| District Court Enjoins AOL
in AMP Infringement Action |
10/25. The U.S.
District Court (CDCal) issued its Order
Granting Motion for Preliminary Injunction [PDF] in Playmedia
Systems v. America Online. This is a copyright
infringement action in which PlayMedia alleges that AOL's use
of PlayMedia's AMP software infringes its copyright.
AMP decodes digital audio filed compressed in MP3 format. AOL
asserted that it is licensed, through its acquisition of
NullSoft, which had entered into a licensing agreement with
PlayMedia. PlayMedia argued that AOL's use of AMP software
exceeds the scope of this license. The District Court found
that PlayMedia established probable success in proving that
AOL is exceeding its license.
The order states that "America Online, its subsidiaries,
... are enjoined during the pendancy of this action, from (a)
copying the AMP® computer software owned by Plaintiff
PlayMedia Systems, Inc. or any derivative of the AMP®
computer software including without limitation Nitrane
(collectively "AMP®") into AOL 6.0 or any other
computer software application other than Winamp; (b) creating
derivative works based upon AMP® other than for use in
conjunction with Winamp; (c) distributing AMP® with AOL 6.0
or any other computer software application other than Winamp;
(d) purporting to license to any third party the right to
copy, distribute or in any other manner use any version of AOL
6.0 that contains AMP®; and (e) permitting any user of AOL
service from completing an online "session" on the
AOL service without AMP® being removed from the user's copy
of AOL 6.0 by means of an AOL online "live update."
"
See, D.C. No. CV01-3506 AHM (Ex), Judge A. Howard Matz
presiding. |
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| 9th Circuit Rules on
Implied Licenses to Copy |
10/30. The U.S.
Court of Appeals (9thCir) issued its opinion
[PDF] in Foad
v. MGA, a copyright case involving a project
plan for a shopping center, which turned on the Appeals
Court's interpretation of whether an implied license to copy
existed.
Foad Consulting Group prepared a preliminary and revised plot
plan for a proposed 45.5 acre shopping center in Arroyo
Grande, California, pursuant to contracts with a developer,
GenCom. GenCom then transferred its rights to develop the
project to Claire Enterprises, which in turn, hired Musil
Govan Azzalino (MGA), another architectural and engineering
firm. MGA used and copied much of Foad's prior plans. Foad
registered a copyright in its work.
Foad filed a complaint in the U.S.
District Court (CDCal) against MGA alleging infringement
of its copyright in the shopping center project plans that it
had prepared. The District Court granted summary judgment to
MGA. It based its decision upon the merger doctrine
(i.e., that courts will not protect a copyrighted work from
infringement if the idea underlying the copyrighted work can
be expressed in only one way, lest there be a monopoly on the
underlying idea). Foad appealed. MGA argued the merger
doctrine and fair use on appeal. The Appeals Court
affirmed, on grounds not raised by the parties -- implied
license to copy.
The Appeals Court wrote that "The Copyright Act permits
copyright holders to grant nonexclusive copyright licenses by
implication. But whether a copyright holder has properly
granted another a nonexclusive license by implication is a
matter of state contract law, provided that the state law does
not conflict with the Copyright Act or its underlying
policies. In this case, the February 1996 contract granted
GenCom an implied license to copy and adapt Foad's revised
plot plan and to publish the resulting derivative work in aid
of constructing the project for which it was designed."
While this is a copyright case, the opinion of the Appeals
Court is largely a discussion of contract law. The Appeals
Court stated the issue as follows: "Which law, state or
federal, governs the creation of an implied, nonexclusive
copyright license?" It concluded that "while federal
law answers the threshold question of whether an implied,
nonexclusive copyright license can be granted (it can), state
law determines the contract question: whether a copyright
holder has, in fact, granted such a license."
Judge Betty Fletcher wrote the opinion of the Appeals Court.
An incensed Judge Alex Kozinski wrote a separate opinion in
which he concurred in the result, but not the implied license
analysis. He wrote that it is "dangerous" to base an
opinion on an argument not raised by the parties. He also
disputed the majority's analysis of contract law. |
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| More News |
10/30. The Copyright
Office published a notice
in the Federal Register regarding royalty payments for
retransmission of over the air broadcast signals. The notice
"directs all claimants to royalty fees collected under
the section 119 statutory license in 2000 to submit comments
as to whether a Phase I or Phase II controversy exists as to
the distribution of those fees, and a Notice of Intention to
Participate in a royalty distribution proceeding."
Comments and Notices of Intention to Participate are due by
November 29, 2001. Reply comments are due by December 31,
2001. See, 17 U.S.C.
§ 119. See also, Federal Register, October 30, 2001, Vol.
66, No. 210, at Pages 54789 - 54791.
