Tech Law Journal Daily E-Mail Alert
February 11, 2003, 9:00 AM ET, Alert No. 601.
Home Page | Calendar | Subscribe | Back Issues | Reference
Rogovin Named FCC General Counsel
2/7. Jane Mago has been replaced by John Rogovin as General Counsel of the Federal Communications Commission (FCC). Mago has been named to the newly created position of Chief of the newly created Office of Strategic Planning and Policy Analysis (OSPPA). See, FCC release [PDF].

Prior to being named FCC Deputy General Counsel in May of 2001, Rogovin was a partner in the telecommunications group in the Washington DC office of the law firm of O'Melvany & Myers. Prior to that, he was a Deputy Assistant Attorney General in the Civil Division of the Reno Justice Department, where he supervised the Federal Programs Branch. Among the functions of the Federal Programs Branch is to assist and represent federal government departments that do not comply with the Freedom of Information Act (FOIA). Rogovin was also lead counsel in AAPS v. Hillary Clinton, in which he defended the secret proceedings of Hillary Clinton's Health Care Task Force. And previously, he was a law clerk to Laurence Silberman, who is now a senior judge of the U.S. Court of Appeals (DCCir), which hears most appeals of FCC orders.

Mago has been with the FCC since 1978. She was named General Counsel in May of 2001. Before that, she had been acting General Counsel since the departure of Bill Kennard's General Counsel, Chris Wright, in January of 2001. Prior to that she was a Deputy Chief of the Enforcement Bureau. She has held numerous other positions at the FCC, including Senior Legal Advisor to Commissioner Powell. Mago is married to Robert Blau, vice president of federal, executive and regulatory affairs for BellSouth.

The FCC already has an Office of Plans and Policy (OPP). The FCC stated in another release [PDF] that "Robert Pepper, formerly Chief of the Office of Plans and Policy, will be part of the new office but report directly to Chairman Powell in a new Commission position of Chief, Policy Development."

The FCC also announced that Kathleen Ham will be named Deputy Chief, and Maureen McLaughlin will be named Chief of Staff, of the new (OSPPA). Ham is currently Deputy Chief of the FCC's Wireless Telecommunications Bureau (WTB). Before going to work for the FCC in 1990, she worked for the law firm of Akin Gump. McLaughlin is currently Senior Counsel for Law and Policy in the Office of General Counsel where she is involved in wireless telecommunications and spectrum management issues. She previously worked as Senior Counsel (Republican) to the Senate Commerce Committee's Communications Subcommittee.

European Commission Proposes To Create A Cyber Security Agency
2/10. The European Commission proposed a regulation that would create an agency for cyber security. Erkki Liikanen, European Commissioner for Enterprise and Information Society, gave a speech in which he stated that "We propose to establish a European Network and Information Security Agency to build on national efforts to enhance network and information security and to increase the ability of Member States and EU Institutions to prevent and respond to major network and information security problems." See also, EU release.

Erkki LiikanenLiikanen (at right) continued that "The Agency shall be able to provide assistance in the application of EU measures relating to network and information security. The assistance it provides shall help ensure interoperability of information security functions in networks and information systems, at the same time contributing to the functioning of the Internal Market. The Agency will ultimately serve as a centre of competence where both Member States and EU Institutions can seek advice on matters relating to security. This expertise provided for by the Agency will play a key role for the security of Europe's digital economy and the development of the information society in general."

He also stated that "The activities of the Agency will consist in advisory and co-ordinating functions, where data on information security is collected and analysed. Today both public and private organisations with different objectives gather data on IT-incidents and other data relevant to information security. There is, however, no central entity at European level that collects and analyses such data to support the EU policy work in that area, whilst at the same time providing added-value to national initiatives."

Ashcroft Addresses Information and Law Enforcement
2/10. Attorney General John Ashcroft gave a speech to the Council on Foreign Relations. He spoke in broad terms about law enforcement agencies' collecting and sharing of information to prevent terrorism.

He stated that "I have said often that in this global war on terror, the best friend of prevention is information, and the best friends of information are cooperation, coordination and collaboration. Nations that stand on the side of the rule of law have embraced these principles, understanding also that we are bound to encounter occasional difficulties and temporary glitches as we embark on a new quest for international security."

