|FCC Releases Cognitive Radio Technology NPRM
12/30. The Federal Communications Commission (FCC)
released its Notice
of Proposed Rule Making and Order [53 pages in PDF] in its proceeding titled "In the
Matter of Facilitating Opportunities for Flexible, Efficient, and Reliable Spectrum
Use Employing Cognitive Radio Technologies". The FCC adopted, but did not release,
this item at its December 17 meeting. This is FCC 03-322 in ET Docket No. 03-108.
Comments will be due 75 days after publication of
a notice in the Federal Register; reply comments will be due within 105 days.
The FCC has not yet published this notice in the Federal Register.
The NPRM states that "cognitive radio technologies ... include, among other
things, the ability of devices to determine their location, sense spectrum use
by neighboring devices, change frequency, adjust output power, and even alter
transmission parameters and characteristics. Cognitive radio technologies open
spectrum for use in space, time, and frequency dimensions that until now have
The NPRM elaborates that "Cognitive radio technologies can be used to improve
spectrum access and efficiency of spectrum use under at least four possible
scenarios. First, a licensee can employ cognitive radio technologies internally
within its own network to increase the efficiency of use. Second, cognitive
radio technologies can facilitate secondary markets in spectrum use, implemented
by voluntary agreements between licensees and third parties."
"Third, cognitive radio technologies can facilitate automated frequency
coordination among licensees of co-primary services. Such coordination could be
done voluntarily by the licensees under more general coordination rules imposed
by Commission rules, or the Commission could require the use of an automated
coordination mechanism. Fourth, cognitive radio technologies can be used to
enable non-voluntary third party access to spectrum, for instance as an
unlicensed device operating at times or in locations where licensed spectrum is
not in use."
The FCC seeks comment "on how our rules and enforcement policies
should address possible regulatory concerns posed by authorizing spectrum access
based on a radio frequency (RF) device’s ability to reliably gather and process
real-time information about its RF environment or on the ability of device
and/or users to cooperatively negotiate for spectrum access. We propose and seek
comment on rules intended to allow a full realization of the potential of these
technologies under all our regulatory models for spectrum based services."
The order portion of this item closes ET Docket No. 00-47,
titled "In the Matter of Authorization and Use of Software Defined
Steve Largent, P/CEO of the Cellular Telecommunications
& Internet Association (CTIA), stated in a
release that "it is
incumbent on the FCC to ensure that the adoption of new
rules for these emerging technologies will not create the potential for
interference to existing licensees upon which millions of American consumers
already depend." He added that "The FCC should consider the technical and economic feasibility of
cognitive radios -- and confirm through actual testing that they will not
interfere with other consumer services -- before adopting any final rules in this
|Circuit Courts Issue Opinions in
Intellectual Property Cases Involving Toys
12/29. Three three judge panels have issued opinions recently in intellectual
property cases involving famous toys. Two cases involve Barbie Dolls made by
Mattel. These cases, like numerous other Barbie cases, were decided by the
U.S. Court of Appeals (9thCir). The third
case involves Beanie Babies made by Ty. Like other Beanie Baby cases, this one was
decided by the U.S. Court of Appeals
See, December 29
pages in PDF] in Mattel v. Walking Mountain Productions, December 22
[16 pages in PDF] in Ty v. Softbellies, and December 22
opinion [22 pages in PDF] in Mattel v. Greiner and Hausser,
Mattel v. Greiner and Hausser. The Greiner and Hausser (G&H) case deals
with procedural issues of personal jurisdiction, venue and forum non conveniens in
multijurisdictional litigation involving patent claims.
G&H sued Mattel in Germany, and Mattel sued G&H in California.
Mattel filed a complaint in U.S.
District Court (CDCal) seeking to enforce a settlement entered into by
Mattel and G&H 40 years ago, and to enjoin G&H's prosecution of its case in
Germany. The District Court ruled that the present action does not relitigate
issues settled in a case brought in 1961 in the U.S. District Court, and
dismissed the U.S. District Court action for lack
of personal jurisdiction over the defendants, improper venue, forum non
conveniens, and the impropriety of using the Declaratory Judgment Act, 28
U.S.C. § 2201, to adjudicate issues that Mattel might assert as affirmative
defenses in the German action.
