|Copyright Holders Move for
Summary Judgment Against Peer to Peer Services
|9/9. Members of the Motion
Picture Association of America (MPAA), Recording Industry Association of
America (RIAA) and National
Music Publishers Association (NMPA) filed a motion for
summary judgment, and supporting pleadings, under seal, with
the U.S. District
Court (CDCal) in MGM
v. Grokster. The MPAA, RIAA and NMPA member
companies allege contributory and vicarious copyright
infringement by the peer to peer services Kazaa, Grokster and
The RIAA stated in a release that "In deference to the
confidential evidence designated by defendants, the
plaintiffs' summary judgment brief has been filed
confidentially, under seal."
However, the RIAA summarized its arguments as follows. First,
the defendants "built their networks to emulate Napster
in almost every respect. They succeeded beyond their wildest
dreams. Having begun with Napster technology and a Napster
business model, they have marketed their service to Napster
users and argued the same legal defenses as Napster".
Second, the defendants "have built their networks into
candy stores of infringement that allow a user to find the
most popular music and movies of our time without paying any
of the rights holders". Third, the defendants "are
earning millions of dollars from the service".
Fourth, the defendants "are acutely aware that the
services are being used to facilitate copyright infringement
on a massive scale for movies and music". Fifth, the
defendants "built and controlled the networks in a way
that they could easily prevent the copyright infringements
from occurring. The defendants' principal defense that they
have no ability to control the network is belied by a myriad
of facts, including the fact that Kazaa demonstrated its
ability to turn off the Morpheus system at whim".
And finally, the copyright holders' brief argues that the
defendants "have been engaged in much more activity than
merely distributing software as they claim. Rather, they were
the genesis of and continue to be the sustainer of their
|EPIC Comments on FTC's
Proposed Consent Order Affecting Microsoft's Privacy Practices
|9/9. The Electronic Privacy
Information Center (EPIC) and other groups submitted a comment
to the Federal Trade Commission
(FTC) regarding the FTC's proposed
consent order [8 pages in PDF] settling an administrative complaint
[6 pages in PDF] against Microsoft
alleging violation of Section 5(a) of the Federal Trade
Commission Act (FTCA) in connection with Microsoft's privacy
and security practices. The complaint and consent order focus
on Microsoft's sign-on and online wallet services named
Passport and Passport Express Purchase.
The EPIC comment states that "We believe that the Consent
Order will go far in improving security and privacy practices
associated with the Microsoft Passport Service. However,
privacy hazards continue to remain in the Passport
The EPIC recommends four changes. Its want the FTC to
"require more transparency from Microsoft",
"examine authentication systems that are deployed and
under development", "ensure that Microsoft is
complying with the EU-US Safe Harbor, and that specifically,
access to the entire Passport profile for correction and
deletion is possible", and "strengthen the security
program for Microsoft by limiting the Passport system".
The EPIC and other groups filed a pair of complaints last year
with the FTC that preceded the FTC's action. The EPIC and
others submitted their original complaint
[PDF] on July 26, 2001, and an updated
complaint [PDF] on August 15, 2001. Both complaints
pertained to Microsoft's Passport and privacy, and alleged
violation of Section 5 of the FTCA. See, story titled
"EPIC Complains about Microsoft Passport" in TLJ
Daily E-Mail Alert No. 250, August 16, 2001, and story
titled "EPIC Complains to FTC About Windows XP" in TLJ
Daily E-Mail Alert No. 236, July 27, 2002.
On August 8 of this year the FTC brought and settled an
administrative complaint. The complaint alleged that Microsoft
"represented, expressly or by implication, that it
maintained a high level of online security by employing
sufficient measures reasonable and appropriate under the
circumstances to maintain and protect the privacy and
confidentiality of personal information obtained from or about
consumers in connection with the Passport and Passport Wallet
services", whereas, in fact, Microsoft "did not
maintain a high level of online security ..."
The FTC and Microsoft simultaneously entered into an Agreement
Containing Consent Order. Microsoft admitted to no violations
of federal law. Microsoft will pay no fine. However, the
agreement, which has a twenty year duration, imposes numerous
requirements for Microsoft's information security program. See
also, story titled "FTC
Files and Settles Complaint Against Microsoft",
August 8, 2002.