He continued that "In the past, our focus has been on traditional law enforcement -- prosecution. Prosecution is retrospective; it re-creates a past event. It is like putting together a jigsaw puzzle with the benefit of the picture on the box top. Our new, international goal of terrorism prevention, on the other hand, involves anticipation and imagination about emerging scenarios, the puzzle pieces of which have yet to come into alignment. Together, our nations are finding new ways to anticipate these dangerous scenarios and to identify, intercept and disrupt them before they become tragic terrorist realities."

CO to Consider Programs Embedded in Printers and Cartridges In DMCA Exemptions Rulemaking
2/10. The Copyright Office (CO) granted a request from Static Control Components (SCC) to expand the scope of, and extend the reply comment deadline for, its current rulemaking proceeding concerning exemptions to the anti-circumvention provisions of the DMCA. SCC makes aftermarket printer cartridges.

OEMs and other printer manufacturers, who want to sell replacement printer cartridges, use copyrighted software programs embedded in their printers and cartridges that prevent the cartridges of other manufacturers from operating in their printers. One printer manufacturer, Lexmark, recently filed a complaint against SCC alleging violation of the DMCA. SCC then filed a petition with the CO, which the CO just granted. The CO has also set a new deadline of March 10, 2003 for relevant reply comments.

DMCA Exemptions. The Digital Millennium Copyright Act (DMCA) prohibits circumvention of technological measures that control access to copyrighted works. More specifically, 17 U.S.C. § 1201 provides, in Subsection (a)(1)(A), that "No person shall circumvent a technological measure that effectively controls access to a work protected under this title ...". Then Subsections (a)(1)(B) through (E) provide for rulemaking proceedings conducted by the CO to establish exemptions to the prohibition of (a)(1)(A) for certain non-infringing uses.

The CO is now conducting its second rulemaking on exemptions from the prohibition on circumvention of technological measures that control access to copyrighted works. See, the CO's Notice of Inquiry in the Federal Register, October 15, 2002, Vol. 67, No. 199, at Pages 63578-63582.

Initial comments proposing exemptions for specific classes of works were due by December 18, 2002. Reply comments submitted in opposition to or in further support of exemptions proposed in the initial comments were due February 19. Hence, SCC's request was untimely after December 18.

Lexmark's DMCA Lawsuit. On December 30, 2002 Lexmark filed a complaint [17 page PDF scan] in U.S. District Court (EDKent) against SCC alleging violation of the anti-circumvention provisions of the DMCA in connection with its production and sale of replacement cartridges for certain Lexmark printers.

Lexmark alleged in its complaint that its "strategy is based on a business model of building an installed base of printers that will then generate demand for Lexmark's printer supplies and services. Lexmark designs, manufactures, and distributes a variety of toner cartridges for use in its installed base of laser printers."

It further alleged that "Among the many products developed and marketed by Lexmark are its T520/522 and T620/622 laser printers and toner cartridges. Lexmark is the owner of valid copyright registrations covering computer programs that are used to control various operations of its T520/522 and T620/622 laser printers and to monitor operational characteristics of its toner cartridges."

According to the complaint, one of these programs, named the "Toner Loading Programs", is "contained on a microchip located on the T520/522 toner cartridge". There is another "Toner Loading Program" on a microchip in the T620/622. Another of Lexmark's programs is named the "Printer Engine Programs".

The complaint states that "In general, the technological measure, or authentication sequence, requires a ``secret handshake´´ between the printer and toner cartridge to enable printer functionality."

Lexmark alleges that SCC's "SMARTEK microchips are designed to enable unauthorized toner cartridges to function with Lexmark's T520/522 and T620/622 laser printers." It elaborates that these chips contain copies of Lexmark's programs, and constitutes a "circumvention" within the meaning of the DMCA.

The District Court issued a temporary restraining order on January 9, 2003 that enjoins SCC from making or selling its Smartek microchip for toner cartridges developed for the Lexmark T520/522 and T620/622 laser printers. See, Lexmark release of January 9.

