Tech Law Journal Daily E-Mail Alert
September 17, 2002, 9:00 AM ET, Alert No. 510.
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CO Seeks Comment on Broadcasters' Motion for Stay of Rule
9/17. The Copyright Office (CO) published a notice in the Federal Register requesting public comments on the motion for stay filed by various broadcasters of the CO's final rule that provides that transmissions of a broadcast signal over a digital communications network are not exempt from copyright liability under 17 U.S.C. § 114(d)(1)(A).
The comment period is very short. The notice states that "Oppositions are due no later than Tuesday, September 24, 2002. Replies are due no later than Friday, September 27, 2002."
See, Federal Register, September 17, 2002, Vol. 67, No. 180, at Pages 58550 - 58551. See also, copy of the notice [3 pages in PDF] in the CO web site. This is the CO's Docket No. RM 2000-3C.
On December 11, 2000, the Copyright Office issued its final rule providing that the transmission of a sound recording as part of a retransmission of an AM/FM broadcast signal over a digital communications network, such as the Internet, is subject to the limited digital performance right provided by 17 U.S.C. § 106(6), and is not exempt under § 114(d)(1)(A) -- the provision that specifically exempts a nonsubscription broadcast transmission. See, notice in Federal Register, December 11, 2000, Vol. 65, at Pages 77292 - 77302.
On January 25, 2001, Bonneville International, Clear Channel Communications, Cox Radio, Emmis Communications, Entercom Communications, Susquehanna Radio, and the National Association of Broadcasters filed a complaint in U.S. District Court (EDPenn) against the Copyright Office seeking a declaration that the CO's final rule is inconsistent with 17 U.S.C. § 114(d)(1)(A). This case is also known as NAB v. Peters.
On August 1, 2001, the District Court issued its Memorandum and Order granting summary judgment to the Copyright Office. The broadcasters have filed an appeal in the U.S. Court of Appeals (3rdCir), which is pending. See, Appeal No. 01-3720.
9th Circuit Applies Fair Use Exemption to News Video Footage
9/16. The U.S. Court of Appeals (9thCir) issued its opinion [PDF] in LANS v. CBS, a copyright infringement case involving news video footage in which the court examined evidentiary and fair use issues.
Background. The Los Angeles News Service (LANS) shot videos in 1992 of a riot in Los Angeles from its helicopter, including one of the beating of Reginald Denny. LANS registered copyrights with the Copyright Office. LANS alleges that a video news service that was then a part of Westinghouse Electric (a Viacom company, like CBS) distributed LANS's video footage, without license, to its subscribers, including television stations. LANS further alleges that Court TV was one of those subscribers who used copyrighted footage.
District Court. LANS filed a complaint in U.S. District Court (CDCal) against Westinghouse Electric and others alleging copyright infringement. The District Court granted summary judgment to defendants. The District Court's judgment for CBS was based upon its exclusion of all of LANS's evidence probative of distribution of the copyrighted video. The judgment for CourtTV was based upon fair use. LANS brought this appeal.
Appeals Court. The Appeals Court reversed the grant of summary judgment to CBS Broadcasting, and remanded. The Appeals Court affirmed the grant of summary judgment to CourtTV. Following a detailed analysis under the four prong fair use standard of 17 U.S.C § 107, it held that CourtTV's very short take from the video fell within the fair use exception.
Court Rules on Appointment of Lead Plaintiff in Class Action Securities Suit Against Tech Company
9/16. The U.S. Court of Appeals (9thCir) issued its opinion [30 pages in PDF] in In Re Cavanaugh, a case regarding the standard under the 1995 PSLRA for appointing the lead plaintiff in a class action securities fraud lawsuit.
Background. This case arising out of the decline in the stock price of Copper Mountain Networks, a supplier of digital subscriber line (DSL) products. The usual flood class action securities fraud lawsuits followed. One of the many law firms to file was Milberg Weiss, a firm that specializes in bringing class action securities fraud suits against high tech companies.
District Court. The District Court consolidated the actions, and appointed Quinn Barton, a self employed investor represented by the law firm of Beatie & Osborn, as lead plaintiff. However, the lead plaintiffs proposed by Milberg Weiss, which included David Cavanaugh, had the largest cumulative financial stake in the controversy. Milberg Weiss brought this petition for writ of mandamus.
