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. This is 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 document infringers.
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 key 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 firms. See, Subscription Information page for price schedule, methods of payment, and related matters.

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 documenting 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, Memorandum 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 following:
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.

See, Memorandum 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 contract.

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 are.

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 block.

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.

Best regards,

David Carney
Publisher, Tech Law Journal
202-364-8882
dcarney@techlawjournal.com

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."

12/16. The U.S. Court of Appeals (10thCir) issued its opinion in 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.

12/20. The Federal Communications Commission (FCC) released its 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.

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 release.

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 "So, 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 service."

Commissioner 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.

Commissioner Martin has repeatedly complained about the FCC's delay in resolved its pending broadband proceedings. See, for example, speech [13 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".

Commissioners 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."

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 Internet.

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 markets.

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 release 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."

9:15 - 9:45 AM. Federal Communications Commission (FCC) Commissioner 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.

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, FCC notice [4 pages in PDF].

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 page 78415.

EXTENDED TO JAN. 31. Extended deadline to submit reply comments to the FCC 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 notice in the Federal Register, and notice of extension [PDF].