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June 17, 2003, 9:00 AM ET, Alert No. 682.
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Supreme Court Denies Certiorari in Baystate v. Bowers

6/16. The Supreme Court denied certiorari, without opinion, in Baystate v. Bowers, a patent, copyright and contract case involving CAD software. See, Order List [10 pages in PDF], at page 4. This denial lets stand the January 29, 2003, revised opinion of the U.S. Court of Appeals (FedCir) which addressed federal preemption, shrink wrap contracts, and reverse engineering. Basically, a shrinkwrap contract barred reverse engineering of a software program. A divided Appeals Court held that the Copyright Act does not preempt state contract law that allows parties to impose a ban on reverse engineering.

Background. Harold Bowers created a template to aid in the use of computer aided design (CAD) software, such as the CADKEY tool of Cadkey, Inc. He filed a patent application for his template in 1989, and U.S. Patent No. 4,933,514 was issued in 1990.

CAD software works with menus, and menus nested within menus, which may be difficult for some to use. Bowers' patent disclosed a template, or desktop digitizing tablet, with various commands arranged in logical locations. The user points to and clicks upon the desired command.

George Ford designed Geodraft, a DOS based add-on program to operate with CAD. Geodraft allows an engineer to insert technical tolerances for features of the computer generated design. He copyrighted Geodraft. Bowers then obtained an exclusive license to Ford's Geodraft. Bowers then bundled and sold his template and Geodraft software, with a shrink wrap agreement that prohibits reverse engineering.

Baystate then developed a competing template and software, which incorporated features of Bowers' product. Under competition from Baystate, Bowers entered into a distribution agreement with Cadkey whereby Cadkey bundled Bowers' template and software for free. Bowers sought to make money off of selling software upgrades. Baystate subsequently acquired Cadkey, and repudiated the contract with Bowers.

District Court. Baystate filed a complaint in U.S. District Court (DMass) against Bowers alleging that Baystate's products do not infringe the '514 patent, that the '514 patent is invalid, and that the '514 patent is unenforceable. It sought declaratory relief. Bowers filed counterclaims for copyright infringement, patent infringement, and breach of contract, including the prohibition on reverse engineering.

The trial jury found for Bowers on all claims, and awarded him $1,948,869 for copyright infringement, $3,831,025 for breach of contract, and $232,977 for patent infringement. The District Court set aside the copyright damages as duplicative of the contract damages. The District Court rejected Baystate's claims regarding patent invalidity.

Baystate appealed. Bowers cross appealed the District Court's denial of copyright damages.

Court of Appeals: August 20, 2002, Opinion. The Appeals Court issued its original opinion on August 20, 2002. This opinion was reported at 302 F.3d 1334. It affirmed in part, and reversed in part. It affirmed the breach of contract award. It also affirmed the District Court's modification of the damages award (i.e., the copyright damages are duplicative of the contract damages). Finally, it reversed the judgment as to patent infringement, as a matter of claim construction.

The Appeals Court held that the Copyright Act, and in particular, 17 U.S.C. § 301, does not preempt or narrow  Bowers' contract claims. The Court held this as a matter of the law of the originating Court, the First Circuit. The Court further found that Bowers had presented ample evidence of reverse engineering by Baystate of the subject matter covered by the shrink wrap contract. The Court affirmed the judgment for breach of contract, and the dollar amount of the award.

The Appeals Court then affirmed the District Court's decision to set aside the jury's award of copyright damages. It wrote that "The shrink wrap license agreement prohibited, inter alia, all reverse engineering of Mr. Bowers' software, protection encompassing but more extensive than copyright protection, which prohibits only certain copying. Mr. Bowers' copyright and contract claims both rest on Baystate's copying of Mr. Bowers' software. ... In this case, the breach of contract damages arose from the same copying and included the same lost sales that form the basis for the copyright damages. The district court, therefore, did not abuse its discretion by omitting from the final damage award the duplicative copyright damages."