10/29. The NTIA
published in its web site the fall
issue of the NTIA Spectrum News. |
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| USTR Zoellick Addresses WTO
Round and Tech |
10/30. USTR Robert Zoellick
gave a speech
in Washington DC to the Council
on Foreign Relations titled "The WTO and New Global
Trade Negotiations: What's at Stake". He advocated a new
round of World Trade
Organization (WTO) negotiations, and addressed provisions
regarding electronic commerce, information technology, and
intellectual property rights.
E-Commerce. Zoellick stated that "The WTO rules
also need to be updated to tap the potential of high tech
innovations and e-commerce. Transactions over networks are
providing enormous growth opportunities for any service that
can reach customers electronically -- be it retailing,
financial, information, or entertainment services. The
opportunity for developing countries is vast -- providing them
with new, more efficient means to reach global markets for
products and services in which they have a competitive
advantage."
Information Technology and Developing Nations.
"One of our primary objectives in launching a new global
negotiation is to use trade and openness to bring new
opportunities and new hope to the poorest among us," said
Zoellick. "The flagging fortunes of so many developing
nations, coupled with the difficult economic times,
underscores the importance of launching new global trade
negotiations. The trade liberalization ushered in by the
Uruguay Round highlights the potential of more trade for
developing nations. In the six years following the round's
completion, exports from developing nations grew by nearly $1
trillion, to a level of $2.4 trillion. Last year, developing
countries exported $73 billion worth of information technology
to the United States -- a 43 percent increase since 1996, the
year before the multilateral Information Technology Agreement
had been implemented."
TRIPS and Pharmaceutical Patents. Zoellick stated that
"the Bush Administration is implementing a flexible
policy on intellectual property as it relates to medicines to
treat HIV/AIDS and other pandemics. This flexibility ...
enables countries and companies to help deal with this tragic
pandemic by encouraging low-cost access to critical medicines.
At the same time, the preservation of intellectual property
rules ensures incentives to develop medicines and
biotechnology that can help us cure and treat diseases that
have plagued humankind since our origin. I recognize that some
of the least developed countries in the WTO find it difficult
to fully comply with the pharmaceutical patent rules governing
world trade. In response to these difficulties, the United
States has proposed granting the least developed countries a
10-year extension, to 2016, to come into full compliance with
all pharmaceutical related patent obligations under the TRIPs
agreement."
Japan. After delivering his prepared speech, Zoellick
said that he is "extremely disappointed" by Japan's
lack of effort in building support for launch of a WTO round
of negotiations. See, State
Department release. |
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| President Bush Issues
Directive on Student Visas |
10/29. President Bush issued his Homeland
Security Presidential Directive-2, which pertains to
"Combating Terrorism Through Immigration Policies".
The purpose of the directive is to diminish abuse of student
visas by aliens in the U.S. It also addresses the use of
databases, merging of databases, and data mining, to identify
potential terrorists.
The Directive states that the U.S. "benefits greatly from
international students who study in our country. The United
States Government shall continue to foster and support
international students." However, the "Government
shall implement measures to end the abuse of student visas and
prohibit certain international students from receiving
education and training in sensitive areas, including areas of
study with direct application to the development and use of
weapons of mass destruction."
Database Technology. The Directive also instructs the
Director of the Office of
Science and Technology Policy (OSTP) to "make
recommendations about the use of advanced technology to help
enforce United States immigration laws, to implement United
States immigration programs, to facilitate the rapid
identification of aliens who are suspected of engaging in or
supporting terrorist activity, to deny them access to the
United States, and to recommend ways in which existing
government databases can be best utilized to maximize the
ability of the government to detect, identify, locate, and
apprehend potential terrorists in the United States."
The Directive continues that "Databases from all
appropriate Federal agencies, state and local governments, and
commercial databases should be included in this review. The
utility of advanced data mining software should also be
addressed. To the extent that there may be legal barriers to
such data sharing, the Director of the OSTP shall submit to
the Director of the Office of Management and Budget proposed
legislative remedies." |
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| About Tech Law Journal |
Tech Law Journal is a free access web site and e-mail alert
that provides news, records, and analysis of legislation,
litigation, and regulation affecting the computer and Internet
industry. This e-mail service is offered free of charge to
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Contact: 202-364-8882; E-mail.
P.O. Box 15186, Washington DC, 20003.
Privacy
Policy
Notices
& Disclaimers
Copyright 1998 - 2001 David Carney, dba Tech Law Journal. All
rights reserved. |
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| Wednesday, Oct 31 |
10:00 AM. The House will meet. It may take up the Aviation
Security Improvement Act and the Department of Defense
Appropriations Act for FY 2002.
9:30 - 10:30 AM. Rep.
