|9th Circuit Affirms
Injunction and Shut Down Order in Napster Case
|3/25. The U.S.
Court of Appeals (9thCir) issued its opinion
[PDF] in A&M
Records v. Napster, affirming the modified
preliminary injunction and shut down order of the U.S.
District Court (NDCal).
The Appeals Court previously held Napster liable for
contributory and vicarious infringement for operating a peer
to peer music copying service. See, A&M
Records v. Napster, 239 F.3d 1004 (9th Cir. 2001). The
present appeal concerns the modified preliminary injunction (MPI)
and shut down order of the District Court. The MPI requires
Napster to remove any user file from the system's music index
if Napster has reasonable knowledge that the file contains
plaintiffs' copyrighted works; plaintiffs must give Napster
notice of specific infringing files. The District Court
ordered Napster to disable its file transferring service until
certain conditions were met and steps were taken to ensure
maximum compliance. The Appeals Court affirmed the MPI and
shut down order.
Cary Sherman, General Counsel of the Recording Industry Association of
America (RIAA), had this to say after the ruling.
"Once again, the 9th Circuit Court of Appeals has
affirmed that Napster must do everything feasible to police
its system against copyright infringement. As we have said
from the very beginning, technologies are available that allow
copyrighted works to be filtered out of a peer to peer system,
and the big news from today's decision is the court's strong
endorsement of that point."
|District Court Rules in
Carnivore FOIA Case
|3/21. The U.S.
District Court (DC) issued its opinion [PDF]
Watch v. FBI, a Freedom of Information Act (FOIA)
suit filed to compel release of documents related to the Federal Bureau of Investigation
(FBI) e-mail surveillance system known as
"Carnivore". The U.S. District Court (DC)
dismissed the suit for failure to exhaust administrative
submitted to the FBI a request for records pertaining to Carnivore,
pursuant to the FOIA, 5 U.S.C.
§ 552. Judicial Watch asserts that the FBI did not comply
with the requirements of the FOIA. It alleges that the FBI
provided no documents. However, Judicial Watch did not file an
administrative appeal within the FBI.
Judicial Watch instead proceeded directly to the filing of a
complaint in District Court against the FBI alleging failure
to comply with the FOIA. The FBI moved to dismiss. The
District Court dismissed the complaint for failure to exhaust
administrative remedies. The Court did not reach other issues,
such as what documents the FBI would be required to release
under a FOIA request.
The Electronic Privacy
Information Center (EPIC) also submitted a separate FOIA
request to the FBI regarding Carnivore. EPIC also filed a
complaint in U.S. District Court (DC). See, EPIC's case summary
with links to select pleadings and produced records.
|Rep. Boucher Writes FCC Re
Digital TV Set Top Boxes
|3/21. Rep. Rick
Boucher (D-VA) wrote a letter
to the Federal Communications
Commission (FCC) to "express my disappointment with
the Commission's decision to keep secret the license agreement
that a manufacturer must sign in order to bring to market a
competitive ``navigation device´´ (such as a cable ready
digital television receiver or a set top box) that can connect
directly to a cable system." (Parentheses in original.)
At issue is the Cablelabs
PHILA license. PHILA is an acronym for "POD-Host
Interface License Agreement". POD is an acronym for
"point of deployment". CableLabs stated in a January
7, 2002, release
that "The PHILA is a portion of the CableLabs OpenCable
project; companies that sign the accord receive a license to
deploy proprietary technology necessary to manufacture
OpenCable set tops. The agreement focuses on the copy
protection technology of the connecting point between an
OpenCable point of deployment (POD) card and the OpenCable
set-top box. This interface is the link that allows a retail
cable box to be portable across a variety of different cable
system headends by standardizing the communication between
individual addressable POD modules and the connected set-top
terminals or navigation devices."
Rep. Boucher explained that "This is no ordinary license;
it has clear public policy consequences, with direct effect on
consumers. Congress needs to know whether its previous
direction to the Commission with respect to the competitive
availability of navigation devices has been carried out
appropriately. It is indefensible that a license to implement
a public trust, mandated by an act of Congress, be kept
``secret.´´ There is absolutely no public policy
justification for this secrecy."
The Consumer Electronics
Association (CEA) issued a release
praising Rep. Boucher. The CEA also stated that the PHILA
agreement contains anti consumer provisions.
|People and Appointments
|3/25. Rep. Robert
Ehrlich (R-MD) announced his candidacy for Governor of
Maryland. Rep. Ehrlich is currently a member of the House Commerce Committee.