The Appeals Court also wrote that "Because this court affirms the district court's omission of the copyright damages, this court need not reach the merits of Mr. Bowers' copyright infringement claim."

On the patent infringement claim, the Appeals Court reversed. It wrote that "this court perceives no basis upon which a reasonable jury could find that Baystate's accused templates infringe claim 1 of the '514 patent." Hence, there was no literal infringement. Bowers did not assert infringement under the doctrine of equivalents.

Petition for Rehearing. Baystate filed a combined petition for panel rehearing and rehearing en banc.

Several groups and individuals submitted an amicus curiae brief [15 pages in PDF]. The amici included the Digital Future Coalition (DFC), Association of Research Libraries (ARL), American Library Association (ALA), American Association of Law Libraries (AALL), Computer & Communications Industry Association (CCIA), Association for Computing Machinery (ACM), and others. Mark Lemley, of UC Berkeley's Boalt Hall, is listed as counsel of record for amici.

The amicus brief states that "Common among all amici is a commitment to encouraging authorship and innovation by maintaining the free flow of ideas and information. Amici are concerned that the Panel decision could disrupt this flow."

The amicus brief argued that software reverse engineering is critical to innovation and competition in the computer industry, and that the Appeals Court's August 20, 2002, opinion wrongly suggests that copyright law imposes no restriction on shrinkwrap licenses.

Amici wrote that "For this Court to allow software vendors unilaterally and without restriction to impose terms that prohibit reverse engineering would frustrate the policy of encouraging the creation of innovative and interoperable software products." They added that "Contractual restrictions on reverse engineering can also interfere with the operation of the federal patent system."

Court of Appeals: January 29, 2003, Opinion. The Appeals Court issued an order on January 29, 2003, granting the petition for panel rehearing, denying the petition for en banc rehearing, and vacating the August 20, 2002, opinion. The Appeals Court also issued a revised opinion on January 29, 2003.

The revised opinion reached the same conclusion -- that the Copyright Act does not preempt Bowers' contract claim regarding reverse engineering. The language of the revised opinion mirrors that of the original opinion. However, the revised opinion adds a partial dissent by Judge Dyk. He had joined the majority in the original opinion, but was swayed by arguments in support of the petition for rehearing.

The majority's analysis of Copyright Act preemption of state contract law is set out in more detail here. The Court first held that on issues that are not unique to the jurisdiction of the Federal Circuit, the law of the originating circuit applies. It held that under First Circuit law, the Copyright Act does not preempt or narrow Bower's contract claim.

The Appeals Court wrote that "Courts respect freedom of contract and do not lightly set aside freely-entered agreements."

"Nevertheless, at times, federal regulation may preempt private contract." The Court elaborated that "The Copyright Act provides that ``all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright ... are governed exclusively by this title.´´ 17 U.S.C. § 301(a) (2000). The First Circuit does not interpret this language to require preemption as long as ``a state cause of action requires an extra element, beyond mere copying, preparation of derivative works, performance, distribution or display.´´ Data Gen. Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147, 1164, 32 USPQ2d 1385, 1397 (1st Cir. 1994)". (Additional citations omitted.)

The Court continued that "The First Circuit has not addressed expressly whether the Copyright Act preempts a state law contract claim that restrains copying. This court perceives, however, that Data General's rationale would lead to a judgment that the Copyright Act does not preempt the state contract action in this case. Indeed, most courts to examine this issue have found that the Copyright Act does not preempt contractual constraints on copyrighted articles."

It concluded that "case law indicates the First Circuit would find that private parties are free to contractually forego the limited ability to reverse engineer a software product under the exemptions of the Copyright Act. Of course, a party bound by such a contract may elect to efficiently breach the agreement in order to ascertain ideas in a computer program unprotected by copyright law. Under such circumstances, the breaching party must weigh the benefits of breach against the arguably de minimus damages arising from merely discerning non-protected code."

