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January 23, 2004, 9:00 AM ET, Alert No. 822.
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House Judiciary Committee Approves Database Protection Bill

1/21. The House Judiciary Committee amended and approved HR 3261, the "Database and Collections of Information Misappropriation Act" by a roll call vote of 16-7. This bill codifies a cause of action for misappropriation of certain databases.

Rep. Howard CobleRep. Lamar Smith (R-TX) and Rep. Howard Coble (R-NC) (at right) led the debate in support of the bill. Rep. Rick Boucher (D-VA) led the opposition to the bill. The final vote broke down largely along party lines, with Republicans supporting the bill, and Democrats opposing the bill. However, the Southern Californians, Rep. Adam Schiff (D-CA) and Rep. Linda Sanchez (D-CA), voted for the bill.

Feist. The legislative activity involving database protection is in part a reaction to the 1991 opinion of the Supreme Court in Feist Publications, Inc. v. Rural Telephone Service Co., also reported at 499 U.S. 340. The Court rejected the "sweat of the brow" basis for protecting compilations of data under copyright law, and held that some compilations of data are not protected under copyright law.

Feist involved telephone directories that collected and arranged names and phone numbers. The Court reasoned that facts, such as phone numbers, are not copyrightable, and that the compilation of names and numbers lacked sufficient creativity to merit copyright protection.

Other recent cases in which courts have not extended copyright protection to databases include Warren Publishing, Inc. v. Microdos Data Corp., 115 F.3d 1509 (11th Cir. 1997), Mid America Title Co. v. Kirk, 59 F.3d 719 (7th Cir. 1995), and Skinder-Strauss Assocs. v. Massachusetts Continuing Legal Edu., Inc., 914 F. Supp. 665 (D. Mass. 1995).

Various bills introduced in the Congress since then have sought to afford greater protections to those who develop, maintain and own databases, but not pursuant to copyright law.

Legislative History. Rep. Coble, who was Chairman of the Courts, Internet, and Intellectual Property Subcommittee (CIIP) in the 105th through the 107th Congresses, has been trying to pass a database protection bill for years. He sponsored HR 2652 in the 105th Congress (1997-1998); it ultimately passed the House, but not the Senate.

He sponsored a similar bill in the 106th Congress (1999-2000), HR 354, the "Collections of Information Antipiracy Act", that was passed by the Judiciary Committee. Although, it provided less protection to database developers and owners than HR 2652.

The key language of HR 354 provided that "Any person who extracts, or uses in commerce, all or a substantial part, measured either quantitatively or qualitatively, of a collection of information gathered, organized, or maintained by another person through the investment of substantial monetary or other resources, so as to cause harm to the actual or potential market of that other person, or a successor in interest of that other person, for a product or service that incorporates that collection of information and is offered or intended to be offered for sale or otherwise in commerce by that other person, or a successor in interest of that person, shall be liable to that person ..."

The bill was in the nature of intellectual property law. However, the protection afforded was different from that afforded under copyright law. The content need not be original, and harm must be suffered by the appropriation. It resembled unfair competition laws by allowing a remedy for harm committed by another.

Meanwhile, some internet companies, telecom companies, and educational institutions lobbied against creating protections for databases. They found support on the Commerce Committee. Former Rep. Tom Bliley (R-VA), who was also the Chairman of the Commerce Committee, introduced a bill in the 106th Congress, HR 1858, the "Consumer and Investor Access to Information Act of 1999 ", that provided very weak protections for database owners. It was passed by the Commerce Committee.

HR 1858 was designed to defeat passage of HR 354, rather than provide protection to database developers. It prohibited the duplication of databases only under certain very limited circumstances. And, except in the case of databases of real time market information developed by the stock exchanges, there is no way for the owners of pirated databases to enforce their rights. It contained no general private right of action. Enforcement was left to the Federal Trade Commission (FTC), which is a consumer protection agency, without expertise in intellectual property matters, and without substantial enforcement powers.

