| Charles James Confirmation
Hearing |
5/2. The Senate
Judiciary Committee held a hearing on the nomination of Charles
James to be an Assistant Attorney General. If confirmed by
the Senate, 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. He cruised
through the hearing with no opposition, no criticism, and
almost no questions relevant to the Microsoft case. He
revealed little about how he would proceed.
James was introduced and praised by Sen. George Allen (R-VA)
and Sen. John Warner
(R-VA). Sen. Orrin Hatch
(R-UT), the Chairman of the Committee, called James "one
of the most qualified people for this job." He added that
"you appear to be well on your way to being
confirmed." Hatch said that "I intend to put you on
our markup for tomorrow," but any member could hold the
matter over until next week.
Sen. Maria Cantwell
(D-WA), the newly elected Senator from Microsoft's home state
of Washington, asked James about antitrust issues involving
apples -- the fruit, not the computers. She expressed her
concern about concentration in the apple processing market.
Similarly, Sen. Charles
Grassley (R-IA) devoted all of his questions to the impact
of antitrust on rural communities. He too is concerned about
increased agribusiness concentration.
Sen. Pat Leahy (D-VT),
the ranking Democrat on the Committee, asked James not to
involve himself in any matters affecting his former clients at
the law firm of Jones Day.
He also asked James not to seek recusal waivers.
Sen. Arlen Specter
(R-PA) asked James a thinly veiled question about how he will
proceed in the Microsoft case. Specter asked James for his
"views regarding the continuity of the Department."
James gave a rambling and vague response that left observers
scratching their heads and comparing their notes. "Well,
Senator Specter, it is certainly my perspective that, whenever
the Department begins a litigation, commences, if there is at
some juncture of the case, an adverse ruling, the appropriate
thing for the Department to do, and that is, is to evaluate
the nature of the ruling, and evaluate (inaudible word) the
procedural posture is, and determine whether there are
appropriate issues that can be carried forward legitimately to
an appeal, and certainly, with the, my expectation, is
(inaudible) to follow that procedure in the future." Then
James concluded, "We will look as closely as possible to
preserving victories, and rectifying defeats."
Sen. Hatch also addressed antitrust and high tech generally.
He asked, "Should the antitrust laws be applied to the
high tech industry?" James responded,
"Absolutely." Hatch also referenced "network
effects" and asked, "Do you think monopoly is more
likely to occur in high tech industries than in other
industries? And if so, what are the implications of your
conclusions for antitrust enforcement." James addressed
network effects, and added that he hopes to publish "some
clear statements of policy" -- in the future. |
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| Telecom Act |
5/2. The Senate
Judiciary Committee's Antitrust, Business Rights, and
Competition Subcommittee held a hearing titled The Telecom
Act Five Years Later: Is it Promoting Competition? Sen. Mike DeWine (R-OH)
and Sen. Herb Kohl
(D-WI), the Chairman and ranking Democrat on the Subcommittee
conducted the hearing. Both Senators suggested that it might
be time to revisit the Telecom Act of 1996. "We've been
waiting for local phone competition for five years, and we are
still being kept on hold," said Sen. Kohl. "The
biggest lesson seems to be this: Congress can't mandate
competition, and if competition doesn't make sense, laws like
the Telecom Act won't really work." He concluded:
"maybe we need to tinker with the Act a little more. We
need to ask whether the Act needs more enforcement authority
-- through antitrust laws or by the FCC -- and we also should
ask whether we need to give the Regional Bells more of an
incentive to open up their networks."
However, witnesses praised the competitive and deregulatory
provisions of the 1996 Act, and urged Congress to give it more
time. Pat Wood, Chairman of the Texas Public Utilities
Commission, stated that "the Act can work," and
discussed his State of Texas as an example. See, Wood's
prepared testimony. "We did the right thing in 1996.
Stick with it," said former FCC Chairman Reed Hundt. See,
Hundt's
prepared testimony. See also, prepared statements of other
witnesses: David
Dorman (AT&T), James
Robbins (Cox Communications), Larissa
Herda (Time Warner Telecom), and James
Ellis (SBC).
Reed Hundt also commented to reporters afterwards regarding HR
1542, the Internet Freedom and Broadband Deployment Act of
2001, sponsored by Rep. Billy Tauzin (R-LA) and Rep. John
Dingell (D-MI). He said that "a lot of people on the
Senate side think the bill is a solution in search of a
problem." He also added that even if it were passed,
"it may not happen soon enough to matter to the
businesses." |
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| New Documents |
Armey:
letter
to HHS Sec. Thompson re medical privacy, 5/2 (HTML, Armey).
CDT: letter
to Atty Gen Ashcroft re privacy issues, 5/2 (HTML, CDT).
Baucus:
address
re PNTR and China, 5/1 (HTML, State). |
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| Copyright Office Oversight
Hearing |
5/2. The House
Judiciary Committee's Subcommittee on the Courts, the
Internet, and Intellectual Property held an oversight hearing
on the U.S.