SCC Petition to the CO. SCC filed a petition [14 pages in PDF] titled "Petition of Static Control Components, Inc. for Consideration of New Information" with the CO on January 23, 2003. SCC argued in this petition that "Technological measures applied by a manufacturer of computer printers and toner cartridges, Lexmark International Inc., prevent computer printers from interoperating with toner cartridge." SCC further stated that some Lexmark printers "perform a ``secret handshake´´ with a ``Toner Loading Program´´ located in an EEPROM chip located on a Lexmark toner cartridge." However, "the purpose of this ``handshake´´ authentication is not to protect against access to copyrighted works". It is to prevent unauthorized toner cartridges from being used with certain Lexmark printers.

SCC argued that "The DMCA was not intended to protect the type of program at issue here. ... Such inconsequential functional routines that control the operation of a machine or product, cannot be copied for external purposes, and have no market value independent of the machine or product, are not the type of works that Congress intended Section 1201(a) to protect against circumvention of technological measures."

"Moreover, such anticompetitive and exclusionary acts should not be permissible in light of public policies favoring the competitive recycling of used toner cartridges, and against the misuse of copyright to control the market for ancillary goods", wrote SCC.

Specifically, SCC asked the CO to also consider the following additional proposed exemptions in its pending rulemaking proceeding: "1. Computer programs embedded in computer printers and toner cartridges and that control the interoperation and functions of the printer and toner cartridge 2. Computer programs embedded in a machine or product and which cannot be copied during the ordinary operation or use of the machine or product 3. Computer programs embedded in a machine or product and that control the operation of a machine or product connected thereto, but that do not otherwise control the performance, display or reproduction of copyrighted works that have an independent economic significance."

The CO granted Static Control's request. It further announced that "Reply comments responsive to this new comment will be accepted from February 24, 2003 until March 10, 2003, at 5 pm Eastern Standard Time." See, notice in the Federal Register, February 10, 2003, Vol. 68, No. 27, at Pages 6678-6679.

More Information. See also, SCC's paper titled "Computer Chip Usage in Toner Cartridges and Impact on the Aftermarket: Past, Current and Future", and letter titled "The Challenges We Face: Meeting the Demands of New Technology" by SCC CEO Ed Swartz.

Lexmark wrote in its SEC form 10-Q on November 14, 2002 (at page 15) that "Competition  from supplies remanufacturers and refillers, as well as various legislative initiatives supported by such competitors, may have an adverse impact on the company's supplies business which would likely have an adverse impact on the company's profitability. Price reductions on inkjet and laser supplies products, regardless of their cause, are likely to result in lower profitability and could result in a material adverse impact on the company's strategy and financial results."

Rep. Rick Boucher (D-VA) has introduced legislation in the 107th and 108th Congresses to create a fair use exemption to the anti-circumvention provisions of the DMCA. See, HR 107 and PDF copy.

The SCC's petition to the CO was signed by Seth Greenstein of the law firm of McDermott Will & Emery and William London of SCC. For more information from the CO, contact Rob Kasunic, Office of the General Counsel, at 202 707-8380.

People and Appointments
2/10. Rep. Sherwood Boehlert (R-NY), Chairman of the House Science Committee, announced the subcommittees and chairman for the 108th Congress. Rep. Vernon Ehlers (R-MI) will chair the Subcommittee on Environment, Technology, and Standards. Rep. Nick Smith (R-MI) will chair the Subcommittee on Research. Rep. Dana Rohrabacher (R-CA) will chair the Subcommittee on Space and Aeronautics. Rep. Judy Biggert (R-IL) will chair the Subcommittee on Energy.
FCC Postpones Meeting
2/10. The Federal Communications Commission (FCC) postponed is February 13th meeting until February 20. The agenda includes a Report and Order regarding unbundled network elements (UNEs). The FCC is under a court imposed February 20 deadline. The meeting will be in the Commission Meeting Room at 9:30 AM. See, FCC notice [PDF].
Tuesday, February 11
The House will meet at 12:30 PM for morning hour, and at 2:00 PM to consider several non tech related measures; votes are postponed until 6:30 PM.

