Tech Law Journal Daily E-Mail Alert
July 15, 2002, 9:00 AM ET, Alert No. 469.
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Court Grants Preliminary Injunction in Washington Post v. Gator
7/12. The U.S. District Court (EDVa) heard oral argument on plaintiff's motion for preliminary injunction in Washington Post v. Gator on Friday morning, July 12. The Court announced from the bench that it will issue a preliminary injunction order against the Gator Corporation on Monday, July 15.
Judge Claude Hilton stated at the conclusion of the oral argument that "I find that there is a sufficient showing that there is a violation of the mark ..." He added that "irreparable harm is presumed". He concluded that "plaintiffs are entitled to a preliminary injunction" and that he would issue a written injunction order on Monday, July 15. Judge Hilton did not rule from the bench on other legal theories, such as copyright infringement and misappropriation.
The Washington Post, and other major news publishers with web sites, alleged web based trademark infringement, copyright infringement, and related claims in their complaint [99 pages in PDF] and motion for preliminary injunction. See also, Memorandum in Support of Plaintiffs' Motion for Preliminary Injunction [35 pages in PDF].
The plaintiffs, which include the Washington Post Newsweek Interactive Company, Washington Post Company, New York Times Company, Gannett Satellite (USA Today), Globe Newspaper Company (Boston Globe), Dow Jones & Company (Wall Street Journal), Smart Money, Tribune Interactive (LA Times and Chicago Tribune), and Knight Ridder Digital (Miami Herald and Philadelphia Inquirer), publish news stories and other original content. Defendant Gator displays content from plaintiffs' web sites. It also sells advertising to run on top of the plaintiffs' web pages.
The complaint states that Gator is "a parasite on the Web that free rides on the hard work and investments of Plaintiffs and other website owners. Gator makes money by placing advertisements for third parties on the Plaintiffs' websites without Plaintiffs' authorization."
The complaint continues that "Gator Corp. free rides on the valuable intellectual property rights of the Plaintiffs and the substantial investment Plaintiffs have made, and continue to make, to draw millions of visitors to their websites."
Plaintiffs plead trademark infringement, unfair competition, trademark dilution, copyright infringement, contributory copyright infringement, misappropriation, interference with prospective economic advantage, unjust enrichment, and violation of the Virginia Business Conspiracy Act.
Janet Collum, of the law firm of Cooley Godward, argued the case for Gator. She is resident in the firm's Palo Alto office, and chair of the litigation group. Mike Klisch, of the firm's Reston office, and others, were also present. Terence Ross, of the law firm of Gibson Dunn and Crutcher, argued the case for the publishers. He is a partner in the firm's Washington DC office, and a member of both its litigation and intellectual property sections. Hill Wellford sat second chair.
Ross came to court with two gigantic exhibits -- one showing a news story web page as displayed in one of his client's web sites, and the other showing the same web page as displayed by Gator, with a pop up ad on top of it.
Judge Hilton, Chief Judge for the Eastern District of Virginia, presided. He was familiar with the arguments made in the briefs, and was active in questioning counsel.
For example, when counsel for Gator argued that the alleged irreparable harm suffered by the publishers was a "legal fiction", Judge Hilton asked, "you think they are not entitled to the presumption that there is harm ...?"
When Collum argued that Gator had not infringed the publishers' marks, Judge Hilton asked "doesn't the charts that they just showed me show that you are using their marks ...?"
When Collum argued that there was no trademark infringement because "our ads don't care what is in the background", Judge Hilton stated, "maybe your ads have to come up when there is nobody's trademark in the background ... so you won't have your message on somebody else's mark".
Tech Law Journal spoke with Ross after the hearing. He stated that he is "satisfied, but not surprised" with the Court's ruling. He also stated that trial would likely occur in November of this year, and "certainly by the end of the year." However, he added that it could be expedited.
Ross also issued a release in which he stated that "Today's decision is an important first step for the plaintiffs. The judge has found that through its continuing practices, Gator is violating the intellectual property rights of these Web sites. This is only a first step in the legal process, but it sends a clear signal that the plaintiffs are likely to succeed on the merits of their claims against Gator."
Counsel for Gator declined to speak with TLJ, and did not respond to e-mail questions.
Senate Judiciary Committee Delays Action on Anticounterfeiting Bill
7/11. The Senate Judiciary Committee held an executive business meeting. The agenda included mark up of S 2395, the Anticounterfeiting Amendments of 2002. The Committee lacked a quorum, and held over the matter. However, the Committee did circulate an amendment in the nature of a substitute which substantially revises the bill. The bill prohibits trafficking in, and tampering with, authentication features of copyrighted works.