The 9th Circuit reversed. It held that the present action is sufficiently
related to the 40 year old action to support a finding of personal jurisdiction
over the defendants. Basically, the Court held that the exercise of personal
jurisdiction over G&H today is appropriate because G&H purposefully availed
itself of the privilege of conducting activities in
California when it filed the lawsuit in California against Mattel in 1961.
Mattel v. Walking Mountain Productions. The Walking
Mountain Productions case deals with issues arising out of taking and selling
photographs (that include Barbie Dolls) for the purposes of social commentary.
Hence, the opinion discusses at length the fair use and parody defense to claims of
infringement of copyrights, trademarks, and trade
Thomas Forsythe, who does business as Walking
Mountain Productions, takes and sells pictures of nude Barbie
dolls juxtaposed with vintage kitchen appliances. Forsythe
asserts that his pictures are an artistic critique of the
objectification of women, and a criticism of the
"conventional beauty myth and the societal acceptance of women
as objects because this is what Barbie embodies."
Some of the titles of his pictures are "Fondu a
la Barbie", "Barbie Enchiladas", and "Malted Barbie". The
Appeals Court observed that Forsythe's Barbies are often
depicted in "sexualized positions".
Says Forsythe, "Barbie is the most enduring of
those products that feed on the insecurities of our beauty and
perfection-obsessed consumer culture."
Mattel is neither amused by Forsythe's sense of
humor, nor intellectually curious about the sociological
interpretation of its products. It filed complaints in the U.S.
District Courts for both the Northern and Central Districts of
California alleging copyright, trademark and trade dress
infringement and dilution.
When an art historian and curator of photography
at the San Francisco Museum of Modern Art (SFMOMA) prepared an
expert witness report in support of Forsythe, Mattel sought
burdensome discovery unrelated to the litigation from the SFMOMA.
(The Appeals Court affirmed the District Court's order quashing
the subpoena, and awarding SFMOMA its counsel fees and
The District Court granted summary judgment to
Forsythe on all of Mattels claims. The Appeals Court affirmed.
It also vacated the District Court's denial of Forsythe's
request for attorneys fees.
The Court wrote a lengthy analysis of the
purpose of copyright protection, the four prong test of fair use
U.S.C. § 107, and the nature of parody. It concluded that
"Having balanced the four § 107 fair use factors, we hold that
Forsythe’s work constitutes fair use under § 107’s exception.
His work is a parody of Barbie and highly transformative. The
amount of Mattel’s figure that he used was justified. His
infringement had no discernable impact on Mattel's market for
derivative uses. Finally, the benefits to the public in allowing
such use -- allowing artistic freedom and expression and
criticism of a cultural icon -- are great. Allowing Forsythe’s
use serves the aims of the Copyright Act by encouraging the very
creativity and criticism that the Act protects."
On the trademark infringement claim, the Appeals Court applied a balancing
test, and concluded that "the public interest in
free and artistic expression greatly outweighs its interest in potential
consumer confusion about Mattel's sponsorship of Forsythe's works."
Mattel also alleged that Forsythe infringed
Barbie's trade dress. The Appeals Court held that Forsyth's use of undressed
Barbies constituted nominative fair use. The Court wrote that "Barbie would not
be readily identifiable in a photographic work without use of the Barbie
likeness and figure. Forsythe used only so much as was necessary to make his
parodic use of Barbie readily identifiable, and it is highly unlikely that any
reasonable consumer would have believed that Mattel sponsored or was affiliated
with his work."
And finally, the Appeals Court also affirmed the
District Court's grant of summary judgment to Forsythe on the trademark and
trade dress dilution claims.
Ty v. Softbellies. In the Beanie Baby case, the maker of Beanie Babies
(Ty) filed a complaint in
U.S. District Court (NDIll) against
Softbellies alleging trademark infringement.
