Tech Law Journal Daily E-Mail Alert
March 11, 2002, 9:00 AM ET, Alert No. 385.
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Sun Sues Microsoft
3/8. Sun Microsystems filed a complaint [7MB in PDF] in U.S. District Court (NDCal) against Microsoft alleging violation of federal and California antitrust laws, and copyright infringement. Sun also filed a Motion for Preliminary Injunction [3MB in PDF]. Sun recently settled a 1997 lawsuit against Microsoft. The 76 page complaint seeks a crippling set of regulations of Microsoft's software design and licensing practices, as well as treble damages.
The suit, which is built upon the opinion [125 pages in PDF] of the U.S. Court of Appeals (DCCir) in U.S. v. Microsoft, 253 F.3d 34, alleges that Microsoft illegally maintained monopoly power over the market for Intel compatible PC operating systems by engaging in anticompetitive acts that impeded the distribution and/or use of Sun's Java.
Alleged Violations. The complaint alleges illegal maintenance of an Intel compatible PC operating system monopoly in violation of § 2 of the Sherman Act, illegal monopolization of a web browser market in violation of § 2 of the Sherman Act, unlawful tying of MSIE to Windows operating systems in violation of § 1 of the Sherman Act, attempted monopolization of a workgroup server operating system market in violation of § 2 of the Sherman Act, unlawful tying of Windows server operating system to Windows PC operating systems in violation of § 1 of the Sherman Act, unlawful tying of IIS web server software to Windows workgroup server operating systems in violation of § 1 of the Sherman Act, unlawful tying of the .NET framework to Windows PC and workgroup server operating systems in violation of § 1 of the Sherman Act, exclusive dealing in violation of § 1 of the Sherman Act, and illegal monopolization of the Office suite in violation of § 2 of the Sherman Act.
The complaint also alleges two violations of California state law: the California Cartwright Act, and unfair competition.
Finally, the complaint alleges copyright infringement. Sun alleges that Microsoft has distributed an unlicensed implementation of the Java Runtime Environment.
Relief Requested. Sun seeks declaratory, injunctive, and monetary relief. It seeks an injunction against distribution of any Microsoft Windows PC operating system, or the .NET Framework, "unless Microsoft distributes the most current, unmodified binary implementation of the Java Runtime Environment for Windows provided by Sun to Microsoft, and ensures it is installed and enabled as the default Java Runtime Environment for any and all configurations of such products ..."
Sun also seeks to compel Microsoft to disclose to the public the source code for any Microsoft browser product, including a "complete specification of all interfaces and protocols between such browser product and any Microsoft operating system or middleware product"; Sun also seeks to compel Microsoft to give free licenses to "use and distribute products implementing or derived from Microsoft's source code ..."
Sun also seeks an injunction against bundling IIS with any Windows server OS.
Sun seeks an injunction against "distributing any Microsoft product that subsets or supersets any published standard or protocol approved by and available for non-discriminatory license through an independent, internationally recognized industry standards organization".
Sun also seeks to compel Microsoft to publicly disclose and license for free "all interfaces, protocols, and technical information that Microsoft employs to enable Microsoft's PC operating system to interoperate effectively with applications and/or platform software (e.g. workgroup server operating systems, middleware, etc.) installed on that or any other device, including (without limitation) any PC, server, telephone, personal digital assistant or set-top box".
Finally, Sun seeks an injunction against "distributing Microsoft's Virtual Machine for Java unless it is shipped as an integrated component" and in Sun's version.
AOL Time Warner also filed, in January, a complaint against Microsoft alleging violation of antitrust law.
The lawsuit was filed in San Jose, California. Sun demanded a jury. Sun's attorneys of record are Day Casebeer, Brobeck Phleger, and Clifford Chance. Lead counsel is Lloyd Day. See also, Sun release.
FTC Sues Information Brokers for Pretexting
3/8. The Federal Trade Commission (FTC) announced that it filed three civil complaints in U.S. District Courts against information brokers alleging violation of the Federal Trade Commission Act and the Gramm Leach Bliley Act in connection with the practice of pretexting, or obtaining confidential financial information under false pretexts. The FTC also announced that it settled the three lawsuits.
See, for example, complaint [PDF] and stipulated final judgment [PDF] in FTC v. Information Search, Inc. This complaint alleges that "To obtain customer information, defendants use, or cause others to use, false pretenses, fraudulent statements, fraudulent or stolen documents or other misrepresentations, including posing as a customer of a financial institution, to induce officers, employees, or agents of financial institutions (and persons defendants believe to be such officers, employees, or agents) to disclose customer information."
