TLJ Daily E-Mail Alert No. 522, October 3, 2002.

Tech Law Journal Daily E-Mail Alert

October 3, 2002, 9:00 AM ET, Alert No. 522.
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Rep. Lofgren Introduces Digital Fair Use Bill

10/2. Rep. Zoe Lofgren (D-CA) introduced a bill titled the Digital Choice and Freedom Act of 2002. This bill would broadly expand the rights of persons who lawfully acquire digital copies of copyrighted works, while diminishing the rights of copyright holders.

Basically, the bill does five things. First, the bill adds a reference to "analog or digital transmissions" to з 107 (the fair use section) of the Copyright Act. Second, the bill creates a new з 123 in the Copyright Act that limits the basic exclusive rights of з 106. This new section allows copying of lawfully obtained copies for storage, or for use on a preferred digital media device. Third, the bill limits the enforceability of non-negotiable license terms. Fourth, the bill expands the з 109 right of sale to digital works. Fifth, the bill limits the anti circumvention provisions of the Digital Millennium Copyright Act (DMCA).

"Enhancing consumer rights and technology development are the key to copyright protection," said Rep. Lofgren (at right) in a release. "We need innovative technologies to help the consumer stay within the limits of the law and to protect the rights of copyright holders. I believe Silicon Valley is poised to work with consumers and the entertainment industry to create the needed balance for the digital world."

Fair Use. The bill revises the opening sentence of з 107 by adding the clause "and by analog or digital transmissions". As amended by the bill, з 107 would read: "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section and by analog or digital transmissions, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." з 107 then goes on to state the four part test of what constitutes fair use.

Expanded Copying Rights. The bills allows those with lawfully obtained copies or phonorecords of digital works "to reproduce, store, adapt or access the digital work" either "for archival purposes" or "to perform or display the work ... on a preferred digital media device, provided that such performance or display is not public".

Limitation Upon Non-Negotiable Terms. The bill does not use the term "shrink wrap license". Nor does it refer to "EULA" or "End User License Agreement". Rather, it provides that "When a digital work is distributed to the public subject to non-negotiable license terms, such terms shall not be enforceable under the common laws or statutes of any State to the extent that they restrict or limit any of the limitations on exclusive rights under this title."

The use of the word "title", as opposed to "section", is significant. The word "title" refers to "Title 17", which is the entire Copyright Act. The word "section" would refer only to the new з 123 that would be created by this bill. з 106 states the basic exclusive rights of copyright holders. Then, зз 107 - 121 place limits these з 106 rights. There is з 107 pertaining to fair use, з 109 pertaining to sales, з 110(1) pertaining to educational institutions, з 111 pertaining to secondary transmissions, з 112 pertaining to emphemeral recordings, and so forth.

This bill would limit the enforceability of non-negotiable license terms in contracts that purport to waive any of these limitations, not just the limitations created by Rep. Lofgren's bill.

John Mitchell, Legal Director of Public Knowledge, stated in a release praising the bill that "We don't allow employers to require new hires to waive their legal rights under employment laws, and neither should we allow copyright owners to use EULAs and technological gimmicks to make consumers waive their legal rights under copyright law."

Sale. з 109 currently limits the exclusive rights of з 106 with respect to the sale of certain copies. For example, if one buys a book in a bookstore, one can latter sell that book to someone else, without obtaining permission from the copyright holder. However, nothing in з 109 expressly extends this right of sale to copyrighted digital content acquired online.

Rep. Lofgren's bill would add a new subsection (f), that provides: "The privileges prescribed by subsections (a) and (c) apply where the owner of a particular copy or phonorecord of a work in a digital or other non-analog format, or any person authorized by such owner, sells or otherwise disposes of the work by means of a transmission to a single recipient, provided that the owner does not retain his or her copy or phonorecord in a retrievable form and that the copy or phonorecord is sold or otherwise disposed of in its original format."

Modification of Anti Circumvention Provisions of DMCA. Rep. Lofgren's bill would substantially rewrite з 1201, which was added to the Copyright Act by the DMCA.

