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July 26, 2002, 9:00 AM ET, Alert No. 478.
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Rep. Berman Introduces Bill to Legalize Self Help Technologies to Disable P2P Piracy
7/25. Rep. Howard Berman (D-CA) introduced a bill that would permit copyright owners to employ self help technologies when their copyrighted works are infringed on peer to peer (P2P) networks. The bill is intended to enable the music and movie industries to legally engage in interdiction, decoys, redirection, file blocking, spoofs, or other technological tools, to prevent P2P piracy. See, text of bill [HTML], text of bill [PDF], and Rep. Berman's section by section summary.
Rep. Berman is the ranking Democrat on the House Judiciary Committee's Subcommittee on Court, the Internet and Intellectual Property. He also represents a Los Angeles area district. The bill's initial cosponsors are Rep. Howard Coble (R-NC), the Chairman of the Subcommittee, Rep. Lamar Smith (R-TX), and Rep. Robert Wexler (D-FL).
The bill would add a new Section 514 to Chapter 5 (pertaining to copyright infringement and its remedies) of Title 17 (the Copyright Act).
The bill provides, in its subsection (a), that "Notwithstanding any State or Federal statute or other law,  ... a copyright owner shall not be liable in any criminal or civil action for disabling, interfering with, blocking, diverting, or otherwise impairing the unauthorized distribution, display, performance, or reproduction of his or her copyrighted work on a publicly accessible peer-to-peer file trading network, if such impairment does not, without authorization, alter, delete, or otherwise impair the integrity of any computer file or data residing on the computer of a file trader."
To qualify for this immunity, the copyright owner must notify the Department of Justice (DOJ) "of the specific technologies the copyright owner intends to use to impair the unauthorized distribution, display, performance, or reproduction". However, such information is exempt from release under the Freedom of Information Act (FOIA), 5 U.S.C. § 552.
There is no requirement that the copyright owner provide advance notice to its target that it will employ self help technologies against it. Nor must the copyright owner notify its target afterwards. The bill does provide that "At the request of an affected file trader ... a copyright owner shall provide notice to the affected file trader or assignee ..." However, since the bill defines copyright owner as the owner of "an exclusive right under section 106 and any party authorized to act on the owner's behalf" the target may not know whom to request for information.
The bill provides for a very limited cause of action against a copyright owner who engages in self help remedies described by the bill. The bill provides, in subsection (d),  that "If ... a copyright owner knowingly and intentionally impairs the distribution, display, performance, or reproduction of a particular computer file or data, and has no reasonable basis to believe that such distribution, display, performance, or reproduction constitutes an infringement of copyright, and an affected file trader suffers economic loss in excess of $250 as a result of the act by the copyright owner, the affected file trader may seek compensation for such economic loss ..."
This subsection of the bill provides no injunctive remedy. The bill further defines "economic loss" as "monetary costs only". Before bringing suit, the affected file trader must first file an administrative complaint with the DOJ, and comply with its requirements. Moreover, the act of engaging in self help technologies to interfere with file trading alone cannot serve as the basis a legal action; the bill provides that "The cause of action established by this subsection shall only be available as a remedy against impairing actions that would not be lawful but for subsection (a)."
Rep. Berman explained his bill in a floor statement. He said that "the primary current application of P2P networks is unbridled copyright piracy. P2P downloads today consist largely of copyrighted music, and as download speeds improve, there has been a marked increase in P2P downloads of copyrighted software, games, photographs, karaoke tapes, and movies."
Rep. Berman also stated that "The massive scale of P2P piracy and its growing breadth represents a direct threat to the livelihoods of U.S. copyright creators, including songwriters, recording artists, musicians, directors, photographers, graphic artists, journalists, novelists, and software programmers. It also threatens the survival of the industries in which these creators work, and the seamstresses, actors, Foley artists, carpenters, cameramen, administrative assistants, and sound engineers these industries employ. As these creators and their industries contribute greatly both to the cultural and economic vitality of the U.S., their livelihoods and survival must be protected."
The bill does not address what technological measures are permissible. However, Rep. Berman commented on this subject. He said that "Technological innovation, as represented by the creation of P2P networks and their subsequent decentralization, has been harnessed to facilitate massive P2P piracy. It is worth exploring, therefore, whether other technological innovations could be harnessed to combat this massive P2P piracy problem. Copyright owners could, at least conceptually, employ a variety of technological tools to prevent the illegal distribution of copyrighted works over a P2P network. Using interdiction, decoys, redirection, file blocking, spoofs, or other technological tools, technology can help prevent P2P piracy."
