Tech Law Journal Daily E-Mail Alert
Feb. 7, 2001, 8:00 AM ET, Alert No. 118.
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Senate Confirms USTR
2/6. The U.S. Senate confirmed Robert Zoellick to be USTR by a vote of 98-0. He was widely praised. The debate was not over whether to confirm, but rather, how he should proceed on several issues. Senate Finance Committee Chairman Charles Grassley (R-IA) stated that "The President, any President, needs trade negotiating authority from Congress because his negotiating credibility is diminished without it." However, he added, "I don't have any illusions that this will be easy to accomplish." The main source of contention is that many Democrats want fast track trade negotiating authority to include non trade related social issues. For example, Sen. Max Baucus (D-MT) the ranking Democrat on the Finance Committee, stated again that he will oppose any proposal to give the President fast track trade negotiating authority that does not also extend to labor and environmental issues.
Inmate E-Mail
2/6. The California Court of Appeal (1st Appellate Dist., Div. 1) issued its opinion [PDF] in In Re Aaron Collins, a case regarding access to e-mail messages by prison inmates. The Court of Appeal reversed a trial court order granting a petition for habeas corpus filed in connection with a prison policy that denied access to materials sent by e-mail. Aaron Collins, a prisoner in California's maximum security Pelican Bay State Prison, was a subscriber to a service for prison inmates that prints any e-mail messages received by the inmate subscriber and sends them to the inmate by regular U.S. mail. The prison warden adopted a policy that the prison mailroom would not accept such mail. Collins filed a petition for habeas corpus. The trial court granted the petition on First Amendment grounds, and ruled that inmates could receive printed copies of e-mail. The Court of Appeal reversed, stating that the prison had legitimate security concerns, particularly, preventing inmates from participating in criminal activity via mail. The court concluded that the potential high volume of e-mail, the relative anonymity of the senders, and the ability of senders to easily send or attach lengthy articles and other publications would greatly increase the risk that prohibited criminal communications would enter the prison undetected and would make tracing their source more difficult.
Commerce Dept.
2/6. William Daley was elected to the EDS Board of Directors. Most recently, he was chairman of Gore Lieberman presidential campaign. Before that he headed the Department of Commerce. He is also a former partner in the law firm of Mayer, Brown & Platt. See, EDS release.
2/5. Don Evans was sworn in as the new Secretary of Commerce. President Bush stated at the event that "Don shares with me a conviction that open trade is a powerful force for good in the world.  In all our dealings abroad, we must stand for free markets and for the principles of democracy." Sec. Evans stated that "Bush has a vision for America. It is a vision where our e-commerce entrepreneurs are free from excessive regulation, so that they can dream and build. We look forward to leading the administration's e-commerce efforts, by our activities at NTIA, at NIST, at PTO, EDA, MBDA." Evans concluded that "Our e-commerce leaders can make plans secure in the knowledge that we will provide guidelines with certainty. Our economic team can implement your economic policy with data that is reliable and certain. Our trading partners can know we will enforce our trade agreements with certainty." See, transcript.
New Documents
USCA: scheduling order in Microsoft antitrust case, 2/6 (PDF, USCA).
USCA: opinion in ALS Scan v. RemarQ re DMCA, 2/6 (HTML, USCA).
CCA: opinion in In Re Aaron Collins re access to e-mail messages by prison inmates, 2/6 (PDF, CCA).
USCA: opinion in Bachow v. FCC re 39 GHz band, 2/6 (HTML, USCA).
Microsoft Appeal
2/6. The U.S. Court of Appeals (DCCir) issued a scheduling order [PDF] in the Microsoft antitrust case which sets the amount of time allotted for each appeal argument. The Court's time assignments differ significantly from those recommended by the parties in their joint filing of Feb. 2, and perhaps reflects the thinking of some members of the Court regarding the relative importance of the different issues. The parties had agreed to have the court consider the issue of Judge Jackson's out of court statements on written submissions. However, the Court's order provides for one hour of oral argument on this issue. The Court also assigned the most amount of time (150 minutes) to the monopoly maintenance issue; the parties had recommended 90 minutes. The Court also raised the amount of time for the remedies issue from 60 to 90 minutes. The Court also assigned 90 for the tying issue, as the parties had urged. The Court also hinted that it may actually take much more time for arguments and questions. Its order further states that "The court reserves the possibility that the time allotted will be extended if it is determined to be insufficient to address the questions at issue. The parties, therefore, should be available between 9:30 a.m. and 4:00 p.m. on both February 26 and 27, 2001. If argument extends into the afternoon on either day, the court will take a ninety (90) minute recess for lunch."
Business Method Patents
2/6. The Intellectual Property Owners Association (IPO) is holding its midwinter meeting in Florida. Its Board of Directors announced that it has reaffirmed the statement on business method patents that it first adopted on June 28, 2000. This document states that, "IPO does not believe that Congress should legislate in the area of business method patents at the present time. Additionally, IPO is not aware of any legislative proposals today that merit serious consideration or debate." Since this statement was first adopted, Rep. Howard Berman (D-CA) and Rep. Rick Boucher (D-VA) introduced the Business Method Patent Improvement Act. The bill was introduced late in the 106th Congress, but the two stated that they would refile in the current Congress. The IPO Board also adopted a position that intellectual property should not be a subject for the next round of global trade negotiations.
