|DOJ Opposes CCIA and SIIA Attempt to Appeal
in Microsoft Antitrust Case
|1/6. The Antitrust Division of the
Department of Justice (DOJ) filed a
the U.S. District
Court (DC) opposing the
motion [25 pages
in PDF] of the Computer & Communication
Industry Association (CCIA) and the Software
& Information Industry Association
(SIIA) for leave to intervene to appeal in the government antitrust action
against Microsoft. The argument asserted in the memorandum is basic. Neither the CCIA nor the
SIIA is a party to the action. Therefore, they lack standing to appeal.
The pleading is titled "Memorandum of the United States in Opposition to the
Joint Motion of Amici Curiae CCIA and SIIA for Leave to Intervene for Purposes
of Appeal". This is Civil Action No. 98-1232 (CKK).
The DOJ argues that "the Joint Movants fall far short of the minimum
requirements for intervention
to appeal the substance of the Court's public interest determination pursuant to
the applicable rule, Rule 24 of the Federal Rules of Civil Procedure. ... The Joint
Movants largely ignore those requirements, therefore, and focus on
matters which may properly inform a court's decision to grant or withhold
permissive intervention to an applicant for intervention who does meet
the minimum requirements, as well as on matters outside Rule 24 entirely."
The DOJ memorandum states that "In effect, Joint Movants argue that this
Court should ignore the requirements of Rule 24 and grant intervention simply
because the parties should not be permitted to settle an important antitrust
case without appellate review of the district court's public interest
"The rule that only parties to a lawsuit, or those that properly become
parties, may appeal an adverse judgment, is well settled." Marino v. Ortiz,
484 U.S. 301, 304 (1988) (per curiam). The Court of Appeals said more than 50
years ago that it had long been settled that "one who is not a party to a record
and judgment is not entitled to appeal therefrom." United States v. Seigel,
168 F.2d 143, 144 (D.C. Cir. 1948). As the Court of Appeals has specifically
found, "[n]othing in the language of the [Tunney] Act indicates that Congress
intended to change the general rule." United States v. LTV Corp., 746
F.2d 51, 54 (D.C. Cir. 1984). Thus, the Court of Appeals strictly applied the
rule in dismissing the purported appeal of a non-party who had participated
actively in the LTV Tunney Act proceeding", wrote the DOJ.
|Adelstein Addresses Copyright and Media
|1/6. Federal Communications
Commission (FCC) Commissioner
speech titled "The Last DJ?: Finding a Voice on Media Ownership".
He addressed the FCC's pending rulemaking proceeding regarding copyright
protection, and the FCC's pending proceedings pertaining to media ownership and
cross ownership rules
He spoke at a convention at Georgetown University in Washington DC
titled "The Future of Music Coalition Policy Summit 2003". It was his
first major public address since being named an FCC Commissioner.
Copyright. Adelstein first referenced the FCC's
Notice of Proposed Rulemaking (NPRM) [15 pages in PDF] in its proceeding
titled "In the Matter of Digital Broadcast Copy Protection". This is
MB Docket No. 02-230. He stated that in this NPRM, "We are considering whether
to require manufacturers to incorporate copy protection technology in digital TV
sets. Broadcasters could then embed a digital ``flag´´ in transmissions
designating content to be protected."
(at right) also addressed copyright issues more broadly. He said
that "the technological advances of the last decade have changed
our lives. You live with them everyday. You know the enormous potential of these
technologies -- such as broadband, wi-fi, satellite radio, and digital cable -- to
bring your creative message to millions of people all over the world. And we
have heard your concern that corporate or government restrictions may limit
artists' ability to distribute their products and to receive fair compensation
for their use."
He also stated that "our copyright laws
are designed to balance the rights of artists with the rights of their audience
-- the American people. In order to ensure that lawmakers achieve the right
balance, it is critical that artists like yourselves become involved in the
policy battles here in Washington."
He also touched on the FCC's authority with respect to copyright law. "While
the FCC does not enforce the copyright laws, the industries we oversee
play a key role in the distribution of copyrighted material -- including music,
movies, and television programming", he said.
17 U.S.C. § 702 delegates to the
Register of Copyrights
authority to promulgate regulations pertaining to Title 17, which covers
copyright. The FCC derives its authority to promulgate
regulations from Title 47, which contains no express grant of authority with
respect to copyright.