The Computer &
Communications Industry Association (CCIA), a long time
Microsoft critic, also submitted a comment. It wrote that
"we are disturbed that the proposed consent order does
nothing to address the root causes of the problems identified
by the Commission and will allow Microsoft to continue to
abuse its illegal monopoly to the detriment of consumers and
The CCIA wrote that "Passport is merely one of the more
recent outgrowths of Microsoft's dominance in desktop
computing, and is integral in Microsoft's strategy to
perpetuate its monopoly power on the Internet. Microsoft has
ensured that Passport will become the dominant authentication
and sign-on service by requiring or inducing users of other
dominant Microsoft applications and services to obtain
The CCIA also wrote that the consent order is flawed
because "commitments made by Microsoft to remedy its
conduct are ultimately dependent on Microsoft’s willingness
to stand by them. Microsoft has shown time and again that it
is fundamentally incapable of living up to obligations that
have been imposed on it by government authorities."
The CCIA urges the FTC to "withdraw from the proposed
consent order, to continue its investigation into the
lawfulness of Microsoft's anticompetitive use of Passport and
related technologies, and take steps to address the
fundamental causes of Microsoft’s ongoing unlawful behavior,
which harms consumers, thwarts competition, and impedes
|People and Appointments
|9/9. The U.S. Attorney for the Northern District of
California, Kevin Ryan, announced the new organization
and management of his office. Ross Nadel will remain
Chief of the Computer Hacking and Intellectual Property (CHIP)
Unit. He has held the position since the unit was created in
2000. Elizabeth De La Vega will remain as Chief of the
San Jose Branch Office, with Eumi Choi as Deputy Chief. Hannah
Horsley will be Chief of the Appellate Section. Patrick
Robbins will be Chief of the Securities Fraud Section. Martha
Boersch will be Chief of the Organized Crime Strike Force.
Miranda Kane will be Chief of the White Collar Crime
Section. Steven Gruel will be Chief of the Major Crimes
(formerly General Crimes) Section. See, USAO
9/9. Qwest Communications
announced that Janet Cooper has rejoined the company as
SVP and Treasurer. See, Qwest
|FTC Opposes State Restraint
on Internet Casket Sales
|8/29. The Federal Trade
Commission (FTC) filed an amicus
curiae brief [17 pages in PDF] with the U.S. District Court (WDOkla)
v. Harris, a case regarding state regulation
that affects the sale of caskets over the Internet.
The plaintiffs sell caskets over the Internet. They filed a
complaint in the District Court against the Oklahoma State
Board of Embalmers and Funeral Directors and others alleging
that Oklahoma's Funeral Services Licensing Act (FSLA), which
requires sellers of funeral goods to be licensed funeral
directors, violates the Commerce Clause.
The FTC's amicus brief states that "While the Commission
does not take a position on whether the FSLA ultimately
violates the Commerce Clause, it is filing this amicus
brief because defendant's characterization of the Funeral Rule
conflicts with the actual purpose of the Rule and has the
unfortunate effect of turning the Rule against its objective
of enhanced competition and consumer welfare."
The FTC brief states that "The fundamental purpose of the
Rule is to protect consumers by giving them full information
in order to promote greater competition." However,
"Rather than promote competition, the FSLA prohibits it.
Rather than protect consumers by exposing funeral directors to
meaningful competition, the FSLA protects funeral directors
from facing any competition from third party casket sellers.
Rather than promote consumer choice, the FSLA forces consumers
to purchase caskets from funeral directors."
|GAO Reports on Control of
|9/9. The General Accounting
Office (GAO) released a report [34
pages in PDF] titled "Export Controls: Department of
Commerce Controls over Transfers of Technology to Foreign
Nationals Need Improvement".