Appeals Court. The Appeals Court outlined and applied the controlling provisions of Rule 23, Federal Rules of Civil Procedure, and the Private Securities Litigation Reform Act (PSLRA), 15 U.S.C. § 78u-4, pertaining to appointment of lead plaintiff in class action securities cases. It held that the District Court did not follow the statutory framework, and hence, granted the petition, and vacated the order appointing Barton lead counsel.
The Appeals Court wrote that the PSLRA provides that the presumptive lead plaintiff is the one who meets the requirements of Rule 23 and "has the largest financial interest in the relief sought by the class". However, the PSLRA also provides that the District Court may appoint another prospective lead plaintiff, if he can demonstrate "a reasonable basis for a finding that the presumptively most adequate plaintiff is incapable of adequately representing the class."
The District Court had found that the Cavanaugh group of plaintiffs were the presumptively "most adequate plaintiff" because it had the largest stake; however, it also found that Barton rebutted the presumption by showing "significant differences in potential attorney fees" that "cannot be rationally explained by intangible factors such as the well recognized brand name in securities litigation of" Milberg Weiss.
The Appeals Court wrote that the PSLRA instructs the District Court to select as lead plaintiff the one "most capable of adequately representing the interests of class members." The PSLRA, in turn, defines "most capable" as the one who "has the largest financial interest in the relief sought by the class" and "otherwise satisfies the requirements of Rule 23".
"In other words," the Appeals Court wrote, "the district court must compare the financial stakes of the various plaintiffs and determine which one has the most to gain from the lawsuit. It must then focus its attention on that plaintiff and determine, based on the information he has provided in his pleadings and declarations, whether he satisfies the requirements of Rule 23(a), in particular those of ``typicality´´ and ``adequacy.´´ If the plaintiff with the largest financial stake in the controversy provides information that satisfies these requirements, he becomes the presumptively most adequate plaintiff. If the plaintiff with the greatest financial stake does not satisfy the Rule 23(a) criteria, the court must repeat the inquiry, this time considering the plaintiff with the next largest financial stake, until it finds a plaintiff who is both willing to serve and satisfies the requirements of Rule 23." (Emphasis in original. Footnotes omitted.)
The Appeals Court continued that the District Court "started on the right foot by identifying the Cavanaugh group and each of its members as the plaintiffs with the largest financial stake in the litigation. The court quickly went off the statutory track, however, by failing to give effect to the presumption that the Cavanaugh group would be lead plaintiff unless it failed to satisfy Rule 23(a)'s typicality or adequacy requirement. ... The court discounted the significance of the statutory presumption based on its understanding that ``the presumption was an effort by Congress to encourage the involvement of institutional investors in securities class actions.´´"
Judge Kozinsky, who wrote the opinion of the Appeals Court, added that "This, of course, was error. Congress enacts statutes, not purposes, and courts may not depart from the statutory text because they believe some other arrangement would better serve the legislative goals."
Judge Wallace wrote a concurring opinion. He expressed his concerns arising out of the fact that this case was before the Court of Appeals on a petition for writ of mandamus, rather than as an appeal of an interlocutory order. He also addressed the implications of this for the Appeals Court's scope of review at this stage, and the affect upon review of final judgment.
Satellite Broadcasters Criticize Landrieu Bill
9/12. The Satellite Broadcasting and Communications Association (SBCA) announced its opposition to S 2922, the Emergency Communications and Competition Act of 2002 (ECCA), sponsored by Sen. Mary Landrieu (D-LA) and Sen. Conrad Burns (R-MT).
SBCA President Andy Wright stated in a release that "Northpoint Technology's most recent attempt at a spectrum grab -- S. 2922 -- is anti-consumer legislation that would cause harmful interference and interrupt the service of millions of satisfied satellite TV customers. The legislation would also unilaterally enrich Northpoint over its potential competitors by giving a handful of politically connected individuals millions of dollars of publicly owned spectrum for free."