The Appeals Court then applied this law to the facts of this case. It found that "the contract unambiguously prohibits ``reverse engineering.´´" It also found that "The record amply supports the jury's finding of a breach of that agreement." Hence, it affirmed the District Court on this issue.

Dyk Dissent. Judge Timothy Dyk wrote that "I have concluded that our original decision on the preemption issue, reaffirmed in today's revision of the majority opinion, was not correct. By holding that shrinkwrap licenses that override the fair use defense are not preempted by the Copyright Act, 17 U.S.C. §§ 101 et seq., the majority has rendered a decision in conflict with the only other federal court of appeals decision that has addressed the issue -- the Fifth Circuit decision in Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988). The majority’s approach permits state law to eviscerate an important federal copyright policy reflected in the fair use defense, and the majority’s logic threatens other federal copyright policies as well."

He issued a warning: "If by printing a few words on the outside of its product a party can eliminate the fair use defense, then it can also, by the same means, restrict a purchaser from asserting the ``first sale´´ defense, embodied in 17 U.S.C. § 109(a), or any other of the protections Congress has afforded the public in the Copyright Act.  That means that, under the majority's reasoning, state law could extensively undermine the protections of the Copyright Act."

However, he added that he dissents only as to shrinkwrap contracts, and not as to negotiated contracts. He wrote that "I nonetheless agree with the majority opinion that a state can permit parties to contract away a fair use defense or to agree not to engage in uses of copyrighted material that are permitted by the copyright law, if the contract is freely negotiated."

Sen. McCain Introduces FTC Reauthorization Bill

6/11. Sen. John McCain (R-AZ) and Sen. Gordon Smith (R-OR) introduced S 1234, the "Federal Trade Commission Reauthorization Act of 2003". This bill is scheduled for markup by the Senate Commerce Committee on Thursday morning, June 19.

The bill would authorize appropriations for the Federal Trade Commission (FTC) for fiscal years 2004 through 2006. The bill also contains extensive revisions to the Federal Trade Commission Act (FTCA) to increase the authority of the FTC to deal with cross border fraud, including internet and telecommunications based scams.

Much of the bill is noncontroversial. However, several of its provisions are noteworthy, including its proposals to create exemptions from liability for information sharing, to create a new FOIA exemption, and to amend the ECPA to enable the FTC to obtain e-mail from ISPs without notice to the customers.

Exemption from Liability and FOIA Exemption. The bill would both create a limitation on liability, and a Freedom of Information Act (FOIA) exemption, for certain information shared by the private sector with the FTC. The covered entities include ISPs, domain name registrars, and financial institutions.

The covered communications include anything that a covered entity "voluntarily provides" to the FTC "that it reasonably believes is relevant to (1) a possible unfair or deceptive act or practice, as defined in section 5(a) of this Act, or (2) assets subject to recovery by the Commission, including assets located in foreign jurisdictions".

This section then provides the following immunity. The covered entity "shall not be liable to any person under any law or regulation of the United States, or any constitution, law, or regulation of any State or political subdivision of any State or any Territory or the District of Columbia, for such disclosure or for any failure to provide notice of such disclosure. The preceding sentence does not provide any exemption from liability for the underlying conduct reported." Also, the covered entity "shall be exempt from liability in accordance with the provisions of section 5318(g)(3) of title 31".

This section also provides the following FOIA exemption. "Material submitted pursuant to this section with a request for confidential treatment shall be exempt from disclosure under section 552 of title 5, United States Code."

Specifically, the entities covered by this section include "A courier service, a commercial mail receiving agency, an industry membership organization, a payment system provider, a consumer reporting agency, a domain name registrar and registry, a provider of remote computing services or electronic communication services, to the limited extent such a provider is disclosing consumer complaints received by it from a customer or subscriber, or information reflecting such complaints; and ... a bank or thrift institution, a commercial bank or trust company, an investment company, a credit card issuer, an operator of a credit card system, and an issuer, redeemer, or cashier of travelers' checks, checks, money orders, or similar instruments."

