mics in Courtrooms" in TLJ Daily E-Mail Alert No. 2,207, March 23, 2011.

4/7. The Senate Judiciary Committee (SJC) amended and approved S 627 [LOC | WW], the "Faster FOIA Act". See, managers' amendment [PDF]. See, Sen. Patrick Leahy's (D-VT) release.

Representatives Introduce Global Online Freedom Act

4/6. Rep. Chris Smith (R-NJ), Rep. Frank Wolf (R-VA), and Rep. Thaddeus McCotter (R-MI) introduced HR 1389 [LOC | WW | PDF], the "Global Online Freedom Act of 2011", on April 6, 2011.

This is a lengthy bill (35 pages in PDF) that would establish a new and complex disclosure regime for a broad range of technology companies with certain connections to the US. It would also impose prohibitions on certain activities that facilitate the internet censorship activities of other nations.

This bill recites in its findings that "A number of repressive foreign governments block, restrict, otherwise control, and monitor the Internet, effectively transforming the Internet into a tool of censorship and surveillance", that US businesses "have enabled the Internet censorship and surveillance of repressive governments by selling these governments or their agents technology or training", and that the US government "has a responsibility to protect freedom of expression on the Internet, to prevent United States businesses from directly and materially cooperating in human rights abuses perpetrated by repressive foreign governments".

This bill states that it is the policy of the US to promote "the right of every individual to freedom of opinion and expression, including the right to hold opinions, and to seek, receive, and impart information and ideas through any media and regardless of frontiers", and to deter US businesses "from cooperating with officials of Internet-restricting countries in effecting the political censorship of online content".

It would have the US pursue these policy goals by establishing a new office at the Department of State (DOS) named "Office of Global Internet Freedom" or OGIF. The bill would require the DOS to write annual report that designate internet restricting countries (IRCs). It would then prohibit certain activities by US businesses. First, US businesses that provide internet search, internet communications, or internet content hosting services would be prohibited from locating certain personally identifiable information (PII) in any IRC. Second, US businesses that maintain an internet content hosting service would be prohibited from "jamming" any US government supported web site or US government supported content in any IRC.

It would also impose significant reporting and disclosure requirements on US tech companies. First, it would require any US business that creates, provides, or hosts an internet search engine to disclose to the OGIF any filtering that it has done at the request of any IRC. Second, it would require any US business that maintains a content hosting service to disclose to the OGIF all the content that it has removed, all the content to which it has blocked access, and all the transmission that it has blocked, at the request of any IRC.

A key component of this statutory regime would be the threshold process for designating internet restricting countries (IRCs).

The bill would require the DOS to annually report "an assessment of the freedom of electronic information in each foreign country". It would also require the DOS to annually "designate Internet-restricting countries" (IRCs).

A country would be placed on the list if "the government of the country is directly or indirectly responsible for a systematic pattern of substantial restrictions on Internet freedom during any part of the preceding 1-year period". However, the bill also provides for a waiver system.

A key prohibition of the bill pertains to the protection of personally identifiable information (PII). The bill provides that "A United States business that creates, provides, or offers to the public for commercial purposes an Internet search engine or that offers to the public for commercial purposes Internet communications services or Internet content hosting services may not locate, within an Internet-restricting country, any electronic communication containing personally identifiable information used to establish or maintain an account for Internet communications services."

The definitions are key for this and other provisions in the bill.

First, this provision would affect any "United States business", which the bill defines to include any business that "has its principal place of business in the United States", "is organized under the laws" of any state, or is an "issuer of a security registered pursuant to section 12 of the Securities Exchange Act of 1934", which is codified at 15 U.S.C. S 78l.

It should be noted that Baidu is listed on the NASDAQ.

The bill's anti "internet jamming" section provides that "A United States business that maintains an Internet content hosting service may not conduct Internet jamming of a United States-supported Web site or United States-supported content in an Internet-restricting country."