The bill would require that the Federal Communications Commission (FCC) "shall assign licenses in the 12.2-12.7 GHz band for the provision of fixed terrestrial services using the rules, policies, and procedures used by the Commission to assign licenses in the 12.2-12.7 GHz band for the provision of international or global satellite communications services in accordance with section 647 of the Open-market Reorganization for the Betterment of International Telecommunications Act (47 U.S.C. 765f)."
The bill would provide for the licensing, without auction, of digital broadcast satellite (DBS) spectrum for terrestrial use by Multichannel Video Distribution and Data Services (MVDDS) -- essentially, NorthPoint Technology.
Tuesday, September 17
The House will meet at 12:30 PM for morning hour and at 2:00 PM for legislative business. No votes are expected before 6:30 PM. The House will consider a number of measures under suspension of the rules.
The Senate will meet at 9:30 AM for morning business. It will resume consideration of the Interior Appropriations Act at 10:30 AM. It will recess for weekly party conferences at 12:30 PM. It will resume consideration of the Homeland Security Act at 2:15 PM. It will resume consideration of the Interior Appropriations Act at 4:15 PM.
8:00 AM EDT. Qwest Communications will web cast a meeting between investors and Ch/CEO Richard Notebaert and VCh/CFO Oren Shaffer. See, web cast page for both live cast and replay. See also, release.
9:00 AM - 5:00 PM. Day one of a three day meeting of the Computer System Security and Privacy Advisory Board (CSSPAB). The agenda includes (1) discussion of a CSSPAB privacy report, (2) discussion of a CSSPAB baseline standards report, (3) updates on computer security legislation, (4) an update by the OMB on privacy and security issues, (5) an agency briefing on compliance with the Government Paperwork Elimination Act (GPEA), (6) and a discussion of DMCA issues. Location: General Services Administration (GSA), 7th and D Streets, SW, 5700.
9:00 AM. The Bureau of Industry and Security's (BIS) Regulations and Procedures Technical Advisory Committee (RPTAC) will hold a partially open meeting. The agenda for the open portion of the meeting includes a presentation of papers or comments by the public, an update on pending regulations, a discussion of TSR MTOP limit comments, a discussion of the Unverified List, a review of SNAP 2002 status, a discussion of AES regulations & SED recordkeeping requirements, a discussion on implementation of CCL User Friendliness recommendations, and updates from working groups. See, notice in the Federal Register. Location: Room 3884, Department of Commerce, 14th Street between Constitution and Pennsylvania Avenues, NW.
9:30 AM. The U.S. Court of Appeals (DCCir) will hold an en banc hearing in Ruggiero v. FCC, No. 00-1100. On February 8, a three judge panel issued its split opinion holding unconstitutional the ban on issuance of low power FM radio broadcast licenses to anyone who has previously engaged in an unlicensed operation. The set of people who have engaged in unlicensed broadcasting who may seek low power FM licenses is a very small and insignificant group. However, this case could have a broader impact. The en banc panel may provide an analysis of the application of the First Amendment to broadcast speech that affects a wider range of speakers. Location: Courtroom 20, 333 Constitution Ave., NW.
10:30 - 11:30 AM. Secretary of Commerce Don Evans, Education Under Secretary Eugene Hickok, and National Science Foundation Director Rita Colwell will hold a press conference to release a "compilation of visions" prepared by members of industry, academia and government on how emerging technologies might be used in education and training. See, notice. Location: Secretary's Conference Room, 5th floor, Department of Commerce, 14th and Constitution Ave., NW.
FULL: WALK INS WILL NOT BE ADMITTED. 12:00 NOON - 4:30 PM. The Cato Institute will host an event titled "The Supreme Court: Past and Prologue. A Look at the October 2001 and October 2002 Terms". Location: 1000 Massachusetts Avenue, NW.
2:30 PM. The Senate Commerce Committee's Subcommittee on Science, Technology, and Space will hold a hearing to on nanotechnology. Location: Room 253, Russell Building.
Wednesday, September 18.
The House will meet at 10:00 AM for legislative business.
7:30 - 9:00 AM. The National Association of Manufacturers (NAM) will host a breakfast. Rep. Tom Davis (R-VA) will speak on the upcoming elections. See, notice. Location: Grand Hyatt Hotel, 1000 H Street, NW.
