|FCC Announces Revisions to Media Ownership
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
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
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
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
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
FCC Chairman Michael Powell
wrote in a
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.´´"
(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 ..."
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
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."
(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."
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
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
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
Rep. 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
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
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."
Hollings (at right) is also the ranking Democrat on the
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
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
Similarly, Rep. John Dingell (D-MI),
the ranking Democrat on the House Commerce Committee, stated in a
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
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
[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
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,
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
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.
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
[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
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,
House release. Bush announced his intent to nominate Shiner back on March
31, 2003. See,
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,
6/2. After releasing several opinions, the Supreme Court announced that it will
take a recess until Monday, June 9, 2003. See,
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,
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
[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
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
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
§ 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
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
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
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,
includes the creator of the underlying work that Dastar copied, then someone
else (perhaps Fox) was the origin of Dastar's product." (Parentheses in
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
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
[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
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,
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
Reserve Board), Craig Barrett (CEO of Intel),
Roderick Hills (former Chairman of the SEC),
James Glassman (American Enterprise Institute). See,
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
@mail.house.gov 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".
For more information, contact Scott Algeier at
email@example.com 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.
10:00 AM. The
U.S. Court of Appeals
(FedCir) will hear oral argument in InTouch Group v. Amazon.com,
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,
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
firstname.lastname@example.org 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 email@example.com 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
Brown (George Mason University Tech Center),
Burger (Dow Lohnes & Albertson),
(University of Chicago), Mike Godwin (Public Knowledge),
Kitch (University of Virginia),
Stanley Liebowitz (University
of Texas at Dallas),
Rep. Lamar Smith (R-TX), James
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,
Singleton (CEI), and William Adkinson (PFF). RSVP to Brooke Emmerick at 202
289-8928 or firstname.lastname@example.org.
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.
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