Tech Law Journal Daily E-Mail Alert
Feb. 13, 2001, 8:00 AM ET, Alert No. 122.
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Antitrust AAG
2/12. President Bush will nominate Charles James to be the next Assistant Attorney General for the Antitrust Division of the Department of Justice (DOJ), according to a story by the Associated Press. Whoever fills this position will have major responsibility for determining whether or how to proceed with the government's case against Microsoft. James is a partner in the Washington DC office of the law firm of Jones, Day, Reavis & Pogue. He is the Chairman of the firm's Antitrust & Trade Regulation Practice. After graduating from law school in 1979 he worked at the FTC. This culminated with a position as Assistant to the FTC Bureau of Competition Director, from 1983 until 1985. He then joined Jones Day. He held several positions in the DOJ Antitrust Division during the administration of the elder Bush, including Deputy Assistant Attorney General and Acting Assistant Attorney General. He then rejoined Jones Day.
Commerce Dept.
2/12. President Bush made several key nominations at the Department of Commerce.
  Bush nominated Kenneth Juster to be Under Secretary of Commerce for Export Administration.
 Juster is currently a partner in the Washington DC office of the law firm of Arnold & Porter, where he handles international trade and transactions, and international arbitration and litigation. He worked for Lawrence Eagleburger at the State Department during the administration of the elder Bush.
  Bush nominated Faryar Shirzad to be Assistant Secretary of Commerce for Import Administration. He was International Trade Counsel for the Senate Finance Committee.
  Bush nominated Theodore Kassinger to be General Counsel of the Department of Commerce. He is a partner in the Washington DC office of the law firm of Vinson & Elkins, where he has an international trade practice.
See, release.
More Nominations
2/12. President Bush designated Laura Unger as acting Chairman of the SEC. See, release.
2/12. President Bush nominated Thelma Askey to be a Commissioner of the USITC. She was a Commissioner until December of 2000, when her term expired.
New Documents
USCA: opinion in Napster v. A&M Records, 2/12 (PDF, USCA).
Hatch: letter to Bush re USPTO funding, 2/9 (HTML, TLJ).
CO: notice re initiation of six month voluntary negotiation period for determining reasonable rates and terms for the public performance of sound recordings by new subscription services, 2/12 (HTML, TLJ).
2/12. Hewlett Packard (HP) announced that it will participate in the EU privacy safe harbor. The safe harbor agreement is between the U.S. Department of Commerce and European Union Data Protection Authorities. The safe harbor provides legal protection and a framework allowing for the safe transfer of personal information from European Union countries to the United States. HP is the first major technology company to join the safe harbor. See, release.
2/12. The Privacy Coalition held a press conference to announce a privacy initiative. It seeks to have Members of Congress and state legislators sign a "Privacy Pledge." See, TLJ story.
USPTO Funding
2/12. The USPTO published in its web site the February edition of USPTO Today [PDF]. It contains the transcript of an interview with Esther Kepplinger, Deputy Commissioner for Patent Resources and Planning. She addressed workforce issues, and the diversion of USPTO user fees to subsidize other government programs. She stated that "we are increasingly having a difficult time in retaining or accessing the fees that we generate through the work that we're doing." She also stated that "I think that we're also going to need to look at legislative changes to our processes that could have more dramatic impacts on the way that we do our business and shorten or change the way we do examinations so that we're able to do more with less resources." She suggested that the USPTO may utilize retired workers. (See, page 6.)
2/9. Six Senators sent a letter to President Bush urging an end to the diversion of USPTO user fees to fund other government programs. They argued that "underfunding the PTO delays the development of new technologies."
Napster Opinion
2/12. The U.S. Court of Appeals (9thCir) issued its opinion [PDF] in Napster v. A&M Records, largely upholding Judge Patel's findings regarding copyright infringement. Napster uses peer-to-peer file sharing to allows its users to make music files stored on individual computer hard drives available for copying over the Internet by other users. Last year U.S. District Court Judge Marilyn Patel issued a preliminary injunction against Napster. The Court of Appeals upheld Patel's findings that Napster users engage in direct copyright infringement, and that Napster engages in both contributory and vicarious infringement. The Court also upheld Patel's rejection of Napster's defense of fair use. The Court ruled that the issue of whether Napster may obtain shelter under the safe harbor provisions of the Digital Millennium Copyright Act should be developed at trial. The Court also upheld Patel's ruling that the Audio Home Recording Act does not cover the downloading of these music files to computer hard drives. However, the Appeals Court found Judge Patel's injunction to be overly broad, and remanded the matter to her to fashion injunctive relief consistent with its opinion. Napster may be held liable for contributory copyright infringement only to the extent that it knows of specific infringing files with copyrighted musical compositions or sound recordings, knows or should have known that the files are available on its system, and fails to act to prevent the distribution of the copyrighted material. Beezer wrote the opinion, in which Schroeder and Paez joined. See also, 9th Circuit's summary [PDF] of its opinion.
2/12. Record company officials, their attorneys, and several musicians held a press conference in Washington DC immediately after the release of the opinion in the Napster case. RIAA CEO Hillary Rosen stated that "It is time for Napster to stand down and build their business the old fashioned way. By seeking permission first." Rosen also predicted that "this opinion is so clear that Congress won't get involved in this case." Musicians praised the ruling. "The decision pretty much writes Napster's epitaph," said attorney Charles Cooper. "Its days of shoplifting are over."