3/25. Microsoft announced that Sen. John McCain (R-AZ),
the ranking Republican on the Senate Commerce
Committee, and Rick Belluzzo, P/COO of Microsoft, will
appear together at Boys & Girls Clubs media event in
Scottsdale, Arizona. See, MSFT
3/25. The Business Software
Alliance (BSA) named Jeri Clausing Director of
Public Relations / Policy. Clausing was previously
Executive Editor of Interactive Week. Before that, she covered
technology policy for the New York Times. She also has a Texas
background. She previously worked at the Fort Worth Star
Telegram and the Dallas Times Herald. She also graduated from Southern Methodist University
|Commerce Department Hosts
Broadband Demand Conference
|3/25. The Department of
Commerce (DOC) hosted a roundtable titled
"Understanding Broadband Demand: Broadband & Business
Productivity". Participants discussed what is broadband,
what is the extent of business demand for broadband services,
what are the applications of broadband access, and what are
the benefits of broadband.
The DOC has bifurcated its examination of broadband. The National Telecommunications
and Information Administration (NTIA) is studying
"supply" issues, while the Technology Administration
(TA) is studying "demand" issues. This conference
dealt with the latter. The event was chaired by Phil Bond (Under
Secretary for Technology), Kathleen Cooper (Under Secretary
for Economic Affairs), and Bruce Mehlman (Assistant Secretary
for Technology Policy).
Twenty-one representatives of technology companies,
communications companies, and business groups participated.
About 40 other persons were in attendance at the three hour
Some participants presented the results of surveys of
businesses regarding demand for broadband services. Bruce
Josten of the U.S. Chamber
of Commerce presented survey results that showed that 11%
of the businesses surveyed do not have Internet access, and
that 55% of those that do have only dial up modem service. He
concluded that "the value proposition has not yet been
demonstrated to" small and medium sized businesses.
Bruce Phillips of the National
Federation of Independent Businesses stated that many
small businesses are not interested in broadband services. He
said that it must be demonstrated to them that broadband can
increase their bottom line.
In contrast, Bojana Mamuzic of SBC
was more upbeat. Her company conducted a survey of 500 small
businesses and found that three quarters had found that
broadband had increased productivity. She argued that if
industry builds broadband facilities, then "the market
will follow". She cited the example of caller ID. She
said that SBC's initial surveys showed that only 20% would use
it, whereas, in fact, over 50% now use it.
Paul Nunes of Accenture
added that there are many costs to businesses for adopting
broadband services. He cited networking equipment and
installation, computer equipment upgrades, storage upgrades,
and employee training.
Many participants addressed applications that might drive
business demand for broadband services, including teleworking,
e-commerce, communications, and grid computing. Participants
also referenced, but did not focus on telemedicine, distance
learning, interactive gaming, and HDTV.
William Mularie of the Telework Consortium
stated that the promise of telework is being under fulfilled
"because of the inadequacies of our
infrastructures". He pointed out that most broadband
connections today provide asymmetric transfer rates, with most
of the increase in speed being in the download. "Nirvana
is not faster downloads," said Mularie. "Telework
requires symmetric communications." He stated that he
would like to see rates of 10 to 100 mbps.
Brad Allenby of AT&T
focused on how telework has benefited AT&T. He said that
the company saves on real estate costs, greater worker
retention, and increased productivity, both in terms of hours
worked, and output per hour. He added that broadband is not
just a matter of speeds; it must also be convenient and
Chris Caine of IBM suggested
that grid computing might become the killer app of broadband.
Mularie stated that "the killer app is human to human
Greg Wood of Internet2
stated that many applications of broadband do not yet exist.
He said that the situation of broadband today is similar to
that of the Internet 20 years ago, when people at DARPA were
wondering what people would use the Internet for.
