Tech Law Journal Daily E-Mail Alert
June 3, 2003, 9:00 AM ET, Alert No. 672.
Home Page | Calendar | Subscribe | Back Issues | Reference
FCC Announces Revisions to Media Ownership Rules

6/2. The Federal Communications Commission (FCC) announced, but did not release, a Report and Order revising its media ownership rules. The vote was 3-2, with the three Republicans (Powell, Martin and Abernathy) supporting the Report and Order, and the two Democrats (Copps and Adelstein) opposing it. The FCC issued a press release [10 pages in PDF] and an attachment [1 page in PDF] describing and commenting upon the Report and Order.

The announced changes maintain, but relax, several rules. The FCC raised the national TV ownership cap from 35% to 45%. The FCC eased both the local TV multiple ownership limits, and radio multiple ownership limits. The FCC also eased the limits on cross ownership of TV stations, radio stations, and daily newspapers.

However, the FCC maintained the dual network ownership prohibition.

The FCC also announced, but did not release, a Notice of Proposed Rulemaking (NPRM) on defining non-Arbitron radio markets.

Dual Network Ownership Prohibition. The FCC release states that the FCC "retained its ban on mergers among any of the top four national broadcast networks." It elaborated that "The FCC determined that its existing dual network prohibition continues to be necessary to promote competition in the national television advertising and program acquisition markets. The rule also promotes localism by preserving the balance of negotiating power between networks and affiliates. If the rule was eliminated and two of the top four networks were to merge, affiliates of those two networks would have fewer networks to turn to for affiliation."

Local TV Multiple Ownership Limit. The FCC release states that "In markets with five or more TV stations, a company may own two stations, but only one of these stations can be among the top four in ratings. In markets with 18 or more TV stations, a company can own three TV stations, but only one of these stations can be among the top four in ratings. In deciding how many stations are in the market, both commercial and non-commercial TV stations are counted."

The release also states that "The FCC adopted a waiver process for markets with 11 or fewer TV stations in which two top-four stations seek to merge. The FCC will evaluate on a case-by-case basis whether such stations would better serve their local communities together rather than separately."

National TV Ownership. The FCC release states that the "FCC incrementally increased the 35% limit to a 45% limit on national ownership." The FCC elaborated that "A company can own TV stations reaching no more than a 45% share of U.S. TV households." It added that "The share of U.S. TV households is calculated by adding the number of TV households in each market that the company owns a station. Regardless of the station's ratings, it is counted for all of the potential viewers in the market. Therefore, a 45% share of U.S. TV households is not equal to a 45% share of TV stations in the U.S."

Local Radio Ownership Limit. The FCC release states that the "FCC found that the current limits on local radio ownership continue to be necessary in the public interest, but that the previous methodology for defining a radio market did not serve the public interest. The radio caps remain at the following levels:
• In markets with 45 or more radio stations, a company may own 8 stations, only 5 of which may be in one class, AM or FM.
• In markets with 30-44 radio stations, a company may own 7 stations, only 4 of which may be in one class, AM or FM.
• In markets with 15-29 radio stations, a company may own 6 stations, only 4 of which may be in one class, AM or FM.
• In markets with 14 or fewer radio stations, a company may own 5 stations, only 3 of which may be in one class, AM or FM."

Cross Ownership Limits. The FCC release states that "In markets with three or fewer TV stations, no cross-ownership is permitted among TV, radio and newspapers. A company may obtain a waiver of that ban if it can show that the television station does not serve the area served by the cross-owned property (i.e. the radio station or the newspaper)." (Parentheses in original.)

For "markets with between 4 and 8 TV stations, combinations are limited to one of the following:
(A) A daily newspaper; one TV station; and up to half of the radio station limit for that market (i.e. if the radio limit in the market is 6, the company can only own 3) OR
(B) A daily newspaper; and up to the radio station limit for that market; (i.e. no TV stations) OR
(C) Two TV stations (if permissible under local TV ownership rule); up to the radio station limit for that market (i.e. no daily newspapers)." (Parentheses in original.)

Finally, "In markets with nine or more TV stations, the FCC eliminated the newspaper-broadcast cross ownership ban and the television-radio cross-ownership ban."