Rep. Berman argued that this legislation is made necessary because "technological self-help measures may not be legal due to a variety of state and federal statutes, including the Computer Fraud and Abuse Act of 1986.  In other words, while P2P technology is free to innovate new, more efficient methods of P2P distribution that further exacerbate the piracy problem, copyright owners are not equally free to craft technological responses to P2P piracy." See also, Berman release.
News Analysis: The Berman Bill
7/25. Rep. Howard Berman's (D-CA) bill to permit copyright owners to employ self help technologies when their copyrighted works are infringed on peer to peer (P2P) networks is clearly intended to enable the music and movie industries to shut down the sorts of rampant copying that the Court in the Napster case found to constitute infringement. However, the bill is written with language broad enough to encompass a variety of other scenarios. The bill also provides the party engaging in self help remedies with wide discretion, and offers the target of the self help remedies very little recourse if self help remedies are abused.
While Rep. Berman referred to films, music recordings, photographs, and karaoke tapes in his floor statement, there is nothing in the bill that restricts the right of self help to infringement of copyrights in these media. For example, other content may be made available on a peer to peer network, such as political expression, religious discourse, educational materials, social commentary, and news coverage. These also may be subject to claims of copyright. And hence, P2P trading of these could be interfered with by the self help remedies legalized under this bill.
Also, while Rep. Berman referred to the "massive scale of P2P piracy" by networks such as Napster, the Berman bill provides a very minimal definition of what constitutes a peer to peer network. It could be something as small as two networked computers running file transfer software that are publicly accessible.
Moreover, while Rep. Berman referred to loss of compensation by copyright holders as a result of P2P piracy, there is nothing in the bill that restricts this right of self help to copyright holders who have lost compensation. That is, the right of self help could be exercised by a copyright holder to stop the dissemination of content that the copyright owner has not sold, and does not intend to sell. Hence, the self help technologies legalized by this bill could be used to prevent the dissemination of expression, rather than to prevent economic loss. Ford Motor Company, The Church of Jesus Christ of Latter Day Saints, or government entities might exercise the right of self help created by the Berman bill to suppress criticism.
Next, while the Berman bill provides for a private right of action for wrongful interference, in subsection (d), it is a very limited right of action. The bill requires that the party engaging in self help technological remedies must be a copyright owner, and have a "reasonable basis to believe" that there is an infringement, in order to avoid being held liable for wrongful conduct. Notably, many things that are required to prevail in a copyright infringement action, or to obtain certain remedies in infringement actions, are not required to obtain immunity from liability under this bill.
For example, there is no requirement of registration of copyright.
Second, negligent or unintentional interference is not actionable under the private right of action provided for in the bill. The Berman bill requires that the "copyright owner knowingly and intentionally impairs the distribution" to be held liable under subsection (d).
Third, there is no requirement of actual infringement to avoid liability. The "copyright owner" need only own one of the six exclusive rights of copyright, and have a "reasonable basis to believe" that there is an infringement. The "reasonable basis to believe" standard is a very low threshold.
Furthermore, the "reasonable reason to believe" test would appear to eliminate or weaken defenses to infringement available in a suit for infringement. At least, one might expect the parties engaging in self help remedies to assert that it does. For example, notwithstanding infringement of an exclusive right of copyright under Section 106, there are the rights of fair use (Section 107), rights of libraries (Section 108), and rights of teachers (Section 110). In a legal action for infringement, a defendant may raise any of these, and the court would engage in an analysis of the requirements of these sections.
However, under the Berman proposal, in an action against a party engaging in self help remedies, the "reasonable basis to believe" standard might displace an analysis under Sections 107, 108 or 110. For example, the self help party might argue that it can avoid Section 110 consequences by asserting, "I did not know that the computer I hacked was being used by an educational institutional for distance learning purposes." Likewise, the self help party might argue that Section 107 analysis is irrelevant, provided that it had a "reasonable basis to believe" that infringement occurred. Similarly, the defenses of fraud on the Copyright Office, misuse of copyright, limitations, laches, estoppel, and unclean hands might not be available.
