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April 23, 2004, 9:00 AM ET, Alert No. 883.
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European Commission Releases Microsoft Decision

4/22. The European Commission released its Commission Decision [302 pages in PDF] regarding Microsoft. This document provides the language of the EC's mandate that Microsoft remove certain code from its products sold in the Europe, and that it license certain proprietary technology and intellectual property rights to its competitors.

The EC announced this decision on March 24, 2004. The Decision is dated March 24, 2004. However, the EC did not release the Decision until April 22, 2004.

Article 2 of the Decision provides that "Microsoft Corporation has infringed Article 82 of the Treaty and Article 54 of the EEA Agreement by:
  (a) refusing to supply the Interoperability Information and allow its use for the purpose of developing and distributing work group server operating system products, from October 1998 until the date of this Decision;
  (b) making the availability of the Windows Client PC Operating System conditional on the simultaneous acquisition of Windows Media Player from May 1999 until the date of this Decision."

For these violations, the EC fines Microsoft 497,196,304 Euros, and orders Microsoft to "bring to an end the infringement", and to "refrain from repeating any act or conduct described in Article 2 and from any act or conduct having the same or equivalent object or effect".

The Decision further provides that "Microsoft Corporation shall, within 90 days of the date of notification of this Decision, offer a full-functioning version of the Windows Client PC Operating System which does not incorporate Windows Media Player". (Emphasis added.)

It further provides that "Microsoft Corporation shall within 90 days of the date of notification of this Decision communicate to the Commission all the measures it has taken to implement" the above requirement.

The Decision then elaborates on Microsoft's "refusing to supply the Interoperability Information".

It provides that Microsoft shall, within 120 days, "make the Interoperability Information available to any undertaking having an interest in developing and distributing work group server operating system products and shall, on reasonable and non-discriminatory terms, allow the use of the Interoperability Information by such undertakings for the purpose of developing and distributing work group server operating system products". (Emphasis added.)

The Decision provides that "the term ``Interoperability Information创 means the complete and accurate specifications for all the Protocols implemented in Windows Work Group Server Operating Systems and that are used by Windows Work Group Servers to deliver file and print services and group and user administration services, including the Windows Domain Controller services, Active Directory services and Group Policy services, to Windows Work Group Networks".

The Decision further provides that "the term ``Windows Client PC Operating System创 means any of the software products marketed by Microsoft Corporation as Windows 98, Windows 98 Second Edition, Windows Millennium edition, Windows NT Workstation 4.0, Windows 2000 Professional, Windows XP Home and Windows XP Professional, and updates (including, without limitation, security patches), upgrades and successors to the latter, as well as updates and upgrades of such successors".

The Decision further provides that the term ``Windows Work Group Server Operating System创 means any of the software products marketed by Microsoft Corporation as Windows NT Server 4.0, Windows 2000 Server and Windows Server 2003 Standard Edition, and updates (including, without limitation, security patches), upgrades and successors to the latter, as well as updates and upgrades to such successors."

The Decision states that the EC's proceeding was initiated following a complaint made by Sun Microsystems regarding operating systems for personal computers. The Decision states that Sun alleged that Microsoft reserved to itself "information that certain software products for network computing, called work group server operating systems, need to interoperate fully with Microsoft's PC operating systems. According to Sun, the withheld interoperability information is necessary to viably compete as a work group server operating system supplier."

The Decision continues that the EC later, on its own initiative, expanded its investigation to include the "``Windows 2000创 generation of PC and work group server operating systems and Microsoft's incorporation of a software product called ``Windows Media Player创 into its PC operating system products."

The Decision also notes that Microsoft's U.S. competitors, and anti-Microsoft lobbying groups, participated in the proceeding. These included RealNetworks, AOL Time Warner, the Software & Information Industry Association (SIIA), and the Computer & Communications Industry Association (CCIA).

