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September 10, 2003, 9:00 AM ET, Alert No. 736.
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Senate Judiciary Committee Hears Testimony on Copyright Infringement on P2P Networks

9/9. The Senate Judiciary Committee held a hearing titled "Pormography, Technology, and Process: Problems and Solutions on Peer-to-Peer Networks". The Committee heard testimony on peer to peer (P2P) infringement of copyrighted works, recent court opinions regarding vicarious and contributory liability for P2P related infringement, and the dispute over the use of Digital Millennium Copyright Act (DMCA) subpoenas to obtain from internet service providers (ISPs), including Verizon, the identities of their subscribers who may be copyright infringers.

Marybeth Peters, the Register of Copyrights, wrote in her prepared testimony that "The law is unambiguous. Using peer-to-peer networks to copy or distribute copyrighted works without permission is infringement and copyright owners have every right to invoke the power of the courts to combat such activity. Every court that has addressed the issue has agreed that this activity is infringement."

However, she stated that the law is in flux on the issue of vicarious and contributory infringement. She said that "Earlier this year, the Central District of California surprised many when it held that Grokster and Kazaa are not liable as secondary copyright infringers. This decision departed from long-established precedent."

See, order and opinion granting Grokster's and Streamcast's motions for summary judgment in MGM v. Grokster, (C.D. Cal, April 25, 2003), and story titled "District Court Holds No Contributory or Vicarious Infringement by Grokster or Streamcast P2P Networks" in TLJ Daily E-Mail Alert No. 650, April 28, 2003.

Peters continued that "Not only was the Kazaa decision wrong on the law, it has serious policy consequences as well. The historical doctrines of secondary liability have served copyright owners, courts, and the public well -- they provide copyright owners with the ability to obtain relief against the root cause of a series of infringements without costly, inefficient, and burdensome suits against numerous individuals. Without a viable doctrine of contributory liability, this option is severely curtailed and may present the copyright owner with the unenviable choice of either accepting unremedied infringements or filing numerous suits against the individual direct infringers."

"If today's hearing leaves the Committee with the impression that the law is in flux with regard to the liability of proprietors of peer-to-peer technology, that is because it is. On one side is the Napster decision of the Ninth Circuit and the Aimster decision of the Seventh Circuit, both finding liability, albeit through different paths of analysis. On the other side is the Kazaa decision of the Central District of California, finding no liability for Kazaa and Grokster. Hanging over all of these cases is the Supreme Court’s decision in Sony", said Peters. See, Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).

Peters elaborated that "Unless and until the Kazaa decision is overruled, copyright owners are faced with the unenviable choice to which I referred earlier. They can either resign themselves to unremedied infringements on a previously unimaginable scale, or they can file infringement actions against individual peer-to-peer users. The recording industry has chosen the latter route."

In August, both the National Music Publishers Association (NMPA), representing Jerry Liebler and other music publishers and songwriters, and the Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA), representing MGM and other movie and record companies, filed appeal briefs with the U.S. Court of Appeals (9thCir) in Liebler v. Grokster and MGM v. Grokster. See, TLJ story titled "Music Publishers File Appeal Brief in P2P Infringement Case", August 18, 2003.

She also addressed the DMCA subpoena issue. "The ability of copyright owners to utilize subsection 512(h) is a critical part of that partnership as is copyright owners' ability to impose liability against those who infringe copyright. It is regrettable that at least one major ISP now rejects the compromise and the balance of the DMCA." She also said that "As the United States District Court for the District of Columbia recently held, the plain language of subsection 512(h) demonstrates that this interpretation is not correct. I agree with the court’s analysis. Subsection 512(h) instructs service providers to expeditiously respond to a subpoena."

The RIAA represents music companies whose copyrights are being infringed by people using P2P file sharing systems. The RIAA possesses only Internet Protocol (IP) number information on infringers. This does not reveal the identity of the infringers. However, ISPs, which provide internet access for the P2P infringers, possess information that would associate subscriber information with IP number information. That is, by obtaining the ISP's information, the RIAA, or its members, can file complaints alleging infringement against the individual infringers. The RIAA cannot sue these ISPs for infringement, because of the safe harbor provisions of the DMCA.