Grandfather Rights. The FCC release also states that "The FCC's new TV and radio ownership rules may result in a number of situations where current ownership arrangements exceed ownership limits. The FCC grand-fathered owners of those clusters, but generally prohibited the sale of such above-cap clusters. The FCC made a limited exception to permit sales of grand-fathered combinations to small businesses as defined in the Order."

The five members of the FCC spoke at the June 2 meeting, and released written statements.

FCC Chairman Michael Powell wrote in a separate statement [2 pages in PDF] that "Today, we complete the most exhaustive and comprehensive review of our broadcast ownership rules ever undertaken. We have done so, obligated by our statutory duty to review the rules biennially and prove those rules are ``necessary in the public interest.´´"

Michael PowellPowell (at right) added that "Keeping the rules exactly as they are, as some so stridently suggest, was not a viable option. Without today’s surgery, the rules would assuredly meet a swift death. As the only member of this Commission here during the last biennial review, I watched first hand as we bent to political pressure and left many rules unchanged. Nearly all were rejected by the court because of our failure to apply the statute faithfully. I have been committed to not repeating that error ..."

See also, separate statement [PDF] Commissioner Kathleen Abernathy and release [3 pages in PDF] of Commissioner Kevin Martin, who joined with Powell to form the majority in support of the Report and Order. Martin wrote that "the media marketplace has changed significantly since our media ownership rules were first adopted." He cited the proliferation of broadcast channels, cable channels, and "thousands of sites on the Internet."

The FCC's two Democrats dissented. Commissioner Michael Copps wrote in a separate statement [23 pages in PDF] that "I dissent because today the Federal Communications Commission empowers America's new Media Elite with unacceptable levels of influence over the media on which our society and our democracy so heavily depend."

Michael CoppsCopps (at right) wrote that "This morning we are at a crossroads -- for the Federal Communications Commission, for television, radio, and newspapers, and for the American people. The decision we five make today will recast our entire media landscape for years to come. At issue is whether a few corporations will be ceded gatekeeper control over the civil dialogue of our country; content control over our music, entertainment and information; and veto power over the majority of what we and our families watch, hear and read."

See also, separate statement [10 pages in PDF] of Commissioner Jonathan Adelstein. He wrote that "This is a sad day for me, and I think for the country. I'm afraid a dark storm cloud is now looming over the future of the American media. This is the most sweeping and destructive rollback of consumer protection rules in the history of American broadcasting."

Reaction to the FCC's Media Ownership Announcement

6/2. The Federal Communications Commission's (FCC) announcement of its Report and Order revising its media ownership rules was accompanied by a outpouring of praise, criticism and commentary on Capitol Hill, and elsewhere in Washington DC. Much of reaction broke down along party lines, with Republicans expressing support for the FCC's revisions, and Democrats expressing opposition.

Rep. Billy Tauzin (R-LA), the Chairman of the House Commerce Committee, which has jurisdiction over telecommunications, stated in a release that "the FCC has finally done what both Congress and the courts have asked it to do, and our free speech society needs it to do. It has adopted new broadcast ownership rules that are enforceable, based on empirical evidence and reflective of today’s 21st century marketplace. The FCC, in affect, has taken a big step toward removing the regulatory muzzle from American broadcasters."

Rep. Billy TauzinRep. Tauzin (at right) continued that "The new suite of rules recognize and reflect the explosive growth in the number and variety of media outlets in the market, as well as the significant efficiencies and public interest benefits that can be obtained from common ownership. At the same time, the rules correctly reflect the continuing goals of ensuring diversity and localism and guarding against undue concentration in the marketplace."

Sen. John McCain (R-AZ), the Chairman of the Senate Commerce Committee, stated in a release that "Congress and the federal courts have required the FCC to conduct a biennial review of its media ownership rules. These rules have a critical impact on our society -- we must ensure that they serve the public interest. The Commerce Committee, therefore, will immediately begin its oversight of this decision by hearing from the five FCC Commissioners this Wednesday."

Sen. Ernest Hollings (D-SC), the ranking Democrat on the Senate Commerce Committee, stated at a press conference that "This concentration is absolutely in opposition to the interests of the public itself. And there's no ground for it, there's no reason for it other than greed."