On April 15, the CCIA wrote a letter [PDF] to Secretary of State Colin Powell, and a letter to U.S. Trade Representative (USTR) Robert Zoellick urging the Bush administration not to intervene on behalf of Microsoft.

Hewitt Pate, the Assistant Attorney General in charge of the U.S. Department of Justice's (DOJ) Antitrust Division has strongly criticized the EC's decision against Microsoft.

For example, he stated in a speech on April 2, 2004 that the EC decision lacks comity, that it will lead to antitrust forum shopping by parties seeking to benefit from regulation, that it may protect competitors rather than competition, and that it may chill lawful product improvement. See, story titled "Pate Criticizes EC Decision Regarding Microsoft" in TLJ Daily E-Mail Alert No. 869, April 5, 2004.

Microsoft issued a response [7 pages in PDF] titled "The European Commission抯 Decision in the Microsoft Case and its Implications for Other Companies and Industries". Micosoft repeated that it will appeal the EC's Decision.

It stated in its response that the EC "is seeking to make new law that will have an adverse impact on intellectual property rights and the ability of dominant firms to innovate. This adverse impact will not be confined to the software industry or to Europe. As the case now heads for the Court of First Instance, the novel legal standards announced in the Decision will affect all industries, altering market dynamics and reducing incentives for research and development that are essential to global economic growth."

Microsoft complained that the Decision requires it "to license its proprietary technology and intellectual property rights to its competitors so that they can incorporate that very same technology into their own directly competing products" and prohibits it from incorporating "new components or features that demonstrably improve its finished product".

Microsoft stated that "for the first time in the history of competition law, the Decision compels the creation of a degraded version of a finished product and orders that product to be offered with the same trademarked brand name as an existing product that consumers clearly associate with a particular set of features and level of quality."

See also, related stories: "EU and Microsoft Fail to Reach Settlement" in TLJ Daily E-Mail Alert No. 859, March 19, 2004; "European Commission Seeks 497 Million Euros and Code Removal from Microsoft", "US Antitrust Chief Says EU's Microsoft Decision Could Harm Innovation and Consumers" and "Microsoft Will Challenge EC Decision in Court" in TLJ Daily E-Mail Alert No. 863, March 25, 2004; and "U.S. Legislators Criticize EU Action Against Microsoft" in TLJ Daily E-Mail Alert No. 866, March 30, 2004.

House Subcommittee Holds Hearing on Trademark Dilution

4/22. The House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property held a hearing titled "Committee Print to Amend the Federal Trademark Dilution Act".

This hearing follows the Supreme Court's March 4, 2003 opinion [21 pages in PDF] in Moseley v. Victoria's Secret, a case involving whether the plaintiff in a lawsuit for violation of the Federal Trademark Dilution Act (FTDA), which is codified at 15 U.S.C. 1125(c), must show actual economic loss. The Sixth Circuit held that economic harm may be inferred. The Supreme Court reversed. See, story titled "Supreme Court Rules in Trademark Dilution Case" in TLJ Daily E-Mail Alert No. 618, March 6, 2003.

Jacqueline Leimer, President of the International Trademark Association (INTA) testified in support of amending the Federal Trademark Dilution Act (FTDA).

She summarized the FTCA in her prepared testimony. It "affords protection that is different from trademark infringement protection. Dilution does not rely upon the standard test of infringement, that is, the likelihood of confusion, deception, or mistake. Rather, the FTDA provides equitable relief to the owner of a famous mark against another person抯 commercial use of a mark or trade name that lessens the ``distinctive quality of the [famous] mark,创 ``regardless of the presence or absence of (1) competition between the owner of the famous mark and other parties, or (2) likelihood of confusion, mistake or deception.创 The statute also sets forth criteria that a court should consider in determining whether a mark is famous; establishes an injunction as the primary form of relief; and provides statutory defenses to a dilution claim."