House Judiciary Committee Schedules Mark Up of TEACH Act
7/12. The House Judiciary Committee has scheduled a mark up of S 487, the Technology, Education and Copyright Harmonization Act, or TEACH Act, for Wednesday, July 17.
This bill would amend copyright law to extend the exemption for distance learning to cover the Internet and other digital delivery media. The bill would benefit rural schools where students are dispersed, colleges that are offering online courses to distant students, and busy adults who cannot attend their brick and mortar classroom sessions.
Title 17, Section 106, contains the basic protection for copyrighted works. It provides that "the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies ..." However, Section 110 provides exemptions relevant to education. First, there is the exemption for face to face instruction. Second, there is the distance learning exemption, which was first enacted in 1976 with closed circuit TV based classroom type education in mind. S 487 expands this exemption to encompass Internet based classroom type education.
The Senate passed this bill by unanimous consent on June 7, 2001. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property promptly held a hearing, and then, on July 11, 2001, approved the bill by a vote of 12 to 0.
The delay in consideration by the full committee may be associated with an effort by library groups and Rep. Rick Boucher (D-VA) to expand the scope of the exemption to include nonprofit libraries.
Senate Appoints Conferees on Trade Promotion Authority
7/12. The Senate appointed conferees to negotiate with the House conferees on trade legislation, including trade promotion authority. The Senate conferees are Sen. Max Baucus (D-MT), Sen. Jay Rockefeller (D-WV), Sen. John Breaux (D-LA), Sen. Charles Grassley (R-IA), and Sen. Orrin Hatch (R-UT). See, Cong. Rec., July 12, 2002, at Page S6728.
The House passed its bill HR 3005, the Bipartisan Trade Promotion Authority Act, by a vote of 215 to 214, on December 6, 2001. The Senate passed its bill, HR 3009, the Trade Act of 2002, on May 23, 2002. It includes trade promotion authority, renewal and expansion of the Andean Trade Preference Act, renewal of the Generalized System of Preferences, re-authorization and expansion of Trade Adjustment Assistance, and re-authorization of the U.S. Customs Service.
Sen. Grassley, the ranking Republican on the Senate Finance Committee, stated in a release that "This is a good development ... A conference on this historic legislation has lagged for too long. We need to get started. Our trading partners are moving on without us. Our workers and our economy need trade promotion authority to succeed. Now we have to get it done. With enough political will, I'm confident we can complete this conference by the August recess. I want the bill on the President's desk this year."
Trade promotion authority, as passed by the House, would give the President authority to negotiate trade agreements that the Congress could approve or reject, but not amend.
People and Appointments
7/12. The U.S. Chamber of Commerce hired Walter Shaub as science advisor to oversee science, technology and data quality issues. see, release.
7/11. The Senate Judiciary Committee approved without objection the nomination of John Rogers to be a judge of the U.S. Court of Appeals (6thCir).
7/11. President Bush nominated Ben Bernanke a Member of the Board of Governors of the Federal Reserve System for the unexpired term of fourteen years from February 1, 1990.
7/11. President Bush nominated Donald Kohn to be a member of the Board of Governors of the Federal Reserve System for a term of fourteen years from February 1, 2002.
PFF Hosts Panel Discussion on Spectrum Issues
7/12. The Progress and Freedom Foundation (PFF) hosted a panel discussion on spectrum issues on Capitol Hill. The speakers were Ed Thomas (head of the FCC's Office of Engineering and Technology), Mike Gallagher (Deputy Director of the NTIA), Kevin Krufky (office of Sen. Sam Brownback), Rudy Baca (Precursor Group), and Steven Berry (SVP for Governmental Affairs at the CTIA). The event was titled "When Wireless Grows Up: Mandates vs. Markets for a ‘Mature’ Industry".
Ed Thomas reviewed the work of the FCC's Spectrum Policy Task Force. Gallagher recited several broad principles that guide the NTIA (such as cooperation among federal agencies, efficiency, stronger receiver standards, and innovative use of spectrum) that he has addressed elsewhere. See, for example, speech of July 11.
Krufky stated that "it is time for Congress to step in and create a new framework" for spectrum. He said that "in the last fifty years we have done nothing." He also said that the wireless services sector needs more spectrum, and that "giving more ownership rights is more important". He also stated that the U.S. should be more aggressive in international proceedings pertaining to spectrum management.