The RIAA has obtained numerous subpoenas from the Clerk of the Court of the U.S. District Court for the District of Columbia, pursuant to § 512(h), and served them upon many ISPs. In August of 2002, Verizon filed a complaint in the District Court challenging some of the first of these subpoenas. This matter has been thoroughly litigated in the District of Columbia, the RIAA has prevailed in the District Court, and the Appeals Court has declined to issue a stay. ISPs have been providing information in response to the subpoenas. Earlier this week, the RIAA filed its first round complaints against individuals.

Verizon and other ISPs are not pleased. In contrast to the testimony of Marybeth Peters, Bob Barr, General Counsel of Verizon, condemned the music industry's use of DMCA subpoenas to obtain the identities of Verizon subscribers. He wrote in his prepared testimony that "the answer to the copyright community's present business problems is not a radical new subpoena process, previously unknown in law, that un-tethers binding judicial process from constitutional and statutory protections that normally apply to the discovery of private data regarding electronic communications. Verizon believes that the district court was wrong in concluding that Congress authorized such a broad and promiscuous subpoena procedure in the DMCA -- but whatever the courts ultimately conclude on this issue -- the subpoena power endorsed by the district court is not an effective remedy for copyright holders and has great costs in terms of personal privacy, constitutional rights of free expression and association, and the continued growth of the Internet."

Barr continued that "As interpreted by the district court, this subpoena provision grants copyright holders or their agents the right to discover the name, address, and telephone number of any Internet user in this country without filing a lawsuit or making any substantive showing at all to a federal judge. This reading of the DMCA accords truly breathtaking powers to anyone who can claim to be or represent a copyright owner; powers that Congress has not even bestowed on law enforcement and national security personnel. It stands in marked contrast to the statutory protections that Congress has enacted in the context of video rentals, cable television viewing habits, and even the requirements for law enforcement officers to gain access confidential data associated with electronic communications."

Barr also complained that "All one need do is fill out a one-page form asserting a ``good faith´´ belief that a copyright has been infringed and one can obtain identifying information about anyone using the Internet. There is no review by a judge or a magistrate; the clerk’s office simply issues the subpoena in ministerial fashion. This identifying information can then be linked to particular material sent or received over the Internet, including e-mails, web browsing activity, chat room postings, and file-sharing activity."

Cary Sherman, President of the Recording Industry Association of America (RIAA), responded in his prepared testimony that "Verizon is reaping enormous financial benefits from the explosion in the use of P2P. It is particularly troubling to our industry that Verizon actively encourages its new subscribers to visit unauthorized P2P services -- instead of legitimate, licensed sites -- as their preferred source for music online."

"And people wonder why the copyright community is skeptical of Verizon’s claim that the real issue is privacy and not their tacit acceptance and promotion of piracy by their subscribers", said Sherman.

He added that "no one has a privacy right to engage in copyright infringement on the Internet. Despite many novel arguments to the contrary, illegally sharing or downloading copyrighted music online is not a form of free speech or civil disobedience protected by the First Amendment."

See also, stories titled "RIAA Seeks to Enforce Subpoena to Identify Anonymous Infringer" in TLJ Daily E-Mail Alert No. 499, August 27, 2002; "Verizon and Privacy Groups Oppose RIAA Subpoena" in TLJ Daily E-Mail Alert No. 501, September 4, 2002; "District Court Rules DMCA Subpoenas Available for P2P Infringers" in TLJ Daily E-Mail Alert No. 588, January 22, 2003; "Law Professor Submits Apocalyptic Declaration in RIAA v. Verizon" in TLJ Daily E-Mail Alert No. 596, February 3, 2003; "DOJ Files Brief in Support of RIAA in Verizon Subpoena Matter" in TLJ Daily E-Mail Alert No. 646, April 22, 2002; "District Court Rules That A DMCA § 512(h) Subpoena for the Identity of an P2P Infringer Does not Violate the Constitution" in TLJ Daily E-Mail Alert No. 649, April 25, 2003; "Court of Appeals Denies Stay in RIAA v. Verizon" in TLJ Daily E-Mail Alert No. 674, June 5, 2003; and "Pacific Bell Internet Services Sues RIAA Over Infringer Subpoenas" in TLJ Daily E-Mail Alert No. 709, August 1, 2003.