She added that the "INTA submits that a dilution cause of action should not require an actual, provable change in the way consumers think about the famous mark. This approach, which the Supreme Court adopted based on the language of the existing FTDA, does not account for the need to prevent dilution at its incipiency, the core concept underlying the dilution remedy."

David Stimson of Kodak wrote in his prepared testimony that "Kodak supports amending the Federal Trademark Dilution Act (FTDA) to address issues raised by the Supreme Court抯 decision in Moseley v. V Secret Catalogue, Inc. This decision will hamper the ability of owners of famous trademarks like KODAK to protect their intellectual property from third party uses that either blur or tarnish. Blurring and tarnishment are the two forms that dilution can take. In Moseley, the court said that the owner of a famous mark must wait until there is some sort of demonstrable harm before a judge can issue an injunction in a dilution case. The court also raised the possibility that tarnishment of a famous mark may not be actionable under the current statute."

Robert Sacoff, of the the law firm of Pattishall McAuliffe, wrote in his prepared testimony that "The Federal Trademark Dilution Act should be amended in three ways: (1) creating a ``likelihood of dilution创 standard; (2) providing a specific cause of action for dilution by tarnishment; and (3) allowing for non-inherently distinctive marks to be eligible for protection."

He continued that "The Supreme Court's recent decision in Moseley requiring actual dilution has led to uncertainty and unpredictability in the lower courts as they struggle with the quantum of proof and type of evidence necessary to establish actual dilution. The actual dilution standard has proven unworkable in practice. There should be no concern about the impact this proposed amendment will have on free speech, since there is no conflict between the likelihood standard and the First Amendment."

"The Moseley decision cast doubt on whether the FTDA creates a cause of action for tarnishment", wrote Sacoff.

Marvin Johnson, of the ACLU, wrote in his prepared testimony [PDF] that "This bill proposes to greatly expand
the existing Act, making dilution actions easier for trademark holders while simultaneously diluting protections for
free speech."

He added that "Trademark law provides an important tool for preventing confusion or deceptive marketing, but trademark laws should not be used as a pretext to stifle criticism, parody or legitimate competition when there is no reasonable likelihood of confusion and no actual dilution caused by use of the trademark."

5th Circuit Rules in Cyber Squatting and Trademark Dilution Case

4/21. The U.S. Court of Appeals (5thCir) issued its opinion [15 pages in PDF] in TMI v. Maxwell, a domain name registration case involving the Federal AntiCybersquatting Consumer Protection Act (ACPA), the Federal Trademark Dilution Act (FTDA), and the Texas state anti-dilution statute.

Maxwell registered domain names, and operated a web site, using names very similar to that of TMI. However, as the Appeals Court concluded, it was a consumer's non-commercial website published for the purpose of complaining. The District Court had little sympathy for Maxwell, and granted judgment under the ACPA and Texas law. It also awarded TMI $80,000. But, the Court of Appeals reversed.

The Appeals Court provided a detailed analysis of multi-part test of the ACPA, which is codified at 15 U.S.C. 1125(d). The Appeals Court, however, did not discuss the FTDA, or the Supreme Court's recent decision in the Moseley case. The District Court did not base its decision upon the FTDA.

This case is TMI, Inc. v. Joseph Maxwell, U.S. Court of Appeals for the 5th Circuit, Nos. 03-20243 and 03-20291, appeals from the U.S. District Court for the Southern District of Texas,

Sen. McConnell Advocates Extension of Expiring Sections of the PATRIOT Act

4/21. Sen. Mitch McConnell (R-KY) spoke in the Senate about the USA PATRIOT Act. He said that "we should renew the parts of the PATRIOT Act that will expire". He focused on two sections that are scheduled to sunset next year -- 201 (regarding expanding the list of predicate offenses for the issuance of wiretap orders) and 206 (regarding roving wiretaps).

