|Boucher & Issa
Introduce Internet Distance Learning Bill
Rick Boucher (D-VA) and Rep. Darrell Issa (R-CA)
2100, a bill to amend copyright law to facilitate distance
learning. The bill would amend §§ 110(2)
of the Copyright Act to extend the distance learning
exemptions enacted in 1976 to digital delivery media. The bill
was referred to the House
Judiciary Committee, of which both Boucher and Issa are
members. This bill is similar, but not identical, to the S
487, which the Senate passed by unanimous consent on June
7. The Senate bill, but not the House bill, contains a
requirement that the USPTO
prepare a report for the Judiciary Committees "describing
technological protection systems that have been implemented,
are available for implementation, or are proposed to be
developed to protect digitized copyrighted works and prevent
|Washington Wonks Debate
National E-Commerce Strategy
|6/11. The Progressive
Policy Institute (PPI) hosted a panel discussion titled Do
We Need a National E-Commerce Strategy? in the Cannon
House Office Building in Washington DC. The panelists were Rob
Atkinson (PPI's Technology and New Economy Project), Adam
Theier (Cato), Jeff
Eisenach (Progress & Freedom
Foundation), and Mark Cooper (Consumer Federation of
Atkinson argued for a national e-commerce strategy. See also,
[PDF] authored by Atkinson. He proposed that the federal
government should spend more on research and development, work
to resolve "chicken and egg problems" (he cited
digital certificates as an example), fight resistance of
middlemen (such as car dealers) to disintermediation by
Internet based sales, deal with threats to e-commerce from
European companies, and promote e-government.
Eisenach agreed that the federal government should spend more
on R&D, promote e-government, and play an international
leadership role. However, he criticized most of the rest of
the PPI proposal. He stated that there needs to be less
government, not more. He added that the federal government
should also repeal the excise tax on telephones and refrain
from regulating online privacy. Theier, of the libertarian
Cato Institute, criticized the PPI proposal as
"industrial policy." He argued that the government
should not be picking winning and losing technologies under
the guise of R&D funding or solving "chicken and egg
problems". He also stated that middlemen, such as car
dealers and wine distributors, represent a political failure,
and should be dealt with through Constitutional challenges in
court. Mark Cooper argued in favor of open access.
The Progressive Policy
Institute, which is a Washington DC based Democratic think
tank, also released a report
titled "Stop Subsidizing Off-line Consumers." The
report argues that the cost to many companies of providing
goods and services online is less than the cost for offline
transactions, yet prices to consumers do not reflect this. The
report cites as examples airline ticket sales, consumer
banking, and music sales. The report makes no recommendations
for government action. The report was written by Robert
|Microsoft v. Bristol
|6/11. The U.S.
Court of Appeals (2ndCir) issued its opinion
in Microsoft v. Bristol Technology vacating Judge
Hall's award of $1 Million in punitive damages based upon a
jury verdict that awarded Bristol $1 in compensatory damages.
Bristol filed its 14 count Complaint
in the U.S. District Court (DConn) against Microsoft in 1998.
12 of the counts alleged violations of federal or state
antitrust law. The jury ruled for Microsoft on all of these
counts. A very small part of the case was a claim that
Microsoft violated the Connecticut Unfair Trade Practices Act
(CUTPA). Last July, the jury found that Microsoft had violated
CUTPA, but awarded Bristol only $1 in compensatory damages.
U.S. District Court Judge Hall then awarded Bristol
$1,000,000.00 in punitive damages. Subsequently, the parties
reached a settlement, under which Bristol agreed not to oppose
this motion for vacatur.
Unlike the more famous antitrust trial before Judge Thomas
Jackson in the District of Columbia, which involved
Microsoft's Windows operating systems for desktop PCs, this
Connecticut case involved Microsoft's NT operating systems for
workstations and servers. Microsoft would not give NT 4.0
source code to Bristol under the terms sought by Bristol; and
this, Bristol alleged, violated antitrust law. Bristol alleged
monopoly leveraging of Microsoft's alleged monopoly of PC
operating systems, refusal to deal in connection with its
alleged monopoly in workstation operating systems, refusal to
deal in connection with its alleged monopoly in departmental
server operating systems, denial of an alleged essential
facility, and attempted monopolization of the markets for
workstation and departmental server markets. The Complaint
also alleged six violations of Connecticut antitrust law.
This opinion was issued on May 17, but was only just published
in the Second Circuit's web site. See also, TLJ
Summary of Bristol v. Microsoft.
|6/11. Commerce Secretary Donald Evans gave a speech
on free trade and trade promotion authority at a dinner
at the Woodrow Wilson International Center for Scholars in
Washington DC. He reiterated the theme that free trade is a
moral imperative, and that to effectively negotiate free trade
agreements with other nations, the President must have fast
track trade promotion authority.