ECPA Amendment. The bill would also amend the Electronic Communications Privacy Act (ECPA) to allow the FTC to obtain e-mail communications from service providers, without notice to the customer.

Specifically, the bill provides that "When section 2703(b)(1)(B) of title 18 would otherwise require notice, notwithstanding such requirements, the Commission may obtain, through compulsory process described in subsection (a)(1) or through judicial subpoena,

(A) from a provider of remote computing services, access to or copies of the contents of a wire or electronic communication ... or (B) from a provider of electronic communications services, access to or copies of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than 180 days, ...

without prior notice to the customer or subscriber, upon an ex parte showing to an appropriate United States district court by a Commission official that there is reason to believe that notification of the existence of the process may cause an adverse result described in subsection (a)(2). Upon such a showing, the presiding judge or magistrate judge shall issue an exparte order granting a delay of notice for a period not to exceed 90 days. A court may grant extensions of the period of delay of notice of up to 90 days, upon application by the Commission and a showing that the requirements for delayed notice under subsection (b)(2) continue to apply."

Verizon, which recently fought an unsuccessful battle to keep the RIAA from obtaining from it information about subscribers engaged in copyright infringement, opposes this change to the ECPA. Sarah Deutsche of Verizon testified at a hearing of the Senate Commerce Committee last week that the bill "would allow the FTC to obtain, using its own administrative subpoena, the text of email messages (or ``stored communications´´) without prior notice to the subscriber or customer, as currently required by Section 2703(b)(1)(B). This provision is inconsistent with the preceding provision in ECPA (Section 2703(b)(1)((A)), which does not permit criminal law enforcement agencies (or any other ``governmental entity´´) to obtain this same information without notice to the customer in the absence of a judicially-ordered search warrant. There is no reason why the FTC should operate under different rules than that required for other law enforcement agencies." (Parentheses in original.) See, prepared testimony.

More News

6/16. The Federal Communications Commission (FCC) released its annual report [18 pages in PDF] to the Congress, as required by the Open-Market Reorganization for the Betterment of International Telecommunications Act (ORBIT Act), on progress in achieving a competitive global marketplace for satellite communication services.

6/16. The Federal Communications Commission (FCC) released an order [8 pages in PDF] granting Sprint Spectrum a limited waiver and extension of the Enhanced 911 Phase II deadline.

6/16. After releasing several non tech related opinions, and an order list, the Supreme Court announced that "The Court will take a recess from today until Monday, June 23, 2003." See, Order List [10 pages in PDF], at page 4.

Sen. Schumer Introduces Spam Bill

6/11. Sen. Charles Schumer (D-NY) introduced S 1231, the "Stop Pornography and Abusive Marketing Act", or SPAM Act. See also, Sen. Schumer's summary of the bill [PDF].

The bill has been referred to the Senate Commerce Committee, of which Sen. Schumer is not a member. The Committee is scheduled to hold a mark up session on Thursday, June 19. The agenda include a spam bill sponsored by  Sen. Conrad Burns (R-MT), Sen. Ron Wyden (D-OR), and others -- S 877, the "Controlling the Assault of Non-Solicited Pormography and Marketing Act of 2003", or "CAN-SPAM Act". Senators Burns and Wyden are members of the Committee, and have been working on spam legislation for years. The agenda does not reference Sen. Schumer's bill.

Sen. Charles SchumerSen. Schumer (at right) stated in a release that "The avalanche of pormography being sent to kids by spammers makes checking email on par with watching an X-rated movie. Parents need to be able to keep offensive material out of the family room and I'm working with the Christian Coalition to do just that".

The bill addresses "unsolicited commercial e-mail" or "UCE", which it defines as a "commercial electronic mail message that is sent to a recipient -- (i) without prior affirmative consent or implied consent from the recipient; or (ii) to a recipient who, subsequent to the establishment of affirmative or implied consent under clause (i), has expressed, ... a desire not to receive commercial electronic mail messages from the sender."

