Tech Law Journal Daily E-Mail Alert
Feb. 16, 2001, 8:00 AM ET, Alert No. 125.
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DOJ Nominations
2/15. President Bush announced his intent to nominate Charles James to be an Assistant Attorney General. He will oversee the Antitrust Division of the Department of Justice (DOJ).  He will have major responsibility for determining whether or how to proceed with the government's antitrust case against Microsoft. James is currently the Chairman of the Antitrust and Trade Regulation section of the law firm of Jones, Day, Reavis & Pogue. He worked at the FTC from 1979 through 1985; he was 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. See, DOJ release and White House release.
2/14. President Bush announced his intent to nominate Larry Thompson to be Deputy Attorney General. He is currently a partner with the law firm of King & Spalding in Atlanta, Georgia. See, White House release.
2/14. President Bush announced his intent to nominate Ted Olson to be Solicitor General. He is currently a partner in the Washington DC office of Gibson Dunn & Crutcher. See, White House release.
2/15. Attorney General John Ashcroft announced the nomination of Daniel Bryant to be an Assistant Attorney General. He will oversee the Office of Legislative Affairs. He is currently Chief Counsel of the House Judiciary Committee's Subcommittee on Crime. See, DOJ release.
Intellectual Property & High Tech
2/14. The Senate passed S 320, the Intellectual Property and High Technology Technical Amendments Act of 2001. The bill is sponsored by Sen. Orrin Hatch (R-UT) and Sen. Pat Leahy (D-VT), the Chairman and ranking Democrat on the Senate Judiciary Committee. Sen. Hatch stated during floor debate that this "is a technical corrections bill to clean up some scrivener's errors that have crept into the U.S. Code in the patent, trademark, and copyright laws." It passed by a vote of 98 to 0.
2/14. Sen. Hatch and Sen. Leahy used the time allotted for debating S 320 to identify their intellectual property and high tech agenda for the 107th Congress. The topics which the two intend to address include copyright on the Internet, electronic privacy, encryption policy, business method patents, state government responsibility to respect and protect intellectual property rights, domain names, protecting trademarks in cyberspace, antitrust implications of B2B electronic marketplaces, the increasing tension in the high tech industry between intellectual property rights and antitrust laws, broadband technologies, and freedom of speech. See, Hatch statement.
2/14. Sen. Leahy addressed the opinion [PDF] of the U.S. Court of Appeals (9thCir) in Napster v. A&M Records. He stated in the Senate that "we have to realize things have changed. There has been a lot in the press in the past couple days about the Ninth Circuit Court of Appeals decision in Napster. I suggest that if anyone thinks this is the end of the whole issue, they are mistaken."
2/15. The RIAA stated that the plaintiffs filed a proposed modified preliminary injunction order with the U.S. District Court (NDCal) in A&M Records v. Napster. However, the RIAA did not release a copy of the proposed order. It stated that it "is not yet a public document."
New Documents
Hatch: statement re high tech and intellectual property agenda, 2/14 (HTML, TLJ).
FTC: complaint in domain name registry scam case, 2/13 (PDF, FTC).
USDC: Temporary Restraining Order in domain name registry scam case, 2/13 (PDF, FTC).
Burghardt: speech re US EU trade relations, 2/15 (HTML, EU).
Quote of the Day
"In the Internet Age, many basic questions need to be asked anew about the relationships between the artists and the media companies that market and distribute their product; about the rights of consumers and fans to use works in new ways and the ability of technology companies and other mediators to assist them in those uses; and about the accessibility of works to scholars, students, or others for legitimate purposes. We need to continue to think about how the copyright system applies in the Internet world, where some of the assumptions underpinning traditional copyright law may not be relevant, or need to be applied by a proper analogy."

Sen. Orrin Hatch (R-UT), statement in Senate, Feb. 14.
