Tech Law Journal Daily E-Mail Alert
July 16, 2001, 9:00 AM ET, Alert No. 227.
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Lessig Versus the CTEA
7/13. The U.S. Court of Appeals (DCCir) issued an order and opinion in Eldred v. Ashcroft, a challenge to the constitutionality of the Copyright Term Extension Act. The Appeals Court denied plaintiff's petition for a rehearing en banc.
The original plaintiff of record is Eric Eldred, the proprietor of the unincorporated Eldritch Press, a website that republishes the works of others that are not protected by copyright. However, the suit is being pursued by Laurence Lessig and other law professors who disagree with recently enacted intellectual property statutes.
The 105th Congress passed the Copyright Term Extension Act (CTEA) to extend the maximum duration of copyrights from 75 to 95 years. The late Rep. Sonny Bono (R-CA) sponsored the House version of the bill in 1997. Hence, the statute is also known by his name. (See, P.L. 105-298, 112 Stat. 2827. It amends 17 U.S.C. 304(b).)
On January 11, 1999 the plaintiffs filed their original complaint in U.S. District Court (DDC). (See also, TLJ story.) On June 28, 1999, the plaintiffs filed their Second Amended Complaint. Plaintiffs allege, among other claims, that the CTEA violates the First Amendment and the copyright clause of the Constitution. On October 27, 1999, the District Court ruled that the CTEA does not violate the Constitution. See, Memorandum of the Court. (See also, TLJ story.) On February 16, 2001, the U.S. Court of Appeals (DCCir) issued its opinion affirming the District Court.
Plaintiffs asserted in their petition for rehearing that the Court of Appeals erred in its treatment of the contentions advanced by one of the amici, The Eagle Forum (i.e., Phillys Schlafly). Judge Ginsburg, writing for the Court, rejected the argument. Judge Sentelle dissented.
See also, TLJ summary of Eldred v. Reno.
7/13. The U.S. District Court (SDCal) sentenced Ira Itskowitz, Daniel Rearick, and Linsday Wellman for various crimes associated with a telemarketing operation that defrauded over 3,000 victims of almost $50,000,000 through its design, development and marketing of a series of "high-tech" telecommunications related securities. Itskowitz was sentenced to 71 months imprisonment, 3 years supervised release, and ordered to pay $49,031,740 in restitution to victims. Rearick was sentenced to 60 months imprisonment, 3 years supervised release, and ordered to pay $46,526,740 in restitution to victims. Lindsay Wellman, an attorney who conspired to structure $149,000 in currency transactions under $10,000.00 each to avoid reporting requirements of the IRS was sentenced to 3 years supervised probation with 8 months custody in a community confinement center. See, USAO release.
New Documents
USCA: opinion in Eldred v. Ashcroft re CTEA, 7/13 (HTML, USCA).
Tristani: speech re merger of cable companies, 7/13 (HTML, FCC).
Furchtgott-Roth: speech re broadband and FCC regulation, 7/12 (HTML, AEI).
RIAA: memorandum in support of motion to dismiss Felton v. RIAA.
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Felton Versus the DMCA
7/13. The Recording Industry Association of America (RIAA) filed a motion to dismiss and memorandum in support [PDF] in Felton v. RIAA, a case filed by Edward Felton and others in U.S. District Court (DNJ) against the RIAA, SDMI and Attorney General John Ashcroft, seeking a declaration that the Digital Millennium Copyright Act (DMCA) is unconstitutional. The RIAA argues that there is no adversity of interest, and that the plaintiffs lack standing. See also, RIAA release.
The RIAA's memorandum states that the "Plaintiffs' true agenda, however, is not to adjudicate a real dispute but to obtain favorable press attention and to secure an advisory opinion on the constitutionality of the Digital Millennium Copyright Act. Plaintiffs have therefore filed an Amended Complaint full of vaporous imaginings and chimerical fears. We respectfully submit that even the Amended Complaint fails to pass muster, and must be dismissed under Rule 12(b)(1)" of the FRCP.
The plaintiff's lawsuit followed a letter from the Secure Digital Music Initiative (SDMI) to Felton threatening a lawsuit under the DMCA if he published a particular paper. However, the RIAA stated in its memorandum that "Defendant RIAA has repeatedly expressed publicly and in correspondence with Plaintiffs' counsel -- both before and after this lawsuit was filed -- that it has no objection whatsoever to Plaintiffs publishing or presenting their three papers. Thus, as to that aspect of the Amended Complaint, there is no adversity of interests between Plaintiffs and the RIAA ..."
The SDMI. The SDMI is a music industry group that is attempting to develop a watermark based system to prevent music piracy. Watermarking embeds copyright information in digital music files to enable devices like MP3 players and recorders to refuse to make copies of copyrighted music. Last year the SDMI issued a "Public Challenge" to help choose among four proposed watermarking technologies. It invited researchers to attempt to remove the copyright watermarks. Felton responded, and successfully defeated all four technologies. The SDMI then sought to prevent Felton from presenting or publishing his findings.