The bill defines "internet jamming" as "jamming, censoring, blocking, monitoring, or restricting access to the Internet, or to content made available via the Internet, by using technologies such as firewalls, filters, and `black boxes´".

The bill defines US supported content as "content that is created or developed, in whole or in part, by a United States-supported information entity". US supported information entity, in turn, means US government agencies, entities that receive government grants for "information dissemination activities", and entities supported by the Broadcasting Board of Governors.

Senate Judiciary Committee Holds Hearing on ECPA

4/6. The Senate Judiciary Committee (SJC) held a hearing titled "The Electronic Communications Privacy Act: Government Perspectives on Protecting Privacy in the Digital Age". SJC members expressed opinions, and heard testimony from government witnesses. The SJC previously held another hearing for private sector witnesses.

The Electronic Communications Privacy Act (ECPA), which was enacted in 1986, includes the Stored Communications Act (SCA). The Congress has amended it since, but the ECPA has not kept pace with technological changes. At issue is what standards apply when the government wants to access different types of information or data.

The federal government, and especially representatives of the Department of Justice (DOJ), oppose changes in law that would limit the ease and speed with which the government can access other people's communications and data.

One year ago a coalition named Digital Due Process (DDP) announced a set of four principles which the DPP members argue should be incorporated into the federal statutes that regulate government searches and seizures of stored communications and data.

These DPP principles state, for example, that the "government should obtain a search warrant based on probable cause before it can compel a service provider to disclose a user's private communications or documents stored online" and it "should obtain a search warrant based on probable cause before it can track, prospectively or retrospectively, the location of a cell phone or other mobile communications device".

See also, story titled "Digital Due Process Coalition Proposes Changes to Federal Surveillance Law" in TLJ Daily E-Mail Alert No. 2,068, March 31, 2010.

Sen. Patrick Leahy (D-VT), the Chairman of the SJC, stated in his opening statement that "there is general agreement that ECPA has become outdated by vast technological advances and changing law enforcement missions since the law's initial enactment".

See, full story.

Scott Turow Comments on Orphan Works and Google Books Case

4/6. Scott Turow, head of the Authors Guild and an attorney at SNR Denton, wrote a piece published in the AG web site and in a New York Times (NYT) web page regarding the U.S. District Court's rejection of the proposed class action settlement in the Google books case.

He wrote, in response to a March 31, 2011 NYT editorial, that "The dream of a virtual library of out-of-print books is dead, for now. Perhaps a legislative route may be found instead; we hope that the settlement shows how it can be done."

There were serious, although unsuccessful, efforts to address orphan works by legislation in the 109th and 110th Congresses. (See, Legislative History, below.) However, no bills have yet been introduced in the 112th Congress that address orphan works.

Turow wrote that the amended settlement agreement (ASA) rejected by the Court "was crafted to bridge the broad divides among the stakeholders in the negotiations -- authors, publishers, research libraries and Google. It would have provided financial benefits to authors of out-of-print books and made available a vast virtual library of those books."

And, with respect to orphan works, "it would have collected and escrowed funds for authors (or their successors or estates). And it would have empowered any copyright holder to compel Google to remove or never scan his or her works without having to go to court." (Parentheses in original.)

See also, the AG's web page with hyperlinks to pleadings and other documents.

For more on the District Court's rejection of the ASA, see story titled "District Court Rejects Google Books Class Action Settlement" in TLJ Daily E-Mail Alert No. 2,206, March 22, 2011, and story titled "Orphan Works and the Court's Rejection of the Google Book Deal" in TLJ Daily E-Mail Alert No. 2,207, March 23, 2011.

Legislative History. For the 109th Congress, see HR 5439, the "Orphan Works Act of 2006". Another version of it was made a part of HR 6052, the "Copyright Modernization Act of 2006". However, neither bill became law.