The report focuses on "deemed exports". It begins by
explaining that the U.S. "controls exports of certain
civilian technologies that have military uses. U.S. firms may
be required to obtain a license from the Department of
Commerce before exporting these ``dual-use´´ technologies
from the United States to many other countries, including
countries of concern. Commerce regulations also deem domestic
transfers of controlled dual-use technologies to citizens of
these countries to be exports. As a result, Commerce may
require firms that employ foreign nationals working with these
technologies in this country to obtain ``deemed´´ export
The report notes that "In fiscal year 2001, Commerce
approved 822 deemed export license applications and rejected
3. Most of the approved licenses allowed foreign nationals
from countries of concern to work with advanced computer,
electronic, or telecommunication and information security
technologies in the United States. China accounted for 73
percent of licenses approved in fiscal year 2001. Russia,
Iran, India, Syria, Israel, Iraq, and Pakistan accounted for
another 14 percent, collectively."
The report identifies weaknesses in the Depart of Commerce's
efforts to detect possible unlicensed deemed exports. It
states: "First, Commerce did not screen thousands of H-1B
change of status applications submitted domestically to INS
for foreign nationals already in the United States. We found
that in fiscal year 2001 about 15,000 individuals from
countries of concern changed their immigration status to
obtain jobs that could have involved controlled technology.
Second, Commerce could not readily track the disposition of
the 160 cases referred to field offices for follow-up because
it lacks a system for doing so. As a result of these
shortcomings, Commerce may be missing opportunities to detect
firms that should have applied for deemed export
The report was prepared for Rep. Christopher Shays
(R-CT), Chairman of the House
Government Reform Committee's Subcommittee on National
Security, Veterans Affairs, and International Relations.
|FBI Announces Meetings on
Criminal Information Sharing and Privacy
|9/9. The Federal Bureau of
Investigation (FBI) published a notice
in the Federal Register announcing a series of meetings on
October 8-10 of the Compact Council created by the National
Crime Prevention and Privacy Compact Act of 1998 regarding the
sharing of law enforcement information among government
The notice states that "the federal government and
sixteen states are parties to the Compact which governs the
exchange of criminal history records for licensing,
employment, and similar purposes. The Compact also provides a
legal framework for the establishment of a cooperative federal
state system to exchange such records."
The notice states that the agenda for the meetings includes
"(1) United States Customs Service Request for Access to
the Interstate Identification Index (III) for NonCriminal
Justice Purposes, (2) Immigration and Naturalization Service
(INS) Request to Allow State Repository Criminal History
Maintenance and Dissemination, (3) Standards/ Procedures for
Identity Verification, (4) Proposed Sanctions Rule, (5)
National Applicant Database Requests, (6) Use of the III for
Background Checks on Applicants' References, Relatives,
Friends, and Associates, (7) Revised Rule to Allow INS Use of
III for Emergency Child Placement, (8) Qualification
Requirements and Audit Criteria, (9) United States Department
of Justice Requirement for System Use, and (10) A Safer Nation
-- Proposed Briefing Document."
The meetings will be held on the evening of October 8, and all
day on October 9-10, at the Wyndham Washington. See, Federal
Register, September 9, 2002, Vol. 67, No. 174, at Page 57245.
|About Tech Law Journal
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Contact: 202-364-8882; E-mail.
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|Tuesday, September 10
|The House will meet at 9:00 AM for morning hour and at 10:00
AM for legislative business. The House will consider HR 5011,
the Military Construction Appropriations Act for FY 2003, and HR 5010,
the Department of Defense Appropriations Act for FY 2003. See,
The Senate is scheduled to consider HR 5093,
the Interior Appropriations bill, and to continue its
consideration of HR 5005,
the Homeland Security Bill.
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 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. This
item was held over from last week. Audio web cast. Location:
Room 2141, Rayburn Building.
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). See, notice.
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
RSVP to Lisa Gaisford.
Location: FCC, 445 12th St., SW, Courtyard Level, Conference
Rooms B418 & B511.
12:00 NOON. Deadline to submit written comments to the Office
of the USTR in response to its
in the Federal Register requesting comments on China's
compliance with the commitments it made in connection with its
accession to the World Trade
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
The Intellectual Property Owners
Association (IPO) Board of Directors will hold a meeting.
|Wednesday, September 11
|Anniversary of the terrorist attacks of September 11, 2001.
The House will meet at 12:00 NOON for legislative business. No
votes are expected before 5:00 PM. The House will consider The
Patriot Day Resolution. See, Whip
|Thursday, September 12
|The House will meet at 10:00 AM for legislative business.
