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January 16, 2003, 9:00 AM ET, Alert No. 584.
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Supreme Court Upholds CTEA in Eldred v. Ashcroft
1/15. The Supreme Court issued its opinion [89 pages in PDF] in Eldred v. Ashcroft, upholding the constitutionality of the Copyright Term Extension Act, which retroactively extended the maximum duration of copyrights. Justice Ruth Ginsburg wrote the opinion of the Court, in which Kennedy, O'Connor, Rehnquist, Scalia, Souter, and Thomas joined. Both Breyer and Stevens wrote dissenting opinions.

Justice Ginsburg wrote that the Copyright Clause delegates to the Congress the authority to set the terms for copyright protection, and the Supreme Court will defer to the Congress' determinations. She also wrote that the First Amendment does not limit the Congress' power to extend copyright terms. She wrote "The First Amendment securely protects the freedom to make -- or decline to make -- one's own speech; it bears less heavily when speakers assert the right to make other people's speeches. To the extent such assertions raise First Amendment concerns, copyright's built-in free speech safeguards are generally adequate to address them." Such safeguards, wrote Ginsburg, include fair use, and the principle that copyright protects expressions, but not the ideas or facts contained in expressions.

Background. The 105th Congress passed the Copyright Term Extension Act (aka CTEA) to extend the maximum duration of copyrights from 75 to 95 years. The late Rep. Sonny Bono (R-CA) introduced HR 1621 for this purpose in 1997. However, it was the Senate version, S 505, which ultimately was passed by both the House and Senate on October 7, 1998. President Clinton signed this bill on October 21, 1998. The Act applies retroactively. (See, P.L. 105-298, 112 Stat. 2827. It amends 17 U.S.C. § 304(b).)

The original plaintiff of record is Eric Eldred, the proprietor of the unincorporated Eldritch Press, a website which republishes the works of others which are not protected by copyright. However, the suit was brought by a group of activist law professors, including Lawrence Lessig, Charles Nesson, and Jonathan Zittrain. At the time the lawsuit was filed, all worked at The Berkman Center for Internet & Society at Harvard Law School.

Proceedings Below. On January 11, 1999, the plaintiffs filed a complaint in U.S. District Court (DC) against Janet Reno, in her capacity as Attorney General. The Second Amended Complaint contains three counts. The first alleges that the CTEA is unconstitutional because the term is too long. The second alleges the "public trust doctrine." The third asserts that the CTEA restricts plaintiffs' freedom of speech. The District Court action also involved the No Electronic Theft Act. However, the only issues before the Supreme Court were "whether the CTEA's extension of existing copyrights exceeds Congress' power under the Copyright Clause; and whether the CTEA's extension of existing and future copyrights violates the First Amendment." On October 27, 1999, the District Court ruled that the CTEA does not violate the Constitution. See, Memorandum of the Court.

On February 16, 2001, the U.S. Court of Appeals (DC) issued its opinion affirming the District Court. Chief Judge Douglas Ginsburg wrote the opinion; Karen Henderson joined; and David Sentelle dissented. The Court of Appeals denied plaintiffs' petition for rehearing en banc on July 13, 2001. Sentelle and David Tatel dissented. See, opinion. The Supreme Court then granted certiorari.

See also, Berkman Center case summary and TLJ summary of the proceedings before the District Court

Copyright Clause Challenge. The Constitution, Article I, Section 8, provides that "Congress shall have the Power... To regulate Commerce ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries ... To make all Laws which are necessary and proper for carrying into Execution the foregoing Powers ..."

Judge Ginsburg, writing for the seven Justice majority, stated that "the Copyright Clause empowers Congress to prescribe ``limited Times´´ for copyright protection and to secure the same level and duration of protection for all copyright holders, present and future." She continued that "Petitioners contend, however, that existing copyrights extended to endure for that same term are not ``limited´´. Petitioners. argument essentially reads into the text of the Copyright Clause the command that a time prescription, once set, becomes forever ``fixed´´ or ``inalterable.´´ The word ``limited,´´ however, does not convey a meaning so constricted."