LOCATION CHANGE. 8:30 - 11:00 AM. The Alliance for Public Technology (APT) and the High Tech Broadband Coalition (HTBC) will host a half day conference titled "From Debate to Deployment: Making Broadband Competition Work for All Americans". The scheduled speakers include Kevin Martin (FCC Commissioner), Rhett Dawson (ITIC), Henry Geller (APT), John Haring (Strategic Policy Research), Yardly Pollas (LA for Rep. Bobby Rush (D-IL)), Paul Schroeder (APT), and Kathy Wallman (Wallman Consulting). Breakfast will be served. Press contact: Matt Bennett (APT), 202 263-2972 or mbennett @apt.org. Location: Hyatt Regency on Capitol Hill, 400 New Jersey Ave., NW.
9:00 AM - 5:00 PM. Day two of a three day meeting of the Computer System Security and Privacy Advisory Board (CSSPAB). The agenda includes (1) discussion of a CSSPAB privacy report, (2) discussion of a CSSPAB baseline standards report, (3) updates on computer security legislation, (4) an update by the OMB on privacy and security issues, (5) an agency briefing on compliance with the Government Paperwork Elimination Act (GPEA), (6) and a discussion of DMCA issues. Location: General Services Administration, 7th and D Streets, SW, 5700.
9:30 AM - 1:00 PM. The FCC will hold an auction seminar for Auction No. 46 applicants. This is for the 1670-1675 MHz band auction, scheduled for October 30, 2002. See, notice with registration form [PDF]. Registration starts at 9:30 AM. The seminar begins at 10:00 AM. Location: FCC, 445 12th Street, SW, Room 8-C245.
10:00 AM - 3:00 PM. The FCC's Technological Advisory Council will hold a meeting. See, notice in Federal Register. Location: FCC, 445 12th St., SW, Room TW-C305.
10:00 AM. The Senate Judiciary Committee will hold a hearings to examine pending judicial nominations. See, notice. Location: Room 226, Dirksen Building.
10:00 AM. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property will hold a hearing on HR 5119, the Plant Breeders Equity Act of 2002. Audio web cast. Location: Room 2141, Rayburn Building.
10:30 AM. The House Ways and Means Committee will meet to mark up two bills, one of which is HR __, the "Miscellaneous Trade and Technical Corrections Act of 2002." Location: Room 1100, Longworth Building.
12:15 PM. The FCBA's Transactional Practice Committee will host a brown bag lunch. The topic will be FBI and CFIUS issues that arise in telecommunications transactions. The scheduled speakers are Richard Salgado (FBI) and Gay Sills and Jack Dempsey (CFIUS). RSVP to wendy @fcba.org. Location: FCC, 445 12th Street, SW, Room 8-B411.
1:00 PM. The House Judiciary Committee's Subcommittee on Immigration, Border Security, and Claims, and the House Ways and Means Committee's Subcommittee on Social Security will hold a joint oversight hearing titled "Preserving the Integrity of Social Security Numbers and Preventing Their Misuse by Terrorists and Identity Thieves". Location: Room 1100, Longworth Building.
2:00 PM. The House Government Reform Committee's Subcommittee on Technology and Procurement Policy will hold a hearing on S 803 and HR 2458, the E-Government Act of 2002. These are companion bills sponsored by Sen. Joe Lieberman (D-CT) and Rep. Jim Turner (D-TX). The Senate passed S 803 on June 27, 2002. The scheduled witnesses included Linda Koontz (GAO), Mark Forman (OMB), Pat McGinnis (Council for Excellence in Government), and Roger Baker (CACI). Press contact: David Marin, 225-1492.
6:00 - 8:00 PM. The FCBA will host a CLE seminar titled "The Wake-Up Call -- Telecommunications Policies One September Later". The scheduled speakers include Marsha MacBride (FCC Chief of Staff and Director of the FCC's Homeland Security Policy Council), Howard Waltzman (Counsel to House Commerce Committee), Owen Wormser (DOD Principal Director for Spectrum, Space, Sensors & C3), Mike Gallagher (NTIA), Jeffery Goldthorp (FCC Designated Federal Officer, Network Reliability and Interoperability Council). For more information contact Laura Phillips at 202 842-8891 or Lauren Van Wazer at 202 418-0030. RSVP to wendy @fcba.org. Registrations and cancellations are due by 5:00 PM on September 16. Location: Sidley Austin, Conference Room 6-E, 1501 K Street NW.
