Tech Law Journal Daily E-Mail Alert
May 2, 2002, 9:00 AM ET, Alert No. 423.
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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 copyright owners.
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 17."
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 court."
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 copyrighted works".
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 Dorgan (D-ND).
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 opinion [PDF] in Ashcroft v. Free Speech Coalition, which held unconstitutional a prohibition on computer generated child pormography.
Michael Heimbach, Unit Chief for the Federal Bureau of Investigation's (FBI) Crimes Against Children Unit, testified. He stated in his prepared 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 children."
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 offenders."
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 children."
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 Judiciary Committee.
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 rights."
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, 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 technology."
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 Federal Register.
People and Appointments
5/1. President Bush nominated Reena Raggi to be Judge of the U.S. Court of Appeals for the Second Circuit. She is currently a Judge of the U.S. District Court for the Eastern District of New York. Before that, she was a federal prosecutor in Brooklyn, New York. See, WH release.
5/1. President Bush nominated Susan Braden to be a Judge of the U.S. Court of Federal Claims.
4/30. The Senate confirmed the nominations of Michael Baylson and Cynthia Rufe to be a Judges of the U.S. District Judge for the Eastern District of Pennsylvania. See, Cong. Rec., April 30, 2002, at S3578.
More News
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 release.
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. See, notice 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. 01-338.
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 release, Stipulated Final Judgment [PDF], and Final Judgment [PDF].
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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 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. See, notice 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, Dirksen Building.
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, Rayburn Building.
TIME CHANGE. 10:30 AM. The House Commerce 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. 10:00 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 the National 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 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 Commerce Donald 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 release.
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 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." See, notice 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 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 Acheson auditorium.
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 release [PDF].