Copyright Office. Rep. Howard Coble
(R-NC), the Chairman of the Subcommittee presided. Rep. Howard Berman
(D-CA), the ranking Democrat, and Rep. Tammy Baldwin
(D-WI), a new member of the Subcommittee, also participated.
Marybeth Peters, the Register of Copyrights, was the sole
witness. See, Peters' prepared
testimony.
Rep. Baldwin asked Peters for an update on distance
learning issues. On March 7, Sen. Orrin Hatch (R-UT) and
Sen. Pat Leahy (D-VT) introduced S
487, the Technology, Education and Copyright Harmonization
(TEACH) Act. On March 13, the Senate Judiciary
Committee held a hearing on bill; Peters provided testimony.
The bill would amend §§ 110(2)
and 112
of the Copyright Act to extend the distance learning
exemptions enacted in 1976 to digital delivery media. The
TEACH Act incorporates many of the recommendations
made by the Copyright Office in 1999 in a study mandated by
the the DMCA.
Under current
law, there are exemptions for
"face-to-face" and "transmission" teaching
activities; but Internet based education is not referenced.
Peters told Baldwin that there are some differences between
the two sides -- the education community and copyright owners.
Peters said that talks began last week to work out their
differences, and "hopefully they will be able to reach an
agreement, and that will form the basis of the bill."
Rep. Coble questioned Peters regarding the Copyright Office's Section
104 proceeding. This section of the Digital
Millennium Copyright Act [PDF] directs the Copyright
Office and the NTIA to prepare a report for the Congress
examining the effects of the amendments made by Title 1 of the
DMCA and the development of electronic commerce on the
operation of §§ 109 and 117, and the relationship between
existing and emerging technology and the operation of these
sections. Peters stated that the 104 report would be
completed, "hopefully in the month of May." See
also, Copyright
Office web page on 104. |
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| Copyright Office Budget |
5/2. The Senate
Appropriations Committee's Legislative Branch Subcommittee
held a hearing on proposed budget estimates for FY 2001 for
the Library of Congress, Joint Economic Committee,
Joint Tax Committee, and the Congressional Research Service.
The Librarian of Congress, James Billington, submitted prepared
testimony on the Library of Congress, including its Copyright Office. He
stated that the "The Library requests a decrease in the
Copyright Office's Offsetting Collections Authority -- from
$23,500,000 to $21,880,000. The $1,620,000 decrease in
Offsetting Collections Authority is based on projected annual
registration receipts of $21,500,000 and the use of $380,000
from the Copyright Office no-year account."
Billington's testimony also addressed DMCA
proceedings. "The DCMA requires the Copyright Office to
conduct a rulemaking every three years on exemptions that
permit circumvention of technological access control measures
in order to engage in noninfringing uses of copyrighted works.
Two relatively narrow exemptions were granted on October 28,
2000, but at the conclusion of this process of conducting the
rulemaking, I expressed several concerns that might warrant
congressional consideration. The rapid changes in technology
may require the rulemaking process to be conducted at
intervals shorter than the triennial review enacted under the
DMCA. In addition, I ask that the Congress address the further
refinement of the appropriate criteria for assessing the harm
to noninfringing uses in scholarly, academic, and library
communities as well as guidance on the precise scope of the
term "class of works." |
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| USPTO |
5/2. Rep. Howard Coble (R-NC) stated at the oversight
hearing for the Copyright Office that he is opposed to the
diversion of USPTO user
fees to fund other government programs. "I spoke with the
President about it, in fact, ten days ago. I don't mean to be
-- you never know who is listening to you -- I don't mean to
put the President on the spot. But, he seemed to be very
understanding. And he seemed to share my concern. I don't want
to that in the Post tomorrow that I am quoting the President
as defending it. But, he said, "This doesn't seem
right." And it doesn't seem right. Well, these
exclusively, exclusive user fees, that all of a sudden become
fair game for everybody who wants to appropriate here, there,
and yonder."
TLJ asked Rep. Coble after the hearing about the next head of
the USPTO. He stated that he was aware of reports that it
would be former Rep. James Rogan (R-CA). He stated that
"I would be very comfortable with him at the helm."
Rogan was a member of the Courts and Intellectual Property
Subcommittee until he lost his bid for re-election last
November. |
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| New Bill |
| 5/1. Rep. Mark
Green (R-WI) introduced HR 1655, a bill to amend Title 18
to punish the placing of sezual explicit photographs on the
Internet without the permission of the persons photographed.
The bill was referred to the House Judiciary Committee. |
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| China PNTR |
| 5/1. Sen. Max Baucus
(D-MT) gave an address
in the Senate on U.S. China Policy. He stated that "Last
year Congress approved, by a wide margin, legislation granting
Permanent Normal Trade Relations status to China once they
join the World Trade Organization. The benefits of
incorporating China into the world trade community were clear.
American farmers, businesses, and workers would be well served
by a growing and liberalized economy in China. Economic growth
in China would, over the long term, lead to a larger middle
class making its own demands on the government for greater
accountability and personal choice, just as happened in South
Korea and Taiwan. Membership in the WTO would bring
international disciplines to the Chinese economy. And the
reformers, led by Premier Zhu Rongji, would be strengthened.