"The PATRIOT Act has been a vital tool in our ongoing efforts to prevent future attacks of terrorism against Americans at home", said Sen. McConnell. "Unfortunately, we are in the middle of an election year and some Washington politicians would rather demagog the PATRIOT Act and the Attorney General for his use of it. For example, the junior Senator from Massachusetts voted for the act. But since becoming his party's presumptive nominee, he has taken an entirely different tack. For example, last month, he said: It is time to end the era of John Ashcroft. That starts with replacing the PATRIOT Act with a new law that protects our people and our liberties at the same time." See, Congressional Record, April 21, 2004 at Page S4172.

He added that "Sixteen key provisions of the act will expire on December 31 of next year. It is crucial that law enforcement not be deprived of these tools. While I cannot prevent election year politics, I can try to disabuse my colleagues of erroneous assumptions about some of these provisions."

President Bush has been giving speeches in the past week in which he has advocated extending and expanding the PATRIOT Act. Like Sen. McConnell, the President has focused on roving wiretaps in his speeches. However, Bush has not focused on predicate offenses for issuance of wiretap orders.

Predicate Offenses for Issuance of Wiretap Orders. 201 of the PATRIOT Act provides, in part, that "Section 2516(1) of title 18, United States Code, is amended ... by inserting ... the following new paragraph: ... any criminal violation of section 229 (relating to chemical weapons); or sections 2332, 2332a, 2332b, 2332d, 2339A, or 2339B of this title (relating to terrorism)". (Parentheses in original.)

18 U.S.C. 2516 pertains to "Authorization for interception of wire, oral, or electronic communications". It provides a list of the persons in the Department of Justice who have authority to authorize an application to a federal judge for a "an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency".

It then provides a list of crimes that can serve as predicate offenses for the issuance of a wiretap order. The list was already large. 201 of the PATRIOT Act expands this list of predicate offences to include crimes relating to terrorism.

For example, it adds 18 U.S.C. 2332a, which pertains to the use of certain weapons of mass destruction, 18 U.S.C. 2332d, which pertains to certain crimes involving financial transactions, 18 U.S.C. 2339A, which pertains to providing material support to terrorists, and 18 U.S.C. 2339B, which pertains to providing material support or resources to designated foreign terrorist organizations.

Sen. McConnell stated that 201 "allows law enforcement to use existing electronic surveillance authorities to investigate certain crimes that terrorists are likely to commit. Now, the myth about section 201 is as follows: Some contend that the Government already has the authority to investigate cases of suspected terrorism and, therefore, section 201 is completely overkill. But the fact is, before section 201 of the PATRIOT Act, law enforcement had the authority to conduct some electronic surveillance when investigating ordinary nonterrorism crimes. But law enforcement could not use wiretaps to investigate all of the crimes that terrorists will commit."

He emphasized the point. "Let's go over that one more time. Law enforcement could use wiretaps to investigate mail fraud but not for chemical weapons offenses or offenses related to dirty bombs, killing Americans overseas, or terrorism financing. That is an absurd position for the law to be in."

Sen. McConnell referenced "politicians" who "would rather demagog the PATRIOT Act". The leading bill in the Senate to allow some sections of the PATRIOT Act to sunset, and to rollback still other sections, is sponsored by Sen. Larry Craig (R-ID) and others. It would allow  201 to sunset.

Notably, Sen. McConnell did not reference 202, which also expands the list of predicate offenses for the issuance of a wiretap order. The PATRIOT Act provides that it too will sunset next year. Sen. Craig's bill would also sunset it. It adds felony violations of 18 U.S.C. 1030, regarding computer fraud and abuse, to the list of predicate offenses.

(On October 2, 2003, Sen. Craig introduced S 1709, the "Security and Freedom Ensured Act of 2003". There are now 19 sponsors. See, story titled "Senators Craig and Durbin Introduce Bill to Modify PATRIOT Act" in TLJ Daily E-Mail Alert No. 753, October 6, 2003.)