6/9. The USTR announced
that the U.S. and the PRC "have reached consensus on
remaining bilateral concerns related to China's WTO accession,
indicating that both countries plan to work together in Geneva
to complete China's WTO accession. In addition, both countries
will work closely with other WTO members to build on the
consensus reached by the United States and China this past
week in Shanghai." See, USTR
2100, a bill to amend copyright law to facilitate distance
learning, 6/7 (HTML, LibCong).
re free trade and trade promotion authority, 6/11 (HTML, DOC).
in Cadence v. Avant certifying a question to the California
Supreme Court re theft of trade secrets statute, 6/11 (PDF,
in Microsoft v. Bristol vacating Judge Hall's award of $1
Million in punitive damages to Bristol, 5/17 (HTML, USCA).
in Kyllo v. US re search and seizure, 6/11 (PDF, SCUS).
in B&B Hardware v. Hargis, a trademark infringement, 6/11
|9th Circuit Certifies Trade
Secrets Question to California Court
|6/11. The U.S.
Court of Appeals (9thCir) issued an order
[PDF] in Cadence
v. Avant certifying a question to the
California Supreme Court in a theft of trade secrets
case. The question is: "Under the California Uniform
Trade Secrets Act ("UTSA"), Cal.
Civ. Code § 3426, when does a claim for trade secret
infringement arise: only once, when the initial
misappropriation occurs, or with each subsequent misuse of the
Cadence and Avant compete in the
field of integrated circuit design automation. A key employee
of Cadence left to go to work for Avant. Cadence objected.
After negotiations, the two companies entered into a
settlement agreement that included a mutual general release.
It was later discovered that Avant had copied certain Cadence
source code line by line prior to the date of the release.
Cadence filed a complaint in U.S. District Court (NDCal)
against Avant alleging theft of its copyrighted and trade
secret source code. Avant argued that because Cadence had
released all its claims existing at the time of the release,
any claims based on continuing or future misuse of trade
secrets that were stolen prior to the date of the release are
barred. Cadence argued that the only claims it had released
were those for misappropriation occurring before the effective
date of the release, and not claims for continuing misuse of
its trade secrets after the date of the release. The Appeals
Court wrote that the question certified to the California
Supreme Court is dispositive of the case, yet not answered by
the statute or California precedent.
|FCC Commissioner Copps
|6/11. FCC Commissioner Michael Copps announced the
appointment of three interim members of his personal staff:
Jordan Goldstein, Susana Zwerling, and Lauren Van Wazer. See, FCC
Goldstein, who was named Senior Legal Advisor, will focus on
common carrier matters. Goldstein was previously a legal
advisor to former Commissioner Susan Ness. Goldstein has also
been legal counsel to the Chief of the Common Carrier Bureau (CCB),
an attorney in the CCB's Policy and Program Planning Division,
and before that, an attorney at the NTIA.
Zwerling was named interim Legal Advisor; she will focus on
mass media and cable issues. She was previously Assistant
Bureau Chief for Planning and Communication in the Mass Media Bureau (MMB).
Prior to that she was special counsel to the Chief of the MMB,
and an attorney advisor in the Policy and Rules Division.
Before joining to the FCC in 1997 she was a trial attorney in
the Telecommunications Task Force of the Antitrust Division of the
Department of Justice. And prior to that, she was an associate
in the New York City office of the law firm of Debevoise & Plimpton.
She also was a legislative assistant to former Representative
and now Sen. Charles
Van Wazer was named interim Legal Advisor; she will focus on
wireless and international issues. She was previously a senior
staff attorney in the Commercial Wireless Division of the
Telecommunications Bureau. Prior to that she was an
associate at the law firm of Arnold &
Porter. In addition, Ms. Van Wazer also has a background
in engineering, a rarity amongst the multitude of lawyers at
the FCC. She is a graduate of the University of Pennsylvania's
Moore School of Electrical Engineering, where she received a
B.S.E. in Systems Science Engineering. She also worked in
AT&T's Network Services Department.
|Sachs Addresses NCTA
P/CEO Robert Sachs gave a speech
at the NCTA convention in Chicago, Illinois, in which he
asserted that "cable is one industry where the 1996
Telecommunications Act has produced real consumer benefits.
Rate deregulation has enabled us to invest billions in new
technology, new programming and customer care, bringing
competitive choices to consumers." He continued that
"We're not only competing with DBS for every subscription
television viewer, we're competing vigorously with phone,
wireless and satellite companies to provide consumers
high-speed data. And cable companies are the only facilities-
based competitors to the regional Bell monopolies in
residential markets. Despite all the obstacles, we now serve
more than one million residential phone customers. And
Internet protocol telephony promises an even more efficient
means to deliver voice over cable."
|Section 605 Broadcast
|6/11. The U.S.
