Tech Law Journal Daily E-Mail Alert
February 26, 2002, 9:00 AM ET, Alert No. 376.
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Supreme Court Limits Scope of Review in Eldred Case
2/25. The Supreme Court issued an order in Eldred v. Ashcroft limiting the issues to be reviewed by the Supreme Court. This is a constitutional challenge to the Copyright Term Extension Act, which retroactively extended the maximum duration of copyrights from 75 to 95 years. The Supreme Court granted certiorari on February 19, without limiting the scope of the Court's review. See, February 19, 2002, Order List [PDF], at page 3. Then, on February 25, the Court released a second order that states that "The order granting the petition for a writ of of certiorari is amended to read as follows: The petition for a writ of certiorari is granted limited to Questions 1 and 2 presented by the petition." See, February 25, 2002, Order List [PDF], at page 2.
Scope of Review. The Petition for Writ of Certiorari lists three questions: "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?" Hence, the Court will review the constitutional questions, but not the procedural question regarding amicus curiae briefs.
Background. Plaintiffs filed a complaint (see, Second Amended Complaint) in U.S. District Court (DC) against former Attorney General Janet Reno seeking a declaration that the Copyright Term Extension Act (CTEA) is unconstitutional, and an injunction against enforcement of the No Electronic Theft Act (NET ACT) against violators of the CTEA. The CTEA, passed in the 105th Congress (1997-1998), retroactively extended the maximum duration of copyrights from 75 to 95 years. The U.S. District Court (DC) 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. See also, brief [PDF] of the government opposing certiorari, and plaintiffs' reply brief. See also, Berkman Center case summary and TLJ case summary.
Supreme Court Denies Cert in Zoning Case Involving Webcasting
2/25. The Supreme Court denied a petition for writ of certiorari in Tampa v. Voyeur Dorm, a municipal zoning case involving the operation of a pormographic web site. Voyeur Dorm operates a web site that webcasts the activities of five women in a house located in the City of Tampa. Tampa alleged that this violates the Tampa City Code prohibition on the operation of an adult entertainment establishment in a residential neighborhood. The U.S. District Court (MDFl) held for Tampa. The U.S. Court of Appeals (11thCir) reversed. The Supreme Court denied certiorari, without opinion. See, February 25, 2002, Order List [PDF], at page 2.
FCC Seeks Public Comment on WRC-03 Recommendations
2/25. The Federal Communications Commission (FCC) issued a notice [16 pages in PDF] requesting public comments on the World Radiocommunication Conference Advisory Committee's (WRC-03 Advisory Committee) recommendations of February 6, 2002, regarding the 2003 World Radiocommunication Conference (WRC-03). (The recommendations are attached to this notice.) The deadline for comments is March 15, 2002.
Company Fined for Illegal Encryption Exports
2/25. The Commerce Department's Bureau of Export Administration (BXA) announced that it imposed a $95,000 civil penalty on Neopoint, Inc. to settle allegations that it exported encryption software to South Korea in violation of U.S. export control laws. The BXA stated in a release that "on ten occasions between March 1998 and June 1999, Neopoint exported 128-bit encryption software to two firms in South Korea without the required export licenses. In all but one of these shipments, BXA alleged that Neopoint knew that an export license was required."
Insider Trading
2/25. The Securities and Exchange Commission (SEC) filed a complaint in U.S. District Court (CDCal) against John Cassese alleging violation of federal securities laws in connection with his insider trading in the securities of Data Processing Resources Corporation (DPRC). Cassese is the Chairman and President of Computer Horizons Corporation, which provides temporary staffing of computer and information technology personnel.
Compuware acquired DPRC in 1999. The complaint states that "After learning of Compuware's intention to acquire DPRC, Cassese, on June 22, 1999, purchased 15,000 shares of DPRC stock. On June 24, 1999, Compuware and DPRC publicly announced the tender offer in a press release. Later that day, Cassese sold the 15,000 shares realizing a profit of $150,937.50."
The SEC simultaneously settled the case. It stated in a release that "Without admitting or denying the allegations in the complaint, Cassese consented to the entry of a final judgment that would permanently enjoin him from future violations of Section 14(e) of the Exchange Act and Rule 14e-3 thereunder. Cassese also agreed to disgorge $150,937.50 in ill gotten gains, plus prejudgment interest, and will pay a civil penalty of $150,937.50."
Trade News
2/25. The Progressive Policy Institute (PPI) a Democratic think tank released a memorandum titled "Trade Debate in the Senate". The memo, which discusses issues faced by the Senate in its upcoming consideration of fast track legislation, was written by Edward Gresser.
2/25. President Bush announced that Commerce Secretary Donald Evans will lead a trade delegation to Beijing and Shanghai, PR China, on April 21-25, 2002. See, DOC release.