First, it adds language stating that "a person who lawfully obtains a copy or phonorecord of a work, or who lawfully receives a transmission of a work, may circumvent a technological measure that effectively controls access or protects a right of a copyright holder under this title if (A) such act is necessary to make a non-infringing use under this title; and (B) the copyright owner fails to make publicly available the necessary means to perform such non-infringing use without additional cost or burden to such person."

Second, it adds language permitting circumvention technologies. It states that "any person may manufacture, import, offer to the public, provide, or otherwise make available technological means to circumvent a technological measure that effectively controls access or protects a right of a copyright holder under this title if (A) such means are necessary to enable a non-infringing use ... ; (B) such means are designed, produced and marketed to enable a non-infringing use ... ; and (C) the copyright owner fails to make available the necessary means ..."

Nevertheless, any such technological means would then be available for use both by persons engaging in non-infringing uses, and by persons engaging in infringing uses.

Scope of Bill. For the purposes of this new з 123, Lofgren's bill would exempt "computer program". Rep. Lofgren represents a Silicon Valley congressional district. Thus, the bill does not limit the copyright interests in software, or the shrink wrap license or EULA practices, of her constituents. The bill does, however, limit the copyright interests of the movie and music industries, which have a strong presence in the Los Angeles area.

Rep. Howard Berman (D-CA) represents a Los Angeles area district, and has introduced a bill, HR 5211, that would bolster the ability of the movie and record industries to protect their copyrighted digital content from infringement on peer to peer networks, by allowing certain self help remedies.

Rep. Lofgren's introduction of her bill follows Rep. Berman's introduction of his bill by two months. Both bills are similar in that their sponsors seek to address what they perceive to be problems with the legal regime affecting digital entertainment media, particularly sound recordings and movies. Similarly, the language of both bills is far broader that their basic purposes. That is, Rep. Berman's does not limit copyright claimants to exercising self help remedies solely against those who pirate songs and movies. It allows them to pursue to anything on a peer to peer network. Hence, it could be used to suppress political, religious or commercial expression, where that expression includes copyrighted works.

Similarly, Rep. Lofgren's bill places limits on the protection afforded by з 106, not only for record companies and movie studios (which have come under criticism for their practices), but also for newspapers, magazines, book publishers, and others who publish in digital format (who have not come under the same criticism for their practices).

While Rep. Lofgren's bill states that its purpose is "To safeguard the rights and expectations of consumers who lawfully obtain digital entertainment", the language of the bill extends to any "digital work", which would include, as well, literature, art, news, science, educational materials, and other subjects far afield from entertainment.

Reps. Boucher and Doolittle to Introduce Copyright Bill

10/2. Rep. Rick Boucher (D-VA) and Rep. John Doolittle (R-CA) will hold a press conference to announce the "introduction of legislation to reaffirm fair use rights in the digital era". Their bill is different from Rep. Lofgren's bill, although both deal with the rights of users.

Reps. Boucher and Doolittle have not released a copy, or a summary, of their bill. However, they have released a list of supporters. It includes the Consumer Electronics Association (CEA), Intel, Sun Microsystems, Verizon, Association of American Universities, Association of Research Libraries, Consumers Union, Public Knowledge, Computer & Communications Industry Association (CCIA), and Digital Future Coalition. Some of these have also already announced their support for Rep. Lofgren's bill.

The press conference will be held at 11:00 AM in Room 2218 of the Rayburn House Office Building.

NTIA Director Addresses Barriers to Broadband and Universal Service

10/2. Nancy Victory, Director of the National Telecommunications and Information Administration (NTIA), gave a speech titled "Tulips and Telecom -- Ending Excesses And Encouraging Economic Growth" to the U.S. Telecom Association (USTA) in Boca Raton, Florida.

She stated that "the telecom industry with its broadband future is a solid business with an enormous potential for growth - growth based upon sound economic realities rather than hype, excess and cooked books. The challenge for you is to get back on that path to the future. The challenge for those of us in government is to provide a policy framework in which our country's telecom industry can prosper, innovate and advance to the benefit of us all."

