HJRes 2 is the further appropriations for FY 2003 resolution, which the Senate has been debating for over a week. It includes funding for most executive branch departments, except the DOD.

The amendment was offered by Sen. Ron Wyden (D-OR) (at right). It would provide that no federal funds can be spent on TIA unless the DOD, DOJ and CIA submit a joint report within 60 days that "contains ... a detailed explanation of the actual and intended use of funds for each project and activity of the Total Information Awareness program ...", or "the President certifies to Congress in writing, that" such report is "not practicable" and "the cessation of research and development on the Total Information Awareness program would endanger the national security of the United States".

The DARPA web site states that this project "will imagine, develop, apply, integrate, demonstrate and transition information technologies, components and prototype, closed-loop, information systems that will counter asymmetric threats by achieving total information awareness useful for preemption; national security warning; and national security decision making."

The Wyden amendment contains several other provisions. One states that it is the sense of the Congress that "the Total Information Awareness program should not be used to develop technologies for use in conducting intelligence activities or law enforcement activities against United States persons without appropriate consultation with Congress or without clear adherence to principles to protect civil liberties and privacy".

Another states that it is the sense of the Congress that "the primary purpose of the Defense Advanced Research Projects Agency is to support the lawful activities of the Department of Defense and the national security programs".

Also, on January 16, Sen. Russ Feingold (D-WI) introduced a stand alone bill, S 188, the Data Mining Moratorium Act of 2003. This bill, which is cosponsored by Sen. Wyden, would require the DOD and the Department of Homeland Security to suspend the development of data mining systems, including the TIA project. (See, story titled "Sen. Feingold Introduces Data Mining Moratorium Bill", in TLJ Daily E-Mail Alert No. 586, January 20, 2003.)

On January 17, Sen. Charles Grassley (R-IA) offered an amendment (SA 53) to HJRes 2. His amendment, which the Senate did not adopt, would have provided that no federal funds can be spent on the TIA project unless "(1) such technology or component is to be used, and is used, only for foreign intelligence purposes; and (2) such technology or component is not to be used, and is not used, for domestic intelligence or law enforcement purposes". This amendment would also have required a detailed report. See, story titled "DARPA States FBI Is Involved in Total Information Awareness Program" in TLJ Daily E-Mail Alert No. 588, January 22, 2003.

Sen. Grassley and Sen. Wyden also released a statement on January 23: "Our amendment should make sure the TIA program strikes the very careful balance that's needed to protect civil liberties while at the same time protecting Americans against terrorism."

Also on January 23, the Association for Computing Machinery (ACM) wrote a letter to Sen. John Warner (R-VA) and Sen. Carl Levin (D-MI), the Chairman and ranking Democrat on the Senate Armed Services Committee, regarding the TIA project. The ACM stated that "the overall surveillance goals of TIA suffer from fundamental flaws that are based in exceedingly complex and intractable issues of human nature, economics and law.  Technological research alone cannot make a system such as TIA viable. As computer scientists and engineers we have significant doubts that the computer based TIA Program will achieve its stated goal of ``countering terrorism through prevention´´.  Further, we believe that the vast amount of information and misinformation collected by any system resulting from this program is likely to be misused to the detriment of many innocent American citizens. Because of serious security, privacy, economic, and personal risks associated with the development of a vast database surveillance system, we recommend a rigorous, independent review of these aspects of TIA."

Background. The Cable News Network (CNN) is the the news network built by Ted Turner. However, it is now an AOL Time Warner Company. CNN has registered the trademarks CNN, CNN Interactive, CNNFN, and CNN Learning. cnnews.com is an Internet domain name. It currently directs web users to a Chinese language news web site that is also identified as cnitv.com. It includes an English language section.

Maya Online Broadband Network (HK) Company, Limited (hereinafter Maya) is the company that registered the cnnews.com domain name with Network Solutions, Inc. (NSI).

District Court. CNN filed an in rem complaint in U.S. District Court (EDVa) action against the domain name cnnews.com pursuant to the Anticybersquatting Consumer Protection Act of 1999 (ACPA), which is codified at 15 U.S.C. § 1125(d). CNN alleged that domain name's use by Maya both infringed on and diluted the CNN trademark. CNN sought an order transferring the domain name cnnews.com from Maya to CNN.

This is an in rem action, meaning that the claim is brought against a thing (rather than against a person or entity), and seeks a determination of interests in the thing (rather than a determination of personal liability). And hence, CNN asserted in rem jurisdiction (over the domain name), rather than personal jurisdiction (over Maya). Maya challenged the jurisdiction of the Court.

