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February 25, 2003, 9:00 AM ET, Alert No. 611.
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Senate Passes PROTECT Act
2/24. The Senate passed S 151, the PROTECT Act, by a vote of 84-0. See, Roll Call No. 35. The full title of this bill is the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003. It contains provisions pertaining to computer generated images.

Sen. Orrin Hatch (R-UT) and Sen. Patrick Leahy (D-VT), the Chairman and ranking Democrat on the Senate Judiciary Committee, introduced this bill on January 13, 2003. The Committee amended and approved the bill on January 30. See, February 24 statement by Sen. Leahy summarizing the content of S 151.

Sen. Patrick LeahySen. Leahy (at right) stated that this bill "it is a good faith effort to provide powerful tools for prosecutors to deal with the problem of child pormography within constitutional limits."

This bill is a reaction to the Supreme Court's April 16, 2002, opinion [PDF] in Ashcroft v. Free Speech Coalition, in which the Court held unconstitutional on First Amendment and overbreadth grounds provisions of the Child Pormography Prevention Act of 1996 (CPPA) banning computer generated images depicting minors engaging in sezually explicit conduct.

The CPPA expanded the federal prohibition on child pormography to encompass new technologies. 18 U.S.C. § 2256, the section containing definitions, was amended to provide that child pormography means "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sezually explicit conduct, where (A) the production of such visual depiction involves the use of a minor engaging in sezually explicit conduct; (B) such visual depiction is, or appears to be, of a minor engaging in sezually explicit conduct; (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sezually explicit conduct; or (D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sezually explicit conduct;"

The PROTECT Act's list of findings states "Since the Supreme Court's decision in Free Speech Coalition, defendants in child pornography cases have almost universally raised the contention that the images in question could be virtual, thereby requiring the government, in nearly every child pornography prosecution, to find proof that the child is real. Some of these defense efforts have already been successful."

The House passed a different bill in the 107th Congress, HR 4623. It has not yet enacted legislation in the current, 108th, Congress.

See also, TLJ stories on computer generated images and the Ashcroft v. Free Speech Coalition: "House Subcommittee Holds Hearing on Computer Generated Porm", in No. 423, May 2, 2002; "House Judiciary Committee Supports Ban on Computer Generated Child Porm", in No. 454, June 19, 2002; and "Bush Advocates Senate Passage of Bill Regarding Computer Generated Images", in No. 534, October 24, 2002.

Valenti Addresses Morality of Copyright Infringement

2/24. Jack Valenti, Ch/CEO of the Motion Picture Association of America (MPAA), gave a speech at Duke University about the immorality of stealing movies.

He began by stating that "No free, democratic nation can lay claim to greatness unless it has constructed a platform from which springs a moral compact that guides the daily conduct of the society and inspires the society to believe in civic trust."

He said that this "moral compact" has been violated by corporate executives who "were cheating and stealing from employees and stockholder". He added that "because it was easy to do, because they had the power to do it, they did it." Similarly, said Valenti, university networks provide an "opportunity for some students to take creative property that does not belong to them with effortless ease and speed. And because they have the power to do it, many, but not all of them, do it."

Valenti asserted that there is a "collision of values". He elaborated that "One value says, ``Digital technology gives me power to roam the Internet, therefore whatever is available, I can take, no matter who owns it.´´ The other value says, ``The fact that digital technology gives me power to use, doesn't make it right for me to use it wrongly.´´ That is where the collision of values takes place."

Valenti, of course, argued for adherence to the second value. He continued, "But there is a larger, darker issue here. Students would never enter a Blockbuster store and with furtive glance stuff a DVD inside their jacket and walk out without paying. They know that's shoplifting, they know that's stealing. They know they can find themselves in big-ass trouble if they're caught. That's why they don't do it. Then why would those same young leaders-to-be walk off the Internet with a movie inside their digital jacket? Why? Is it because digital shoplifting is at this moment a 'no risk' activity? If that is so, why is it so? Is it because Ambrose Bierce's definition of Conscience as ``Something you refer to when you are about to get caught´´ is an unwanted truth? Are the words ``ethics´´ –``morality´´ –“principle´´ -- alien words, exiled from the student lexicon? It's a sizeable question."