She then reviewed that history of Congressional legislation extending the terms of copyright and patent terms. "History reveals an unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime."

She added that prior Courts had no problem with extending the term of either copyrights, or applying the extended terms to both new and existing copyrights. Hence, Ginsburg concluded that the CTEA complies with the "limited terms" component of the Copyright Clause.

Next, she enquired whether enactment of the CTEA was a "rational exercise of the legislative authority conferred by the Copyright Clause." In response, she wrote, "On that point, we defer substantially to Congress. ... The CTEA reflects judgments of a kind Congress typically makes, judgments we cannot dismiss as outside the Legislature's domain." She found it particularly significant here that the EU had already established the terms enacted by the CTEA.

"In sum," wrote Ginsburg, "we find that the CTEA is a rational enactment; we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be. Accordingly, we cannot conclude that the CTEA -- which continues the unbroken congressional practice of treating future and existing copyrights in parity for term extension purposes -- is an impermissible exercise of Congress. power under the Copyright Clause."

Ginsburg next addressed the petitioners argument that applying the term extension retroactively failed to "promote the Progress of Science and useful Arts". To this, Ginsburg responded, "We have also stressed, however, that it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause's objectives."

First Amendment Challenge. Finally, Justice Ginsburg rejected the argument that the CTEA violates the First Amendment. In doing so, she rejected any argument that the Copyright Clause and the First Amendment are in conflict with each other.

She wrote that "The Copyright Clause and First Amendment were adopted close in time. This proximity indicates that, in the Framers' view, copyright's limited monopolies are compatible with free speech principles. Indeed, copyright's purpose is to promote the creation and publication of free expression."

She elaborated that "In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations. ... First, it distinguishes between ideas and expression and makes only the latter eligible for copyright protection. ... Due to this distinction, every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication."

Ginsburg added that "Second, the ``fair use´´ defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances."

She wrote too that "The First Amendment securely protects the freedom to make -- or decline to make -- one's own speech; it bears less heavily when speakers assert the right to make other people's speeches. To the extent such assertions raise First Amendment concerns, copyright's built-in free speech safeguards are generally adequate to address them."

In conclusion, Justice Ginsburg wrote that "As we read the Framers' instruction, the Copyright Clause empowers Congress to determine the intellectual property regimes that, overall, in that body's judgment, will serve the ends of the Clause. ... (Congress may ``implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim´´. (emphasis added)). Beneath the facade of their inventive constitutional interpretation, petitioners forcefully urge that Congress pursued very bad policy in prescribing the CTEA's long terms. The wisdom of Congress' action, however, is not within our province to second guess. Satisfied that the legislation before us remains inside the domain the Constitution assigns to the First Branch, we affirm the judgment of the Court of Appeals."

Reaction. Rep. John Conyers (D-MI), ranking Democrat on the House Judiciary Committee, stated in a release that "I am not surprised that the Court upheld the prerogative of Congress to promote and protect authorship. Copyright protection is the main incentive that content owners have to create and distribute their creations; if Congress does not act pursuant to its constitutional responsibilities to update that protection as technology advances, we will take away that incentive and lose what is this country's number one export. This decision demonstrates this country’s commitment to encouraging authorship and free expression."

Representatives of industries that hold copyrights praised the Supreme Court's opinion. Ken Wasch of the Software & Information Industry Association (SIIA) stated in a release that "SIIA is pleased that the Supreme Court confirmed Congress' ability to legislate in areas of intellectual property and deferred to Congress' judgment in this important area of public policy. We are also very pleased with the Supreme Court's analysis of the First Amendment issues involved in the case. The Court recognized that First Amendment considerations are contained within copyright law. Separate First Amendment legal action is thus unwarranted in traditional copyright challenges."

Jack Valenti of the Motion Picture Association of America (MPAA) wrote in a release that "We are pleased that the Court has reaffirmed the absolute authority of Congress to set copyright terms. We have always maintained and the law has long-recognized that copyright, whose aim it is to provide incentive for the creation and preservation of creative works, is in the public interest. That is why this ruling is a victory not solely for rights holders but also for consumers everywhere."

