|Letter from the Publisher
Tech Law Journal is instituting several new practices and procedures with the
New Year. All of these changes have one central purpose -- protecting the rights
of the author, David Carney.
The Tech Law Journal web site and the Tech Law Journal Daily E-Mail Alert
(TLJ Alert) are
both authored and published by David Carney. This is a business. The sole source
of revenue for this business is subscription payments for the TLJ Alert. Yet, it is currently being widely infringed.
undermining the financial viability of the business.
The TLJ web site has been published since March of 1998. The TLJ Alert has
been published since August of 2000. Initially, TLJ Alert was offered for free. The TLJ
Alert converted to paid subscription basis on January 1, 2002. Since that time
many readers have regularly obtained infringing copies without purchasing subscriptions.
To date, I have done little done to identify infringers. Nevertheless, many persons provide
me with information regarding
this infringement. See, Memorandum
regarding "Infringement of the TLJ Alert".
Not only does infringement mean lost revenues, but the problem is now such
that some people have asked why they should have to pay for the TLJ Alert
when other law firms tell them that they get their copies for free.
In summary, the changes are as follows:
1. I will institute a system of e-mail monitoring to detect, identify, and
2. I have revised privacy policies to identify circumstances related to the
enforcement of propriety rights in which information will be
disclosed to third parties, such as in a complaint filed in the U.S. District
Court alleging copyright infringement.
3. I am terminating free subscriptions for law students.
4. I am terminating of free subscriptions for state government officials.
5. I now require the use a form contract for paying subscribers, which includes several
provisions, such as (a) the TLJ Alert is not a work made for hire, (b) subscribers will
make not false claims of authorship, and (c) subscribers will not engage in
certain enumerated prohibited uses of the TLJ Alert.
In short, the limitations on subscribers' copying and use of the TLJ are clearly defined, a substantial
effort will be made to identify and document infringement, and action aimed at
stopping infringement will be taken.
Price Changes. The price of the TLJ Alert is still $250, and the schedule for
subscribers with multiple recipients remains the same, with one exception. There is now a firm wide
price of $2,500 for any firm or other entity that subscribes for 12 or more
recipients. That is, one company may have an unlimited number of copies sent
to its employees for a fixed price of $2,500. However, there are restrictions
upon this fixed fee offer. All of the recipients must be employees, partners or
shareholders of the same firm, and all must have e-mail addresses at the same
e-mail domain. Also, the subscribing firm must still provide the names and
e-mail addresses of all of the recipients to TLJ, and the TLJ Alert will still
be distributed solely by TLJ. This is actually a price decrease for large law
Subscription Information page for price schedule, methods of payment, and
E-Mail Monitoring. Beginning on, or soon after, February 1, 2003, I
will commence monitoring of the use of the TLJ Alert and web site. This will be
done with code inserted in the HTML source code of the TLJ Alert and web site;
this code will cause entries to be made in web site access logs; these logs will
be analyzed by log analysis software. This procedure is sometimes called "web
bugs". This will be done for the purpose of identifying, tracking, and
infringement, and enforcing my rights of authorship and proprietary rights. Any
persons or entities who object to this practice, and who have already
purchased subscriptions, may cancel their subscriptions, and receive a prorated
refund (based on the portion of the subscription term that is remaining), if a
cancellation request is received by January 31, 2003. See,
regarding "E-Mail Monitoring".
Disclosure of Information. TLJ has always had a basic rule that it
does not sell, rent, or transfer its subscription list to the TLJ Alert to third
parties. In 2001, this was modified to add three minor exceptions. First,
David Carney may form a single shareholder corporation, and transfer all of
assets, including the subscription list, to that corporation. Second, the fact
that someone is a subscriber may be disclosed to someone else at that place of
work for the purpose of resolving a delivery problem. Third, the fact that
someone is a subscriber may be disclosed to someone else at that place of work
else in connection with subscription requests, payments, billings, forms, and
other subscription related matters. These three exceptions remain, and along
with two new exceptions.