The Letter. On April 9, Matthew Oppenheim, Secretary of the SDMI Foundation, wrote a letter to Edward Felton, an associate professor in the Department of Computer Science at Princeton University, and others, warning them that public release of information concerning the Secure Digital Music Initiative (SDMI) "could subject you and your research team to actions under the Digital Millennium Copyright Act ..." Felton was scheduled to participate in the 4th International Information Hiding Workshop on April 25-29 in Pittsburgh, Pennsylvania.
The Lawsuit. On June 6, Felton and others filed their Original Complaint in U.S. District Court against the RIAA, SDMI, and AG Ashcroft. The plaintiffs filed their First Amended Complaint on June 26, 2001. The plaintiffs seek a declaration that the DMCA is unconstitutional for violating the First Amendment, and for exceeding the enumerated powers of the Congress. 
FCC Commissioner Tristani Addresses Cable Mergers
7/13. FCC Commissioner Gloria Tristani gave a speech in Washington DC to the Alliance for Community Media titled "Public, Educational, and Governmental Access Channels: Localism and Diversity In Action." She also addressed mergers. She stated that "As cable operators get bigger, control over programming will be held by fewer and fewer gatekeepers. This enormous power concerns me. It's one thing to say there are a diversity of voices out there, and the Internet will ensure that no one exerts undue control over America's information conduits. But look where the vast majority of Americans spend the most of their free time - in front of the television." She continued that "the content of television has far more influence on what Americans know, what they think, and how they govern themselves that whatever is on the Internet or in the newspapers. Television is a uniquely powerful and influential medium, and government regulators should think long and hard before approving another round of cable consolidation."
DOJ v. Microsoft
7/13. The Department of Justice and state plaintiffs in the Microsoft antitrust case filed a Motion for Immediate Issuance of Mandate with the U.S. Court of Appeals (DCCir) in order to allow "proceedings on remand to go forward as quickly as possible." The motion also states that "The United States and the State Plaintiffs do not intend to petition for rehearing" and that "the United States and the State Plaintiffs do not intend to seek Supreme Court review of the case at this stage." The motion asks the Appeals Court promptly remand the case to the U.S. District Court (DDC).
Monday, July 16
1:00 PM. The Senate Commerce Committee's Science, Technology, and Space Subcommittee will hold a hearing on security risks for the e-consumer. Location: Room 253, Russell Building.
6:30 PM. The House Rules Committee will meet. The agenda includes the Commerce, State, Justice and the Judiciary appropriations bill for FY 2002. Location:
Tuesday, July 17
9:30 AM. The Senate Commerce Committee will hold a hearing to on media concentration. Room 253, Russell Building.
10:00 AM. The Senate Finance Committee will meet to mark up SJRes 16 (re U.S. Vietnam Trade Agreement),  S 643 (re implementation of agreement establishing a U.S. Jordan Free Trade area), S 942 (re reauthorization of TANF Supplemental Grant program for one year), and an original committee resolution calling for an investigation of the importation of certain steel products. See, notice [PDF]. Location: 215 Dirksen Building.
3:00 PM. EU Commissioner for Trade Pascal Lamy will give a speech titled "The New WTO Round: The European Point of View." Location: Zenger Room, National Press Club, 529 14th St. NW, 13th Floor, Washington DC.
People and Appointments
7/12. The Senate Banking Committee approved several nominations, including Roger Ferguson (Board of Governors of the Federal Reserve System), Donald Powell (Chairman of the FDIC), Angela Antonelli (CFO of the Department of Housing and Urban Development), Jennifer Dorn (Federal Transit Administrator), and Ronald Rosenfeld (President of GINNIE MAE).
7/11. Nine people joined the San Francisco area offices of the law firm of Perkins Coie in its patent prosecution practice. The firm acquired the Iota Pi Law Group of Palo Alto. Peter Dehlinger, head of the Iota Pi Law Group, joined Perkins Coie as a partner. Linda Judge joined as an associate. Four registered Patent Agents, Judy Mohr, LeeAnn Gorthey, Larry Thrower, and Jacqueline Mahoney, also joined. Mohr and Thrower also are enrolled in law school. Perkins Coie also hired three patent prosecution associates, Barbara Courtney, Richard Gregory, and Michael Martensen, who previously worked for the law firm of Wilson Sonsini. See, release.
7/9. Former Rep. Richard Zimmer (R-NJ) joined the Washington DC office of the law firm of Gibson Dunn & Crutcher as of counsel in the firm's Corporations Department and its Public Policy Group. He was a Member of Congress from 1991 through 1997, and sat on the House Ways and Means Committee. See, release.
7/13. Rep. Bob Goodlatte (R-VA), a Co-Chair of the Internet Caucus, named Janet Polarek as his new press secretary. She replaces Michelle Semones, who joined Dittus Communications, a Washington DC based public relations firm, as Associate Director of Technology Policy.
7/10. Todd Stern joined the Washington DC office of the law firm of Wilmer Cutler & Pickering as a partner. He was previously an aide to former President Clinton. He will focus on congressional investigations and crisis management. See, WCP release [PDF].