Sen. Ernest HollingsSen. Hollings (at right) is also the ranking Democrat on the House Appropriations Committee's Subcommittee on Commerce, Justice, State and the Judiciary. This Subcommittee has jurisdiction over the FCC's annual appropriation. Sen. Hollings has a history of using the appropriations process to obtain oversight goals.

This may be a more viable option for him, in the Senate, because Sen. Ted Stevens (R-AK), the Chairman of the full Appropriations Committee, shares some of Sen. Hollings' view on media ownership. For example, Sen. Stevens is the sponsor of S 1046, the "Preservation of Localism, Program Diversity, and Competition in Television Broadcast Service Act of 2003". Sen. Hollings is a cosponsor.

Sen. Hollings stated that "And I'm convinced, just noodling around, that we can get a majority vote and report that bill out and get some action on the floor of the Senate. Otherwise, we do have an appropriations bill. We never like to put those communications riders on, but this is such a disastrous proceeding and finding and rule by the commission itself this morning that I'm convinced that we've got to weigh-in in the Congress." See also, Hollings release.

Similarly, Rep. John Dingell (D-MI), the ranking Democrat on the House Commerce Committee, stated in a release that "With today's decision, the FCC's regulatory arrogance has delivered a body blow to democracy. The weakening of the FCC media ownership rules will hurt localism, will reduce diversity, and will allow media monopolies to flourish. Moreover, the FCC avoided open debate, ignored decades of judicial precedent and arbitrarily rejected the views of hundreds of thousands of concerned citizens."

He added that "The battle for a reasoned approach to ownership will now return to the courts, which hopefully will reject this arbitrary action, and to the Congress where a bipartisan coalition has already formed and is prepared to move forward. I look forward to working with my colleagues on both sides of the aisle to enact a national policy that will restore diversity and competition to the media marketplace."

Rep. Ed Markey (D-MA), the ranking Democrat on the House Commerce Committee's Subcommittee on Telecommunications and the Internet, also condemned the FCC's announcement. He stated in a release [PDF] that it is "unwarranted".

Sen. Mike DeWine (R-OH) and Sen. Herb Kohl (D-WI), the Chairman and ranking Democrat of the Senate Judiciary Committee's Subcommittee on Antitrust, stated in a joint release that "We have serious reservations with the FCC's decision today to substantially lift media ownership limits, and will be shortly conducting a hearing at the Antitrust Subcommittee to examine its implications for competition. We continue to believe that only diversity of ownership can preserve the diversity of news, information and entertainment sources essential to our democracy. A wide range of voices must be maintained in order to ensure a thriving and vibrant marketplace of ideas. Accordingly, we will be scrutinizing future media mergers at the Antitrust Subcommittee to examine their impact on the marketplace of ideas."

The two Senators, who typically act together on antitrust matters, added that "Now that the FCC has significantly relaxed its media ownership limits, many expect a renewed wave of mergers and acquisitions throughout the media sector. The antitrust agencies must enforce the antitrust laws vigorously to protect against excessive media concentration. We will expect the Justice Department and FTC to scrutinize media mergers and acquisitions closely. We urge both agencies to stand guard to prevent deals which will substantially injure competition in these industries that are so vital in providing the news and information relied upon by millions of Americans."

Secretary of Commerce Don Evans stated in a release that "I commend the FCC for its action on media ownership today. The FCC has answered the call of Congress and the Courts to modernize its rules."

Adam Thierer, of the libertarian Cato Institute, stated in a release that the FCC's rule changes represent only "a modest tweaking of existing regulations and standards." He added that "The real question now is whether the courts will accept these changes or strike down these archaic media ownership rules as regulatory relics. In revising such rules before, the courts have recognized that the changes in the media marketplace have given citizens a diversity of news, information, and entertainment options that undercuts the rationale behind many of the current regulations. Considering the dismal state of media competition and diversity just 20 to 30 years ago, today's world is characterized by information abundance, not scarcity."

"Moreover, as courts have found, the First Amendment remains of paramount importance when considering such restrictions of media. Limiting the size of the soapbox that media owners hope to build to speak to the American people is offensive to the free speech rights we hold sacred in this country."