The new fourth exception is that
information, including personally identifying and entity identifying information,
may be disclosed to third parties in an effort to protect the rights of
authorship, and proprietary rights, including rights arising under the Copyright
Act, of David Carney. This may include, but is not limited to, any of the
1. filing a complaint and other pleadings in the U.S. District Court for the District of Columbia in a suit
alleging copyright infringement and other claims;
2. filing a petition with the Copyright Office and U.S. District Court for revocation of a registration
of a copyright, in the case of a registration of a work that constitutes or
contains a work of authorship that was authored by David Carney; and
3. filing a complaint with an ethics panel of a state bar association, an
Inspector General or professional conduct office of a federal agency, or a Dean
or academic integrity panel of a law school or university.
The fifth exception is that lists of known infringers, and persons known to
make false claims of authorship, may be shared with other electronic publishers.
This is not being done now. Nor are their plans to do this. This, however, may
be done at some time in the future. The purpose of this practice would be to
limit loses due to infringement and other misuse of electronic products.
regarding "Disclosure of Information to Third Parties".
Law student subscriptions. TLJ has offered free subscriptions to law
students. This has been a disastrous policy. Law professors have told their students to
subscribe and then forward them copies. Adjunct professors who are partners in
law firms have done the same. Law firms have also used their law clerks to obtain
copies. Then, these professors and firms have made further copies. All law
students currently receiving free subscriptions will be removed from the
subscription list after distribution of the January 17 issue. See also,
Memorandum to Law Students.
State Government Officials. Free subscriptions have been offered to
both federal and state government officials. There have been some incidents of
infringement by state officials. However, the bigger problem is enforcement. States are immune from
suits for damages for copyright infringement. As a result, some states are
egregious infringers of copyrights. Moreover, some states
have filed preemptory suits, in U.S. District Court in their state,
seeking ownership of, or substantial rights to take, the property of others.
All state government officials currently receiving free subscriptions will be
removed from the subscription list after distribution of the January 17 issue.
See, Memorandum regarding "Termination
of state officials' subscriptions".
This change does not affect federal government officials (including, but not
limited to, employees
of the PTO, FTC, DOJ, NTIA, TA, USTR, FCC, Congress, and federal courts), who
continue to be eligible for free subscriptions.
Subscription Form and Contract. I now require, for all paying
subscribers, the use of the
Subscription Form and Contract (for
firms, companies, groups, and other entities), or the shorter
Subscription Form and Contract (for
persons subscribing individually).
Free subscribers (journalists and government officials) should not submit a
These substantially similar items include both an informational component,
and substantive clauses. First, regarding information, the form requires a
listing of the names and e-mail addresses of the recipients of the TLJ Alert at
the subscribing entity. I
have learned from experience that some firms purchase a subscription, and pay
for two recipients, but before the month is over, ten people at that firm tell
me they are now one of those two recipients. I need to know who the recipients
The form also requests contact information for the person handling billing
and subscription related matters, and the person who handles e-mail delivery
problems. For example, sometimes a copy of the TLJ Alert is rejected, or bounced
back, by the e-mail server of a subscriber. I usually get a "bounce message"
when this happens. And, I usually try to address the problem quickly, so that is
does not recur, and so that the subscriber gets all of the issues of the TLJ
Alert. Sometimes I need to talk with someone who handles the e-mail system of
the subscriber. For example, some e-mail systems place TLJ on a block list
because of its content, and only the staff of the subscriber can remove the
Second, regarding substantive clauses, the Subscription Form and Contract
contains several key terms and conditions. First, subscriber agrees that the TLJ Alert is not
a work made for hire. That is, subscribers purchase a subscription, not my
entire intellectual property portfolio. However, so many people have made this
absurd claim, that I now require a contract clause clarifying the status of the TLJ
Alert. See, 17 U.S.C. §
101 for the Copyright Act's definition of the term, "work made for hire".
Second, subscribers agree that they will not claim authorship of any works
authored by me. The Copyright Act provides remedies for certain types copying;
but, it does not provide authors an effective remedy for false claims of
authorship in their works, or plagiarism. The main purpose of this clause is the
create a cause of action in contract against plagiarists.
