Top Stories from 2003
DOD Releases Report on DARPA's Total
Information Awareness Program
12/31. The Department of Defense's
(DOD) Office of Inspector General (OIG) released a
report [42
pages in PDF], titled "Information Technology Management: Terrorism Information
Awareness Program". The report concludes that DOD's Defense
Advanced Research Projects Agency's (DARPA) Terrorism Information Awareness (TIA)
Program, which was previously named "Total Information Awareness", "could
prove valuable in combating terrorism", but "DARPA
could have better addressed the sensitivity of the technology to minimize the
possibility of any Governmental abuse of power and could have assisted in the
successful transition of the technology into the operational environment."
DC Circuit Reverses in RIAA v. Verizon
12/19. The U.S. Court of Appeals
(DCCir) issued its
opinion
[16 pages in PDF] in RIAA v. Verizon, reversing the District Court, and
holding that a Section 512(h) subpoena may only be issued to an ISP that is engaged
in storing on its servers material that is infringing or the subject of infringing
activity.
USTR Releases 2nd Annual Report on WTO
Compliance by PR China
12/18. The Office of the U.S. Trade
Representative (USTR) released a
report [73 pages in PDF] titled "2003 Report To Congress On China's WTO
Compliance". In intellectual property rights (IPR) protection, the report finds that
China's compliance with the Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPS) has been "largely satisfactory" to the extent that Chain has
passed laws, regulations and rules. However, the report finds that IPR enforcement in
China "remains ineffective". In telecommunications, the report finds that
"China has not yet established an independent regulator in the telecommunications
sector" and that "the problems in the telecommunications sector have increased".
Bush Signs Critical Infrastructure
Protection Directive
12/17. President Bush signed a
directive titled "Homeland Security Presidential Directive/Hspd-7". It
pertains to "Critical Infrastructure Identification, Prioritization, and
Protection". It replaces former President Clinton's
directive on this
subject, titled "Presidential Decision Directive/NSC-63", and dated May 22,
1998. The Clinton directive is also know as "PDD 63".
3rd Circuit Rules on Application of ECPA to
Stored E-Mail
12/10. The U.S. Court of Appeals
(3rdCir) issued its
opinion [15 pages
in PDF] in Fraser v. Nationwide, a case involving, among other issues,
the application of the Electronic Communications Privacy Act (ECPA) to an employer's
search of an employee's stored e-mail communications on a company server. The Appeals
Court held that there was no violation of the ECPA.
FCC Files Petition for Rehearing En Banc in
Brand X Case
12/3. The Federal Communications Commission
(FCC) filed a Petition for
Rehearing En Banc [19 pages in PDF] with the
U.S. Court of Appeals (9thCir) in
Brand X Internet Services v. FCC. On October 6, 2003 a three judge panel
of the Court of Appeals issued its
opinion
[39 pages in PDF] vacating the FCC's
Declaratory Ruling [75 pages in PDF] that cable modem service is an information
service, and that there is no separate offering as a telecommunications service.
FCC Holds Forum on VOIP
12/1. The Federal Communications Commission (FCC)
held a forum on Voice over Internet Protocol (VOIP) issues. All five Commissioners sat
through both the morning and afternoon sessions. Chairman
Michael Powell again stated that
the FCC will issue a Notice of Proposed Rulemaking (NPRM) regarding the appropriate
regulatory framework for VOIP. The Commissioners generally called for a light regulatory
touch, and focused on five: E-911 mandates, wiretapping and surveillance under the CALEA,
access by disabled people, universal service subsidies, and access charges. No Commissioners
spoke in support of price regulation of VOIP services.
7th Circuit Rules in Copyright and Database
Protection Case
11/25. The U.S.
Court of Appeals (7thCir) issued its
opinion
[13 pages in PDF]
in Assessment Technologies v. Wiredata, a copyright infringement
case. Judge Richard Posner
wrote the opinion for the three judge panel, holding that extracting the data
from an electronic database incorporated within a copyrighted program does not
constitute copyright infringement.
House and Senate Pass Nanotech
R&D Bill
11/20. The House passed
S 189, the
"21st Century Nanotechnology Research and Development Act", by a voice vote.
The Senate amended and passed the bill on November 18. The bill, which is sponsored by
Sen. Ron Wyden (D-OR),
Sen. George Allen (R-VA) and others, would
authorize the appropriation of nearly $4 Billion for nanotechnology research and
development programs at a variety of federal agencies.
Book Review: Human Achievement,
by Charles Murray
11/19. Conservative controversialist
Charles
Murray wrote a history of innovators, titled
Human Accomplishment: the Pursuit of Excellence in the Arts and Sciences, 800
B.C. to 1950. It is quantitative study. He identifies the leading 4,000 innovators over
the last 2,750 years, and assigns scores indicating the extent of their
contributions. He also collected data on such things as when they lived, where
they lived, and what were some of the surrounding circumstances in which they
lived. Murray finds that "At irregular times and in scattered settings, human
beings have achieved great things." Murray then makes some strides,
through empirical analysis, towards identifying some conditions that have been conducive to
innovation and accomplishment, and others that have not. Since some of these
conditions, such as individual freedom and the presence of elite universities,
can be either advanced or limited by governments, the book has public policy
implications.
FCC Adopts Report and Order Allocating
More Spectrum for Unlicensed Devices
11/13. The Federal Communications Commission (FCC)
announced, but did not release, a Report and Order to provide an additional 255 MHz of
spectrum for unlicensed wireless devices operating in the 5 GHz region. The FCC issued
only a short
press release [2 pages in PDF] summarizing its action. The main use of this spectrum
will likely be 802.11 (Wi-Fi) and Bluetooth devices.
Supreme Court Grants Certiorari in Intel v.
AMD
11/10. The Supreme Court granted certiorari in Intel v. AMD, a
case regarding the availability of a discovery order from a U.S. District Court,
pursuant to 28 U.S.C. § 1782, for a complainant in an antitrust matter before
the European Commission.
FTC Files Complaint Against Company
Exploiting Microsoft Messenger to Display Pop Up Ads
11/6. The Federal Trade Commission (FTC) filed a
complaint [11 pages
in PDF] in U.S. District Court (DMd)
against D Squared Solutions LLC and others alleging unfair trade
practices in violation of the Federal Trade Commission Act (FTCA) in connection
with the exploitation of the Microsoft Windows Messenger Service to send to
computers frequent and unwarranted pop up ads that offered for sale software that
stops the ads.
See also, FTC release.