Steve Berry stated that the U.S. wireless service providers need more spectrum to be able to provide Third Generation (3G) wireless services. He outlined the status of various spectrum bands under consideration for reallocation for 3G services. He then expressed his views about the incumbent user of some of the bands -- the Department of Defense (DOD).
Berry stated that "the DOD is in a time warp." He said that it "has not done particularly well in their past management" and that "DOD has to upgrade to new technologies". He also stated that the DOD "needs to use sound spectrum management" and that, to date, it has been "fairly pathetic".
Berry also advocated repealing the excise tax on phones, and lifting ownership caps.
Baca predicted that "probably we are going to see increasing regulatory forays and mandates" for the wireless sector. He also predicted that consolidation is not likely in the wireless industry.
The panel also discussed 802.11. WiFi, or 802.11b, is an IEEE standard for wireless Ethernet networks. It operates on unlicensed spectrum in the 2.4 GHz band at speeds of up to 11 mbps. See, FCC Rules, at Sec. 15.247, "Operation within the bands 902-928 MHz, 2400-2483.5 MHz, and 5725-5850".
Baca stated that "I think that it is a tenuous economic model." He cited, for example, that 802.11 networks "are so incredibly leaky."
In contrast, Gallagher stated that "there is tremendous promise because it relies upon the ingenuity of the American people." He stated, for example, that "you can turn a Pringles can into an 802.11 antenna that can reach for miles", and alerted the audience that there is a website that provides instructions.
802.11b operates at .5 watts, and has a range of up to about 300 feet under ideal conditions. Also, the data transfer rate declines with distance. However, using a pair of Pringles cans as directional antennas can boost the range to over 10 miles at an 11 mbps transfer rate. The Pringles can antennas can also be used to locate and access other peoples' wireless networks. See, however, 18 U.S.C. § 1030.
Qwest Files Section 271 Applications for Four Western States
7/12. Qwest Communications filed a Section 271 application with the Federal Communications Commission (FCC) for authorization to provide in region interLATA service in the states of Montana, Utah, Washington and Wyoming. See, Qwest release.
The FCC issued a public notice [PDF] setting August 1 as the deadline for public comments. This is WC Docket No. 02-189.
Sen. Hollings Writes Michael Powell Re Telecom Bankruptcies and Continuity of Service
7/12. Sen. Ernest Hollings (D-SC), the Chairman of the Senate Commerce Committee, wrote a letter to Federal Communications Commission (FCC) Chairman Michael Powell regarding bankruptcies and potential bankruptcies in the "telecom sector".
He wrote that "millions of consumers risk significant disruption of their basic telephone and data services", and asked what the FCC is doing to assure that there is no interruption in service.
He wrote that "The Communications Act provides explicit authority to the Federal Communications Commission to prevent service disruption. Section 214(a), in part, provides: ``No carrier shall discontinue, reduce, or impair service to a community, or part of a community, unless and until there shall first have been obtained from the Commission a certificate that neither the present nor future public convenience and necessity will be adversely affected thereby ...´´"
He also wrote that "To assure that all possible steps are being taken to prevent such debilitating disruptions, please provide any contingent plans that exist or steps the FCC has taken to ensure uninterrupted service. In addition, please discuss what, if any, coordination has occurred between the Commission and the state Public Utility Commissions. Moreover, should you believe that the FCC needs additional statutory authority to appropriately address this issue, please include that in your response."
In addition, Andy Davis, Communications Director for the Commerce Committee, announced that "the Committee is putting together a hearing on the issues facing the telecom industry in the wake of the WorldCom, Global Crossing and Qwest financial problems. The Committee's examination will extend beyond the accounting failures and address the impact on service and the telecom industry as a whole." He added that the hearing will be held during the week of July 29.
NTIA Director Writes Powell Re Analog Wireless Rules
7/12. Nancy Victory wrote a letter to Michael Powell in which she recommended that the Federal Communications Commission (FCC) eliminate its rules requiring that "that each cellular carrier continue to provide an AMPS-type analog service so long as the carrier continues to have analog customers or roamers on its system."
She elaborated that "Given the widespread availability of digital cellular technologies, which are undeniably more spectrally efficient and secure than analog transmissions, it seems contrary to the public interest for the Commission to continue to mandate the use of this old technology. Further, not only is the original rationale for the requirement (to ensure nationwide roaming) no longer necessary, but the continued mandate to use this less efficient technology constrains innovation and places cellular carriers at a distinct disadvantage vis-à-vis their PCS competitors."
Victory is director of the National Telecommunications and Information Administration (NTIA), a part of the Department of Commerce. Powell is Chairman of the FCC.