See, TLJ web page titled "Summary of Bills Pertaining to Protecting Databases from Piracy in the 106th Congress".

HR 354 had overwhelming support on the Judiciary Committee, while HR 1858 had overwhelming support on the Commerce Committee. The two Committees were deadlocked, and the House took no further action.

See also, TLJ news analysis titled "House Commerce and Judiciary Committees Vie for High Tech Leadership", June 15, 1999. The article examines the turf contest between the two Committees on database legislation, and other technology related issues, and offers explanations for why the two Committees tend to have different perspectives on issues related to intellectual property rights.

See also, stories titled "Hearing on Database Protection Bill", 2/12/98, "HR 2652 Passes Subcommittee", 3/18/98, "Judiciary Committee Approves HR 2652", 3/25/98, "House Passes Database Protection Bill", 5/21/98, "Coble Re-introduces Database Protection Bill", 1/22/99, "House Subcommittee Holds Hearing on HR 354", 3/19/99, "Bliley Introduces Database Bill", 5/23/99, and "House Telecom Subcommittee Holds Hearing on Database Protection" (6/16/99).

At the beginning of the 107th Congress, Rep. Billy Tauzin (R-LA) and Rep. James Sensenbrenner (R-WI), who had just become Chairmen of the Commerce and Judiciary Committees, collaborated. They met with parties interested in the database protection issue, and instructed them to develop consensus database protection legislation. See, story titled "Database Protection" in TLJ Daily E-Mail Alert No. 155, March 30, 2001, and transcript of March 29, 2001 press conference of Rep. Tauzin and Rep. Sensenbrenner.

HR 3261, introduced on October 8, 2003, is the product of that process. Both Rep. Tauzin and Rep. Sensenbrenner are cosponsors. The extent of the protection offered by HR 2652, HR 354, and HR 3261 can be characterized. HR 354 offered less protection than HR 2652, and HR 3261 offers less protection that HR 354. Moreover, as each bill progressed, it was watered down through amendments.

Rep. Coble is the lead sponsor, and Rep. Smith is a cosponsor, of HR 3261. The CIIP Subcommittee, now chaired by Rep. Smith, amended and approved the bill on October 16, 2003 by a vote of 10-3. The full Committee amended and approved the bill on January 21, 2004 by a vote of 16-7.

HR 3261. This bill is based upon the legal theory misappropriation.

The basic prohibition, which is found in Section 3, provides that "Any person who makes available in commerce to others a quantitatively substantial part of the information in a database generated, gathered, or maintained by another person, knowing that such making available in commerce is without the authorization of that other person (including a successor in interest) or that other person's licensee, when acting within the scope of its license, shall be liable for the remedies set for in section 7 if (1) the database was generated, gathered, or maintained through a substantial expenditure of financial resources or time; (2) the unauthorized making available in commerce occurs in a time sensitive manner and inflicts injury on the database or a product or service offering access to multiple databases; and (3) the ability of other parties to free ride on the efforts of the plaintiff would so reduce the incentive to produce or make available the database or the product or service that its existence or quality would be substantially threatened."

However, the bill also contains numerous exceptions, exclusions and limitations.

January 21, 2004 Markup. The Committee took up the bill as approved by the CIIP on October 16, 2003. Rep. Coble and Rep. Smith led the debate in support of the bill. At the outset, Rep. Coble offered an amendment that expands the exclusion for educational institutions and research libraries. It clarifies that the exclusion from liability under this bill also applies to certain students. This amendment passed by voice vote.

Rep. Rick BoucherRep. Boucher (at left) led the efforts to further water down the bill, and to defeat the bill. He argued that this bill is "simply not necessary" because there are already a wide range of legal remedies available to the developers of databases. He cited the availability of copyright infringement actions for the copying of certain types of databases, the tort of trespass, the tort of misappropriation, contract remedies (against parties to subscription license agreements), and the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA).