FCC Releases Broadcast Flag Rule
11/4. The Federal Communications Commission
(FCC) adopted and released a
Report
and Order Further Notice of Proposed Rulemaking [72 pages in PDF] in its proceeding
titled "In the Matter of Digital Broadcast Content Protection". This item
promulgates rules that include a broadcast flag mandate. The FCC's interest in
copyright protection is promoting a transition to DTV.
Commerce Department Releases Third Quarter
GDP Data
10/30. The Department of Commerce's (DOC) Bureau
of Economic Analysis (BEA) released gross domestic product and related data
for the third quarter of 2003. The data shows that investment in computers and
peripheral equipment has been growing at an annual rate of 35% for the past two
quarters. In addition, it shows that investment in software has been growing at
an annual rate of just over 4% for the past two quarters. The economy as a whole
grew at an annual rate of 7.2% in the third quarter.
This is the largest quarterly increase in 19 years. See, BEA
data release.
DC Circuit Upholds FCC DTV Tuner Mandates Order
10/28. The U.S. Court of Appeals
(DCCir) issued its
opinion [20 pages in PDF] in Consumer Electronics Association v. FCC,
upholding the Federal Communications Commission's
(FCC) order mandating that most TV sets be built with digital TV tuners.
DOJ Sues to Stop Merger of PIN Debit
Networks
10/23. The Department of Justice (DOJ),
seven states, and the District of Columbia filed a
complaint
[28 pages in PDF] in U.S. District Court
(DC) against First Data Corporation and
Concord EFS, Inc., alleging that
First Data's planned acquisition of Concord would violate
Section 7 of the
Clayton Act.
Senate Passes Burns Wyden Spam Bill
10/22. The Senate amended and passed
S 877, the
"Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003'",
also known as the "CAN-SPAM Act of 2003", by a vote of 97-0. See,
Roll Call No. 404.
Powell Appoints Nancy Victory to
WRC-07 Post
10/17. Federal Communications
Commission (FCC) Chairman
Michael Powell appointed Nancy Victory to be Chair of the FCC's Advisory
Committee for the 2007 World Radiocommunication Conference (WRC-07). See, FCC
release [PDF]. Victory was previously the head of the
National Telecommunications and Information
Administration (NTIA). She resigned in August following a finding by the
Office of the Inspector General (OIG)
of the Department of Commerce (DOC) that she
had violated rules governing the ethical standards for federal government
employees. See, OIG
Memorandum dated June 25, 2003.
District Court Holds that Vonage's
VOIP is an Information Service
10/16. The U.S.
District Court (DMinn) issued its
Memorandum and
Order [PDF] in Vonage v. Minnesota Public Utilities Commission, holding that
Vonage is an
information service provider, and that the MPUC cannot apply state laws that
regulate telecommunications carriers to Vonage. The Court wrote that "State
regulation would effectively decimate Congress's mandate
that the Internet remain unfettered by regulation."
Supreme Court Grants Certiorari in
COPA Case
10/14. The Supreme Court granted
petitions for writ of certiorari in Ashcroft v. ACLU, No. 03-218. See,
Order
List [15 pages in PDF] at page 2. This will be the second time for the
Supreme Court to consider the Child Online Protection Act (COPA), which bans
sending to minors over the web material that is harmful to minors. On March 6, 2003
the U.S. Court of Appeals (3rdCir)
issued its
opinion [59 pages in PDF] holding the COPA unconstitutional on first
amendment grounds.
10th Circuit Stays District Court Injunction of
Implementation of Do Not Call Registry
10/7. The U.S.
Court of Appeals (10thCir) issued an
order [24 pages in
PDF] staying the September 25 order of the U.S. District Court (DColo)
that barred the Federal Trade Commission (FTC)
from implementing its national
telemarketing do not call registry. The FTC and FCC may now proceed to implement
and enforce their rules pertaining to the do not call registry.
9th Circuit Vacates FCC Declaratory Ruling
That Cable Modem Service is an Information Service Without a Separate Offering
of a Telecommunications Service
10/6. The U.S. Court of Appeals (9thCir)
issued its
opinion
[39 pages in PDF] in Brand X Internet Services v. FCC, vacating the
Federal Communications Commission's (FCC)
Declaratory Ruling (DR) that cable modem service is an information service, and that
there is no separate offering as a telecommunications service. The FCC adopted a
Declaratory Ruling and Notice of Proposed Rulemaking [75 pages in PDF] at
its March 14, 2002 meeting. The DR component of this item states that "we conclude
that cable modem service, as it is currently offered, is properly classified as
an interstate information service, not as a cable service, and that there is no
separate offering of telecommunications service." The opinion of the Court of Appeals vacates this DR. In so
doing, the Court has placed itself in the role of writing broadband policy for
the U.S., and thereby, undermined the FCC's attempts to promote broadband deployment. FCC Chairman Michael Powell
promptly announced that the FCC will appeal.
First Circuit Reverses Certification of
Defendant Class in Copyright Action
10/2. The U.S.
Court of Appeals (1stCir) issued its
opinion
in Tilley v. TJX, reversing a
District Court order certifying a defendant class in a copyright
infringement case. The Appeals Court's opinion cautiously reverses the District
Court's order on basis that the grounds relied upon by the District Court were
inadequate. The Appeals Court left open the possibility that the District Court
on remand could certify a defendant class on other grounds.
Homeland Security Appropriations Bill
Purports to Restrict Use of Funds for CAPPS II
10/1. President Bush signed
HR 2555,
the "Department of Homeland Security Appropriations Act, 2004." The bill
contains language prohibiting the use of funds for the Computer Assisted
Passenger Prescreening System (CAPPS II) program until the
General Accounting Office (GAO), which is an
arm of the Congress, issues a report to the Congress in which it finds that the
CAPPS II program meets certain specified criteria set out in the bill. However,
while this language is in the bill, and the President signed the bill, the
President wrote in a separate
signing statement that this language of the bill
is ineffective under the Supreme Court's opinion in INS v. Chadha. Bush
wrote that while the language is mandatory, he will construe it as merely
advisory.
FTC Appeals District Court Ruling That Do No
Call Registry Violates 1st Amendment
9/26. The Federal Trade Commission (FTC)
filed a Notice of Appeal [3
pages in PDF] with the U.S.
District Court (DColo) in Mainstream
Marketing v. FTC. On September 25, the District Court issued its
Memorandum Opinion
and Order [34 pages in PDF] holding that the FTC's do not call registry
violates the First Amendment free speech rights of telemarketers. The FTC also filed a Motion
for an Emergency Stay Pending Appeal [3 pages in PDF] and a
Memorandum of Points
and Authorities in Support of It's Motion for an Emergency Stay Pending Appeal
[9 pages in PDF].