Third, subscribers agree that they will not sell, copy, republish, or forward
the TLJ Alert. However, this long list of prohibited uses tries to anticipate
and enumerate other methods and technologies of theft and misuse.
Here is an example of the problem. Some large companies and firms have bought
a subscription for a single recipient for $250, and then systematically provided
copies of every issue of the TLJ Alert to a large number of other readers, both
within the company or firm, and to
clients and others outside of the company. The purpose of this clause is to
clarify that the purchase of a subscription entitles the named recipient to
receive a copy of the TLJ Alert for his or her personal use only. If a company
or firm wants everyone in the company to get a copy, the fee for an unlimited
number of recipients is $2,500, not $250. If a company wants their clients to
receive copies, that would require the purchase of additional subscriptions.
The contract also includes several procedural clauses. For example, one
clause provides that injunctive relief is
available for the breach of the contract. Also, the District of Columbia is designated
in both a choice of law clause and a choice of forum clause.
|FTC Charges Quicken Loans with Violation of
|12/30. The Federal Trade Commission (FTC)
filed an administrative
Complaint [8 pages in PDF] against
Quicken Loans, an online lender,
alleging that it violated the Fair Credit Reporting Act (FCRA). The FTC and Quicken
Loans also settled the matter. See,
Containing Consent Order [7 pages in PDF],
Section 615 of the FRCA,
15 U.S.C. § 168lm,
requires lenders that take adverse action based in whole or in part on
information in a consumer's credit report to notify the consumer of the action
taken, including providing the name, address, and telephone number of the
consumer reporting agency from which the consumer's credit report was obtained,
and the consumer’s right to obtain a free copy of the credit report, and his
right to dispute the accuracy or completeness of information.
Quicken Loans is the home loan lender of
Intuit. It offers loans to consumers through its web site. The
complaint alleges that Quicken Loans did not provide consumers with the required
notice of adverse actions.
Quicken Loans and the FTC also simultaneous entered into an agreement
settling the matter. Under the agreement, Quicken Loans agrees to provide notice
of adverse actions. The agreement does not impose a fine.
Howard Beales, Director of the FTC's Bureau of Consumer Protection, stated in
a release that
"Consumers who are denied credit or other benefits based on their credit report
have a right to know, and lenders have a legal responsibility to tell them ...
An adverse action notice is the key to maintaining the accuracy of sensitive
personal information and the signal to check your credit report for accuracy."
|12/30. The Consumers Union
issued a wide ranging list of recommendations for the Congress and state
legislatures pertaining to the collection and use of personal information, and
identity theft. The list includes: "Give consumers control over the sharing of
personal financial information among companies" and "Restrict the commercial use
of social security numbers as identification numbers." See,
12/16. The U.S. Court of Appeals (10thCir) issued its
USA v. Soussi, affirming a conviction
of a person who exported goods to Libya in violation of 50 U.S.C. §§ 1702 and
1705(b), provisions of the International Emergency Economics Powers Act.
12/28. The Superior Court of the State of California for the
County of Los Angeles issued a notice of a proposed settlement in
Smiley v. ICANN, Case No. BC 254659, and ePrize v. NeuLevel,
Case No. BC 257632. This is the .biz domain name lottery class action
litigation. The complaints allege that NeuLevel became unjustly enriched and
violated unfair competition and consumer protection laws by distributing domain
names in the .biz registry through an illegal lottery. The ICANN published a
copy of the notice in its web site.
12/24. Level 3 Communications announced
in a release that the
Department of Justice (DOJ) and Federal Trade Commission (FTC) approved its
proposed acquisition of assets and operations of Genuity. Specifically, the
waiting period under the Hart Scott Rodino Act expired without action being
taken by either the DOJ or FTC.
12/20. The Federal Communications Commission
(FCC) released its
Notice of Inquiry (NOI) titled "In the
Matter of Additional Spectrum for Unlicensed Devices Below 900 MHz and in
the 3 GHz Band". This is ET Docket No. 02-380. The FCC announced this NOI on December 11, but did not release the actual NOI
until December 20.