FCC Grants Waiver for GPR UWB Devices
7/12. The Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) announced that it adopted an order "establishing a waiver procedure that will permit the continued operation of Ground Penetrating Radar (GPR) devices and wall imaging devices. Under the new procedure, eligible users may operate under a blanket waiver to Part 15 regulations provided that they register their devices with the Commission. The waiver will be contingent on no evidence of harmful interference to authorized services. The Order denies a Motion for Interim Stay of Enforcement of the Commission's UWB rules filed by the Ground Penetrating Radar Industry." See, FCC release [PDF].
Rep. Billy Tauzin (R-LA), Chairman of the House Commerce Committee, who had requested such a waiver, issued a release regarding the FCC's decision. He stated that "Based on the information we have received from the FCC, we are pleased that the Commission has decided to grant a blanket waiver for Ground Penetrating Radar (GPR) devices. We look forward to reviewing the order, but if it grants a blanket waiver to all GPR devices that operate at the Class B limits, as we hope, the Commission will have corrected a serious flaw in its original ultra wideband order."
Powell and Consumer Electronics Association Continue Debate on DTV
7/12. The Consumer Electronics Association issued a release in which it stated that it wrote a letter to Federal Communications Commission (FCC) Chairman Michael Powell responding to his statement [PDF] of June 11 regarding transitioning to DTV.
Powell wrote on June 11 that "The missing piece of the DTV puzzle is the consumer electronics industry. We have not yet received a final response from the manufacturers on the phased-in inclusion of DTV tuners in new sets. I hope they will join their industry colleagues and come forward with real and tangible commitments to advance the transition."
FCC Chairman Powell also released a statement [PDF] on Friday, July 12. He wrote that "The CE industry's response on DTV tuners is so limited, and loaded down with so many conditions, that I believe it amounts to no commitment at all. Not only does the CE industry demand that certain issues be resolved before they will act, they demand they be resolved to their satisfaction. Other industries could have made similar demands. Thankfully, they did not. I hope that the CE industry will reconsider its position and join with its industry colleagues in the effort to make progress today while we continue to work on issues that will take longer to resolve."
However, Powell also wrote, "I commend Zenith for its courage in publicly supporting a phased-in tuner requirement and the persuasive case it makes for why such a requirement will benefit consumers."
Monday, July 15
The House will meet at 12:30 PM for morning hour and at 2:00 PM for legislative business. The House will consider a number of bills under suspension of the rules, including HR 3482, the Cyber Security Enhancement Act of 2002. No votes are expected before 6:30 PM.
The Senate will meet at 12:00 NOON for morning business. At 1:00 PM it will resume consideration of S 2637, the accounting reform bill.
12:30 PM. Larry Mefford (Assistant Director, FBI Cyber Division) will give a speech. Pre-registration is required to attend; contact Kristin Woolley at 703 284-5323 or kwoolley Location: Oracle Corporation, 1910 Oracle Way, Reston, VA.
Day three of four of the National Association of Patent Practitioners' (NAPP) annual meeting. See, registration and information page. At 9:00 AM, Steve Kunin (Deputy Commissioner for Patent Examination Policy) will speak. At 10:00 AM, Robert Clarke (Office of Patent Legal Administration) will speak on Section 102(e). At 12:15 PM, Nicholas Godici (Commissioner of Patents) will give the luncheon address. Location: Wyndam Washington DC, 1400 M Street, NW.
Tuesday, July 16
The House will meet at 9:00 AM for morning hour and 10:00 AM for legislative business.
9:30 - 10:30 AM. Department of Commerce (DOC) officials will hold a media briefing to preview the DOC's July 17 Digital Content and Rights Management roundtable, announce the DOC's September 19 Homeland Security Technology Expo, and announce the launch of a biotechnology industry survey. The participants will include Phil Bond (Under Secretary of Commerce for Technology), Benjamin Wu (Deputy Under Secretary), Bruce Mehlman (Assistant Secretary for Technology Policy), and Chris Israel (Deputy Assistant Secretary). See, notice. Location: DOC, Room 4813, 14th and Constitution Ave., NW.
9:30 AM. The FCC will hold a meeting. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).
LOCATION CHANGE. 10:00 AM. The Senate Banking Committee will hold a hearing. Federal Reserve Board Chairman Alan Greenspan will deliver his semi annual report on monetary policy. See also, media advisory regarding procedures for covering this hearing. Press contact: Jesse Jacobs at 202 224-1654. Location: Room 216, Hart Building.