2/6. The U.S. District Court (4thCir) issued its opinion in ALS Scan v. RemarQ, a case regarding copyright infringement under the Digital Millennium Copyright Act (DMCA). Title II of the DMCA provides a ISPs a limited immunity from liability for copyright infringement for certain acts, including storage of information on its systems or networks at the direction of users. However, the DMCA also requires that ISPs take down or block infringing material upon notice from a copyright holder that complies with DMCA. This case addresses the effect of a defective notice. The Appeals Court ruled that an ISP cannot rely on a defense of defective notice to maintain the immunity defense provided by the DMCA safe harbor provision where there was substantial compliance. Here are the facts. ALS is a pornographer; it holds copyrights in porn pictures. RemarQ is an ISP that provided its subscribers two porn newsgroups. RemarQ's subscribers posted porn pictures copyrighted by ALS in these newsgroups. ALS mailed to RemarQ a demand that it "cease carrying these newsgroups". RemarQ responded that it would take down infringing pictures if ALS identified them "with sufficient specificity", as required by the DMCA. ALS did not provide specificity. Instead, it filed a complaint in the U.S. District Court (DMd) alleging violations of the Copyright Act (both direct and contributory infringement) and Title II of the DMCA, as well as unfair competition. RemarQ moved to dismiss on the grounds that ALS's failure to comply with the DMCA notice requirements provided it with a defense to ALS's copyright infringement claim. The District Court agreed, and dismissed. This appeal followed. The Appeals Court reversed. Defective notice under Title II of the DMCA that is in substantial compliance is sufficient.
More News
2/6. The U.S. Court of Appeals (DCCir) issued its opinion in Bachow Communications v. FCC, a case regarding the FCC's conversion of its system for awarding licenses in the 39 GHz band from a comparative application process to a public auction. The Court affirmed the FCC's orders.
2/6. The U.S. District Court (DDC), held a status hearing in EPIC v. DOJ. This is a FOIA suit regarding the production of documents pertaining to the FBI's e-mail surveillance system named Carnivore. The parties stated that only 3 pages remain to be processed by the government.
2/6. The Federal Communications Bar Association hosted a seminar titled "Technology and the FCC: What Every Advocate Should Know." Topics included the AOL Time Warner merger reviews, secondary markets for spectrum rights, ultrawideband technologies, and spectrum sharing policies.
2/6. NCTA CEO Robert Sachs gave a speech in Washington DC in observance of the fifth anniversary of the Telecom Act of 1996 in which he stated that "Internet protocol (IP) telephony over broadband cable networks is next on cable's priority chart." See, release.
2/6. The FTC's Bureau of Consumer Protection held a workshop on alternative dispute resolution.
Powell Speaks
2/6. The new FCC Chairman, Michael Powell, held his first press conference as Chairman. He revealed that he will lead the FCC much differently from his predecessors, William Kennard and Reed Hundt. He stated that he favors a less regulatory and less legislative agency; he will be more cautious and more aware of the FCC's limitations. Also, he stated that he will implement the laws passed by the Congress, and refrain from policy making, or even speaking out on many policy questions. He indicated that the FCC will continue to conduct antitrust merger reviews, but he hopes to speed up the process, and treat similar parties similarly. He stated that the FCC will try to facilitate the development of 3G wireless technologies, but added that it will not be an easy process. He praised the Telecom Act for unleashing broadband Internet access; he elaborated that it allowed AT&T to buy cable companies, and provide cable Internet access, which in turn prompted the phones companies to provide DSL service. He answered questions for about an hour with a command of the issues, and a sense of direction. He also joked about several topics. When asked about the "digital divide", he added, "I think there is a Mercedes divide. I would like one. I can't afford one." When asked if he could give his definition of the "public interest", he said, "I have no idea."
2/6. The Antitrust Division of the U.S. Department of Justice (DOJ) announced that it has approved the merger of JDS Uniphase (JDSU) and SDL, subject to JDS Uniphase's agreement to sell its Zurich subsidiary to Nortel Networks. JDSU is an optical fiber network component maker. It makes semiconductor lasers, high speed external modulators, and transmitters for fiber optic networks. Fiber optic networks are enabling the rapid growth of Internet bandwidth. SDL makes products that power the transmission of data over fiber optic networks. Nortel is a communications company. According to the DOJ, the issue was that the merger "as originally proposed, would have led to the loss of head-to-head competition in the production of 980 nm pump laser chips." The DOJ stated that "Under the divestiture, JDS Uniphase has agreed to sell its entire Uniphase Laser Enterprise (ULE) division to Nortel Networks in a transaction valued at about $3 billion. ULE is a major manufacturer of 980 nm pump laser chips." See, JDSU release, Nortel release, SDL release, and DOJ release.
Tax Policy
2/5. President Bush announced his intention to nominate Mark Weinberger as Assistant Secretary of Treasury for Tax Policy. The Office of Tax Policy has in the past been involved in many high tech issues, including depreciation schedules for computer equipment, the research and development tax credit, capital gains treatment of investments in venture capital partnerships, taxation of Internet sales, and the foreign sales corporation regime. However, President Bush's proposed $1.6 Trillion across the board tax cut may be a higher priority. Weinberger is presently the Director of National Tax Practice at Ernst & Young in Washington DC. See, release.
10:30 AM. The Senate Banking Committee will hold a hearing on export controls. The scheduled witnesses include Dan Hoydysh (Computer Coalition for Responsible Exports), Paul Freedenberg (Association for Manufacturing Technology), and Richard Cupitt (Center for International Trade and Security). Location: Room 538, Dirksen Building.
12:30 PM. AT&T Chairman and CEO Michael Armstrong will speak at a National Press Club Luncheon. Location: NPC Ballroom, 529 14th St. NW, 13th Floor, Washington DC, 20045.
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