Congress Passes Bill to Authorize Do Not
Call Registry
9/25. The House passed HR 3161, a bill authorizing the
Federal Trade Commission (FTC) to implement a
national do not call registry, by a vote of 412-8. See,
Roll Call No. 521. Later in the day, the Senate passed the bill by a vote of
95-0. See,
Roll Call No. 365. President Bush said he will sign the bill. The Congress
passed this bill in immediate response to the September 24
Order [19
page PDF scan] of the U.S. District Court
(DOkla) in U.S. Security v. FTC, holding that the FTC's rule creating
a do not call registry exceeds the statutory authority of the FTC.
EPIC Submits Privacy Complaint To FTC
Regarding JetBlue
9/22. The Electronic Privacy
Information Center (EPIC) submitted a
complaint to the Federal Trade Commission
(FTC) in which it alleged that JetBlue Airways
Corporation and Acxiom Corporation
violated Section 5 of the Federal Trade Commission Act (FTCA), codified at
15 U.S.C. § 45(a)(1), in connection with the disclosure of consumer personal
information to Torch Concepts Inc. The EPIC alleges that JetBlue collected personal
information from its customers through its web site, and promised customers in
its privacy policy that it would not share this information, but did in fact
provide the information to an information mining company at the request of the
Department of Defense (DOD). The EPIC alleges that this constitutes a deceptive trade
practice that violates the FTCA.
House Republicans Assert That They Are The
High Tech Party
9/17. The House Republican High-Tech Working Group (HTWG) hosted an event in
the Capitol Building to review its accomplishments, promote its agenda, and assert
that when it comes to technology, the Republicans "get it".
Bush Proposes Expanded Administrative Subpoena
Power
9/10. President Bush gave a
speech
at the FBI Academy at Quantico, Virginia, on September 10, in which he stated
that the Congress should pass legislation giving law enforcement new tools,
including administrative subpoena power, to fight terrorism. On September 9,
Rep. Tom Feeney (R-FL) introduced
HR 3037,
the "Antiterrorism Tools Enhancement Act of 2003", for this purpose.
FCC Rules that Howard Stern Has a Bona Fide
News Interview Program
9/9. The Federal Communications Commission's (FCC)
Media Bureau
issued a Declaratory
Ruling [PDF] that Infinity Broadcasting Operations' Howard Stern Show, famous for
its on air garbage, constitutes a "bona fide news interview program", and is
therefore exempt from the equal time requirements of
47 U.S.C. § 315.
While pundits and critics may condemn a finding that Howard Stern's program is
"bona fide news", the FCC has a long history of granting "bona fide news"
exemptions to the speakers of the vast wasteland of broadcast media.
Senate Appropriations Committee Marks Up CJS
Bill
9/4. The Senate Appropriations
Committee approved several the FY 2004 Commerce, Justice, State, and the
Judiciary (CJS) appropriations
bill. This bill includes appropriations for most of the technology related
agencies, including the Federal Communications
Commission (FCC), Federal Trade Commission
(FTC), U.S. Trade Representative (USTR),
Department of Justice (DOJ),
U.S. Patent and Trademark
Office (USPTO), National Telecommunications
and Information Administration (NTIA), and National
Institute of Standards and Technology (NIST). The Committee approved a
manager's amendment that includes a provision that prohibits the use of funds to
grant licenses for a commercial TV broadcast station if the granting of that
license would result in such party having an aggregate national audience reach
exceeding 35%. This has the effect, during fiscal year 2004, of reversing the
FCC's recently announced change to the national TV ownership cap. The Committee
also approved an amendment that, in effect, provides that Northpoint will not
have to obtain its spectrum at auction.
3rd Circuit Stays FCC's Media Ownership Rule
Changes
9/3. The U.S. Court of Appeals
(3rdCir) issued an
order [3
page PDF scan] in Prometheus Radio Project v. FCC, staying the
Federal Communications Commission's (FCC) new
media ownership rules, pending resolution of the proceeding. The Appeals Court
granted this preliminary relief without making any finding of likelihood of
success on the merits.
3rd Circuit Breaks New Ground on Copyright
Misuse
8/26. The U.S.
Court of Appeals (3rdCir) issued its
opinion [23
pages in PDF] in Video
Pipeline v. Buena Vista Home Entertainment, affirming the
District Court's preliminary injunction of Video Pipeline's online distribution
of short clip previews of Disney movies, and rejecting Video Pipeline's
affirmative defenses of fair use and copyright misuse. However, while the
Appeals Court ultimately held that the copyright misuse defense fails in this
case, it made new law by extending its applicability.
Summary of FCC Triennial Review Order
8/21. The Federal Communications Commission (FCC) released its
triennial review order [576 pages in PDF]. The order is consistent with the
FCC's announcements made on February 20, 2003, but adds considerable detail.
FCC Releases Order Permitting AOL Time
Warner to Provide Advanced IM Services
8/20. The Federal Communications Commission
(FCC) released a
Memorandum Opinion and Order [13 pages in PDF] granting AOL Time Warner's
petition to remove the FCC's restriction on
its provision of video streaming advanced Instant Messaging based high
speed services (AIHS). The FCC had imposed this restriction in its order
approving the merger of AOL and Time Warner in early 2001.
Music Publishers File Appeal Brief in P2P
Infringement Case
8/18. The National Music Publishers
Association (NMPA), representing Jerry Liebler and other music publishers
and songwriters, and the Recording Industry
Association of America (RIAA) and Motion
Picture Association of America (MPAA), representing MGM and other movie and
record companies, filed appeal briefs with the
U.S. Court of Appeals (9thCir) in
Liebler v. Grokster and MGM v. Grokster. The MPAA/RIAA
brief was filed under seal. The NMPA brief is also under seal. However, the NMPA has released a
public
redacted version of its brief [45 pages in PDF].
9th Circuit Applies Section 230 Immunity to
Online Dating Service
8/13. The U.S.
Court of Appeals (9thCir) issued its
opinion [12 pages in PDF] in Carafano
v. Metrosplash.com, a case regarding application of Section 230
interactive computer service immunity to an online dating service. The District
Court had held that the online dating service, which wrote the questionnaire to
be used by persons who post their profiles, did not have § 230 immunity for a
false posting, because it contributed to the content. The Appeals Court held
that the service does have § 230 immunity.
7th Circuit Holds State Cannot Substitute
Tariff Filing for Negotiations to Set Prices and Terms for Interconnection
8/12. The U.S.
