|Biden Bill Would Ban
Illicit Authentication Features
|4/30. Sen. Joe Biden
(D-DE) and others introduced S 2395, the
Anticounterfeiting Amendments of 2002. The bill would amend 18
U.S.C. § 2318, regarding trafficking in counterfeit
labels and documentation for software, movies, and records.
The bill would criminalize "illicit authentication
features", and create a private right of action for
Sen. Biden said "The criminal code has not kept up with
the counterfeiting operations of today's high-tech pirates,
and it's time to make sure that it does. The
Anticounterfeiting Amendments of 2002 update and strengthen
the Federal criminal code, which currently makes it a crime to
traffic in counterfeit labels or copies of certain forms of
intellectual property, but not authentication features. For
example, we can currently prosecute someone for trafficking in
fake labels for a computer program, but we cannot go after
them for faking the hologram that the software maker uses to
ensure that copies of the software are genuine."
He added that "many actions that violate current law go
unprosecuted in this day and age when priorities, such as the
fight against terrorism and life threatening crimes,
necessarily take priority over crimes of property, be they
intellectual or physical. Moreover, the victims of this theft
often do not have a way to recover their losses from this
crime. For this reason, the Anticounterfeiting Amendments of
2002 also provide a private cause of action, to permit the
victims of these crimes to pursue the criminals themselves and
recover damages in federal court." See, Cong. Rec., April
30, 2002, at S3561.
Section 2318(a) currently provides, in part, that
"Whoever ... knowingly traffics in a counterfeit label
affixed or designed to be affixed to a phonorecord, or a copy
of a computer program or documentation or packaging for a
computer program, or a copy of a motion picture or other
audiovisual work, and whoever ... knowingly traffics in
counterfeit documentation or packaging for a computer program,
shall be fined under this title or imprisoned for not more
than five years, or both."
The current law applies to "counterfeit labels" and
"counterfeit documentation". The bill would extend
the prohibition to "an illicit authentication feature
affixed to or embedded in, or designed to be affixed to or
embedded in" phonorecords, computer programs, and copies
of motion pictures or other audiovisual works.
The bill defines the term "authentication feature"
as "any hologram, watermark, certification, symbol, code,
image, sequence of numbers or letters, or other physical
feature that either individually or in combination with
another feature is used by the respective copyright owner to
verify that a phonorecord, a copy of a computer program, a
copy of a motion picture or other audiovisual work, or
documentation or packaging is not counterfeit or otherwise
infringing of any copyright".
The bill defines the term "illicit authentication
feature" as "an authentication feature, that (A)
without the authorization of the respective copyright owner
has been tampered with or altered so as to facilitate the
reproduction or distribution of (i) a phonorecord; (ii) a copy
of a computer program; (iii) a copy of a motion picture or
other audiovisual work; or (iv) documentation or packaging; in
violation of the rights of the copyright owner under title
The bill would also create a private right of action. It
provides that "Any copyright owner who is injured by a
violation of this section or is threatened with injury, may
bring a civil action in an appropriate United States district
The Senate Foreign
Relations Committee, of which Sen. Biden is the Chairman,
held a hearing on the theft of American intellectual property
on February 12, 2002. See, "Senate Committee Holds
Hearing on IP Theft Abroad", TLJ
Daily E-Mail Alert No. 367, Feb. 13, 2002.
Microsoft's Jeff Raikes praised the Biden bill in a release.
He said that "Microsoft commends Senator Biden for taking
action to close a significant gap in the federal protection of
The original cosponsors of the bill are Sen. George Allen (R-VA), Sen. Ernest Hollings
(D-SC), Sen. Barbara Boxer
(D-CA), Sen. Patti Murray
(D-WA), Sen. Gordon Smith
(R-OR), Sen. Ben Nelson
(D-NE), and Sen. Byron
|House Subcommittee Holds
Hearing on Computer Generated Porm
|5/1. The House
Judiciary Committee's Subcommittee on Crime, Terrorism and
Homeland Security held a hearing on the April 16 Supreme Court
[PDF] in Ashcroft v. Free Speech Coalition, which held
unconstitutional a prohibition on computer generated child
Michael Heimbach, Unit Chief for the Federal Bureau of Investigation's
(FBI) Crimes Against Children Unit, testified. He stated in
testimony that "The Internet has caused explosive
growth in the market for child pormography. The volume of
child pormography circulated on the Internet is staggering and
the number of persons obtaining, trading and distributing
these images is downright appalling." He also stated that
there is a connection between those who trade or possess child
pormography and those who molest children.