Roving Wiretaps. Sen. McConnell stated that "Another section that has been misunderstood is section 206. This provision allows roving wiretaps in national security investigations. But it only allows them when the FISA court finds that a suspect may thwart surveillance. In a roving wiretap, the tap attaches to a suspect rather than to a device so that the suspect cannot defeat surveillance simply by changing cell phones, for example. The myth is that section 206 is a broad expansion of power without privacy protections."

Sen. McConnell added that "the facts are that those assertions are incorrect. For over a quarter of a century, law enforcement has used roving wiretaps to solve ordinary crimes such as drug offenses."

The USA PATRIOT Act is an acronym for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001". It was passed quickly after the terrorist attacks of September 11, 2001 by the 107th Congress as HR 3162. It became Public Law 107-56 on October 26, 2001.

President Bush has been speaking about the PATRIOT Act frequently since Saturday, April 17. On April 17 he gave a brief radio address. See, story titled "Bush Addresses PATRIOT Act" in TLJ Daily E-Mail Alert No. 879, April 19, 2004. On April 19 he gave a speech in Hershey, Pennsylvania. See, stories titled "Bush Proposes to Extend and Expand PATRIOT Act" and "Bush Opposes Congressional Proposals to Roll Back Parts of PATRIOT Act" in TLJ Daily E-Mail Alert No. 880, April 20, 2004. On Tuesday, April 20, he gave speech in Buffalo, New York. See, story titled "Bush Continues to Speak About PATRIOT Act" in TLJ Daily E-Mail Alert No. 881, April 21, 2004. On April 21, he gave a speech in Washington DC. See, story titled "Bush Addresses Broadband Policy, Free Trade and the PATRIOT Act" in TLJ Daily E-Mail Alert No. 882, April 22, 2004.

DOJ Announces Raids of Online Piracy Organizations

4/22. The Department of Justice (DOJ) announced in a release that on April 21 and 22, 2004 law enforcement agencies in the U.S. and other countries "conducted over 120 searches worldwide to dismantle some of the most well-known and prolific online piracy organizations". The DOJ called this "Operation Fastlink".

The DOJ elaborated that "Operation Fastlink is the culmination of four separate undercover investigations simultaneously being conducted by the FBI, coordinated by the FBI Cyber Division, and the U.S. Department of Justice, coordinated by the Computer Crimes and Intellectual Property Section (CCIPS) of the Criminal Division. As a result of Fastlink, over 120 total searches have been executed in the past 24 hours in 27 states and in 10 foreign countries."

It continued that "Foreign searches were conducted in Belgium, Denmark, France, Germany, Hungary, Israel, the Netherlands, Singapore, Sweden as well as Great Britain and Northern Ireland. Operation Fastlink is the largest multi-national law enforcement effort ever directed at online piracy. Nearly 100 individuals worldwide have been identified by the investigation to date, many of whom are the leaders or high-level members of various international piracy organizations. As the investigations continue, additional targets will be identified and pursued."

The DOJ added that "The investigations focused on individuals and organizations, known as ``warez创 release groups, that specialize in the Internet distribution of pirated materials. Release groups are the first-providers -- the original source for most of the pirated works traded or distributed online. Once a release group prepares a stolen work for distribution, the material is distributed in minutes to secure, top-level warez servers and made available to a select clientele. From there, within a matter of hours, the pirated works are further distributed throughout the world, ending up on public channels on IRC and peer-to-peer file sharing networks accessible to anyone with Internet access."

The DOJ added that it received assistance from the Business Software Alliance (BSA), Entertainment Software Association (ESA), the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA).

Robert Holleyman, P/CEO of the BSA, stated in a release that "Law enforcement agencies attempted to seize counterfeit goods including pirated business software, games, movies and music." He added that "Today's announcement is an excellent example of the increase in law enforcement activity aimed at combating software piracy on the Internet. We commend the FBI for its leadership and initiative in addressing the serious threat of software piracy."