The complaint further alleges that defendants advertised and sold their services on the web. Under the terms of the settlement, defendants will cease their practice of pretexting, and not disclose information acquired by pretexting.
Howard Beales, Director of the FTC's Bureau of Consumer Protection, stated in a release that "The clients of pretexters are often law firms and other businesses. These buyers should beware because knowingly obtaining pretexted information is illegal as well."
House Committee Holds Hearing on Math Science & Engineering Grants
3/7. The House Science Committee's Subcommittee on Research held a hearing titled "Meeting the Demands of the Knowledge Based Economy: Strengthening Undergraduate Science, Mathematics and Engineering Education". The hearing also focused on HR 3130 and S 1549, the "Technology Talent Act".
These companion bills would authorize the appropriation of $25 Million for Fiscal Year 2002, and such sums as necessary for the succeeding years, to create a competitive grant program at the National Science Foundation (NSF) to fund institutions to bring more students into science, mathematics, and engineering programs. Congress provided $5 Million in FY02 and $2 Million for FY03 for a pilot program.
See, prepared testimony of Carl Weiman (University of Colorado), Steven Johnson (Sinclair College), Kathleen Howard (Swarthmore), Narl Davidson (Georgia Tech), and Daniel Wubah (James Madison University).
People and Appointments
3/5. announced that Chief Financial Officer Warren Jenson intends resign later this year. See, Amazon release.
3/9. Sen. Fred Thompson (R-TN) announced that he will not seek re-election to the Senate.
Stimulus Bill Signed Into Law
3/8. The Senate passed HR 3090, by a vote of 85-9. See, Roll Call No. 44. The House passed the bill on March 7; the Senate agreed to the House version; and President Bush signed the bill on March 9. See also, President Bush's remarks at the signing ceremony.
This bill is now titled the "Job Creation and Worker Assistance Act of 2002". It previously went by the name of the "Economic Security and Recovery Act of 2001". The bill will, among other things, extend jobless benefits by another 13 weeks. However, much of the bill relates to reductions of taxes on businesses, such as an acceleration of depreciation, and increased expensing.
Walter McCormick, P/CEO of the U.S. Telecom Association, stated in a release that the bill "will have a positive influence on the struggling telecommunications industry by encouraging new investments and creating more jobs for telecom workers. The legislation includes a key provision to allow for 30 percent accelerated depreciation on equipment purchases."
FCC to Address Classification of Cable Internet Access
3/8. The Federal Communications Commission (FCC) announced the agenda for its Thursday, March 14, meeting. It includes consideration of a Declaratory Ruling and Notice of Proposed Rulemaking (NPRM) addressing the legal classification and the appropriate regulatory framework for broadband access to the Internet over cable system facilities. This is GN Docket No. 00-185.
The agenda also includes consideration of a Report and Order concerning streamlined procedures for transfer of control applications by domestic telecommunications carriers pursuant to § 214 of the Communications Act of 1934 (CC Docket No. 01-150), and consideration of an Order and NPRM concerning charges for changing end users' presubscribed interexchange carriers (CCB/CPD File No. 01-12 and RM No. 10131).
Finally, the agenda includes consideration of a NPRM concerning mitigation of orbital debris by satellite systems, and consideration of a NPRM inviting comments on how best to remedy interference to 800 MHz band public safety systems. See, FCC notice.
FCC to Require Truth and Accuracy
3/8. The Federal Communications Commission (FCC) published a notice in the Federal Register in which it stated that it has initiated a rule making proceeding to revise Section 1.17 of its rules, pertaining to making truthful statements to the FCC. The notice states that the FCC proposes to revise the rule to "(1) To provide that the rule prohibits incorrect statements or omissions that are the result of an intent to deceive or negligence; (2) to make clearer that the rule covers statements made to the Commission in all contexts; (3) to include oral statements and not just written statements; and (4) to include all persons making statements to the Commission (e.g., including non-regulatees)."
The ruled would be amended to read as follows: "Sec. 1.17 Truthful and accurate statements to the Commission. (a) The Commission or its representatives may, in writing, require written statements of fact relevant to the determination of any matter within the jurisdiction of the Commission. (b) No person shall, in any written or oral statement of fact submitted to the Commission, intentionally or negligently provide incorrect material information or intentionally or negligently omit any material information bearing on any matter within the jurisdiction of the Commission." See, Federal Register, March 8, 2002, Vol. 67, No. 46, at Pages 10658 - 10659.