She noted that there are "important proceedings pending" pertaining to competition, but that they are pending at the Federal Communications Commission (FCC).

She instead focused on two other aspects of regulation, "barriers to broadband deployment at all levels of government", and perpetuating universal service subsidies.

Barriers to Broadband. Victory stated that the Bush administration "has also been working to identify and eliminate unnecessary government impediments to broadband competition and deployment. As many of you know, one issue where NTIA is focusing its attention is on public rights of way management."

She noted that "all sectors of the broadband industry -- rural carriers, Bell Operating Companies, CLECs, cable companies, overbuilders, and wireless providers -- actually share the same point of view."

Victory focused on the interests and perspective of broadband service providers. Representatives of state and local governments, which bear the burden of managing public rights of way, and rebuilding torn up streets, disagree with the assertion that they pose a barrier to broadband deployment.

Victory then reviewed what the NTIA is doing in this area. She said that "To ensure that rights of way regulation is appropriate and not an impediment to broadband deployment, NTIA has undertaken a series of actions. We conducted a broadband forum last fall and launched a broadband deployment proceeding at the end of last year, both of which raised rights of way as an issue. We have participated in NARUC's rights of way discussions, particularly its Rights of Way Study Committee."

She continued that "Our mission is to develop ``best practices┤┤ for federal rights of way management, particularly as it impacts broadband deployment. Our tasks include streamlining and standardizing current federal rights of way application processes where possible, ensuring that federal fee structures are just and reasonable, and developing appropriate policies to make certain that telecommunications providers fulfill their rights of way obligations. We want to see the federal government lead by example, and create a model of cooperation that others can emulate."

Universal Service. Victory stated that "we must look ahead to anticipate the challenges that the transition to a digital broadband telecom world will pose for important universal service goals."

She said that "We are facing the increasing transition from yesterday's narrowband to tomorrow's broadband. We have the growing possibility of breakthroughs in Internet Protocol telephony. We have unlicensed products like Wi-Fi or 802.11 that are starting to make their mark. And we have providers offering a wide variety of bundled services that are beginning to blur jurisdictional lines and regulatory classifications."

She continued that "We need to understand fully the potential effects of new services and technologies upon important policy goals such as universal service. There are many fundamental questions currently being asked on a host of universal service issues. Who should contribute? How should contributions be calculated? Who should receive support? And what should they use it for?"

However, she provided no answers to her questions.

Senate Judiciary Committee Considers Federalism and Intellectual Property

10/1. The Senate Judiciary Committee held a hearing titled "Narrowing the Nation's Power: The Supreme Court Sides with the States". Sen. Charles Schumer (D-NY) presided, and Sen. Jeff Sessions (R-AL) actively participated. The hearing focused broadly on a wide array of Supreme Court decisions that have held unconstitutional various federal statutes for exceeding federal authority.

One of the these areas is intellectual property rights. That is, the Supreme Court held in 1996 in Seminole Tribe of Florida v. Florida that the Congress lacks authority under Article I of the Constitution to abrogate the States' 11th Amendment immunity from suit in federal courts. The Supreme Court extended this to the context of intellectual property in the 1999 rulings in Florida Prepaid v. College Savings Bank (invalidating the Patent and Plant Variety Protection Remedy Clarification Act) and College Savings Bank v. Florida Prepaid (invalidating the Trademark Remedy Clarification Act).

Sen. Patrick Leahy (D-VT) addressed this issue in his prepared statement for the hearing. He stated that "I began expressing my concerns about the Court's new direction in July 1999, shortly after it issued its end-of-term decisions in the Florida Prepaid, College Savings Bank, and Alden cases. In Florida Prepaid and College Savings Bank, the Court ruled that states could no longer be held liable for violating the federal intellectual property laws, even though they can and do enjoy the full protection of those laws for themselves. ... In short, the Court held that state institutions were above the law.

