Tech Law Journal Daily E-Mail Alert
February 21, 2002, 9:00 AM ET, Alert No. 373.
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CARP Recommends Rates and Terms for Webcasting
2/20. The Copyright Arbitration Royalty Panel (CARP) released its report [1 page in PDF] recommending rates, and its report [29 pages in PDF] recommending terms, for the statutory license for eligible nonsubscription services to perform sound recordings publicly by means of digital audio transmissions, also known as webcasting, pursuant to 17 U.S.C. § 114, and to make ephemeral recordings of sound recordings for use of sound recordings under the statutory license set forth in 17 U.S.C. § 112.
The CARP recommended that both webcasters and commercial broadcasters pay a performance fee of 0.07˘ per performance, and 9% of performance fees due, for simultaneous Internet retransmissions of over the air AM or FM radio broadcasts. It recommended that the performance fee be 0.14˘ per performance and 9% of performance fees due for all other Internet transmissions.
It further recommended that non commercial broadcasters pay a performance fee of 0.02˘ per performance for simultaneous Internet retransmissions of over the air AM or FM radio broadcasts, and 0.05˘ for other Internet transmissions, including up to two side channels of programming consistent with the public broadcasting mission of the station.
Hillary Rosen, P/CEO of the Recording Industry Association of America (RIAA), stated in a release that "We would have preferred a higher rate. But in setting a rate that is about 10 times that proposed by the webcasters, the panel clearly concluded that the webcasters' proposal was unreasonably low and not credible. It is apparent to us, as it was to the Panel, that webcasters and broadcasters of every size will be able to afford these rates and build businesses on the Internet".
Jonathan Potter, Executive Director of the Digital Media Association (DiMA), stated in a release that "We are extremely disappointed, however, that the Panel's proposed rate is not significantly lower, as a lower rate would more accurately reflect the marketplace for music performance rights and the business environment of the webcast industry. We believe that the Digital Millennium Copyright Act webcast sound recording statutory license reflected Congress's effort to ensure fair compensation for creators and a reasonable and competitive business environment for webcasters. America deserves an equitable royalty formula so that both creators and consumers can continue to benefit from the advantages of Internet based broadcasting and the innovation that continues to be developed by DiMA companies. ... Webcasters will study the panel's decision further, and provide analysis and recommendations to the Copyright Office for consideration during that Office's statutory review period."
The Copyright Office stated that "The CARP report will be reviewed by the Copyright Office, which will recommend to the Librarian of Congress whether to accept, reject or modify the rates and terms set forth in the report. The Librarian must accept or reject the report no later than May 21, 2002."
House Commerce Committee Members Write FCC Re Wireless Number Portability
2/14. Rep. Billy Tauzin (R-LA), Chairman of the House Commerce Committee, Rep. John Dingell (D-MI), the ranking Democrat on the Committee, and others, wrote a letter to Federal Communications Commission (FCC) Chairman Michael Powell regarding wireless number portability.
They wrote that "wireless carriers are in the process of making hardware and software changes to their networks so that these networks will be in compliance with the Commission's rules regarding E-911 service, the Communications Assistance for Law Enforcement Act (CALEA), and thousand block number pooling. Implementation of these core Commission priorities should occur as quickly as possible. The Commission is currently faced with a decision concerning whether wireless carriers should also be required to implement wireless number portability by the same deadline that carriers are required to begin thousand block pooling. We believe that it is not prudent for the Commission to require wireless carriers to comply with thousand block pooling and number portability simultaneously. A requirement that pooling and local number portability be deployed simultaneously raises significant network reliability and integrity issues. The local number portability mandate for wireless carriers should be delayed while number pooling implementation occurs on schedule."
The letter was also signed by Rep. Fred Upton (R-MI), Chairman of the Subcommittee on Telecommunications and the Internet, and Rep. Rick Boucher (D-VA), the ranking Democrat on the Subcommittee, and by 28 other members of the full Committee.