Court of Appeals (6thCir) issued its opinion
Satellite Sports v. Time Warner, a case
regarding broadcast rights. National Satellite Sports (NSS)
obtained the exclusive right to broadcast a boxing match to
commercial establishments in Ohio. Time Warner obtained the
exclusive right to broadcast the event on a pay per view basis
to its Ohio residential customers. A business was erroneously
listed as a residential customer of Time Warner, and ordered
the event through Time Warner's service. NSS filed a complaint
in U.S. District Court (NDOhio)
against that customer and Time Warner alleging violation of
the Federal Communications Act of 1934, 47 U.S.C. §§
151-613, which prohibits the unauthorized divulgence of wire
or radio communications. The District Court entered summary
judgment in favor of NSS. The Appeals Court affirmed.
|Suggestive v. Descriptive
|6/11. The U.S.
Court of Appeals (8thCir) issued its opinion
[PDF] in B&B
Hardware v. Hargis, a trademark infringement
case. B&B filed a complaint in U.S. District Court (EDArk)
against Hargis alleging trademark infringement. The District
Court entered judgment upon a jury verdict of noninfringement.
B&B appealed on the sole issue of a jury instruction
regarding the distinction between suggestive and
descriptive marks. The Appeals Court affirmed.
|6/11. The FCC's Office of
Engineering and Technology hosted 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. This was one of a
series of technology tutorials offered by the FCC.
6/11. The Cellular
Telecommunications & Internet Association (CTIA)
announced its new Board of Directors and Executive Committee
for 2001 - 2002. Rick Ekstrand of Rural Cellular
Corporation was elected Chairman, Tim Donahue of Nextel
Communications was elected Vice Chairman, Mohan Gyani
of AT&T Wireless was elected Secretary, and Terry
Addington of First Cellular of Southern Illinois was
elected Treasurer. See, release.
|Tuesday, June 12
|8:30 AM - 5:00 PM. The American Antitrust Institute will
hold its 2nd Annual Conference. See, agenda
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
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
• 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.
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
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
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,
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
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
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
Spaeder), and John Quale (Skadden
Arps). The price to attend is $60 (members) or $80
(non-members). RSVP to Arlice Johnson at email@example.com. Location:
Wiley Rein & Fielding, 10th Floor Conference Room, 1750 K
Street, NW, Washington DC.
|Wednesday, June 13
|10:00 AM. The House
Judiciary Committee will meet to mark up HR 1542, the
Tauzin Dingell bill, and HR 1698, the Cannon Conyers bill.
Location: Room 2141, Rayburn Building.
10:00 AM. The Senate
Banking Committee will hold a hearing on the nomination of
Ferguson to be a Member of the Board of Governors of
the Federal Reserve
System. Ferguson, who is currently a Governor, was the
Board of Governors' point man on Year 2000 conversion
preparations. Sen. Paul
Sarbanes (D-MD), the new Chairman of the Committee, will
preside. See, notice.
Location: Room 538, Dirksen Building.
10:00 AM - 12:00 NOON. The House Science Committee
will meet to mark up HR
100, the National Science Education Act, sponsored by Rep. Vern Ehlers
(R-MI), and HR
1858, the National Mathematics and Science Partnerships
Act, sponsored by Rep.
Sherwood Boehlert (R-NY). Location: Room 2318, Rayburn
10:00 AM. The FCC's Office of Engineering and Technology will
host the first meeting of the Technological Advisory
Council under its new charter. Location: FCC, 445 12th
Street, SW, Washington, DC. See, FCC
12:30 PM. The Federal
Communications Bar Association's Transactional Practice
Committee will host a brown bag lunch titled Factors Used
to Value Communications Properties. Location: Dow Lohnes & Albertson,
Conference Center, Eighth Floor, 1200 New Hampshire Ave., NW,
Washington DC. RSVP to John
Deadline for submitting petitions to the USTR regarding
the 2001 Annual GSP Product and Country Eligibility Practices
Review. See, notice
in the Federal Register, April 13, 2001, Vol. 66, No. 72,
Pages 19278 - 19279.
|Supreme Court Opines on
|6/11. The Supreme
Court of the U.S. issued its opinion
[PDF] in Kyllo v. U.S., a case holding that the thermal
imaging of a home to detect lamps used for growing marijuana
constitutes a search within the meaning of the Fourth
Amendment. This is not a tech case. However, the analysis of
the court may be of interest to those who are concerned about
how the Supreme Court will ultimately rule in cases involving
government acquisition of computer and Internet based
communications. Also, the breakdown may be of interest. Scalia
wrote the opinion, and was joined by Thomas, Souter, Ginsburg
and Breyer. The Court did not split on ideological grounds. It
was the older members the Court, Rehnquist, O'Connor, Stevens,
and Kennedy, who dissented.
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