|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.
|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.
|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.
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,
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.
order in Microsoft antitrust case, 2/6 (PDF, USCA).
in ALS Scan v. RemarQ re DMCA, 2/6 (HTML, USCA).
in In Re Aaron Collins re access to e-mail messages by prison
inmates, 2/6 (PDF, CCA).
in Bachow v. FCC re 39 GHz band, 2/6 (HTML, USCA).
|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
|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
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.
|2/6. The U.S.
Court of Appeals (DCCir) issued its opinion
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
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
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.
|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,
and DOJ release.
|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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