TIME? The Trade Policy Staff Committee (TPSC) will hold a 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.
TIME? The FTC has scheduled a hearing in the matter of its administrative complaint against Rambus alleging anti competitive behavior in violation of Section 5 of the Federal Trade Commission Act (FTCA) in connection with its participation in a standard setting body for dynamic random access memory products. See also, FTC release. Location: FTC.
Day one of a two day Homeland Security Technology Expo hosted by the Department of Commerce's (DOC) Technology Administration and Bureau of Industry and Security (BIS). See, BIS notice. For more information contact Cheryl Mendonsa (202 482-8321). Location: DC Armory.
Deadline for the FCC to act on BellSouth's application to provide in region interLATA services in the states of Alabama, Kentucky, Mississippi, North Carolina, and South Carolina.
Thursday, September 19
The House will meet at 10:00 AM for legislative business.
8:00 AM. The U.S. Chamber of Commerce's National Chamber Litigation Center will host a press briefing on the upcoming term of the Supreme Court. Charles Cooper (Cooper & Kirk) and Carter Phillips (Sidley & Austin. A continental breakfast will be served. RSVP to 202 463-5337 or nclc @uschamber.com. Location: 1615 H Street, NW.
8:00 AM. Treasury Secretary Paul O'Neill will speak at the American Business Conference CEO's Fall Meeting. Location: Jefferson Hotel, 1200 16th Street, NW.
9:00 AM - 3:00 PM. Day three of a three day meeting of the Computer System Security and Privacy Advisory Board (CSSPAB). The agenda includes (1) discussion of a CSSPAB privacy report, (2) discussion of a CSSPAB baseline standards report, (3) updates on computer security legislation, (4) an update by the OMB on privacy and security issues, (5) an agency briefing on compliance with the Government Paperwork Elimination Act (GPEA), (6) and a discussion of DMCA issues. See, notice in Federal Register, August 30, 2002, Vol. 67, No. 169, at Pages 55817 - 55818. Location: General Services Administration, 7th and D Streets, SW, 5700.
9:00 AM - 5:30 PM. Subcommittees of the FCC's Public Safety National Coordination Committee will hold meetings. The Interoperability Subcommittee will meet at 9:00 - 11:30 AM. The Technology Subcommittee will meet at 12:30 - 3:00 PM. The will meet at 3:00 - 5:30 PM. Location: FCC, 445 12th Street, SW, Room TW-C305 (Commission Meeting Room).
10:00 AM. The Senate Judiciary Committee will hold a business meeting. See, notice. Location: Room 226, Dirksen Building.
10:00 AM. The Senate Commerce Committee will meet in executive session to mark up pending legislation. Location: Room 253, Russell Building.
10:00 AM. The Senate Banking Committee will hold a hearing on financial privacy and consumer protection. Mike Hatch (Atty. Gen. of Minnesota), William Sorrell (Atty. Gen. of Vermont), Jim Kasper (North Dakota House of Representatives), Phyllis Schlafly (Eagle Forum), Edmund Mierzwinski (USPIRG), Fred Cate (Indiana Univ. School of Law), and John Dugan (FSCC). Location: Room 538, Dirksen Building.
11:00 AM. The Cato Institute will host a panel discussion titled "Copy Fights: Can Politicians or Entrepreneurs Best Protect Intellectual Property?" The scheduled speakers are Rep. Howard Berman (D-CA), Gigi Sohn (Public Knowledge), Phil Corwin (Butera & Andrews), Troy Dow (MPAA), Ed Black (CCIA), and James Miller (Smith College). Lunch will follow the program. See, notice. Location: Cato Institute, 1000 Massachusetts Avenue, NW.