Heimbach stated that "Technological advances in the area
of computer imaging have sparked a debate about the
possibility of creating images of child pornography without
the use of real children -- which I will refer to as
completely computer generated images. The question is whether
such images can be created that are indistinguishable to a
jury, and even to an expert, from the images of real
He continued that "This technological debate has led the
defense bar to challenge the reality of the images of child
pornography, insisting that the government disprove that the
images are completely computer generated to gain a conviction.
Despite the fact that there is no evidence to suggest that
these images on the Internet do not involve actual child
victims, this ready made defense has had a dramatic impact on
the government's ability to prosecute child pornography
He concluded that "the foreseeable and tragic result will
be that offenders who possess images of real, but
unidentified, children will escape prosecution and will
continue to use such material to harm still more innocent
See also, prepared
testimony of Ernest Allen (P/CEO of the National Center for Missing
& Exploited Children) and prepared
testimony of William Walsh (Lieutenant, Dallas Internet
Crimes Against Children Taskforce).
On April 30, Rep.
Lamar Smith (R-TX) and others introduced HR 4623, a bill
to prevent trafficking in child pormography and obscenity, to
proscribe pandering and solicitation relating to visual
depictions of minors engaging in sezually explicit conduct, to
prevent the use of child pormography and obscenity to
facilitate crimes against children, and for other purposes. It
was referred to the House
|House Subcommittee Holds
Hearing on Federal Agency Privacy
|5/1. The House
Judiciary Committee's Subcommittee on Commercial and
Administrative Law held a hearing on HR 4561,
the "Federal Agency Protection of Privacy Act". This
bill would require federal agencies to include a privacy
impact analysis with proposed regulations that are circulated
for public notice and comment.
Rep. Bob Barr (R-GA),
the sponsor of the bill, said in his opening
statement that this bill "takes the first --
necessary -- step toward protecting the privacy of information
collected by the federal government. While some have decried
the loss of personal privacy by private companies, it must be
emphasized that government alone has the authority to compel
the disclosure of personal information; and unlike a private
commercial gatherer of personal data, the government can put
you in jail based on what it uncovers. For this reason, the
government has an obligation to exercise greater
responsibility when enacting policies that undermine privacy
Rep. Barr also summarized the requirements contained in the
bill. It "requires that rules noticed for public comment
by federal agencies be accompanied by an assessment of the
rule’s impact on personal privacy interests, including the
extent to which the proposed rule provides notice of the
collection of personally identifiable information, what
information will be obtained, and how it is to be collected,
maintained, used and disclosed. The measure further provides
that final rules be accompanied by a final privacy impact
analysis, which indicates how the issuing agency considered
and responded to privacy concerns raised by the public, and
explains whether the agency could have taken an approach less
burdensome to personal privacy."
In addition, the bill "permits individuals who are
adversely affected by an agency's failure to follow its
provisions to seek judicial review pursuant to the provisions
of the Administrative Procedure Act."
James Harper, Editor of Privacilla.com, said
in his prepared
statement that "This legislation can help protect
Americans' privacy by giving the American people, the press,
and Congress information they need about how federal
regulation affects privacy."
Lori Waters, of The Eagle
Forum, said in her prepared
statement that the bill "is vital to protect
Americans from unjustified or unintended invasions of privacy
by the government. H.R. 4561 forces regulators to consider how
regulations impact on individual privacy and then they must
tell citizens through a privacy analysis what the impact will
actually be. Long term privacy consequences must be part of
the legislative debate in Congress as well as the regulatory
debate in the Executive Branch."
Gregory Nojeim, of the American
Civil Liberties Union, said in his prepared
statement that the bill "would provide an important
check and balance on federal agencies’ use and disclosure of
personal information inside and outside the government.
