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September 5, 2002, 9:00 AM ET, Alert No. 502.
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District Court Finds Contributory and Vicarious Infringement by Madster
9/4. The U.S. District Court (NDIll) issued its Memorandum Opinion and Order in the consolidated Aimster copyright litigation, granting a motion for preliminary injunction filed by various record companies and music publishers against the Aimster file sharing service, which is now known as Madster.
The Court held that the "Plaintiffs have unequivocally established that Aimster's users are engaged in direct copyright infringement." It rejected Aimster's Audio Home Recording Act (AHRA) defense.
The Court next held that the plaintiffs demonstrated a likelihood of success on the merits that Aimster engaged in both contributory and vicarious infringement.
The Court rejected Aimster's defense that its service is capable of substantial non-infringing uses, under the Supreme Court's decision in Sony v. Universal City Studios, 464 U.S. 417 (1984). The Court also found that Aimster is not eligible for any of the safe harbor protections of the Digital Millennium Copyright Act, because of its failure to comply with 17 U.S.C. § 512(i).
The Court has yet to issue the preliminary injunction order. The Court's opinion orders the plaintiffs to submit proposed language for the preliminary injunction within five business days.
Madster has filed a bankruptcy petition. However, the bankruptcy court lifted the bankruptcy stay for the purpose of allowing this court to rule on this motion for preliminary injunction. Madster was previously known as Aimster, but ceased using the name, and associated domain names, when AOL asserted trademark rights related to its AOL instant messaging (AIM) service.
Hilary Rosen, Ch/CEO of the Recording Industry Association of America (RIAA), which represents record company plaintiffs, stated in a release that "This unequivocal ruling today underscores that companies and individuals will not be permitted to build a business on music they do not own and will be held responsible for their actions. Chief Judge Aspen considered every argument presented by defendants and one by one rejected each argument. He wrote that Aimster 'is a service whose very raison d'etre appears to be the facilitation of and contribution to copyright infringement on a massive scale.' "
FCC Comments on Electioneering Communications
8/29. The Federal Communications Commission (FCC) submitted a comment [4 pages in PDF] to the Federal Election Commission (FEC) in response to the FEC's Notice of Proposed Rulemaking (NPRM) regarding electioneering communications. The McCain Feingold bill requires the FCC to carry in its web site data relevant to electioneering communications.
§ 201(b) of the McCain Feingold campaign finance bill (Bipartisan Campaign Reform Act of 2002, or BCRA), provides, in part, that the FCC "shall compile and maintain any information the Federal Election Commission may require to carry out section 304(f) of the Federal Election Campaign Act of 1971 ["FECA"] (as added by subsection (a)), and shall make such information available to the public on the Federal Communications Commission's website." (Parentheses and brackets in original.)
§ 304(f) of the FECA, as amended by § 201(a) of the BCRA, defines electioneering communications as "any broadcast, cable or satellite communication which ... is targeted to the relevant electorate." In addition, a communication "targeted to the relevant electorate" is defined as a communication that "can be received by 50,000 or more persons" in the district or state that a candidate, who is referred to in the communication, seeks to represent.
The FCC's comment notes that "this project will require substantial resources in terms of time, money and personnel. At minimum, it will involve the integration of population information, congressional and state boundary geographic information, and service area data for broadcast stations, cable systems, and satellite systems. It could potentially also involve more detailed information relating to the specific programming services transmitted or carried by each broadcast station, cable system, and satellite system in the country."
The FCC also notes that while it possesses considerable data, and can purchase data, it may be "required to collect data from its regulatees", and "will likely have to adopt new information collection forms".
The FCC also points out that whatever it does, its information will not be accurate, because, for example, "some people within a broadcast station's service contour cannot actually receive its signal, and some outside it can".
The FCC also references a constitutional issue. It states that "in order that the definition of electioneering communication not be deemed unconstitutionally overbroad, the rules should not result in overcounting the number of persons reached."
The FEC has published in its website 35 comments which it has received in response to this NPRM. See, list of comments, with hyperlinks. See, especially, comment [11 pages in PDF] submitted by the National Association of Broadcasters (NAB), which is also challenging the constitutionality of the BCRA in federal court. The NAB argues that the definition of electioneering communications should be limited to paid advertisements, and that broadcasters should not be responsible for enforcing the mandates of the BCRA.