Valenti also reminded the students of Duke that they will be in leadership roles in the future, and will have to deal with employees who steal. "As the leader of the enterprise, how will you come to grips with that? You'll be face-to-face with the breakage of the moral compact and, guess what; it's on your dime."

People and Appointments
2/24. Maureen Del Duca was named Chief of the Federal Communications Commission's (FCC) Enforcement Bureau's (EB) Investigations and Hearings Division. She was previously Deputy Chief of the Division. Before joining the FCC in October 2001, she was a partner at Jenner & Block. See, FCC release.

2/24. William Freedman was named Deputy Chief of the FCC's Enforcement Bureau's Investigations and Hearings Division. He was previously a partner at the law firm of Morrison & Foerster. See, FCC release.

2/24. Mark Stone was named Legal Advisor to the Chief of the FCC's Enforcement Bureau on common carrier issues. See, FCC release.

2/24. Rebecca Dorch was named Regional Director of the FCC's Enforcement Bureau, Western Region. See, FCC release.

More News
2/24. The Supreme Court denied certiorari in BellSouth Advertising and Publishing Corporation v. Tennessee Regulatory Authority, No. 02-783, a case regarding telephone books. See, Order List [32 pages in PDF], at page 5. See also, February 7, 2002 opinion [20 pages in PDF] of the Tennessee Supreme Court.

Ben Bernanke2/21. Federal Reserve Board (FRB) Governor Ben Bernanke (at right) gave a speech titled "Balance Sheets and the Recovery" at St. Cloud State University, in St. Cloud, Minnesota. He argued that financial institutions affect economic performance, and the current state of U.S. institutions should not prevent a robust economic recovery. However, he also touched on the subject and investment in technology. "Other fundamental factors support the idea that investment will gradually increase this year", said Bernanke. "Ongoing technological changes imply that adding the newest generation of equipment should make possible still greater gains in productivity. Indeed, aggregate investment is currently well below what standard econometric models would predict, an effect that I attribute primarily to an unusually high level of uncertainty about geopolitical events and, to a lesser extent, about the likely near-term evolution of the economy. If that interpretation is correct, then, as uncertainty diminishes, investment should increase.

2/21. Microsoft filed a pleading [51 page PDF scan] titled "Microsoft Corporation's Answer to First Amended Complaint and Counterclaims Against Sun Microsystems, Inc." with the U.S. District Court (DMd) in the case "In Re Microsoft Antitrust Litigation", D.C. No. JFM 02-2739. Microsoft alleges that "For nearly a decade, Sun has instigated lawsuits against and governmental investigations of Microsoft based on alleged violations of antitrust and copyright laws in an effort to impede Microsoft's competition with Sun in the marketplace. Sun has no product strategy to counter Microsoft's investment in creating innovative and useful software, and therefore attempts to obstruct Microsoft through litigation. To this end, Sun attaches antitrust epithets to conduct that promotes competition and is inherently beneficial to consumers." Rather, Sun seeks to "obtain a free ride on Microsoft's success." Microsoft counterclaimed against Sun for breach of contract, declaratory judgment that Microsoft is licensed to incorporate MSJVM in Windows XP, breach of covenant for good faith and fair dealing, and violation of the California Business and Professions Code § 17200.

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Notices & Disclaimers
Copyright 1998 - 2003 David Carney, dba Tech Law Journal. All rights reserved.
Tuesday, February 25
The House will return from its one week recess at 2:00 PM. It will consider several non tech related measures under suspension of the rules. The Senate will meet at 9:30 AM.

TO BE DECIDED WITHOUT ORAL ARGUMENT. 9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Rice v. FCC, No. 01-1474. Judges Ginsburg, Sentelle and Randolph will preside. Location: 333 Constitution Ave., NW.

10:00 AM. Sen. Conrad Burns (R-MT), Sen. Hillary Clinton (D-NY), Rep. Anna Eshoo (D-CA), and Rep. John Shimkus (R-IL) will hold a press conference to announce the formation of the Congressional E911 Caucus. See, Clinton notice. Location: Room 116, Dirksen Building.