Rep. Boucher also argued that passage of this bill could inhibit scientific research and reporting. He also argued that if this bill becomes law "there is going to be lots of litigation".

Rep. Boucher, who is a senior member of both the Judiciary and Commerce Committees, also argued that few members of the Commerce Committee "would say that they support this bill". However, Rep. Billy Tauzin (R-LA), the Chairman of the Commerce Committee, and Rep. James Greenwood (R-PA), a senior member of the Commerce Committee, are both cosponsors of the bill. Also, the Commerce Committee does not now have jurisdiction over this bill.

Treatment of ISPs. The Committee considered a second amendment offered by Rep. Coble that addressed the treatment of ISPs. However, Rep. Boucher offered an amendment to this Coble amendment. The Boucher amendment, which basically tracks the ISP immunity language of the Digital Millennium Copyright Act (DMCA), states that "No provider of an interactive computer service shall be liable under section 3 for making available information that is provided by another information content provider."

Rep. Smith spoke in opposition to the Boucher amendment, while Rep. Bob Goodlatte (R-VA) and Rep. Zoe Lofgren (D-CA), spoke in support. The Boucher amendment passed on a roll call vote of 17-7-1. The Committee then approved by unanimous voice vote the Coble amendment, as amended by the Boucher amendment.

Boucher Amendment to Preclude Protection for Existing Databases. Rep. Boucher next offered another amendment to the base bill that provided that the protection afforded by the bill would not apply to databases already in existence. It failed on a roll call vote of 8-18.

This amendment provided that "This Act shall take effect on the date of the enactment of this Act, and shall not apply to a database that is made available in commerce before such date of enactment."

Rep. Sensenbrenner made the point that if this amendment were adopted it would effectively put every database into the public domain.

Rep. Coble pointed out that some databases are continually updated. He argued that one of the purposes of the bill is to give an incentive to maintain existing databases. He stated that under this amendment, database owners would not have an incentive to keep existing databases updated, and the public would therefore suffer by not having access to up to date information.

Boucher Amendment Re Court and Legislative Records Databases. Rep. Boucher then offered a third amendment that failed on a voice vote.

It provided and exception for "Any legal materials produced by a Federal court, including opinions, judgments, and rules of practice, and any legislative materials produced by the Congress, including bills and resolutions, committee reports, and floor statements."

Rep. Coble argued that the Congress should protect database developers who put in the effort to wade through enormous quantities of public records, organize it, and make it accessible in a consumer friendly manner.

The Committee then approved the bill by voice vote, and voted to report the bill by a vote of 16-7.

Disclosure. TLJ develops and maintains, but does not publish or sell, various collections of data. Readers may wish to consider this in assessing the objectivity of any TLJ stories about database protection legislation.

Abernathy Addresses VOIP Regulation

1/22. Federal Communications Commission (FCC) Commissioner Kathleen Abernathy gave a speech [6 pages in PDF] at a conference at Catholic University in Washington DC. The speech was about the regulatory response to the convergence of technologies. However, she focused in detail on one issue -- regulatory treatment of voice over internet protocol (VOIP). She stated that this should be considered a matter of federal, not state, jurisdiction. She argued for a "light touch", meaning that the FCC should not engage in "economic" regulation of VOIP, such as prices and service quality, but that the FCC should engage in "social policy" regulation, such as E911 and universal service.

Kathleen Abernathy

Abernathy (at right) began with an explanation of convergence. "Formerly distinct categories of communications services are collapsing into one as voice, data, and video are all transmitted via digital bits over packet-switching networks."

She stated that "convergence demands fresh thinking by regulators". She continued that "It no longer makes sense to place services into distinct regulatory silos depending on the identity of the provider. In a world where different platforms are used to provide functionally equivalent services, regulators must harmonize distinct regulatory frameworks. The challenge is formidable, however, because the statutory framework that guides the FCC was written before this technological explosion."