Federal Communications Commission (FCC)
Notice of Inquiry (NOI) in the proceeding titled "In the matter of
Facilitating the Provision of Spectrum Based Services to Rural Areas and
Promoting Opportunities for Rural Telephone Companies To Provide Spectrum Based
Services". This is WT Docket No. 02-381. The FCC announced this NOI on
December 11, but did not release the actual NOI until December 20. The NOI
states that comments are due by February 3, 2003,
and that reply comments are due by February 18, 2003.
|FCC Issues Order in Dominant Non-Dominant
|12/31. The Federal Communications
Commission (FCC) released a
Memorandum Opinion and Order [25 pages in PDF] in its proceeding titled "In
the Matter of Review of Regulatory Requirements for Incumbent LEC
Broadband Telecommunications Services". This is
CC Docket No. 01-337. This is also known as the dominant non-dominant
notice of proposed rulemaking (NPRM).
In this Order the FCC granted SBC forbearance
from tariff regulation of advanced
services that it provides through its advanced services affiliate. However, the
FCC declined to grant SBC forbearance from dominant carrier regulation in the
provision of advanced services.
The FCC wrote, "In this
Order, we address SBC Communications Inc.'s (SBC's) petition for forbearance
from the application of tariffing requirements to its provision of advanced
services. We grant SBC’s petition to the extent it seeks forbearance from tariff
regulation of advanced services that SBC provides through its advanced services
affiliate, Advanced Solutions, Inc. (ASI), which provides intraLATA advanced
services throughout the SBC region. We otherwise deny SBC's petition without
prejudging in any way the issues in the rulemaking commenced under the Incumbent
LEC Broadband Notice." (Footnotes omitted.)
SBC filed its petition for forbearance with the FCC on October 3, 2001. On
December 12, 2001 the FCC adopted its
NPRM [PDF] instituting the present proceeding. See also, December 12, 2001 FCC
This is just one of several proceedings at the FCC that relate to the
regulatory classification of broadband services. The other three are the
triennial review of unbundled network elements, the wireline broadband NPRM, and
the cable modem service NPRM. See also, TLJ story titled
Just What Are All of These FCC Broadband Proceedings About Anyway?",
December 12, 2002.
The FCC published a
notice in the Federal Register (January 15, 2002, Vol. 67, No. 10, at Pages
1945 - 1947) regarding this dominant non-dominant NPRM. The notice stated that
the FCC "seeks
comment on changes, if any, the Commission should make to its traditional
regulatory requirements for incumbent local exchange carriers' (LECs) broadband
service. In particular, it asks: What the relevant product and geographic
markets should be for broadband services; whether incumbent LECs possess market
power in any relevant market; and whether dominant carrier safeguards or other
regulatory requirements should govern incumbent LECs provision of broadband
Kevin Martin wrote a dissenting statement
which is attached to the FCC's order (which is hyperlinked above). He stated
that the FCC's Order "fails
to act on the heart of SBC's requested relief and puts off for another day any
discussion, economic market analysis, or decision on whether SBC is nondominant
in its provision of advanced services." He added that the FCC's order is also inconsistent
with several recent opinions of the U.S. Court of Appeals.
has repeatedly complained about the FCC's delay in resolved its pending
broadband proceedings. See, for example,
pages in PDF] of December 12. He also stated that he would like to see the FCC
"treat DSL services similar to cable modem service".
Michael Copps and
Jonathan Adelstein wrote a
joint concurring statement, in which they stated that they concurred, with "reluctance
and disappointment". They added that "Some may read this Order to
prejudge our decision in the broader proceeding in which we are examining
whether incumbents are dominant in their provision of broadband. We want to
express explicitly that this Order does not support such a conclusion."
|FCC Releases Annual MVPD Report
|12/31. The Federal Communications Commission
(FCC) released its
Ninth Annual Report [99 pages in PDF] in its proceeding titled "In
the Matter of Annual Assessment of the Status of Competition in the Market for
the Delivery of Video Programming". This is MB Docket No. 02-145.