President Bush signed the BCRA on March 27; it takes effect on November 6. The FEC held a public hearing on this NPRM on August 27 and 28. This is FEC No. 2002-13.
WTO DG Panitchpakdi Addresses Trade and Doha
9/3. World Trade Organization (WTO) Director General Supachai Panitchpakdi gave a speech in Johannesburg, South Africa, titled "Trade and Sustainable Development: The Doha Development Agenda".
He spoke at the "World Summit on Sustainable Development". He focused on how the Doha Development Agenda, and free trade in general, will benefit poor nations.
"At Doha last November, in a climate of dangerous international uncertainty, WTO members showed the determination to make multilateralism work," said Panitchpakdi. "The Doha Development Agenda is more than a catchword or a vague expression of shared sentiment. It offers the promise of real development gains. An open trading system will help increase income levels and reduce poverty."
He also touched on intellectual property rights, but only in the context of drug patents. He stated that "On drugs patents and public health, issues which are vital for sustainable development, a separate Ministerial Declaration from Doha states that the WTO's TRIPS Agreement “does not and should not prevent members from taking measures to protect public health”. This declaration is a boost for global efforts to address the public health problems afflicting many developing and least developed countries, especially those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics."
Consumer Groups Petition FTC to Promulgate Rule Banning Deceptive Spam
9/4. The Telecommunications Research and Action Center, the National Consumers League, and Consumer Action submitted a petition [14 pages in PDF] to the Federal Trade Commission (FTC) requesting that it initiate a rule making proceeding to adopt a rule pertaining to deceptive practices in the sending of unsolicited commercial e-mail.
The groups propose banning deceptive practices in sending spam, such as misrepresenting the sender or content of the message. They also propose mandating an effective opt out procedure. Finally, they seek a private remedy.
The petition is titled "In the Matter of The Impact of Deceptive and Fraudulent Unsolicited Commercial Email or Spam on Consumers".
Congress has passed no legislation giving the FTC specific authority to regulate spam practices. Many bills have been introduced in recent Congresses. However, none has been enacted into law.
The petitioners argue that the FTC has authority to promulgate a rule under its general authority under Section 5 of the Federal Trade Commission Act (FTCA), which is codified at 15 U.S.C. § 45. It provides, in part, that "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful".
The consumer groups argue in their brief that "While the First Amendment protects the right of commercial free speech, it does not protect fraudulent or misleading speech. UCE is deceptive under the Federal Trade Commission Act when it is harmful to consumers. Common and egregious deception occurs when a sender intentionally misrepresents any portion of the email (including the sender’s or recipient’s identity). It is also deceptive to intentionally misrepresent the subject or content of an unsolicited commercial email, fail to provide a legitimate email or phone contact for the real party in interest, fail to provide a reliable opt-out instruction or fail to honor an opt-out request. The Commission has in its power an effective tool for dealing with this problem. Issuing a rule defining this type of email as a deceptive practice and giving consumers the power to enforce this rule would dramatically reduce the problem of deceptive UCE. It would also serve to reduce the amount of UCE in total, possibly restoring consumer confidence in e-commerce."
The petition also contains draft language for a proposed rule. It is as follows:
"Unsolicited commercial email is deceptive and therefore unlawful if it:
1. Misrepresents the sender (in source or routing information); or
2. Misrepresents the subject or content of the email; or
3. Fails to provide reliable contact information for the real party in interest; or
4. Fails to provide a reliable opt-out system; or
5. Is sent to an individual who has opted out or resigned from sender’s list, or to whom sending unsolicited, commercial email is otherwise prohibited by law."
Howard Beales, Director of the FTC's Bureau of Consumer Protection, had this reaction. "The FTC is concerned about the proliferation of spam affecting consumers and we look forward to reviewing the petition. In every spam proposal we have seen, vigorous law enforcement is key. We have brought numerous cases against deceptive and misleading spam practices, and that's exactly what we will continue to do. Consumers can help our law enforcement efforts by sending spam to our spam mailbox at" See, FTC release.
IIPI To Host Conference on Specialized IP Courts
9/5. The International Intellectual Property Institute (IIPI) will host a two day conference titled "Specialized Intellectual Property Courts" on September 12 and 13 in Washington DC.
The first day of the conference will be held in the Moot Court Room of the George Washington University Law School. Highlights include the following:
8:30 AM. Welcoming Comments: Bruce Lehman (IIPI) and others.