Then, she referenced VOIP. She said that "In recent months, the most talked-about convergence application has undoubtedly been Voice Over Internet Protocol, or VOIP. VOIP allows anyone with a broadband connection to enjoy a full suite of voice services, often with greatly enhanced functionalities and at a lower cost than traditional circuit-switched telephony. VOIP provided over cable platforms is increasingly creating the robust, facilities-based voice competition that the framers of the 1996 Act envisioned."

She elaborated that "VOIP is simply an application that is provided over a broadband network. So we shouldn’t put the cart before the horse: We should not presuppose that broadband networks will be ubiquitous; in fact, we are not yet close to achieving that goal. It is therefore critical for the FCC continue to work on facilitating the deployment of broadband infrastructure."

She then reviewed recent actions taken by the FCC to promote broadband deployment, such as the issuance of the triennial review order [576 pages in PDF], in which the FCC "decided to refrain from imposing unbundling obligations on next-generation fiber loop facilities." See, stories titled "FCC Releases Triennial Review Order" in TLJ Daily E-Mail Alert No. 724, August 22, 2003, and "Summary of FCC Triennial Review Order" in TLJ Daily E-Mail Alert No. 725, August 25, 2003. See also, stories titled "FCC Announces UNE Report and Order", "FCC Order Offers Broadband Regulatory Relief", "FCC Announces Decision on Switching", "Commentary: Republicans Split On FCC UNE Order", and "Congressional Reaction To FCC UNE Order" in TLJ Daily E-Mail Alert No. 609, February 21, 2003.

She also cited actions taken by the FCC to promote wireless broadband, including allocating 90 MHz of spectrum for Third Generation (3G) wireless services, allocating additional unlicensed spectrum for Wi-Fi devices, and "the FCC's efforts to develop secondary markets" for spectrum.

She also cited the FCC's broadband over powerline (BPL) proceeding. She stated that "recognize that amateur radio licensees have raised concerns about harmful interference, and that is something that will have to be addressed before any mass market deployment can occur. But if the engineers can find a technical solution that prevents harmful interference, BPL represents a tremendous advance for consumers, because it could bring broadband to any home that has electricity."

The FCC's BPL proceeding is ET Docket No. 03-104. The FCC adopted its Notice of Inquiry [21 pages in PDF] at its April 23, 2003 meeting. See, stories titled "FCC Announces NOI Regarding Broadband Over Powerlines" in TLJ Daily E-Mail Alert No. 648, April 24, 2003; and "FCC Releases NOI on Broadband Over Power Lines" in TLJ Daily E-Mail Alert No. 656, May 7, 2003.

She also spoke in vague terms about the opinion [39 pages in PDF] of the U.S. Court of Appeals (9thCir) in Brand X Internet Services v. FCC. The 9th Circuit vacated the FCC's declaratory ruling that cable modem service is an information service, and that there is no separate offering as a telecommunications service.

She stated that "the Commission has been considering the appropriate regulatory framework for broadband Internet access services provided over cable and DSL networks. These proceedings have been delayed temporarily as a result of litigation in the Ninth Circuit, but the Commission will continue its efforts this year to harmonize the disparate regulatory regimes and provide as much certainty as possible."

See, story titled "9th Circuit Vacates FCC Declaratory Ruling That Cable Modem Service is an Information Service Without a Separate Offering of a Telecommunications Service" in TLJ Daily E-Mail Alert No. 754, October 7, 2003.

Finally, she discussed regulation of VOIP. She stated the FCC will initiate a rule making proceeding. She argued that it is an interstate service.

She stated that she believes "that VOIP is an inherently interstate service, and thus should be subject to regulation, if at all, primarily at the federal level. Traditionally, regulatory authority was divided between the FCC and state regulatory commissions depending on the jurisdictional nature of a telephone call. The FCC regulated long-distance (or interstate) calls, and states regulated local or (intrastate) calls. The FCC also set certain policies at the national level where a unified approach was needed; for example, the FCC has played a lead role in promoting universal service and assigning telephone numbers, even though both policies touch heavily on local services. This joint system has served us well, and it has usually been relatively clear which services were subject to each jurisdiction."