9:30 AM. The Commerce Department's Bureau of Industry and Security's (BIS) Sensors and Instrumentation Technical Advisory Committee will meet. Part of the meeting will be closed to the public. See, notice in the Federal Register, January 17, 2003, Vol. 68, No.12, at Page 2499. Location: Herbert Hoover Building, Room 3884, 14th Street between Constitution and Pennsylvania Avenues, NW.

10:00 AM. Federal Reserve Board Chairman Alan Greenspan will testify before the Senate Banking Committee on monetary policy. Location: Room 216, Hart Building.

2:00 PM. Rep. Chris Cox (R-CA), Chairman of the House Select Committee on Homeland Security, and Rep. Jim Turner (D-TX), the ranking Democrat, will hold a press conference. Majority members of the Committee will be announced. Press contact: Kate Whitman at 202 225-5611. Location: House Radio & TV Gallery (H-321), Capitol Building.

5:00 PM. The Federal Communications Bar Association's (FCBA) Diversity Committee and Young Lawyers Committee will host a Law School Outreach Program at George Washington University for law students interested in practicing communications law.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) 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.

Wednesday, February 12
The House will meet at 10:00 AM for legislative business; the agenda includes consideration of HR 395, The Do-Not-Call Implementation Act.

Lincoln's Birthday.

9:30 AM. The Senate Judiciary Committee will hold a hearing on judicial nominations. The agenda includes Timothy Tymkovich (U.S. Court of Appeals for the Tenth Circuit), Daniel Breen (U.S.D.C., W.D. Tenn.), Thomas Varlan (U.S.D.C., E.D. Tenn.), William Steele (U.S.D.C., S.D. Alabama), Marian Horn (Court of Federal Claims), and Timothy Stanceu (Court of International Trade). See, notice. Location: Room 226, Dirksen Building.

10:00 AM. Federal Reserve Board Chairman Alan Greenspan will testify before the House Financial Services Committee on monetary policy and the state of the economy. Location: Room 2128, Rayburn Building.

10:00 AM to 12:00 NOON. The Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) will host a tutorial titled "Feature Detection and Listen Before Talk Systems", which have possible applications for unlicensed systems. John Betz of the Mitre Corporation will speak. See, notice. Location: FCC, Commission Meeting Room (TW-C305), 445 12th Street SW.

12:00 PM (approximate time). The Senate Finance Committee will hold a hearing on several nominations, including that of Charlotte Lane to be a member of the U.S. International Trade Commission. This hearing will commence immediately after the conclusion of the 9:30 AM Committee hearing on proposals for economic growth. See, notice [PDF]. Location: Room 215, Dirksen Building.

1:00 - 5:00 PM. The National Telecommunications and Information Administration (NTIA) will host an event titled "Voice Over Internet Protocol (VoIP) Roundtable". The NTIA stated in a notice that the event will address VoIP "and the convergence of the Internet and the public switched telephone network. The roundtable will include an overview of VoIP technology, including a brief demonstration of the Commerce Department's new VoIP telephone system." There will also be two panel discussions. See, agenda. The event will be webcast. Location: Department of Commerce, 1401 Constitution Avenue, NW, Room 4830.

5:00 - 7:00 PM. The Congressional Internet Caucus will hold its "6th Annual Kickoff Reception & Technology Fair". The schedule includes brief statements by the Internet Caucus Chairmen, Sen. Conrad Burns (R-MT), Sen. Patrick Leahy (D-VT), Rep. Bob Goodlatte (R-VA), and Rep. Rick Boucher (D-VA), and by Timothy Muris, Chairman of the Federal Trade Commission (FTC) and Howard Schmidt, Acting Chairman of the President’s Critical Infrastructure Security Board. There will also be technology demonstrations by Advanced Biometric Systems, E-Gov OS, Full Audio (music downloads), MovieLink, NTT DoCoMo (3G), Proxim (WiFi), University of Virginia (telemedicine), and Xybernaut. Location: Room 902, Hart Senate Office Building.

Thursday, February 13
The House will meet at 10:00 AM for legislative business.