Cary Sherman of the Recording Industry Association of America (RIAA) stated in a release that "This is a decisive and important victory for creators and consumers. The Supreme Court has affirmed the importance of the copyright system and the authority of Congress to adapt it in response to evolving markets and international developments. The Court also recognized, once again, that copyright and the First Amendment are completely compatible, noting that our copyright system contains “built-in free speech safeguards.”

In contrast, Gary Shapiro of the Consumer Electronics Association (CEA) stated in a release that "We are disappointed the Court has decided to uphold the Constitutionality of the extension of copyrights. With this ruling, copyrights are now protected for up to a century. The Constitutional mandate that copyright terms be restricted to 'limited terms' becomes almost meaningless as Congress yielded to Hollywood's extension request."

CompTel Releases UNE-P Report
1/15. The Competitive Telecommunications Association (CompTel) released a report [8 pages in PDF] regarding the unbundled network element platform (UNE-P).

CompTel wrote that "UNE-P remains the fastest growing form of local competition, serving an estimated 10 million residential and small business lines by the end of 2002."

It further argued that "UNE-P is unmistakably the principal driver of competitive growth in the local market today. During the first half of 2002, UNE-P accounted for more than 85% of the net growth in competitive access lines. Said differently, if UNEP were eliminated, competitive activity – and, importantly, competitive benefit – would decline by roughly 85%. Not only would competition slow overall, the decline would reduce benefits most dramatically for the typical residential and small business customers that depend on analog services for their basic communications needs."

People and Appointments
1/15. Judith Mann will become Federal Communications Commission (FCC) Chairman Michael Powell's Confidential Assistant (CA). She replaces Powell's longtime CA, Antonia McGowan, who will become Deputy Agenda and Publications Group Manager in the Office of the Secretary. The CA handles, among other things, Chairman Powell's scheduling. See, FCC release [PDF].

1/15. President Bush announced his intent to appoint James Hoffa (General President of the International Brotherhood of Teamsters), and Paul Beckner (P/CEO of Citizens for a Sound Economy) to the Advisory Committee for Trade Policy and Negotiations for two year terms. See, White House release.

1/15. President Bush announced his intent to nominate three persons to be U.S. District Court judges: Dee Drell (Western District of Louisiana), Patricia Minaldi (Western District of Louisiana), and Cecilia Altonaga (Southern District of Florida). See, White House release.

More News
1/15. The Office of Personnel Management (OPM) announced a new government wide payroll program titled e-Payroll. See, OMB release.
FCC Holds "State of the FCC" Meeting
1/15. The Federal Communications Commission (FCC) held a meeting to hear reports for Bureau Chiefs and the head of the Office of Engineering and Technology. FCC Chairman Michael Powell called it the annual "state of the Federal Communications Commission" meeting. The FCC took no actions.

The presenters gave mainly retrospective summaries of accomplishments of their bureaus or offices, including proceedings completed, actions taken, and reports made. They also addressed employment levels, backlogs and other administrative matters. See, PowerPoint presentations of each presenter.

The FCC Commissioners widely praised the work of FCC staff, but made very few comments about pending or impending FCC proceedings. Commissioner Michael Copps stated that he would like the FCC to revisit the definition of indecency. In particular, he stated that he would like to expand the definition to include violent programming. Chairman Michael Powell responded that the the FCC is restricted by opinions of the Supreme Court interpreting the First Amendment.

OET Chief Ed Thomas suggested that action may be taken this year to amend the FCC's rules to facilitate the provision of broadband Internet access services over power lines. He added that technological advancements in the past year may turn power companies into the third major broadband competitor.

Senators Write AG Ashcroft Re Data Mining by DOJ
1/15. Sen. Patrick Leahy (D-VT), Sen. Russ Feingold (D-WI), and Sen. Maria Cantwell (D-WA) wrote a letter [8 page PDF scan] to Attorney General John Ashcroft to "inquire about ``data mining´´ operations, practices and policies at the Department of Justice."