Sen. Leahy (at right) continued that "The Court's decisions in the Florida Prepaid trilogy have been the subject of bipartisan criticism. Charles Fried, a former Solicitor General during the Reagan Administration, has called these decisions ``truly bizarre.┤┤ Senator Specter has remarked that they ``leave us with an absurd and untenable state of affairs,┤┤ where ``States will enjoy an enormous advantage over their private sector competitors.┤┤ I could not agree more. I also agree with the four dissenting justices that these decisions constitute an egregious example of judicial activism and a misapplication of the Constitution. In their rush to impose their natural law notions of sovereignty as a barrier to democratic regulation, the activist majority cast aside the text of the Constitution, ripped up precedent, and treated Congress with less respect than that due to an administrative agency."

Sen. Patrick Leahy (D-VT) and others have introduced S 2031, the Intellectual Property Protection Restoration Act of 2002, to stop states from evading liability for infringing intellectual property rights by asserting 11th Amendment immunity. It would provide, among other things, that states would not receive the protections of federal intellectual property laws unless they first waive their 11th Amendment immunity in IP suits.

Sen. Leahy referenced this bill at the hearing. He said that the bill "would repair some of the damage caused by the Florida Prepaid decisions by restoring federal remedies for violations of intellectual property rights by states. The Committee held a hearing on the bill in February, and I had hoped that we could have made more progress before the end of the session."

This bill has been placed on the agenda of several business meetings of the Senate Judiciary Committee. However, it has always been held over.

A Judiciary Committee aide to Sen. Leahy explained to Tech Law Journal that Committee's consideration of the S 2031 has been delayed by attempts to accommodate the interests of certain major state run research universities. That is, some major universities, such as the University of California at Berkeley, assert that they could be caught in the position of losing their own intellectual property protections because they cannot convince their states to waive sovereign immunity. Such an outcome would cause Berkeley and some other state universities to loose licensing revenue, and top faculty.

Sen. Dianne Feinstein (D-CA), who is a member of the Judiciary Committee, is the main obstacle to passage of S 2031 in its current form.

Crime, the Internet and Computer Generated Images

10/2. Attorney General John Ashcroft and others spoke at a White House Conference on Missing, Exploited and Runaway Children. Ashcroft addressed Internet related issues, including computer generated images. See, prepared text. Also, the Senate Judiciary Committee held a hearing titled "Stopping Child Pormography: Protecting our Children and the Constitution", at which Senators and witnesses addressed some of the same issues.

Ashcroft stated that the Department of Justice (DOJ) is "aggressively defending our children in a growing arena for predators -- the Internet. As technology has evolved, so have the means of exploiting our children. While the internet provides children a wealth of educational resources, it is also a tool for child exploitation. Internet Crimes Against Children Task Forces throughout the nation have helped state and local law enforcement agencies develop effective responses to cyber enticement and child pormography cases."

Ashcroft (at right) also stated that the "FBI's Crimes Against Children and Innocent Images Programs have made tremendous progress in combating online child pormography and sexual exploitation. The FBI opened just 113 Innocent Images cases in 1996. In the past year alone, the FBI opened 2,366 cases. Since 1995, Innocent Images Task Forces have conducted over 5,700 investigations. 3,000 offenders have been convicted."

He added that the Innocent Images Task Forces have "already made a significant impact. In March, the Department of Justice announced the success of ``Operation Candyman,┤┤ a nationwide crackdown on the distribution of child pornography on the Internet."

Ashcroft also stated that the DOJ will seek legislation from the Congress that would, among other things, "enhance law enforcement tools for identifying, apprehending, and prosecuting offenders by broadening the inclusion of child sexual exploitation and sexual abuse offenses as wiretap predicates".

Computer Generate Images. Finally, Ashcroft addressed the issue of computer generated images. On April 16, 2002, the Supreme Court issued its opinion [PDF] in Ashcroft v. Free Speech Coalition. It held unconstitutional a prohibition on computer generated child pormography.

Ashcroft stated that "This past April, a decision by the United States Supreme Court hampered gravely our ability to protect children from exploitation by striking down provisions of the Child Pornography Prevention Act" (CPPA).