See also, stories titled "House CIIP Subcommittee Holds Hearing on Orphan Works" in TLJ Daily E-Mail Alert No. 1,326, March 9, 2006, "Rep. Smith Introduces Orphan Works Act of 2006" in TLJ Daily E-Mail Alert No. 1,377, May 24, 2006, and "House CIIP Subcommittee Approves Orphan Works Act of 2006" in TLJ Daily E-Mail Alert No. 1,378, May 25, 2006.

For the 110th Congress, see HR 5889 [LOC | WW], the "Orphan Works Act of 2008", and S 2913 [LOC | WW], the "Shawn Bentley Orphan Works Act Of 2008". Neither bill became law.

See also, story titled "House IP Subcommittee Approves Orphan Works Bill" in TLJ Daily E-Mail Alert No. 1,762, May 7, 2008, "Senate Judiciary Committee Amends and Approves Orphan Works Bill" in TLJ Daily E-Mail Alert No. 1,767, May 15, 2008, and "Orphan Works Bills Discussed" in TLJ Daily E-Mail Alert No. 1,798, July 23, 2008.

112 Economists Back Incentive Auctions

4/6. 112 economists joined in a letter to President Obama advocating the use of incentive auctions for spectrum. Some also attended an event at the White House on April 6, 2011.

An incentive auction would provide for the sharing of spectrum auction proceeds with the licensees who voluntarily relinquish that spectrum. It would provide a financial incentive for television broadcasters and other licensees to relinquish some of their spectrum.

Proponents, such as Representatives and Senators who have introduced legislation to authorize such auctions, add that incentive auctions must be truly voluntary.

Although, broadcasters remain cautious. The National Association of Broadcasters' Dennis Wharton stated in a release after the event that the "NAB does not oppose incentive auctions that are truly voluntary. We would remind our economist friends that broadcasters returned more than a quarter of the spectrum held by TV broadcasters less than two years ago, and that those airwaves have yet to be fully deployed."

He added that the "NAB welcomes an ongoing dialogue with policymakers on how to resolve wireless carrier capacity challenges without threatening the fabric of an essential American institution: free and local television."

The economists wrote in their letter that "Incentive auctions can facilitate the repurposing of spectrum from inefficient uses to more valuable uses while minimizing the transaction costs incurred."

They continued that "Historically, the FCC allocated spectrum for specific uses such as television, radio, or satellite services. Spectrum rules are meant to resolve conflicting uses, much as a city might engage in zoning to protect homeowners from noisy or dirty industrial developments. Because of changing technologies, demand, and relative costs, old spectrum allocations based on out-of-date assumptions have become inefficient, wasting valuable spectrum resources. Existing laws do not give the FCC the tools it needs to allow spectrum to be reallocated efficiently and quickly from old uses to newer, currently more valuable uses."

"Transitioning spectrum to more valuable uses is relatively easy and almost spontaneous when simple, single transactions can provide most of the joint benefits. But repurposing radio spectrum can entail complex transactions involving several parties."

For example, the economists wrote, "a buyer may be reluctant to acquire licenses piecemeal because of the risk that it might fail to aggregate a sufficient quantity of appropriate licenses. However, a centralized auction that incorporates package bidding helps assure the buyer that it would not be saddled with an inefficiently small aggregation of licenses, and also allows a buyer to compare alternative acquisition strategies more systematically."

"A centralized marketplace can also reduce the transaction costs and hold out problems that sometimes arise when the ability to set up a service requires negotiating rights from many different parties".

For example, "current broadcast licenses have many overlapping geographic areas' it might be difficult to come to satisfactory agreements in a timely manner with a sufficient number of incumbent licensees in any particular geographic area, or enough geographic areas across the county, to establish a viable wireless service."

FCC Chairman Julius Genachowski gave a speech at the same White House spectrum event in which he advocated the use of incentive auctions. He stated that "We need to tackle the looming spectrum crunch by dramatically increasing the new spectrum available for mobile broadband, and the efficiency of its use. But the days for easy reallocations are over.