The bill would create a national no spam registry to be maintained by the Federal Trade Commission (FTC). The bill provides that "it shall be unlawful for a person to initiate UCE to a registered electronic mail address". The FTC would have authority to promulgate implementing regulations, and to initiate civil enforcement proceedings.

The bill provides that the FTC "may impose a civil penalty not to exceed $5,000 for each violation". It specifies that "each day of violation shall constitute a separate offense." The bill also provides the FTC "may impose a civil penalty not to exceed $100,000 for each unauthorized use of the Registry".

The bill also requires certain UCE to be labeled. It states that "it shall be unlawful for any person to initiate the transmission of any UCE to a protected computer unless the message provides clear and conspicuous identification that the message is an advertisement or solicitation, by providing, as the first characters in the subject line, `ADV:´."

However, the bill also provides an exception for e-mail sent by members of self-regulatory organizations that have been approved by the FTC.

The bill provides that "It shall be unlawful for a person to initiate the transmission of commercial electronic mail or UCE in violation of Internet Service Provider policies with respect to electronic mail, account registration and use, or other terms of service."

The bill also prohibits false information, including in headers or subject lines. It states that "It shall be unlawful for a sender to initiate the transmission of commercial electronic mail or UCE to a protected computer that contains false, misleading, or deceptive information in the subject line, header or router information, or the body of the message, including the information regarding unsubscribe option ..."

The bill also requires a return address and opt out opportunity. "All commercial electronic mail and UCE shall contain ... A functioning return electronic mail address or other Internet-based mechanism, clearly and conspicuously displayed, that -- (i) a recipient may use to submit a reply electronic mail message requesting not to receive any future UCE from that sender at the electronic mail address where the message was received; and (ii) remains capable of receiving such messages or communications for no less than 30 days after the transmission of the original message." The bill also provides that all commercial electronic mail and UCE must contain "Clear and conspicuous notice ... of the opportunity to decline to receive further commercial electronic mail and UCE from the sender." And finally, the bill provides that "It shall be unlawful for a sender to initiate transmission of commercial electronic mail or UCE to a recipient after that recipient has exercised the unsubscribe option this section."

The bill also provides that "It shall be unlawful for any person to initiate the transmission of commercial electronic mail or UCE without identifying the valid, physical address of the sender in a clear and conspicuous manner."

The bill also bans the assembling of e-mail lists through automated address harvesting.

The bill gives enforcement authority to a wide range of governmental entities, including the Federal Trade Commission (FTC), and states. It also creates a private cause of action for individuals, but not as a class action.

The Schumer bill is broader than the Burns/Wyden bill. The Burns/Wyden spam bill would create civil bans on sending unsolicited commercial e-mail (UCE) with false header information, or with intentionally false or misleading content. It would also require UCE senders to include a return e-mail address, and ban sending further UCE to persons who have objected to receiving more UCE. It would also ban the practice of sending UCE to lists of addresses that have been harvested from websites by automated means.

The Burns/Wyden bill would give enforcement authority to the Federal Trade Commission (FTC), states, and internet access providers, but not individuals. The bill would preempt state UCE laws, with exceptions.

Tuesday, June 17

The House will meet at 10:30 AM for morning hour and 12:00 PM for legislative business. It will consider several non tech related items. See, Republican Whip Notice.

