|SCUS Grants Cert in 11th
Amendment Telecom Case
|6/25. The Supreme
Court of the U.S. granted certiorari in Verizon Maryland
v. Public Service Commission of Maryland (No. 00-1531) and
U.S. v. PSC of Maryland (No. 00-1711). These two cases are set
for oral argument in tandem with Mathias v. Worldcom (No.
00-878). See, Order
List [PDF] at page 3. The issue is whether state public
utility commissions are immune under the 11th Amendment from
being sued in federal court under the Communications Act. The
Constitution provides: "The Judicial power of the United
States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or
Subjects of any Foreign State."
|More Supreme Court News
|6/25. The Supreme Court of the U.S. denied certiorari
certiorari in Graceba Total Communications v. FCC. See, Order
List [PDF] at page 5.
The Supreme Court is likely to hand down its remaining
decisions of the term on Thursday, June 28.
|Nilssen v. Motorola
|6/25. The U.S. Court
of Appeals (7thCir) issued an opinion
v. Motorola. The underlying dispute pertains to
intellectual property. However, the appellate opinion avoids
the substantive issues, and instead only addresses various
procedural rules in patent and trade secret related
Ole Nilssen, a litigious inventor, filed a complaint in U.S.
District Court against Motorola alleging patent infringement,
breach of contract, and violation of trade secret rights. The
District Court split the proceeding into two cases, one for
patent claims, and the other for state law claims. This
created issues of jurisdiction of the District Court over the
state law proceeding, finality of any judgment of the purpose
of appeal, and which appellate court has jurisdiction over an
appeal. It also affected several aspects of each proceeding,
including issues to be tried by a jury, and calculation of
damages. In this appeal from a judgment in the state law
proceeding, Judge Easterbrook vacated the judgment of the
District Court, and remanded with instructions to consolidate
this state law proceeding with the patent law proceeding. Once
consolidated, any appeal will lie in the Federal Circuit.
|Senators Introduce FBI
Reform Commission Bill
|6/20. Sen. Charles
Schumer (D-NY) and Sen.
Orrin Hatch (R-UT) introduced S
1074, the FBI Reform Commission Act of 2001. The bill
provides for the creation of a commission to conduct a study
of, among other things, "the methods used by the FBI to
store and securely maintain information, including (i) any
methods of securing information from theft and inadvertent
release; (ii) the efficacy of information systems used to
gather and maintain information; and (iii) any practices and
procedures governing the classification and declassification
of information". The bill was referred to the Senate Judiciary
|6/25. President Bush announced his intent to nominate John
Marburger to be Director of the Office of Science and
Technology. See, release.
Burghardt, Head of the European Commission Delegation to
the U.S., gave a speech
in New Haven, Connecticut titled "The New Europe and the
6/25. The U.S. International
Trade Commission held a Section 337
evidentiary hearing regarding "Certain Field Programmable
Gate Arrays and Products Containing Same." This is a
matter in which Xilinx is
the complainant and Altera
is the respondent. See also, notice of
in NYT v. Tasini re copyright, 6/25 (PDF, SCUS).
in Nilssen v. Motorola re procedure in IP litigation, 6/25
2281, the Digital Divide Elimination Act of 2001, 6/21
re e-commerce issues, 6/25 (HTML, EU).
|Supreme Court Rules for
Authors in NYT v. Tasini
|6/25. The Supreme
Court of the U.S. issued its opinion
[PDF] in New
York Times v. Tasini, a case regarding the
application of copyright law to the republication of the
articles of free lance writers in electronic databases. The
Court ruled, 7-2, that the defendant publishers did not have a
privilege under Section 201(c) of the Copyright Act to include
in electronic databases free lance articles written for print
Facts. The plaintiffs are free lance authors whose
articles were previously published in periodicals. The defendants
are publishers and owners of electronic databases which have
republished their articles. None of the plaintiffs were
employed by the periodical publications in which their
articles appeared. Nor did they have work for hire contracts.
All registered a copyright in each of the articles at issue in
this proceeding. The authors' ownership of the copyright in
their individual works is not in dispute. Subsequently, the
periodical publications licensed much of the content of their
periodicals, including the plaintiffs' works, to one or more
of the electronic database providers.
Lower Court Proceedings. Plaintiffs filed a complaint in
U.S. District Court (SDNY)
in 1993 alleging copyright infringement. The District Court
issued its opinion
in 1997 holding that defendants are protected by the privilege
afforded the publishers of "collective works" under
Section 201(c) of the Copyright Act. Collective works include
newspapers and magazines. Judge Sotomayor ruled on cross
motions for summary judgment that the electronic databases are
a "revision" of the individual periodical issues
from which the articles were taken, and hence, granted summary
judgment for the defendants. The U.S. Court of
Appeals (2ndCir) issued its opinion
reversing the District Court in 1999. Judge Winter, writing
for a three judge panel, held that the privilege afforded
authors of collective works under Section 201(c) does not
permit the publishers to license individually copyrighted
works for inclusion in the electronic databases.
