|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,
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
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
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
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.
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
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
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
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
|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
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.
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
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
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
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
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
|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
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
Victory wrote a letter
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
|FCC Grants Waiver for GPR
|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
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 @itaa.org.
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
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,
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
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
@netcaucus.org 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
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
|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.
in the Federal Register.
|About Tech Law Journal
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