The passage of this legislation would be an important step in
the effort to protect privacy, particularly as the federal
government relies more and more on powerful information
Edward Mierzwinski, of the U.S. Public Interest Group, praised
the bill, and offered some suggestions for changes in his prepared
statement. For example, he recommended that the bill
"make reference to all of the original Fair Information
Practices (FIPs), as ... embodied into the 1974 Privacy
Act" and that the bill require publication of privacy
impact analyses in the agencies' web sites, not just in the
|5/1. The U.S. Patent and
Trademark Office (USPTO) announced that it "has
launched a study to identify organizations able to process
international patent applications. This year, USPTO expects to
receive 46,000 requests to search and/or examine international
applications. USPTO's patent examiners now do this work, which
is in addition to the 350,000 U.S. applications the agency
receives each year." See, USPTO
5/1. The U.S.
Court of Appeals (FedCir) issued its opinion in 3M v.
Barr Laboratories, a patent infringement
action involving interpretation of the Hatch Waxman
Amendments. The three judge panel was unanimous in its
affirmance of the District Court's dismissal of 3M's
infringement action with prejudice. However, the Court was
divided in its analysis.
5/1. April 30 was the extended deadline to submit reply
comments to the FCC in response
to its notice of proposed rulemaking regarding its unbundling
analysis under § 251
of the Communications Act and the identification of specific
unbundling requirements for incumbent local exchange carriers.
in the Federal Register. However, the FCC again extended the
deadline for filing reply comments. The new deadline is June
5, 2002. See, FCC
Order [PDF] adopted on April 30. This is CC Docket No.
5/1. The Federal Trade
Commission (FTC) announced that it settled a civil lawsuit
that it brought against Auctionsaver LLC and several
individuals, who auctioned computer related products on
Internet sites, but failed to deliver the merchandise for
which consumers paid. See, FTC
Final Judgment [PDF], and Final
|About Tech Law Journal
|Tech Law Journal publishes a free access web site and
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Contact: 202-364-8882; E-mail.
P.O. Box 4851, Washington DC, 20008.
Copyright 1998 - 2002 David Carney, dba Tech Law Journal. All
|Thursday, May 2
|The House will meet at 10:00 AM for legislative business.
The Supreme Court is on recess until May 13.
8:30 - 10:00 AM. The American
Enterprise Institute (AEI) will host a press breakfast on
telecommunications and media issues with former FCC
Commissioner Harold Furchtgott- Roth and other AEI scholars.
RSVP to Veronique Rodman at telephone 202 862-4871 or vrodman @aei.org. Location:
AEI, 1150 17th Street, NW, 11th Floor Conference Room.
9:00 AM - 12:00 NOON. The Antitrust
Division of the Department of Justice and the FTC
will hold another in their series of hearings on antitrust and
intellectual property. This hearing is titled "Patent
Settlements: Efficiencies and Competitive Concerns". The
speakers will be George Cary (Cleary Gottlieb), Steven Stack
(Dechert), Thomas Barnett (Covington & Burling), Joseph
Brodley (Boston University School of Law), Robert Cook
(Drinker Biddle & Reath), Richard Feinstein (Boies
Schiller & Flexner), Phillip Proger (Jones Day), and Carl
Shapiro (University of California at Berkeley). See, agenda.
For more information, contact Derick Rill (FTC Office of
Public Affairs) at 202 326-2472 or Susan DeSanti (FTC Policy
Planning Division) at 202 326-2167. Location: Room 432, FTC,
600 Pennsylvania Ave., NW.
9:30 AM - 12:30 PM. The NIST
will hold a proposers' conference for its Advanced Technology Program.
in Federal Register. Location: Gaithersburg Hilton, 620 Perry
Parkway, Gaithersburg, MD.
