Tech Law Journal Daily E-Mail Alert
June 11, 2001, 8:00 AM ET, Alert No. 205.
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U.S. Has Jurisdiction over French Defendants in Yahoo v. LICRA
6/7. The U.S. District Court (NDCal) issued an Order Denying Motion to Dismiss [PDF] in Yahoo v. LICRA, holding that Yahoo's declaratory judgment action may proceed to the merits. Yahoo filed a complaint in the District Court seeking a declaratory judgment that an order of a French court (that Yahoo render impossible access by people in France to certain content of the Yahoo web site) is unenforceable in the U.S. as contrary to the Constitution.
Yahoo is a Delaware corporation based in San Jose, California. The French defendants, LICRA and UEJF, who had sued Yahoo in a French court, sought to avoid the jurisdiction of the U.S. Courts when Yahoo sued them. The French defendants filed a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction. The District Court denied the motion to dismiss, holding that it had personal jurisdiction over the defendants under California's long arm jurisdiction statute, which permits a court to exercise jurisdiction to the full extent authorized by the Due Process Clause of the Constitution. The Court stated that the purposeful availment requirement was met because defendants had written a demand letter to Yahoo in California, used U.S. Marshals in California to serve papers on Yahoo, and sought an order of the French court directing Yahoo's operations in California.
Free speech and technology industry advocates oppose the order of the French court. See, for example, amicus brief [PDF] of the Center for Democracy and Technology and other groups. They wrote: "The French judgment before this Court places our tradition of free expression in jeopardy. It represents a direct attempt by a foreign nation to apply its law extraterritorially to restrict the freedom of expression of U.S.-based online speakers who are protected by the First Amendment. It does so because the Plaintiff, Yahoo! Inc. ("Yahoo!"), has chosen the Internet as its means of communication."
PPI Advocates National E-Commerce Strategy
6/8. The Progressive Policy Institute, a Democratic think tank, released a report [PDF] titled "The Failure of Cyber-Libertarianism: The Case for a National E-Commerce Strategy." The report states that "While cyber- conservatives resist government action, cyber- liberals focus principally on regulation and redistribution, rather than on fostering the growth of e-commerce. They advocate immediate taxation of e-commerce sales, strict regulations on privacy and consumer protection, and limited intellectual property protection on digital content. Moreover, for the left, government's most important role is addressing the digital divide."
The report continues that "limiting an Internet and digital agenda to simply a no-tax and deregulatory regime, as the right would advocate, or to a digital divide agenda, as the left proposes, will not take us far enough or fast enough toward the goal of a society and an economy where digital technologies are widely and extensively used." It concludes that "government needs to intervene in areas where market failures and other limitations lead to less than optimal outcomes" and that there should be "a national e-commerce strategy". The report specifically advocates that the government fund research and development, resist middlemen who seek to block disintermediation, promote e-government, promote free trade, and promote international rules affecting e-commerce.
Robert Atkinson, who wrote report, will also speak on the same subject at a PPI sponsored event at 2:30 PM today in Room 121 of the Cannon Building. See, notice.
Senate Passes TEACH Act
6/7. The Senate passed S 487, the Technology Education and Copyright Harmonization (TEACH) Act by unanimous consent. 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 U.S. 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.
Sen. Pat Leahy (D-VT), a sponsor of the bill, stated on the Senate floor that "This legislation will help clarify the law and allow educators to use the same rich material in distance learning over the Internet that they are able to use in face-to-face classroom instruction. The Senate has been focused on education reform for the past two months. The legislation we report today reflects our understanding that we must be able to use new technologies to advance our education goals in a manner that recognizes and protects copyrighted works."
Sen. Orrin Hatch (R-UT), another sponsor of the bill, stated that "Distance education, and the use of high technology tools such as the Internet in education, hold great promise for students in States like Utah, where distances can be great between students and learning opportunities. ... Any education reforms moved in the Congress this year should include provisions that help deploy high technology tools, including the Internet, ..."
