Tech Law Journal Daily E-Mail Alert
June 4, 2001, 8:00 AM ET, Alert No. 200.
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CDT Criticizes Anti Spam Bills
6/1. The Center for Democracy and Technology (CDT) issued a report criticizing the version of HR 718 that was adopted by the House Judiciary Committee on May 24. HR 718, the Unsolicited Commercial Electronic Mail Act of 2001, was introduced by Rep. Heather Wilson (R-NM), Rep. Gene Green (D-TX) and others on February 14. It was amended by the House Telecom Subcommittee, and again by the full House Commerce Committee. The version approved by the House Judiciary Committee is substantially different. It includes an amendment offered by Rep. Melissa Hart (R-PA) that would require that senders of unsolicited commercial e-mail to label all e-mail containing sexually oriented material. The CDT report states that the Hart amendment "would set a terrible precedent. It is fundamentally distinct from the requirement prohibiting false header information, which applies to all commercial email, regardless of content and which is subject to objective determination. In contrast, mandatory content labeling is a form of forced speech, which is as offensive to the Constitution as forced silence. And deciding when something is properly labeled or not involves the government directly in the type of picking and choosing among otherwise legal content that is also incompatible with the First Amendment." The CDT report also supports "anti-spoofing provisions", which are in both the Commerce and Judiciary versions of the bill, but not the criminal penalties. The CDT report also opposes "federalization of ISP terms of service", which is in the Commerce version.
DC Circuit Affirms FCC in CNM v. FCC
6/1. The U.S. Court of Appeals (DCCir) issued its opinion in Coalition for Noncommercial Media v. FCC, a petition for review of the FCC's order swapping the status of two television channels licensed to the Western New York Public Broadcasting Association. The petition was denied.
People and Appointments
5/21. The USPTO named Douglas Bourgeois its new Chief Information Officer. Before joining the federal service and USPTO, Bourgeois was the Managing Director of Customer Service Technology at Federal Express. He has also worked as an engineer and program manager of aerodynamic testing at Allied Signal Aerospace Company. See, release.
6/1. U.S. Attorney General John Ashcroft appointed Patrick O'Toole interim United States Attorney for the Southern District of California. He succeeds Gregory Vega who resigned effective May 31. O'Toole has been with the United States Attorney's office in San Diego since 1982. See, release.
6/1. The World Intellectual Property Organization's Coordination Committee approved proposals by Director General Kamil Idris to appoint two new Deputy Directors General and extend the mandates of two current Deputy Directors General and two Assistant Directors General. The Committee supported the nominations of Ambassador Philippe Petit of France and Ambassador Rita Hayes of the U.S. to the posts of Deputy Director General. The Committee also extended the mandates of Roberto Castelo of Brazil and Shozo Uemura of Japan. The Committee also extended the terms of Francis Gurry of Australia and Geoffrey Yu of Singapore as Assistant Directors General. See, release.
Normal Trade Relations Status for the PRC
6/1. President Bush notified the Congress of his intent to extend Normal Trade Relations status to the People's Republic of China. Also, Secretary of State Colin Powell wrote that "The president's action is necessary despite passage of legislation last October to give permanent normal trade relations status to China, because China must accede to the World Trade Organization before permanent status takes effect. That accession has not yet happened, though negotiators from many countries are hard at work on it right now." See, Powell statement. Bush also released a statement in which he said that "Normal Trade Relations status is important if we are to promote American values of transparency and accountability and ensure that the Chinese government adheres to the rule of law in its dealings with its own people as well as with the international community." See also, Bush's letter to Congress, and memorandum of Secretary of State Powell.
New Documents
USCAopinion in Clicks Billiards v. Sixshooters, a trade dress infringement, 6/1 (PDF, USCA).
USCA: opinion in Coalition for Noncommercial Media v. FCC, 6/1 (HTML, USCA).