Court of Appeals (7thCir) issued its split
opinion [18 pages in PDF] in Wisconsin
Bell v. Bie, a case regarding the interconnection provisions of
§§ 251 and 252 of the Communications Act. The Appeals Court that the Wisconsin's
public utilities commission cannot order the regional Bell company to filed
tariffs setting the prices and terms on which competitors can interconnect.
Sen. Lisa Murkowski Introduces Bill to Roll
Back Surveillance Provisions of PATRIOT Act
7/31. Sen. Lisa Murkowski (R-AK) introduced
S 1552
[21 pages in PDF], the "Protecting the Rights of Individuals Act", or PRI Act.
This bill contains numerous significant changes to the Foreign Intelligence Surveillance Act
(FISA) and the Criminal Code to limit the powers of government to conduct searches,
seizures, and surveillance. It contains some major rollbacks of provisions added to the FISA
(Title 50) and the Criminal Code (Title 18) by the PATRIOT Act in late 2001.
Sen. Ron Wyden (D-OR) is the cosponsor of
the bill.
Pacific Bell Internet Services Sues RIAA
Over Infringer Subpoenas
7/30. Pacific Bell Internet Services (PBIS) filed a
complaint in
U.S. District Court (NDCal) against
the Recording Industry Association of America
(RIAA) seeking declaratory and injunctive relief regarding the validity of
subpoenas issued by the U.S. District Court (DC),
pursuant to
Section 512 of the
DMCA, that directs ISPs to provide information about subscribers alleged to be
engaging in P2P copyright infringement over the ISPs' networks. The complaint
argues many of the issues raised by Verizon in a case in the District of
Columbia. (Verizon lost on these issues.) The complaint also raises issues
regarding the form of the subpoenas, the manner in which they are served, and
whether the recipient is entitled to compensation for compliance.
Sen. Wyden Introduces Bill to Require
Government to Disclose Its Use of Databases
7/29. Sen. Ron Wyden (R-OR) introduced
S 1484
[9 pages in PDF], "The Citizens' Protection In Federal Databases Act". This is a
disclosure bill. It does not actually restrict the government's collection or
use of data. Rather, it would cut off funding for certain enumerated government
entities to obtain or access commercial databases, unless these entities first
provide a detailed report to the Congress and the public explaining their use of
these databases.
Rep. Bono Introduces Sypware Bill
7/25. Rep. Mary Bono (R-CA) and
Rep. Edolphus Towns (D-NY) introduced
HR 2929
[PDF], the "Safeguard Against Privacy Invasions Act", a bill to prohibit the
distribution of certain spyware programs over the internet without notice and
consent.
House Subcommittee Holds
Hearing on Classification of Broadband Services
7/21. The House Commerce
Committee's Subcommittee on Telecommunications and the Internet held
a hearing titled "The Regulatory Status of Broadband Services: Information
Services, Common Carriage, or Something in Between?" The
Federal Communications Commission (FCC) has
several open proceeding that pertain to the issue.
House CIIP Subcommittee Holds Hearing on
Piracy Deterrence and Education Act
7/17. The House Judiciary
Committee's Subcommittee on Courts, the Internet, and Intellectual
Property (CIIP) held a hearing on
HR 2517,
the "Piracy Deterrence and Education Act of 2003." This bill would
enhance the government's resources for prosecuting intellectual property crimes,
and involve the Federal Bureau of Investigation
(FBI) and Department of Justice (DOJ) in
educating and warning the public regarding internet based copyright
infringement.
House Judiciary Committee Approves
Internet Tax Bill
7/16. The House Judiciary Committee
approved HR 49, the
"Internet Tax Nondiscrimination Act", by a voice vote.
This bill is sponsored by Rep. Chris Cox
(R-CA), and cosponsored by 132 other members of the House. It would permanently
extend the moratorium on internet access taxes and multiple and
discriminatory internet taxes that was created by the 1998 Internet Tax Freedom Act (ITFA).
It would also eliminate the grandfather provision that allows states that had
taxes in 1998 to continue those taxes. The Committee also approved an
amendment offered by Rep. Mel Watt
(D-NC) that provides that the moratorium applies to telecommunications services,
"to the extent such services are used to provide Internet access", thus
clarifying that the ban on internet access taxes extends to broadband DSL and
wireless services provided by phone companies or others.
House Commerce Committee Holds Hearing on Spam
7/9. The House Commerce Committee's
Subcommittees on Commerce, Trade and Consumer Protection and on
Telecommunications and the Internet held a hearing titled "Legislative
Efforts to Combat Spam". It focused on
HR 2214,
sponsored by Rep. Richard Burr (R-NC),
and HR 2515,
sponsored by Rep. Heather Wilson
(R-NM).
Court Rules Operation of Website Does Not Create
Personal Jurisdiction Over Out of State Defendant
7/2. The U.S.
Court of Appeals (4thCir) issued its
opinion
[PDF] in Carefirst
Maryland v. CPC, a case involving whether the operation of a
website by a local non profit group can serve as the basis for personal
jurisdiction over it by an out of state court in a trademark infringement case.
The District Court dismissed for lack of personal jurisdiction. The Appeals
Court affirmed.
Senate Commerce Committee Approves FCC
Reauthorization Bill
6/26. The Senate Commerce Committee
amended and approved S 1264,
the Federal Communications Commission Reauthorization Act of 2003. The bill
would reauthorize the
Federal Communications Commission (FCC)
through 2008. However, the bill also contains many significant substantive
provisions pertaining to media ownership rules, e-rate fraud, FCC enforcement,
lobbying by former FCC officials, and the effect of bankruptcy on spectrum
auctions.
9th Circuit Construes Section 230 Immunity in
Suit Against Listserv Operator
6/24. The U.S.
Court of Appeals (9thCir) issued its
opinion [41 pages in PDF] in Batzel
v. Smith,
a case involving the application of California's Anti-SLAPP statute to a suit
alleging defamation on an internet listserv. The District Court denied a
defendant's motion to dismiss under the Anti-SLAPP statute. The Appeals Court,
relying upon the federal interactive computer service immunity provision of
47 U.S.C. § 230(c)(1),
vacated and remanded.
Supreme Court Grants Certiorari in Nixon
v. Missouri Municipal League
6/23. The Supreme Court granted
certiorari in Nixon
v. Missouri Municipal League, and related cases, pertaining to 47 U.S.C. § 253(a)
and state statutes that prohibit political subdivisions from offering
telecommunications services. Nixon (as Attorney General of Missouri), the
Federal Communications Commission (FCC), and
Southwestern Bell, each sought review of the
opinion [11
pages in PDF] of the
U.S. Court of Appeals (8thCir) that vacated an FCC
Memorandum Opinion and Order [18 pages in PDF] denying a request that it
preempt a Missouri statute that prohibits political subdivisions of the state
from offering telecommunications services. See,
full story.