Trade and Fast Track
6/7. Rep. Phil English (R-PA) gave a speech in the House regarding trade negotiating authority of the President. He stated that "the President of the United States, the leader of the free world and representative of the largest single economy on the planet, has lacked the authority to negotiate trade agreements, agreements that could pry open foreign markets, reduce and even eliminate unfair trading practices and create and preserve more jobs here at home. All of this is beyond the reach of the President of the United States." He also stated that "All around us, our trading partners, tired of U.S. excuses and delays, are joining and forming new trade alliances without us. Europe is forming new trade pacts all across Latin America, South America and North Africa. The nations of East Asia are actively working to form a new regional combine. America is not even a party to these discussions." Also, he again promoted HR 1446, the Standard Trade Negotiating Authority Act, which he introduced on April 4, 2001. See, Congressional Record, June 7, at page H2985.
New Documents
USDC: Order in Yahoo v. LICRA re personal jurisdiction, 6/7 (PDF, CDT).
Smith: H Res 159 re P3P, 6/7 (HTML, LibCong).
Moore: speech re trade and new round of multilateral trade negotiations, 6/8 (HTML, WTO).
PPI: report advocating federal e-commerce policy, 6/8 (PDF, PPI).
USCA: opinion in Small Business in Telecommunications v. FCC re FCC orders pertaining to 800 MHz Specialized Mobile Radio, 6/8 (HTML, USCA).
Computer Export Controls
6/8. The Center for Strategic and International Studies (CSIS), a Washington DC think tank, held a press conference to release a report titled "Computer Exports and National Security in a Global Era: New Tools for a New Century." (See, Executive Summary [PDF].) The report recommends ending export controls on computers and microprocessors. The speakers were John Hamre, who is the President and CEO of the CSIS and a former Defense Department official in the Clinton administration, Brent Scowcroft, who is a trustee of the CSIS and a former National Security Adviser for the elder President Bush, and James Lewis, who is the author of the report. See also, CSIS release.
The report and the speakers state that current export controls on computer hardware that are based on MTOP levels are no longer relevant or useful. James Lewis stated that the capacity of a computer is not important. First, people can cluster computers together with readily available software to obtain supercomputing capacity. Second, the Internet can be used to create virtual supercomputers. Third, the amount of capacity needed for most defense design work is less than that of some current off the shelf laptops. John Hamre stated that not only has the technology changed, but the threats faced by the U.S. have changed. He said that there ought to be export controls, but not on computer hardware. He stated that there should be controls on precursor chemicals for chemical weapons, missile technology, biological weapons, genetic sequencing equipment, and proprietary software used for certain defense related functions. Brent Scowcroft said the the current export control regime "has largely seen its day." It was based on the old cold war conflict. Today, the export policy is trying "to play King Canute" and hold back the tide, said Scowcroft.
There are two bills pending in the Congress that would reform the export control regime, S 149, the Export Administration Act of 2001, and HR 1553, and untitled bill. S 149, sponsored by Sen. Mike Enzi (R-WY), is a major overhaul of export control laws. It passed the Senate Banking Committee on March 22, 2001 by a vote of 19-1. However, it faces opposition in the Senate from Sen. Fred Thompson (R-TN), Sen. John Warner (R-VA), and Sen. Richard Shelby (R-AL). HR 1553 is a short bill sponsored by Rep. David Dreier (R-CA) that would simply end export controls on high performance computers.
P3P Resolution Introduced in House
6/7. Rep. Adam Smith (D-WA), Rep. Cal Dooley (D-CA), Rep. James Moran (D-VA), Rep. Ellen Tauscher (D-CA), and Rep. Richard Larsen (D-WA) introduced H Res 159, a resolution expressing the sense of the House that machine readable privacy policies and the Platform for Privacy Preferences Project specification, commonly known as the P3P specification, are important tools in protecting the privacy of Internet users. The resolution further states that commercial, nonprofit, Congressional, and federal web sites should deploy P3P compliant privacy policies. The resolution was referred to the House Commerce Committee, House Administration Committee, and the House Government Reform Committee.
"One of the key elements of the privacy debate and something that often gets lost in the shuffle is the need for consumers to be able to effectively manage their personal information online," said Rep. Smith in a release. "The P3P specification fills this need because it allows consumers to make decisions about how much information they want to share with web site operators. As Congress considers privacy legislation, P3P is an immediate way to address consumer concerns without onerous regulation."