The three wrote that "We raise this inquiry against the backdrop of public concern over the Total Information Awareness System (TIA) being developed under the supervision of Admiral Poindexter within the Defense Advanced Research Project Agency (DARPA). TIA is intended, according to Department of Defense officials, to generate tools for monitoring the daily personal transactions by Americans and others, including tracking the use of passports, driver's licenses, credit cards, airline tickets, and rental cars. The Administration's goal is to turn these tools over to law enforcement agencies. According to press reports, one such tool, a software program called ``Genoa,´´ has already been delivered by DARPA to the Department of Justice."

Sen. Leahy (at right) is the ranking Democrat on the Senate Judiciary Committee, which oversees the Department of Justice, but not the Department of Defense, or DARPA. Sen. Feingold and Sen. Cantwell are members of the Committee.

The letter propounds numerous interrogatories to the DOJ. For example, it asks the DOJ to "identify any private sector or proprietary databases obtained or being used by the Department of Justice for data-mining or pattern-recognition activities as well as any databases from government agencies outside DOJ being used for such purposes."

Groups Write House Armed Service Committee Re Total Information Awareness
1/14. Nine groups wrote at letter [3 pages in PDF] to Rep. Duncan Hunter (R-CA), the new Chairman of the House Armed Services Committee, and Rep. Ike Skelton (D-MO), urging the Congress "to stop further development of a Defense Advanced Research Projects Agency (DARPA) system called ``Total Information Awareness´´".

These groups wrote that "TIA would put the details of Americans' daily lives under the scrutiny of government agents, opening the door to a massive domestic surveillance system. Congress should prohibit the development of TIA." They added that "Congress should not allow the Defense Department to develop unilaterally a surveillance tool that would invade the privacy of innocent people inside the United States."

The signatory groups are the American Civil Liberties Union, American Conservative Union, Americans for Tax Reform, Center for Democracy and Technology, Center for National Security Studies, Eagle Forum, Electronic Frontier Foundation, Electronic Privacy Information Center, and Free Congress Foundation.

USPTO Orders Reexamination of NTP Patents
1/14. The U.S. Patent and Trademark Office (USPTO) ordered a reexamination of five patents held by NTP, Inc. The patents, which pertain to wireless e-mail technology, are at the heart of ongoing litigation between NTP and Research in Motion (RIM). NTP has already obtained a jury verdict of infringement against RIM, the maker of the Blackberry portable communications devices.

The patents to be reexamined are U.S. Patent Nos. 5,625,670 titled "Electronic mail system with RF communications to mobile processors", 5,631,946 titled "System for transferring information from a RF receiver to a processor under control of a program stored by the processor and method of operation thereof", 5,819,172 titled "Electronic mail system with RF communications to mobile radios", 6,067,451 titled "Electronic mail system with RF communications to mobile processors", and 6,317,592 titled "Electronic mail system with RF communications to mobile processors".

35 U.S.C. § 303 provides that the Director of the USPTO, within three months of the filing of a request for reexamination, "will determine whether a substantial new question of patentability affecting any claim of the patent concerned is raised by the request ..."

NTP filed a complaint in U.S. District Court (EDVa) against RIM in November 2001 alleging patent infringement. On November 21, 2002, the trial jury returned a verdict of infringement against RIM, and awarded NTP over $23 Million in damages.

This case is NTP, Inc. v. Research in Motion, Inc.. It is pending in the U.S. District Court for the Eastern District of Virginia, at Richmond, Judge James Spencer presiding. It is D.C. No. 3:01CV767. NTP is represented by James Wallace of the law firm of Wiley Rein & Fielding.

RIM stated that "Of the eight patents listed in the original complaint, only five patents were litigated during the jury trial. Four of the five patents litigated have now been ordered to be reexamined." See, RIM's January 14, 2003 release. See also, RIM's November 21, 2002 release, and RIM's November 21, 2001 release.

