| 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." |
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| 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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