Senate Commerce Committee Passes Media Ownership Bill
6/19. The Senate Commerce
Committee amended and passed
S 1046,
the "Preservation of Localism, Program Diversity, and Competition in
Television Broadcast Service Act of 2003". The bill, as amended,
would roll back some of the changes to the the
Federal Communications Commission's (FCC) media ownership rules that the FCC
announced at its June 2, 2003 meeting. See,
full story.
Reps. Lofgren and Boucher Address FTAs and
DMCA
6/18. Rep. Zoe Lofgren (D-CA) and
Rep. Rick Boucher (D-VA) urged
passage of two bills that would amend the DMCA to provide exceptions to its
anti-circumvention provisions. They also stated that Secretary of Commerce
Don Evans has advised
them that these bills would not breach the treaty obligations of the U.S. under
the negotiated Singapore and Chile free
trade agreements (FTA). President Bush signed the Singapore FTA on May 6, 2003,
and U.S. Trade Representative (USTR)
Robert
Zoellick signed the Chile FTA on June 6, 2003. Both require
approval by the Congress. See, full story.
Supreme Court Denies Certiorari in Baystate v.
Bowers
6/16. The Supreme Court denied
certiorari, without opinion, in Baystate v. Bowers, a patent, copyright
and contract case involving CAD software. See,
Order
List [10 pages in PDF], at page 4. This denial lets stand the January 29,
2003,
revised opinion of the
U.S. Court of Appeals (FedCir) which addressed
federal preemption, shrink wrap contracts, and reverse engineering. Basically, a
shrinkwrap contract barred reverse engineering of a software program. A divided
Appeals Court held that the Copyright Act does not preempt state contract law
that allows parties to impose a ban on reverse engineering. See,
full story.
FTC Seeks End to Communications Common
Carrier Exemption
6/11. The Federal Trade Commission (FTC)
proposed to the Congress that it amend the Federal Trade Commission Act (FTCA)
to end the exemption for common carriers subject to the Communications Act from
the FTCA's prohibitions on unfair or deceptive acts or practices and unfair
methods of competition. See, full story.
Supreme Court Reverses in Dastar v. Fox
6/2. The Supreme
Court issued its
opinion
[18 pages in PDF] in Dastar
v. Twentieth Century Fox,
reversing the Court of Appeals, which had upheld a
District Court judgment of violation of the Lanham Act's false designation of
origin provision. Technically, this is a Lanham Act, reverse passing off, case. In
another sense, this is a case in which a plaintiff is passing off a copyright claim
as a Lanham Act claim. The plaintiff alleged that its work of authorship was copied
(which can be actionable under the Copyright Act), but instead proceeded on the
legal theory of violation of the Lanham Act. The defendant copied a work whose
copyright had expired, and failed to
attribute its origin. The lower courts ruled for the producer. The Supreme Court reversed, 8-0.
It held that this is not the purpose of the Lanham Act. Moreover, allowing this
sort of use of the Lanham Act would have the impermissible effect of creating
perpetual quasi patents and copyrights. See,
full story.
Court Hears Arguments on Bar Associations'
Challenges to FTC's Financial Privacy Rules
6/2. The U.S. District Court (DC) heard
oral argument in both New York State Bar Association v. FTC and
ABA v. FTC. These suits challenge to the application of the financial
privacy provisions of the Gramm Leach Bliley Act to practicing attorneys. The hearing
was on the Federal Trade Commission's (FTC) motions
to dismiss the complaints. The Court took the matter under advisement, but only after
asking numerous questions to counsel for the government that reflect a skepticism about
the merits of the government's position. See, full
story.
Microsoft and AOL Time Warner Settle
Antitrust Lawsuit
5/29. Microsoft and
AOL Time Warner announced
that they settled the private antitrust lawsuit
brought by AOLTW against Microsoft. They announced that Microsoft will pay $750
Million, license Internet Explorer royalty free, and work with AOLTW on digital
media and digital rights management initiatives. See,
full story.
DHS and NIST to Collaborate
5/22. Department of Homeland Security's (DHS)
Science and Technology Directorate and the Department of Commerce's (DOC)
Technology Administration (TA), which
includes the National Institute of Standards and
Technology (NIST), entered into a
Memorandum of
Understanding (MOU) [2 pages in MS Word] which states that "the Directorate
and TA seek to collaborate on research and planning activities, and share where
appropriate facilities, personnel, and scientific information". When the Bush
administration originally proposed creating the new DHS in the
summer of 2002, it proposed moving the NIST's
Computer Security Division to the new DHS. However, the Congress rejected
this proposal. See, full story.
7th Circuit Addresses Erroneous Copyright
Registrations, Assignments, and Works Made for Hire
5/21. The U.S.
Court of Appeals (7thCir) issued its
opinion [PDF] in Billy
Bob Teeth v. Novelty,
a copyright infringement and trade dress infringement case involving novelty
teeth. The dispute does not involve technology. Nevertheless, the Court
addressed issues, such as authorship, registration, erroneous registration,
assignment, and works made for hire, that are applicable in copyright cases
involving technology. See, full story.
1st Circuit Holds Monitoring Web Site Traffic Can Violate Wiretap Act
5/9. The U.S.
Court of Appeals (1stCir) issued its
opinion in
In
Re Pharmatrak Privacy Litigation,
reversing a District Court summary judgment in a case brought under the
Electronic Communications Privacy Act (ECPA) involving web site monitoring. See,
full story.
FCC Adopts Order Allowing Some Secondary
Leasing of Spectrum
5/15. The Federal Communications
Commission (FCC) adopted, but did not release, a Report and Order (R&O) and a
Further Notice of Proposed Rulemaking (FNPRM) which allows certain FCC spectrum
licensees to enter into leasing arrangements with third parties. The FCC released a
press
release [4 pages in PDF] announcing the R&O and FNPRM. It states that
this item "(1) authorizes spectrum leasing in a broad
array of wireless radio services, (2) adopts streamlined processing for certain
categories of license transfer and assignment applications, and (3) seeks
comment on additional steps to improve the functioning of secondary markets."
See, full story.