10:00 AM. The Senate
Judiciary Committee will hold an executive business
meeting. The agenda
includes mark up of several technology, intellectual property
and privacy related bills, including S 2031,
the Intellectual Property Protection Restoration Act of 2002, S 848,
the Social Security Number Misuse Prevention Act of 2001, and S 1742,
the Restore Your Identity Act of 2001. However, this Committee
frequently postpones consideration of items on its agenda. The
agenda also includes consideration of the following judicial
nominees: Julia Gibbons (to be a judge of the U.S. Court of
Appeals for the Sixth Circuit), Leonard Davis (U.S. District
Court, Eastern District of Texas), David Godbey (USDC,
NDTexas), Andrew Hanen (USDC, SDTexas), Samuel Mays (USDC,
WDTenn), and Thomas Rose (USDC, SDOhio). Press contact: Mimi
Devlin at 224-9437. Location: Room 226, Dirksen Building.
10:00 AM. The House
Government Reform Committee's Subcommittee on Government
Efficiency, Financial Management, and Intergovernmental
Relations will hold a hearing on HR
3844, the Federal Information Security Reform Act of
2002. Location: Room 2154, Rayburn Building.
10:00 AM. The Senate
Appropriations Committee will hold hearings on homeland
security and the FY 2002 supplemental appropriations request.
Attorney General John Ashcroft
is scheduled to testify at 2:30 PM. Location: Room 192,
10:00 AM. The House
Judiciary Committee's Subcommittee on Courts, the Internet
and Internet and Intellectual Property will meet to mark up HR
4125, the Federal Courts Improvement Act of 2002. Section
104 of the bill would affect the timing of judges' reports
regarding the expiration or wiretap orders, or denial of
requests for wiretap orders. Webcast. Location: Room 2141,
TIME CHANGE. 10:30 AM. The
Committee will meet to mark up HR 4560,
the Auction Reform Act of 2002, a bill to eliminate the
deadlines for spectrum auctions of spectrum in the 700
megahertz band previously allocated to television
broadcasting. This event had previously been scheduled for
1:30 PM. Press contact: Ken Johnson or Jon Tripp at 202
225-5735. Location: Room 2123, Rayburn Building.
POSTPONED TO MAY 9.
AM - 12:00 NOON. The House
Science Committee's Subcommittee on Research will hold a
hearing on HR ___, the National Science Foundation
Reauthorization Act of 2002.
11:00 AM. The National
Research Council will release and discuss a report titled
"Youth, Pormography and the Internet". Press
contact: 202 334-2138. See, NRC
notice. Location: Lecture Room, National Academies
building, 2100 C St., NW.
12:00 NOON. USPTO Deputy
Director Jon Dudas will host an online chat to answer
questions from the agency's customers and the public on issues
related to the work of the USPTO. Members of the press are
invited to participate as observers. See, notice.
1:30 PM. Jerry Berman, Executive Director of the Center for Democracy and Technology,
will hold a telephone press conference on the May 2 release by
Research Council's report titled "Youth, Pormography
and the Internet". The call-in number is 1-334- 260-0508;
the security code is 865624.
2:30 - 3:30 PM. Rep.
Howard Berman (D-CA), Rep. Ellen Tauscher
(D-CA), John Hamre (CSIS) and others, will hold a press
conference to release a Center
for Strategic and International Studies (CSIS) report on
reforming satellite technology policy to maintain U.S.
military dominance in space. Press contact: Mark Schoeff at
775-3242 or mschoeff
@csis.org. Location: Capitol Building, Room HC 7.
Bush Administration officials will meet with EU
representatives to discuss a wide range of issues, including trade
and trade disputes, terrorism, law enforcement, non
proliferation, Middle East, Balkans, Afghanistan, Russia, and
other topics. The meetings will include President Bush, USTR Bob
Zoellick, Secretary of the Treasury Paul
O'Neill, Attorney General John Ashcroft, Secretary of
Evans, and others. The meetings will also include
President of the European Commission Romano
Prodi, EU Commissioner for External Relations Chris
Patten, EU Commissioner for Trade Pascal
Lamy, EU High Representative for CFSP Javier Solana, and
others. At 1:20 Bush, Aznar, and Prodi will hold a press
conference at the White House. At 2:15 Prodi and Aznar will a
joint EU press briefing at the St. Regis Hotel. At 5:00 PM
Lamy will brief the press at the European Commission's
Washington Delegation, at 2300 M Street, NW. See, EU
|Friday, May 3
|The House will not be in session.
