|Supreme Court Grants Cert
in Challenge to Copyright Term Extension Act
|2/19. The Supreme
Court granted certiorari in Eldred
v. Ashcroft, a constitutional challenge to the
Copyright Term Extension Act, which retroactively extended the
maximum duration of copyrights from 75 to 95 years.
Background. The 105th Congress (1997-1998) passed, and
President Clinton signed into law, two copyright statutes that
the Plaintiffs and their lawyers dislike. The original
plaintiff of record is Eric Eldred, the proprietor of the
unincorporated Eldritch Press, a web site that republishes the
works of others which are not protected by copyright. However,
the suit was brought by a group of activist law professors, Charles Nesson,
Lessig, and Jonathan
Zittrain. At the time the lawsuit was filed, all worked at
The Berkman Center for
Internet & Society at Harvard Law School.
Proceedings Below. Plaintiffs filed a complaint (see, Second
Amended Complaint) in U.S.
District Court (DC) against former Attorney General Janet
Reno seeking injunctive and declaratory relief. They seek a
declaration that the Copyright
Term Extension Act (CTEA) is unconstitutional; they also
seek an injunction against enforcement of the No
Electronic Theft Act (NET ACT) against violators of the
CTEA. The CTEA retroactively extended the maximum duration of
copyrights from 75 to 95 years. The District Court granted
summary judgment denying relief to the plaintiffs. The Court
wrote a short memorandum
explaining its ruling. The U.S. Court of Appeals (DCCir)
issued its opinion
affirming the District Court on February 16, 2001. Chief Judge
Ginsburg wrote the opinion; Karen Henderson joined; and David
Sentelle dissented. The Court of Appeals denied
plaintiffs' petition for rehearing en banc on July 13, 2001.
Sentelle and David Tatel dissented. See, opinion.
Certiorari. Plaintiffs wrote in their Petition
for Writ of Certiorari that the issues are: "Did the
D.C. Circuit err in holding that Congress has the power under
the Copyright Clause to extend retrospectively the term of
existing copyrights? Is a law that extends the term of
existing and future copyrights “categorically immune from
challenge under the First Amendment”? May a circuit court
consider arguments raised by amici, different from
arguments raised by a party, on a claim properly raised by a
party?" See also, brief
[PDF] of the government opposing certiorari, and plaintiffs' reply
brief. The Supreme Court granted writ of certiorari,
without opinion. See, February 19, 2002, Order
List [PDF] at page 3.
Constitution, Art. I, Sec. 8. The Constitution
provides, in relevant part, that "Congress shall have the
Power... To regulate Commerce ... To promote the Progress of
Science and useful Arts, by securing for limited Times to
Authors and Inventors the exclusive Right to their respective
Writings and Discoveries ... To make all Laws which are
necessary and proper for carrying into Execution the foregoing
The CTEA is supported by holders of entertainment industry
copyrights, and their trade associations, such as the Association of American
Publishers, Motion Picture
Association of America (MPAA), National Music Publishers'
Association (NMPA), and Recording
Industry Association of America (RIAA). The CTEA is
opposed by some law professors, library groups, and the Cato
Seltzer, of the Berkman Center, commented in a release
on the Supreme Court's decision to hear the case: "From
Lawrence Lessig and the Openlaw team: We are extremely pleased
to report that the Supreme Court has today granted cert in
Eldred v. Ashcroft. After the case was listed on the court's
conference calendar 4 weeks in a row, the court decided to
hear the full range of issues in the appeal."
The Consumer Electronics
Association (CEA) stated in a release
that "The Supreme Court's decision to hear arguments in
this copyright case affirms the grave threat to innovation and
public access that has been evident in seemingly indefinite
copyright term extensions by Congress. ... It is highly
doubtful the Framers intended the `limited´ term of copyright
to be extended on a routine and regular basis."
See also, Berkman
Center case summary and TLJ
|Be Sues Microsoft
Incorporated, maker of the BeOS operating system, filed a complaint
[PDF] in U.S.
District Court (NDCal) against Microsoft alleging
violation of federal antitrust laws and California law.
Count one alleges monopoly maintenance of the Intel compatible
PC operating system market in violation of Section 2 of the
Sherman Act. Count two alleges exclusive dealing in violation
of Section 1 of the Sherman Act and Section 3 of the Clayton
Act. Count three alleges violation of the California
Cartwright Act, California Business and Professions Code, §§
16720 et seq. Count four alleges unfair competition under the
California Business and Professions Code, §§ 17200 et seq.