Senate Judiciary Committee Hears Testimony on Porm on P2P Networks

9/9. The Senate Judiciary Committee held a hearing titled "Pormography, Technology, and Process: Problems and Solutions on Peer-to-Peer Networks". In addition to copyright related issues, the Committee heard testimony on pormography on P2P networks.

Sen. Patrick Leahy (D-VT), the ranking Democrat on the Committee, wrote in his opening statement that "I believe that peer-to-peer has the potential to revolutionize the way people share all sorts of information. But as with any technology, it can be abused. Peer-to-peer networks can be used to delve into people’s private records, or illegally to share copyrighted material. Most disturbingly, peer-to-peer networks can be used to distribute child pormography, and to make all sorts of pornography available to unsuspecting children. If peer-to-peer networks are going to find a useful place in our culture, they must respond to these problems. And we certainly cannot allow those who purposefully exploit network file-sharing to the detriment of children to go unpunished."

See also, opening statement of Sen. Orrin Hatch (R-UT), the Chairman of the Committee.

Linda Koontz of the General Accounting Office (GAO) wrote in her prepared testimony that "Child pormography is easily found and downloaded from peer-to-peer networks." She added that "Juvenile users of peer-to-peer networks are at significant risk of inadvertent exposure to pormography, including child pormography. Searches on innocuous keywords likely to be used by juveniles (such as names of cartoon characters or celebrities) produced a high proportion of pormographic images ..."

John Malcolm, the head of the Department of Justice's (DOJ) Computer Crimes and Intellectual Property Section (CCIPS) wrote in his prepared testimony that "child pormographers continue to find ways to employ the ever-evolving technology of the Internet and computers to commit their deviant crimes. In turn, law enforcement must respond to technological advances, as well, eradicating child pormographers from every forum in which they lurk, be that in cyberspace or otherwise."

He addressed how law enforcement entities can identify criminal activity on P2P networks. He wrote that "using P2P software, a law enforcement agent can identify a file containing child pormography, and while downloading that file, identify the IP address of the computer sending it. The agent can then determine which Internet service provider owns that IP address, and serve legal process on that Internet service provider to obtain the name and address of the P2P user associated with that IP address on the date and time that the file was shared. Moreover, seizure of that user’s computer will often reveal the IP addresses of other computers with which contraband files were shared."

However, he also cautioned that new technologies may evade this process. "Notably, however, new generations of P2P file-sharing protocols and tools are promising their users even more anonymity, such as by hiding IP addresses behind proxy servers or even refusing to recognize preliminary inquiries from computers known to be associated with law enforcement. Some peer-to-peer tools are even touting their ability to shield users from the view of victims or law enforcement. Should this technology come to fruition, it will present significant challenges to law enforcement and will undoubtedly make P2P an even more popular vehicle for trading child pormography."

House Subcommittee Holds Hearing on Contact Lens Bill

9/9. The House Commerce Committee's Subcommittee on Trade and Consumer Protection held a hearing on HR 2221, the "Fairness to Contact Lens Consumers Act", sponsored by Rep. Richard Burr (R-NC), Rep. Billy Tauzin (R-LA), Rep. James Sensenbrenner (R-WI), and Rep. Jim Matheson (D-UT).

The bill does not reference the internet or electronic commerce. However, if passed, it would remove some barriers to the sale of replacement contact lenses over the internet. For example, it would require that ophthalmologists and optometrists release contact lens prescriptions to their patients and verify contact lens prescriptions for internet sellers and other third parties. See also, story titled "Bill Would Facilitate Internet Sale of Replacement Contact Lenses" in TLJ Daily E-Mail Alert No. 669, May 29, 2003.

Howard Beales, Director of the Federal Trade Commission's (FTC) Bureau of Consumer Protection, stated in his prepared testimony that the FTC "supports the proposed legislation's goal of promoting greater competition among contact lens sellers and thereby enhancing consumer choice."

Jonathan Coon, the CEO of 1-800 Contacts stated in his prepared testimony that "contact lenses are mass produced and disposable. It is an industry that has changed dramatically over the last 25 years. The fastest growing segment of the market are lenses that are thrown away every day -- after a single use. Toll free numbers, overnight delivery, and the Internet have made it possible for consumers to order replacement lenses quickly and have the exact same lenses delivered to their door that they used to have to drive to purchase and pick up from their eye doctor." He said that HR 2221 is "an important first step".