People and Appointments
2/25. Federal Bureau of Investigation (FBI) Director Robert Mueller announced the appointment of Special Agents in Charge of FBI field offices in Columbia (SC), Jacksonville (FL), Los Angeles, Milwaukee, New York, Philadelphia, Springfield (IL), and Tampa. See, FBI release.
Groups Criticize Export of Electronic Waste
2/25. A group named the Basel Action Network (BAN) released a report [caution: this PDF file is a very long download] condemning the practice of exporting old computer equipment to Asian countries for recycling.
The report asserts that "Electronic waste or E-waste is the most rapidly growing waste problem in the world. It is a crisis not only of quantity but also a crisis born from toxic ingredients -- such as the lead, beryllium, mercury, cadmium, and brominated flame retardants that pose both an occupational and environmental health threat. But to date, industry, government and consumers have only taken small steps to deal with this looming problem."
The report further states that "Rather than having to face the problem squarely, the United States and other rich economies that use most of the world's electronic products and generate most of the E-Waste, have made use of a convenient, and until now, hidden escape valve -- exporting the E-waste crisis to the developing countries of Asia.
The report recommends that the U.S. ban "exports of E-wastes that are hazardous wastes including computer monitors, whole computers, and circuit boards." It also recommends that "all computer monitors, television sets, and other electronic devices containing hazardous materials must be clearly labeled to identify environmental hazards and proper materials management." It also recommends that equipment manufacturers be required to "take back" their products, free of charge.
BAN describes itself as an "international network of activists seeking to put an end to economically motivated toxic waste export and dumping -- particularly hazardous waste exports from rich industrialized countries to poorer, less industrialized countries". It seeks to end "toxic colonialism". BAN stated also that the report was prepared by BAN and the Silicon Valley Toxics Coalition, with contributions from Toxics Link India, a Pakistani group called SCOPE, and Greenpeace China.
Senate to Hold Hearing on Digital Divide
2/25. The Senate Commerce Committee's Science, Technology, and Space Subcommittee will hold hearing on February 27 on S 414, the NTIA Digital Network Technology Program Act. This bill would authorize $250 Million per year for five years for a grant program to promote digital network technologies. It would be administered by the National Telecommunications and Information Administration (NTIA).
The bill is sponsored by Sen. Max Cleland (D-GA), a member of the Committee. It is cosponsored by Sen. Ernest Hollings (D-SC), the Chairman of the Committee, and by others. It would amend the National Telecommunications and Information Administration Organization Act, 47 U.S.C. § 901, et seq.
Sen. Cleland stated in the Senate on February 28, 2001 that "last October the U.S. Department of Commerce published its latest report on Internet access in the United States. According to the Department's Falling Through the Net: Toward Digital Inclusion, more Americans than ever are connected to the Internet and groups that have traditionally been digital ``have nots´´ are making significant gains. Although a record number of Americans have Internet access, the report concludes that a ``digital divide´´ still exists ``between those with different levels of income and education, different racial and ethnic groups, old and young, single and dual-parent families, and those with and without disabilities.´´ "
Sen. Cleland continued that "Now more than ever it is critical that all Americans have the tools necessary for full participation in the Information Age economy. However, the Commerce report finds that in some cases, the digital divide has expanded over the last 20 months." See, Cong. Rec., Feb. 28, 2001, at S1705.
Adam Theier and Lucas Mast of the Cato Institute wrote in a commentary to be released on February 27 that "the current story of computer use and Internet diffusion continues to be nothing short of amazing" when compared to the much slower adoption of other technologies, such as telephones, electricity, and radio. They state that the NTIA's annual Falling Through the Net reports are the "silliest Chicken Little crusade of all time".
More News
2/25. The U.S. Court of Appeals (3rdCir) issued its opinion in Citizens Financial Group v. Citizens National Bank, a case involving allegations of trademark infringement and unfair competition under the Lanham Act. The Appeals Court affirmed the District Court's denial of Citizens National Bank's motion for a preliminary injunction. The Appeals Court designated its opinion not precedential.
2/25. The U.S. Court of Appeals (8thCir) issued its opinion [PDF] in Pamida v. E.S. Originals, a suit seeking indemnification for costs and attorneys fees incurred in the defense and settlement of an earlier patent infringement action. At issue is pre-trial discovery from attorneys. The District Court refused to quash subpoenas in their entirety. The Court of Appeals affirmed.
2/25. Deutsche Telekom stated in a release that it "has today been informed by the Federal Cartel Office in Bonn of its final decision not to grant approval for the announced sale of Deutsche Telekom's cable TV businesses to the Liberty Media Corporation. ... The Federal Cartel Office had already issued a warning in its preliminary assessment on 31 January 2002."
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Tuesday, Feb 26
The House will reconvene following its Presidents Day recess. It will meet at 12:30 PM for morning hour, and 2:00 PM for legislative business. No votes are expected before 6:30 PM. The House will consider a number of bills under suspension of the rules.