Theier added that "Information and entertainment cannot be monopolized, especially in an age of breakneck technological change."

Randolph May, of the Progress and Freedom Foundation, a free market oriented group that focuses, in part, on communications and information technology issues, stated in a release that "Today the FCC took long overdue steps to relax its outdated media ownership restrictions. There are now vastly more media outlets and sources of news and information than there were when the rules were adopted 30 or 40 years ago. These rules were put in place before 85 percent of the American households subscribed to 300-channel cable and satellite television systems and before the Internet revolutionized information dissemination. At the time the rules were put in place, ‘channel surfing’ had not entered our lexicon, and ‘surfing the web’ was not even a dream."

In contrast, Andrew Schwartzman, of the Media Access Project, stated in a release [PDF] that "The bad news is that the FCC has acted with disdainful regard for hundreds of thousands of Americans who don’t want more media concentration. The good news is those hundreds of thousands of Americans have learned that FCC Chairman Michael Powell doesn’t care about what they think, and they will be angry."

Similarly, Gene Kimmelman of the Consumers Union stated in a release that "In one sweeping move, three FCC political appointees are dramatically worsening the nation's media landscape for decades to come. Like the wolf in sheep's clothing fable, these three Commissioners are saying their "modest" changes to media ownership rules are necessary to reflect today's abundant new media choices. But in reality their action is masking a much more cynical and dangerous plan."

Supreme Court Denies Cert in Case Involving R&D Tax Credit for Software Development

6/2. The Supreme Court denied certiorari, without opinion, in Tax & Accounting Software v. U.S., a case regarding when expenses of a software company may qualify for the research and development tax credit. See, Order List [8 pages in PDF], at page 2.

The Tax and Accounting Software Corporation (TAASC) develops and markets software for use by tax and accounting professionals. It claimed research and development expenses for the development of these software products, pursuant to 26 U.S.C. § 41. The Internal Revenue Service (IRS) disallowed these tax credits. The U.S. District Court (NDOkla) granted summary judgment in favor of the software developer. The U.S. Court of Appeals (10thCir) issued its opinion reversing the District Court's summary judgment, on the grounds that its expenses were not for "qualified research". The Supreme Court's action lets stands the opinion of the Tenth Circuit.

See, TLJ story titled "10th Circuit Disallows R&D Tax Credit for Software Development Costs", August 20, 2002. This is S.C. No. 02-1291, A.C. No. No. 00-5196, and D.C. No. 98-CV-363.

7th Circuit Rules in Privacy Case

5/30. The U.S. Court of Appeals (7thCir) issued its opinion [PDF] in Denius v. Dunlap, a Section 1983 case involving confidentiality of records. The Court of Appeals affirmed the District Court.

Since 1994, Ronald Denius, a retired Air Force Sergeant, has taught in an eighteen month program that uses military training methods to teach "life skills" and GED courses to teenage high school dropouts. His employer has required him, as a condition for continued employment, to sign various "authorizations" in which he would authorize the release of various records. These have covered medical records, attorney client privileged records, criminal records, credit records, financial records, veterans records, employment records, and other records. He refuses to sign these.

Instead, he filed a complaint in U.S. District Court (CDIll) against Wayne Dunlap (formerly the Director of his employer) and others alleging violation of 42 U.S.C. § 1983, claiming violations of his constitutional rights under the First, Sixth, and Fourteenth Amendments.

This is the second time this case has come before the Court of Appeals. See also, Denius v. Dunlap, 209 F.3d 944 (7th Cir. 2000). In the present appeal, the Court of Appeals affirmed the District Court's granting of judgment as a matter of law to Denius.

People and Appointments

6/2. President Bush nominated Josette Shiner to be a Deputy U.S. Trade Representative (aka, duster). See, White House release. Bush announced his intent to nominate Shiner back on March 31, 2003. See, White House release.

6/2. Richard Crandall, founder of Comshare, and Wayne Mackie, formerly with Arthur Andersen, were named to Novell's board of directors, effective June 2, 2003. See, Novell release.

More News

6/2. After releasing several opinions, the Supreme Court announced that it will take a recess until Monday, June 9, 2003. See, Order List [8 pages in PDF], at page 8.

