Tech Law Journal Daily E-Mail Alert
March 19, 2001, 8:00 AM ET, Alert No. 146.
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FCC News
3/16. The FCC suspended its May 19 deadline for AT&T to divest cable television assets to comply with its cable ownership caps. On March 2, the U.S. Court of Appeals (DCCir) issued its opinion in Time Warner Entertainment v. FCC overturning the FCC's cable ownership caps. However, the FCC rejected Viacom's request to suspend its 35% broadcast ownership cap by a vote 3 to 1 (Furchgott-Roth dissenting).
3/16. The FCC began the process of reallocating TV Channels 52-59 (698-746 MHz spectrum band) for new commercial wireless and broadcast services. The FCC also proposed rules for the licensing, operating, and competitive bidding of wireless and other licenses in this 48 MHz of spectrum. The FCC is reclaiming this spectrum as part of its transition of TV broadcasting from analog to digital transmission systems. The FCC vote was 3 to 1 (with Tristani dissenting in part). See, FCC release.
eFOIA
3/16. The GAO issued a report [PDF] titled "Information Management: Progress in Implementing the 1996 Electronic Freedom of Information Act Amendments". The GAO examined whether federal agencies are complying with the eFOIA amendments by asking the federal agencies if they were complying the eFOIA. The resulting report is a glossy and graphical 54 pages, but lacking the independent investigation and analysis typical of GAO reports.
3/15. Sen. Pat Leahy (D-VT) praised the FOIA and eFOIA amendments in a speech in the Senate. He stated that "Five years ago we updated FOIA's charter with the Electronic Freedom of Information Act that I proposed as a way to bring the law into the information age, recognizing that technology is dramatically changing the way government handles and stores information. The 'E-FOIA' law directs federal agencies to make the information in their computer files available to citizens on the same basis as that in conventional paper files." He added that "only constant vigilance will keep Congress from needlessly whittling away its promise to the American people. We fought back one such effort last year, and new carve-out proposals are already in the air."
More News
3/16. The EU stated that "Europe now has about as many Internet users as the US." See, release.
3/16. The Administrative Office of U.S. Courts held a hearing on the privacy and security implications of allowing public access to federal court documents via the Internet.
3/15. Rep. Robert Andrews (D-NJ) introduced HR 1047, a bill to amend the Electronic Fund Transfer Act to prohibit any operator of an automated teller machine that displays any paid advertising from imposing any fee on a consumer for the use of that machine. The bill was referred to the House Financial Services Committee.
New Documents
O'Neill: speech advocating vigilante justice for cyber criminals, 3/16 (HTML, TLJ).
NCR: complaint for patent infringement re Palm and Visor, 3/15 (HTML, TLJ).
USCA: opinion in Lyons v. Morris re copyright and trademark, 3/16 (HTML, USCA).
Milberg: complaint against New Focus, 3/16 (PDF, Milberg).
GAO: report re eFOIA amendments, 3/16 (PDF, GAO).
Quote of the Day
"So, just as a homeowner may be permitted to defend his or her home with deadly force, on occasion, when the need arises, so might in fact individuals on the net be able to use their own technical prowess to defeat these sorts of attacks."

Prof. Michael O'Neill, March 16 address re cybercrime.
Vigilante Justice for CyberCriminals
3/16. Law professor Michael O'Neill gave an address at a panel discussion on cybercrime in which he argued that private vigilante justice should be employed to reduce cybercrime. He stated that "Just as settlers in the old west couldn't necessarily always rely upon the local sheriff to provide good crime control, it may be in fact the case that Internet users may have to rely upon private parties, and third party concerns, for preventing crime, and enforcing certain criminal norms." He argued that the federal government lacks the ability to police cyberspace, and that attempting to do so would result in privacy violations. He stated that "private vigilante efforts, by for example, computer companies, software vendors, Internet servers, who are often the subject of attacks, may in fact be in the best situation, both to fend off attacks, and also to retaliate in kind." He also said that "vigilanteism was actually a fairly effective means in the old west of allowing criminal control in the absence of government intervention."
3/16. The Federalist Society's Criminal Law Practice Group hosted a panel discussion titled "Law Enforcement in Cyberspace: Who Has the Upper Hand -- the Hackers or the Cops?" The speakers were Orin Kerr of the DOJ Computer Crimes and Intellectual Property Section, Michael O'Neill of George Mason University School of Law, and Marc Rotenberg of EPIC. Kerr, a government prosecution, addressed the difficulties faced by law enforcement in detecting and prosecuting cyber criminals. Rotenberg argued for enhanced privacy protections for Internet communications, lamented the "CALEA tragedy," and criticized the FBI's Carnivore surveillance system. Both Kerr and Rotenberg rejected O'Neill's private vigilante proposal. Bill Jordan of the law firm of Alston Bird moderated.
Barney the Dinosaur
3/16. The U.S. Court of Appeals (4thCir) issued its opinion in Lyons Partnership v. Morris Costumes, a copyright and trademark case involving Barney the purple dinosaur. Defendants sold three lines of  purple animal costumes -- an unnamed dinosaur, a hippopotamus named Hillary, and a dragon named Duffy. Plaintiff, which holds trademarks and copyrights with respect to Barney, filed a complaint in U.S. District Court (WDNC) on May 2, 1997 alleging copyright and trademark infringement, as well as related a state law violations. The trial court found that the purple dinosaur and Hillary infringed plaintiff's copyrights and trademarks. However, the court also held that since plaintiff had notice of the infringement in April 1993, its claims were barred by the applicable statutes of limitations and by the doctrine of laches. The trial court held that the third costume, Duffy the Dragon, did not infringe. Reversed in part.