Domain Name Registry Scam
2/13. The FTC filed a complaint [PDF] on Feb. 13 in U.S. District Court (NDGa) against a domain name registration scam operation known as the National Domain Name Registry seeking injunctive relief. The Defendants, who are not domain name registrars, sent fraudulent bulk unsolicited fax solicitations to domain name owners stating, "URGENT NOTICE OF IDENTICAL DOMAIN NAME APPLICATION BY A THIRD PARTY." The fax solicitations also offered to block the applications for a fee of $70. The District Court issued a Temporary Restraining Order [PDF] on Feb. 13 barring defendants from offering domain name registration services, freezing defendants' assets, and shutting down their web sites. The order also requires any web hosting company to deny public access to any of defendants' domains. It also requires Network Solutions and any other domain name registrar to suspend the registration of defendants' domains. The District Court also set the hearing on the motion for preliminary injunction for Feb. 26 at 3:00 PM. Darren Morgenstern of Ontario Canada is the scam artist. Stephen Cohen and Catherine McBride are the FTC attorneys handling the case. Julie Carnes is the Judge who issued the TRO. See also, FTC release and ICANN release.
Privacy Bill
2/14. Sen. Richard Shelby (R-AL) introduced S 324, the Social Security Privacy Act of 2001, a bill to amend the Gramm Leach Bliley Act, to prohibit the sale and purchase of the social security numbers by financial institutions, and to include social security numbers in the definition of nonpublic personal information. "I believe Congress has a duty to stop Social Security numbers from being bought and sold like some common commodity," said Sen. Shelby. "This legislation would basically prohibit the sale and purchase of an individual's Social Security number. I do not know anyone in this country that believes financial institutions should be making a profit by trafficking individual's Social Security numbers. While financial institutions have used the Social Security number as an identifier, the sale and purchase of these numbers facilitates criminal activity and can result in significant invasions of individual privacy."
2/15. Feb. 15 was the deadline to submit comments to the FCC in response to its Notice of Proposed Rulemaking (NPRM) regarding implementation of the Children's Internet Protection Act [PDF]. This statute provides that in order to be eligible to receive FCC e-rate subsidies, schools and libraries that have computers with Internet access must have in place certain Internet safety policies, such as the use filtering software. The ACLU and EPIC submitted a comment. They stated that "In our view, CHIPA itself is facially unconstitutional. We anticipate filing a lawsuit to have portions of the law declared unconstitutional."
2/15. Consumer Reports published a report on filtering software. It concluded that "In some cases, filters block harmless sites merely because their software does not consider the context in which a word or phrase is used. Far more troubling is when a filter appears to block legitimate sites based on moral or political value judgments." It also found that "Most of the products we tested failed to block one objectionable site in five." The ITAA responded that the report "falls short in fairly characterizing the utility of these consumer tools, and raised questions about the methodology of the analysis." See, ITAA release.
More News
2/15. The U.S. Court of Appeals (4thCir) issued its opinion in Hunt Masters v. Landry's Seafood Restaurant, a case involving trademark law. Both parties operate crab restaurants in Charleston, SC. One filed suit against the other claiming that the use of the term "crab house" infringed its common law service marks. The District Court rejected the claim, and the Appeals Court affirmed.
2/15. The FCC announced that it denied an application for review of its Cable Service Bureau's denial in part of a request for records pertaining to the FCC's AT&T MediaOne antitrust merger review proceeding. The Media Access Project, Consumers Union, and Consumer Federation of America had requested, pursuant to the Freedom of Information Act, records related to ex parte presentations made during the AT&T MediaOne review.
2/15. The Senate Judiciary Committee held over its mark up of the bankruptcy reform bill.
2/15. The NTIA and FCC hosted a public meeting between government and the private sector regarding Third Generation (3G) wireless services. See, agenda.
2/15. The SIIA released its analysis of data published by the Census Bureau on the information services sector of the economy. The SIIA concluded that the data "shows a marked increase in software and information industry revenue between 1998 and 1999. ... software and information revenue totaled $95.4 billion in 1999, an 11.6% increase over 1998. Software revenue accounted for $80.9 billion, an increase of 11.3% over 1998, and information revenue totaled $15.4 million reflecting an increase of 14.9%." See also, SIIA release.
