|3/28. The House approved President Bush's $1.9 Trillion FY
2002 budget, by a vote of 222-205. It was a largely party line
vote. See, Roll
Call No. 70.
|Bush's High Tech Agenda
|3/28. President Bush met with high tech leaders at the White
House. He gave an address
in which he outlined his high tech agenda; it includes lower
taxes, free trade, fast track trade negotiating authority,
support for the Export Administration Act, a permanent
research and development tax credit, and education.
President Bush advocated free trade, and requested that
the Congress give him fast track trade negotiating
authority. He said that "One of the concerns is if the
economy were to slow down like ours, the protectionist
sentiments around America might start bubbling to the surface. Ours
is an administration dedicated to free trade. I hope the
Congress gives me trade promotion authority, as soon as
possible, so I can negotiate free trade agreements. We
should not try to build walls around our nation and encourage
others to do so. We ought to be tearing them down. Free
trade is good for America. And it will be good for your
industry, as well."
President Bush addressed the S
149, the Export Administration Act, sponsored
by Sen. Mike Enzi
(R-WY). The bill eases restraints on the export of most dual
use products, such as computers and software. It was amended
and adopted by the Senate
Banking Committee by a vote of 19 to 1 on March 22.
President Bush called it a "good bill." He added
that "The existing export controls forbid the sales
abroad of computers with more than a certain amount of
computing power. With computing power doubling every 18
months, these controls had the shelf life of sliced bread. They
don't work." The bill as adopted on March 22 repeals
provisions of the 1998 National Defense Authorization Act
which require the President to use MTOPS
to set restrictions on the export of high performance
President Bush advocated making the research and
development tax credit permanent. The Clinton
administration supported temporary extensions. Bush stated
that "we want the R&D credit to be permanent, and
we're working with members of the Senate to do so. A lot
of us in this administration have been in the world of taking
risk. We understand that one of the most important parts
about government policy is that there will be certainty in the
policy. And I think making the R&D credit a permanent
part of the tax code is part of creating certainty, so people
can more wisely make investments with cash flow in their
President Bush also announced his intent to appoint Floyd
Kvamme to be Co-Chair and Member of the President's
Committee of Advisors on Science and Technology. He is a
partner in the venture capital firm of Kleiner Perkins Caufield and Byers,
which is based in Menlo Park, California. He is also a major
Republican contributor. Another KPCB partner, John Doerr, was
close to the Clinton administration. See also, release.
|3/28. Sen. Charles
Grassley (R-IA) issued a statement
[PDF] on the U.S.
Jordan Free Trade Agreement (FTA) [PDF], negotiated by
the Clinton administration last year. The Senate has yet to
ratify it. Sen. Grassley, who is Chairman of the Senate Finance
Committee, said that "I look forward to the new
administration finalizing a trade agreement with Jordan."
He further suggested that the Bush administration modify the
FTA, as Clinton modified the NAFTA after it had been
negotiated by the previous Bush administration. Trade with
Jordan is not significant. However, the terms of this FTA are
important because it may set a pattern for future FTAs with
other nations. The main controversy is whether these FTA's
should contain language addressing labor and environmental
issues, as does the agreement as currently drafted. The Jordan
FTA is also significant because it contains extensive language
pertaining to intellectual property and e-commerce.
This FTA addresses patents, trademarks, copyright, and
enforcement of IPR. It
also provides that the parties will not impose new customs
duties on electronic transmissions.
|Attys Fees in Copyright
|3/27. The U.S.
Court of Appeals (2ndCir) issued its opinion
Publishing v. Playboy, an appeal from an award of attorneys
fees in a copyright case. Crescent filed a complaint in
U.S. District Court (SDNY)
against Playboy alleging that Playboy infringed its copyright
on a photograph. The District Court dismissed the case, after
Crescent conceded that it did not have the requisite proof of
copyright ownership. The Court also awarded attorneys' fees to
sponte. Crescent appealed both the decision to
award attorneys' fees, and the determination of the amount.