He advocated "fostering greater efficiency in technology and software, spurring dynamic spectrum sharing and secondary markets, and releasing unlicensed spectrum for the next generation of Wi-Fi, machine-to-machine communication and other innovations."

But, he also said that "The single most important step we can take is implementing voluntary incentive auctions. Incentive auctions are based on the same premise as the original spectrum auctions -- unleashing market forces to reallocate this scarce resource. But they are two-sided auctions, providing for licensees who voluntarily supply spectrum to receive a share of the proceeds. It's an incentive-based approach, grounded in strong free-market principles.".

The FCC released a staff report [376 pages in PDF] titled "A National Broadband Plan for Our Future" on March 15, 2010, which articulated the goal of making "500 megahertz of spectrum newly available for broadband within 10 years, of which 300 megahertz should be made available for mobile use within five years". See, story titled "FCC Releases National Broadband Plan" in TLJ Daily E-Mail Alert No. 2,058, March 15, 2010.

President Obama issued a Memorandum on June 28, 2010, in which he asked the FCC and National Telecommunications and Information Administration (NTIA) to identify and make available 500 megahertz of spectrum.

On April 4, 2011, the NTIA released a report [PDF] titled "First Interim Progress Report on the Ten-Year Plan and Timetable" that address the status of attaining this 500 megahertz goal.

The CTIA stated in a release on April 6 that "there are significant economic benefits that will flow from adoption of incentive auction legislation and reallocation of spectrum from lower value broadcast use to higher value mobile broadband use. Despite today’s challenging economic conditions, a broadcast incentive auction for underused or unused spectrum could generate more than $30 billion for the U.S. Treasury."

The CTIA added that "We appreciate the leadership of the White House, the FCC Chairman and other policymakers who are working hard to secure more spectrum for our industry. Let’s move quickly to get this spectrum to auction so the wireless industry can continue to lead the world in innovation."

Legislative Proposals that Pertain to Incentive Auctions

4/6. The following is a list of some legislative proposals that pertain to incentive auctions.

111th Congress

HR 5947 [LOC | WW], the "Voluntary Incentive Auctions Act of 2010", introduced by former Rep. Rick Boucher (D-VA) and Rep. Cliff Stearns (R-FL) on July 29, 2010. See, story titled "Rep. Boucher and Rep. Stearns Introduce Voluntary Incentive Auctions Act" in TLJ Daily E-Mail Alert No. 2,114, July 29, 2010.

S 3756 [LOC | WW], the "Public Safety Spectrum and Wireless Innovation Act", introduced by Sen. John Rockefeller (D-WV) on August 5, 2010. It would allocate the 10 megahertz of spectrum, which the FCC previously failed to auction as the D block, to public safety to support a nationwide interoperable wireless broadband network. It would also provide the FCC authority to hold incentive auctions based on the voluntary return of spectrum. See, story titled "Sen. Rockefeller to Introduce Public Safety Spectrum and Wireless Innovation Act" in TLJ Daily E-Mail Alert No. 2,109, July 21, 2010, and "Senate Commerce Committee Holds Hearing on Public Safety Network" in TLJ Daily E-Mail Alert No. 2,134, September 28, 2010. See, Section 204.

S 3610 [LOC | WW] the "Spectrum Measurement and Policy Reform Act", introduced by Sen. Olympia Snowe (R-ME) and Sen. John Kerry (D-MA) on July 19, 2010. This is a broad bill pertaining to spectrum management and use, that also addresses incentive auctions. See, story titled "Sen. Snowe Introduces Bill to Reform Spectrum Management" in TLJ Daily E-Mail Alert No. 2,109, July 21, 2010

112th Congress

HR 607 [LOC | WW], the "Broadband for First Responders Act of 2011", introduced by Rep. Peter King (R-NY) on February 10, 2011. It pertains to the D Block.