McCormick Picked to Head USTA
6/1. The U.S. Telecom Association (USTA), a trade association which represents the baby Bell companies, named Walter McCormick to be its new President and CEO. He replaces Gary Lytle, who had briefly been Interim President and CEO following Roy Neel's resignation. Neel, who is a longtime friend and advisor of Al Gore, announced his departure after Gore lost the 2000 election. McCormick, in contrast, has Republican ties. McCormick was previously President & CEO of the American Trucking Associations. Prior to that he was a partner it the Washington DC office of the law firm of Bryan Cave, where he was head of the regulatory affairs group. Before that he was General Counsel of the Transportation Department during the Presidency of the elder George Bush. He served under Transportation Secretary Andrew Card, who is now the younger George Bush's Chief of Staff. And before that, he was on the staff of the Senate Commerce Committee, which has jurisdiction over telecommunications issues, and oversees the FCC. He was the General Counsel of the Commerce Committee in the 99th Congress. The Democrats regained control of the Senate after the 1986 elections. McCormick then became the Republican Staff Director and Chief Counsel in the 100th, 101st, and 102nd Congresses. The USTA is currently lobbying for passage of a regulatory relief bill for the baby Bells sponsored by Reps. Tauzin and Dingell, HR 1542. See, USTA release.
ITAA Opposes California Discovery Bills
6/1. The Information Technology Association of America (ITAA) sent a letter [PDF] to California State Assembly Speaker Bob Hertzberg and Senate President Pro Tem John Burton opposing Assembly Bill 36 and Senate Bill 11. The letter states that "Simply by filing a lawsuit, intellectual property, business plans, employee emails, and medical records would be made public -- without a requirement for evidence of wrongdoing. Trial lawyers are proposing this self serving legislation under the guise of consumer protection. However, this is nothing more than a legal gimmick that will provide them more efficient ways to force settlement and to line their pockets." ITAA President Harris Miller stated in a separate release that "The technology industry's most valued assets -- intellectual property and other proprietary information -- will disappear when disclosed to competitors and the public under these bills. They are an attempt by certain California lawyers to line their pockets by holding the high tech industry hostage to frivolous claims and forcing fast settlements rather than risk exposure of core business models and ideas. It is the height of hypocrisy that they would push this legislation under the guise of consumer protection."
PSINet Files Chapter 11 Petition
6/1. PSINet filed a Chapter 11 bankruptcy petition in U.S. Bankruptcy Court (SDNY). In addition, four Canadian subsidiaries filed for protection under the Companies' Creditors Arrangement Act statutes in the Ontario Superior Court of Justice. See, release.
CO Publishes Rule Changes
6/1. The Copyright Office of the Library of Congress published its final regulations for filing a claim to royalties collected under the cable statutory license, 17 U.S.C. 111, and the satellite statutory license, 17 U.S.C. 119. Under the new rules, a party who files a joint claim on behalf of multiple copyright owners must list the name and address of each copyright owner to the joint claim. The regulations take effect on July 1, 2001. See, notice in the Federal Register, June 1, 2001, Vol. 66, No. 106, at Pages 29700 - 29704. See also, PDF copy in Library of Congress web site.
FEC Fines PACs
6/1. The Federal Election Commission (FEC), the agency responsible for enforcing federal campaign finance law, assessed civil penalties against 33 entities for filing late reports during the 2000 election cycle. It fined the E*Trade Group Inc. PAC $1,725 for filing a late October Quarterly 2000 report. The FEC also fined the Viacom International Inc PAC $800, and the Cincinnati Bell Inc Federal Political Action Committee $425, for filing late their October Quarterly 2000 reports. See, FEC release.
More News
5/31. President Bush extended the life of the President's Information Technology Advisory Committee for two more years. See, release.
6/1. The Office of Personnel Management (OPM) approved a request for a special pay scale by the USPTO for patent examiner and patent examiner related positions. See. USPTO release.
5/31. Lynn Turner, Chief Accountant of the SEC gave a speech on revenue recognition.