10:00 AM. The Senate Finance Committee will hold a hearing to examine homeland security and international trade issues. Location: Room 215, Dirksen Building.
2:00 PM. The Senate Judiciary Committee's Subcommittee on Administrative Oversight and the Courts will hold a hearing to examine the FBI's computer hardware problems. See, notice. Press contact: Mimi Devlin at 202 224-9437. Location: Room 226, Dirksen Building.
2:30 PM. The Senate Commerce Committee will hold a hearing on the nomination of Jonathan Adelstein to be a FCC Commissioner. Location: Room 253, Russell Building.
Deadline to submit reply comments to the FCC regarding its Notice of Proposed Rulemaking (NPRM) regarding the consequences of the FCC's classification of cable modem service as an information service. This is CS Docket No. 02-52. See, FCC release [PDF] and notice in Federal Register.
Wednesday, July 17
The House will meet at 10:00 AM for legislative business.
9:30 AM. The Senate Commerce Committee will hold a hearing on legislation to authorize funding for the FTC. Location: Room 253, Russell Building.
10:00 AM. Federal Reserve Board Chairman Alan Greenspan will testify before the House Financial Services Committee. He will deliver his semi annual report on monetary policy. See, notice. Location: Room 2128, Rayburn Building.
10:00 AM. The House Judiciary Committee will meet to mark up several bills, including S 487, the Technology, Education, and Copyright Harmonization Act of 2001 (TEACH Act). Webcast. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.
12:00 NOON. The Congressional Internet Caucus Advisory Committee will host a luncheon. The scheduled speakers include Richard Clarke (Special Advisor to the President for Cyberspace Security) and Kathleen Abernathy (FCC Commissioner). An RSVP is required to attend. Contact either rsvp or call Danielle at 202 638-4370. Location: Reserve Officers Association, 1st and Constitution, NE.
1:00 - 4:00 PM. The Department of Commerce's (DOC) Technology Administration will host a workshop on digital entertainment and its availability to consumers. Phil Bond (Under Secretary of Commerce for Technology) and James Rogan (Director of the USPTO) will co-host the event. For more information, contact Chris Israel, Deputy Assistant Secretary for Technology Policy, at 202 482-5687. See, notice in the Federal Register, July 3, 2002, Vol. 67, No. 128, at Page 44597. Location: Room 4830, Hoover Building, 1401 Constitution Ave., NW.
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, May 29 order [PDF] extending deadline from June 5 to July 17. See also, notice in the Federal Register. This is CC Docket No. 01-338.
Thursday, July 18
The House will meet at 10:00 AM for legislative business.
9:30 AM. The House Commerce Committee's Subcommittee on Commerce, Trade, and Consumer Protection will hold a hearing titled "Are All Online Travel Sites Good for the Consumer: An Examination of Supplier Owned Online Travel Sites". See, notice. Webcast. Press contact: Ken Johnson or Jon Tripp at 202 225-5735. Location: Room 2123, Rayburn Building.
9:30 AM. The Senate Special Committee on Aging will hold a hearing on identify theft. Location: Room 628, Dirksen Building.
2:00 PM. The Senate Judiciary Committee will hold a hearing on pending nominations. Press contact: Mimi Devlin at 202 224-9437. Location: Room 226, Dirksen Building.
2:30 PM. The Senate Commerce Committee will hold a hearing on the nominations of Kathie Olsen and Richard Russell to be Associate Directors of the Office of Science and Technology Policy. Press contact: Andy Davis at 202 224-6654. Location: Room 253, Russell Building.
Deadline to submit comments to the FCC in response to its request for comments on the FCC's Office of Plans and Policy's (OPP) Working Paper No. 35 [PDF], titled "Horizontal Concentration in the Cable Television Industry: An Experimental Analysis" authored by Mark Bykowsky, Anthony Kwasnica and William Sharkey. See, Public Notice [PDF].
Friday, July 19
The House will meet at 9:00 AM for legislative business. No votes expected after 6:00 PM.
12:30 PM. SEC Chairman Harvey Pitt will give a luncheon speech. Location: Ballroom, National Press Club, 529 14th St. NW, 13th Floor.
Deadline to submit applications to the Department of Education for Community Technology Centers Program grants for Fiscal Year 2002 to create or expand community technology centers that will provide disadvantaged residents of economically distressed urban and rural communities with access to information technology and related training. See, notice in the Federal Register.
Deadline to submit comments to the State Department regarding the effects of the privatization of Inmarsat and INTELSAT on U.S. industry, jobs, and industry access to the to the global marketplace. See, notice in the Federal Register.
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