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February 13, 2003, 9:00 AM ET, Alert No. 603.
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Commerce Department Official Predicts Few Bills Related to Digital Content Will Pass in 2003
2/4. The Department of Commerce's (DOC) Bruce Mehlman gave a speech at a Precursor Group conference titled "Protecting Digital Value" in Washington DC. He predicted that little legislation regarding digital content will pass in 2003.

He said that there are three fundamental trends -- growing broadband access and use, proliferation of consumer electronics that improve consumers’ access to and use of digital content, and increasing consumer interest in digital content.

He also said that there are three "outside elements" that may have an impact in 2003 -- the Verizon case, the success of independents, and the Congress.

He stated that as a result of the Verizon case, "expect RIAA and MPAA to adopt the BSA business model major and bring private lawsuits against corporations, universities or even individuals unwittingly serving as piracy supernodes. Fear of liability could put a downward drag on free but illegal file sharing, by inducing greater network self-regulation among businesses and colleges (which is also good for network management and security)." (Parentheses in original.)

On January 21, the U.S. District Court (DC) issued its opinion in RIAA v. Verizon, ruling that copyright holders can obtain subpoenas pursuant to 17 U.S.C. § 512(h) that require Internet Service Providers (ISPs) to reveal the identities of their customers who infringe copyrights on peer to peer filing sharing systems. See also, TLJ story titled District Court Rules DMCA Subpoenas Available for P2P Infringers.

Mehlman also said, "Watch to see whether independent services gain equal access to the labels’ catalogues and full rights to offer desired consumer services ..."

Finally, he addressed legislation. He said, "I would not expect to see much if any legislation move all the way through in 2003. Technology mandates, peer-to-peer restrictions, eased anti-hacker rules for content counter strikes, and expanded fair use exemptions just aren't likely to pass this year. Progress might be made on a narrowly tailored broadcast flag law, if it’s needed (as opposed to FCC action alone), and assuming the warring factions can come to reasonable consensus. A lot of time and money will be spent lobbying without legislative result, ..." (Parentheses in original.)

Mehlman is the DOC's Assistant Secretary for Technology Policy.

Grand Jury Returns DMCA Indictments
2/11. The U.S. Attorneys Office (USAO) for the Central District of California issued a release regarding the prosecution of seventeen persons involved in theft of satellite television signals from DirecTV and EchoStar. The release discloses, among other things, the unsealing of four indictments that a grand jury of the U.S. District Court (CDCal) returned in January against six persons alleging violation of the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) in connection with this theft.

The release states that satellite broadcasters use encryption and conditional access technology on a smart card to restrict access, and that defendants are software developers and hardware developers involved in making equipment that allows theft of programming from satellite broadcast signals.

The release states that a total of seventeen persons have been charged with violations of 17 U.S.C. § 1204, 18 U.S.C. § 371, and/or 47 U.S.C. § 605. Six of these have been charged with violation of Section 1204 (DMCA). Some defendants have already plead guilty.

17 U.S.C. § 1204 contains the criminal prohibition of violation of 17 U.S.C. § 1201, which, in turn prohibits the circumvention of technological measures that effectively controls access to a work protection under Title 17 (which includes the Copyright Act), and trafficking in circumvention devices. 18 U.S.C. § 371 is the criminal conspiracy provision in the Criminal Code. 47 U.S.C. § 605 is the criminal prohibition in the Communications Act of making or trafficking in devices that are "of assistance in the unauthorized decryption of satellite cable programming, or direct-to-home satellite services".

This is the second set of criminal prosecutions under the DMCA. The first was the Skylarov case in the U.S. District Court (NDCal).

The USAO release names the six persons charges with criminal violation of the DMCA. It states that Jason Hughes "has agreed to plead guilty to violating the DMCA for developing and distributing software designed to circumvent smart cards for DirecTV." Edward Vanderziel "was indicted on charges of conspiracy, manufacturing signal theft devices and violating the DMCA." Michael Whitehead "was indicted for conspiracy, manufacturing satellite signal theft devices and violating the DMCA for his nationwide distribution of devices to circumvent the conditional access technologies in smart cards." Peter DeForest was "indicted on charges of manufacturing satellite signal theft devices and charges under the DMCA for manufacturing ``unloopers´´ used to circumvent the smart card technology." Linh Ly "agreed to plead guilty to violating the DMCA and distributing decryption hardware". Finally, the USAO release states that Richard Seamans "who was indicted on charges of violating the DMCA and distributing decryption devices".

FBI Asks People Not To Hack Iraq
2/11. The Federal Bureau of Investigation's (FBI) National Infrastructure Protection Center (NIPC) issued an advisory regarding patriotic hacking. While NIPC advisories typically warn readers about cyber threats, this advisory also requests readers not to engage in "patriotic hacking" of systems in Iraq, or operated by supporters of Iraq.