See also, prepared testimony of other witnesses: Pat Cummings (American Optometric Association), Peggy Venable (Citizens for a Sound Economy), Robert Hubbard (Antitrust Bureau, Office of the New York Attorney General), Ami Gadhia (Consumers Union), and Maria Martinez.

Senate Commerce Committee Holds Hearing on Transportation Security

9/9. The Senate Commerce Committee held an oversight hearing on transportation security. Admiral James Loy, Administrator of the Transportation Security Administration (TSA) at the Department of Homeland Security (DHS) discussed the Computer Assisted Passenger Prescreening System in his prepared prepared testimony.

Prior to September 11, 2001, the airlines conducted passenger screening, and administered the CAPPS I, subject to federal guidelines. In late 2001, the Congress passed the Aviation and Transportation Security Act, which created the TSA as a unit of the Department of Transportation (DOT). This Act gave the TSA responsibility for airport passenger screening. In late 2002, the Congress passed the Homeland Security Act, which created the DHS, and transferred the TSA from the DOT to the new DHS. The new CAPPS II -- the next generation passenger screening system -- will be a government (TSA) run system that replaces CAPPS I.

James LoyLoy (at right) stated that "our most visible mission since September 11th has been to keep terrorists off commercial airliners. Our plan to move forward with development, testing, and implementation of the second-generation Computer Assisted Passenger Prescreening System (CAPPS II) is critical to a robust aviation security system. As part of its ongoing dialogue with the public on CAPPS II and related issues, DHS has issued a revised Interim Final Privacy Notice, which provides information regarding CAPPS II, including the type of data that the system will review, and how the data will be used. As always, public comment on the Notice is requested. The closing date for submission of comments is September 30th."

See, second Privacy Act notice, Federal Register, August 1, 2003, Vol. 68, No. 148, at Pages 45265 - 45269.

Privacy advocates on both the left and right have voiced concerns about the CAPPS II.

Loy responded that "CAPPS II will be a threat-based system under the direct control of the government and will represent a major improvement over the decentralized, airline-controlled system currently in place. Mr. Chairman, I pledge to continue to work with this Committee to assure you and the Members of this Committee that our development of CAPPS II will enhance security without compromising important privacy rights."

See also, statement by Sen. John McCain (R-AZ), the Chairman of the Committee.

People and Appointments

Roger Ferguson9/9. President Bush announced his intent to nominate Roger Ferguson (at right) to be Vice Chairman of the Board of Governors of the Federal Reserve System for a four year term, and to nominate Ben Bernanke to be a Member of the Board of Governors of the Federal Reserve System for a fourteen year term. Both are currently members. See, White House release.

9/9. Tom Feddo was named an oversight and investigations counsel for the House Commerce Committee. Feddo was previously an associate with the law firm of Pillsbury Winthrop, focusing on intellectual property litigation. Before attending law school, Feddo was an officer in the U.S. Navy, with experience as a submarine officer, and in terrorism and counterintelligence matters.

9/9. Barbara Comstock, the Director of Public Affairs at the Department of Justice (DOJ), will step down later this month. See, DOJ release.

9/9. Scott Doyle joined the Northern Virginia office of the law firm of Morrison & Foerster as a partner in the firm's Patent Group. He was previously SVP and Chief Intellectual Property Officer of Liberty Broadband Interactive Television and OpenTV, affiliates of Liberty Media. Prior to attending law school, Doyle obtained a B.S. and M.S. in electrical engineering. See, MoFo release.

More News

9/9. The Federal Communications Commission (FCC) announced that it has removed one item from its previously announced agenda for its September 10 meeting. The FCC had previously stated that it would consider a NPRM regarding the conditions under which 47 U.S.C. § 251(c) and § 271 should be deemed to be "fully implemented" under Section 10(d) of the Communications Act. See, FCC release [PDF].

9/9. The Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) announced that it will sponsor a tutorial titled "Technical Challenges Associated with the Evolution to VoIP" on Monday, September 22, 2003 from 1:00 - 3:00 PM. The speakers will be Susan Spradley (President of Wireline Networks) and Alan Stoddard (General Manager, Carrier Next Generation Networks of Nortel Networks). The event will be in the FCC's Commission Meeting Room (TW-C305), at 445th 12th Street SW. It will be open to the public, and webcast. See, FCC release [PDF].