Count five alleges tortious interference under California
state law. Be seeks treble damages, punitive damages, and
This is D.C. No. 02837MEJ, filed in the San Francisco
Division. MEJ references Magistrate Judge Maria-Elena James.
|DC Circuit Vacates Cable
Broadcast Cross Ownership Rule
|2/19. The U.S. Court of Appeals (DCCir) issued its opinion
v. FCC, holding that the Federal Communications Commission's
(FCC) national TV station ownership rule (NTSO) and its cable
broadcast cross ownership rule (CBCO) both violate the
Administrative Procedure Act (APA) as arbitrary and
capricious. The Court vacated the CBCO rule, but merely
remanded the NTSO rule to the FCC.
Congress passed the Telecom Act of 1996. It provides, at
Section 202(h), that the FCC "shall review its rules
adopted pursuant to this section and all of its ownership
rules biennially as part of its regulatory reform review under
section 11 of the Communications Act of 1934 and shall
determine whether any of such rules are necessary in the
public interest as the result of competition. The Commission
shall repeal or modify any regulation it determines to be no
longer in the public interest."
The FCC maintained its NTSO rule (47
C.F.R. § 73.3555(e)) and its CBCO rule (47
C.F.R. § 76.501(a)) in 1998. Fox Television Stations and
various other TV networks and cable companies petitioned the
Court of Appeals for review of the FCC's 1998 decision not to
repeal or modify these two rules. The petitioners asserted
that these rules violate the Administrative Procedure Act (APA),
§ 202(h) of the Telecom Act of 1996, and the First
Amendment of the Constitution.
The Court of Appeals held: "We conclude that the
Commission's decision to retain the rules was arbitrary and
capricious and contrary to law. We remand the national
television station ownership rule to the Commission for
further consideration, and we vacate the cable/ broadcast
cross ownership rule because we think it unlikely the
Commission will be able on remand to justify retaining
Chief Judge Douglas
Ginsburg, writing for a three judge panel, found that the
FCC "has adduced not a single valid reason to believe the
NTSO Rule is necessary in the public interest, either to
safeguard competition or to enhance diversity. Although we
agree with the Commission that protecting diversity is a
permissible policy, the Commission did not provide an adequate
basis for believing the Rule would in fact further that cause.
We conclude, therefore, that the 1998 decision to retain the
NTSO Rule was arbitrary and capricious in violation of the APA."
The Court similarly held that the CBCO violates of the APA. It
found that the FCC "failed to consider the increased
number of television stations now in operation, and it is
clear that the Commission failed to reconcile the decision
under review with the TV Ownership Order it had issued only
shortly before. We conclude, therefore, that the Commission's
diversity rationale for retaining the CBCO Rule is woefully
Powell, who was a FCC Commissioner in 1998, dissented from
the retention of the NTSO and CBCO rules. He is now Chairman
of the FCC, and is joined by two other Republican
Commissioners, Kevin Martin and Kathleen Abernathy, who are
skeptical of ownership rules.
|People and Appointments
|2/19. Jeffery Goldthorp was named Chief of the
Network Technology Division at the Federal Communications
Commission's (FCC) Office of
Engineering and Technology (OET). Goldthorp will also
represent the OET on the FCC’s Homeland Security Policy
Council. He will also be the designated federal official for
both the Network Reliability
and Interoperability Council and the Technology Advisory
Council. He was previously General Manager of Network Access
Engineering Services at Telcordia
Technologies. See, FCC
2/19. The Department of Justice's (DOJ) Office of Legal Policy (OLP)
announced several appointments and promotions. Jennifer
Newstead was promoted from Deputy Assistant Attorney
General (DAAG) to Principal DAAG of the OLP. Before joining
the DOJ in 2001 she was an attorney at the law firm of Davis Polk & Wardwell. Michael
Carrington joined the OLP as a DAAG. Don Willett
also joined the OLP as a DAAG. He was previously Special
Assistant to President Bush and Director of Law and Policy for
the White House Office of Faith Based and Community
Initiatives. Before that, he worked for Governor Bush, and for
the Bush Cheney campaign. Grace Mastalli, who was a
DAAG at the OLP, left to become Chief of Staff and Deputy
Director for Law and Policy for the Joint Foreign Terrorist
Tracking Task Force. Viet Dinh
remains Assistant Attorney General in charge of the OLP. The
OLP is involved in the formulation of legal policy, such as
drafting and advocating passage of the USA PATRIOT Act, also
known as the anti terrorism bill. See, DOJ
Travels to Moscow
|2/19. A Congressional delegation that includes Reps. Bob Goodlatte
(R-VA), Rick Boucher
(D-VA), Lamar Smith
Rohrabacher (R-CA), Martin
Sabo (D-MN), James
Walsh (R-NY), and John
LaFalce (D-NY), traveled to Moscow, Russia, to discuss
e-commerce and cyber security issues with members of the
Rep. Goodlatte stated in a release that "The Russian
government is divided between those who support the same
tired, old proposals, like key escrow, that drain consumer
confidence in their security online, and those who support a
free and open Internet, where consumers are given the tools to
protect their privacy and security. The U.S. has abandoned key
escrow as a policy position shared by Britain, France, and the
rest of the nations that have entered the Information Age.