Vacated and remanded.
|3/28. The U.S. Court
of Appeals (8thCir) issued its opinion
[PDF] in Black
Clawson v. Kroenert, a case regarding licensing
of proprietary information. Plaintiff, Black Clawson, is a
licensee of intellectual property owned by a German
corporation, Pagendarm Technologie. The license agreement
grants it the exclusive rights to use proprietary information
in its manufacturing business in North America. Defendants
allegedly marketed products in the U.S. based on theft of the
licensed technology. Plaintiff filed suit in U.S. District
alleging violation of the RICO Act, the Lanham Act, and
various state law causes of action, including misappropriation
of trade secrets. The District Court granted summary judgment
to defendants. Reversed and remanded.
on high tech agenda, 3/28 (HTML, WH).
718 as amended on 3/28 (HTML, TLJ).
630 IS, the CAN SPAM Act, 3/27 (HTML, TLJ).
to SEC re spam in securities industry, 3/26 (HTML, Dingell).
to Members of Congress re HR 718, 3/20 (PDF, Dingell).
in Crescent Publishing v. Playboy, an appeal from an award of
attorneys fees in a copyright case, 3/27 (HTML, USCA).
in Microstrategy v. Motorola, a trademark case, 3/28 (HTML,
in Black Clawson v. Kroenert, a case regarding licensing of
proprietary information, 3/28 (PDF, USCA).
in Kee v. Rowlett, an electronic surveillance case, 3/28
re revisions to the FTC's Regulations on Organization,
Procedure and Rules of Practice, 3/28 (HTML, FTC).
re E-SIGN, the Internet, and the SEC, 3/26 (HTML, SEC).
|3/28. The House
Commerce Committee amended and adopted HR 718, the
Unsolicited Commercial Electronic Mail Act of 2001, sponsored
by Rep. Heather Wilson
(R-NM) and Rep. Gene
Green (D-TX). The Committee adopted by a voice voice,
without opposition, an amendment
in the nature of a substitute offered by Rep. Wilson. The
Committee then adopted the bill, as amended, by voice vote
without opposition. This latest version of the bill includes
new language defining how the bill affects businesses with
multiple subsidiaries and affiliates, refining the provision
allowing ISPs to sue spammers by defining the criteria that
must be met in order for an ISP to file a lawsuit, and
requiring that awards in suits brought by state attorneys
general (AGs) go to injured consumers.
Rep. Chris Cox (R-CA)
had argued at the Telecom Subcommittee mark up session on
March 21 that there should be no parens
patriae cause of action by state AGs. The
compromise embodied in the amendment adopted on March 28 is to
maintain the state AG right of action, but to require that all
"monetary amounts recovered or received by settlement or
judgment ... shall be paid directly to the persons who
incurred losses ... and no such amounts may be retained by the
State or may be used directly or indirectly to offset the cost
of such litigation." Rep. John
Dingell (D-MI) , Rep.
Al Wynn (D-MD), and Rep.
Bart Stupak (D-MI) spoke in support of the bill, but in
opposition to this limitation on state AGs. Rep. Stupak also
criticized the bill's language barring class action suits.
Rep. Chip Pickering
(R-MS), who is also a Co-Chair of the Congressional
Wireless Caucus, argued that "a wireless carrier that
offers short message service" (i.e., SMS on pagers and
cell phones) should be encompassed within the bill's
definition of "Internet access service." That is, he
wants SMS to qualify for the bill's language granting ISPs
limitations on liability and private rights of action. Rep.
Green stated that "it is not our intent to include those
in this bill." Rep. Wilson added that those are wireless
technologies that should be addressed under common carrier
law, not a spam bill.