Rep. Goodlatte Criticizes Russia on IPR Enforcement
2/20. Rep. Bob Goodlatte (R-VA), who traveled to Moscow with a Congressional delegation, criticized Russia's record on enforcement of intellectual property rights. He stated that "Protecting valuable copyrighted work is vitally important for the growth of the Internet and the global electronic marketplace. ... In the past five years, it is estimated that the copyright industries have lost over $5 billion due to piracy in Russia. The Internet will not reach its full potential until creative people feel that their works will be fully protected when they put them on the Internet."
He continued that "Russia has made progress in adopting laws that would protect copyrighted works, by they can't just talk the talk. They have to walk to walk by enforcing those laws and cracking down on the production and sale of pirated works, both online and offline ... It is in Russia's interest to promote respect for intellectual property rights and strongly prosecute pirates. This is a nation with many creative and talented people in the arts and sciences whose value to their country's economy will grow if their creativity is protected through enforcement of intellectual property laws".
EC Proposes Directive on Patents of Computer Implemented Inventions
2/20. The European Commission released a proposal for a Directive on patents of computer implemented inventions. See, document titled "Patents: Commission proposes rules for inventions using software" and document titled "Proposal for a Directive on the patentability of computer implemented inventions -- frequently asked questions".
The proposal states that inventions "whose operation involves the use of a computer program and which make a ``technical contribution´´ -- in other words which contribute to the ``state of the art´´ in the technical field concerned -- would be eligible for patents. Computer programs as such would not be eligible for a patent under the proposal. Nor would business methods that employ existing technological ideas and apply them to, for example, e-commerce. These would continue where appropriate to be covered by copyright law or the law of confidentiality."
The proposal elaborates that it "takes as its basis the concept of ``technical contribution´´ as an essential requirement of any patentable invention. ... It implies that a computer implemented invention which makes a ``technical contribution´´ to the state of the art, which would not be obvious to a person of normal skill in the field concerned, is more than just a computer program ``as such´´ and can therefore be patented.
The proposal continues that "The requirement for a ``technical contribution´´ is fully consistent with the European Patent Convention and the EU's wider international obligations". It also states that "it would put beyond doubt that creations in which the innovative element is not technical in nature, that is to say which make no technical contribution, cannot be patented. The proposal thus addresses concerns that EU patent law might in future be extended to cover fields of human endeavour which have up to now been excluded, in particular business methods and mathematical entities or logical constructs having no relation to the physical world."
Internal Market Commissioner Frits Bolkestein (Netherlands) stated that "European industry needs a legal environment that encourages innovation without stifling competition. We need certainty over what can, and cannot, be patented".
He added that "The proposed Directive would provide this certainty by making the conditions for patentability of computer implemented inventions clear and uniform. Current law on this question was drafted in the early 1970s when there was no inkling of what was to come in the shape of modern computers and networks, not to mention the emergence of a software industry worth billions of euros. The courts have done their best to develop the law in response to the changing environment, but there is now no alternative to legislation at European level to prevent potentially divergent interpretations by the courts."
CompTel Seeks Hearing on FCC NPRM on Classification of Services
2/20. Russell Frisby, President of CompTel, wrote a letter to Sen. Ernest Hollings (D-SC), Chairman of the Senate Commerce Committee, requesting a hearing on the Federal Communications Commission's (FCC)  Notice of Proposed Rulemaking (NPRM) regarding classification of services.
The FCC held a meeting on February 14 at which it announced a NPRM regarding classification of services. It then issued a press release that is associated with this NPRM. This release states that this NPRM "is poised to resolve outstanding issues regarding the classification of telephone based broadband Internet access services and the regulatory implications of that classification". It further states that the "the FCC tentatively concluded the wireline broadband Internet access services -- whether provided over a third party's facilities or self-provisioned facilities -- are information services, with a telecommunications component, rather than telecommunications services. Information services include such services as voice mail and e-mail, which ride over telecommunications facilities." This is CC Docket 02-33.