Beanie Babies made by Ty are toys made by putting bean pellets inside of
bags, that are designed to resemble animals. Screenie Beanies made by
Softbellies have chamois bellies and are sold to the public through computer
stores for use in wiping computer screens.
Ty is a frequent plaintiff in Northern District of Illinois. Moreover, a
disproportionate number of the opinions on appeal in Ty cases are written by
Judge Richard Posner.
Judge Posner has also just co-authored a book titled
The Economic Structure of Intellectual Property Law.
Much of the opinion addresses when trademark terms become generic terms. The
opinion also addresses procedural issues pertaining to expert witnesses and
evidence in trademark cases.
The Softbellies case may be of limited interest to the technology sector.
However, Judge Posner's future opinions in other Ty cases may have an impact on
the tech sector as well as the toy sector. For example, Judge Posner has already
hinted at extending the doctrine of misuse to copyright licensing practices and
litigation strategies intended to suppress critical reviews of its products.
See, May 30, 2002
in Ty v. Publications International. This case, and
the doctrine of misuse, are covered in story titled "3rd Circuit Breaks New
Ground on Copyright Misuse" in
TLJ Daily E-Mail
Alert No. 727, August 27, 2003.
These cases are:
- Mattel, Inc. v. Walking Mountain Productions and Tom Forsythe, U.S.
Court of Appeals for the 9th Circuit, Nos. 01-56695 and 01-57193.
- Mattel, Inc. v. Greiner and Hausser GMBH, et al., U.S.
Court of Appeals for the 9th Circuit, No. 02-56272, an appeal from the U.S.
District Court for the Central District of California, Judge Nora Manella
presiding, D.C. No. CV-02-00322-NMM
- Ty, Inc. v. Softbellies, Inc., U.S. Court of Appeals for the 7th
Circuit, No. 03-1592, an appeal from the U.S. District Court for the Northern
District of Illinois, Eastern Division, D.C. No. 00 C 5230, Judge Charles
|The TLJ Daily E-Mail Alert will not be published on
Thursday, January 1, or Friday, January 2.
|DOJ Settles Case Against Interactive
12/30. The Department of Justice's (DOJ)
Civil Rights Division (CRD) announced that it settled a civil lawsuit that
it filed earlier this year against the operator of an interactive website that
allows landlords, leaseholders and property managers to post notices of
apartments and rooms for rent. Under the terms of the settlement, the web site
operator must pay $15,000 and "adopt adopt a non-discrimination policy". See,
The DOJ filed a civil
in the U.S. District Court (DNJ) against
Spyder Web Enterprises, LLC, the
operator of the Sublet.com web site,
alleging violation of the Fair Housing Act, which is codified at 42 U.S.C. §§
3601, et seq.
The complaint alleges that there are advertisements posted in the website
that "indicate preferences, limitations, and discrimination based on race, sex,
familial status, and national origin".
The CRD brings many enforcement actions. What is notable about this action is
that the advertisements that the CRD alleges are a violation of the Act are
posted by the users of the web site, but the legal action is against the operator of the
The complaint describes how advertisements are posted to the website: "The
website lists private apartments and houses for rent. A landlord or person
seeking to sublet an apartment can post the advertisement for a rental unit in
any region throughout the country free of charge; the fee is paid by the
individual looking for housing." Similarly, the Sublet.com web site states
that "Landlords, leaseholders and property managers post their apartment rentals
and rooms for rent ..."
The Congress has passed legislation giving immunity to interactive computer service
providers for material posted by others. Specifically, the Telecom Act of 1996,
at 47 U.S.C. § 230(c)(1),
provides that "No provider or user of
an interactive computer service shall be treated as the publisher or speaker of
any information provided by another information content provider".