Media Concentration. Adelstein also spoke at length about broadcast based
speech, and the FCC
proceedings regarding "how we approach the rules governing media ownership in
this country". (See also, the FCC Media Bureau's
Broadcast Ownership Rules
page, and Newspaper Broadcast
He stated that "It is the FCC's job to protect the free flow of ideas, of
creativity without strictures. This obligation means not only that the FCC
should not impose restrictions, but also that we should refrain from actions
that have the effect of impeding the exchange of diverse viewpoints. We need to
ensure that we do not allow the structure of the industries that distribute
ideas and creative products to limit the voices that can be heard in this
country and in each of our communities."
Adelstein continued that "We need to ensure that we do not allow the structure of the industries that
distribute ideas and creative products to limit the voices that can be heard in
this country and in each of our communities." He also said that "the rules we are now
reviewing have shaped the media landscape as we know it. They are designed to
prevent individual companies from gaining too much control over what we see,
hear, and read."
"The rules make it difficult for one company to own both a newspaper and a
television or radio station serving the same community. They cap the number of
TV or radio stations that one owner can control in a single area. They prevent a
network from owning TV stations that reach more than 35 percent of the national
audience. They prevent companies from owning more than one of the four major TV
broadcast networks. And they limit the number cable systems one company may own
nationwide. Any changes that the FCC makes to its media ownership rules could
massively and irreversibly change the media landscape," said Adelstein.
Adelstein added that "consolidation also carries risks, risks
that go beyond traditional antitrust analysis." First, he said
that "Unlike the Justice Department, the FCC is charged by law
with ensuring that media mergers are in the public interest." He
continued that "One risk of radio consolidation to the public
interest is the loss of localism, a core value at the foundation
of the American system of broadcasting. Unlike some other
countries, we have never awarded nationwide radio licenses.
Radio stations are licensed to communities and serve as outlets
for local expression, as sources of local news and information
and as outlets for local artists like yourselves. Programming
that serves the unique needs of local communities by definition
varies from community to community. Consolidation, on the other
hand, often leads to the homogenization of programming."
Second, he said that "Another risk of consolidation is the loss of a diverse
array of voices and viewpoints over our airwaves."
Finally, he cautioned that "radio is just one of the many media outlets to
which the FCC is paying attention. Congress’s relaxation of the rules on radio
consolidation has been the canary in the mine, testing whether it is safe to go
in before miners dare to enter. The miners in this case are all of the consumers
affected by FCC rules that govern ownership of television, radio, cable, and
newspapers. The FCC better carefully consider the health of that canary before
we proceed further, because changes to the FCC’s media ownership rules
potentially could alter the media landscape as much or more than the 1996
actions by Congress changed the radio industry."
|Commentary: Adelstein Revives
|1/6. Newly appointed FCC Commission
Jonathan Adelstein gave his first public
a Commission on January 6, 2003. He began his discussion of media ownership with
praise for the Supreme Court's decision in the Red Lion case. He called it "that seminal
First Amendment decision".
The opinion, which is nearly as old as the Commissioner, is one of the most
criticized Supreme Court cases in communications law. FCC Chairman
Michael Powell has
repeatedly called from reexamination of its principles. Several Judges of the
U.S. Court of Appeals (DCCir) have
written that they are "stuck" with Red Lion, and are waiting for Supreme Court to
However, the Red Lion case has its supporters, and apparently,
Commissioner Adelstein is one of them. Its supporters include groups such as the
Media Access Project (MAP) and the
Consumers Union. See for example,
MAP's Red Lion page
and Gene Kimmelman's testimony
[PDF] to the Senate Commerce Committee on media consolidation.
Adelstein stated in his speech to a convention at Georgetown University that
"The FCC is charged with protecting what the Supreme Court referred to as an
``uninhibited marketplace of ideas.´´ Let me read from that seminal First
Amendment decision: ``It is the right of the public to receive suitable access to
social, political, esthetic, moral, and other ideas and experiences which is
crucial here. That right may not constitutionally be abridged either by Congress
or by the FCC.´´ Thus, the Supreme Court of the United States itself has said
that the FCC may not abridge the right of Americans to have access to ideas and
to creativity." The quotations are from
Red Lion v. FCC, 395 U.S. 367, at 390 (1969).
While Adelstein went on to discuss media ownership rules, the Red Lion case
pertains to FCC regulation of the content of broadcast based speech, not FCC
regulation of ownership of broadcast entities. However, the rationale for
regulating one is the same as the rationale for regulating the other.