Patent Suit
3/15. NCR filed a complaint in U.S. District Court (DDel) against Palm and Handspring alleging patent infringement. NCR alleges that Palm's handheld computers, named Palm Pilot and Palm, and Handspring's handheld computer, named Visor, infringe two patents issued to NCR in 1987. At issue are U.S. Patent No. 4,634,845 (titled "Portable personal terminal for use in a system for handling transactions") and U.S. Patent No. 4,689,478 (titled "System for handling transactions including a portable personal terminal"). The six count complaint alleges direct patent infringement, inducement to infringe, and contributory infringement as to both patents. NCR seeks preliminary and permanent injunctive relief against both defendants, and monetary damages.
.com Trademark Registrations
3/16. The USPTO published in it web site the March issue [PDF] of USPTO Today. It includes an item titled "Registration of Domain Names as Trademarks - Looking Back, Looking Ahead," by Jessie Marshall. She wrote that the USPTO "received 28,552 applications through the end of the year 2000 that included .COM in the mark presented for registration. In the year 2000 alone, the USPTO received 12,840 of those applications."
Securities Class Actions
3/17. Several law firms that file securities class action suits filed complaints against New Focus. For example, an individual named L.A. Speck filed a complaint [PDF] in U.S. District Court (NDCal) against New Focus, and several of its officers and directors, alleging violation of federal securities laws. This plaintiff, who is represented by Milberg Weiss and other firms, seeks class action status. Count one alleges violation of  10b of the Exchange Act, and Rule 10b-5 thereunder, by all defendants. Count two alleges violation of  20 of the Exchange Act (controlling person liability) by the individual defendants. New Focus, based in San Jose, California, makes fiber optic products, including fiber amplifiers, wavelength management equipment, and optoelectronics. Milberg Weiss is a law firm that specializes in suing technology companies when their stock prices drop. New Focus's stock price closed at $16.69 per share on Friday, March 16. It was trading at over $150 last July.
FEC News
3/15. The Federal Election Commission (FEC) approved, by a vote of 5 to 1, a draft of an Advisory Opinion requested by pac.com. The FEC, which is responsible for enforcing the Federal Election Campaign Act (FECA), opined that a political action committee (PAC) may accept contributions in the form of stock. The FEC wrote in its draft that "pac.com may accept the contribution, by an individual, of stocks that are publicly traded on an exchange, subject to the limit of 2 U.S.C. 441a(a)(1)(C). The contribution would be valued at the closing price of the stock on the day of the committee's receipt. ... In order to provide a valid basis upon which the non-publicly traded stock contributed to pac.com can be valued, the Commission concludes that the factors described by the IRS for determining the fair market value (on the date the stock is deemed as contributed to the donee) of stock of a closely held corporation, or where selling prices are unavailable, should be applied." See also, Request for Advisory Opinion, Supplement 1 and Supplement 2. The FEC has not yet released the final Advisory Opinion.
People
3/16. President Bush announced his intent to nominate Samuel Bodman to be Deputy Secretary of Commerce. He is currently the Chairman and CEO of Cabot Corporation in Boston, Massachusetts. See, release.
3/15. Susan Meyer joined the Orange County office of the law firm of Latham & Watkins as Of Counsel in the Venture and Technology group. She practices intellectual property transactional law, with emphasis on licensing agreements, e-commerce issues, Internet service and large systems deals. She previously worked in the Los Angeles office of Foley & Lardner. See, release.
3/15. Andrew McBride joined the Washington DC office of the law firm of Wiley Rein & Fielding. He was previously with Cooper Carvin & Rosenthal. He will focus on state and federal communications regulation, First Amendment, copyright and general commercial litigation. See, release. Recently, he worked on the case Comcast v. Broward County, a successful challenge to the constitutionality of Broward County's open access ordinance on First Amendment grounds.
3/15. Matthew Sonsini joined the Palo Alto office of the firm of Wilson Sonsini as a partner in the corporate and securities group. He was previously a partner at Cooley Godward. He represents technology companies at all stages of their growth, as well as venture capital funds and investment banks. See, release.
3/14. Sidley and Austin announced that Scott Lassar, who is currently the U.S. Attorney for the Northern District of Illinois, will join the firm when President Bush names his successor. See, release.
3/12. Glen Kohl joined the Palo Alto office of the law firm of Cooley Godward. Kohl worked in the Clinton Treasury Department as tax legislative counsel and later as deputy assistant secretary for tax policy. He will focus on mergers and acquisitions, corporate restructurings and corporate tax matters. See, release.
3/12. Alan Albright joined the Austin office of Gray Cary Ware & Freidenrich as a partner in the intellectual property litigation group. Albright is a former U.S. Magistrate Judge and former partner in the Austin office of the law firm of Thompson Knight. See, release.
Today
Deadline to file comments with the The NTIA regarding its Notice of Proposed Rulemaking (NPRM) regarding compensating incumbent federal agency users in the 1755-1850 MHz band that may be required to modify their systems as a result of spectrum reallocation for 3G wireless uses. The NTIA released the NPRM on Jan. 17. See, TLJ story.
Deadline to file comments with the FTC regarding its premerger notification rules. See, Notice of Proposed Rulemaking (NPRM) and interim rules with request for comment. The rules, which implement the Hart Scott Rodino Act, and amendments passed last year, require the parties to certain mergers and acquisitions to file reports with the FTC and the DOJ Antitrust Division and to wait a specified period of time before consummating such transactions. The proposed rule changes include amending 801.15 to reflect the $50 million threshold.
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