2/12. Napster President Hank Barry also issued a statement. "Under this decision Napster could be shut down ..." He did not state whether Napster would seek further review by the Ninth Circuit, or petition the Supreme Court for writ of certiorari. However, he did address legislative remedies. He stated: "The Court also very narrowly interpreted the Congress's intent when it comes to licensing, and we have seen that this is an issue of concern to the Congress. We encourage members of our community to contact their representatives to let Congress know how much Napster means to them."
2/12. The RIAA hired Charles Cooper to provide legal services in connection with any Supreme Court review of the Napster case, and legislative strategy services. Cooper is the senior partner of the Washington DC law firm of Cooper Carvin & Rosenthal. He is a former law clerk to Chief Justice Wm. Rehnquist, and a former Asst. Atty. General for the Office of Legal Counsel during the Reagan administration. He has testified several times before the House Judiciary Committee on Constitutional issues.
2/12. Rep. John Conyers (D-MI), the ranking Democrat on the House Judiciary Committee (which has jurisdiction over intellectual property legislation) had this to say about the Napster ruling: "This decision is a huge victory for the Internet, consumers, and e-commerce and means that the information age will not countenance high-tech piracy. It shows that intellectual property rights are as enforceable over the Internet as they are elsewhere, and that they promote commerce on the Internet. Napster was a service whose only purpose was to make money off of the creative inspirations of others. Having put no effort into the writing, singing, or marketing of music, Napster took it upon itself to facilitate even encourage the mass distribution of copyrighted songs."
More IP News
2/12. The Copyright Office (CO) published a notice in the Federal Register that it is initiating the six-month voluntary negotiation period for determining reasonable rates and terms for the public performance of sound recordings by new subscription services. Parties requesting to participate in the negotiation process must notify the CO by March 1, 2001. See, Federal Register,  Feb. 12, 2001, Vol. 66, No. 29, at Pages 9881 - 9882.
2/9. The WTO General Council elected officers for 2001. See, list.
More News
2/12. The U.S. Court of Appeals (DC Cir) heard oral argument in Veracon Corp v. FCC. This is a Petition for Review of an FCC order affecting a broadcast radio license (WNNJ617) in Hinsdale, Illinois.
2/11. President Bush issued an Executive Order which extended the expiration date of the President's Information Technology Advisory Committee from Feb. 11 to June 1, 2001.
2/12. The U.S. Court of Appeals (4thCir) issued its opinion in USA v. Barth, an appeal of a sentence imposed for illegal transportation, by computer, of child pormography in interstate commerce, in violation of 18 U.S.C. 2252A(a)(1). Defendant was formerly employed by the federal government as a data standards manager.
2/12. Oracle announced that Bill Clinton will deliver the opening keynote address at the Oracle AppsWorld conference in New Orleans on Feb. 19. See, release.
Deadline to submit comments to the IRS in its proceeding regarding its regulation of Internet speech. The IRS released a document in October stating that it is considering whether to issue guidance regarding the application of the Internet Revenue Code to various types of Internet communications by tax exempt entities.
6:30 PM. FTC Chairman Robert Pitofsky will speak at the ABA Antitrust Section Corporate Counsel dinner. Location: Willard Hotel, 1401 Pennsylvania Ave., NW, Washington DC.
2/7. David Marsh joined the law office of Arnold & Porter as a partner. He will focus on intellectual property counseling and patent procurement, predominantly in the biotechnology area. Marsh is also an Adjunct Professor at Georgetown University Law Center, where he teaches Biotechnology and Patent Law. He previously practiced at Howrey Simon Arnold & White. See, release.
2/6. Paul Coggins joined the Dallas office of the law firm of Fish & Richardson (FR) as a principal. He was previously the U.S. Attorney for the Northern District of Texas for seven years. Coggins helped establish a regional computer forensics laboratory in Dallas to help Texas law enforcement agencies investigate computer-aided crimes. The USAO also prosecuted several cases involving computer hacking and network disruption. FR practices exclusively in the areas of intellectual property, complex litigation, and technology law. See, release.
2/5. Joshua Paul joined the New York City office of the law firm of Morgan, Lewis & Bockius as a partner in the Intellectual Property Practice Group. He was previously a partner at Cowan Leibowitz & Latman in New York City. He focuses on litigation and counseling of trademark/brand identity, unfair competition, Internet advertising, e-commerce and related IP matters. See, release.
Page Jacking
2/12. The FTC announced a Stipulated Final Judgment and Order in FTC v. Periera, a civil enforcement action to enjoin a "page jacking" and "mouse trapping" scam run by pormographers. The FTC filed its original complaint in U.S. District Court (EDVa) on Sept. 14, 1999. It obtained a preliminary injunction on Sept. 21, 1999. (See, TLJ story). The Australian Competition and Consumer Commission (ACCC) also pursued defendants present in Australia. Page jacking is a scam which manipulates online search engine technology to cause web surfers seeking legitimate web pages to end up in the web pages of the scam artist. The perpetrator copies and puts online the legitimate web pages of others, and adds a redirect script which includes the URL of another web site run by the perpetrator. These "page jacked" pages are then indexed by search engines, and web users find and click through to the page jacked pages via search engine listings, thinking that they are going to a legitimate web page. In the Periera case, the redirect sites all contained advertisements for pormography. With "mouse trapping," scripts are added to the pages containing porm ads which cause more porm ads pages to be displayed when the user clicks the browser's back or close buttons. (See, TLJ story.) The FTC announced on Feb. 12 that under the settlement, defendant Gregory Lasrado is barred from future page jacking operations, and other fraudulent acts. The FTC also obtained default judgments enjoining two other defendants. However, the lead defendant, Carlos Periera, of Portugal, was never located.
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