In 1964, Red Lion Broadcasting Company, which operated a radio station,
broadcast a show titled "Christian Crusade", starring the
Billy James Hargis, a once famous crusader against "godless communism".
In one program, the Reverend Hargis referenced a book by one Fred Cook.
Cook took exception, and demanded that Red Lion broadcast his
viewpoints too. Red Lion refused. The FCC stepped in. It ordered Red Lion to put
Cook on the air. Red Lion went to court, but lost. Ultimately, the Supreme Court affirmed
the FCC's power to compel broadcasters to carry speech. It was called
the "fairness doctrine".
Carrying all opposing views is not a profitable business plan, and thus, many
broadcasters retreated from airing views. While editorial and op-ed sections
thrived in unregulated newspapers, broadcasters gave the public
In its Red Lion opinion, the Supreme Court ruled that the free speech
protections that apply to printers, pulpits, and pedestrians do not apply to
broadcasters. It wrote that "differences in the characteristics of new media
justify differences in the
First Amendment standards applied to them." The Court rationalized its
ruling by stating that "Because of the scarcity of radio frequencies, the
Government is permitted to
put restraints on licensees in favor of others whose views should be expressed
on this unique medium." It added that "It is the right of the viewers
and listeners, not the right of the
broadcasters, which is paramount." And, it is the function of the FCC to
determine what speech viewers and listeners have a right to hear.
Chairman Powell gave a speech
titled "Willful Denial and First Amendment Jurisprudence" on April 22, 1998
in which he criticized Red Lion. He stated that "I submit that the time has come
to reexamine First
Amendment jurisprudence as it has been applied to broadcast media and bring it
into line with the realities of today's communications marketplace." He
elaborated that "there is a dual standard that exists
today, which holds that broadcasting is somehow less deserving of First
Amendment protection than other mass media. This theory, which derives primarily
from the Supreme Court's 1969 decision in Red Lion Broadcasting Co. v. FCC,
has been the target of much criticism. Many scholars have pointed out that the
factual assumptions underlying this case and its progeny, if they were ever
true, clearly are not true today."
He continued that "In 1969, broadcasting consisted of a handful of radio
stations in any given market plus 2 or 3 television stations affiliated with one
of the three major networks. Occasionally, larger markets had an independent
television station too. Three major television networks held more than 90% of
the market for video programming. Not so anymore. Not only has the market share
of the three largest networks been eroded by cable programming, the last time I
looked there were about seven "declared" national television networks working
feverishly to bring new stations on the air. Obviously, things have changed a
Powell then added that the Internet further changes the media landscape today
from that which existed at the time Red Lion was decided.
He said, "the advances in technology have been
astonishing since the time of Red Lion. Digital convergence, rather than
reinforcing the unique nature of broadcasting, has blurred the lines between all
communications medium. The TV will be a computer. A computer will be a TV. Cable
companies will offer phone service, and phone companies will offer video
service. Digital convergence means sameness in distribution. What one
sees or hears is dependent only on the order of zeros and ones, nothing more. It
will become impossible to separate ``broadcast´´ from other services, and to
continue to maintain the historic fiction of ``uniqueness´´ of broadcasting is
to see the world through Lewis Carroll's looking glass."
He concluded in that speech that "Even this brief overview of the marketplace makes the
reasoning of Red Lion seem almost quaint and leads unavoidably to the
simple question: Should we continue to apply the reasoning of Red Lion to
determine the First Amendment rights of broadcasters in today's communications
environment? At the very least, any responsible government official who has
taken an oath to support and defend the Constitution must squarely address this
More recently, on October 30, 2002, Powell gave
speech titled "Broadband Migration III: New Directions in Wireless Policy".
This was a speech on spectrum policy. But, again he criticized Red Lion, and its
notion regarding spectrum scarcity. He stated that "Much of the Commission's
spectrum policy was driven by the assumption of acute spectral scarcity -- the
assumption that there is never enough for those who want it. Under this view,
spectrum is so scarce that government rather than market forces must determine
who gets to use the spectrum and for what. The spectrum scarcity argument shaped
the Supreme Court's Red Lion decision, which gave the Commission broad
discretion to regulate broadcast media on the premise that spectrum is a unique
and scarce resource."
Powell said that "the presumptions of Red Lion and similar broadcasting
regulation based on scarcity have been called into doubt by the proliferation of
media sources", and that "we question the continued utility of the pervasive
scarcity assumption for spectrum based services".