Sherwood Boehlert (R-NY), Chairman of the House Science Committee,
will moderate a "webchat" with representatives of
companies that address computer security. The
participants will include John Conlin (COO of Vericept), Peter
Tippett (Chief Technologist of TruSecure Corp.), Bob Brennan
(CEO of Connected Corp.), Randy Sandone (CEO of Argus Systems
Group), Buky Carmeli (Ch/CEO of SpearHead Security
Technologies), Joe Magee (Chief Security Officer at Top Layer
Networks, Inc.). The discussion will cover existing security
and protection technologies, and steps federal government and
industry are taking to ensure critical systems are protected.
See, online
registration page.
10:00 AM. The House Financial
Services Committee is scheduled to mark up several bills,
including HR
556, the Unlawful Internet Gambling Funding Prohibition
Act. See, release.
Location: Room 2128, Rayburn Building.
POSTPONED. 10:00
AM. The House
Commerce Committee's Subcommittee on Telecommunications
and the Internet will hold a hearing titled "An
Examination of How the Corporation for Public Broadcasting
Uses Federal Funds for National Public Television
Programming." Location: Room 2123, Rayburn Building. |
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| Thursday, Nov 1 |
9:00 AM - 5:00 PM. National
Institute of Standards and Technology (NIST) will hold
first session of a two day workshop to discuss the development
of cryptographic key management guidance for federal
government applications. Location: Administration Building
(Bldg. 101), Lecture Room A, National Institute of Standards
and Technology, Gaithersburg, MD. See, notice
in Federal Register.
9:30 AM. The U.S.
Court of Appeals for the District of Columbia Circuit will
hear oral argument in MCI WorldCom v. FCC, No. 00-1406.
Judges Edwards, Williams and Randolph will preside. Location:
333 Constitution Ave., NW, Washington DC.
10:00 AM. The House
Commerce Committee's Subcommittee on Telecommunications
and the Internet is scheduled to hold a legislative hearing on
HR
2417, the Dot Kids Domain Name Act of 2001.
Location: Room 2123, Rayburn Building.
10:00 AM. The Senate
Judiciary Committee has scheduled an executive business
meeting. Location: Room 226, Dirksen Building.
11:00 AM. Rep. Bob
Goodlatte (R-VA) will hold a press conference to announce
the introduction of legislation regarding the problems of
illegal gambling and to update gambling statutes to
keep pace with new technologies. Location: Room 2226, Rayburn
Building.
2:00 - 4:00 PM. The U.S. International Telecommunication
Advisory Committee (ITAC) will hold a meeting regarding
preparations for the 2002 World Telecommunication Development
Conference (WTDC). See, notice
in Federal Register, October 17, 2001, Vol. 66, No. 201, Page
52825. Location: State Department, Room 1408.
2:00 PM. The Senate
Committee on Environment and Public Works will hold a
hearings to examine infrastructure security, chemical site
security, and economic recovery. Location: Room 406, Dirksen
Building.
2:30 PM. The Senate
Commerce Committee will hold a hearing on the nomination
of Arden Bement to be Director of the National Institute of Standards
and Technology (NIST). Sen.
Ron Wyden (D-OR) will preside. Location: Room 253, Russell
Building.
4:00 PM. The Cato Institute
will host a forum on the book Rebels
on the Air: An Alternative History of Radio in America.
The speaker will be Jesse Walker (author) and Tom Hazlett
(American Enterprise Institute). Reception to follow. See, Cato notice.
Location: The Cato Institute, 1000 Massachusetts Avenue, NW,
Washington DC. |
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| Friday, Nov 2 |
9:00 AM - 5:00 PM. National
Institute of Standards and Technology (NIST) will hold
second session of a two day workshop to discuss the
development of cryptographic key management guidance for
federal government applications. Location: Administration
Building (Bldg. 101), Lecture Room A, National Institute of
Standards and Technology, Gaithersburg, MD. See, notice
in Federal Register.
9:30 AM. The U.S.
Court of Appeals for the District of Columbia Circuit will
hear oral argument in COMSAT v. FCC, No. 00-1458.
Judges Edwards, Williams and Randolph will preside. Location:
333 Constitution Ave., NW, Washington DC.
9:30 AM. The Center for
Digital Democracy will hold a press conference titled
"The Future of the Internet". For more information,
contact Jeffrey Chester at 202 232-2234. Location: First
Amendment Room, National Press Club.
12:15 PM. The Federal
Communications Bar Association's (FCBA) Wireless
Telecommunications Practice Committee will host a luncheon
titled "Secondary Markets: FCC Initiatives on Promoting
the Lease of Spectrum." The speaker will be William Kunze,
Chief of the Commercial Wireless Division. The price to attend
is $15. RSVP to Wendy Parish
no later than Tuesday, October 30. Location: Sidley & Austin, 1501 K
Street, NW, Rm 6-E, Washington DC. |
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