The advisory states that "Recent experience has shown that during a time of increased international tension, illegal cyber activity: spamming, web defacements, denial of service attacks, etc., often escalates. This activity can originate within another country, which is party to the tension. It can be state sponsored or encouraged, or come from domestic organizations or individuals independently. Additionally, sympathetic individuals and organizations worldwide tend to conduct hacking activity, which they view as somehow contributing to the cause. As tensions rise, it is prudent to be aware of, and prepare for this type of illegal activity."

The advisory continues that "Attacks may have one of several motivations", including "Political activism targeting Iraq or those sympathetic to Iraq by self described ``patriot´´ hackers" and "Political activism or disruptive attacks targeting United States systems by those opposed to any potential conflict with Iraq".

The advisory warns such persons that "such activity is illegal and punishable as a felony. The U.S. Government does not condone so-called ``patriotic hacking´´ on its behalf. Further, even ``patriotic hackers´´ can be fooled into launching attacks against their own interests by exploiting malicious code that purports to attack the other side when in fact it is designed to attack the interests of the side sending it. In this and other ways ``patriotic hackers´´ risk becoming tools of their enemy."

House Homeland Security Committee Members Named
2/12. Rep. Chris Cox (R-CA), Chairman of the House Select Committee on Homeland Security, and Rep. Jim Turner (D-TX), the ranking Democrat, announced the membership of the Committee. See, Cox release.

The other Republican members are Bill Young (FL), Christopher Shays (CT), Curt Weldon (PA), Dave Camp (MI), David Dreier (CA), Don Young (AK), Duncan Hunter (CA), Ernest Istook (OK), James Sensenbrenner (WI), Harold Rogers (KY), Jennifer Dunn (WA), Jim Gibbons (NV), John Linder (GA), John Shadegg (AZ),  John Sweeney (NY), Kay Granger (TX), Lamar Smith (TX), Lincoln Diaz-Balart (FL), Mac Thornberry (TX), Mark Souder (IN), Pete Sessions (TX), Peter King (NY), Porter Goss (R-FL), Bob Goodlatte (VA), Sherwood Boehlert (NY), and Billy Tauzin (LA).

The other Democratic members are Robert Andrews (NJ), Benjamin Cardin (MD), Donna Christensen (VI), Peter DeFazio (OR), Norman Dicks (WA), Bob Etheridge (NC), Barney Frank (MA), Charles Gonzalez (TX), Jane Harman (CA), Sheila Lee (TX), James Langevin (RI), Zoe Lofgren (CA), Nita Lowey (NY), Ken Lucas (KY), Ed Markey (MA), Karen McCarthy (MO), Kendrick Meek (FL), Eleanor Norton (DC), Bill Pascrell (NJ), Loretta Sanchez (CA), Louise Slaughter (NY), and Bennie Thompson (MS).

Chris CoxSeveral of the members have been active in information technology, cyber security and communications related debates. Rep. Cox (at right) has long been a leading proponent of an untaxed and unregulated internet. Rep. Dunn represents a district that includes many Microsoft workers. Rep. Smith has been active in passing cyber crime legislation. Rep. Goodlatte is a co-chair of the Internet Caucus, and, along with Rep. Lofgren, led the effort in previous Congresses to defend encryption rights. Both have also been involved in other tech related issues. Rep. Lofgren represents a Silicon Valley district. Rep. Markey is the ranking Democrat on the Telecom and Internet Subcommittee, and a leading proponent in the House of privacy rights. Rep. Harman has been active in cyber security issues.

NTIA Director Writes State Department Re ENUM
2/12. Nancy Victory, Director of National Telecommunications and Information Administration (NTIA), wrote a letter to the Department of State's (DOS) David Gross, recommending that the DOS be more active at the International Telecommunications Union (ITU) on the ENUM issue.

David GrossGross (at right) is the U.S. Coordinator for International Communications and Information Policy in the Bureau of Economic and Business Affairs at the Department of State.

Victory wrote that "We currently have the opportunity to participate or ``opt in´´ to the new global domain set aside for electronic numbering (ENUM), Because of the potential benefits of ENUM, the Department of Commerce through the National Telecommunications and Information Administration (NTIA) believes that the United States should seize this opportunity and take steps to participate in, consistent with the highest standards of security, competition, and privacy."

She elaborated that "As a mapping protocol that links the Internet and telephony platforms through a single identifier, ENUM has the potential to facilitate convergence of communications networks by linking e-mail addresses, telephone numbers, fax numbers, and cell phone numbers for individuals or businesses."