It is perhaps also notable that the Berman bill, which adds a new section to the Copyright Act, defines "copyright owner". The Copyright Act already defines this term, at Section 101. The two definitions are different. The Berman bill states that "the term 'copyright owner' means a legal or beneficial owner of an exclusive right under section 106 and any party authorized to act on the owner's behalf." The Copyright Act states that a " ``Copyright owner´´, with respect to any one of the exclusive rights comprised in copyright, refers to the owner of that particular right."
The difference may be substantial. There are six enumerated exclusive rights of copyright in Section 106. Under the Berman bill, anyone who holds any exclusive right in a copyrighted work is a copyright owner, and can exercise the self help remedies against anyone who has infringed the copyrighted work. The infringement need not be of the exclusive right owned by the party engaging in self help. Also, under the Berman bill, an agent of a copyright owner could employ the actual self help remedies. Both of these characteristics would make it difficult for the target of the interference to know who is employing the interference.
The bill also provides for no effective notice to the party whose computer is interfered with, either before or after the interference. The copyright owner must give the Department of Justice advance notice, but this information is confidential. The copyright owner must give its target notice, but only if the target first asks for notice. But then, anyone who is able to ask for notice, does not need notice. Some parties who have been subjected to wrongful self help technological measures may find it difficult simply to establish whom to sue.
Finally, if a victim of interference succeeds in bringing and prevailing in an action against someone who has wrongfully interfered with his computer, the bill limits damages to "monetary costs only". The bill also does not list injunctive relief as an available remedy.
Edelman Sues N2H2
7/25. Benjamin Edelman filed a complaint [PDF] in U.S. District Court (DMass) against N2H2, Inc. seeking various declaratory and injunctive relief pertaining to copyright law.
This is essentially a policy oriented law suit brought by Edelman, and his ACLU attorneys, seeking broad declarations from the court that would have the effect of altering various aspects of copyright law, including the Digital Millennium Copyright Act (DMCA). They seek new and novel applications of the First Amendment and fair use. They also seek to generally make life miserable for the companies that make blocking software, and the schools and libraries that use this software.
Edelman is a first year law student at Harvard Law School, and a Technology Analyst at the Berkman Center for Internet and Society. He does research on Internet blocking programs, such as those made by N2H2. He is concerned about the erroneous over blocking of web sites. N2H2 encrypts its block lists; so he seeks to decrypt them, and then disseminate them.
He is represented by the ACLU. The attorneys listed on the complaint are Ann Beeson, Christopher Hansen, Kevin Bankston, and Sarah Wunsch. Beeson and Hansen have long been active in policy oriented litigation directed against the use blocking software by schools and libraries.
N2H2 makes software products that enable the blocking of web sites based upon certain criteria. Its product named Bess is sold to schools and libraries. Its product named Sentian is sold to businesses and government. These programs employ lists of web site URLs, based upon type of content, that can be blocked. There are block lists, for example, for pormography and gambling.
N2H2 states in its web site that it is a "a global Internet content filtering company. N2H2 software helps customers control, manage and understand their Internet use by filtering Web content, monitoring Internet access and delivering concise reports on user activity. These safeguards enable organizations of any size to limit potential legal liability, increase user productivity and optimize network bandwidth. N2H2's Bess and Sentian product lines are powered by N2H2's premium quality filtering database -- a list consistently recognized by independent and respected third-parties as the most effective in the industry."
The complaint states that "N2H2 refused Mr. Edelman's direct request for a copy of the block list. Thus, in order to conduct his research, Mr. Edelman must ``reverse engineer´´ N2H2's blocking program. ``Reverse engineering´´ is a process used to gain access to the functional elements of a software program in order to learn how it works." The complaint further states that his research will "consist of five primary steps: (1) reverse engineering a licensed copy of the blocking program in order to discover what measures prevent access to and copying of the block list; (2) creating and using a software tool (``the circumvention tool´´) to circumvent those measures and access the block list; (3) analyzing the block list to determine its accuracy; (4) publishing the results of his analysis and the block list; and (5) distributing his circumvention tool to facilitate other fair and non- infringing uses of the block list."