The P3P is developed by the World Wide Web Consortium, which describes it as "an industry standard providing a simple, automated way for users to gain more control over the use of personal information on Web sites they visit." Not all groups are enthusiastic about the P3P. See, for example, report by the EPIC and Junkbusters titled "Pretty Poor Privacy: An Assessment of P3P and Internet Privacy."
Privacy and DOD Web Sites
6/7. Rep. Jay Inslee (D-WA) gave a speech in the House regarding online privacy. He stated that "We just received the other day the audit report of the Department of Defense Web sites. We found disturbing information. Of 400 sites that were reviewed, over a quarter of them had privacy violations where Americans' privacy rights were being abused by Federal agencies. There were 128 sites that had unauthorized use of cookies which is essentially a system used to collect personal information on your system placed there by a government Web site. There were 100 sites that had no privacy notice. Perhaps most disturbing, there were seven sites where the government agencies had used Web bugs which essentially are capable of tracking an individual's uses of the Internet." See, Congressional Record, June 7, at page H2961.
More News
6/8. The U.S. Court of Appeals (DCCir) issued its opinion in Small Business in Telecommunications v. FCC, a petition for review of FCC orders pertaining to 800 MHz Specialized Mobile Radio (SMR) service. The Court of Appeals dismissed the petition for review with respect to the Upper Channel First Reconsideration Order and denied the petition with respect to the Lower Channel Report and Order and the Lower Channel Reconsideration Order.
6/8. The U.S. Court of Appeals (FedCir) issued its opinion in Acromed v. Sofamor, affirming the District Court's JMOL in this patent infringement action involving spinal surgery technology.
6/8. The U.S. Court of Appeals (FedCir) issued its opinion in Apotex v. Merck, a patent infringement suit. The Appeals Court affirmed the District Court's grant of summary judgment to Merck holding that the claims of two patents are invalid. The patents in suit, U.S. Patents 5,573,780 and 5,690,962, relate to a process for producing a formula for use in treating high blood pressure.
6/8. WTO Director General Mike Moore gave a speech in Geneva, Switzerland, titled "Promoting Openness, Fairness and Predictability in International Trade for the Benefit of Humanity." He again advocated the launch of a new round of multilateral trade negotiations.
6/10. The ICANN published in its web site an online survey being conducted by its Domain Names Supporting Organization (DNSO) regarding the WHOIS system.
6/8. Napster appointed Jonathan Schwartz to the new post of General Counsel. He was previously Principal Associate Deputy Attorney General U.S. Justice Department. See, Napster release.
Intel v. Intergraph
6/8. The U.S. Court of Appeals (FedCir) issued its opinion in Intel v. Intergraph, upholding the District Court's judgment for Intel on the issue of violation of antitrust laws. The Appeals Court previously held in Intergraph v. Intel, 195 F.3d 1346 (Fed. Cir. 1999), aka Intel I, that Intel did not violate the antitrust laws by withholding certain proprietary information and product samples from Intergraph, following upon Intergraph's assertion of its Clipper patents against Intel products. On remand, the District Court then held that Intel I precluded relitigation of the antitrust issues. Intergraph appealed. The Appeals Court affirmed in a short opinion. Intergraph's patent infringement and other claims are still pending.
Today: Mon., June 11
The House is not in session.
10:30 AM - 12:00 NOON. The FCC's Office of Engineering and Technology will provide a tutorial on the use of graphical models (GMs) for speech recognition. GMs are flexible statistical abstractions that offer promising new approaches to automatic speech recognition. See, FCC notice. Location: FCC, 445 12th St. S.W., Room TW-C305, Washington DC.
2:30 - 4:00 PM. The Progressive Policy Institute (PPI) will host a panel discussion titled Do We Need a National E-Commerce Strategy? RSVP to Rick Coduri of the PPI at 202-608-1245 or rcoduri@dlcppi.org. Location: Room 121, Cannon House Office Building Washington DC. The speakers will be Rob Atkinson (PPI's Technology and New Economy Project), Mark Cooper (Consumer Federation of America), and Jeff Eisenach (Progress & Freedom Foundation).