Mitch Bainwol, Ch/CEO of the RIAA, praised the DOJ and others in a release. "They have undertaken and spearheaded an unprecedented, international initiative that strikes a forceful blow at global piracy operations that have been wreaking enormous damage on creative communities around the world. This is a sizeable achievement and creators all over the world owe a debt of gratitude."

He added that "Sophisticated piracy operations like those targeted by the Justice Department often seed unauthorized file sharing networks with new music, particular those songs not yet commercially released."

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

The Senate will not meet.

9:00 AM - 1:00 PM. Day three of a three day meeting of the National Commission on Libraries and Information Science (NCLIS) will hold a meeting. See, notice in the Federal Register, April 12, 2004, Vol. 69, No. 70, at Page 19240. Location: 1110 Vermont Avenue, NW, Suite 820.

9:30 AM. The House Armed Services Committee will hold a hearing titled "The China Factor: China's Acquisition of Western Arms and Critical Technology". The witnesses will be Newt Gingrich (American Enterprise Institute), Frank Kramer (Shea & Gardner), Richard Fisher (Center for Security Policy), and John Tkacik (Heritage Foundation). Location: Room 2212, Rayburn Building.

10:00 AM. The Federal Communications Commission's (FCC) Technological Advisory Committee will hold a meeting. The agenda includes broadband wireless and spam. See, notice [PDF] and agenda [PDF]. The event will be audio webcast. Location: FCC, Commission Meeting Room, Room TW-C305, 445 12th Street, SW.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding auction procedures for the September 15, 2004 Automated Maritime Telecommunications System Spectrum Auction. See, notice in the Federal Register, April 20, 2004, Vol. 69, No. 76, at Pages 21110 - 21114.

Monday, April 26

The Senate will meet at 1:00 PM for morning hour, and at 2:00 PM to resume consideration of the motion to proceed to S 150, the "Internet Tax Non-discrimination Act of 2003".

Tuesday, April 27

? 9:30 AM. The Senate Commerce Committee will hold a hearing to examine telecommunications policy. Press contact: Rebecca Hanks (McCain) at 202 224-2670. Location: Room 253, Russell Building.

9:30 - 10:30 AM. Federal Communications Commission (FCC) Commissioner Jonathan Adelstein will host an event titled "press breakfast". The notice requests an RSVP to Anne Perkins (202-418-2314) in Commissioner Adelstein's office by April 26. Location: FCC, 8th Floor Conference Room.

? 10:00 AM. The Senate Judiciary Committee will hold a hearing on the nomination of Brett Kavanaugh to be a Judge of the U.S. Court of Appeals for the District of Columbia. Location: Room 226, Dirksen Building.

10:00 AM - 5:30 PM. Day one of a two day meeting of the Federal Communications Commission's (FCC) Enhanced 911 Coordination Initiative. See, agenda [PDF]. Location: FCC, 445 12th Street, SW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the Department of Justice's (DOJ) petition for a rulemaking proceeding [PDF] regarding surveillance of voice over internet protocol (VOIP), regulation of VOIP related technologies, the Communications Assistance for Law Enforcement Act (CALEA), and related issues. This is RM-10865. See, FCC notice [PDF] (DA 04-700). See also, TLJ table titled "Summary of Comments Submitted to the FCC in Response to the DOJ's CALEA Petition".

Deadline to submit applications to the National Telecommunications and Information Administration (NTIA) for grants under the Technology Opportunity Program (TOP). Grant applications must be either postmarked no later than April 27, 2004, or hand-delivered no later than 5:00 PM EST on April 27, 2004. See, notice in the Federal Register, February 17, 2004, Vol. 69, No. 31, at Pages 7452 - 7454, story titled "NTIA Publishes Notice Regarding TOP Grants" in TLJ Daily E-Mail Alert No. 839, February 18, 2004; and the NTIA's TOP web page.

Wednesday, April 28

9:00 AM - 1:00 PM. Day two of a two day meeting of the Federal Communications Commission's (FCC) Enhanced 911 Coordination Initiative. See, agenda [PDF]. Location: FCC, 445 12th Street, SW.