Section 230 further states that "It is the policy of the United States ...
to preserve the vibrant and competitive free market that presently exists for
the Internet and other interactive computer services, unfettered by Federal or
The CRD has a history of pursuing regulation that would impede the use and
development of the internet. For example, former Assistant Attorney General in
charge of the CRD, Deval Patrick, wrote a
letter on September 9,
1996 to Sen. Tom Harkin (D-IA) in which
he stated that "The Americans with Disabilities Act (ADA) requires ... places of
public accommodation to furnish appropriate auxiliary aids and services where
necessary to ensure effective communication with individuals with disabilities
... Covered entities under the ADA are required to provide effective
communication, regardless of whether they generally communicate through print
media, audio media, or computerized media such as the Internet. Covered entities
that use the Internet for communications regarding their programs, goods, or
services must be prepared to offer those communications through accessible means
as well." Patrick wrote that web site operators could comply with the ADA by
providing audio tapes and braille copies of their web sites.
See also, TLJ story
titled "Do Web Sites Violate the Americans with Disabilities Act?", February 10,
2000. And see,
TLJ story titled "District Court Holds ADA Does Not Apply to Web Site",
October 18, 2002, which pertains to the U.S. District Court (SDFl)
Order Granting Defendant's Motion to Dismiss in Access Now v. Southwest Airlines
(also published at 227 F.Supp.2d 1312.)
TLJ placed numerous telephone calls to the Civil Rights Division, the U.S.
Attorney's Office for the District of New Jersey, and the Office of Public
Affairs on December 30 and 31 to discuss the DOJ's understanding of the
relationship of Section 230 to the various laws that the CRD enforces. No calls
12/30. President Bush issued a
Proclamation regarding implementation of the United States-Chile Free Trade
Agreement, and a second
Proclamation regarding implementation of the U.S. Singapore Free Trade
12/16. The U.S. Court of Appeals (DCCir) issued its
[11 pages in PDF] in BDPCS v. FCC, a spectrum auction case. This case is BDPCS, Inc., v. FCC and USA, U.S. Court of
Appeals for the District of Columbia, No. 00-1369, a petition for review of a
final order of the FCC.
|Washington Tech Calendar
New items are highlighted in red.
|Wednesday, December 31
The House is in adjournment.
The Senate is in adjournment. (It will convene on January 20, 2004.)
The Supreme Court is in recess. (It
will return on January 12, 2004.)
Deadline to submit a paper or panel proposal for the
National Institute of Standards and Technology's
(NIST) Spam Technology Workshop to be held on February 27, 2004. For more
information, contact Joan Hash at 301 975-3357. See,
notice in the Federal Register, November 25, 2003, Vol. 68, No. 227, at
Pages 66075 - 66076.
|Thursday, January 1
News Years Day.
|Friday, January 2
Communications Commission's (FCC) new broadcast flag mandate takes effect. The
FCC announced and released its
and Order Further Notice of Proposed Rulemaking [72 pages in PDF] on
November 4, 2003. This item is FCC 03-273 in MB Docket 02-230. See,
notice in the Federal Register (December 3, 2003, Vol. 68, No. 232, at
Pages 67599 - 67607) summarizing and stating the effective date of
these rules. For more information, contact
Rick Chessen firstname.lastname@example.org or Susan Mort at
email@example.com or 202-418-7200. See also,
stories titled "FCC Releases Broadcast Flag Rule" in TLJ Daily E-Mail Alert
No. 772, November 5, 2003; and "FCC Publishes Notices Regarding Broadcast Flag
Proceeding" in TLJ Daily E-Mail Alert No. 794, December 8, 2003.
|Monday, January 5
Deadline to submit initial comments to the
Federal Communications Commission (FCC) in response
Report and Order and Further Notice of Proposed Rulemaking [198 pages in
PDF] in it proceeding titled "In the Matter of Promoting Efficient Use of
Spectrum Through Elimination of Barriers to the Development of Secondary
Markets". The FCC adopted this item on May 15, 2003, but did not release
it until October 7, 2003. This is FCC 03-113 in WT Docket No. 00-230. See,
titled "FCC Adopts Order Allowing Some Secondary Leasing of Spectrum", May 15,
2003, and story titled "FCC Finally Releases R&O and FNPRM in Secondary Spectrum
Markets Proceeding" in TLJ Daily E-Mail Alert No. 755, October 8, 2003.