This report on multichannel video programming distributors (MVPDs) covers
cable television, direct broadcast satellite (DBS), home satellite dishes (HSD),
multichannel multipoint distribution service (MMDS), satellite master antenna
television (SMATV) and broadcast television. The report also addresses existing
and potential distribution technologies for video programming, including the
The report states that the number of cable subscribers grew from
68.55 Million in June of 2001 to 68.8 Million in June of 2002, a .4% increase.
The number of DBS subscribers grew from 16.1 Million to 18.2 Million, a nearly
13% increase. The FCC report attributes DBS growth in part to the passage of the
Satellite Home Viewer Improvement Act of 1999 (SHVIA), which gave DBS operators
authority to distribute local broadcast television stations in their local
The report also found that "Over
the last year, the number of subscribers to MMDS and large dish satellite
service (HSD) continue to decline. The participation of incumbent local exchange
carriers in the distribution of video programming also continue to decline. The
number of subscribers to open video systems (``OVS´´) and private cable has
remained relatively stable, although their market share remains small."
The report states that "cable
rates continued to rise ... 6.3% compared to a 1.1% increase in the Consumer
Price Index". However, the report also states that "the number of video and
non-video services offered increased, and programming costs increased."
The report also states that "Consolidation within the cable
industry continues as cable operators acquire and trade systems. The ten largest
operators served about 85% of all U.S. cable subscribers."
The report also addresses the convergence of MVPDs
and Internet service. It states that "Cable
operators continue to build-out the broadband infrastructure that permits them
to offer high-speed Internet access. The most popular way to access the Internet
over cable is still through the use of a cable modem and personal computer,
though a small number of users continue to access the Internet through their
television and a specially designed set-top box, rather than the personal
computer. Virtually all of the major MSOs offer Internet access via cable modems
in portions of their service areas. Like cable, the DBS industry is developing
ways to bring advanced services to their customers. For example, DirecTV
currently offers one-way and two-way satellite delivered Internet service under
the brand name DirecWay. Many MMDS and private cable operators also offer
Internet access services. In addition, broadband service providers continue to
build advanced systems specifically to offer a bundle of services, including
video, voice, and high-speed Internet access."
Robert Sachs, P/CEO of the National Cable
Television Association (NCTA), stated in a
that "The report confirms there's increasing competition in the multichannel
video marketplace, where three out of four consumers choose cable, while one in
four choose a competitor, and where all consumers benefit through great new
services, content, and technology."
|Friday, January 3
|2:00 - 4:00 PM. The AEI-Brookings
Joint Center for Regulatory Studies will host a panel discussion titled
"Frontiers in International Trust". The panel will address criticisms of EU
competition policy, political economy biases in EC antitrust enforcement
practices, and private cases against international cartels in U.S. courts. The
participants will be Robert Hahn (AEI Brookings), Damien Neven (University of
Geneva), Caglar Ozden (Emory University), Michael Salinger (Boston
University), and Simon Evenett (University of Bern). See,
registration page. Location:
12th Floor, American Enterprise Institute (AEI), 1150 Seventeenth Street, NW.
|Sunday, January 5
|Day one of a three day conference titled "Future of Music Coalition
Policy Summit 2003". See,
|Monday, January 6
|The House will convene.
9:15 - 9:45 AM. Federal Communications
Jonathan Adelstein will give a keynote address at the
Future of Music
Policy Summit. Location: Gaston Hall, Georgetown University.
10:00 AM. The U.S. Court of Appeals (FedCir)
will hear oral argument in
Xerox v. 3Com, a patent infringement case
involving graffiti software for hand held computers.
Xerox is the assignee of
U.S. Patent No. 5,596,656, which is titled "Unistrokes for Computerized
Interpretation of Handwriting." Xerox filed a complaint in
U.S. District Court (WDNY) against
3Com Corporation, U.S. Robotics Corporation, U.S. Robotics Access Corporation,
and Palm Computing, Inc. claiming that the
Graffiti software in its PalmPilot line of hand held computers infringed its
unistrokes patent. Defendants asserted the affirmative defenses of invalidity,
unenforceability, and non-infringement. The District Court granted summary
judgment to Xerox. On October 5, 2001, the
U.S. Court of Appeals (FedCir) issued its
opinion in a previous appeal. It affirmed in part, reversed in part, and
remanded. On December 20, 2001, the District Court issued another
opinion [36 pages in PDF] in which it again granted summary judgment to
Xerox. This is No. 02-1186. Location: Courtroom 201, 717 Madison Place, NW.
|Tuesday, January 7
|The Senate is scheduled to reconvene at 12:00 NOON.