The District Court held that is has in rem jurisdiction under the ACPA. It then ruled on cross motions for summary judgment that Maya infringed CNN's trademark. However, it ruled that there was no trademark dilution because CNN did not demonstrate actual harm to the mark. The District Court then ordered that the domain name be transferred to CNN. Maya appealed.

Statute. Section 1125(d)(1)(C) provides that "In any civil action involving the registration, trafficking, or use of a domain name under this paragraph, a court may order the forfeiture or cancellation of the domain name or the transfer of the domain name to the owner of the mark."

Section 1125(d)(2)(A) provides, in part, that "The owner of a mark may file an in rem civil action against a domain name in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name is located if ..."

Court of Appeals. The portion of the Court of Appeals' opinion that states its holding is very short, and is therefore quoted in here in full. The Court wrote, "The district court properly exercised in rem jurisdiction over the domain name cnnews.com. See Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 225 (4th Cir. 2002). The court decided the merits, including the issue of Maya HK's bad faith, prior to our holding that a plaintiff may prevail in an in rem trademark infringement and dilution action without alleging and proving bad faith. Harrods Ltd., 302 F.3d at 232. The portions of the district court's summary judgment opinion dealing with the bad faith issue are therefore vacated. In light of Harrods Ltd. there is no need for us to address the issue of whether Maya HK acted in bad faith. This, however, does not alter the outcome because the district court determined that CNN had established all of the essential elements of a trademark infringement claim. As to the issue of trademark infringement and all remaining issues raised on appeal, we affirm on the reasoning of the district court. Cable News Network L.P., L.L.L.P. v. cnnews.com, 177 F. Supp. 2d 506 (E.D. Va. 2001) (opinion granting CNN’s motion for summary judgment). The district court's final order transferring the domain name cnnews.com to CNN is also affirmed. VACATED IN PART AND AFFIRMED IN PART; FINAL ORDER AFFIRMED" (Parentheses in original. Hyperlink added.)

The Court also wrote that this opinion is "UNPUBLISHED", and that "Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c)."

AT&T filed an amicus curiae brief in support of CNN. The Electronic Frontier Foundation (EFF) filed an amicus curiae brief in support of Maya.

The ADP further states that it "believes that private sector collaboration among the technology, consumer electronics, and content industries creates the most effective tools to combat digital piracy." Also, it "believes the proper role of Government is to enforce existing laws against illegal copying."

In other words, this is another group formed to oppose measures such as S 2048 (107th), the Consumer Broadband and Digital Television Promotion Act. Sen. Ernest Hollings (D-SC) (at right) and others introduced this bill on March 21, 2002. However, it has not yet been reintroduced in the just started 108th Congress. The bill would require software and electronic equipment makers to build copy protection technology into their products. It has long been opposed by technology companies, but supported by the movie industry. See, story titled "Sen. Hollings Introduces Copy Protection Bill" in TLJ Daily E-Mail Alert No. 394, March 23, 2002.

The new ADP has a web site, a public relations firm, at least two lobbyists, and a list of members.

Fred McClure is the President of ADP. He is a partner in the law and lobbying firm of Winstead Sechrest & Minick. He is a Texan who was Assistant for Legislative Affairs in the administration of the elder George Bush. Bruce Heiman is Executive Director of the ADP. He is the chair the Information Technology Policy Group at the Washington DC office of the law and lobbying firm of Preston Gates Ellis & Rouvelas Meeds. This is the firm of the elder Bill Gates.

The ADP's corporate members include Apple, Cisco, Dell, HP, IBM, Intel, Microsoft and Motorola.

Last week three groups, the Recording Industry Association of America (RIAA), the Business Software Alliance (BSA), and the Computer Systems Policy Project (CSPP), announced that they reached an agreement regarding policies that they will advocate in the 108th Congress regarding digital copyright issues. One of the key provisions of this agreement is that "Technical protection measures dictated by the government ... are not practical". See, story titled "Software, Computer and Music Companies Reach Agreement on Digital Copyright Issues", in TLJ Daily E-Mail Alert No. 583, January 15, 2003.

The corporate members of the ADP -- Apple, Cisco, Dell, HP, IBM, Intel, Microsoft and Motorola -- are also members of either the BSA, the CSPP, or both.

The BSA and CSPP are also a members of the ADP. BSA P/CEO, Robert Holleyman, stated in a release that "Those who seek to put the burden of piracy on the technology industry are simply missing the point. The technology industry is not the problem, but part of the solution. Mandates from the government are not the answer. Market based solutions, along with education and enforcement of existing laws, are the answer. That's why even though we will be actively opposing government mandates on technology, we will continue to work closely with the movie studios to find solutions that will satisfy consumers and promote innovation in the marketplace."