9th Circuit Rules in Trade Dress Case
6/1. The U.S. Court of Appeals (9thCir) issued its opinion [PDF] in Clicks Billiards v. Sixshooters, a trade dress infringement case. Clicks Billiards is a Texas corporation that operates a chain of billiards halls in the Southwest, including two in Phoenix, Arizona. Sixshooters is an Arizona corporation that hired a key employee of Billiards, and then opened a single billiards hall in Phoenix modeled after Clicks' halls. Clicks filed a complaint against Six in U.S. District Court (DAriz) under the Lanham Act, 15 U.S.C. 1051 et seq., alleging that Six infringed its trade dress. The district court granted summary judgment to Six, finding that Clicks had not presented sufficient evidence to raise a triable issue of fact on the basic trademark issues of functionality, secondary meaning, and likelihood of confusion. The Appeals Court reversed and remanded.
Neither the House nor the Senate is in session.
8:00 -10:00 AM. The Electronic Privacy Information Center (EPIC) and Harvard Information Infrastructure Project (HIIP) will host two panel discussions. Registration begins at 8:00 AM. Opening addresses by Deborah Hurley (HIIP), Marc Rotenberg (EPIC), and John Anderson begin at 8:15 AM. The first panel, titled "The Internet and Jurisdiction", begins at 8:30 AM. The second panel titled "Privacy and Global Society", begins at 9:15 AM. Location: National Press Club, First Amendment Lounge, 529 14th St. NW, 13th Floor, Washington DC.
8:30 AM. The EPIC and HIIP will host an academic panel discussion on jurisdictional questions brought about by Internet commerce. The speakers will be:
  Julie Cohen (Georgetown Univ. Law Center).
  Jamie Boyle (Duke Univ. School of Law).
  Dave Farber (Univ. of Pennsylvania).
  Michael Geist (Univ. of Ottawa Law School).
  Pam Samuelson (Univ. of California at Berkeley).
  Barbara Simons (Assoc. for Computing Machinery).
9:15 AM. The EPIC and HIIP will host an academic panel discussion on the prospects for global privacy protection by both legal and technological means. The speakers will be:
  Anita Castellitto (Univ. of Pennsylvania School of Law).
  Simon Davies (Privacy International).
  Whitfield Diffie (Sun Microsystems).
  Oscar Gandy (Univ. of Pennsylvania).
  Austin Hill (Zero- Knowledge Systems).
  Robert Smith (Privacy Journal).
  Paul Schwartz (Brooklyn Law School).
9:30 AM - 12:00 NOON. The U.S. State Department's International Telecommunication Advisory Committee (ITAC) -- Telecommunication Standardization Sector (ITAC-T) Study Group A will meet. The purpose of the ITAC is to advise the State Department on policy and technical issues with respect to the International Telecommunication Union and international telecommunication standardization and development. See, notice in Federal Register, May 23, 2001, Vol. 66, No. 100, at Page 28591.
Tuesday, June 5
The House will meet at 2:00 PM for legislative business. The House is likely to consider several non technology related matters under suspension of the rules.
The Senate will reconvene at 12:00 NOON.
1:00 - 3:00 PM. The American Enterprise Institute will host a book event titled Privacy in Perspective. The author and speaker will be Fred Cate, an AEI Visiting Scholar and Indiana University Law School professor. Location: American Enterprise Institute, Wohlstetter Conference Center, Twelfth Floor, 1150 17th Street, NW, Washington DC.
2:00 PM. The House Judiciary Committee will hold a hearing on HR 1542, the Tauzin Dingell bill. Location: Room 2141, Rayburn Building. 
Evening. The Intellectual Property Owners Association (IPO) will hold its 28th annual National Inventor of the Year Award ceremony on Capitol Hill. The award will be presented by Rep. Howard Coble (R-NC), chairman of the House Courts, Internet and Intellectual Property Subcommittee. For information call the IPO office at 202-466-2396.
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