9:00 AM. Panel: Judicial Capacity Regarding the Enforcement of Intellectual Property Disputes -- What we Know about Specialized IP Courts in the World Today: Judge Randall Rader (Federal Circuit), Prof. Michael Ryan (GWU), and Christian Wichard (WIPO).
10:30 AM. Panel: Case Studies on Specialized IP Courts and their Effect on the Improvement of IP Litigation: International Developments in Developed Economies.
12:30 PM. Luncheon Keynote Address titled "Specialized IP Courts and the Rule of Law" by Prof. Hugh Hansen (Fordham Law).
2:00 PM. Panel: Case Studies on Specialized IP Courts and their Effect on the Improvement of IP Litigation: American Perspectives: Gerald Mossinghoff (Oblon), Judge Edward Damich (Court of Federal Claims), Judge Pierre Leval (2nd Circuit), Judge Ronald Whyte (U.S. District Court, NDCal).
3:00 PM. Lecture: Evaluating Developing Country Judicial System Performance.
4:00 PM. Panel: Case Studies on Specialized IP Courts and their Effect on the Improvement of IP Litigation: IP Courts in Developing, Transition and Small Economies.
The second day of the conference will be held at the Markey National Courts Building at 717 Madison Place, NW. Highlights include an opening speech by USPTO Director James Rogan, and panels titled "Training and Reforming the IP Judicial Capacity", "The Role of Alternative Dispute Resolution", "Handling Administrative Determinations and Appeal Procedure", and "Perspectives from Industry - Judicial Enforcement in Developing Countries".
See also, IIPI release and online registration form.
USPTO to Host Meeting on Patent Examinations for Semiconductors and Electrical and Optical Systems
9/4. The U.S. Patent and Trademark Office's (USPTO) Technology Center 2800 announced that it will hold a half day event on the morning of October 15 titled "Semiconductor Customer Partnership Meeting".
The purpose of the meeting is to discuss the quality and timeliness of the examination process for applications pertaining to semiconductors, electrical and optical systems and components.
Those planning to attend should contact Tom Thomas at tom.thomas or 703 308-2772. The meeting will be held at Crystal Park 1, Suite 819, 2011 Crystal Drive, Arlington, Virginia. See also, USPTO notice.
More News
9/4. The U.S. Court of Appeals (FedCir) issued its opinion [MS Word] in PIN/NIP v. Platte Chemical Company, a patent infringement case involving the growing of potatoes. The District Court granted summary judgment to Platte that a claim of its U.S. Patent No. 5,622,912 is not invalid under 35 U.S.C. § 102. The jury returned a verdict that a claim of the patent is not invalid under 35 U.S.C. § 103, that PIN/NIP infringed two claims of the 912 patent, and that one claim satisfied the written description requirement of 35 U.S.C. § 112. The Appeals Court affirmed in part, reversed in part and vacated in part.
9/4. The Federal Communications Commission (FCC) announced that "an investigation by the FCC's Enforcement Bureau has led to the conviction and sentencing of William Flippo on eight counts, which include unlicensed operation and causing intentional interference to Amateur Radio Communications." Flippo violated 47 U.S.C. § 301 and § 333. He was sentenced to 15 months imprisonment, and fined $25,000. See, FCC release.
Thursday, September 5
The House will meet at 10:00 AM for legislative business. It will consider several non tech related bills. See, Whip Notice.
9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in CompTel v. FCC, No. 00-1272. This is a petition for review of the FCC's June 2000 Supplemental Order Clarification of the FCC's Local Competition Order. CompTel challenges the FCC's authority to restrict access to unbundled network elements (UNEs), and especially enhanced extended links (EELs). See, brief [PDF] of CompTel.Judges Edwards, Rogers and Williams will preside. Location: Courtroom 20, 333 Constitution Ave., NW.
10:00 AM. The House Judiciary Committee will hold a meeting to mark up several bills. The last item on the agenda is HR 4561, the Federal Agency Protection of Privacy Act, sponsored by Rep. Bob Barr (R-GA). The bill would require federal agencies to the agency shall prepare and make available for public comment an initial privacy impact analysis when it proposes new regulations. Location: Room 2141, Rayburn Building.
10:00 AM. The House Transportation Committee's Subcommittee on Highways and Transit will hold a hearing titled "Driver's License Security Issues." The scheduled witnesses include Roger Cross (Wisconsin Division of Motor Vehicle), Rep. Mike Weaver (Kentucky State House), Sen. Betty Karnette (California State Senate), Katie Corrigan (ACLU), Lori Waters (Eagle Forum), and Ari Shwartz (CDT). See, prepared statements of Waters [PDF] and Schwartz. See, notice. Location: Room 2167, Rayburn Building.