Deadline to submit comments to the
U.S. Patent and Trademark Office (USPTO) regarding
its proposed rule changes regarding revision of patent term extension and patent
term adjustment provisions related to decisions by the Board of Patent Appeals and
notice in the Federal Register, December 4, 2003, Vol. 68, No. 233, at
Pages 67818 - 67821.
Deadline to submit comments to the
Office of the U.S. Trade Representative (USTR)
regarding the operation and effectiveness of, and the implementation of and compliance
with, the World Trade Organization (WTO) Basic Telecommunications Agreement, other WTO
agreements affecting market opportunities for U.S. telecommunications products and
services, the telecommunications provisions of the North American Free Trade
Agreement (NAFTA), Chile FTA and Singapore FTA, and other telecommunications
trade agreements. See,
notice in the Federal Register, December 8, 2003, Vol. 68, No. 235, at Pages
68444 - 68445.
|Tuesday, January 6
12:15 PM. The Federal Communications
Bar Association's (FCBA) Mass Media Practice Committee
will hold a brown bag lunch titled "Meet the Trade Press". The speakers
will be Bill McConnell (Broadcasting and Cable), Brooks Boliek (Hollywood
Reporter), Mike Feazel (Communications Daily), Ted Hearn (Multichannel News),
Susan Crabtree (Variety), and Leslie Stimson (Radio World). Location: 8th
Floor Conference Room, Dow Lohnes & Albertson, 1200 New Hampshire Ave., NW.
Deadline to submit reply comments to the Federal
Communications Commission (FCC) regarding its notice of proposed
rulemaking (NPRM) regarding human exposure to radiofrequency (RF) energy.
The FCC adopted this notice of proposed rulemaking on June 12, 2003, and
released it on June 26, 2003. This is ET Docket No. 03-137. For more
information, contact Robert Cleveland in the FCC's
Office of Engineering and Technology at
202 418-2422 or firstname.lastname@example.org.
notice in the Federal Register, September 8, 2003, Vol. 68, No. 173, at
Pages 52879 - 52889.
|Wednesday, January 7
10:00 AM. The U.S.
Court of Appeals (FedCir) will hear oral argument in Webmethods v. iWork
Software, No. 03-1410. This is a patent infringement case brought by iWork
Software in the U.S. District Court (NDIll).
Webmethods moved to intervene pursuant to Rule 24, Federal Rules of Civil Procedure, but
the District Court denied the motion. Location: Courtroom 402, 717 Madison Place, NW.
|Friday, January 9
10:00 AM. The U.S.
Court of Appeals (FedCir) will hear oral argument in Fujitsu Compound
Semiconductor v. U.S., No. 03-1293. Location: Courtroom 201, 717 Madison Place,
12:15 PM. The Federal Communications
Bar Association's (FCBA) Wireless Committee will host a luncheon. Mark Rubin (Western
Wireless) and Marie Gillory (National Telephone Cooperative Association) will speak on
universal service and the distribution of funding in rural areas. The price to
attend is $15. RSVP to Wendy Parish at email@example.com
by 5:00 PM on Wednesday, January 7. For more information, contact Laura Phillips at 202
842-8891 or firstname.lastname@example.org. Location: Sidley
Austin, 1501 K Street, NW, 6th Floor.
EXTENDED TO JANUARY 23.
Deadline to submit
comments to the Federal Communications Commission (FCC)
in response to its
Notice of Proposed Rulemaking [35 pages in PDF] regarding unlicensed devices. See,
in the Federal Register, December 10, 2003, Vol. 68, No. 237, at Pages 68823 -
68831. The FCC adopted this NPRM on September 10, 2003. See, FCC
release [PDF]. The FCC released the
NPRM [35 pages in PDF] on September 17, 2003. This NPRM is FCC 03-223 in ET Docket
No. 03-201. See also, stories titled "FCC Announces NPRM Regarding Unlicensed
TLJ Daily E-Mail Alert No.
739, September 15, 2003, and "FCC Announces Deadlines for Comments on Unlicensed
Devices NPRM" in TLJ Daily E-Mail Alert No. 800, December 16, 2003.
|About Tech Law Journal
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