9:15 AM. U.S. Patent and
Trademark Office (USPTO) Director James Rogan
will speak at the Licensing Executives Society Spring Meeting.
Press contact: Brigid Quinn at 703 305-8341 or brigid.quinn @uspto.gov.
Location: The Mayflower Hotel, Grand Ballroom, 1127
Connecticut Avenue, NW.
9:30 AM. The U.S.
Court of Appeals (DCCir) will hear oral argument in Trans
Union v. FTC, No. 01-5202. Judges Edwards, Henderson and
Garland will preside. Location: 333 Constitution Ave. NW.
9:30 AM - 3:30 PM. The FCC will host a
public forum and technology expo on Telecommunications
Relay Service. Location: FCC, 445 12th Street, SW, Room
TW-C305 (Commission Meeting Room).
10:00 AM - 3:00 PM. The FCC's Consumer
and Governmental Affairs Bureau will host a public forum and
technology expo on the Telecommunications Relay Service.
Location: FCC, Commission Meeting Room, 445 12th St., SW.
Extended deadline to submit comments to the FCC in response
to its Notice of Proposed Rulemaking titled "In the
Matter of Appropriate Framework for Broadband Access to the
Internet over Wireline Facilities". See, Order
[PDF] extending deadline from April 15 to May 3. See also, original
notice in Federal Register.
|Monday, May 6
|Deadline to submit requests to attend or participate in the Copyright Office's
public roundtable discussion concerning "issues raised in
the course of an ongoing rulemaking proceeding to adopt
requirements for giving copyright owners reasonable notice of
the use of their works for sound recordings under the section
114 and 112 statutory licenses and for how records of such use
shall be kept and made available to copyright owners."
in Federal Register.
|Tuesday, May 7
|9:30 AM. The Senate
Commerce Committee will hold a hearing on the Memorandum of
Agreement between the FTC and the Department
of Justice's Antitrust
Division regarding division of responsibility for merger
reviews. Press contact: Andy Davis 224-6654. Location: Room
253, Russell Building.
12:00 NOON. The Advisory Committee to the Congressional Internet Caucus
will host a luncheon. The speaker will be Marty Cooper,
inventor of the portable cellular telephone and CEO or
ArrayComm. RSVP to rsvp
@netcaucus.org or Danielle Wiblemo at 202 638-4370.
Location: Reserve Officers Association.
1:30 to 3:30 PM. The State
Department's International Telecommunication Advisory
Committee, Radiocommunication Sector (ITAC-R) will hold a
meeting. The ITAC advises the State Department on policy,
technical and operational issues with respect to the
International Telecommunication Union (ITU). This meeting will
address preparations for the ITU-R World Radiocommunication
Conference 2003 (WRC-03). See, notice
in Federal Register. Location: Department of State, Dean
|Wednesday, May 8
|9:00 AM - 12:00 NOON. The Telecommunications Service
Priority (TSP) System Oversight Committee will meet. See, notice
in Federal Register, April 1, 2002, Vol. 67, No. 62, at Pages
15419. Location: NCS conference room, 2nd floor, 701 South
Court House Road, Arlington, VA.
9:30 AM. The Senate
Governmental Affairs Committee will hold a hearing to
examine infrastructure security, focusing on private public
information sharing. Location: Room 342, Dirksen Building.
10:00 AM - 12:00 NOON. The FCBA's
International Practice Committee will host a roundtable
discussion with David Gross, Deputy Assistant Secretary
for International Communications and Information Policy, U.S.
Department of State. RSVP to Maggie McBride at 202 719-7101.
Location: Wiley Rein &
Fielding, 1750 K Street, NW.
10:00 AM. The Senate
Judiciary Committee will hold a hearing regarding reform
of the Federal Bureau of Investigation and Department of
Justice. Location: Room 226, Dirksen Building.
Extended deadline to submit comments to the FCC in its
proceeding titled "In the Matter of Rules and Policies
Concerning Multiple Ownership of Radio Broadcast Stations in
Local Markets Definition of Radio Markets". See, FCC