FBI Legal Memorandum Addresses FBI Use of
Internet and Private Databases
5/13. The Electronic Privacy Information
Center (EPIC) published in its web site a heavily redacted copy of a
Federal Bureau of Investigation (FBI)
memorandum
[16 page PDF scan] that addresses FBI use of the internet for investigations,
and whether the FBI may pay for access to ChoicePoint's database of personally
identifiable information about Americans. The unredacted portions of the memorandum
state that the FBI may use the internet to collect publicly available information in foreign
counterintelligence investigations (FCI) provided that the FBI complies with the
Privacy Act and the Attorney General's Guidelines. However, on the question of whether
the FBI may use ChoicePoint's private database, the memorandum's key sections are
redacted. The unredacted portions of the memorandum further state that use of
ChoicePoint does not violate the Fair Credit Reporting Act (FRCA). See,
full story.
House Crime Subcommittee Approves Internet
Gambling Bill
5/6. The House Judiciary
Committee's Subcommittee on Crime, Terrorism, and Homeland Security
approved
HR 21, the "Unlawful Internet Gambling Funding Prohibition Act",
without amendment, by a voice vote. This bill, which is sponsored by
Rep. James
Leach (R-IA), would attempt to functionally bar internet gambling by
prohibiting the use of financial instruments, such as credit cards, in any
transaction involving illegal internet gambling. See,
full story.
Sen. Ensign Introduces Bill to Impose
Moratorium on Mandating Stock Option Expensing
5/1. Sen. John Ensign (R-NV),
Sen. Barbara Boxer (D-CA), and other
Senators introduced
S 979,
the "Broad-Based Stock Option Plan Transparency Act of 2003''. The bill is a
reaction to a tentative decision of the
Financial Accounting Standards Board's (FASB)
in April to mandate the expensing of stock options. The bill would place a three
year moratorium on the mandatory expensing of stock options. Specifically, it
would temporarily prevent the Securities and
Exchange Commission's SEC's from recognizing any accounting standards
related to the treatment of stock options that it did not recognize on April 1,
2003. The bill would further require the SEC to adopt rules requiring companies
to report information regarding their stock option plans. And, after three
years, the SEC would be required to prepare a report. See,
full story.
Supreme Court Denies Certiorari in Internet
Jurisdiction Case
4/28. The Supreme Court denied certiorari,
without opinion, in Healthgrades.com v. Northwest Healthcare Alliance.
This denial lets stand an
opinion of the U.S. Court of Appeals
(9thCir) holding that the U.S.
District Court (WDWash) has personal jurisdiction over an out of state
defendant in defamation case, based solely upon publication of its allegedly
defamatory statements in its internet web site. The lower courts, and foreign
courts, have issued many opinions in the last few years, some of which are
inconsistent, which leave considerable uncertainty as to when a court has
personal jurisdiction over a distant defendant, whose internet based conduct
serves as the basis for the claim, and personal jurisdiction. The Supreme Court
passed up an opportunity to bring some clarity to this issue. See,
full story.
District Court Rules That A DMCA
§ 512(h) Subpoena for the Identity of an P2P Infringer Does not Violate
the Constitution
4/24. The U.S.
District Court (DC) issued an order
[3 pages in PDF] and opinion
[58 pages in PDF] in RIAA
v. Verizon, holding that the issuance of a subpoena by a Clerk of
the District Court pursuant to
17 U.S.C. § 512(h)
to obtain the identity of an anonymous peer to peer infringer from his ISP
does not violate either the First Amendment of the Constitution, or the justiciability requirements of Article III. The District Court
also denied Verizon's motion for stay pending appeal, but granted a 14 day stay,
to enable Verizon to seek a stay from the Appeals Court. This opinion addresses Verizon's constitutional objections. The District
Court previously rejected Verizon's arguments regarding construction of § 512 of
the Digital Millennium Copyright Act (DMCA). See,
full story.
10th Circuit Rules on Civil Liability for Violation
of Wiretap Act
4/22. The U.S.
Court of Appeals (10thCir) issued its
opinion in Quigley
v. Rosenthal, a
civil case involving application of the federal wiretap act to the monitoring of
cordless telephone conversations. The case addresses who can be
held liable for illegal interception of wire or electronic communications, and
when the First Amendment offers protection to those who make use of such
intercepted communications. The Appeals Court affirmed a District Court civil judgment against the
Anti-Defamation League (ADL) for violation of the Wiretap Act, when it had not
conducted the monitoring, but rather, had conspired with others who recorded the
cordless telephone conversations, and then made use of the recordings. The Appeals Court also rejected the ADL's argument that its use of the
recordings was protected by the First Amendment. The Appeals Court
distinguished the Supreme Court's recent opinion in
Bartnicki v.
Vopper, which
held that a radio host who disclosed an illegally recorded cell phone conversation
was protected by the First Amendment. See,
full story.
DHS Begins Rulemaking Proceeding on FOIA
Exemption for Critical Infrastructure Information
4/15. The Department of Homeland Security
(DHS) published a
notice in the Federal Register regarding proposed rules for receiving and
protecting
critical infrastructure information (CII). The DHS is required by the Homeland
Security Act to conduct this rulemaking to implement
the provisions of the Act creating an exemption to the Freedom of Information
Act (FOIA) for certain information about critical infrastructures, including
cyber security, that is voluntarily shared with the government. See,
full story.
House and Senate Pass Conference Report on
Child Protection Bill
4/10. The House and Senate both passed the
conference report [118
pages PDF] on S 151, the "Prosecutorial Remedies and Other Tools to End
the Exploitation of Children Today
Act of 2003", or "PROTECT Act". The House passed the bill by a vote of 400-25. See,
Roll Call No.
127. The
Senate passed the bill by a vote of 98-0. See,
Roll Call No.
132. The bill contains several tech related items, including a ban on use of
certain misleading domain names, provisions pertaining to computer generated
images, and an expansion of the list of offenses that may serve as a predicate
for the issuance of a wiretap order. See,
full story.
4th Circuit Holds North Carolina Ban On
Internet Wine Sales Is Unconstitutional
4/8. The U.S.
Court of Appeals
(4thCir) issued its opinion
[20 pages in PDF] in Beskind
v. Easley, holding that North Carolina's ban on direct shipment
of wine from out of state wineries to North Carolina residents violates the
Commerce Clause. See, full story.
Greenspan Addresses Intellectual Property
Laws
4/4. Federal Reserve Board (FRB)
Chairman Alan Greenspan gave a
speech titled "Market Economies and Rule of Law". He spoke primarily about
developing a legal regime for intellectual property that maximizes
economic growth. He offered some insights into how to analyze the problem, and
asked some rhetorical questions, but offered no specific policy recommendations. He
said that the "more general challenge is to develop a framework that
fosters the growth of an economy increasingly dominated by conceptual products."