FRB Vice Chairman Reviews Y2K Remediation Efforts
2/12. Federal Reserve Board (FRB) Vice Chairman Roger Ferguson gave a speech in Athens, Georgia titled "Rules and Flexibility in Monetary Policy" in which he reviewed the recent history of monetary policy. He included a review of the year 2000 conversion in the banking sector.

He said that "concerns were widespread during 1999 that computer systems controlling everything from cash registers to power grids could fail because of Y2K bugs in computer code. Given the pervasiveness of automated systems in the financial sector, concerns about fixing the Y2K bug in that sector were particularly severe. Despite intensive and careful preparations, market participants and others remained concerned that computer failures could result in problems for individual firms and, conceivably, even for the economy. Firms, for example, were extremely reluctant to be exposed to the risk that on January 1, 2000, they would be unable to roll over their debt, and banks similarly were concerned about their own access to funding."

Ferguson stated that "the Federal Reserve put in place a number of contingency measures to ensure the availability of adequate liquidity to the economy. Moreover, to minimize the risk that monetary policy would inadvertently trigger problems, the monetary tightening process was put on hold at the December 21, 1999, meeting to minimize the uncertainty when everyone was concerned about the century date change. As it turned out, the careful planning and massive investment in updated and more robust information technology paid off -- computers functioned smoothly. Again, our approach to monetary policy in the run-up to Y2K would have been very difficult to capture in a simple rule, or in a complicated one for that matter."

More News
2/12. The House passed HR 395, The Do-Not-Call Implementation Act, on a roll call vote of 418-7. See, Roll Call No. 26. The sponsor of the bill, Rep. Billy Tauzin (R-LA), stated in a release that "The bill provides a five year authorization for the FTC to collect fees from telemarketers to operate, maintain, and enforce the national do-not-call registry, which will cost $16 million annually. Now that the House has passed this legislation, the Senate must move quickly so that the registry can be put into motion this year."

2/12. The Federal Communications Commission (FCC) released its annual report [47 pages in PDF] on the number of telephone subscribers. It found, once again, that most people have phones. That is, over 95 percent of all households in the U.S. had telephone service as of July 2002. Access rates vary across income groups, with low income households having less access than high income households. The report was written by Alexander Belinfante of the Industry Analysis and Technology Division of the FCC's Wireline Competition Bureau. See also, FCC release [1 page in PDF].

2/12. The Department of Justice's (DOJ) Antitrust Division filed its pleading titled "Certificate of Complicance with Tunney Act and Motion for Entry of Final Judgments" with the U.S. District Court (EDVa) in the case U.S.A. v. MathWorks and Wind River Systems. On June 21, 2002, the DOJ filed its complaint 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, 2002 release. The DOJ settled with the defendants last year. See, DOJ August 15, 2002 release. See also, notice in the Federal Register regarding the Proposed Final Judgment and Competitive Impact Statement, October 21, 2002, Vol. 67, No. 203, at Pages 64657 - 64666.

2/12. The Department of Justice's (DOJ) Antitrust Division published a notice in the Federal Register of its proposed Final Judgment and Competitive Impact Statement in U.S.A. v. Village Voice Media and NT Media. See, Federal Register, February 12, 2003, Vol. 68, No. 29, at Pages 7132-7147. See also, story titled "DOJ Files Antitrust Complaint Against Newspaper and Web Site Publishers for Allocation of Markets" in TLJ Daily E-Mail Alert No. 592, January 28, 2003.

People and Appointments
2/12. President Bush nominated Consuelo Callahan to be a Judge of the U.S. Court of Appeals for the Ninth Circuit. See, White House release. She is currently a member of the California Court of Appeal, Third Appellate District. Before that, she was an Superior Court Judge.

2/12. President Bush nominated Steven Colloton to be a Judge of the U.S. Court of Appeals for the Eighth Circuit. See, White House release. Colloton is the U.S. Attorney for the Southern District of Iowa. He previously clerked for Judge Laurence Silberman (U.S. Court of Appeals for the District of Columbia), and Chief Justice William Rehnquist. He was also an assistant to Independent Counsel Ken Starr. And, he has been an Assistant U.S. Attorney in Iowa.

2/12. Richard Diamond was named Deputy Director of Media Relations at the Federal Communications Commission (FCC). He previously worked as press secretary to former Rep. Richard Armey (R-TX), who was the House Majority Leader through the 107th Congress. Diamond can be reached at 202 418-0506. See, FCC release [PDF].

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.

9:15 AM. The Senate Commerce Committee will hold its organizational meeting for the 108th Congress. See, notice. Press contact: Pia Pialorsi (McCain) at 202 224-2670. Location: Room 253, Russell Building.