"But when it comes to VOIP, concepts such as federal vs. state jurisdiction may be obsolete", said Abernathy. "I believe that these inherent technical characteristics of VOIP communications warrant classifying VOIP service as interstate."

She added that "As providers gear up to roll out services regionally or nationally, they should not be burdened with a patchwork of disparate state regulations."

She then discussed how the federal government should regulate VOIP. She said that "we should employ a light touch." She distinguished between economic and social policy regulation.

She stated that she believes that "it is clear that we should avoid imposing any kind of economic regulations. For example, I cannot discern any rationale for regulating VOIP prices or service quality. Such regulations, which we have traditionally imposed on local exchange carriers, have been employed to restrain the market power of monopoly providers. Providers of VOIP services, on the other hand, are new entrants. Rather than reflexively extending our legacy regulations to VOIP providers, we need to take this opportunity to step back and ascertain whether those rules still make sense for any providers, including incumbents."

But, she said, "some regulatory intervention will be necessary ... to achieve other social policy objectives". She hinted that this would include E911 and universal service. However, she did not reference CALEA in the prepared text of her speech.

And, she added this caveat: "we should not assume that any use of IP technology necessarily transforms a circuit-switched service into VOIP. When I talk about creating a new regulatory framework for VOIP, I have in mind services that use Internet protocol over the last mile, at least on one end of the call. By contrast, a call that starts on the PSTN and ends on the PSTN does not necessarily warrant different regulatory treatment from other circuit-switched calls simply because a long distance carrier chooses to use IP technology at some mid-point in the network. Long distance carriers, local carriers, and enhanced service providers all have raised questions about the applicability of our intercarrier compensation rules and other requirements to these phone-to-phone services, and I believe the Commission should provide clarity as soon as possible."

AT&T filed a petition [37 pages PDF] with the FCC on October 18, 2002 seeking a ruling that access charges do not apply to its service in which calls originate and terminate on circuit switched PSTN facilities, but are routed on internet backbone. This is WC Docket No. 02-361. See, stories titled "Level 3 Files VOIP Petition With FCC" and "Summary of Other VOIP Proceedings at the FCC" in TLJ Daily E-Mail Alert No. 815, January 14, 2004.

Washington Tech Calendar
New items are highlighted in red.
Friday, January 23

10:00 AM - 3:00 PM. The Federal Communications Commission's (FCC) Technological Advisory Council will meet. See, notice in the Federal Register, December 19, 2003, Vol. 68, No. 244, at Pages 70796 - 70797. Location: FCC, 445 12th St., SW, Room TW-C305.

10:00 AM. The U.S. District Court (DC) will hold a status conference in United States v. Microsoft, D.C. No. 98-1232 (CKK) and New York, et. al. v. Microsoft, D.C. No. 98-1232 (CKK), Judge Colleen Kotelly presiding. Location: Courtroom 11.

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch. The topic will be "Hot Communications Issues on the Hill". The speakers will be Neil Fried (Republican Counsel, House Commerce Committee), Gregg Rothschild (Democratic Counsel, House Commerce Committee), Lee Carosi (Republican Counsel, Senate Commerce Committee), and Paul Nagle (Attorney-Advisor, FCC Office of Legislative Affairs). For more information, contact Jason Friedrich at 202 354-1340 or or Pam Slipakoff at 202 418-7705 or Location: Drinker Biddle & Reath, 1500 K Street, 11th Floor.

Deadline to submit reply 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.

Extended 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, notice 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 Devices" in 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. See also, FCC order [PDF] extending the deadline from January 9 to January 23.

Monday, January 26

The Supreme Court will begin a recess. (It will return on February 23, 2004.)