DC Circuit Rules in Copyright Case
3/8. The U.S. Court of Appeals (DCCir) issued its opinion in Sturdza v. United Arab Emirates, a case involving alleged copyright infringement, and other claims.
This is a dispute between architects over a design for a new embassy for the United Arab Emirates (UAE). Elena Sturdza filed a complaint in U.S. District Court (DC) against the UAE and Angelos Demetriou, another architect, alleging copyright infringement in connection with the alleged theft of her design for the UAE's new embassy. The District Court granted summary judgment to the defendant's, based on its conclusion that no jury could find Demetriou's design "substantially similar" to Sturdza's.
The Appeals Court reversed. It concluded that "Demetriou's design, though different in some ways from Sturdza's (as the district court thought), is sufficiently similar with respect to both individual elements and overall look and feel for a reasonable jury to conclude that the two are substantially similar." (Parentheses in original.)
The Appeals Court also addressed the use of expert witnesses in copyright cases. Sturdza had sought to introduce such testimony on the issue of substantial similarity.
The Appeals Court noted that "Until recently, expert evidence was permitted only to help juries determine ``whether ... the alleged infringer used the copyrighted work in making his own´´ (actual copying), not to determine ``whether ... the copying was ... an unlawful appropriation´´ (substantial similarity)", citing Whelan Assocs. v. Jaslow Dental Lab., 797 F.2d 1222 at 1232 (3d Cir. 1986).
The Appeals Court noted, however, that "A growing number of courts now permit expert testimony regarding substantial similarity in cases involving computer programs, reasoning that such testimony is needed due to the ``complexity and unfamiliarity [of computer programs] to most members of the public", citing Whelan and Computer Associates v. Altai, 982 F.2d 693, at 713-14 (2d Cir. 1992).
Also, the Court wrote that "Neither we nor any other circuit, however, has considered whether expert evidence is admissible to show substantial similarity of architectural works, nor has any circuit other than the Fourth approved the use of such evidence outside the computer program context." In the end, the Appeals Court left the matter to be resolved by the District Court on remand.
More News
3/7. The General Accounting Office (GAO) released a report [75 pages in PDF] titled "Identity Theft: Prevalence and Cost Appear to be Growing".
3/8. The Securities and Exchange Commission (SEC) announced that it filed a civil complaint in the U.S. District Court (MDLa) against Harral Dunbar, individually and dba Ghost International, an Internet web site operation. The complaint alleges violation of federal securities laws in connection with the fraudulent sale of securities over the Internet. The District Court entered a temporary restraining order on March 4 freezing defendants' assets. This is D.C. No. 02-233-B-M1. See, SEC release.
3/8. The Federal Communications Commission (FCC) issued a notice regarding the status of unprocessed mail. It stated that "The Commission possesses a large volume of unprocessed mail received from USPS during late January 2002, as well as an additional quantity received in late October and early November 2001 following the discovery of anthrax contamination on Capitol Hill and at certain USPS mail processing facilities. All of this mail has been commercially cleansed and is now being processed for delivery within the Commission. We expect the processing and delivery of all backlogged mail to be completed by March 29, 2002."
Monday, March 11
The House will meet at 2:00 PM in pro forma session only.
The Senate will meet at 3:00 PM and resume consideration of the energy reform bill.
8:30 - 10:00 AM. The American Enterprise Institute (AEI) will host a press breakfast on the topic "Taxing Broadband". Harold Furchtgott- Roth and other AEI scholars will speak. RSVP to Veronique Rodman at (202) 862-4871 or vrodman Location: AEI, 1150 17th Street, NW, 11th Floor Conference Room.
8:30 AM - 12:00 NOON. The Information Technology Association of America (ITAA) and the Center for Strategic and International Studies (CSIS) will co-host a conference titled "Managing Identity and Authentication on the Internet". John Hamre (CSIS) will speak at 8:30 AM. Harris Miller (ITAA) will speak at 8:40 AM. Craig Mundie (Microsoft) will speak at 8:55 AM. There will be a Q&A Session at 9:30 AM. There will be a panel discussion by Catherine Allen (BITS), Ari Balogh (VeriSign), Paul Barrett (Real User), Brian O'Higgins (Entrust), and Lee Holcomb (NASA) at 9:50 AM. Arthur Coviello (RSA) will speak at 11:10 AM. Howard Schmidt (President's CIP Board) will speak at 11:30 AM. See, ITAA notice. Location: CSIS, B1 Conference Center, 1800 K Street, NW.