9/9. The House Government Reform Committee's Subcommittee on Technology, Information Policy, Intergovernmental Relations and the Census held a hearing titled "Advancements in Smart Card and Biometric Technology".  Benjamin Wu, Deputy Under Secretary for Technology at the Department of Commerce, wrote in his prepared testimony that "Smart cards provide opportunities for improving security of our critical infrastructure, both from a physical and logical perspective. Because they are capable of performing cryptographic functions, they can perform important security services such as securely storing digital signatures, holding public key credentials, and authenticating a claimed identity based on biometric data. As such, smart cards are a crucial element in a range of current and expected critical applications and programs such as Public Key Infrastructure, Transportation Worker Identity Card, Building Entry, DoD’s Common Access Card (CAC), Electronic Travel Documents, and many others." See also, prepared testimony [22 pages in PDF] of Joel Willemssen, Managing Director for IT Management at the General Accounting Office (GAO), who testified regarding smart cards, and prepared testimony [27 pages in PDF] of Keith Rhodes, Chief Technologist at the GAO, who testified regarding biometrics.

FCC Rules that Howard Stern Has a Bona Fide News Interview Program

9/9. The Federal Communications Commission's (FCC) Media Bureau issued a Declaratory Ruling [PDF] that Infinity Broadcasting Operations' Howard Stern Show, famous for its on air garbage, constitutes a "bona fide news interview program", and is therefore exempt from the equal time requirements of 47 U.S.C. § 315.

While pundits and critics may condemn a finding that Howard Stern's program is "bona fide news", the FCC has a long history of granting "bona fide news" exemptions to the speakers of the vast wasteland of broadcast media. Moreover, under the Supreme Court's opinions, outside of the context of the Communications Act and the Federal Election Commission Act (FECA), mandatory equal time laws violate the First Amendment. In addition, the Court has not squarely ruled on the issue of whether the government may grant preferences for bona fide news, or an institutional press. Although, several opinions suggest that granting such privileges does violate the First Amendment.

Section 315 provides, in part, that "If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed under this subsection upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any -- (1) bona fide newscast, (2) bona fide news interview, (3) bona fide news documentary ... shall not be deemed to be use of a broadcasting station within the meaning of this subsection."

The FCC's Declaratory Ruling states that "Initially, the Commission found only programs with traditional question and answer formats such as ``Meet the Press´´ and ``Face the Nation,´´ which were noted by Congress as examples of the kind of news interview programs in existence at the time the news exemptions were adopted, qualified as news interview programs. In 1984, in determining that bona fide news interview segments on the ``Donahue´´ show were exempt ..." The Declaratory Ruling goes on to state that "Since the Donahue decision, other news interview programs or segments thereof with unique and innovative format elements, such as the ``Sally Jessy Raphael Show´´, ``Jerry Springer,´´ and ``Politically Incorrect,´´ have qualified for the news interview exemption under Section 315(a)." (Footnotes omitted.)

The FCC provided more elaboration in its Staff Ruling [MS Word] in the proceeding titled "In re Request of ABC, Inc. For Declaratory Ruling", which is also known as the Bill Maher matter. (See, DA 99-2768, adopted December 9, 1999.) The FCC wrote that it is willing "to recognize varying less conventional interview formats as being consistent with Congress' overriding intent to increase news coverage of the political campaign process".

The FCC's ruling consists of interpretation of the statutory language. However, the underlying premise may be that mandating equal time inhibits broadcasters from conducting any political interviews, or providing any political news, lest they be compelled by the FCC to give equal time to Larry Flint type candidates and Emily Litella type opposing viewpoints. Alternatively, there may be concerns regarding the First Amendment.

The Supreme Court generally does not permit government compelled speech, such as equal time requirements. For example, in Miami Herald Publishing v. Tornillo, 418 U.S. 241 (1974), the Supreme Court overturned a Florida statute that required newspapers to give free space to candidates who had been criticized by the newspaper. The Court wrote that "A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials -- whether fair or unfair -- constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time."

However, the Court long ago held that the FCC may regulate speech within its domain, because of the notion of scarcity of spectrum. See, for example, Red Lion v. FCC, 395 U.S. 367 (1969).