Rep. Ed Markey
(D-MA) expressed concern that the bill's language giving ISPs
immunity for blocking e-mail also gives ISPs license to block
legitimate e-mail. He stated that "ISPs typically block
bulk e-mail transmissions, and do not ordinarily ascertain
whether such bulk e-mail represents legitimate commercial
correspondence, unsolicited commercial messages, or, as is
often the case, both such types of messages. My concern is
that the bill may unwittingly authorize certain discriminatory
anticompetitive practices in online commerce. ISPs may develop
discriminatory practices with the delivery of e-mail, and then
obtain liability protection for policies, if they can be said
to have undertaken in good faith to block spam. ... A
situation that the bill does not address is if a business, a
legitimate business, operating online, sends a mass mailing to
its own customers, having jumped through such hurdles, and
then finds that an ISP has decided to block delivery. I
believe we need to have a broader discussion in this Committee
about the repercussions of leaving the delivery of legitimate
commercial correspondence at the mercy of an ISP, especially
in those cases where such correspondence may be from
competitors of that ISP, its affiliates, or joint venture
The House Judiciary
Committee also has jurisdiction over this bill. Meanwhile,
on March 27, Sen. Conrad Burns (R-MT), the Chairman of the
Senate Communications Subcommittee, introduced S
630, the CAN SPAM Act.
|Financial Services Industry
John Dingell (D-MI) and Rep. Ed Markey (D-MA)
sent a letter
to Acting SEC Chairman Laura
Unger requesting that the SEC "initiate an immediate
investigation into securities industry use of unsolicited
"spam" e-mails." The letter was prompted by a
March 20 letter
[PDF] sent by numerous leading financial institutions and
groups to Members of Congress which argues that the private
right of action contained in the HR 718 will "discourage
the use of electronic commerce", and that the language in
the bill preempting state spam laws is too weak. The two want
to know "exactly what practices these firms are seeking
|3/28. The U.S.
Court of Appeals (4thCir) issued its opinion
v. Motorola, a trademark case involving
the phrase "Intelligence Everywhere." After
conducting various trademark searches which turned up no
conflicting trademark uses, Motorola began a global branding
campaign based on the phrase "Intelligence
Everywhere". It also filed a trademark application with
the USPTO, and registered the domain www.intelligencee
verywhere.com. Then, MicroStategy, which
had not registered the trademark "Intelligence
Everywhere", filed a complaint in U.S. District Court (EDVa)
against Motorola on Feb. 13, 2001 alleging trademark
infringement, trademark dilution, and cybersquatting.
MicroStrategy moved for a preliminary injunction, which the
District Court denied. This interlocutory appeal followed. The
Appeals Court affirmed, on the basis that MicroStrategy failed
to demonstrate that it has a valid and protectable mark; it
failed to demonstrate that it has likely used
"Intelligence Everywhere" to identify MicroStrategy
as the source of its goods or services.
|3/28. Rep. James
Greenwood (R-PA) introduced HR 1215, a bill regarding the
confidentiality of medical records and health care related
information. The bill was referred to both the House Commerce
Committee and the House Judiciary Committee.
|3/28. The U.S.
Court of Appeals (5thCir) issued its opinion
v. Rowlett, an electronic surveillance case. The
police placed an electronic surveillance microphone at an
outdoor grave site memorial service as part of their
investigation of the murder of two children. The children's
mother was eventually convicted of capital murder. The police
intercepted the conversations of Darlie Kee and Darin Routier,
the children's grandmother and father, at the service. The
police had the permission of the cemetery owner, but not the
service's attendees. They had no warrant. When Kee and Routier
learned of the surveillance, they filed a complaint in U.S.
District Court (NDTex)
against The City of Rowlett, Texas, and its police officers
Jimmy Ray Patterson and Chris Frosch, and Assistant District
Attorney Greg Davis, under 42 U.S.C. § 1983 and 18 U.S.C.
§ 2511. The District Court dismissed, and the Court of
Appeals affirmed, on the grounds that there is no reasonable
expectation of privacy regarding oral communications at a
grave site memorial service.
|3/28. The American Bar
Association's Antitrust Section is holding its annual
spring meeting in Washington DC. Outgoing FTC Chairman Robert
Pitofsky and FTC Commissioner Mozelle Thompson
spoke at the meeting on March 28.
3/28. President Bush nominated Daniel Bryant to be an
Assistant Attorney General. See, release.