Frisby wrote that such a finding "will simply serve to benefit the very largest carriers at the expense of competition and consumers." See, CompTel release.
More News
2/20. World Trade Organization (WTO) Director General Mike Moore gave a speech titled "Making Globalization Work" to the International Confederation of Free Trade Unions (ICFTU) in Geneva, Switzerland.
2/20. President Bush and South Korean President Kim Dae-Jung held a joint press conference. Kim Dae-Jung stated that "President Bush and I concurred that continued expansion and progress of bilateral, economic and trade relations are in the interest of both our countries. Furthermore, we also agreed to further deepen cooperative relations at the multilateral level, such as the WTO -- development agenda." Bush stated that "It's also vital that we continue to trade together. ... we also discussed ways to make sure our trade was more open and fair to both sides." See, transcript.
2/20. The U.S. Court of Appeals (6thCir) issued its opinion in USA v. Yang, a criminal case involving attempted theft of a trade secret and conspiracy to commit theft of a trade secret in violation of the Economic Espionage Act of 1996 (EEA), 18 U.S.C. § 1832.
2/20. The Federal Trade Commission (FTC) announced that it filed a civil complaint [PDF] in U.S. District Court (SDFl) against Stock Value 1, Inc. and its President, Deborah Jenkins, alleging violation of the Federal Trade Commission Act in connection with the marketing of "products that purportedly block electromagnetic energy emitted from cellular and cordless telephones". The FTC alleges that defendants engaged in deceptive acts or practices in or affecting commerce in violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), and false advertising in violation of Section 12(a) of the FTC Act, 15 U.S.C. § 52(a). The FTC seeks an injunction. The FTC also filed a similar civil complaint [PDF] in U.S. District Court (EDCal) against Comstar Communications, Inc. and Randall Carasco. See also, FTC release.
2/20. The U.S. Patent and Trademark Office (USPTO) published a copy of the February issue of USPTO Today [PDF] in its web site.
Thursday, Feb 21
The House and Senate are in recess this week.
8:30 AM. Treasury Secretary Paul O'Neill will speak at a U.S. Chamber's Policy Insiders breakfast regarding the administration's economic and budget priorities. The price to attend is $60 at the door for members and $75 for non-members. For more information, call 202 463-5600. Location: U.S. Chamber of Commerce, 1615 H Street, NW.
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 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 Mass. Ave., 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].
Wednesday, Feb 27
Day one of a two day conference titled "Combatting Cyber Attacks on Your Corporate Data". See, conference information page. Location: Omni Shoreham Hotel.
10:00 AM. The Senate Judiciary Committee will hold a hearing to examine sovereign immunity and the protection of intellectual property. Sen. Patrick Leahy (D-VT) will preside. Location: Room 226, Dirksen Building.
6:00 - 8:00 PM. The FCBA will host a Continuing Legal Education (CLE) seminar titled "Unlicensed Operation Under FCC Rules". The price to attend is $60 for FCBA members, $50 for government and law student members, and $80 for non-members. Registrations and cancellations due by 12:00 NOON on Tuesday, February 26. To register, contact Wendy Parish at wendy Location: Capital Hilton Hotel, 16th & K Streets, NW.
Extended deadline to submit reply comments to the Copyright Office in response to its March 9, 2001, Notice of Inquiry concerning the interpretation and application of the copyright laws to certain kinds of digital transmissions of prerecorded musical works in light of an agreement between the RIAA, the NMPA, and The Harry Fox Agency (HFA). See, 17 U.S.C. § 115. See, notice in Federal Register. This is Docket No. RM 2000-7B.
People and Appointments
2/20. The Federal Election Commission (FEC) named Rhonda Vosdingh Associate General Counsel for Enforcement in the FEC's Office of General Counsel (OGC). She has been with the FEC since 1994. See, FEC release.
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