The CPPA expanded the federal prohibition on child pormography to encompass new technologies. 18 U.S.C. з 2256, the section containing definitions, was amended to provide that child pormography means "any visual depiction, including any photograph, film, video, picture, or computer or computer- generated image or picture, whether made or produced by electronic, mechanical, or other means, of sezually explicit conduct, where (A) the production of such visual depiction involves the use of a minor engaging in sezually explicit conduct; (B) such visual depiction is, or appears to be, of a minor engaging in sezually explicit conduct; (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sezually explicit conduct; or (D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sezually explicit conduct;"

Ashcroft said that "In June, the House of Representatives responded by passing -- by an overwhelming majority -- a statute that the Department crafted carefully to address the Supreme Court's concerns while strengthening our ability to protect children from abuse and exploitation. I applaud Congress for working with the Department to pass swiftly this critical legislation. I call upon the Senate to recognize the threat to the health and safety of our children, and to act with similar urgency and see that this legislation becomes law."

Specifically, Rep. Lamar Smith (R-TX) introduced HR 4623, the Child Obscenity and Pormography Prevention Act of 2002, on April 30, 2002. It was marked up by the Crime Subcommittee on May 9, and by the House Judiciary Committee on June 19. The House passed the bill on June 25 by a vote of 413-8. See, Roll Call No. 256. The Senate has taken no action on this bill.

This bill amends з 2256(8)(B) to read "such visual depiction is a computer image or computer- generated image that is, or is nearly indistinguishable ... from, that of a minor engaging in sezually explicit conduct". However, the bill also provides that "it shall be an affirmative defense to a charge of violating this section that the alleged offense did not involve the use of a minor or an attempt or conspiracy to commit an offense under this section involving such use."

That is, the bill shifts the burden of proving that an image is computer generated to the defendant. The distinction is critical, DOJ officials have stated that prosecutors often cannot prove beyond a reasonable doubt that images are not computer generated, thus enabling defendants to escape conviction.

See also, story titled "House Subcommittee Holds Hearing on Computer Generated Porm" in TLJ Daily E-Mail Alert No. 423, May 2, 2002, and story titled "House Judiciary Committee Supports Ban on Computer Generated Child Porm" in TLJ Daily E-Mail Alert No. 454, June 19, 2002.

George Bush. President Bush also spoke at the White House event. He stated in his speech that "The threats to our children are found not just on our streets, but they're found in the technology which we use in our homes. The Internet is a wonderful tool for our children to broaden their knowledge, expand their minds, but the evils of the world have crept into the Internet. In one year alone, one in five children between the ages of 10 and 17 received a sexual solicitation over the Internet. With expanding use of the Internet and the heightened activity of predators searching for under-age victims, more children are being lured into harmful and even tragic situations."

He also stated that "Parents need to pay as much attention to their children, by the way, when they're on the Internet as when they're on a playground. They've got to know what their children are doing on the Internet. They've got to know with whom they're conversing."

Senate Hearing. The Senate has taken no action on the bill passed by the House. However, Sen. Orrin Hatch (R-U), Sen. Patrick Leahy (D-VT), and others introduced S 2520, the "Prosecutorial Remedies and Tools Against the Exploitation of Children Today (PROTECT) Act of 2002, on May 15.

Anne Coughlin, a professor at the University of Virginia School of Law, wrote in her prepared testimony that the Supreme Court would likely hold the House bill unconstitutional. Frederick Schauer, a professor at Harvard, said in his prepared testimony that HR 4623 "would almost certainly fail to survive a constitutional challenge".

Sen. Leahy stated in his opening statement that the DOJ proposal is a "quick fix" that will not withstand constitutional scrutiny.

Editor's Note: TLJ deliberately misspells words that have caused the e-mail servers of subscribers to block the TLJ Daily E-Mail Alert, such as porm and sez.

FCC Releases New Forms for E-Rate Applications

10/2. The Federal Communications Commission (FCC) published a notice [PDF] in the Federal Register announcing the release of revised FCC Forms 486 and 479, and the associated instructions, for the schools and libraries applying for e-rate subsidies. The changes reflect a District Court's holding regarding the constitutionality of the Children's Internet Protection Act.