The House is scheduled to consider HR 5193,
the Back to School Tax Relief Act of 2002.
8:00 AM - 5:30 PM. Day one of a two day conference hosted by
the International Intellectual
Property Institute (IIPI) titled "Specialized
Intellectual Property Courts". See, IIPI
release and online
registration form. Location: George Washington University
Law School, Moot Court Room, 2000 H Street, NW.
9:30 AM. The FCC will hold a
meeting. The FCC will consider a Notice of Proposed Rulemaking
(NPRM) concerning its media ownership rules, pursuant
to Section 202(h) of the Telecommunications Act of 1996. It
will also consider a NPRM and Memorandum Opinion and Order
concerning possible revisions to the rules on unsolicited
advertising over the telephone and facsimile machine and the
possible establishment of a national do not call list.
This is CC Docket No. 92-90. Location: FCC, 445 12th Street,
SW, Room TW-C05 (Commission Meeting Room).
10:00 AM. Federal
Reserve Board Chairman Alan
Greenspan will testify to the House Budget Committee.
Location: Room 210, Cannon Building.
10:00 AM. The House
Judiciary Committee's Subcommittee on the Constitution
will hold an oversight hearing titled "Privacy
Concerns Raised by the Collection and Use of Genetic
Information by Employers and Insurers". Audio web
cast. Location: Room 2237, Rayburn Building.
12:30 - 2:00 PM. The American
Society of International Law (ASIL) will host a panel
discussion titled "International Cyberspace:
Convergence or Conflict?". RSVP by 5:00 PM on
September 10 to cborgen
@asil.org or by fax to 202 797-7133, attn: Chris Borgen.
Lunch will be served. Location: ASIL, 2223 Massachusetts
2:00 PM. The Senate
Banking Committee will hold a hearing on the nomination of
Wayne Abernathy to be Assistant Secretary of the
Treasury for Financial Institutions. Location: Room 538,
2:30 PM. The Senate
Commerce Committee's Subcommittee on Science, Technology,
and Space will hold a hearing on S 2537,
the Dot Kids Implementation and Efficiency Act of 2002, and HR 2417,
the Dot Kids Domain Name Act of 2001. These bills would
facilitate the creation of a new second level domain within
the U.S. country code domain that would provide a safe online
environment for children. The House has already passed another
version -- HR 3833.
Location: Room 253, Russell Building.
Deadline to submit comments to the FCC regarding WorldCom's August 8, 2002,
petition for a declaratory ruling pursuant to 47 C.F.R.§ 1.2,
that requesting carriers are entitled to access ILEC Line
Information Database data at cost based rates when they use
such data to provide interexchange and exchange access
service. This is CC Docket No. 01-338. See, FCC
|Friday, September 13
|The House will meet at 9:00 AM for legislative business. No
votes are expected past 2:00 PM.
9:00 AM - 5:00 PM. Day two of a two day conference hosted by
the International Intellectual
Property Institute (IIPI) titled "Specialized
Intellectual Property Courts". See, IIPI
registration form, and agenda at right. Location: Markey
National Courts Bldg., 717 Madison Place, NW.
10:45 AM. Press conference associated with the International Intellectual
Property Institute's conference titled "Specialized
Intellectual Property Courts". Location: Court Room
203, Markey National Courts Bldg., 717 Madison Place, NW.
10:00 AM. The FCC's Network Reliability and
Interoperability Council will hold a meeting. Location:
FCC, 445 12th Street, SW, Commission Meeting Room.
Deadline to submit comments to the FTC
regarding its proposed consent agreement with MSC Software Corporation.
Containing Consent Order [22 pages PDF]. See, notice
in Federal Register.
|Monday, September 16
Deadline to submit comments and notices of intention to
participate to the Copyright
Office in response to its notice
in the Federal Register directing "all claimants to
royalty fees collected in 1999, 2000 and 2001 for the
distribution of digital audio recording devices and media to
submit comments as to whether a controversy exists as to the
distribution of the royalty fees in the 1999, 2000 and 2001
Musical Works Funds."
Deadline to register for the FCC's September
18 auction seminar for Auction No. 46. This is for the
1670-1675 MHz band auction, scheduled for October 30, 2002.
with registration form [PDF].