Tech Law Journal Daily E-Mail Alert
March 7, 2001, 8:00 AM ET, Alert No. 138.
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Court of Appeal Affirms in Livermore Case
 3/6. The California Court of Appeal issued its opinion in Kathleen R. v. Livermore, a case brought by the mother of a child who used Internet access computers at the Livermore Public Library; she seeks to compel the library to install filtering software on children's computers at the library. The Court of Appeal affirmed the trial court's dismissal of the case. The plaintiff's original complaint against the City of Livermore asserts three novel legal theories under California state law: (1) the use of public funds to pay for children's access to pormography constitutes a "waste of public funds" under 526 of the Calif. Code of Civil Proc., (2) the library's policy constitutes a "nuisance", and (3) "premises liability." The amended complaint added a fourth theory: substantive due process. The City of Livermore argued that Section 230 of the Telecom Act of 1996 bars the action. See, respondent's brief. (See also, amicus brief filed by the ACLU Northern Cal. and PFAW, and amicus brief filed by the Calif. State Assoc. of Counties.) The Court of Appeal, like the trial court, held that the state causes of action are precluded by  230(c)(1) of the Telecom Act, which states that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." The Court of Appeal relied upon previous  230 cases, including Blumenthal v. Drudge, Zeran v. AOL, and the Mainstream Loudoun v. Loudoun cases, Loudoun I and Loudoun II. The Court also held that the claim to a "right to substantive due process also fails. The government has an interest in protecting minors from harmful materials on the Internet ... but it does not have a constitutional duty to do so." See, TLJ case summary.
Internet Voting
3/6. A report [62 pages in PDF] commissioned by the National Science Foundation (NSF) and the Internet Policy Institute concluded that "Trials should proceed in which Internet terminals are used at traditional polling places, but remote voting from home or the workplace is not viable in the near future." The report states that "remote Internet voting systems pose significant risk and should not be used in public elections until substantial technical and social science issues are addressed." It also states that "Internet-based voter registration poses significant risk to the integrity of the voting process ... ." See, release.
3/6. On The Senate Commerce Committee will hold a hearing on Wednesday morning to examine voting technology reform. Sen. John McCain (R-AZ) and Sen. Ernest Hollings (D-SC), the Chairman and Ranking Democrat on the Committee, respectively, are cosponsoring S 368, the American Voting Standards and Technology Act, that would direct the NIST to conduct a study of several voting related topics, including "any future and emerging technologies for use in elections, such as Internet voting."
New Documents
Cal.: opinion in Kathleen R. v. City of Livermore re Internet filtering, 3/6 (HTML, TLJ).
Boucher: speech re proposed changes to fair use doctrine in the context of digital media and the Internet, 3/6 (HTML, TLJ).
Patel: injunction in A&M Records v. Napster, 3/6 (HTML, TLJ).
Updated Sections
Calendar (updated daily).
News from Around the Web (updated daily).
Summary of Kathleen R. v. Livermore (updated).
Quote of the Day
"Some now foresee a time when virtually all new material will be sent to libraries on CD ROMs, with the material encrypted or guarded by passwords. In exchange for a fee for each viewing, the password may then be used. And so it is predicted that under Section 1201, what is available today on the library shelves for free will be available on a pay per use basis only. The student who wants even the most basic access to material to write his term paper will have to pay for each item that he uses."

Rep. Rick Boucher (D-VA), speech of March 6.
Boucher Proposes Changes to Copyright Law
3/6. Rep. Rick Boucher (D-VA) gave a major policy address in which he advocated changes to copyright law to "reaffirm the fair use doctrine" in the context of digital and Internet media. Rep. Boucher is a senior member of the House Courts, Internet and Intellectual Property Subcommittee, and has long been active in debating and drafting IP legislation. He criticized the anti-circumvention provisions of the Digital Millennium Copyright Act. He would like to amend the law to provide that only circumvention for the purpose of infringement be prohibited. He also stated that "the time has come for the motion picture studios to present a proposal" to protect copyright in digitally broadcast TV programs along the model that Section 1201(k) provides for VCR copying. He next proposed that the Congress "reaffirm the fair use doctrine" in six specific areas. First, the existing copyright exemption for distance learning applications in broadcast and closed circuit television should be extended to personal computers and the Internet. Second, the "the first sale doctrine should be made applicable for online sales of copyrighted material." Third, "temporary copies, which are essential to the operation of digital products and networks, should be made unequivocally lawful under the copyright law." Fourth, computer users should be permitted to back up data associated with programs. Fifth, the in store exemption that permits musical sampling in record stores should be extended to the Internet. Sixth, it should be lawful for people who buy CDs to archive the content of their music CDs on the Internet, and listen to these recordings anywhere.
3/6. The ICANN published a statement of the recommendations of its .com/.net/.org Whois Committee.
3/6. The ICANN published a statement regarding proposals to revise the agreements between the ICANN and VeriSign.
3/6. The ICANN announced that eighteen additional companies have qualified to be accredited as domain name registrars in the .com, .net and .org domains. See, release.
The ICANN will hold its next round of meetings on March 9-13 in Melbourne, Australia.