If anything, nurturing growth in our economic and trade
relationship with China is more important than ever." He
added that "we want full access for American goods and
services to the largest country in the world with the fastest
growing economy. That means completing China's accession to
the WTO, granting them PNTR, and supporting our businesses'
efforts to penetrate the Chinese economy. It does not mean
revoking China's established normal trade status." |
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| FCC Merger Reviews |
5/2. Peter
Tenhula, Senior Legal Advisor to FCC Chairman Michael Powell,
spoke at luncheon hosted by the Federal
Communications Bar Association's Telecommunications
Competition Issues Committee. He discussed Chairman Powell's
approach to merger reviews and the public interest standard.
"You will see less competitive analysis that is
duplicative of the antitrust authorities," said Tenhula.
"We are not going to spend a lot of time negotiating
conditions. We have got better things to do." However, he
added that while Powell may not have supported imposing
certain conditions in previous merger reviews, "he is
going to enforce them."
Tenhula also stated that Powell has said that the public
interest standard is "an empty vessel." But,
"that is not to say that the pendulum is going to swing
back. We have got to live with our precedents."
Nevertheless, he stated that "it is going to be more
limited" and "we are not going to legislate through
mergers." Tenhula spoke to, and answered questions from,
a group of lawyers who work for law firms, trade groups, the
FCC, and the DOJ's Antitrust Division. |
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| Privacy |
5/2. House Majority Leader Dick
Armey (R-TX) wrote a letter
to HHS Secretary Tommy Thompson regarding medical privacy
regulations. He stated that "Now that the President
has decided to finalize the medical privacy regulation under
the Health Insurance Portability and Accountability Act (HIPAA),
I write to suggest specific changes to that controversial
regulation, in hopes you will use your authority to strengthen
rather than endanger the medical privacy of all
Americans." Specifically, Armey suggested that "We
demand federal agents obtain a search warrant before going
through our ... medical records."
5/2. The CDT, EPIC, ACLU, Free Congress Foundation,
and other groups wrote a letter
to Attorney General John Ashcroft regarding three privacy
issues: Carnivore, electronic surveillance by
law enforcement, and medical records. The letter stated
that "The FBI's current use of the Carnivore system ...
threatens the privacy of electronic communications and cannot
be squared with the Fourth Amendment, the Electronic
Communications Privacy Act, or the Foreign Intelligence
Surveillance Act." The letter also stated that "The
Electronic Communications Privacy Act of 1986 and the other
surveillance statutes should be updated". Finally, the
letter stated that the HHS Department regulation implementing
HIPAA "does not meaningfully limit law enforcement access
to sensitive medical information." |
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| Today |
Day one of a two day conference of the Computer Law Association (CLA)
titled "Managing the Global Digital Information
Technology Explosion." The price is $550.00 for CLA
members and $650.00 for non-members. See, schedule and
registration form [PDF]. Location: The Monarch Hotel,
Washington DC.
Deadline to submit comments to the NTIA
regarding "the advantages accorded signatories of the INTELSAT,
in terms of immunities, market access, or otherwise, in the
countries or regions served by INTELSAT, the reason for such
advantages, and an assessment of progress toward fulfilling a
pro- competitive privatization of that organization."
See, notice
in the Federal Register, April 3, 2001, Vol. 66, No. 64,
Notices, at Pages 17686 - 17687. See also, copy
of notice in NTIA web site.
8:30 AM - 5:00 PM. The National Science Foundation's Special
Emphasis Panel in Advanced
Computational Infrastructure and Research will hold the
first of two days of closed meetings to review Distributed
Terascale Facility (DTF) proposals for financial support.
Location: Hyatt Reston, 1800 Presidents Street, Reston, VA.
See, notice in Federal Register, April 20, 2001, Vol. 66, No.
77, at Page 20337 - 20338.
9:30 AM. The Senate
Commerce Committee will hold a meeting to vote on several
bills and nominations. The Committee may vote on the Charles
James nomination to be Assistant Attorney General for the
Antitrust Division. Location: Room 253, Russell Building.
12:00 NOON - 2:00 PM. The American
Enterprise Institute will host a panel discussion titled
"Challenges Facing China's Market Reforms." The
speakers will be John Langlois (Princeton), Nicholas Lardy
(Brookings Institution), and Edward Steinfeld (MIT Sloan
School of Management). For more information, contact Joanna Yu
at 202-862-5806. Location: Wohlstetter Conference Center,
Twelfth Floor, AEI, 1150 Seventeenth Street, NW, Washington,
DC.
12:30 PM. FTC Commissioner Sheila Anthony will give a
speech to the 1st Annual Privacy and Data Security Summit on
"The Leading Forum on Confidentiality, Security,
Regulatory Requirements & Technical Tools." Location:
Crystal Gateway Marriott Hotel, Arlington, VA. |
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| About Tech Law Journal |
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