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August 24, 2001, 9:00 AM ET, Alert No. 256.
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IIPA Comments on Intellectual Property Rights in FTAA
8/22. The International Intellectual Property Association (IIPA) submitted comments [PDF] on the draft consolidated text for the Chapter on Intellectual Property Rights of the Free Trade Area of the Americas (FTAA) Agreement to the Trade Policy Staff Committee (TPSC) of the USTR. See also, USTR web section on the FTAA and USTR summary of IPR position. August 22 was the deadline to submit comments to the USTR. See, USTR notice in the Federal Register of July 12, 2001, requesting public comment. See also, IIPA release.
Copyright. The IIPA comment states that the "proposed FTAA should contain the highest levels of substantive protection and enforcement provisions possible. This means that the IPR Chapter should, at a minimum: (a) be TRIPS- and NAFTA-plus, (b) include, on a technologically neutral basis, the obligations in the soon-to- enter-into-force WIPO Copyright and Performances and Phonograms Treaties (WCT and WPPT), and (c) include modern and effective enforcement provisions that respond to today's digital and Internet piracy realities."
Anti-Circumvention. The IIPA comment continues that "A provision must be included which tracks the WCT and WPPT obligations on making illegal the circumvention of technological measures and ensures that devices, services and components thereof are fully covered. Adequate and effective legal remedies, both criminal and civil, must be incorporated into the enforcement text. This is an essential element of a protection system that is adapted to the digital and Internet Age, where new forms of piracy are already harming the copyright- based industries."
8th Circuit Affirms in Advanced Communications v. MCI
8/23. The U.S. Court of Appeals (8thCir) issued its opinion [PDF] in Advanced Communications v. MCI. Advanced Communications (AC) had once been granted by the FCC a construction permit for a Direct Broadcast Satellite (DBS) system; it had also been allocated various channels at different orbital locations as part of such a system. However, in 1995, the FCC's International Bureau denied AC's request for a second extension of time in which to develop its DBS system for lack of due diligence. AC appealed to the full Commission, but lost. The FCC then canceled the permit and reclaimed the orbital locations and channels. AC sought review by the U.S. Court of Appeals (DCCir), and lost again.
AC then filed a complaint in Arkansas state court against MCI alleging tortious interference with contract. MCI removed the case to U.S. District Court (EDArk). During the FCC's consideration, MCI had written a letter to the FCC urging it to cancel and re-auction AC's orbital locations and channels. The District Court ruled for MCI on the pleadings. The Appeals Court, in a brief opinion, held that AC is collaterally estopped from suing MCI on a theory of tortious interference by the decision of the U.S. District Court (DCCir).
New Documents
USCA: opinion in PETA v. Doughney re cybersquatting, 8/23 (HTML, USCA).
USCA: opinion in Advanced Communications v. MCI re DBS, 8/23 (PDF, USCA).
GAO: report re lack of information security at the Commerce Department, 8/23 (PDF, GAO).
IIPA: comments to USTR re IPR and FTAA, 8/22 (PDF, IIPA).
4th Circuit Affirms Judgment Against Parody Web Site Operator
8/23. The U.S. Court of Appeals (4thCir) issued its opinion in PETA v. Doughney, a domain name registration dispute involving claims of service mark infringement, unfair competition, dilution and cybersquatting. The Appeals Court affirmed the District Court's judgment that a domain name used for a non commercial parody web site must be transferred to the mark holder.
Background. Michael Doughney registered the domain with Network Solutions in 1995. He then created a parody web site titled "People Eating Tasty Animals," which advocated eating meat, hunting, and wearing fur. People for the Ethical Treatment of Animals was not amused. Moreover, it had registered the PETA mark in 1992. See, Trademark Registration No. 1,705,510. PETA demanded that Doughney transfer the domain name to it. Doughney offered to settle. PETA now holds the domain; Doughney has moved his parody site to
District Court. PETA filed a complaint in the U.S. District Court (EDVa) against Doughney in 1999 alleging service mark infringement under 15 U.S.C. 1114 and Virginia common law, unfair competition under 15 U.S.C. 1125(a) and Virginia common law, and service mark dilution and cybersquatting under 15 U.S.C. 1125(d). The District Court granted summary judgment to PETA on all three claims. This appeal followed.