Internet Fraud
3/6. The FBI's Internet Fraud Complaint Center (IFCC) and the National White Collar Crime Center released a report [PDF] on Internet fraud trends and statistics. It states that "The IFCC began operating on May 8, 2000. Between the inception date and November 8, 2000 ... 20,014 filings were made. ... auction fraud is by far the most reported Internet fraud, comprising nearly two-thirds of all referred complaints. Non-deliverable merchandise and payment accounts for another 22% of complaints, and credit and debit card fraud make up almost 5% of complaints." See, FBI release.
More News
3/6. The RIAA appointed of Rafael Fernandez to be its Vice President of Latin Music. Previously, Fernandez worked for served 17 years at the Miami-Dade Police Department, most recently as the Major Fraud Section Commander in the Economic Crimes Bureau. He directed anti-piracy investigations in conjunction with the RIAA and the MPAA.
3/6. The FBI's NIPC released a statement in which it stated that it "is evaluating an Internet worm by the name of ... that has been propagating in the wild. The NIPC considers this to be a medium threat due to its destructive payload and mass mailing capability."
3/6. The GAO issued a report [PDF] titled "Financial Services Regulators: Better Information Sharing Could Reduce Fraud." It concluded that "a more integrated financial services industry as envisioned by the passage of the Gramm-Leach-Bliley Act highlights the need for strong information-sharing capabilities among financial services regulators."
3/6. President Bush announced his intent to nominate John Graham to be Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget. He is now a Professor of Policy and Decision Sciences at the Harvard School of Public Health and founding director of the Harvard Center for Risk Analysis. See, release.
3/5. Hou Wu Ding plead guilty to structuring currency transactions, in violation of 31 U.S.C. 5324. He made a large number of currency deposits in amounts less than $10,000 into domestic financial institutions. Of those deposits, approximately $164,797 constituted the proceeds of sales of counterfeit computer software. See also, Feb. 15 information [PDF], plea agreement [PDF], and release.
Judge Patel Issues Napster Injunction
3/5. The U.S. District Court (NDCal), Judge Patel presiding, issued its new preliminary injunction order in A&M Records v. Napster. This injunction provides that the copyright holders and Napster share responsibility for identifying infringing files, as directed by the opinion [PDF] of the U.S. Court of Appeals (9thCir) issued on February 12. The order states that "Napster is preliminarily enjoined ... from engaging in, or facilitating others in, copying, downloading, uploading, transmitting, or distributing copyrighted sound recordings in accordance with this Order." The order states that "Plaintiffs shall provide notice to Napster of their copyrighted sound recordings by providing for each work: (A) the title of the work; (B) the name of the featured recording artist performing the work ("artist name"); (C) the name(s) of one or more files available on the Napster system containing such work; and (D) a certification that plaintiffs own or control the rights allegedly infringed."
Then "Once Napster "receives reasonable knowledge" from any source ... of specific infringing files containing copyrighted sound recordings, Napster shall, within three (3) business days, prevent such files from being included in the Napster index (thereby preventing access to the files corresponding to such names through the Napster system)." See also, statement by Napster CEO Hank Barry, statement by RIAA CEO Hillary Rosen, and Warner Music Group release.
10:00 AM. Oral argument before the U.S. Court of Appeals (FedCir) in Lans v. Digital Equipment Corp., Appeal Nos. 00-1144 and 00-1358. Location: Courtroom 402.
10:30 AM. The Senate Commerce Committee will hold a hearing to examine voting technology reform. Sen. John McCain (R-AZ) and Sen. Ernest Hollings (D-SC), the Chairman and Ranking Democrat on the Committee, respectively, are cosponsoring S 368, the American Voting Standards and Technology Act, that would direct the NIST to conduct a study of several voting related topics, including "any future and emerging technologies for use in elections, such as Internet voting." Location: Room 253, Russell Building. The scheduled witnesses include:
  Bill Bradbury (Secretary of State, Oregon)
  Cathy Cox (Secretary of State, Georgia)
  Ron Thornburgh (Secretary of State, Kansas)
  Joseph Fox (Paralyzed Veterans of America)
  Wade Henderson (LCCR)
  Mary Jane O'Gara (AARP)
  Raul Yzaguirre (La Raza)
FCC Chairman Michael Powell will deliver the luncheon address at the USTA National Issues Conference. See, USTA release. Location: Mayflower Hotel, 1127 Connecticut Ave. NW, Washington DC.
2:00 - 4:00 PM. The House Science Committee will hold a hearing titled "K-12th Grade Math and Science Education: the View from the Blackboard." Location: Room 2318, Rayburn Building.
2:30 - 5:30 PM. The American Enterprise Institute will host two trade related panel discussions. The first panel is on regionalism. The scheduled speakers are Arvind Panagariya (Univ. of Maryland), Daniel Tarullo (Georgetown Univ. Law School), Sidney Weintraub (CSIS), Sarath Rajapatirana (AEI). The second panel is titled The Future of the WTO: Fast Track, Nongovernmental Organizations, and the Agenda for the Next Trade Round. The scheduled speakers include Jagdish Bhagwati (AEI), Henry Nau (George Washington Univ.), Jeffrey Schott (Inst. for Int. Economics), and Claude Barfield (AEI). Location: AEI, 12th Floor, 1150 17th Street, NW, Washington DC.
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