5/28. Rambus announced in a release that the U.S. District Court (NDCal) "has dismissed with prejudice the consolidated amended complaint in a shareholder suit against Rambus entitled ``In re: Rambus, Inc. Securities Litigation.´´" Rambus added that "The dismissed shareholder suit arose from allegations concerning Rambus' 1991 - 1995 attendance at a standard setting body called JEDEC. The case consolidated multiple purported class actions filed against Rambus in 2001. Although no class had yet been certified, the court had appointed lead plaintiffs in 2001. These lead plaintiffs recently moved for dismissal following rulings favoring Rambus from the Court of Appeals for the Federal Circuit." See also, TLJ story titled "Federal Circuit Rules in Rambus v. Infineon", January 29, 2003

Supreme Court Reverses in Dastar v. Fox

6/2. The Supreme Court issued its opinion [18 pages in PDF] in Dastar v. Twentieth Century Fox, reversing the opinion of the U.S. Court of Appeals (9thCir), which had upheld a District Court judgment of violation of the Lanham Act.

Technically, this is a Lanham Act, reverse passing off, case. "Passing off" occurs when a producer misrepresents his own goods or services as someone else's. "Reverse passing off" occurs when a producer misrepresents someone else's goods or services as his own. Both can be actionable under the Lanham Act, which makes actionable not only the misleading use of marks, but also the false designation of origin of goods.

In another sense, this is a case in which a plaintiff/producer is passing off a copyright claim as a Lanham Act claim. The plaintiff alleges that its work of authorship has been copied (which can be actionable under the Copyright Act), but instead proceeds on the legal theory of violation of the Lanham Act's false designation of origin provision.

The defendant copied a work whose copyright had expired, and failed to attribute its origin. The lower courts ruled for the producer. The Supreme Court reversed, 8-0. It held that this is not the purpose of the Lanham Act. Moreover, allowing this sort of use of the Lanham Act would have the impermissible effect of creating perpetual quasi patents and copyrights.

Background. Twentieth Century Fox Film Corporation (Fox) made a TV series based on Dwight Eisenhower's 1948 book, Crusade in Europe (under license from the publisher, Doubleday). The series was first broadcast in 1949. In 1995, Dastar Corporation made a video on the same subject that copied extensively from Fox's TV series. Fox's problem is that it failed to renew the copyright on the TV program. Consequently, the work entered the public domain in 1977. And hence, Fox could not sue Dastar for copyright infringement.

However, Dastar's had its own problem. It failed to credit the source of the material that it copied from Fox. It claimed that the video was its own product.

Proceeding Below. Fox filed a complaint in 1998 in U.S. District Court against Dastar alleging violation of Section 43(a) of the Lanham Act, which is codified at 15 U.S.C. § 1125(a). This case also involves a state unfair competition claim, and a copyright claim involving the Doubleday book copyright. However, those were not at issue in the Supreme Court's review.

The District Court ruled for Fox on the Lanham Act claim. It further awarded Dastar's profits to Fox, and doubled them pursuant to § 35 of the Lanham Act, codified at 15 U.S.C. § 1117(a), to deter future infringing conduct by Dastar.

Dastar appealed to the U.S. Court of Appeals (9thCir). It affirmed. It further held that a finding of likelihood of consumer confusion is not required. Dastar petitioned for writ of certiorari. The Supreme Court granted certiorari.

Statute. 15 U.S.C. § 1125(a)(1) provides, in part, that "Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which -- (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act."

Supreme Court. The Supreme Court reversed. Justice Antonin Scalia wrote for a unanimous Court (although Justice Breyer did not participate). He wrote that "At bottom, we must decide what §43(a)(1)(A) of the Lanham Act means by the ``origin´´. of ``goods´´."

In the end, he concluded that "In sum, reading the phrase ``origin of goods´´ in the Lanham Act in accordance with the Act's common-law foundations (which were not designed to protect originality or creativity), and in light of the copyright and patent laws (which were), we conclude that the phrase refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods. ... To hold otherwise would be akin to finding that §43(a) created a species of perpetual patent and copyright, which Congress may not do."