Also, the Supreme Court has refrained from holding that the government may recognize or grant any privileges to any institutional press, or the news media (outside of the context of FCC and FEC regulation). For example, former Chief Justice Burger wrote in his concurring opinion in FNB v. Belloti, 435 U.S. 765 (1978), that "The very task of including some entities within the ``institutional press´´ while excluding others, whether undertaken by legislature, court, or administrative agency, is reminiscent of the abhorred licensing system of Tudor and Stuart England -- a system the First Amendment was intended to ban from this country."

Similarly, Justice Felix Frankfurter wrote in Pennekamp v. State of Florida, 328 U.S. 331 (1946), that "the purpose of the Constitution was not to erect the press into a privileged institution but to protect all persons in their right to print what they will as well as to utter it. '... the liberty of the press is no greater and no less than the liberty of every subject of the Queen,' Regina v. Gray, (1900) 2 Q.B. 36, 40, and, in the United States, it is no greater than the liberty of every citizen of the Republic."

Federal election laws mirror federal communications laws. The FECA, which provides for the broad regulation of political contributions and expenditures, whether monetary or in kind, provides, at 2 U.S.C. § 431(9)(B)(i), that the term "expenditure" does not include "any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate." Also, regulations promulgated by the FEC address "bona fide news".

However, the FEC has not always demonstrated as much forbearance as the FCC. For example, in In Re Compuserve, FEC Advisory Opinion No. 96-2, April 25, 1996, the FEC denied Compuserve's request that it be allowed to provide a venue for the publication of policy statements, of all federal candidates, on a non-partisan basis.

Wednesday, September 10

The House will meet at 10:00 AM for legislative business. The House may take up HR 2622, the "Fair and Accurate Credit Transactions Act of 2003". See, Republican Whip Notice.

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. See, agenda [3 pages in PDF]. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

10:00 AM. The House Government Reform Committee's Subcommittee on Technology, Information Policy, Intergovernmental Relations and the Census will hold a hearing titled "Worm and Virus Defense: How Can We Protect the Nation's Computers from These Serious Threats?" Location: Room 2154, Rayburn Building.

10:00 AM. The Internal Revenue Service (IRS) will hold a hearing on proposed regulations relating to the definition of toll telephone service for purposes of the communications excise tax. See, notice in the Federal Register, June 17, 2003, Vol. 68, No. 116, at Pages 35828 - 35829. Location: Room 4718, Internal Revenue Building, 1111 Constitution Avenue, NW.

10:30 AM - 12:00 NOON. The U.S. International Telecommunication Advisory Committee (ITAC) will meet to discuss the matters related to the International Telecommunications Union's (ITU) World Summit on the Information Society (WSIS), which will take place on December 10-12, 2003, in Geneva, Switzerland. See, notice in the Federal Register, August 18, 2003, Vol. 68, No. 159, at Pages 49536 - 49537. Location: Historic National Academy of Science Building, 2100 C St., NW.

12:00 NOON. Deadline to submit written comments to the U.S. Trade Representative's (USTR) interagency Trade Policy Staff Committee (TPSC) to assist it in preparing its annual report to the Congress on the People's Republic of China's compliance with the commitments that it made in connection with its accession to the World Trade Organization (WTO). See, notice in the Federal Register, July 21, 2003, Vol. 68, No. 139, at Pages 43247 - 43248.

4:00 PM. Josef Drexl (Max Planck Institute for Intellectual Property, Competition, and Tax Law) will give a lecture titled "The Role of International Private Law in Establishing a Competition-Oriented International Copyright System". For more information, contact Robert Brauneis at 202 994-6138 or Location: George Washington University Law School, Faculty Conference Center, 5th Floor, Burns Building, 716 20th Street, NW.

Thursday, September 11

The House will meet at 10:00 AM for legislative business. The House may take up HR 2622, the "Fair and Accurate Credit Transactions Act of 2003". See, Republican Whip Notice.

9:00 AM - 4:30 PM. The U.S. Patent and Trademark Office (USPTO) will host of meeting of its Nanotechnology Customer Partnership initiative. RSVP to Jill Warden at 703 308-4037 or See, notice. Location: Patent Theater, Crystal Park 2, 2nd Floor, 2121 Crystal Drive, Arlington, VA.

9:30 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing on HR 2898, the "E-911 Implementation Act of 2003". See, notice. The event will be webcast. Location: Room 2322, Rayburn Building.