9:15 AM. The Federal Trade Commission (FTC) and Organisation for Economic Cooperation and Development (OECD) officials will host a briefing to announce new cross border fraud guidelines. The speakers will include FTC Chairman Timothy Muris, FTC Commissioner Mozzelle Thompson, Tony Sims (UK), and Sitesh Bhojani. See, notice. Location: Room 432, FTC, 600 Pennsylvania Ave., NW

10:00 AM. The Senate Finance Committee will hold a hearing titled "The Implementation of U.S. Bilateral Free Trade Agreements With Singapore and Chile". The witnesses will include Peter Allgeier (Deputy U.S. Trade Representative), Norman Sorensen (Coalition of Service Industries), James Jarrett (Intel, on behalf of Business Software Alliance and High-Tech Trade Coalition), Jeff Shafer (Citigroup), Sandra Polaski (Carnegie Endowment for International Peace), Larry Leibenow (on behalf of U.S. Chamber of Commerce), Jon Caspers (on behalf of National Pork Producers Council), Keith Schott (Bar Four F Ranch), David Johnson (Warner Music Group), and Paul Joffe (National Wildlife Federation). See, notice [PDF]. Location: Room 215, Dirksen Building.

RESCHEDULED FOR JUNE 24. 12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. The speaker will be Kyle Dixon, Deputy Bureau Chief of the Federal Communications Commission's (FCC) Media Bureau, and Special Counsel to the Chairman for Broadband. RSVP to Wendy Parish at Location: National Cable & Telecommunications Association (NCTA), 1724 Massachusetts Ave., NW, 2nd Floor Conference Room.

CANCELLED. 12:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch on "current issues". RSVP to moconnell Location: NAB, 1771 N Street, NW.

1:00 PM. The Information Technology Association of America (ITAA) and Brainbench will hold a press conference to announce an "ITAA Information Security Awareness Certification Program", and to release the results of a survey on information security awareness. Rep. Sherwood Boehlert (R-NY), the Chairman of the House Science Committee, will also speak. Location: Room 2318, Rayburn Building.

2:00 PM. The Senate Judiciary Committee will hold a hearing titled "The Dark Side of a Bright Idea: Could Personal and National Security Risks Compromise the Potential of Peer to Peer File Sharing Networks". The witnesses will include Rep. Tom Davis (R-VA), Sen. Dianne Feinstein (D-CA), Nathaniel Good (Graduate Student, UC Berkeley), Aaron Krekelberg (Lead Web Developer, U Minnesota), Randy Saaf (MediaDefender), Alan Morris (Sharman Networks), and Chris Murray (Consumers Union). See, notice. Press contact: Margarita Tapia at 202 224-5225. Location: Room 226, Dirksen Building.

4:30 PM. The House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property will hold a hearing on HR 2344, the "Intellectual Property Protection Restoration Act of 2003", a bill to address state sovereign immunity from liability for infringement of intellectual property rights. The hearing will be webcast. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding its slamming rules. Slamming is the unauthorized changing of subscriber's selection of a provider of telephone exchange service or telephone toll service. The FCC adopted this NPRM on February 28, 2003, and released it on March 17. See, Third Order on Reconsideration and Second Further Notice of Proposed Rulemaking [63 pages in PDF]. This is FCC Docket No. 94-129. See also, FCC release [PDF]. For more information, contact Kelli Farmer at 202 418-7057.

Wednesday, June 18

The House will meet at 10:00 AM legislative business. It will consider several non tech related items. See, Republican Whip Notice.

1:30 PM. Secretary of Homeland Security Tom Ridge will address the National Federation of Independent Business. Location: St. Regis Hotel, 923 16th Street, NW.

2:30 PM. The Senate Judiciary Committee's Antitrust, Competition Policy and Consumer Rights Subcommittee will hold a hearing on the proposed NewsCorp DirecTV transaction, focusing on global distribution. See, notice. Press contact: Margarita Tapia at 202 224-5225. Location: Room 226, Dirksen Building.

Scheduled completion of voting by the Media Security and Reliability Council's (MSRC) Advisory Committe on the MSRC's Best Practices Recommendations [5 pages in MS Word] to ensure effective delivery of emergency information to the public during terrorist attacks, natural disasters, and other emergencies. The MSRC provides recommendations to the Federal Communications Commission (FCC) and industry. See, story titled "Media Security and Reliability Council Considers Recommendations" in TLJ Daily E-Mail Alert No. 669, May 29, 2003.