10:00 AM. The Senate Judiciary Committee has scheduled an executive business meeting. See, notice. It has not released an agenda. However, the most pressing item pending before the Committee is the nomination of Texas Supreme Court Justice Priscilla Owen to be a Judge of the U.S. Court of Appeals for the 5th Circuit. Location: Room 226, Dirksen Building.
12:00 NOON. William Lash (Assistant Secretary of Commerce for Market Access and Compliance) will speak on "Trade Compliance After TPA". Location: Heritage Foundation, 214 Massachusetts Ave NE.
2:00 - 4:00 PM. The FCC's Advisory Committee for the 2003 World Radiocommunication Conference (WRC-03 Advisory Committee) will hold a meeting. This meeting was originally scheduled for August 22. See, original notice in Federal Register, and rescheduling notice in Federal Register. Location: Commission Meeting Room (TW-C305), 445 12th Street, SW.
Day two of a three day meeting titled "U.S. Ireland Business Summit". Secretary of Commerce Don Evans is scheduled to speak at 9:30 AM. (See, DOC release.) From 2:30 to 4:30 PM there will be a panel discussion titled "Information and Communications Technology". The scheduled panelists include FCC Commissioner Kevin Martin. See, conference web site. Location: Ronald Reagan Building and International Trade Center, 14th & Pennsylvania Avenue, NW.
8:30 AM - 6:00 PM. Day one of a two day conference titled "Symposium on the Role of Scientific and Technical Data and Information in the Public Domain" hosted by the National Academy of Sciences. See, agenda. Location: National Academy of Sciences Auditorium, 2100 C Street NW.
Deadline to request to testify before the Trade Policy Staff Committee (TPSC) hearing on China's compliance with the commitments it made in connection with its accession to the World Trade Organization (WTO). See, U.S. Trade Representative (USTR) notice in the Federal Register.
Friday, September 6
The House and Senate will hold a joint meeting in New York City.
9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Motion Picture Association of America v. FCC, No. 01-1149. Judges Edwards, Henderson and Rogers will preside. Location: 333 Constitution Ave., NW.
8:30 AM - 4:00 PM. Day two of a two day conference titled "Symposium on the Role of Scientific and Technical Data and Information in the Public Domain" hosted by the National Academy of Sciences. See, agenda. Location: National Academy of Sciences Auditorium, 2100 C Street NW.
Day three of a three day meeting titled "U.S. Ireland Business Summit". See, conference web site. Location: Ronald Reagan Building.
Monday, September 9
9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in WorldCom v. FCC, No. 01-1198. Judges Tatel, Garland and Williams will preside. Location: Courtroom 20, 333 Constitution Ave., NW.
Day one of a two day conference on patent interference law, hosted by the Intellectual Property Owners Association (IPO). For more information, call 202 466-2396. Location: Ronald Reagan International Trade Center.
Tuesday, September 10
9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in AT&T v. FCC, No. 01-1188. Judges Ginsburg, Sentelle and Silberman will preside. Location: 333 Constitution Ave., NW.
10:00 AM. The Senate Judiciary Committee will hold a hearing to examine the implementation of the USA PATRIOT Act, focusing on the expansion of the Foreign Intelligence Surveillance Act (FISA). Location: Room 226, Dirksen Building.
12:00 NOON. The FCBA's Engineering and Technical Practice Committee will host a brown bag lunch titled "Spectrum Management Reform: Preliminary Perspectives". The scheduled speakers are Paul Kolodzy (FCC Senior Spectrum Policy Advisor) and Mike Gallagher (NTIA). RSVP to Lisa Gaisford. Location: FCC, 445 12th St., SW, Courtyard Level, Conference Rooms B418 & B511.
12:00 NOON. Deadline to submit written commits to the Office of the USTR in response to its notice in the Federal Register requesting comments on China's compliance with the commitments it made in connection with its accession to the World Trade Organization (WTO).
Day two of a two day conference on patent interference law, hosted by the Intellectual Property Owners Association (IPO). For more information, call 202 466-2396. Location: Ronald Reagan International Trade Center.
The Intellectual Property Owners Association (IPO) Board of Directors will hold a meeting.
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