Thursday, January 16
10:00 AM. The Department of Treasury (DOT), Office of Management and Budget (OMB), and Internal Revenue Service (IRS) will hold a press conference to announce the details of IRS Free File, which pertains to preparing and filing federal tax forms online. The participants will include Acting Treasury Secretary Kenneth Dam, OMB Director Mitchell Daniels, and Acting IRS Commissioner Robert Wenzel. See also, story titled "IRS Enters Into Agreement with Electronic Tax Preparation Consortium" in TLJ Daily E-Mail Alert No. 539, October 31, 2002. The DOT stated in its notice that "Media without Treasury or White House press credentials should contact Treasury's Office of Public Affairs at (202) 622-2960." Location: DOT press room (Room 4121).

11:15 AM. Sen. Russ Feingold (D-WI) will hold a press conference to announce the introduction of a bill that would prohibit data mining initiatives such as Total Information Awareness. Other scheduled speakers include Jim Dempsey (Center for Democracy and Technology), David Sobel  (Electronic Privacy Information Center), Katie Corrigan (ACLU). Location: Room SC-4, The Capitol.

12:15 PM. The FCBA's Cable Practice Committee will host a brown bag lunch. The topic will be "Engineering Issues". The speakers will be John Wong and Michael Lance of FCC's Media Bureau. For more information, contact Lisa Cordell at 202 939-7900. RSVP to Wendy Parish at Location: NCTA, 1724 Massachusetts Ave., NW.

12:15 PM. The FCBA's Young Lawyers Committee will host a brown bag lunch. The topic will be planning for the new year. For more information, contact Yaron Dori at or Ryan Wallach at Location: Hogan & Hartson, 555 13th St., NW, Confr. Rm. 9E-407.

The FCBA's Diversity Committee and Young Lawyers Committee will host a series of Law School Outreach Programs for law students interested in practicing communications law at Washington DC area law schools. The event at American University will be held at 4:30 PM. The event at Catholic University will be a 6:00 PM. The event at George Mason University will be at 4:45 PM. The event at Georgetown University Law Center will be at 5:30 PM. The event at Howard University will be at 4:30 PM.

Friday, January 17
9:30 AM. The Senate Governmental Affairs Committee will hold a hearings on the nomination of Tom Ridge to be Secretary of Homeland Security. Location: Room 342, Dirksen Building.

EXTENDED AGAIN, TO FEBRUARY 18. Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [15 pages in PDF] in its proceeding titled "In the Matter of Digital Broadcast Copy Protection". This NPRM proposes that the FCC promulgate a broadcast flag rule, and seeks comment on this, and related questions. This is MB Docket No. 02-230. See, FCC release [PDF] and Order [PDF] of October 11, 2002 extending deadlines. See also, Order [PDF] of January 3, 2003.

Monday, January 20
Martin Luther King Day. The FCC will be closed. Legal holiday.

The Securities and Exchange Commission's (SEC) final rule providing relief for Internet investment advisers goes into effect. The rule exempts certain investment advisers who provide advisory services through the Internet from the prohibition on SEC registration. The rule change permits advisers whose businesses are not connected to any state to register with the SEC instead of with state securities authorities. See also, notice in Federal Register, December 18, 2002, Vol. 67, No. 243, at Pages 77619 -77626, and story titled "SEC Amends Rule for Internet Investment Advisers" in TLJ Daily E-Mail Alert No. 568, December 16, 2002. For more information, contact Marilyn Barker or Jamey Basham 202 942-0719.

Tuesday, January 21
12:30 PM. Sen. Ted Kennedy (D-MA) will speak at a National Press Club (NPC) luncheon. Location: Ballroom, NPC, 529 14th St. NW, 13th Floor.

Wednesday, January 22
5:00 PM. The FCBA's Diversity Committee and Young Lawyers Committee will host a Law School Outreach Program at the University of Baltimore for law students interested in practicing communications law.

6:00 - 8:00 PM. The FCBA will host a CLE seminar titled "The Transition to Digital Television". The price to attend is $60 for FCBA members, $50 for government/law student members, and $80 for non-members. Registrations & cancellations are due by 5:00 PM on January 21. RSVP to Wendy Parish Location: Wiley Rein & Fielding Conference Center, 1750 K Street, NW, 10th Floor.


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