The complaint also states that "Using information derived through reverse engineering, Mr. Edelman intends to create a software tool to circumvent the block list’s protection measures. The sole function of this circumvention tool, when executed, will be to interoperate with the N2H2 blocking program in an attempt to circumvent the measures preventing access to and copying of the encrypted block list." Then, "After using his circumvention tool to create a readable copy of the block list, Mr. Edelman intends to use a variety of manual and automated systems to identify URLs on the list that have been miscategorized and therefore erroneously blocked by the program." Finally, the complaint states that he intends to publish analyzes of erroneous web site blocking by N2H2, publish N2H2's block lists, and disseminate his circumvention tool.
However, Edelman goes on to assert that N2H2 holds copyrights on its programs, and claims trade secrets. He asserts that he fears that his research could violate software license terms, the DMCA, and trade secrets, unless the Court declares that his planned research activities are protected by the free speech clause of the First Amendment, the fair use doctrine, and other legal theories.
The DMCA, 17 U.S.C. § 1201,  was enacted by the Congress in 1998. It provides at § 1201(a)(1) that "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." It further provides at § 1201(a)(2) that "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title; (B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or (C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title."
Edelman seeks a wide range of declaratory relief. For example, he claims that "proposed circumvention of the access and/or copy control of N2H2's block list does not violate 17 U.S.C. § 1201(a)(1)" of the DMCA because it is protected fair use. He also claims that his "proposed creation and distribution of a software tool, for the purposes of achieving the circumvention ... does not violate 17 U.S.C. § 1201(a)(2) or 17 U.S.C. § 1201(b) of the DMCA, because" it is fair use, it enables the public to make fair use of the block lists, and because the tool will be capable of substantial non-infringing uses.
He also seeks a declaration that his actions would not violate N2H2's software license, on several grounds, including preemption by federal copyright law, unconscionability, misuse of copyright, and enforcement would be contrary to public policy.
He also seeks a declaration that he would not be liable for direct copyright infringement for any intermediate copying of the N2H2 program or the N2H2 block list because such copying is constitutionally protected by the First Amendment and or constitutes a fair use. See also, ACLU release.
People and Appointments
7/25. President Bush nominated Jeffrey White to be a Judge of the U.S. District Court (NDCal). White is a partner in the San Francisco office of Orrick Herrington & Sutcliffe. He is a litigator who focuses on employment trials, fraud, white collar crime, SEC investigations, antitrust, and other issues. He has represented Siebel Systems, Oracle and Lucent. See, White House release.
7/25. President Bush nominated Sandra Feuerstein to be a Judge of the U.S. District Court (EDNY). See, White House release.
7/25. President Bush nominated Kent Jordan to be a Judge of the U.S. District Court (DDel). See, White House release.
7/25. The Senate Banking Committee approved the nominations of Paul Atkins, Harvey Goldschmid, Cynthia Glassman, and Roel Campos to be a members of the Securities and Exchange Commission (SEC) on Thursday morning, July 25. The full Senate approved their nominations Thursday evening.
Reaction to the Berman Bill
7/25. Rep. Howard Berman's (D-CA) bill to permit copyright owners to employ self help technologies when their copyrighted works are infringed on peer to peer (P2P) networks has drawn praise from some groups representing copyright owners, but harsh criticism from some others.
Hilary Rosen, Ch/CEO of the Recording Industry Association of America (RIAA), praised the Rep. Berman's bill in a release. She said that "We applaud Congressman Berman for introducing bipartisan legislation that takes an innovative approach to combating the serious problem of Internet piracy. Online piracy undermines the growth of legitimate music sites and hurts all consumers in the long run -- every dollar lost to piracy is a dollar that cannot be invested in the fresh, new artists we have all come to expect and enjoy."
Rosen continued that "The current landscape for online music is dangerously one-sided, with the peer-to-peer pirates enjoying an unfair advantage. It makes sense to clarify existing laws to ensure that copyright owners -- those who actually take the time and effort to create an artistic work -- are at least able to defend their works from mass piracy. We look forward to working with Congressman Berman, Chairman Coble and other members of Congress on this important initiative."
Similarly, Jonathan Zuck, P/CEO of the Association for Competitive Technology (ACT), wrote a letter to Rep. Berman and other leaders of the House Judiciary Committee expressing support for the bill. He wrote that "Piracy is a significant challenge for the digital media and IT industry and we applaud your effort to promote technological rather than regulatory solutions. I must qualify this support by pointing out that when crafting copyright legislation, we should maintain a dialogue to avoid untended consequences that could harm small IT companies."