9:15 - 9:45 AM. Sen. Russ Feingold
(D-MI) will give a keynote address at the
Future of Music
Policy Summit. Location: Gaston Hall, Georgetown University.
10:00 - 10:30 AM. Rep. Howard
Berman (D-CA) will give a keynote address at the
Future of Music
Policy Summit. Location: Gaston Hall, Georgetown University.
Deadline to submit reply comments to the FCC regarding AT&T's
petition for declaratory ruling that its phone to phone Internet protocol
telephony services are exempt from access charges. AT&T filed the petition on
October 18, 2002. This is WC Docket No. 02-361. For more information, contact
Kathy O’Neill at 202 418-1520 or Julie Veach at 202 418-1558. See,
notice [4 pages in PDF].
|Wednesday, January 8
|2:30 - 4:30 PM. The Federal Communications
Commission's (FCC) WRC-03 Advisory Committee will meet. For more
information, contact Alexander Roytblat at 202 418-7501. See,
notice in the
Federal Register. Location: FCC, Commission Meeting Room, 445 12th Street, SW.
3:00 - 5:00 PM. The National Infrastructure Advisory Council (NIAC) will meet
telephonically to continue its deliberations on comments to be delivered to
President Bush concerning the draft
National Strategy to Secure Cyberspace. The speakers will include John Tritak,
Richard Clarke, Richard Davidson, and John Chambers. Persons interested in attending by telephone should call (toll
free) 1-899-7785 or (toll) 1-913-312-4169 and, when prompted, enter
pass code 1468517. See,
notice in the Federal Register, December 24, 2002, Vol. 67, No. 247, at
EXTENDED TO JAN. 31.
Extended deadline to submit reply comments to the
in response to its requests for comments regarding whether to revise, clarify
or adopt any additional rules in order to more effectively carry out
Congress's directives in the Telephone Consumer Protection Act of 1991 (TCPA).
This is CG Docket No. 02-278. See, original
in the Federal Register, and
of extension [PDF].
|Friday, January 10
|12:15 PM. The Federal Communications Bar
Association's (FCBA) Wireless Telecommunications Committee will host a
luncheon. The topic will be "What's Up for the Coming Year in the Auctions &
Industry Analysis, Public Safety & Private Wireless, Commercial Wireless &
Policy Divisions". The speakers will be Division Chiefs at the FCC's Wireless
Telecommunications Bureau Division. The price to attend is $15. RSVP to Wendy
Parish at email@example.com. Location:
Austin, 1501 K St., NW, Confr. Rm. 6E.
|Tech Crime Report
|12/20. Juju Jiang was charged by criminal complaint with one count of
computer fraud in connection with attempting to gain access to the account of
subscribers of GoToMyPC.com. He was charged in the
U.S. District Court (SNDY) by
the U.S. Attorneys Office (USAO). GoToMyPC.com is a company that provides
subscribers with remote computer access. See,
|People and Appointments
|12/31. Gary Winnick resigned as Chairman of the Board of Directors of
Global Crossing. The company, which
filed a Chapter 11 bankruptcy petition on January 28, 2002, also stated in a
that "It is anticipated that independent directors Jeremiah D. Lambert and Myron
E. Ullman, III will be elected as Co-Chairmen of the Board of Directors, also
|About Tech Law Journal
|Tech Law Journal publishes a free access web site and
subscription e-mail alert. The basic rate for a subscription
to the TLJ Daily E-Mail Alert is $250 per year. However, there
are discounts for subscribers with multiple recipients. Free one
month trial subscriptions are available. Also, free
subscriptions are available for journalists, federal
government officials, employees of the Congress, and court
personnel. The TLJ web site is
free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until one month
after writing. See, subscription
Contact: 202-364-8882; E-mail.
P.O. Box 4851, Washington DC, 20008.
Copyright 1998 - 2003 David Carney, dba Tech Law Journal. All