Justice Scalia first confirmed that the Lanham Act does protect against reverse passing off. He wrote that "every Circuit to consider the issue found §43(a) broad enough to encompass reverse passing off. ... The Trademark Law Revision Act of 1988 made clear that §43(a) covers origin of production as well as geographic origin. Its language is amply inclusive, moreover, of reverse passing off, if indeed it does not implicitly adopt the unanimous court-of-appeals jurisprudence on that subject." (Citations and footnote omitted.)

Scalia continued that "The gravamen of respondents' claim is that, in marketing and selling Campaigns as its own product without acknowledging its nearly wholesale reliance on the Crusade television series, Dastar has made a ``false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which ... is likely to cause confusion ... as to the origin ... of his or her goods´´."

He commented that "That claim would undoubtedly be sustained if Dastar had bought some of New Line's Crusade videotapes and merely repackaged them as its own. Dastar's alleged wrongdoing, however, is vastly different: it took a creative work in the public domain -- the Crusade television series -- copied it, made modifications (arguably minor), and produced its very own series of videotapes." (Parentheses in original.)

"If ``origin´´ refers only to the manufacturer or producer of the physical ``goods´´ that are made available to the public (in this case the videotapes), Dastar was the origin. If, however, ``origin´´ includes the creator of the underlying work that Dastar copied, then someone else (perhaps Fox) was the origin of Dastar's product." (Parentheses in original.)

Justice Scalia concluded, "But as used in the Lanham Act, the phrase ``origin of goods´´ is in our view incapable of connoting the person or entity that originated the ideas or communications that ``goods´´ embody or contain. Such an extension would not only stretch the text, but it would be out of accord with the history and purpose of the Lanham Act and inconsistent with precedent."

Scalia reasoned that §43(a) "prohibits actions like trademark infringement that deceive consumers and impair a producer's goodwill. It forbids, for example, the Coca-Cola Company's passing off its product as Pepsi-Cola or reverse passing off Pepsi-Cola as its product. But the brand-loyal consumer who prefers the drink that the Coca-Cola Company or PepsiCo sells, while he believes that that company produced (or at least stands behind the production of) that product, surely does not necessarily believe that that company was the ``origin´´ of the drink in the sense that it was the very first to devise the formula. The consumer who buys a branded product does not automatically assume that the brand-name company is the same entity that came up with the idea for the product, or designed the product -- and typically does not care whether it is. The words of the Lanham Act should not be stretched to cover matters that are typically of no consequence to purchasers."

He also examined whether the analysis might be different for a "communicative product", such as a book or video, but concluded that the analysis should be the same. He wrote that "The problem with this argument according special treatment to communicative products is that it causes the Lanham Act to conflict with the law of copyright, which addresses that subject specifically. The right to copy, and to copy without attribution, once a copyright has expired," passes to the public.

Scalia elaborated on attempts to use trademark law in areas reserved for copyright or patent law. "Federal trademark law ``has no necessary relation to invention or discovery´´", citing Trade-Mark Cases, 100 U. S. 82 (1879). Rather, trademark law reduces customers' costs of shopping and making purchasing decisions, and prevents an imitating competitor from reaping the benefits of a desirable product.

He continued that "Assuming for the sake of argument that Dastar's representation of itself as the ``Producer´´ of its videos amounted to a representation that it originated the creative work conveyed by the videos, allowing a cause of action under §43(a) for that representation would create a species of mutant copyright law that limits the public's ``federal right to `copy and to use,´ ´´ expired copyrights", citing Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141 (1989).

Finally, Scalia observed that interpreting "origin" to require attribution of uncopyrighted materials would be difficult to implement. For example, what would be the "origin" of a movie, which was based on a musical, which was based on an opera, which was based novel. As another example, Scalia pointed out, requiring attribution would create potential liability, if the credit is regarded as implying sponsorship or approval.

The Court did not address the issue of damages under the Lanham Act, because it found no underlying violation of the Lanham Act.

Commentary. Justice Scalia's opinion is narrowly focused on resolving the legal issue before the Court. Nevertheless, this case may have consequences beyond the situation of unattributed copying of TV programs that have fallen into the public domain.