HR 911 [LOC | WW], the "Spectrum Inventory and Auction Act of 2011", introduced by Rep. John Barrow (D-GA) on March 3, 2011. This is a bill to provide for incentive auctions and a spectrum inventory.

S 28 [LOC | WW], the "Public Safety Spectrum and Wireless Innovation Act", introduced by Sen. Rockefeller and others on January 25, 2011. This the 112th Congress version of S 3756 from the 111th Congress.

S 415 [LOC | WW], the "Spectrum Optimization Act", introduced by Sen. Mark Warner (D-GA) on February 17, 2011. This is a short bill that only provides for incentive auctions.

S 455 [LOC | WW], the "Reforming Airwaves by Developing Incentives and Opportunistic Sharing Act" or the "RADIOS Act'", introduced by Sen. Snowe on March 2, 2011. This is related to S 3610 (111th Congress). Section 9 contains the language authorizing incentive auctions.

S 522 [LOC | WW], the "Spectrum Relocation Improvement Act of 2011", introduced by Sen. Warner on March 9, 2011. This bill pertains to the relocation of federal spectrum.

EPIC Launches Campaign Regarding FTC Settlement with Google on Buzz

4/6. The Federal Trade Commission (FTC) published a notice in the Federal Register that announces, describes, and sets the deadline for the public to submit comment on, its consent agreement with Google regarding Google Buzz.

On March 30, 2011, the FTC issued an administrative complaint [8 pages in PDF] against Google alleging that it violated FTC Act, and the US-EU Safe Harbor Framework, in connection with the initial launch of its Buzz social networking service.

The FTC and Google simultaneously entered into an Agreement Containing Consent Order [9 pages in PDF] which mandates a comprehensive privacy program for Google, and other things. See, story titled "FTC Issues and Settles Complaint Against Google" in TLJ Daily E-Mail Alert No. 2,213, March 31, 2011.

The consent agreement is also subject to final approval by the FTC following a thirty day public comment period. The FTC also released a document [PDF] titled "Analysis of Proposed Consent Order to Aid Public Comment".

The FTC's final approval following public comment is perfunctory in most of its proceedings. However, on April 5, the Electronic Privacy Information Center (EPIC), launched a campaign to solicit and generate public comment on the Google Buzz agreement, and privacy issues generally.

The EPIC's complaint filed with the FTC against Google on February 16, 2010, and its amended complaint on March 2, 2010, preceded the FTC's investigation and action.

The EPIC created a web page titled "Fix Google Privacy!" in which users can submit electronic comments that will be forwarded to the FTC. However, the EPIC also invites users to comment on a wide range of privacy issues, including matters not at issue in the Buzz proceeding.

Moreover, the EPIC allows users to select pre-written privacy enhancing recommendations for the FTC, such as "the FTC should require Google to ... Stop behavioral profiling of Internet users".

The EPIC web page also allows users to select the following:

The deadline to submit comments to the FTC is May 2, 2011.

See, Federal Register, April 5, 2011, Vol. 76, No. 65, at Pages 18762-18765.

People and Appointments

4/6. President Obama nominated Sharon Gleason to be a Judge of the U.S. District Court for the District of Alaska. See, White House news office release and release.

4/6. President Obama nominated Susan Hickey to be a Judge of the U.S. District Court for the Western District of Arkansas. See, White House news office release and release.

More News

4/6. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register that announces, describes, and set the comment deadline for, its notice of proposed rulemaking (NPRM) regarding revising the patent term adjustment and extension provisions of the rules of practice in patent cases. The deadline to submit comments is May 6, 2011. The USPTO will hold no hearing. See, Federal Register, April 6, 2011, Vol. 76, No. 66, at Pages 18990-18995.

4/6. The Department of Homeland Security (DHS) published a notice in the Federal Register that lists and summarizes its recently released Privacy Impact Assessments (PIS). See, Federal Register, April 6, 2011, Vol. 76, No. 66, at Pages 19110-19116.

Go to News from April 1-5, 2011.