12:00 NOON. The Progress and Freedom Foundation (PFF) will host a luncheon. The speakers will be Richard Notebaert (Ch/CEO of Qwest Communications), Anna-Marie Kovacs (Janney Montgomery Scott), Frank Governali (Goldman Sachs), and Blake Bath (Lehman Brothers). See, notice and online registration page. Press contact: David Fish at 202 289-8928 or dfish@pff.org. Location: Rotunda Room, Ronald Reagan Building and International Trade Center, 1300 Pennsylvania Ave., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Online Communications Committee will host a brown bag lunch. The speaker will be Hillary Brill, Legislative Director for Rep. Rick Boucher (D-VA). RSVP to Evelyn Opany at 202 689-7163. Location: Piper Rudnick, 1200 19th Street, NW.

Thursday, April 29

? 9:30 AM. The Senate Commerce Committee will hold a hearing to examine telecommunications policy. Press contact: Rebecca Hanks (McCain) at 202 224-2670. Location: Room 253, Russell Building.

10:00 AM. The House Commerce Committee's Subcommittee on Commerce, Trade, and Consumer Protection will hold a hearing titled "Spyware: What You Don't Know Can Hurt You". The hearing will be webcast by the Committee. See, notice. Press contact: Larry Neal or Jon Tripp at 202 225-5735. Location: Room 2322, Rayburn Building.

10:00 AM. The Senate Appropriations Committee's Subcommittee on Commerce, Justice, State, and the Judiciary will hold a hearing on intellectual property issues. Location: Room 192, Dirksen Building.

12:15 - 2:00 PM. The Forum on Technology and Innovation will host a luncheon titled "The Impact of Expensing Stock Options on the Tech Industry". The speakers will be Dick Grannis (VP and Treasurer of Qualcomm), Karen Kerrigan (Chairman of the Small Business Survival Committee), and Roberto Mendoza (Chairman of IFL). See, registration page. Location: Room 902, Hart Building, Capitol Hill.

12:15 PM. The Federal Communications Bar Association's (FCBA) Media Practice Committee will host a brown bag lunch. The topic will be the Federal Communications Commission's (FCC) television license renewal process. The speakers will be Barbara Kreisman and staff of the FCC's Video Division. RSVP to John Logan at jlogan@dlalaw.com. Location: Dow Lohnes & Albertson, 1200 New Hampshire Ave., NW.

Friday, April 30

10:00 AM - 2:00 PM. The AEI-Brookings Joint Center for Regulatory Studies will host a pair of panel discussions titled "Intellectual Property Rights in Frontier Industries: Software and Biotech". At 10:15 AM there will be a panel titled "Biotechnology and IPR". At 12:00 NOON there will be a luncheon panel discussion titled "Software and IPR". The speakers will be Scott Wallsten (AEI-Brookings), David Mowery (UC Berkeley), Dan Burk (University of Minnesota), and Starling Hunter (MIT). Location: AEI, 1150 17th St., NW, 12th Floor.

12:00 NOON - 2:00 PM. The Progress & Freedom Foundation (PFF) will host a panel discussion titled "Accelerating the Transition to Digital TV: Developments at the FCC and in Congress". The speakers will be Ken Ferree (Chief of the Federal Communications Commission's Media Bureau), John Kneuer (National Telecommunications and Information Administration), Thomas Lenard (PFF), and Steve Sharkey (Motorola). Lunch will be served. See, notice and registration page. Press contact: David Fish at 202-289-8928 or dfish@pff.org. Location: Room 253, Russell Building, Capitol Hill.

Deadline to submit applications to the Department of Agriculture's Rural Utilities Service (RUS) for Distance Learning and Telemedicine (DLT) Program grants. Paper copies must be postmarked and mailed, shipped, or sent overnight no later than April 30, 2004, to be eligible for FY 2004 grant funding. Electronic copies must be received by April 30, 2004, to be eligible for FY 2004 grant funding. See, notice in the Federal Register, March 1, 2004, Vol. 69, No. 40, at Pages 9576-9582.