For example, had the Court affirmed, this case might have weakened the impact of the Feist case, which held that collections of data, such as electronic databases, are not subject to copyright protection. The present opinion precludes the creator of a database from suing a copier under the Lanham Act for failing to attribute the origin of the copied data. See, Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991),

Also, the Court's discussion of using one species of intellectual property protection to, in effect, create protections that resemble other categories of intellectual property, may be relevant to some other types of disputes, such as some that may arise regarding enforcement of the Digital Millennium Copyright Act's (DMCA) anti-circumvention provisions.

However, Scalia did not touch these subjects.

The case attracted amicus curiae briefs urging reversal. See, for example, amicus curiae brief [29 pages in PDF] of the American Intellectual Property Law Association (AIPLA), and amicus brief [38 pages in PDF] of the International Trademark Association (INTA). See also, amicus brief of the American Library Association (ALA), Computer & Communications Industry Association (CCIA), Public Knowledge, and other groups, and Bloomberg L.P.

Tuesday, June 3

The House will meet at 10:30 AM for morning hour, and at 12:00 NOON for legislative business. The House will consider HR 2143, the "Unlawful Internet Gambling Funding Prohibition Act" under suspension of the rules. That is, it cannot be amended, and it requires a two thirds majority to pass. See, Republican Whip Notice.

10:00 AM. The House Financial Services Committee's Capital Markets Subcommittee will hold a hearing titled "Accounting Treatment of Employee Stock Options". See also, HR 1372, the "Broad-Based Stock Option Plan Transparency Act", sponsored by Rep. David Dreier (R-CA) and Rep. Anna Eshoo (D-CA). The witnesses will include Rep. Dreier, Rep. Eshoo, Deborah Nightingale (Sun Microsystems), Robert Herz (Chairman of the Financial Accounting Standards Board), Paul Volcker (former Chairman of the Federal Reserve Board), Craig Barrett (CEO of Intel), Roderick Hills (former Chairman of the SEC), James Glassman (American Enterprise Institute). See, notice. Press contact: Peggy Peterson or Brookly McLaughlin at 202 226-0471. Location: Room 2128, Rayburn Building.

1:00 PM. Rep. Sherwood Boehlert (R-NY), the Chairman of the House Science Committee (HSC), will host a pen and pad briefing on HSC matters for reporters. Press contact: Heidi Tringe at Heidi.Tringe or 202 225-4275. Location: Room 2318, Rayburn Building.

Wednesday, June 4

The House will meet at 10:00 AM for morning hour. It will consider several non tech related items under suspension of the rules. See, Republican Whip Notice.

8:30 AM - 12:30 PM. The U.S. Chamber of Commerce, Price Waterhouse Coopers, and Evolutionary Technologies International will host a workshop titled "Public-Private IT Security Information Sharing: Addressing Next-Generation Challenges". See, notice. For more information, contact Scott Algeier at or 202 463-5845. Location: 1615 H Street, NW.

9:30 AM. The Senate Commerce Committee will hold a hearing regarding the Federal Communications Commission's (FCC) June 2 announcement regarding media ownership rules, and "issues related to the FCC's reauthorization". The five FCC Commissioners will testify. Location: Room 253, Russell Building.

9:30 AM. The Intellectual Property Owner's Association (IPO) will hold a press conference regarding the "National Inventor of the Year". For more information, contact Emily Atkinson at 466-2396. Location: Holeman Lounge, National Press Club, 529 14th St. NW, 13th Floor.

RESCHEDULED. 10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in InTouch Group v., No. 02-1631. This is an appeal from the U.S. District Court (NDCal) in a patent infringement case (D.C. No. C-00-1156-DLJ) involving internet audio technology. Intouch alleged that Amazon's, and others', method of interactive delivery of portions of recorded music infringe its business method patent. See, U.S. Patent No. 5,237,157, titled "Kiosk apparatus and method for point of preview and for compilation of market data", and U.S. Patent No. 5,963,916 titled "Network apparatus and method for preview of music products and compilation of market data". Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "Wireless E-911 Implementation: Progress and Remaining Hurdles". The hearing will be webcast. See, notice. Location: Room 2123, Rayburn Building.

The Intellectual Property Owners Association (IPO) will hold a Board of Directors Meeting. For more information, call 202 466-2396. Location: Ronald Reagan International Trade Center.