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 - 11:30 AM. The Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) will sponsor several technology demonstrations of ultra-wideband devices. One of the participants will be Xtreme Spectrum (XS), which will demonstrate a wireless broadcast of two high definition television (HDTV) streams to two separate large screen displays using XS's ultra-wideband chipset Trinity. The FCC stated in a release that FCC staff will "be available to the media at the beginning of the event to address regulatory actions taken by the FCC in this area". Press contacts: David Fiske (FCC) at 202 418-0500 or Diane Orr (XS) at 408 377-0308. See, FCC notice [PDF]. Location: FCC, Commission Meeting Room (TW-C305), 445 12th St., SW.

9:30 AM (or 11:00 AM?). The Senate Judiciary Committee will hold an executive business meeting. The agenda includes consideration of several judicial nominees: Deborah Cook (U.S. Court of Appeals for the 6th Circuit), John Roberts (U.S. Court of Appeals for the District of Columbia), Jeffrey Sutton (U.S. Court of Appeals for the Sixth Circuit), Jay Bybee (U.S. Court of Appeals for the Ninth Circuit), Ralph Erickson (U.S.D.C., North Dakota), William Quarles (U.S.D.C., Maryland), Gregory Frost (U.S.D.C., Southern District of Ohio). The agenda also includes consideration of S 113, a bill to exclude United States persons from the definition of "foreign power" under the Foreign Intelligence Surveillance Act (FISA). See, notice. Location: Room SDG 50, Dirksen Building.

10:00 AM. The House Science Committee will hold a hearing on the research and development components of President Bush's FY 2004 proposed budget. The scheduled witnesses are John Marburger (Director of the Office of Science and Technology Policy), Rita Colwell (Director of the National Science Foundation), Samuel Bodman (Deputy Secretary of the Department of Commerce), and Robert Card (Under Secretary of Energy for Energy, Science and Environment). Press contact: Heidi Tringe at Heidi.Tringe or 202 225-4275. Location: Room 2318, Rayburn 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). Press contact: Pia Pialorsi (McCain) at 202 224-2670. See, notice. 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
9:30 AM. The Senate Governmental Affairs Committee will hold a hearing to examine the President's proposal to create a terrorist threat integration center, including consolidating intelligence analysis. Location: Room 342, Dirksen Building.

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.
Tuesday, February 18
9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in AT&T v. FCC, No. 01-1485. Judges Tatel, Garland and Williams will preside. Location: 333 Constitution Ave., NW.

4:00 PM. Michael Meurer (Boston University School of Law) will present a paper titled "Sharing Copyrighted Works". For more information, contact Robert Brauneis at 202 994-6138 or Location: George Washington University Law School, Faculty Conference Center, Burns Building, 5th Floor, 720 20th Street, NW.

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.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) in the proceeding titled "In the matter of Facilitating the Provision of Spectrum Based Services to Rural Areas and Promoting Opportunities for Rural Telephone Companies To Provide Spectrum Based Services". This is WT Docket No. 02-381. For more information, contact Robert Krinsky at 202 418-0660. See also, notice in the Federal Register, January 7, 2003, Vol. 68, No. 4, at Pages 723 - 730.

Extended deadline to submit comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking, (FNPRM), released last month, regarding whether providers of various services and devices not currently within the scope of the FCC's 911 rules should be required to provide access to emergency services. This is CC Docket No. 94-102 and IB Docket No. 99-67. See, notice in the Federal Register, January 23, 2003, Vol. 68, No. 15, at Pages 3214 - 3220, and notice of extension.

Wednesday, February 19
10:00 AM. BellSouth Ch/CEO Duane Ackerman will speak about the future of the telecommunications industry. For more information, contact Bill McCloskey at 202 463-4129. Location: Zenger Room, National Press Club, 529 14th St. NW, 13th Floor.

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch. The topic will be "The Role of In House Counsel". For more information, contact Yaron Dori at or Ryan Wallach at Location: Conference Room of Willkie Farr & Gallagher, 1875 K St., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a brown bag lunch. The topic will be FCC antitrust merger reviews. The speakers will include Jim Bird (head of the Federal Communications Commission's (FCC) Office of General Counsel's (OGC) Transactional Team) and Jim Barker (Latham & Watkins). For more information, contact Lauren Kravetz at 202 418-7944 or Location: FCC, Room 4-B516.

Deadline to submit reply comments to the Copyright Office (CO) in response to its Notice of Inquiry (NOI) regarding the exemption of certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works, pursuant to 17 U.S.C. § 1201. See, CO summary of this proceeding, notice in the Federal Register: October 15, 2002, Vol. 67, No.199, at Pages 63578 - 63582, and comments already filed.


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