See, full story.
AOL Time Warner Petitions FCC for Relief
From Instant Messaging Restriction
4/2. AOL Time Warner (AOLTW) submitted a
petition [58 pages in PDF] to the
Federal Communications Commission (FCC)
requesting relief from the FCC's January 22, 2001 Memorandum Opinion and Order
(MOO) approving the merger of AOL and Time Warner, and imposing conditions upon
AOLTW regarding instant messaging services. Specifically, AOLTW seeks relief from the
condition restricting its ability to offer internet users streaming
video advanced Instant Messaging based high speed services (AIHS) via AOL Time
Warner broadband facilities. See, full
story.
USTR Submits Proposal to WTO
Regarding Trade in Services
3/31. The Office of the U.S. Trade
Representative (USTR) released a document titled
"Initial
Offer" [120 pages in PDF] that it submitted to the
World Trade Organization (WTO) in which it
proposes to further open
access to the U.S. services sectors. The offer addresses a wide range of
services, including telecommunications, information, legal, financial and
accounting services. See, full story.
House Subcommittee Holds Hearing On
Commercial Spectrum Enhancement Act
3/25. The House Commerce Committee's
Subcommittee on Telecommunications and the Internet held a hearing
on HR 1320,
the Commercial Spectrum Enhancement Act. This bill would facilitate the relocation of
spectrum from federal users,
such as the Department of Defenese (DOD),
to commercial users, such as Third
Generation (3G) wireless service providers. 3G is intended to provide broadband
internet access for portable devices. The bill would
create a "Spectrum Relocation Fund", funded out of auction proceeds, to pay for
relocation costs of federal entities whose spectrum is reallocated. See,
full story.
8th Circuit Upholds TCPA
3/21. The U.S.
Court of Appeals (8thCir) issued its
opinion [17
pages in PDF] in Missouri
v. American Blast Fax,
upholding the constitutionality of the fax advertising ban contained in the
Telephone Consumer Protection Act of 1991. This case dealt only with application
of the fax advertising ban to unsolicited commercial fax messages. However, were
the Congress to enact a ban on unsolicited commercial e-mail advertising, the
analysis of its constitutionality would be very similar to the analysis in this
case. See, full story.
Senate Committee Holds Hearing on Internet
Gambling Bill
3/18. The Senate Banking
Committee held a hearing on proposals to regulate illegal internet gambling.
The hearing focused on
HR 21 and
S 627, both
of which would attempt to bar internet gambling
operations access to the U.S. financial services system by banning the use of
credit cards, wire transfers, or any other bank instrument to fund gambling
transactions. The two bills are not identical. Senators expressed support for
the legislation. See, full story.
Supreme Court Grants Certiorari in Verizon
v. Trinko
3/10. The Supreme Court granted
certiorari in Verizon
v. Trinko, a case
involving the application of Section 2 of the Sherman Antitrust Act,
15 U.S.C. § 2, in the
context of telecommunications. The Court's
Order
List [14 pages in PDF], at page 4, states that "The petition for a writ of
certiorari is granted limited to the following Question: ``Did the
Court of Appeals err in reversing the District Court's dismissal of respondent's
antitrust claims?´´" See, full story.
Bush Administration Announces Digital
Freedom Initiative
3/4. Secretary of Commerce
Donald Evans, other
Bush administration officials, and others announced the launch of a
Digital Freedom Initiative.
The initiative involves foreign aid for developing countries to develop
information and communication technology (ICT), training by Peace Corps
volunteers, and involvement by U.S. technology companies. This launch event
pertained to the African nation of Senegal. The participants' descriptions of the initiative were long on superlatives,
aspirations, and plans for expansion to other countries,
but short on specifics. It will involve foreign aid grants from the
U.S. Agency for International Development (USAID).
A release from the White House press office stated that the estimated budget for
the Senegal program over three years is $6.5 Million. It will also involve
contributions from Cisco and HP,
primarily in the form of training and "human capital", as opposed to free
equipment and money. See, full story.
House Commerce Committee Holds Hearing on
FCC Triennial Review Order
2/26. The House Commerce
Committee's Telecom and Internet Subcommittee held a lengthy hearing. All
five Commissioners of the
Federal Communications Commission
(FCC) explained and defended their positions in the divided Triennial Review
Order which the FCC announced last week. Key members of the Subcommittee
condemned the UNE-P portion of the order, and predicted its eventual reversal by
the courts. See, full story.
Hearing On Triennial Review Order Serves As
Forum For Other Issues
2/26. The House Commerce
Committee's Telecom and Internet Subcommittee hearing on February
26 on the Federal Communications Commission's
(FCC) Triennial Review order regarding the
Section 251
unbundling obligations of incumbent
local exchange carriers (ILECs) also served as a forum for the discussion of
other communications and technology related issues. Members of the Subcommittee
raised the FCC's media ownership rules, e-rate subsidies for schools
and libraries, telemedicine at rural health clinics, E911, internet taxes, and
other issues. See, full story.
TLJ Articles on FCC UNE Report and Order of February 20
• FCC
Announces UNE Report and Order
• FCC
Order Offers Broadband Regulatory Relief
• FCC
Announces Decision on Switching
• Commentary:
Republicans Split On FCC UNE Order
• Congressional
Reaction To FCC UNE Order
New Hampshire Court Rules on Tort Liability
of Information Brokers
2/18. The Supreme Court of New
Hampshire issued its
opinion in
Remsburg v. Docusearch regarding whether private investigators and information brokers
are liable in tort for privacy invasions of third parties about whom they are collecting
and disseminating information. See, full
story.
Sen. Edwards Proposes Homeland
Intelligence Agency
2/13. Sen. John Edwards (D-NC) introduced
S 410,
the Foreign Intelligence Collection Improvement Act of 2003. It would revise the way the
government conducts foreign intelligence operations within the U.S., and the way
government stores, shares and safeguards information. It would create a Homeland
Intelligence Agency within the Department of Homeland Security, and reduce the
responsibilities of the FBI. The bill does not expand the powers of the
federal government with respect to intelligence gathering. Rather, it is
premised upon the assumption that by moving certain functions to a new agency,
those functions will be conducted more effectively. It also limits executive
power, in two respects. First, a
substantial part of the bill is devoted to protecting privacy,
civil rights and Constitutional rights, particularly through the creation of an
entity to safeguard these rights. Second, it would increase
the ability of the Congress to oversee and control the operations of executive
branch. See, full story.
3rd Circuit Rules on Retroactivity
of Cyber Squatting Act
2/11. The U.S.