17 U.S.C. 201(c). "Contributions to Collective
Works. Copyright in each separate contribution to a collective
work is distinct from copyright in the collective work as a
whole, and vests initially in the author of the contribution.
In the absence of an express transfer of the copyright or of
any rights under it, the owner of copyright in the collective
work is presumed to have acquired only the privilege of
reproducing and distributing the contribution as part of that
particular collective work, any revision of that collective
work, and any later collective work in the same series."
Opinion of the Court. Justice Ginsburg wrote the
opinion of the Supreme Court. She wrote that "§201(c)
does not authorize the copying at issue here. The publishers
are not sheltered by §201(c), we conclude, because the
databases reproduce and distribute articles standing alone and
not in context, not "as part of that particular
collective work" to which the author contributed,
"as part of ... any revision" thereof, or "as
part of ... any later collective work in the same
series." Both the print publishers and the electronic
publishers, we rule, have infringed the copyrights of the
freelance authors." Ginsburg added, "we leave
remedial issues open for initial airing and decision in the
Dissent. Justice Stevens wrote a dissent, in which
Justice Breyer joined. He wrote that electronic databasing is
a revision within the meaning of Section 201. Stevens also
stated that he was concerned about "the difficulties of
locating individual freelance authors and the potential of
exposure to statutory damages may well have the effect of
forcing electronic archives to purge freelance pieces from
their databases." He also commented, in a footnote, that
"congressional action may ultimately be necessary to
preserve present databases in their entirety. At the least,
Congress can determine the nature and scope of the problem and
fashion on appropriate licensing remedy far more easily than
The Software & Information
Industry Association (SIIA) criticized the opinion, and
called for legislation. It is a Washington DC based trade
group which represents, among others, the electronic database
companies which lost this case. SIIA President Ken Wasch
stated that the "SIIA is committed to uniting publishers
of digital content and companies providing electronic archival
services to lobby Congress to consider the effects of this
decision". See, release.
|Tuesday, June 26
|9:30 AM. The Senate
Commerce Committee will hold a hearing on several
nominations, including that of Samuel Bodman to be
Deputy Secretary of Commerce; Location: Room 253, Russell
10:00 AM - 12:00 NOON. The House Science Committee's
Subcommittee on Research will hold a hearing titled Reinventing
the Internet: Promoting Innovation in IT. Location: Room
2318, Rayburn Building.
10:00 AM - 12:00 NOON. The FCC's Network Reliability and
Interoperability Council will meet. Location: FCC, 445 12th
Street, SW, Room TW-C305, Washington, DC.
12:00 NOON - 2:00 PM. The American
Enterprise Institute (AEI) will host a panel discussion
titled "Free Trade vs. States' Rights: Globalization and
the Challenges to Local Democratic Government." The
panelists will be Michael Greve (Federalism Project), Mark
Gordon (Columbia University), David Aaron (Dorsey &
Whitney), and Earl Fry (Brigham Young University). Location:
Wohlstetter Conference Center, Twelfth Floor, AEI, 1150 17th
Street, NW, Washington DC.
2:30 PM. The House
Judiciary Committee's Subcommittee on Commercial and
Administrative Law will hold a hearing on HR 1552 and HR 1675,
both of which are titled the "Internet Tax
Nondiscrimination Act." Location: Room 2141, Rayburn
6:30 - 8:30 PM. The Federal
Communications Bar Association will host a CLE Seminar
titled Music Licensing and the Internet. The first
panel will focus on the issues involved in the Napster
litigation. The second panel will focus on the on the new
music licensing right when webcasters stream music over the
Internet. For more information, contact Arlice Johnson at email@example.com. Location: Wiley Rein & Fielding, 10th
Floor Conference Room, 1750 K Street, NW, Washington DC.
|Wednesday, June 27
|10:00 AM. The House
Judiciary Committee's Subcommittee on Courts, the
Internet, and Intellectual Property will hold a legislative
hearing on S
487, the "Technology, Education, and Copyright
Harmonization Act of 2001." This is a bill to extend the distance
learning exemption to copyright infringement to Internet
technologies. Location: Room 2141, Rayburn Building.
10:30 AM. House
Commerce Committee Chairman Billy Tauzin (R-LA)
and Meg Whitman, P/CEO of eBAY will hold an on the
record media availability to discuss online fraud and other
Internet issues. Location: Room 2218, Rayburn Building.
12:00 NOON. eBay P/CEO Meg Whitman will speak at a Congressional Internet Caucus
luncheon on "Opportunities Facing the Internet".
RSVP to Catherine at 202-638-4370 or RSVP@netcaucus.org .
Location: Room SC-5, U.S. Capitol Building.
12:15 PM. The Federal
Communications Bar Association's Cable Committee will host
a luncheon. The speaker will be Kenneth Ferree, the new
Chief of the FCC's Cable
Services Bureau. Location: NCTA, 1724 Massachusetts Ave.,
NW, Washington DC. The price to attend is $15.00. RSVP to Arlice Johnson.
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