12:00 NOON - 1:00 PM. The New America Foundation will host a brown bag lunch. The topic will be "Policy Watch: Making the Right Choices about the Future of Communications". The speaker will be David Dorman, Chairman and CEO of AT&T. RSVP to Jennifer Buntman at 202-986-4901 or See, notice. Location: 1630 Connecticut Ave, NW, 7th Floor.

2:00 - 5:00 PM. The Federal Communications Commission's (FCC) Advisory Committee on Diversity for Communications in the Digital Age will hold its second meeting. See, FCC notice [PDF] and notice in the Federal Register, January 5, 2004, Vol. 69, No. 2, at Page 345. Location: Commission Meeting Room, Room TW-C305, 445 12th St. SW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding its notice of proposed rulemaking (NPRM) pertaining to promoting spectrum based services in rural areas. See, notice in the Federal Register summarizing this NPRM, and story titled "FCC Announces NPRM Regarding Regulations Affecting the Use of Spectrum in Rural Areas" in TLJ Daily E-Mail Alert No. 739, September 15, 2003. This NPRM is FCC 03-222 in WT Docket Nos. 02-381, 01-14, and 03-202. The FCC adopted this NPRM on September 10, 2003, and released it on October 6, 2003. See, Federal Register, November 12, 2003, Vol. 68, No. 218, at Pages 64050-64072.

EXTENDED TO FEBRUARY 7. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking [35 pages in PDF] regarding unlicensed devices. See, notice 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 Devices" in 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.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking (NPRM) that proposes changes to the rules governing practice before the Board of Patent Appeals and Interferences to consolidate and simplify such rules and to reflect developments in case law, legislation, and administrative practice. See, notice in the Federal Register, November 26, 2003, Vol. 68, No. 228, at Pages 66647 - 66691.

Tuesday, January 27

New Hampshire Presidential Primary.

10:00 AM - 4:00 PM. The Federal Communications Commission (FCC) will host an event titled "Satellite Rural Forum". The agenda includes, among other topics, broadband access, information and mass media entertainment, telemedicine and distance learning. See, notice and agenda [5 pages in PDF]. Location: FCC, 455 12th Street, SW.

Wednesday, January 28

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in USTA v. FCC, No. 00-1020. Judges Edwards, Randolph and Williams will preside. Location: 333 Constitution Ave., NW.

10:00 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "Can you say that on TV?': An Examination of the FCC's Enforcement with Respect to Broadcast Indecency". The hearing will be webcast. See, notice. Location: Room 2123, Rayburn Building.

10:00 AM. The House Judiciary Committee will meet to mark up seven bills, including HR 2824, the "Internet Tobacco Sales Enforcement Act". Location: Room 2141, Rayburn Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Online Communications Practice Committee will host a brown bag lunch titled "Legislative and Regulatory Update on Internet and E-Commerce Privacy Issues". The speakers will be Chris Hoofnagel (EPIC) and Heidi Salow (Nextel). For more information, contact Vincent Paladini, Karlyn Stanley (CRB, 202 828-9835), or Amy Wolverton. Location: Cole Raywid & Braverman, 1919 Pennsylvania Ave., NW, Suite 200.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) Wireless Practice Committee will host a Continuing Legal Education (CLE) program titled "Implementing the FCC's Secondary Markets Order". The prices to attend range from $50 to $125. Location: Wiley Rein & Fielding, 1750 K Street, NW, 10th Floor.

Deadline to submit requests to participate in the U.S. Patent and Trademark Office (USPTO) public round table meeting on the effectiveness of inter partes reexamination proceedings, tentatively scheduled for February 17, 2004. See, notice in the Federal Register, December 30, 2003, Vol. 68, No. 249, at Pages 75217 - 75218.

Thursday, January 29

CANCELLED. 10:00 AM - 12:00 NOON. The American Enterprise Institute (AEI) will host a program titled "The Dynamics of Two-Sided Markets". The AEI notice states nothing further about the program or its speakers. However, economists use the term "two sided markets" to describe markets for products that must be promoted to two groups to succeed, such as operating systems (developers and users) and payment systems (merchants and consumers). Location: AEI, 12th floor, 1150 17th St., NW.