11:00 AM. Sen. Hillary Clinton (D-NY) and New York State Assemblyman David Koon will hold a media conference call on the launch of Congressional E911 Caucus. To participate, call 1-800-416-8128. The participant code is 159149.

12:15 PM. The FCBA's Cable Practice Committee will host brown bag lunch. The speakers will be House Commerce Committee counsel. RSVP to Wendy Parish at Location: NCTA, 1724 Massachusetts Ave., NW, 2nd Floor Conference Room.

POSTPONED TO MARCH 4. 3:00 PM. The House Homeland Security Committee will hold its organizational meeting. Press contact: Kate Whitman at 202 225-5611. Location: Room 2359, Rayburn Building.

3:00 PM. Treasury Secretary John Snow, Homeland Security Secretary Tom Ridge, and Deputy Attorney General Larry Thompson will speak at an event titled "Law Enforcement Day Celebration". See, notice. Location: The George Washington University, Lisner Auditorium, 730 21st Street, NW.

Wednesday, February 26
The House will meet at 2:00 PM for legislative business; it will consider several non tech related measures under suspension of the rules.

10:00 AM. The House Commerce Committee's Telecom and Internet Subcommittee will hold a hearing titled "Health of the Telecommunications Sector: A Perspective from the Commissioners of the FCC". See, notice. Location: Room 2123, Rayburn Building.

10:30 AM. U.S. Trade Representative (USTR) Robert Zoellick will testify before the House Ways and Means Committee about the administration's trade agenda. See, notice. Location: Room 1100, Longworth Building.

12:15 PM. The FCBA's Online Communications Practice Committee will host a brown bag lunch. The topic will be "Patent Licensing: Surprising Revelations About the True Currency of a Technology Based Economy". The speaker will be David Martin, CEO of M.CAM. RSVP to Beatriz Zaloom at Location: Kelley Drye & Warren, 1200 19th St., NW, Suite 500.

26 1:00 - 5:00 PM. Day one of a three day conference hosted by the International Association of Privacy Professionals (IAPP) titled "Third Annual Privacy Summit: Implementing and Managing Privacy in a Complex Environment". See, schedule. Location: Washington Hilton Hotel, 1919 Connecticut Avenue, NW.

Thursday, February 27
The House will meet at 10:00 AM for legislative business.

Day two of a three day conference hosted by the International Association of Privacy Professionals (IAPP) titled "Third Annual Privacy Summit: Implementing and Managing Privacy in a Complex Environment". See, schedule. Location: Washington Hilton Hotel, 1919 Connecticut Avenue, NW. At 8:15 AM there will be a panel titled "International Privacy"; the speakers will be Malcolm Crompton (Privacy Commissioner of Australia), Peter Hustinx (Netherlands Data Protection Authority), and George Radwanski (Privacy Commissioner of Canada). At 9:00 AM Rep. Cliff Stearns (R-FL) is scheduled to speak. At 9:30 AM Federal Trade Commission (FTC) Commissioner Orson Swindle is scheduled to speak.

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

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Z Tel Communications v. FCC, No. 01-1461. Judges Ginsburg, Sentelle and Randolph will preside. Location: 333 Constitution Ave., NW.

10:00 AM - 4:00 PM. The Federal Communications Commission (FCC) will hold a hearing pertaining to its "review of broadcast ownership regulation". See, FCC notice [MS Word] and agenda [MS Word]. Press contact: Rosemary Kimball at 202 418-0511 or Location: Greater Richmond Convention Center, 403 N. Third Street, Ballroom Building, Level 1, Meeting Room 15AB, Richmond, VA.

11:00 AM. The Senate Governmental Affairs Committee will hold a hearing on several nominations, including Janet Hale (to be Under Secretary for Management, Department of Homeland Security), and Clark Ervin (to be Inspector General, Department of Homeland Security). Location: Room 342, Dirksen Building.

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. This event had been scheduled for February 18, but was postponed due to snow.