Infringement. The Appeals Court affirmed the summary judgment on service mark infringement. Doughney argued that, while PETA holds the PETA mark, there was no service mark infringement because his use of the mark was not in connection with goods or services, and because there was not a likelihood of confusion. The Court held that "Doughney need not have actually sold or advertised goods or services on the website. Rather, Doughney need only have prevented users from obtaining or using PETA's goods or services ..." Doughney argued also that there was no likelihood of confusion because once web users visited his web site, they would realize that it was a parody. The Court, however, held that its analysis should be limited to the domain name only, and not include the content of the web site. It conceded that "the website's content makes it clear that it is not related to PETA". However, it wrote: "The domain name simply copies PETA's Mark, conveying the message that it is related to PETA. The domain name does not convey the second, contradictory message needed to establish a parody -- a message that the domain name is not related to PETA, but that it is a parody of PETA." The Court did not address dilution.
Cybersquatting. The Appeals Court affirmed the District Court's grant of summary judgment to PETA under the recently enacted Anticybersquatting Consumer Protection Act (ACPA), codified at 15 U.S.C. 1125(d). Dougherty argued that the ACPA should not be applied retroactively to his acts in 1995, that he did not seek financial gain, and that he did not act in bad faith. The Appeals Court rejected all arguments. The Court held that the ACPA does apply retroactively; Dougherty's statement that PETA should "settle" with him constituted seeking financial gain; and, based on application of the nine good faith criteria listed in the ACPA, Dougherty acted in bad faith.
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GAO Releases Report on Security Weaknesses at Commerce Dept.
8/23. The General Accounting Office (GAO) released a report [PDF] titled "Information Security: Weaknesses Place Commerce Data and Operations at Serious Risk". It finds that the Department of Commerce's (DOC) information systems are not secure. The report was prepared by Robert Dacey and others at the GAO at the request of Rep. Billy Tauzin (R-LA), Chairman of the House Commerce Committee.
The report concludes that "Significant and pervasive computer security weaknesses place sensitive Department of Commerce systems at risk. Individuals, both within and outside Commerce, could gain unauthorized access to these systems and thereby read, copy, modify, and delete sensitive economic, financial, personnel, and confidential business data. Moreover, intruders could disrupt the operations of systems that are critical to the mission of the department."
On August 3, the House Commerce Committee's Subcommittee on Oversight and Investigations held a hearing titled "How Secure is Sensitive Commerce Department Data and Operations? A Review of the Department's Computer Security Policies and Practices." Dacey also testified at that hearing, along with witnesses from the DOC. See, prepared testimony of Dacey, prepared testimony of Johnnie Frazier (DOC Inspector General), and prepared testimony of Samuel Bodman (DOC Assistant Secretary for Technology Policy).
See also, opening statement of Rep. Jim Greenwood (R-PA), the Chairman of the Subcommittee, and prepared statement of Rep. Billy Tauzin, from the August 3 hearing.
Monday, August 27
8:00 AM. The USITC will hold begin its evidentiary hearing in its Section 337 investigation of certain Ink Jet Print Cartridges. HP filed a complaint on December 22, 2000, alleging that Microjet Technology (Taipei, Taiwan), Printer (Reno, Nevada), Price-Less Inkjet Cartridge Company (Port Charlotte, Florida), Cartridge Hut and Paperwork Plus (Sun City, California) and (Port Charlotte, Florida) are in violation of Section 337 of the Tariff Act of 1930 by importing into the U.S. certain ink jet print cartridges and components thereof that infringe patents owned by HP. (Inv. No. 337-TA-446). Administrative Law Judge Paul Luckern will preside. Location: Courtroom A, ITC Building, 500 E Street SW, Washington DC. See also, USITC release.
Tuesday, August 28

10:00 AM - 12:00 NOON. The FCC's Advisory Committee for the 2003 World Radiocommunication Conference will hold a meeting. Location: Commission Meeting Room, 445 12th Street, SW, Room TW-C305, Washington DC.

More News
8/23. The U.S. Court of Appeals (DCCir) denied the FCC's request for a stay in the NextWave proceeding. The FCC has stated that it may petition the Supreme Court for writ of certiorari.  NextWave obtained spectrum licenses at FCC auctions in 1996, but did not make payments required by the installment plan, and filed a Chapter 11 bankruptcy petition. The FCC cancelled the licenses. The U.S. Court of Appeals (DCCir) ruled in its June 22, 2001, opinion that the FCC is prevented from canceling the spectrum licenses by  525 of the Bankruptcy Code.
8/22. The U.S. Trade and Development Agency (TDA) gave $495,060 to the Ministry of Interior and Administration of Poland to conduct a feasibility study on rebuilding the design of its telecommunications and data transmission networks. See, TDA release.
8/23. The Center for Democracy and Technology (CDT) announced that The Global Internet Policy Initiative (GIPI), a joint project of the CDT and Internews, signed a Memorandum of Understanding with the United Nations Development Program that "provides a framework for cooperation between GIPI and UDNP offices worldwide towards the promotion of sound Internet and information technology policies." See also, August 14 Internews release.