Deadline to submit comments to the Federal Communications Commission's (FCC) Notice of Inquiry (NOI) that solicits "data and information on the status of competition in the market for the delivery of video programming for our tenth annual report".

Friday, September 12

The House will not meet. See, Republican Whip Notice.

Deadline for claimants to royalty fees collected for calendar year 2001 under the cable statutory license to submit comments and notices of intention to participate to the Copyright Office regarding whether a Phase I or Phase II controversy exists as to the distribution of those fees. See, notice in the Federal Register, August 13, 2003, Vol. 68, No. 156, at Pages 48415 - 48417.

The U.S. Patent and Trademark Office's (USPTO) final rule amending its rules to separate the provisions for patent matters and trademark matters with respect to filing correspondence, requesting copies of documents, payment of fees, and general information takes effect. The USPTO is "amending its Rules of Practice in Patent Cases to delete all references to trademark matters, and amending its Rules of Practice in Trademark Cases to add new rules setting forth provisions for corresponding with and paying fees to the Office in trademark cases, and for requesting copies of trademark documents." See, notice in the Federal Register, August 13, 2003, Vol. 68, No. 156, at Pages 48286 - 48293.

Deadline for Members of Congress to sign a letter to Federal Communications Commission (FCC) Chairman Michael Powell regarding network neutrality. The letter is being circulated by Rep. Rick Boucher (D-VA) and Rep. Ron Kind (D-WI).

Monday, September 15

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Ranger Cell v. FCC, No. 02-1155. Judges Edwards, Randolph and Garland will preside. Location: 333 Constitution Ave. NW.

10:00 AM - 12:00 NOON. The Executive Office of the President's (EOP) Office of Science and Technology Policy's (OSTP) National Science & Technology Council's (NSTC) Committee on Science's Education and Workforce Development Subcommittee will hold a meeting. For more information, contact James Griffin at 202 456-6129 or Location: White House Conference Center, Lincoln Room, 726 Jackson Place NW.

10:30 AM - 3:00 PM. The American Enterprise Institute (AEI) will host a program titled "Jumpstarting a Brighter Broadband Future: Driving Investment and the New Telecom Frontier". At 10:30 AM Federal Communications Commission (FCC) Commissioner Kevin Martin will speak. At 11:15 AM Bruce Mehlman (Technology Administration) and James Glassman (AEI) will speak. At 12:30 PM David Dorman (Ch/CEO of AT&T) will be the luncheon speaker. At 1:45 PM there will be a panel titled "Driving Investment in the Telecom Sector: Capital and Policy". The presenter will be Laurence Kotlikoff (Boston University). The other speakers will be Jeff Halpern (Sanford Bernstein), Blair Levin (Legg Mason), and James Glassman. See, notice. Location: AEI, 1150 17th St., NW, 12th Floor.

12:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Committee will hold an organizational meeting, and brown bag lunch. Location: 8th Floor Conference, Suite 800, Dow Lohnes & Albertson, 1200 New Hampshire Avenue, NW.

1:00 - 4:00 PM. The Federal Communications Commission's (FCC) Network Reliability and Interoperability Council (NRIC) will hold a meeting. The Council will hear updates from the Network Reliability, Interoperability and Broadband Focus Groups and review recommendations from the Physical Security Focus Group. See, FCC notice [PDF] and notice in the Federal Register, August 27, 2003, Vol. 68, No. 166, at Pages 51578 - 51579. The meeting will be webcast. Location: FCC, Commission Meeting Room, TW-C305, 445 12th Street, SW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to a Petition for Rulemaking on compliance by carriers with relevant statutory provisions on disclosure of customer information in 911 emergencies. The petition was submitted by the National Emergency Number Association (NENA), the Association of Public Safety Communications Officials International (APCO), and the National Association of State Nine One One Administrators (NASNA). See, FCC notice [3 pages in PDF]. For more information, contact Barbara Reideler or Jared Carlson at 202 418-1310.