The notice states that "The changes are adopted in response to the recent decision of the United States District Court for the Eastern District of Pennsylvania, which held that the CIPA requirements incorporated at 47 U.S.C. 254(h)(6) were facially unconstitutional as to libraries. See American Library AssТn, Inc. v. U.S., 201 F. Supp. 2d 401 (E.D. Pa. 2002)."

The notice further states that the FCC's Schools and Libraries Division (SLD) will also continue to accept the previous versions of the FCC Forms 486 and 479. However, the notice adds that "all applicants are strongly encouraged to make use of the new forms. Unlike the prior versions, the new forms can be scanned by SLD. Use of the new forms will expedite processing and receipt of discounts."

See, Federal Register, Vol. 67, No. 191, October 2, 2002, at Pages 61881 - 61882.

More News

10/1. The National Telecommunications and Information Administration (NTIA) announced the recipients of $12.4 Million in Technology Opportunity Program (TOP) grants. See, list of grant recipients.

10/1. The Securities and Exchange Commission (SEC) temporary suspended trading of the securities of Nationwide Capital Corporation because of "questions concerning the accuracy of assertions by or about Nationwide on its Internet website" and in other materials. See, SEC release.

10/1. Scott Cate plead guilty in U.S. District Court (NDTex) to unauthorized access of a protected computer in violation of 18 U.S.C. з 1030(a)(2)(C). The USAO stated in a release that Cate "accessed 65 different member accounts on the Wyndham computer network, without permission. Cate downloaded information for nine Wyndham clients to his personal computer."

10/2. The U.S. Court of Appeals (9thCir) issued its second amended opinion [PDF] in Syntek Semiconductor v. Microchip Technology, a case in which an alleged infringer (Syntek) sought a declaratory judgment from the U.S. District Court that a copyright registration of computer source code is invalid. The District Court granted summary judgment to the copyright holder (Microchip Technology). In its April 8, 2002 opinion (at 285 F.3d 857), the Appeals Court vacated. It held that, pursuant to the doctrine of primary jurisdiction, the case should be dismissed without prejudice, so that the infringer may seek an administrative remedy at the Copyright Office. See, story titled "Challenges to Source Code Copyright Registration & the Doctrine of Primary Jurisdiction" in TLJ Daily E-Mail Alert No. 406, April 9, 2002. Then, in August, the Appeals Court issued a revised opinion. On October 2, 2002, the Appeals Court issued its second revised opinion. See, story titled "9th Circuit Issues Amended Opinion in Syntek v. Microchip Technology" in TLJ Daily E-Mail Alert No. 494, August 19, 2002. The amended opinions provide that the judicial proceeding is stayed (not dismissed) pending outcome of the administrative proceeding.

10/1. Rep. Ron Paul (R-TX) introduced HR 5516, a bill to amend the Communications Act of 1934 with respect to retransmission consent and must carry for cable operators and satellite carriers. It was referred to the House Commerce Committee.

Thursday, October 3

The House will meet at 10:00 AM for legislative business. The agenda includes several non tech related matters. See, Whip Notice.

9:00 AM. Rep. Sherwood Boehlert (R-NY) will give a speech to the National Research Council Board on Science, Technology and Economic Policy (STEP) Conference titled "Public Private Partnerships: Partnering Against Terrorism". He will focus on cybersecurity. Location: National Academies Building, 2100 C Street, NW.

10:00 AM - 12:00 NOON. The AEI Brookings Joint Center will host an event titled "High Stakes Antitrust: The Clinton Legacy". Location: Stein Room, Brookings Institution, 1775 Massachusetts Ave., NW.

RESCHEDULED FOR OCT. 8. ~~10:00 AM. The Senate Judiciary Committee will hold a business meeting. Press contact: Blythe McCormick at 202 224-9437.~~

11:00 AM. Rep. Rick Boucher (D-VA) and Rep. John Doolittle (R-CA) will hold a press conference to announce the "introduction of legislation to reaffirm fair use rights in the digital era". Press contact: Alyssa Mastromonaco at 202 225-3861. Location: Room 2218, Rayburn Building.