9:00 AM - 2:00 PM. The American Enterprise Institute (AEI) will host a conference titled "Tax, Trade, and Cowboy Capitalism in the United States and Europe". Rep. Bill Thomas (R-CA), Chairman of the House Ways and Means Committee, will give a keynote address at 9:00 AM. There will be three panel discussions. Finally, Sen. Max Baucus (D-MT), the ranking Democrat on the Senate Finance Committee, will give the luncheon address at 1:00 PM. Location: AEI, 1150 Seventeenth St., NW.

POSTPONED TO FEBRUARY 20. 9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. See, agenda. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. See, notice. Location: Room 226, Dirksen Building.

2:30 PM. The Senate Commerce Committee will hold a hearing on "infrastructure needs of minority serving institutions". See, S 196, the Digital & Wireless Network Technology Program Act of 2003, a bill to create a grant program for minority serving institutions, sponsored by Sen. George Allen (R-VA). Location: Room 253, Russell Building.

3:00 PM. The House Ways and Means Committee's Subcommittee on Oversight will hold a hearing titled "Free Electronic Filing and National Taxpayer Advocate Annual Report". Location: Room 1100, Longworth Building.

6:00-8:00 PM. The FCBA will host a reception for Federal Communications Commission (FCC) Commissioner Jonathan Adelstein. Tickets to attend must be purchased by February 10. See, purchase form. Location: Mayflower Hotel, Grand Ballroom, 1127 Connecticut Ave., NW.

Friday, February 14
11:00 AM. The Library of Congress (LOC) will announce a plan titled "National Digital Information Infrastructure and Preservation Program" (NDIIPP). The scheduled speakers will include James Billington (Librarian of Congress) and Laura Campbell (Associate Librarian for Strategic Initiatives). For more information, contact Guy Lamolinara at 202 707-9217 or Location: LOC, Mary Pickford Theater, third floor, Madison Building, 1st St. & Independence Ave., SE.

TO BE DECIDED WITHOUT ORAL ARGUMENT. 9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Moultrie Independent Telephone Company v. FCC, No. 01-1506. Judges Tatel, Garland and Williams will preside. Location: 333 Constitution Ave., NW.

Deadline to submit comments to the U.S. Court of Appeals for the Ninth Circuit regarding the reappointment of Judge Arthur Weissbrodt, U.S. Bankruptcy Judge for the Northern District of California, San Jose Division. His current term expires on December 2, 2003. See, notice [PDF].

12:00 NOON. Deadline to submit comments to the Office of the U.S. Trade Representative (USTR) regarding countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. The USTR is required by Section 182 of the Trade Act of 1974 to make designations, commonly referred to as Special 301 designations, of countries that deny adequate protection, or market access, for IPR. See, 19 U.S.C. § 2242. See also, notice in the Federal Register, December 30, 2002, Vol. 67, No. 250, at Pages 79683 - 79684.

Monday, February 17
Presidents Day. The House will be in recess for the Presidents Day District Work Period from February 17 through 21. The FCC will be closed on February 17.
Tech Crime Report
2/5. The U.S. District Court (MDFl) sentenced Benjamin Carter to 18 months of probation, following his plea of guilty to seven counts of broadcasting without a license issued by the Federal Communications Commission (FCC), in violation of 47 U.S.C. § 301. See, FCC release.

2/10. Benjamin Curtis was charged with Criminal Possession of Marijuana in the Fifth Degree, and Unlawful Possession of Marijuana, in Criminal Court of the City of New York, County of New York. He was arraigned on February 10. Curtis is also know as the actor who played the role of Steven in Dell Computer's television commercials that used the line, "Dude, you're getting a Dell". See, New York Police Department's statement of the charges.

More News
2/10. The Computer and Communications Industry Association (CCIA) announced that it filed a complaint with the European Commission against Microsoft alleging violation of European competition law. See, CCIA's release [PDF], summary of complaint [20 pages in PDF].

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.

About Tech Law Journal
Tech Law Journal publishes a free access web site and subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year. However, there are discounts for subscribers with multiple recipients. Free one month trial subscriptions are available. Also, free subscriptions are available for journalists, federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until one month after writing. See, subscription information page.

Contact: 202-364-8882; E-mail.
P.O. Box 4851, Washington DC, 20008.
Privacy Policy
Notices & Disclaimers
Copyright 1998 - 2003 David Carney, dba Tech Law Journal. All rights reserved.