The Federal Trade Commission (FTC) will host a workshop titled "Information Flows: The Costs and Benefits to Consumers and Businesses of the Collection and Use of Consumer Information". It will address the issue of the costs and benefits to consumers and businesses of consumer information collection and use. It will explore how consumer information is collected and used by businesses to facilitate commercial transactions, as well as how it can be used to fight fraud. See, agenda. The FTC states that "preregistration will be required for the press". Location: FTC Conference Center, 601 New Jersey Ave., NW.

Thursday, June 19

The House will meet at 10:00 AM legislative business. It will consider several non tech related items. See, Republican Whip Notice.

9:00 AM - 5:00 PM. The Department of Defense's (DOD) Technology and Privacy Advisory Committee (TAPAC) will hold a public meeting. The TAPAC is a Total Information Awareness Project oversight board. The notice states that "The purpose of the meeting is for presentations of interest and discussion concerning the legal and policy considerations implicated by the application of advanced information technologies to counter-terrorism and counter-intelligence missions." For more information, contact Lisa Davis, TAPAC Executive Driector, at 703 695-0903. See, notice in the Federal Register, June 11, 2003, Vol. 68, No. 112, at Page 34909. Location: Hyatt Arlington, 1325 Wilson Blvd., Arlington, VA.

9:30 AM. The Senate Commerce Committee will meet in executive session to mark 14 bills and consider several pending nominations. Location: Room 253, Russell Building.

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. See, notice. Press contact: Margarita Tapia at 202 224-5225. Location: Room 216, Hart Building.

10:00 PM. The Senate Banking Committee will hold a hearing titled "The Growing Problem of Identity Theft and Its Relationship to the Fair Credit Reporting Act". See, notice. Location: Room 538, Dirksen Building.

12:15 - 2:00 PM. The Forum on Technology and Innovation will host a panel discussion on intellectual property protections and their impact on innovation. The speakers will be Bruce Mehlman, Assistant Secretary of Commerce for Technology Policy, and Gigi Sohn, President of Public Knowledge. See, notice and registration page. Register by Tuesday, June 17 at 5:00 PM. A box lunch will be served. Location: Room 106, Dirksen Building.

Deadline to submit comments to the Copyright Office (CO) in response to its notice in the Federal Register "requesting comment on proposed regulations that set rates and terms for the use of sound recordings in eligible nonsubscription transmissions and new subscription services, other than transmissions made by certain noncommercial entities, together with related ephemeral recordings. The rates and terms are for the 2003 and 2004 statutory licensing period, except in the case of new subscription services in which case the license period runs from 1998 through 2004." This notice also states that "The agreement published herein supersedes the agreement published in the Federal Register on May 1, 2003, and parties should only comment on the proposed rates and terms set forth in this notice." See, Federal Register, May 20, 2003, Vol. 68, No. 97, at Pages 27506 - 27513. See also, superseded notice in the Federal Register, May 1, 2003, Vol. 68, No. 84, at Pages 23241 - 23249. For more information, contact David Carson (CO General Counsel) or Tanya Sandros (Senior Attorney, CARP) at 202 707-8380.

Tuesday, June 24

8:45 AM - 2:35 PM. The American Antitrust Institute will host a Fourth Annual Conference titled "Antitrust and Access". See, agenda at right. The price to attend is $400. Location: National Press Club.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. The speaker will be Kyle Dixon, Deputy Bureau Chief of the Federal Communications Commission's (FCC) Media Bureau, and Special Counsel to the Chairman for Broadband. RSVP to Wendy Parish at Location: National Cable & Telecommunications Association (NCTA), 1724 Massachusetts Ave., NW, 2nd Floor Conference Room.

The 21st Century Intellectual Property Coalition will meet. For information, contact Dana Colarulli at

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