11:00 AM. The Cato Institute will host a panel discussion titled "Antitrust in the High-Tech Marketplace: The Real Irrational Exuberance?". The speakers will be Lawrence Lindsey (Lindsey Group), Fred Smith (Competitive Enterprise Institute), Jonathan Zuck (Association for Competitive Technology), and Ed Black (Computer and Communications Industry Association). See, notice. The event will be webcast. Lunch will follow the program. Location: Cato, 1000 Massachusetts Avenue, NW.

2:00 - 4:00 PM. The State Department's International Telecommunication Advisory Committee --Radiocommunication Sector (ITAC-R) will hold a meeting to discuss "matters related to the preparations for ITU-R study group meetings taking place in 2004". See, notice in the Federal Register, January 15, 2004 Vol. 69, No. 10, at Page 2380. Location: The Boeing Company, Harry C. Stonecipher Conference Center, 1200 Wilson Boulevard, Arlington, VA.

TIME? Rosemary Coombe (York University) will give a lecture titled "The Globalization of Intellectual Property: Informational Capital and Its Cultures". This is a part of Georgetown University Law Center's (GULC) Colloquium on Intellectual Property & Technology Law Series. For more information, contact Julie Cohen at 202 662-9871. Location: GULC, 600 New Jersey Ave., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) Wireless Practice Committee will host a Continuing Legal Education (CLE) program titled "Political Broadcasting Regulations". Bobby Baker (Assistant Chief of the FCC's Media Bureau's Policy Division), Jack Goodman (General Counsel of the National Association of Broadcasters), and Dawn Sciarrino. The prices to attend range from $50 to $125. Location: 8th Floor Conference Room, Dow Lohnes & Albertson, 1200 New Hampshire Ave., NW.

Friday, January 30

10:00 AM - 12:00 NOON. The Federal Communications Commission's (FCC) Advisory Committee for the 2007 World Radiocommunication Conference will hold its first meeting. See, FCC notice and agenda [PDF] and notice in the Federal Register, December 22, 2003, Vol. 68, No. 245, at Page 71106. See also, TLJ story titled "Powell Appoints Nancy Victory to WRC-07 Post". Location: FCC, Commission Meeting Room (TW-C305), 445 12th Street, SW.

Extended deadline to submit comments to the Federal Communications Commission (FCC) regarding BellSouth's request for a declaratory ruling that the state commissions may not regulate broadband internet access services by requiring BellSouth to provide wholesale or retail broadband services to voice service customers of competitive local exchange carriers (CLECs) using unbundled network elements (UNEs). BellSouth submitted its 334 page filing on December 9, 2003. See, "Emergency Request for Declaratory Ruling" (without attachments) [35 pages in PDF]. This is WC Docket No. 03-251. See, FCC notice [PDF].

FTC Releases Report on Fraud and Identity Theft

1/22. The Federal Trade Commission (FTC) released a report [73 pages in PDF] titled "National and State Trends in Fraud & Identity Theft January -- December 2003". See also, FTC release.

The report states that "The FTC received more than half a million consumer complaints (516,740) during calendar year 2003, up from 404,000 in 2002. These include 301,835 complaints about fraud and 214,905 identity theft reports."

It states that "Internet related fraud accounted for 55% of all fraud reports, up from 45% 2002."

It also states that "42% of all complaints received by the FTC related to ID theft, up from 40% in 2002."

Also, Internet auction fraud accounted for 15% of all complaints. Internet services and computer products fraud accounted for another 6% of all complaints.

CDT Challenges President's Statement on PATRIOT Act

1/22. The Center for Democracy and Technology (CDT) issued a statement in response to President Bush's comments in his January 20, 2003 State of the Union address regarding the sections of the PATRIOT Act that are scheduled to sunset on December 31, 2005.