3/28. President Bush nominated John Graham to be
Administrator of the Office of Information and Regulatory
Affairs at the Office of Management and Budget. See, release.
|NYT v. Tasini
|3/28. The Supreme
Court of the U.S. heard oral argument in NYT
v. Tasini, a case regarding the application of copyright
law to the republication of the articles of free lance writers
in electronic databases. The plaintiffs are free lance
authors whose articles were previously published in
periodicals. The defendants
are publishers and owners of electronic databases which have
republished their articles in electronic form. Plaintiffs
filed a complaint
in U.S. District Court (SDNY)
in 1993 alleging copyright infringment. U.S. District Court
Judge Sonia Sotomayor issued her Opinion in 1997
holding that defendants are protected by the privilege
afforded the publishers of "collective works" under
Section 201(c) of the Copyright Act. The U.S. Court of
issued its Opinion
reversing the District Court on Sept. 24, 1999.
|The House will meet a 10:00 AM. It will take up HR 6, the
Marriage Penalty and Family Tax Relief Act of 2001.
The Senate will continue its consideration of S 27, a campaign
bill sponsored by Sen. John McCain (R-AZ).
March 28-30. The American Bar
Association's Antitrust Section will hold its annual
spring meeting. See, agenda.
Location: JW Marriott Hotel, 1331 Pennsylvania Avenue, NW,
8:15 AM. Sen. Tim Johnson
(D-SD) will speak at the National
Telephone Cooperative Association's Annual Legislative
Conference. (The NTCA is meeting from March 26 through 30.)
Location: Room Ticon/York/Valley Forge, Hyatt Regency
Washington, 400 New Jersey Avenue, NW, Washington DC.
9:00-10:00 AM. USTR Robert
Zoellick will address the House
Policy Committee on the administration's trade agenda.
This committee, which is chaired by Rep. Chris Cox (R-CA), is
a Republican forum for the discussion of specific legislative
initiatives, for the enunciation of official priorities, and
for the resolution of inter-jurisdictional policy disputes.
Location: Room H-122, The Capitol.
10:00 AM. The House
Commerce Committee's Subcommittee on Telecommunications
and the Internet will hold a hearing titled FCC Chairman
Michael Powell: Agenda and Plans for Reform of the FCC.
Room 2123, Rayburn Building.
10:00 AM. The House
Ways and Means Committee's Trade Subcommittee will hold a
hearing titled Is the United States Losing Ground as Its
Trading Partners Move Ahead? Location: Room 1100,
11:30 AM. The Senate
Finance Committee will hold a hearing to on the
nominations of Kenneth Dam to be Deputy Secretary of the
Treasury, David Aufhauser to be General Counsel of the
Department of the Treasury, Michele Davis of Virginia to be an
Assistant Secretary of the Treasury, and Faryar Shirzad to be
an Assistant Secretary of Commerce. Location: Room 215,
12:15 PM. The Federal
Communications Bar Association will hold a cable luncheon.
The speaker will be Susan Eid, Legal Advisor to FCC
Commissioner Michael Powell. The price is $15. Location: NCTA,
1724 Massachusetts Ave., NW, Washington DC. RSVP to Arlice Johnson.
1:00 - 4:00 PM. The FCC's Common Carrier Bureau and Office of
Engineering and Technology will host a public forum titled
"Transmission Capability Between the Central Office and
End-Users in Next Generation Networks." Location: FCC,
Room TW-C305 (Commission Meeting Room), 445 12th Street, SW,
3:30 PM. Molly Boast, Acting Director of the FTC's Bureau of
Competition, will speak at the American Bar Association's
Antitrust Section's annual meeting. Location: JW Marriott
Hotel, 1331 Pennsylvania Avenue, NW, Washington DC.
|SEC & the Internet
|3/26. Paul Roye, Director of the SEC's Division
of Investment Management gave a speech
in Washington DC titled "Managing the Revolution" in
which he addressed the E-SIGN Act, the Internet, and
other topics. He stated that "the explosive growth of the
Internet and the movement of investors and advisers online
does not mean that our statutes do not apply to products and
services offered on the web; they apply irrespective of the
medium used to deliver these services."
|3/28. The FTC announced that it
has approved amendments to the FTC's Regulations on
Organization, Procedure and Rules of Practice. The changes
include electronic filing requirements, new procedures for
expert discovery, in camera motions and foreign subpoenas, and
changes in the format requirements for briefs. See, notice to
be published in the Federal Register.
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