Fred McClure stated in another release that "government designed and mandated technology that swaps the diversity of marketplace solutions for a ‘one size fits all’ approach is not the answer. Mandates are a mistake. A mandate will raise the price of everything from CD players and DVD players to personal computers. It will make the devices consumers own today obsolete. And it will stifle the innovation at the heart of digital progress."

McClure added that "ADP believes Hollywood should fight piracy by working with industry to come up with solutions that meet consumer expectations, and by providing attractive legal alternatives to piracy by putting content online in a wide variety of digital formats".

1/21. The U.S. Court of Appeals (9thCir) issued its opinion [PDF] in Eminence Capital v. Aspeon, a class action securities fraud action against a producer of touch screen hardware systems for retail business computer networks involving application of the Private Securities Litigation Reform Act (PSLRA). The District Court dismissed the complaint. The Appeals Court reversed.

1/21. The U.S. Court of Appeals (7thCir) issued its opinion [5 pages in PDF] in ISI v. Borden Ladner Gervais, a case involving the application of the doctrine of forum non conveniens to an underlying claim for violation of trademark law and breach of fiduciary duty. The alleged breach of fiduciary duty occurred in a patent licensing matter. The District Court concluded that the suit should proceed in Canada, where the alleged breach of fiduciary duty occurred. It reasoned that more witnesses are located there, and Canadian judges know the law of fiduciary duty better. The Appeals Court affirmed.

1/23. Ron Bonjean will become Director of Public Affairs at the Department of Commerce (DOC) on February 3, 2003. He was previously press secretary to Sen. Trent Lott (R-MS). See, DOC release.

1/23. The Department of Justice's (DOJ) Antitrust Division published a notice in the Federal Register (January 23, 2003, Vol. 68, No. 15, at Pages 3267-3272) regarding the public comments it has received in response to its Proposed Final Judgment in USA v. MathWorks and Wind River Systems. The DOJ filed its complaint on June 21, 2002 in U.S. District Court (EDVa) against MathWorks and Wind River Systems alleging violation of Section 1 of the Sherman Act. The complaint alleged that MathWorks and Wind River were competitors in the development and sale of dynamic control system design software tools, and that they entered into an agreement that gave MathWorks the exclusive right to sell Wind River's MATRIXx products and required Wind River to stop its own development and marketing. See, DOJ June 21 release. On August 15, 2002, the DOJ announced that it filed a proposed settlement with the District Court. See also, notice in the Federal Register (October 21, 2002, Vol. 67, No. 203, at Pages 64657 - 64666) regarding the Proposed Final Judgment and Competitive Impact Statement.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding the Tier III Coalition's petition to forbear, up to December 31, 2005, from enforcing the E911 accuracy and reliability standards set forth in § 20.18(h) of the FCC’s Rules with respect to Commercial Mobile Radio Service (CMRS) provided by Tier III wireless carriers. See, FCC notice [PDF]. This is WT Docket No. 02-377.

12:30 PM. Rep. Nancy Pelosi (D-CA) and Sen. Tom Daschle (D-SD) will speak at a luncheon. Location: National Press Club, 529 14th St. NW, 13th Floor.

2:00 - 3:30 PM. Sen. Charles Grassley (R-IA), Chairman of the Senate Finance Committee, will give a speech regarding the Committee's trade agenda to Consumers for World Trade. Press contact: Jill Gerber at 202 224-6522. Location: Room 215, Dirksen Building.

The Supreme Court will be in recess from January 27 through February 23.

Day one of a two day conference titled "First International Conference on the Economic
and Social Implications of Information Technology". The scheduled speakers include Secretary of Commerce Don Evans, John Marburger (President’s Science Advisor), Floyd Kvamme (Co-Chairman of the President’s Council of Advisors on Science and Technology, or PCAST), Sam Bodman (Deputy Secretary of Commerce), Nancy Victory (NTIA Directory), Phil Bond (Under Secretary for Technology), and Bruce Mehlman (Assistant Secretary for Technology Policy). See, notice and schedule. The price to attend is $100, and $60 for government, academic, and nonprofit personnel. Location: Main Auditorium, Department of Commerce, 14th St. and Constitution Ave.

Day one of three day COMNET Conference & Expo. See, conference web site. Location: Washington Convention Center.

Extended deadline to submit comments to the Federal Communications Commission's (FCC) regarding the Report [73 pages in PDF] of the FCC Spectrum Policy Task Force (SPTF). The report recommends that "spectrum policy must evolve towards more flexible and market oriented regulatory models." See, original notice [PDF] and notice of extension [PDF].