Bush stated that "we must continue to give our homeland security and law enforcement personnel every tool they need to defend us. And one of those essential tools is the Patriot Act, which allows federal law enforcement to better share information, to track terrorists, to disrupt their cells, and to seize their assets. For years, we have used similar provisions to catch embezzlers and drug traffickers. If these methods are good for hunting criminals, they are even more important for hunting terrorists. Key provisions of the Patriot Act are set to expire next year. The terrorist threat will not expire on that schedule. Our law enforcement needs this vital legislation to protect our citizens. You need to renew the Patriot Act."

The CDT responded that "A dozen PATRIOT Act provisions sunset in December 2005, yet already the campaign to renew them is heating up. The President is acting as if the PATRIOT Act is the centerpiece of the war on terrorism, but it really isn't. Many of the most important aspects of the war against terrorism and the most serious abuses of civil liberties post-9/11 have occurred outside the scope of the Act, while the Act has been used to a large extent in ordinary criminal cases having nothing to do with terrorism."

It added that "The PATRIOT Act, while enacted with the best intentions and in response to a serious threat, passed under intense time pressure and without serious debate. As a result, the Executive Branch was given broad discretionary powers that, in many cases, are not needed in the fight against terrorism and serve only to infringe on Americans' fundamental liberties, making it crucial that Congress carefully re-evaluate the surveillance provisions that are set to expire at the end of 2005. The question will not be about renewal of the authorities -- it will be about checks and balances, oversight and accountability."

Some of the electronic surveillance related provisions of the PATRIOT Act that are set to sunset are § 201 (regarding authority to intercept wire, oral, and electronic communications relating to terrorism), § 202 (authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse offenses), § 203(b) (authority to share electronic, wire and oral interception information), § 206 (roving surveillance authority under the FISA), § 209 (seizure of voice mail messages pursuant to warrants), § 212 (emergency disclosure of electronic communications), § 214 (pen register and trap and trace authority under the FISA), § 215 (access to records and other items under the FISA), § 217 (interception of computer trespasser communications), and § 220 (nationwide service of search warrants for electronic evidence).

However, some of the key technology related sections of the PATRIOT Act are not set to sunset. These include § 216, which extended the existing pen register and trap and trace devices authority to online communications.

See also, story titled "Sen. Leahy Responds to President Bush's Comments on PATRIOT Act" in TLJ Daily E-Mail Alert No. 821, January 22, 2003.

People and Appointments

Charlene Barshefsky1/22. Charlene Barshefsky (at right) was elected to the Board of Directors of Intel. She was the U.S. Trade Representative (USTR) from 1997 through 2001. She is also currently a partner in the law firm of Wilmer Cutler & Pickering. See, Intel release and Intel bio.

1/22. President Bush announced his intent to nominate John Young to be Deputy Under Secretary of Defense for Acquisition and Technology. Young is currently Assistant Secretary of the Navy (Research, Development, and Acquisition). Prior to that, he worked for the Senate Appropriations Committee's Subcommittee on Defense. See, White House release.

More News

1/22. The Senate passed the conference report on HR 2673, the omnibus appropriations bill, by a vote of 65-28. See, Roll Call No. 3. First, the Senate passed a motion to invoke cloture (that is, end a Democratic filibuster) by a vote of 61-32. See, Roll Call No. 2. The House passed this conference report on December 8, 2003.

John Ashcroft1/21. Attorney General John Ashcroft (at left) gave a speech in Davos, Switzerland in which he stated that "Information -- or transparency -- is the enemy of corruption. Corruption feeds and breeds from secrecy and ignorance. It cannot thrive under the light spread by an open, informed society." He added that "Today, with the explosive growth of the Internet and 500-channel digital satellite broadcasting, information has never moved more quickly, to more people, with more purpose. As the various financial crises and our effort to deal with the corporate scandals in the United States has confirmed, information is the most therapeutic resource we have in achieving integrity in our markets and in our government."

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