Deadline to submit comments to the LOCAL Television Loan Guarantee Board regarding the proposed regulation to implement the LOCAL Television Loan Guarantee Program, as authorized by the Launching Our Communities' Access to Local (LOCAL) Television Act of 2000. The purpose of the Act is to facilitate access to signals of local TV stations in nonserved areas and underserved areas. The Act establishes a LOCAL Television Loan Guarantee Board to approve guarantees of up to 80% of loans totaling no more than $1.25 Billion. The regulation proposes to establish eligibility and guarantee requirements, the application and approval process, the administration of guarantees, and the process through which the Board will consider applications under the priority considerations required in the Act. See, notice in the Federal Register, August 15, 2003, Vol. 68, No. 158, at Pages 48814 - 48833. See also, Treasury release.

Tuesday, September 16

8:30 AM - 5:00 PM. The National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board will meet. This is the first day of a three day series of meetings. The agenda includes (1) a session on agencies customer service management work, (2) a session on the National Information Assurance Program extension activities, (3) a session on acceptable behavior of "Touching the Browser", (4) NIST information technology laboratory briefings, (5) an update by OMB on privacy and security issues, and (6) a briefing by the Department of Homeland Security Privacy Officer. See, notice in the Federal Register, August 27, 2003, Vol. 68, No. 166, at Pages 51559 - 51560. Location: Bethesda Hyatt Regency Hotel, 7400 Wisconsin Ave., Bethesda, MD.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Consumer Electronics Association v. FCC, No. 02-1312. This is a petition for review of the Federal Communications Commission's (FCC) order regarding conversion to digital television adopted on August 8, 2002, and released on August 9, in MM Docket No. 00-39. At issue is whether the FCC has authority, under the All Channel Receiver Act, 47 U.S.C. § 303(s), to require manufacturers to incorporate expensive digital tuner devices into new TV receivers, even though most TV purchasers not use these devices. The CEA is represented by the law firm of Squire Sanders. Judges Ginsburg, Roberts and Williams will preside. Location: 333 Constitution Ave. NW.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Executive Committee will meet.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host a Continuing Legal Education (CLE) event on the Federal Communications Commission's (FCC) and Federal Trade Commission's (FTC) new rules regarding the national "Do Not Call" registry, telemarketing by phone, and unsolicited faxes. The speakers will be Anita Wallgren (Sidley Austin), Richard Smith (Acting Chief of the Policy Division of the FCC's Consumer & Governmental Affairs Bureau), Erica McMahon (FCC's Consumer & Governmental Affairs Bureau), John Kamp (Wiley Rein & Fielding), and Karen Leonard (FTC's Bureau of Consumer Protection's Division of Marketing Practices). For more information, contact Anita Wallgren at 202 736-8468 or Location: Sidley Austin, 1501 K Street, NW.

Wednesday, September 17

8:30 AM - 5:00 PM. The National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board will meet. This is the second day of a three day series of meetings. The agenda includes (1) a session on agencies customer service management work, (2) a session on the National Information Assurance Program extension activities, (3) a session on acceptable behavior of "Touching the Browser", (4) NIST information technology laboratory briefings, (5) an update by OMB on privacy and security issues, and (6) a briefing by the Department of Homeland Security Privacy Officer. See, notice in the Federal Register, August 27, 2003, Vol. 68, No. 166, at Pages 51559 - 51560. Location: Bethesda Hyatt Regency Hotel, 7400 Wisconsin Ave., Bethesda, MD.

11:00 AM - 4:00 PM. The Cato Institute will host a symposium titled "The Supreme Court: Past and Prologue: A Look at the October 2002 and October 2003 Terms". The fourth panel, at 3:30 PM, will address the upcoming term. The speakers on that panel will be James Swanson (Cato), Michael Carvin, Walter Dellinger (O'Melveny & Myers), and Thomas Goldstein (Goldstein & Howe). The event will be webcast. See, notice and registration page. Location: Cato, 1000 Massachusetts Ave., NW.

12:00 NOON - 1:30 PM. The Intellectual Property Law Section of the D.C. Bar Association and the ABA will host a luncheon titled "The Clash Between the Right of Publicity and the First Amendment". The price is $10, or free if you bring your own lunch. Location: Finnegan Henderson, 1300 I Street, NW.

1:00 - 2:00 PM. The President's National Security Telecommunications Advisory Committee (NSTAC) will hold a closed meeting via conference call.. The agenda includes issues "regarding security matters due to diversity of ownership, control, and access to U.S. critical telecommunication and information technology infrastructures" and interdependencies of critical infrastructures. See, notice in the Federal Register, September 8, 2003, Vol. 68, No. 173, at Page 52971.

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