Friday, February 28
9:00 AM - 1:30 PM. The American Enterprise Institute (AEI) will host an conference titled "Prospects and Politics of a U.S.-Taiwan Free Trade Agreement". The scheduled speakers include Rep. Tom DeLay (R-TX), William Kristol, Deanna Okun, and Therese Shaheen.

12:15 PM. The FCBA's Mass Media Practice Committee will host a brown bag lunch. The speaker will be Ken Ferree, Chief of the FCC's Media Bureau. RSVP to Wendy Parish at Location: NAB, Conference Room, 1771 N Street, NW.

2:00 NOON. Deadline to submit comments to the Office of the U.S. Trade Representative's (USTR) interagency Trade Policy Staff Committee (TPSC) regarding the operation and implementation of the World Trade Organization's (WTO) Agreement on Technical Barriers to Trade (TBT). See, notice in the Federal Register, February 3, 2003, Vol. 68, No. 22, at Pages 5327-5328.

Extended deadline to submit reply 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].

Day three of a three day conference hosted by the International Association of Privacy Professionals (IAPP) titled "Third Annual Privacy Summit: Implementing and Managing Privacy in a Complex Environment". See, schedule. Location: Washington Hilton Hotel, 1919 Connecticut Avenue, NW.

EXTENDED TO MARCH 11. Deadline to submit reply 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. See also, notice of extension.

Deadline to submit to the Copyright Office (CO) claims to royalty payments for digital audio recording devices and digital audio recording media, collected during 2002. Such claims are made in accordance with Chapter 10 of the U.S. Copyright Law and Part 259 of the Copyright Office regulations. See, CO notice with links to online claim submission forms.

Deadline to submit comments to the Federal Trade Commission (FTC) regarding its Agreement Containing Consent Order with Educational Research Center of America, Inc. (ERCA). On January 29 the FTC announced that it filed an administrative complaint against ERCA alleging violation of the FTC Act. The complaint states that the ERCA "collected personal information from high school and middle and junior high school students through surveys ..." It further states that it "represented, expressly or by implication, that information collected from students through the Surveys is shared only with colleges, universities, and other entities providing education-related services. ... In truth and in fact, information collected from students through the Surveys is shared ... also with commercial entities for marketing purposes." See, FTC release and notice in Federal Register, February 4, 2003, Vol. 68, No. 23, at Pages 5640-5642.

Monday, March 3
9:00 AM - 4:00 PM. The President's Council of Advisors on Science and Technology (PCAST) will hold a meeting. The agenda includes Presentation of R&D Subcommittee Draft Report on Technology Transfer and Discussion of PCAST’s Nanotechnology Work Plan. Pre-clearance is required to attend. Part of the meeting will be closed. See, PCAST notice and notice in the Federal Register, February 24, 2003, Vol. 68, No. 36, at Page 8608. Location: Indian Treaty Room, Eisenhower Executive Office Building, 17th Street and Pennsylvania Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Intellectual Property Development v. UA Columbia Cablevision, No. 02-1248, an appeal from the U.S. District Court (SDNY) in a patent case. Location: Courtroom 402, 717 Madison Place, NW.

Deadline to file FCC Form 477 with the Federal Communications Commission (FCC). All providers of local telephone service that serve 10,000 or more voice grade equivalent lines, or wireless channels, in a given state must file this form. Also, facilities based providers that serve at least 250 one-way or two-way broadband (defined here as in excess of 200 kilobits per second) service lines, or wireless channels, in a given state (or have at least 250 customers for such service in a given state) must also file. This form provides the FCC with the data that it uses for its twice per year report on the growth in use of broadband services. See, FCC notice [MS Word].

Deadline to submit comments to the Copyright Office (CO) in response to its Notice of Proposed Rulemaking (NPRM) relating to proposed regulations that set rates and terms for the use of sound recordings by preexisting subscription services for the period January 1, 2002 through December 31, 2007. For more information, contact David Carson (General Counsel) or Tanya Sandros (Senior Attorney, Copyright Arbitration Royalty Panel) at 202 707-8380. See, notice in the Federal Register, January 30, 2003, Vol. 68, No. 20, at Page 4744-4747.