The conference did not focus on broadband related government
policies. However, Stag Newman and others argued that state
and local regulation, fees, and delays, particularly with
respect to access to rights of way, are inhibiting broadband
deployment. He advocated the adoption of a set of best
practices by the Department of Commerce. Harris Miller of the Information Technology Association
of America (ITAA) argued that the government should lead
by example, such as through telework programs.
|Tuesday, March 26
|The House and Senate are both in recess for the Spring
District Work Period. Both bodies will return on Monday, April
8:00 AM - 5:15 PM. The Michigan State University Quello
Communications Law and Policy Symposium will host its Third
Annual Rethinking Access conference. See, schedule of
speakers. Location: Willard Intercontinental Hotel.
|Wednesday, March 27
10:00 AM. The Progress
and Freedom Foundation will hold a press conference to
release a survey based report titled "Privacy Online: A
Report on the Internet Practices and Policies of Commercial
Websites". FTC Chairman Timothy
Muris, FTC Commissioners Thomas Leary and Orson
Swindle, and FTC Bureau of Consumer Protection Director Howard
Beales will speak. Location: National Press Club, Holeman
Lounge, 529 14th St. NW, 13th Floor.
11:00 AM. The Cato Institute
will host a panel discussion on spam. The speakers will be Howard
Beales (FTC), Rebecca Richards (TRUSTe),
Chris Hoofnagle (EPIC), and
Jerry Cerasale (Direct Marketing Assoc.). See, online
registration page. Lunch will follow the program.
Location: Cato, 1000 Massachusetts Ave., NW.
12:15 PM. The FCBA's
Telecom Competition Committee will host a brown bag lunch. The
speakers will be Jim
Bird, head of the FCC's transactions team, and other
FCC representatives. RSVP to Wendy Parish at wendy @fcba.org. Location:
FCC, 445 12th Street, SW, Eighth Floor, Conference Room 1.
12:30 PM. Larry Thompson, Deputy Attorney General of
the U.S., will speak at the Heritage
Foundation. See, notice.
Location: 214 Massachusetts Ave NE.
|Thursday, March 28
12:15 PM. The FCBA's
Young Lawyers Committee will host a brown bag luncheon. The
topic will be "Putting the ``Mass´´ Back in Media -- A
First Amendment Right to Bulk Up." The speaker will be Paul
Gallant, Special Advisor to Kenneth Ferree, Bureau Chief
of the Cable Services Bureau, and a member of the Media
Ownership Working Group. RSVP to rwallach @willkie.com.
Location: Willkie Farr &
Gallagher, 1155 21st Street, NW (between L & M), 6th
4:00 PM. John
Duffy (Marshall Wythe School of Law) will give a lecture
titled "The Puzzling Persistence of the Ideal of Marginal
Cost Pricing in the Economic Analysis of Patents". For
more information, contact Robert Brauneis at rbraun @main.nlc.gwu.edu
or 202 994-6138. Location: George Washington University Law
School, 2000 H Street, NW.
Deadline to submit comments to the FCC regarding
ways to improve its electronic licensing systems. See, FCC
|Friday, March 29
Extended 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 (HSR)
Premerger Notification Act, FTC Act, and Clayton Act. See,
original FTC release
and Federal Register notice,
and FTC release
and Federal Register notice
extending deadline from March 1 to March 29.
Deadline to submit comments to the FTC
regarding proposed new Privacy Act system of records. This
system, if adopted, would include telephone numbers and other
information pertaining to individuals who have informed the
Commission that they do not wish to receive telemarketing
calls. See, notice
to be published in the Federal Register.
|Monday, April 1
|The Supreme Court of the U.S. will go on recess until
Monday, April 15.
The USTR will
hold a hearing regarding negotiation of a U.S. Singapore
Free Trade Agreement. The USTR stated in its notice
in the Federal Register that the agreement is "expected
to include provisions on trade in services, investment, trade
related aspects of intellectual property rights, competition,
government procurement, electronic commerce, trade related
environmental and labor matters, and other issues."
10:00 AM. The U.S.
Court of Appeals (FedCir) will hear oral argument in Philip
Jackson v. Casio PhoneMate, No. 01-1456, a patent
infringement case involving telephone answering machines. The
U.S. District Court (NDIll) granted summary judgment to Casio.
Location: Courtroom 201, LaFayette Square, 717 Madison Place,
EXTENDED TO APRIL 22.
to file reply comments with the FCC in response
to its notice of proposed rulemaking (NPRM) regarding the
appropriate regulatory requirements for incumbent local
exchange carriers' (ILECs') provision of broadband
telecommunications services. The FCC adopted this NPRM at its
December 12 meeting. This is CC Docket No. 01-337. See, notice
in the Federal Register. See also, Order
[PDF] extending deadline to April 22.
Deadline to submit written requests to participate as a
panelist in the workshop to be hosted by the FTC
on May 16 and 17 to explore issues relating to the security of
consumers' computers and the personal information stored in
them or in company databases. See, notice
in Federal Register.
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