12:00 NOON. The Progress and Freedom Foundation (PFF) will host a luncheon panel discussion titled "The Future of Telecom". The participants will be Ivan Seidenberg (Verizon), Randolph May (PFF), Scott Cleland (Precursor Group), Blair Levin (Legg Mason), and Brett Swanson (Gilder Technology Report). To register, contact Rebecca Fuller at rfuller @pff.org or 202 289-8928. Location: Ronald Reagan Building, Pavilion Room, 1300 Pennsylvania Ave., NW.
2:00 PM. The Senate Judiciary Committee's Antitrust Subcommittee will hold an oversight hearing on enforcement of the antitrust laws. Sen. Herb Kohl (D-WI) will preside. See, notice. Location: Room 226, Dirksen Building.
4:00 PM. Michael Birnhack (Professor at the University of Haifa Faculty of Law) will give a lecture titled "The Denial of the Copyright Law / First Amendment Conflict" as a part of the George Washington University Law School Intellectual Property Workshop Series. For more information, contact Prof. Robert Brauneis at 202 994-6138. Location: Faculty Conference Center, 5th Floor Burns, 716 20th Street, NW.
6:00 - 8:00 PM. The FCBA's Young Lawyers Committee will host a Career Night for law students and new attorneys. FCC Commissioner Kevin Martin will participate. For more information, contact Yaron Dori at 202 637-5600 or ydori @hhlaw.com or Ryan Wallach at 202 429-4759 or rwallach @willkie.com. RSVP to Wendy @fcba.org. Location: Hogan & Hartson, 555 13th Street, NW.
Day two of a two day Homeland Security Technology Expo hosted by the Department of Commerce's (DOC) Technology Administration and Bureau of Industry and Security (BIS). See, BIS notice. For more information contact Cheryl Mendonsa (202 482-8321). Location: D.C. Armory.
President Bush is scheduled to release a document that states a national strategy for cyber security.
Friday, September 20.
The House will not be in session.
8:30 - 10:00 AM. Harold Furchtgott Roth and Gregory Sidak of the American Enterprise Institute (AEI) will host a press breakfast titled "Is the FCC Moving Too Slowly?". The AEI states that this is a "media only" event. RSVP Veronique Rodman at vrodman @aei.org or call Heather Dresser at 202 862-5884. Location: AEI, 11th Floor Conference Room, 1150 17th Street, NW.
9:30 AM - 12:30 PM. The FCC's Public Safety National Coordination Committee will meet. See, notice in Federal Register. Location: FCC, 445 12th Street, SW.
More News
9/13. California Gov. Gray Davis signed SB 2095, sponsored by Sen. Ross Johnson (R-Irvine). This bill provides that "The Secretary of State shall include on the Internet Web site of the Secretary of State's office, as part of the campaign finance activity that is publicly disclosed, any independent expenditure, as defined in Section 82031, that is reported pursuant to Section 85500 with respect to a candidate for elective state office and a statewide ballot measure. This information shall be linked to the part of the Web site that the Secretary of State maintains concerning that candidate or ballot measure." It covers expenditures of $1,000 or more made for candidates for state office or state ballot measures.
9/13. California Gov. Gray Davis returned, without his signature, AB 2048, sponsored by Simon Salinas (D-Salinas). This bill would have allowed videotapes or recordings made by security cameras on public transit systems to be destroyed immediately. Gov. Davis wrote a letter [PDF] to the state legislature explaining why he did not sign the bill. "While AB 2048 is intended to free transit agencies from the added expense of processing and storing these videotapes, such tapes can be a valuable tool to help solve crimes. The fact that a monitoring video contains useful information may not be known in time to preserve a particular tape under the terms in this bill. Requiring transit agencies to hold tapes for a least a short period of time could prevent the loss of useful evidence."
9/16. Treasury Secretary Paul O'Neill gave a speech in Portland, Maine, regarding the economy. He said that "We've suffered through a bursting stock market bubble, terrorist attacks on New York and Washington, and discoveries of corporate fraud." However, "today it looks like we are on the road to recovery -- a bumpy road, but the right road nonetheless. The latest indicators look good." He cited, as an example, that "Capital spending on equipment and software rose in the second quarter for the first time in seven quarters and looks even better for the third quarter." He added that "the most recent major step forward for our nation's prosperity is passage of Trade Promotion Authority, which the President will use to open international markets to US exports, creating jobs here at home."
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