1:00 - 3:00 PM. The FCC's Office of Engineering and Technology will host a tutorial titled "Free Space Optical Communications". FSO is the practice of transmitting information, or data by means of modulated beams of light through the atmosphere, rather than through fiber optical cables. John Schuster, CTO of Terabeam Corporation, will speak. See, notice [PDF]. Location: FCC, Commission Meeting Room, 445 12th Street, SW.

The George Mason University (GMU) Tech Center and the Federalist Society will host a one day conference on cyber crime. Registration is free, except for persons seeking CLE credit, who must pay $50. A continental breakfast and buffet lunch will be provided. See, notice. Location: GMU School of Law, 3301 Fairfax Drive, Arlington, VA.

Friday, October 4

Target adjournment date for the House and the Senate.

The House will meet at 9:00 AM for legislative business. The agenda includes several non tech related matters. See, Whip Notice.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Southern Company Services, Inc. v. FCC, No. 01-1326. This is a petition for review of a final order of the FCC regarding 47 U.S.C. з 224 (Section 703 of the 1996 Act) and rates, terms and conditions of access for attachments by cable operators and telecommunications carriers to utility poles, ducts, conduits and rights of way. See, FCC order [78 pages in PDF in three parts: 1 | 2 | 3] titled "Consolidated Partial Order on Reconsideration", released on May 25, 2001. This in the proceedings titled "In the Matter of the Commission's Rules and Policies Concerning Pole Attachments" (CS Docket No. 97-98), and "In the Matter of the Implementation of Section 703(e) of the Telecommunications Act of 1996" (CS Docket No. 97-151). Judges Edwards, Rogers and Garland will preside. Location: 333 Constitution Ave., NW.

9:30 - 10:45 AM. Paul Gallant (Chair of the FCC's Media Ownership Working Group) will participate on a panel titled, "Media Ownership and the Public Interest: The Role of the FCC" at a Consumer Federation of America's conference on energy and communications regulation. Location: Radisson Barcelo Hotel.

12:15 PM. The FCBA's Wireless Committee will host a luncheon titled "Wireless Industry Consolidation: Is It Needed? Will It Happen?" The scheduled speakers are Chris Murphy (Consumers Union), Rudy Baca (Precursor Group), and Lauren Patrich (FCC Commercial Wireless Division). The price to attend is $15. RSVP to wendy @fcba.org. Registrations and cancellations due by 5:00 PM on October 1. Location: Sidley Austin, 1501 K Street, NW, Conference Room 6E.

Monday, October 7

The Supreme Court will return from its recess, which it began on June 28, 2002.

9:30 - 11:00 AM. The Markle Foundation will hold a panel discussion, and will release a report, titled "Protecting America's Freedom in the Information Age". The scheduled speakers are Zoe Baird (Markle Co-Chair), James Barksdale (Markle Co-Chairs), Gov. Michael Leavitt (R-UT), Philip Zelikow (Miller Center for Public Affairs), William Crowell (former Dep. Dir. of the National Security Agency), Esther Dyson (EDVenture Holdings), Jerry Berman (CDT), and Frank Sesno (formerly with CNN). Press contact: Kristine Gager at 202 326-1747 or Kristine.Gager @edelman.com. Location: National Press Club, 13th Floor, Holeman Lounge, 529 14th Street, NW.

12:00 NOON. The FCBA's Engineering and Technical Practice Committee will hold a brown bag lunch to discuss committee planning and priorities for the rest of the year. Location: Paul Hastings, 1299 Pennsylvania Ave., NW, 10th floor.

2:00 - 4:00 PM. The FCC will hold an en banc hearing on "the current state of the telecommunications sector and to discuss steps needed to restore its financial health". See, notice [PDF]. Location: FCC, Commission Meeting Room, 445 12th St., SW.