Deadline to submit applications to the Privacy Office of the Department of Homeland Security (DHS) for membership on its new Data Integrity, Privacy, and Interoperability Advisory Committee. See, notice in the Federal Register, April 9, 2004, Vol. 69, No. 69, at Page 18923.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding auction procedures for the September 15, 2004 Automated Maritime Telecommunications System Spectrum Auction. See, notice in the Federal Register, April 20, 2004, Vol. 69, No. 76, at Pages 21110 - 21114.

Senate Judiciary Committee Postpones Consideration of Intellectual Property Bills

4/22. The Senate Judiciary Committee held an executive business meeting. The agenda included consideration of five bills pertaining to intellectual property, and several judicial nominees. However, the Committee postponed consideration of all five bills, and all of the judicial nominees.

Sen. Orrin Hatch (R-UT), the Chairman of the Committee, stated that he intends to move these five intellectual property bills at the Committee's business meeting next week. There was no debate on any of the bills. No amendments were offered.

The bills are S 2192, the "Cooperative Research and Technology Enhancement Act" (CREATE Act), HR 1561, the "United States Patent and Trademark Fee Modernization Act of 2004", S 1933, the "Enhancing Federal Obscemity Reporting and Copyright Enforcement Act of 2003", S 2237, the "Protecting Intellectual Rights Against Theft and Expropriation Act of 2004", S 1932 the "Artists' Rights and Theft Prevention Act of 2003". See, story titled "Senate Judiciary Committee to Take Up Intellectual Property Bills" in TLJ Daily E-Mail Alert No. 882, April 22, 2004.

The postponed judicial nominees are Henry Saad (to be a Judge of the U.S. Court of Appeals for the Sixth Circuit), William Duane Benton (Eighth Circuit), Robert Bryan Harwell (District of South Carolina), and George Schiavelli (Central District of California).

More Capitol Hill News

2/21. The House Financial Services Committee's (HFSC) Subcommittee on Capital Markets held a hearing to evaluate the Financial Accounting Standards Board's (FASB) exposure draft on share-based payments, or stock options, and its effects on publicly traded companies. See, opening statement [PDF] of Rep. Mike Oxley (R-OH), the Chairman of the HFSC. See, also prepared testimony of witnesses in PDF: Jeff Thomas (Altera Corporation), Douglas Holtz-Eakin (Congressional Budget Office), Kevin Hassett (American Enterprise Institute), Douglas Kruse (Rutgers University), Phil Smith (Taser International, Inc.), Robert Grady (Carlyle Venture Partners), George Scalise (Semiconductor Industry Association).

2/21. The House Homeland Security Committee's Subcommittee on Infrastructure and Border Security and Subcommittee on Cybersecurity, Science and Research and Development, held a joint hearing to examine the relationship between the Department of Homeland Security (DHS) and the critical infrastructure sectors. See, opening statement by Rep. Chris Cox (R-CA), the Chairman of the Committee. See also, prepared testimony [43 pages in PDF] of Robert Dacey of the General Accounting Office (GAO) titled "Critical Infrastructure Protection: Establishing Effective Information Sharing with Infrastructure Sectors".

More News

4/22. The Internet Corporation for Assigned Names and Numbers (ICANN) filed a motion and memorandum in support [20 pages in PDF] with the U.S. District Court (CDCal) in VeriSign v. ICANN to strike several of VeriSign's claims as strategic lawsuits against public participation, in violation of the California anti-SLAPP statute, which is codified at Cal. Civ. Proc. Code 425.16.

4/22. The International Competition Network (ICN), which held its third annual conference in Seoul, South Korea on April 21 and 22, announced that it adopted four recommended practices for merger notification procedures. See, ICN release.

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