10:00 AM. The Senate Appropriations Subcommittee's Subcommittee on Commerce, Justice, State, and the Judiciary will meet in open session regarding the Department of Justice (DOJ) budget request for FY 2003. Attorney General John Ashcroft is scheduled to appear. Location: Room 138, Dirksen Building.
10:00 AM. The Senate Banking Committee will hold a hearing to examine accounting and investor protection issues, focusing on proposals for change relating to financial reporting by public companies, accounting standards, and oversight of the accounting profession. See, witness list. Location: Room 538, Dirksen Building.
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 Massachusetts Avenue, NW.
1:00 - 4:00 PM. Rep. Gil Gutknecht (R-MN), Vice Chairman of the House Science Committee, will hold a "Technology and Terrorism Demonstration". Location: Room 2318, Rayburn Building.
4:00 PM. The House Judiciary Committee's Subcommittee on Crime will mark up HR 3482, the "Cyber Security Enhancement Act of 2001". Rep. Lamar Smith (R-TX), the Chairman of the Subcommittee, and the sponsor of the bill, will likely offer an amendment in the nature of a substitute. Location: Room 2237, Rayburn Building.
5:00 PM. The House Rules Committee will meet to adopt a rule for consideration of  HR 1542, the Tauzin Dingell bill. February 25 was the deadline to submit proposed amendments to the Rules Committee. See, summary.
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
The House will meet at 10:00 AM. The House is scheduled to begin consideration of HR 1542, the Tauzin Dingell bill.
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. See, witness list. Location: Room 226, Dirksen Senate Office Building.
10:00 AM. The House Ways and Means Committee will hold a hearing on the WTO's extraterritorial income decision. Location: Room 1100, Longworth House Office Building.
10:00 AM. The House Financial Services Committee will hold a hearing to receive testimony of the Alan Greenspan, Chairman of the Federal Reserve Board of Governors. Location: Room 2128, Rayburn Building.
2:00 PM. The Senate Commerce Committee's Science, Technology, and Space Subcommittee will hold a hearing on S 414, the NTIA Digital Network Technology Program Act. This bill would authorize $250 Million per year for five years for a grant program for digital network technologies. Location: Room 253, Russell Building.
6:00 - 8:00 PM. The FCBA will host a Continuing Legal Education 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.
Thursday, Feb 28
The House will meet at 10:00 AM. The House is scheduled to continue its consideration of HR 1542, the Tauzin Dingell bill.
Day two of a two day conference titled "Combatting Cyber Attacks on Your Corporate Data". See, conference information page. Location: Omni Shoreham Hotel.
9:30 AM. The Senate Commerce Committee will hold a hearing titled Protecting Content in a Digital Age -- Promoting Broadband and the Digital Television Transition. Sen. Ernest Hollings (D-SC) will preside. The scheduled witnesses are Michael Eisner (Ch/CEO of Disney), Peter Chernin (P/COO of News Corp.), Leslie Vadasz (EVP of Intel), Andreas Bechtolsheim (Cisco), James Meyer (Thomson Multimedia), Robert Perry (Mitsubishi Digital Electronics). Location: Room 253, Russell Building.
10:00 AM. The Senate Judiciary Committee is scheduled to hold a business meeting. Location: Room 226: Dirksen Building.
12:15 PM. The FCBA's Transactional Practice Committee will host a brown bag lunch on mass media transactions. RSVP to Sue Fischer at 202 776-2000. Location: Dow Lohnes & Albertson, 1200 New Hampshire Ave., NW.
1:00 - 5:00 PM. The FCC's Wireless Telecommunications Bureau will hold a public forum addressing issues related to the acquisition and analysis of data on the state of competition in the commercial mobile radio services industry for the 7th Annual CMRS Competition Report. Location: FCC, 445 12th Street, SW, Room TW-C305.
4:00 PM. Adam Mossoff (Professor at Northwestern Univ. School of Law) will give a lecture titled "The Relevance of Natural Rights in Intellectual Property Today". For more information, contact Prof. Robert Brauneis at rbraun or 202 994-6138. Location: George Washington Univ. Law School, 2000 H Street, NW.
6:30 - 8:30 PM. FCC Commissioner Michael Copps will speak at a FCBA reception on "the value of mentoring in building a career." Location: Kelley Drye & Warren, 1200 19th Street, NW.
Friday, March 1
The House will not be in session.
Deadline to submit public comments to the FTC regarding the use of disgorgement as a remedy for competition violations, including those involving the Hart Scott Rodino Premerger Notification Act, FTC Act, and Clayton Act. See, FTC release and Federal Register notice.
Deadline to file comments with the FCC in response to its notice of proposed rulemaking regarding the appropriate regulatory requirements for incumbent local exchange carriers' provision of broadband telecommunications services. The FCC adopted this NPRM at its December 12 meeting. See, notice in the Federal Register.
Deadline to submit reply comments to the FCC regarding Verizon's Section 271 application to provide in region interLATA services in the state of Vermont. See, FCC notice [PDF].