Russia's economic prosperity depends on the success of those
who argue for strong privacy protections and against
government monitoring schemes".
This delegation goes next to Brussels, Belgium.
|Wednesday, Feb 20
|The House and Senate are in recess this week.
9:00 AM - 4:30 PM. The Federal
Trade Commission (FTC) and the Antitrust Division of the
Department of Justice (DOJ) will hold the third in a series of
joint hearings on antitrust and intellectual property.
There will be two sessions (9:00 AM - 12:30 PM and 2:00 - 4:30
PM) titled "Economic Perspectives on Intellectual
Property, Competition and Innovation". The morning
speakers will be Wesley Cohen (Carnegie Mellon University),
Robert Evenson (Yale), Edmund Kitch (University of Virginia),
James Langenfeld (LECG), and Maureen O’Rourke (Boston
University). The afternoon speakers will be Shane Greenstein
(Northwestern University), Margaret Calvert (Economists,
Inc.), Joshua Lerner (Harvard Business School), Stan Liebowitz
(University of Texas at Dallas), Philip Nelson (Economists,
Inc.), Janusz Ordover (New York University), Lawrence White
(New York University). Location: Room 432, FTC, 600
Pennsylvania Ave., NW.
8:00 AM - 6:00 PM. The Federal
Communications Bar Association (FCBA) and Georgetown University
Law Center (GULC) will co-host a CLE program titled
"FCC Speaks". FCC Chairman Michael Powell will speak
on "The Path to the Digital Broadband Migration" at
8:30 AM. FCC Commissioners Abernathy, Copps, and Martin will
participate in a panel discussion at 4:20 PM. The program will
also include panels titled "National Broadband
Policy", "Competition Policy Panel",
"Spectrum Allocation Policy", "Media Ownership
Working Group", "Digital Television Task
Force", and "Homeland Security Council". See, full
schedule. The price to attend is $795, $745 (GULC alumni),
$695 (FCBA members), $595 (government employees). Location:
GULC, Moot Courtroom, 600 New Jersey Ave., NW.
|Monday, Feb 25
|The Senate will reconvene at 12:00 NOON following its
Presidents Day recess. The House will not be in session.
Deadline to submit oppositions and responses to the FCC's Cable Services Bureau
regarding the applications of Hughes Electronics Corporation
and EchoStar Communications Corporation to the FCC requesting
consent to the transfer of control of licenses and
authorizations involved in the EchoStar DirecTV merger. See,
[MS Word]. This is CS Docket No. 01-348.
4:00 PM. Deadline for Members of the House to submit to the House Rules Committee
proposed amendments to HR
1542, the Tauzin Dingell bill. See, Cong. Rec., Feb. 7,
2002, at H217.
6:30 PM. The National Press
Club will host a panel discussion on distance learning.
The topics to be discussed include copyright issues. The
speakers will be Deborah Everhart (Blackboard.com) and Martin
Irvine (Georgetown University). Coffee reception starts at
6:30 PM. The program starts at 7:15 PM, and is scheduled to
finish at 9:00 PM. Location: NPC, 529 14th St. NW, 13th Floor.
|Tuesday, Feb 26
|The House will reconvene at 2:00 PM following its Presidents
12:15 PM. The FCBA's
Cable Practice Committee and the National Cable &
Telecommunications Association (NCTA) will host a luncheon.
The speaker will be Sarah Whitesell, Associate Bureau Chief of
the FCC's Cable Services
Bureau. The price to attend is $15. RSVP to Wendy Parish
at wendy @fcba.org.
Reservations and cancellations must be received by Friday,
February 22. Location: 1724 Massachusetts Avenue, NW.
Deadline to submit reply comments to the FCC in the
matter of Ambient's application for a determination that it is
an exempt telecommunications company. It is an electric power
company that also provides broadband Internet access and
related information services over power lines to electrical
outlets in residences. See, FCC
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