He added that "innovative technologies like software defined radio and
adaptive transmitters can bring additional spectrum into the pool of spectrum
available for use. Scarcity will not be replaced by abundance; there will still
be places and times when services are spectrum constrained. However, scarcity
need no longer be the lodestar by which we guide the spectrum ship of state."
The U.S. Court of Appeals (DCCir), which is the Appeals Court most likely to
hear petitions for review of FCC orders, apparently concurs with Powell.
Judge Silberman, who was joined by Judges Sentelle and Garland, wrote in the
in Tribune Company v. FCC, as follows. "Nor are we free to
scarcity doctrine in this case on this record,´´ as Tribune asks. The Supreme
Court has told the lower federal courts in no uncertain terms that we are to
leave the overruling of its opinions to the Court itself. ... We are stuck with the
scarcity doctrine until the day that the Supreme Court tells us that the Red
Lion no longer rules the broadcast jungle." (Citations omitted.)
Similarly, Judge Sentelle wrote a dissent to the Court's
Sinclair Broadcast Group v. FCC, remanding the FCC's local
television ownership rule for further consideration. (In this April 2, 2002
opinion the Court
remanded certain media ownership rules. Sentelle dissented to the extent that he
would have vacated, rather than remanded.) Sentelle quoted from both Powell's
1998 speech, and the Court's opinion in Tribune v. FCC.
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.
from the Publisher,
which summarizes the new practices and procedures.
Subscription Information page for price schedule, methods of payment, and
regarding "E-Mail Monitoring".
regarding "Disclosure of Information to Third Parties".
to law students explaining why free subscriptions for law students will end
after the January 17 issue.
of state officials' subscriptions" explaining why free subscriptions for
state government officials will end after the January 17 issue.
Form and Contract (for
firms, companies, groups, and other entities), or the shorter
Form and Contract (for
persons subscribing individually). These contracts are for new paying
subscribers, and paying subscribers renewing their
subscriptions. Persons receiving free subscriptions (journalists
and government officials) should not sign a contract. Paying
subscribers whose subscription term has not expired should not
sign a contract, until their existing subscription term expires
and they resubscribe.
And finally, see revised
|Tuesday, January 7
|The Senate is scheduled to reconvene at 12:00 NOON.
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].
2:30 PM. Sen. Paul Sarbanes
(D-MD), Sen. Kent Conrad (D-ND), Jon Corzine (D-NJ), and other Democratic
Senators will hold a press conference to respond to President Bush's economic
stimulus package. Location: Room S-325 (Senate Radio-TV Gallery).
Day three of a three day conference titled "Future of Music Coalition
Policy Summit 2003". See,
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.
10:00 - 11:30 AM. Panel at the
Future of Music
Policy Summit titled "Complete Control", and
described as follows: "In an environment where digital copying and
distribution threaten existing business models, the entertainment industry
is pushing for legislative and technological solutions to protect its
content. Consumer groups and telecommunications companies reply that the
entertainment industries are going too far." The speakers include Brian Zisk
(Future of Music Coalition), Mark Cooper (Consumer Federation of America),
Sarah Deutsch (Verizon), Jane Ginsburg (Columbia University
Law School), Joe Kraus (Digitalconsumer.org), Bruce Lehman (International
Intellectual Property Institute), Andy Moss (Microsoft).
2:00 - 3:00 PM. Panel at the
Future of Music
Policy Summit titled "Radio: Consolidate or
Regulate?" The speakers include George Williams (FCC economist).
3:15 - 4:15 PM. Panel at the
Future of Music
Policy Summit titled "the 2003 Policy Agenda". The
speakers include Debra Rose
(Counsel to the House Subcommittee on the Courts, Internet and Intellectual
Property), and California State Senator Kevin Murray (Chair of the Select
Committee on Entertainment Industry).
4:30 - 5:30 PM.
Panel at the
Future of Music
Policy Summit titled "The Search for A Legitimate
Digital Marketplace". The speakers include Chris Israel (Technology
Administration, Department of
|Wednesday, January 8
|10:00 AM. The House Commerce
Committee will hold a hearing on the national "Do Not Call" telemarketing
list. Timothy Muris, Chairman of the Federal
Trade Commission, will testify. See,
notice. The event will be webcast. Media contact: Ken Johnson or Jon Tripp
at 202 225-5735. Location: Room 2123, Rayburn Building.