In contrast, Ed Black, P/CEO of the Computer & Communications Industry Association (CCIA) said in a release that "We reject the premise of this bill that content owners should be entitled to ‘vigilante justice’ for suspected copyright violations ... Hollywood moguls have long railed against illicit tampering with their protected content by ‘hackers’ and ‘Internet pirates.’ Now the Hollywood studios and the recording industry seek statutory authority for their own hacking, spoofing, and virus attacks, with the capability to shut down many Internet websites and services at their discretion."
"The breadth of the safe harbor provisions, combined with the severe limitations on suits by aggrieved parties, are really tantamount to license for content owners to strike wherever they see fit ... Our industry has recently experienced a rapid rise in cyber-attacks against our networks and secure systems, and the last thing we need is to create a protected group of hackers. No other industry has been deputized to prosecute its own enforcement actions, and we see no compelling reason to provide this enormous grant of power to Hollywood."
House Begins Consideration of Homeland Security Bill
7/25. The House began its consideration of HR 5005, the Homeland Security Act of 2002, a bill to create a new Department of Homeland Security. The House is scheduled to complete its consideration of the bill on Friday, July 26.
On July 24, the House Rules Committee adopted a rule for consideration of the bill that allows certain enumerated amendments to be offered. The full House approved this rule Thursday evening, July 25.
The House also agreed late on July 25 to the Cox Amendment [PDF], which provides specific examples of the types of critical cyber security infrastructure which the Undersecretary for Information Analysis and Infrastructure Protection must develop a plan to protect, the Israel Amendment [PDF], which establishes within the Department a Homeland Security Science and Technology Advisory Committee, and the Woolsey Amendment [PDF], which adds a new section to the bill creating a Homeland Security Institute as a federally funded research and development center.
See, Rules Committee summary of amendments that are in order. See also, texts of all amendments in PDF: Oberstar Costello Roemer Amendment, Young Amendment, Waxman Amendment, Cox Amendment, Israel Amendment, Rivers Amendment, Woolsey Amendment, Cardin Amendment, Hunter Amendment, Ose Amendment, Velazquez Issa Wilson Amendment, Hastings AmendmentKingston Amendment, Rogers Amendment, Rush Amendment, Shays Watson Amendment, Shays Amendment, Morella Amendment, Quinn Amendment, Waxman Frost Amendment, Armey Amendment, Turner AmendmentOberstar Menendez Amendment, Schakowsky Kucinich Mink Amendment, Tom Davis Amendment (which expands the existing FOIA exemption in the bill to other federal agencies as the Secretary of Homeland Security determines as appropriate), Chambliss Harman Shays Menendez Amendment, and Weldon Amendment.
Friday, July 26
The House will meet to resume consideration of HR 5005, the Homeland Security Act of 2002.
10:00 AM. The House Commerce Committee's Subcommittee on Commerce, Trade, and Consumer Protection will hold a hearing titled "Oath Taking, Truth Telling, and Remedies in the Business World". See, notice. Press contact: Ken Johnson or Jon Tripp at 202 225-5735. Location: Room 2123, Rayburn Building.
Deadline to submit reply comments to the FCC regarding its Declaratory Ruling and Second Further Notice of Proposed Rulemaking clarifying that providers of Internet protocol telecommunications relay services are eligible for reimbursement from the Interstate TRS Fund. See, FCC notice [PDF].
Monday, July 29
9:00 AM - 5:00 PM. Day one of a two day meeting of the Federal Accounting Standards Advisory Board (FASAB). RSVP by July 22 by calling 202 512-7350. See, notice in Federal Register. Location: Room 5N30, GAO Building.
1:30 - 3:30 PM. The FCC's WRC-03 Advisory Committee, Informal Working Group 7: Regulatory Issues and Future Agendas, will hold a meeting. See, notice [PDF]. Location: The Boeing Company, 1200 Wilson Blvd., Arlington, VA.
Deadline to submit comments to the FCC's regarding its Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming. See, notice in Federal Register.
Tuesday, July 30
8:30 AM - 12:00 NOON. The Information Technology Association of America (ITAA) and the Center for Strategic and International Studies (CSIS) will host a conference titled "Wireless Security: Challenges and Solutions". Richard Clarke, Special Advisor to the President for Cyberspace Security, will give the keynote address at 8:50 AM. See, notice and agenda. RSVP by July 26, 2002 to kwoolley or 703 284-5323. Location: CSIS, 1800 K Street, NW.