The Intellectual Property Owners Association (IPO) will host an event titled "Inventor of the Year". Rep. Howard Berman (D-CA) is scheduled to speak. For more information, call 202 466-2396. Location: Caucus Room, Cannon Building.

The Federal Trade Commission (FTC) will hold a one day workshop on the role of technology in helping businesses protect the privacy of personal information, including the steps taken to keep their information secure. See, FTC release and notice in the Federal Register, February 26, 2003, Vol. 68, No. 38, at Pages 8904 - 8906. Location: FTC, 601 New Jersey Ave., NW.

Thursday, June 5

The House will meet at 10:00 AM for morning hour. It will consider several non tech related items under suspension of the rules. See, Republican Whip Notice.

9:00 AM. The House Judiciary Committee will hold a hearing on the Department of Justice (DOJ). Attorney General John Ashcroft will testify. The hearing will be webcast. Location: Room 2141, Rayburn Building.

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

10:30 AM. The Senate Governmental Affairs Committee will hold a hearing on several pending Department of Homeland Security nominations, including Joe Whitley to be General Counsel. Location: Room 342, Dirksen Building.

12:00 NOON. The Congressional Internet Caucus will host a panel discussion titled "Internet Tax Simplification: Is It Really That Simple?" The discussion will focus on the Streamlined Sales Tax Project (SSTP), the existing internet tax moratorium, and the Business Activity Tax (BAT). The scheduled speakers include former Virginia Governor James Gilmore, Illinois State Senator Rauschenberger, Jean Cantrell (Circuit City), Paul Misener (Amazon), and Bartlett Cleland (Institute for Policy Innovation). RSVP to or 202 638-4370. Location: Room HC-5, U.S. Capitol Building.

Friday, June 6

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Akamai Technology v. Cable & Wireless, No. 03-1007. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Custom Computer v. Paychex Properties, No. 03-1148. Location: Courtroom 402, 717 Madison Place, NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Practice Committee will host a luncheon. The topic will be "State Issues in Wireless Regulation". The speakers will include Dane Snowden (FCC), Steve Berry (CTIA), Jeff Kramer (AARP), and Jessica Zufola (NARUC). The price to attend is $15. RSVP to Wendy Parish at by 5:00 PM on Wednesday, June 4. Location: Sidley Austin, 1501 K Street, NW.

Monday, June 9
No events scheduled.
Tuesday, June 10

8:00 AM - 5:30 PM. The Progress and Freedom Foundation (PFF) will host a conference titled "Promoting Creativity: Copyright in the Internet Age". The speakers will include Brad Brown (George Mason University Tech Center), James Burger (Dow Lohnes & Albertson), Richard Epstein (University of Chicago), Mike Godwin (Public Knowledge), Scott Kieff (Washington University), Edmund Kitch (University of Virginia), Stanley Liebowitz (University of Texas at Dallas), Rep. Lamar Smith (R-TX), James Delong (PFF), Michael Abramowicz (GMU School of Law), Greg Aharonian (Patent News), Michael Einhorn, Bruce Kobayashi (GMU School of Law), Katherine Lawrence (University of Michigan Business School), Adam Mossoff (Clerk, U.S. Court of Appeals for the Fifth Circuit), Harold Furchgott-Roth, Solveig Singleton (CEI), and William Adkinson (PFF). RSVP to Brooke Emmerick at 202 289-8928 or Location: J.W. Marriott Hotel, 1331 Pennsylvania Ave., NW.

9:00 AM - 3:00 PM. The President's Council of Advisors on Science and Technology (PCAST) will meet. The agenda includes a discussion of the status of the work of its workforce education and information
technology manufacturing competitiveness subcommittees, a discussion of draft report from the subcommittee on the science and technology of combating terrorism, and a discussion of its review of the federal National Nanotechnology Initiative. See, notice in the Federal Register, May 29, 2003, Vol. 68, No. 103, at pages 32037 - 32038. Location: Washington Room (roof level), Hotel Washington, 15th Street & Pennsylvania Avenue, NW.

1:00 PM. The House Ways and Means Committee's Trade Subcommittee will hold a hearing titled "Implementation of U.S. Bilateral Free Trade Agreements with Chile and Singapore". Location: Room 1100, Longworth Building.

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.