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.
|Monday, January 13
|The Supreme Court will return from the recess that it began on December
11:00 AM - 1:00 PM. The Heritage
Foundation will host a panel discussion
titled "Harnessing Information Technology to Improve Homeland Security".
The speakers include James Gilmore (Chairman, Advisory Panel to Assess Domestic Response
Capabilities for Terrorism Involving Weapons of Mass Destruction), Lee Holcomb
(Director of Infostructure, Office of Homeland Security), Tom Richey (Director
of Homeland Security, Microsoft), Tom Gann (VP & GM, Siebel Systems), and
Peter Brookes (Heritage). See,
Heritage, 214 Massachusetts Ave NE.
|Federal Circuit Rules in Amgen v. TKT
|1/6. The U.S.
Court of Appeals (FedCir) issued its
opinion [MS Word] in
v. TKT, a
declaratory judgment action brought by Amgen, the holder of several patents directed to
the production of EPO, a hormone that stimulates the production of red blood
Amgen filed a complaint in the
Court (DMass) against Hoechst Marion Roussel
(which is now known as Aventis Pharmaceuticals) and Transkaryotic
Therapies (hereinafter defendants are referred to as TKT) seeking declaratory
judgment that TKT's Investigational New Drug Application (INDA) infringed Amgen's
Nos. 5,547,933, 5,618,698, and 5,621,080. Amgen later amended its complaint include
its U.S. Patent Nos. 5,756,349 and 5,955,422.
The District Court conducted a three day Markman hearing and 23 day trial,
and then issued its 244 page
opinion (126 F. Supp. 2d 69, 57 USPQ2d 1449) which the Appeals Court
described as "thorough, careful, and precise". The District Court
"(i) construed the disputed claims; (ii) held each of the
patents enforceable; (iii) held the ’080, ’349 (product claims), and ’422
patents valid and infringed; (iv) held the ’698 patent not infringed; and (v)
held the ’933 patent not infringed or, in the alternative, invalid for failure
to satisfy 35 U.S.C. § 112."
TKT appealed, arguing that Amgen's patents are unenforceable, that the
District Court's claim construction was erroneous, and alternatively, that
its validity determinations were
erroneous. Amgen cross appealed, arguing that the District Court erred
"(i) by comparing the accused process to the examples in the
specification rather than the limitations of the method claims of the '349 and
'698 patents; and (ii) by holding the '933 patent invalid for failure to comply
with § 112."
The Appeals Court largely affirmed the District Court. However, it also
vacated parts of the District Court opinion, and remanded for further
The Appeals Court summarized its ruling as follows: "We affirm in toto the
district court’s claim construction. We also affirm: (i) its determination that
none of the patents in suit is unenforceable for inequitable conduct; (ii) its
contingent determination that the '933 patent is invalid under § 112 ¶ 1; (iii)
its grant of summary judgment of infringement of '422 patent claim 1; (iv) its
determination that the '080, '933, '349, and '698 patents are not anticipated by
the Sugimoto reference; and (v) its determination that '349 patent claims 1,
3-4, and 6 are infringed."
However, the Appeals Court continued that "we vacate: (i) its determination
that the '933 patent is not infringed;
(ii) its determination that the '080 patent is infringed under the doctrine of
equivalents; (iii) its determination that the '080, '349, and '422 patents are
not invalid; and (iv) its determination that the asserted method claims of the
'698 patent and '349 patent claim 7 are not infringed. Accordingly, we remand
for the district court to reconsider: (i) whether the '080, '349, and '422
patents are obvious in light of the Sugimoto prior art or anticipated or obvious
in light of the Goldwasser prior art; (ii) whether the '422 patent is
anticipated by Sugimoto reference (and whether Amgen can prove its nonenablement);
(iii) whether the asserted claims of the '698 patent and '349 patent claim 7 are
infringed by the accused method; and (iii) whether the '080 patent is infringed
under the doctrine of equivalents."
Judge Clevenger dissented in part, with respect to specification under Section 112.
|1/3. The U.S. Court of Appeals (FedCir)
issued its opinion [MS
Word] in Paradise
Creations v. U V Sales, a patent infringement case.
Paradise filed a complaint in U.S.
District Court (SDFl) against UV alleging patent infringement. The District
Court granted summary judgment to UV for lack of standing. The Appeals Court
affirmed, holding that Paradise lacked standing because it claimed patent rights
under a contract executed at a time when its was administratively dissolved.
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