2/8. The U.S. District Court (WDNY) sentenced Samuel Williams and Dion Wilson for conspiracy to commit wire fraud and to transport stolen property. The defendants, while employed by SoftBank (now ClientLogic) illegally shipped company computer hardware and software totaling more than $700,000 by fraudulently authorizing no-charge shipments of computer products from SoftBank's warehouse to drop locations throughout the Buffalo area. Williams and Wilson were sentenced to 24 and 8 months of incarceration, respectively. See, DOJ release.
Spam Bill
2/14. Rep. Heather Wilson (R-NM) and Rep. Gene Green (D-TX) introduced HR 717, the Unsolicited Commercial E-Mail Act of 2001. Rep. Wilson sponsored a similar spam bill in the 106th Congress; it passed the House, but not the Senate. The bill regulates unsolicited commercial electronic mail (UCE). The bill criminalizes intentionally sending UCE  with false "domain name, header information, date or time stamp, originating electronic mail address, or other information identifying the initiator or the routing of such message". The bill requires accurate return addresses on UCE, prohibits sending UCE to someone after they have asked to be removed from a distribution list, requires UCE to be labeled, requires ISPs to let their customers opt out of getting UCE if the ISP profits from allowing it into its system. The bill also provides civil court remedies to ISPs, UCE recipients, and the FTC. The bill also provides ISPs immunity for good faith actions which block email.
EU US Trade
2/15. Guenter Burghardt, head of the European Commission's delegation to the U.S. gave a speech at the Sanford Institute of Public Policy at Duke University titled "Prospects for EU-US Trade Relations." He addressed privacy; "On data protection, the EU is under strong pressure from its citizens to adopt much stricter control over access to personal data than is the case in the US Interestingly, US public opinion and that of some US CEOs have moved towards the European position on this issue, resulting in agreement on adoption of the "safe harbor" principle." He also addressed the dispute over the U.S. Foreign Sales Corporation (FSC) tax regime. The FSC regime, and the replacement bill enacted last year, benefits U.S. high tech exporters. Also, if this dispute is not resolved, the EU may impose retaliatory tariffs on U.S. high tech exports. Burghardt stated that FSCs "allow US firms to benefit from 50% tax exemptions for their exports, amounting to tax breaks totaling as much as $4.5 billion in 1999. This is a sum almost 10 times greater than the trade impact of the banana, beef hormone, and aircraft hushkit disputes combined. The FSCs constitute a subsidy to exports which the EU and other parties have argued is not compatible, and the WTO has ruled against this arrangement. Replacement legislation has been proposed by the US, which the EU believes insufficient to meet the requirements established by the WTO. A provisional ruling on the new legislation is expected no later than May 21." He also stated that "The ability of the new Administration to win approval of fast-track or trade promotion authority from Congress, however, is far from certain."
10:00 AM - 12:00 NOON. The FCC's WRC-03 Advisory Committee will hold its second meeting. The purpose of the meeting is to continue preparations for the 2003 World Radiocommunication Conference. See, notice in Federal Register. Location: FCC, 445 12th Street, SW., Room TW-C305, Washington DC.
12:00 NOON. Deadline to submit comments to the U.S. Trade Representative regarding countries that deny adequate and effective protection of intellectual property rights. Section 182 of the Trade Act of 1974 requires the USTR to identify countries that deny adequate and effective protection of IP rights or deny fair and equitable market access to U.S. persons who rely on IP protection. This provision is also referred to as "Special 301". See, request for comments in Federal Register, Jan. 16, 2001, Vol. 66, No. 10, at Pages 3640 - 3641.
12:00 NOON. Jodie Bernstein, Director of the FTC's Bureau of Consumer Protection, will speak at the Cosmos Club Legal Affair Committee Forum on Privacy on "The Challenge of Internet Privacy." Location: The Cosmos Club, 2121 Massachusetts Ave., NW, Washington DC.
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