Tech Law Journal Daily E-Mail Alert
February 20, 2002, 9:00 AM ET, Alert No. 372.
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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, Lawrence 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 Douglas 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 Powers ..."
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 Institute.
Wendy 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 case summary.
Be Sues Microsoft
2/19. Be 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 other relief.
This is D.C. No. 02837MEJ, filed in the San Francisco Division. MEJ references Magistrate Judge Maria-Elena James.
More News
2/19. Securities and Exchange Commission (SEC) Chairman Harvey Pitt gave a speech at the Winter Bench and Bar Conference of the Federal Bar Council in Puerto Rico regarding financial reporting.
2/19. The Supreme Court granted certiorari in  Ford Motor Co. v. McCauley, a case regarding federal jurisdiction. See, February 19, 2002, Order List [PDF] at page 3. The U.S. Court of Appeals (9thCir) issued its opinion [PDF] on September 6, 2001.
2/19. The Supreme Court cert denied certiorari in Feltner v. Columbia Pictures. See, February 19, 2002, Order List [PDF] at page 3.
DC Circuit Vacates Cable Broadcast Cross Ownership Rule
2/19. The U.S. Court of Appeals (DCCir) issued its opinion in Fox 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 it."
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 inadequate."
Michael 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 release [PDF].
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 release.
Congressional Delegation Travels to Moscow
2/19. A Congressional delegation that includes Reps. Bob Goodlatte (R-VA), Rick Boucher (D-VA), Lamar Smith (R-TX), Dana 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 Russian government.
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.
Thursday, Feb 21
9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Unity Broadcasting v. FCC, No. 01-1148. Judges Henderson, Randolph and Rogers will preside. Location: 333 Constitution Ave. NW.
12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will hold a brown bag lunch. RSVP to Yaron Dori at ydori Location: Hogan & Hartson, 555 13th Street, NW, Room 13E-407 (use East Tower elevators).
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, FCC notice [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 ( 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 Day recess.
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 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 release [PDF].
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