Tech Law Journal Daily E-Mail Alert
June 26, 2001, 8:00 AM ET, Alert No. 216.
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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 in Nilssen 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 litigation.
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 Committee.
More News
6/25. President Bush announced his intent to nominate John Marburger to be Director of the Office of Science and Technology. See, release.
6/22. Günter Burghardt, Head of the European Commission Delegation to the U.S., gave a speech in New Haven, Connecticut titled "The New Europe and the e-Economy."
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 investigation.
New Documents
SCUS: opinion in NYT v. Tasini re copyright, 6/25 (PDF, SCUS).
USCA: opinion in Nilssen v. Motorola re procedure in IP litigation, 6/25 (HTML, USCA).
Jefferson: HR 2281, the Digital Divide Elimination Act of 2001, 6/21 (HTML, LibCong).
Burghardt: speech 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 publications.
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 District Court."
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 can courts."
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 Building.
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 Building.
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 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 . 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.
Napster News
6/25. The Recording Industry Association of America released a statement in which it said that "the full Ninth Circuit has rejected Napster's request that the case be reheard." See, RIAA release. (Napster v. A&M Records.)
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