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry regarding competition in the Commercial Mobile Services (CMRS) industry. The FCC seeks data and information for its Eighth Annual Report and Analysis of Competitive Market Conditions with Respect to Commercial Mobile Services. This is WT Docket No. 02-379. See, notice in the Federal Register, January 7, 2003, Vol. 68, No. 4, at Pages 730 - 740. For more information, contact Chelsea Fallon at 202 418-7991.

Day two of three day COMNET Conference & Expo. See, conference web site. Location: Washington Convention Center.

9:30 AM. The Senate Judiciary Committee will hold a hearing on pending judicial nominations. See, notice [PDF]. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Finance Committee will hold a hearing on the nomination of John Snow to be Secretary of the Treasury. Location: Room 215, Dirksen Building.

10:00 AM. Region 20 (District of Columbia, Maryland, and Northern Virginia) Public Safety Planning Committees (NPSPAC) on 800 MHz  and 700 MHz will meet. Location: Potomac Community Public Library, Woodbridge, VA.

1:15 - 2:15 PM. Panel discussion titled "The Low Down on High-Tech Communications Policy and Regulation" at the COMNET Conference & Expo. The panelists will be Richard Wiley (Wiley Rein & Fielding), Kevin Kayes (Democratic Staff Director, Senate Commerce Committee), Michael Gallagher (Deputy Director of the NTIA), James Ramsay (General Counsel of NARUC), and Bryan Tramont (Senior Legal Advisor to FCC Chairman Michael Powell). See, conference web site. Location: Washington Convention Center.

President Bush will deliver the annual State of the Union Address.

12:15 PM. The FCBA's Online Communications Committee will host a brown bag lunch. The topic will be "Digital Rights Management & Development". For more information, contact Aileen Pisciotta at apisciotta@kelleydrye.com. RSVP to bviera@kelleydrye.com. Location: Cole, Raywid & Braverman, 1919 Pennsylvania Ave., NW, Suite 200.

4:00 PM. The Cato Institute will host a book forum on Rethinking the Network Economy: The True Forces that Drive the Digital Marketplace, by Stan Liebowitz. John Lott (American Enterprise Institute) and Tom Lenard (Progress and Freedom Foundation) will comment. Webcast. A reception will follow. See, Cato notice. Location: Cato, 1000 Massachusetts Ave., NW.

Day three of three day COMNET Conference & Expo. See, conference web site. Location: Washington Convention Center.

Deadline to submit comments to the Federal Trade Commission (FTC) regarding the consent agreement that it entered into with Quicken Loans Inc. On December 30, 2002, the 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, Agreement Containing Consent Order [7 pages in PDF]. See also, story titled "FTC Charges Quicken Loans with Violation of FCRA" in TLJ Daily E-Mail Alert No. 575, January 3, 2003. See, notice in the Federal Register, January 21, 2003, Vol. 68, No.  13, at Pages 2775-2776.

10:00 AM. David Dorman, CEO of AT&T, will speak on the future of the telecommunications industry. Location: National Press Club, Zenger Room, 529 14th St. NW, 13th Floor.

4:00 PM. The Cato Institute will host an event titled "Who Are the Real Free Traders in Congress?" to release a study of voting records on trade issues. The speakers will be Rep. Tom Petri (R-WI), Sen. Sam Brownback (R-KS), and Dan Griswold (Cato). See, notice and registration page. Location: Cato, 1000 Massachusetts Ave., NW.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) on whether it should change its rules restricting telemarketing calls and facsimile advertisements. This is CG Docket No. 02-278. See, original notice in the Federal Register, earlier notice of extension [PDF], and further notice in Federal Register of extension.

Deadline to submit applications to the Federal Communications Commission (FCC) for membership on the FCC's Consumer Advisory Committee. For more information, contact Scott Marshall at 202 418-2809 smarshal@fcc.gov.

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.

See, Letter from the Publisher, which summarizes the new practices and procedures.

See, Subscription Information page for price schedule, methods of payment, and related matters.

See, Memorandum regarding "E-Mail Monitoring".

See, Memorandum regarding "Disclosure of Information to Third Parties".

See, Memorandum to law students explaining why free subscriptions for law students will end after the January 17 issue.

See, Memorandum regarding "Termination of state officials' subscriptions" explaining why free subscriptions for state government officials will end after the January 17 issue.

See, Subscription Form and Contract (for firms, companies, groups, and other entities), or the shorter Subscription 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 Privacy Policy.