11:00 AM. The FTC's Consumer Protection Bureau will hold a press conference to announce a law enforcement initiative targeting deceptive spam that appealed to post 9-11 patriotism to sell worthless products. See, FTC notice. Location: FTC, Room 481, 600 Pennsylvania Avenue, NW.
EXTENDED TO APRIL 5. Deadline to submit comments to the Copyright Office in response to its Notice of Proposed Rulemaking on "the requirements for giving copyright owners reasonable notice of the use of their works for sound recordings under statutory license and for how records of such use shall be kept and made available to copyright owners." See, notice in Federal Register. See, extension notice in Federal Register.
Tuesday, March 12
The House 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 measures under suspension of the rules.
9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in USTA v. FCC, No. 01-1085. Judges Ginsburg, Rogers and Garland will preside. Location: 333 Constitution Ave. NW.
10:00 AM. The Senate Appropriations Subcommittee's Subcommittee on Commerce, Justice, State, and the Judiciary will hold a hearing on the FY 2003 budget for the Department of State. Location: Room 138, Dirksen Building.
1:30 PM. The U.S. International Telecommunication Advisory Committee will hold a meeting. See, notice in Federal Register. Location: State Department.
5:00 PM. The House Rules Committee will meet to adopt a rule for consideration of HR 2341, the Class Action Fairness Act of 2001.
Wednesday, March 13
The House will meet at 10:00 AM for legislative business. The House may take up HR 2341, the Class Action Fairness Act of 2001.
7:30 AM. FTC Commissioner Orson Swindle will speak at the Baltimore Academies Business Professionals Breakfast on "consumer protection and competition issues". Location: Pikesville Hilton, 1726 Reistertown Road, Pikesville, MD.
10:00 AM. The House Financial Services Committee will hold a hearing on HR 3763, the "Corporate and Auditing Accountability, Responsibility, and Transparency Act of 2002". Location: Room 2128, Rayburn Building.
10:30 AM. The Senate Appropriations Subcommittee's Subcommittee on the Legislative Branch will hold hearings on the FY 2003 budget for the Library of Congress and the Congressional Research Service. The Copyright Office is a part of the LOC. Location: Room 124, Dirksen Building.
10:30 AM. The Senate Appropriations Subcommittee's Subcommittee on Commerce, Justice, State, and the Judiciary will hold a hearing on the FY 2003 budget for the Department of Commerce. Location: Room 116, Dirksen Building.
Thursday, March 14
The House will meet at 10:00 AM for legislative business.
9:30 AM. The FCC will hold a meeting. See, agenda. Location: FCC, 445 12th Street, SW, Room TW-C05.
10:00 AM. The Senate Judiciary Committee will hold a hearing to examine competition, innovation, and public policy concerning digital creative works. Location: Room 226, Dirksen Building.
10:00 AM - 12:00 NOON. The House Science Committee's Subcommittee on Environment, Technology, and Standards will hold a hearing titled "Technology Administration: Review and Reauthorization". Location: Room 2318, Rayburn Building.
11:00 AM. FTC Chairman Timothy Muris will speak at the 6th Annual Georgetown University Law Center Corporate Counsel Institute. Location: GULC, 600 New Jersey Ave., NW.
12:00 PM. The FCBA's will host a luncheon. The speaker will be Craig McCaw, Ch/CEO of Teledesic. A reception will begin at 12:00 NOON, followed by lunch at 12:30 PM. RSVP to Wendy Parish at wendy by 12:00 NOON on Tuesday, March 12. Location: Capital Hilton Hotel, 16th and K Streets, NW.
Friday, March 15
The House will not be in session.
9:00 AM. The AFL-CIO's Department for Professional Employees will host a panel of speakers who will advocate retention of the FCC's newspaper and broadcast cross ownership rules. FCC Commissioner Michael Copps will speak. See, AFL-CIO notice. For more information, contact Leandra Kennedy at lkennedy or 202 638-0320. Location: National Press Club, Holeman Lounge, 529 14th St. NW, 13th Floor.
11:00 AM. FTC Chairman Timothy Muris will give the keynote address at the Consumer Federation of America's Assembly. Location: Washington Plaza Hotel, 10 Thomas Circle.
Deadline to submit comments to the FCC on the World Radiocommunication Conference Advisory Committee's recommendations of February 6, 2002, regarding the 2003 World Radiocommunication Conference (WRC-03). See, FCC notice [PDF].
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