8:15 PM. Commerce Secretary Donald Evans will speak on free trade and trade promotion authority at a dinner at the Woodrow Wilson International Center for Scholars. See, DOC release. Location: 1300 Pennsylvania Ave., NW, Washington DC.
Tomorrow: Tues., June 12
8:30 AM - 5:00 PM. The American Antitrust Institute will hold its 2nd Annual Conference. See, agenda and registration page. (The price to attend is $600.) Location: National Press Club, 529 14th Street, NW, Washington DC. The schedule is as follows:
  8:50. Keynote Address by Mike Scherer.
  9:30. Panel titled "Antitrust in the New Economy".
Norman Hawker will moderate; Lawrence Sullivan will address "The New Economy: Has Competition Policy Become Irrelevant?"; James Langenfeld will address "An AAI Position on Intellectual Property".
  10:50. Panel titled "In the Arena". Jonathan Cuneo will moderate; Arthur Kaplan will address "Antitrust as a Public Private Partnership: Case Study of the NASDAQ Litigation"; Stephen Ross will address "A Report of the AAI Committee on Sports and Antitrust".
  11:45. Reception.
  12:30. Luncheon. FTC Chairman Timothy Muris will speak.
  1:45. Panel titled "Mergers". Robert Lande will moderate; John Kwoka will address "The Reinvigoration of Potential Competition Doctrine"; Robert Skitol will address "Moving Toward Guidelines for the Merger Consent Decree Process".
  3:15-4:45 Panel titled "The Courts and Antitrust." Rudolph Peritz will moderate; Warren Grimes will address "The Importance of the Kodak Case"; and William Kovacic will address "The Judiciary and Prospects for Post-Chicago Antitrust".
9:00 AM. The Bureau of Export Administration's Regulations and Procedures Technical Advisory Committee (RPTAC) will hold a meeting, the first part of which will be open to the public, and the second part of which will be closed. The RPTAC advises the BXA on the implantation of the Export Administration Regulations (EAR). Location: Room 3884, Hoover Building, 14th Street between Constitution and Pennsylvania Avenues, NW., Washington DC. See, notice in Federal Register, May 29, 2001, Vol. 66, No. 103, Pages 29079 - 29080.
11:30 AM - 4:00 PM. The Information Technology Association of America's Immigration Policy Committee hold a meeting. The first portion of the meeting will be held at the ITAA's headquarters at 1401 Wilson Blvd., Arlington, VA. It will be chaired by John Brendel (VP and Counsel of iGate Capital). The second portion of the meeting will be held in Room 5320, Conference Room 6, Department of Labor, 200 Constitution Ave., NW, Washington DC, and will include Department of State, Immigration and Naturalization Service, and Department of Labor officials. See, ITAA notice.
12:30 PM. FTC Chairman Timothy Muris will be the luncheon speaker at the 2nd Annual Conference of the American Antitrust Institute. Location: National Press Club, Ballroom, 529 14th Street, NW, Washington DC.
2:00 PM. The House Judiciary Committee's Subcommittee on the Constitution will hold an oversight hearing titled "Constitutional Issues Raised by Recent Campaign Finance Legislation Restricting Freedom of Speech." Location: Room 2141, Rayburn House Office Building.
2:30 PM. The House International Relations Committee will hold a hearing titled "The Export Administration Act: The Case for Its Renewal (Part II)". Location: Room 2172, Rayburn House Office Building.
4:00 PM. The House Judiciary Committee's Subcommittee on Crime will hold an oversight titled "Fighting Cyber Crime: Efforts by Federal Law Enforcement." Location: Room 2237, Rayburn House Office Building.
6:00 - 8:00 PM. The Federal Communications Bar Association's Professional Responsibility Committee will host a CLE Seminar titled Ethics in the Electronic Age--Confidentiality, Diligent Representation, Privilege and More. The scheduled speakers are Thomas Morgan (GWU Law School), Mark Foster and Deborah Jeffrey (Zuckerman Spaeder), and John Quale (Skadden Arps). The price to attend is $60 (members) or $80 (non-members). RSVP to Arlice Johnson at arlice@fcba.org. Location: Wiley Rein & Fielding, 10th Floor Conference Room, 1750 K Street, NW, Washington DC.
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