Court of Appeals (3dCir) issued its
opinion [4 pages in PDF]
in Schmidheiny
v. Weber, a case
regarding retroactive application of the Anti-cybersquatting Consumer Protection
Act's (ACPA) protection of individuals' names, and the effect of re-registration
of a domain name. The Appeals Court held that while the ACPA does not apply
retroactively to registrations of domain names prior to the effective date of
the statute, it does apply to re-registrations of domain names after the
effective date, for which the original registration was before the effective
date. See, full story.
Administration Officials Discuss Technology
Related Budget Items
2/4. Department of Commerce officials held a
briefing on sections of the President Bush's proposed budget for fiscal year
2004 that pertain to intellectual property, technology,
science and innovation. The participants were included
Phil Bond, Under Secretary
for the Technology Administration,
Arden Bement, Director
of the NIST,
Jon Dudas, Deputy Director
of the USPTO,
Kenneth Juster,
Under Secretary for the Bureau of Industry
and Security, and
Nancy Victory, Director
of the NTIA. Jon Dudas stated that the FY04 budget proposal calls for $1,404
Million, up from the FY03 proposal of $1,334 Million. He also stated that this
proposal continues the practice of "fee diversion". However, on the bright
side, he said that this proposal "returns to the USPTO a greater share of
its revenue than last year". See, full
story.
Representatives Introduce Bills to Make R&D
Tax Credit Permanent
2/3. Last week, two bills were introduced in the House to make permanent the
existing research and development tax credit. Technology companies are among the
strongest backers of efforts to make the R&D tax credit permanent. See,
full story.
Federal Circuit Rules in Rambus v.
Infineon
1/29. The U.S.
Court of Appeals (FedCir)
issued its split opinion
[MS Word] in Rambus
v. Infineon, a patent infringement case involving dynamic random
access memory (DRAM) products. The Court of Appeals vacated the District Court's
judgment of non-infringement, as a matter of claim construction. It also
reversed the District Court's denial of a motion to set aside a jury verdict of
fraud under Virginia state law based upon failure to disclose patent and patent application information to
a standard setting body. However, Rambus still faces a
Federal
Trade Commission (FTC) administrative complaint, based upon essentially the same
facts, but which alleges violation of antitrust law. See,
full story.
Supreme Court Rules Against FCC in NextWave Case
1/27. The Supreme Court issued
its opinion
[34 pages in PDF] in FCC
v. NextWave Personal
Communications, holding that the
Federal Communications Commission's (FCC) attempt to revoke NextWave's
spectrum licenses violated Section 525 of the Bankruptcy Code. See,
full story.
District Court Rules DMCA Subpoenas
Available for P2P Infringers
1/21. The U.S.
District Court (DC)
issued its opinion
in RIAA
v. Verizon,
ruling that copyright holders can obtain subpoenas pursuant to
17 U.S.C. § 512(h)
that require Internet Service Providers (ISPs) to reveal the identities of their
customers who infringe copyrights on peer to peer filing sharing systems.
Verizon had argued that 512(h) subpoenas were only available with respect to
infringers who stored infringing content on the servers of the ISP. While the
Recording Industry Association of
America (RIAA) could obtain a subpoena by other means, this holding is
significant because Section 512(h) provides a fast and efficient means of
obtaining subpoenas for ISP's information that identifies infringers. In particular,
it requires no notice to, or opportunity to be heard by, the alleged infringer.
Verizon stated that it will appeal.
See, full story.
Supreme Court Upholds CTEA in Eldred v.
Ashcroft
1/15. The Supreme Court issued
its opinion
[89 pages in PDF] in
Eldred v. Ashcroft, upholding the constitutionality of
the Copyright Term Extension Act (CTEA), which retroactively extended the maximum
duration of copyrights. Justice Ruth Ginsburg wrote the opinion of the Court, in
which Kennedy, O'Connor,
Rehnquist, Scalia, Souter, and Thomas joined. Both Breyer and Stevens wrote
dissenting opinions. Justice Ginsburg wrote that the Copyright Clause delegates to the Congress
the authority to set the terms for copyright protection, and the Supreme Court
will defer to the Congress' determinations. She also wrote that the First
Amendment does not limit the Congress' power to extend copyright terms. She
wrote "The First Amendment securely protects the freedom to make -- or
decline to make -- one's own speech; it bears less heavily when speakers assert
the right to make other people's speeches. To the extent such assertions raise
First Amendment concerns, copyright's built-in free speech safeguards are
generally adequate to address them." Such safeguards, wrote Ginsburg, include
fair use, and the principle that copyright protects expressions, but not the
ideas or facts contained in expressions. See,
full story.
Software, Computer and Music Companies Reach
Agreement on Digital Copyright Issues
1/14. Three industry groups, the Recording
Industry Association of America (RIAA), the
Business Software Alliance (BSA), and the
Computer Systems Policy Project (CSPP),
reached an agreement
regarding policies that they will advocate in the 108th Congress regarding digital copyright
issues. The agreement is compromise and truce between industries that previously
advocated conflicting policies. One of the key provisions is that "Technical
protection measures dictated by the government ... are not practical". This is a
retreat by the music industry. Another key provision is that "Legislation should
not limit the use or effectiveness" of "unilateral technical protection measures
that limit unauthorized access, copying or redistribution of products".
Another key provision is support for "technical measures to limit illegal
distribution of copyrighted works", subject to certain limitations. See,
full story.
District Court Squeezes Sharman on Internet
Based Personal Jurisdiction
1/9. The U.S.
District Court (CDCal) issued an order and opinion in MGM
v. Grokster in which it denied Sharman Network's motion to dismiss
for lack of personal jurisdiction.
Sharman, which now owns the key assets of Kazaa,
is organized in the offshore jurisdiction of
Vanuatu,
apparently for the purpose of evading the reach of U.S. courts. Sharman provides
free software, known as the Kazaa Media Desktop (KMD), that can be downloaded and used
to search for and exchange digital music, movies, and other mostly copyrighted
works, using FastTrack file sharing technology. The Court based its finding of
personal jurisdiction largely on
the fact that Sharman had made the KMD software available to about two million
residents of the state of California. See,
full story.
Adelstein Addresses Copyright, Media
Ownership, and Red Lion Case
1/6. Federal Communications
Commission (FCC) Commissioner
Jonathan Adelstein
gave an
speech titled "The Last DJ?: Finding a Voice on Media Ownership".
He addressed the FCC's pending rulemaking proceeding regarding copyright
protection, and the FCC's pending proceedings pertaining to media ownership and
cross ownership rules. See, full story.