9:00 AM - 5:00 PM. Day two of a two day meeting of the Federal Accounting Standards Advisory Board (FASAB). RSVP by July 22 by calling 202 512-7350. See, notice in Federal Register. Location: Room 5N30, GAO Building.
9:30 AM. The Senate Commerce Committee will hold a hearing "to examine finances in the telecommunications marketplace, focusing on maintaining the operations of essential communications facilities". Press contact: Andy Davis at 202 224-6654. Location: Room 253, Russell Building.
10:00 AM - 12:00 NOON. The State Department's International Telecommunication Advisory Committee (ITAC) will meet. See, notice in Federal Register. Location: Room 5533, State Department.
1:30 - 4:30 PM. The U.S. Trade Representative's Industry Sector Advisory Committee on Services (ISAC-13) will hold a meeting. The meeting will be open from 1:30 until 2:10. The remainder of the meeting is closed. See, notice in Federal Register. Location: Room 6087B, Department of Commerce, 14th Street and Constitution Ave., NW.
Wednesday, July 31
10:00 AM. The Senate Judiciary Committee will hold a hearing to examine class action litigation issues. Press contact: Mimi Devlin at 202 224-9437. Location: Room 226, Dirksen Building.
11:30 AM - 12:30 PM. The U.S. Chamber of Commerce will host a luncheon titled "The President's Homeland Security Strategy: Implications for Business". The speaker will be Tom Ridge. The price to attend is $55 for members and $95 for non-members. See, notice. Location: 1615 H Street, NW.
12:30 PM. Sen. Max Baucus (D-MT) will give a luncheon speech. Location: Ballroom, National Press Club, 529 14th St. NW, 13th Floor.
Second of three deadlines to submit proposals to the National Institute of Standards and Technology (NIST) for FY 2002 Advanced Technology Program (ATP) funds. See, notice in Federal Register, April 18, 2002, Vol. 67, No. 75, at Pages 19160 - 19164.
Thursday, August 1
9:00 AM - 3:00 PM. The Federal Communications Commission's (FCC) Spectrum Policy Task Force will hold a public workshop titled "Experimental Licenses and Unlicensed Spectrum". See, FCC notice [PDF]. Webcast. Location: FCC, Commission Meeting Room, 445 12th Street, SW.

2:00 PM. The Senate Judiciary Committee will hold a hearing on pending judicial nominations. Press contact: Mimi Devlin at 202 224-9437. Location: Room 226, Dirksen Building.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding Qwest Communications' Section 271 application for authorization to provide in region interLATA service in the states of Montana, Utah, Washington and Wyoming. See, FCC public notice [PDF]. This is WC Docket No. 02-189.

Friday, August 2
9:00 AM - 3:00 PM. The FCC's Spectrum Policy Task Force will hold a public workshop titled "Interference Protection". See, FCC notice [PDF]. Webcast. Location: FCC, Commission Meeting Room, 445 12th Street, SW.
Deadline to submit comments to the Federal Communications Commission (FCC) in response to its request for comments on the draft of its revised strategic plan for 2003-2008. See, FCC notice [PDF].
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].
Bush Makes Judicial Appointments a Campaign Issue
7/25. President Bush gave a speech at an Elizabeth Dole for Senate dinner in Greensboro, North Carolina. He argued that judicial appointments is a reason why voters should elect Republican Senators, and thus return control of the Senate to the Republicans.
He said this. "You know else why I need Elizabeth Dole? I want my judges to get a fair hearing. I picked -- I nominated good people to serve on the bench, good, qualified, distinguished Americans -- like Terry Boyle. I put his name out there. I put his name out there 14 months ago, and he can't get a hearing. I nominated a fabulous woman from Texas named Pricilla Owen, a great jurist ranked at the highest rating by the ABA, ran twice statewide in Texas and won. And yet, when you listen to the rhetoric up there, it's all politics in Washington, D.C. They're not willing to give these judges their fair shake and a fair due. It's time to get the Senate in the hands of people who will approve the good jurists I send, so we can have a federal bench that will not -- that will strictly interpret the Constitution of the United States of America." 
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