Extended deadline for the U.S. International Trade Commission (USITC) to complete its investigation titled "Certain Integrated Circuits, Processes for Making Same, and Products Containing Same". This is the USITC's Investigation No. 337-TA-450. See, notice in the Federal Register.

Tuesday, October 8

The Supreme Court will hear oral argument in FCC v. Nextwave, and Arctic Slope Corp. v. Nextwave.

Day one of a three day public workshop hosted by the FTC to "explore how certain state regulations and private business practices may be having significantly anticompetitive effects on e-commerce". See, FTC release. Location: FTC, 600 Pennsylvania Ave., NW.

10:00 AM. The Senate Judiciary Committee will hold a business meeting. See, notice. Press contact: Blythe McCormick at 202 224-9437. Location: Room 226, Dirksen Building.

10:00 AM. The Copyright Office (CO) will hold a status conference regarding data format and delivery for record keeping requirements to be established by the CO for the Section 112 and 114 statutory licenses. See, notice [PDF].

12:15 PM. The FCBA's Professional Responsibility Committee will hold a brown bag lunch to discuss the scheduling of committee events and activities for the upcoming year. For More Information: Frank Montero. No RSVP is required. Location: Arnold & Porter, 555 12th Street, NW.

12:30 PM. Tom Donahue, P/CEO of the U.S. Chamber of Commerce, will give a luncheon address. Location: National Press Club, Ballroom, 529 14th St. NW, 13th Floor.

Wednesday, October 9

The Supreme Court will hear oral argument in Eldred v. Ashcroft, Case No. 01-618.

Day one of a two day symposium titled "The Rule of Law in the Information Age: Reconciling Private Rights and Public Interest" hosted by the Catholic University of America School of Law. See, schedule. Location: CUA, Walter Slowinski Court Room.

10:00 AM. The House Commerce Committee's Subcommittee on Commerce, Trade, and Consumer Protection will hold a hearing titled "Telecommunications and Trade Promotion Authority: Meaningful Market Access Goals for Telecommunications Services in International Trade Agreements". Web cast. See, notice. Location: Room 2322, Rayburn Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Northrop Grumman v. Intel, No. 02-1024. Location: Courtroom 402, 717 Madison Place, NW.

Day two of a three day public workshop hosted by the FTC to "explore how certain state regulations and private business practices may be having significantly anticompetitive effects on e-commerce". See, FTC release. Location: FTC, 600 Pennsylvania Ave., NW.

TIME? The Federal Accounting Standards Advisory Board (FASAB) will meet to "obtain information from interested individuals, organizations, and groups about potential future projects". See, notice in Federal Register.

Deadline to submit comments to the FCC regarding SBC's Section 271 application with the FCC to provide in region interLATA service in the state of California. This is WC Docket No. 02-306. See, FCC notice [PDF].

Grand Jury Indicts Shan

10/1. A grand jury of the U.S. District Court (NDCal) returned an indictment [PDF] charging Yan Ming Shan, aka Shan Yan Ming, a citizen of the People's Republic of China, with one count of unauthorized access of a protected computer with intent to defraud, in violation of 18 U.S.C. з 1030(b)(4). The indictment states that he accessed a computer of 3DGeo Development, Inc. to obtain proprietary software, programs and source code.

The U.S. Attorneys Office (USAO) stated in a release that Shan works for PetroChina. It further stated that "3DGeo produces software that allows seismic data to be converted into three dimensional images thereby assisting petroleum companies in selecting locations for drilling. 3DGeo sold one of its software products to PetroChina and was in the process of training PetroChina employees in the use of the software when 3DGeo officials discovered that Mr. Shin made unauthorized access to 3DGeo's computer system and copied 3DGeo's proprietary software programs and source code onto a laptop belonging to another DaQing employee who was receiving training with Mr. Shan. 3DGeo officials examined the laptop and found copies of the proprietary software programs and source code. They also found a program on the laptop called ``crack┤┤, which is used to penetrate encrypted software programs by decoding protected passwords." The USAO also stated that the FBI arrested Shin as he tried to board an airplane to China.

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