4/29. The Senate passed an amended version of S 150, the "Internet Tax Non-discrimination Act of 2003". The Senate passed a compromise version offered by Sen. John McCain (R-AZ). The Senate bill extends the moratorium of the 1998 Internet Tax Freedom Act until November 1, 2007. (There will be further coverage in the Monday issue of the TLJ Daily E-Mail Alert.)

4/29. The Senate Judiciary Committee (SJC) unanimously approved, without amendment, four major bills affecting intellectual property: S 2192 (CREATE Act), HR 1561 (USPTO fee bill), S 2237 (PIRATE Act), and S 1932 (ART Act). The Committee held over S 1933 (EnFORCE Act).

Sen. Patrick Leahy (D-VT), the ranking Democrat on the SJC, stated that the SJC may make some changes to HR 1561 before consideration by the full Senate. Also, Sen. Orrin Hatch (R-UT) stated that some or all of these bills may be combined into a single bill.

EnFORCE Act. Sen. Hatch announced at the outset that this bill would be held over until a later executive business meeting. He offered no explanation. There was no further debate on this bill.

S 1933, the "Enhancing Federal Obscemity Reporting and Copyright Enforcement Act of 2003" (EnFORCE Act), contains six mostly unrelated amendments to the Copyright Act.

Sen. Orrin Hatch (R-UT), Sen. Dianne Feinstein (D-CA) and Sen. John Cornyn (R-TX) introduced this bill on November 21, 2003. See, story titled "Sen. Hatch Introduces Bill With Numerous Amendments to Copyright Act" in TLJ Daily E-Mail Alert No. 791, December 3, 2003. (This story summarizes the bill.)

ART Act. Sen. Dianne Feinstein (D-CA) and Sen. John Cornyn (R-TX), who are sponsors of  S 1932 the "Artists' Rights and Theft Prevention Act of 2003" (ART Act), both spoke in support of this bill..

They recited examples of individuals surreptitiously using camcorders at pre-screenings of movies, such as The Passion of the Christ and Kill Bill, and then distributing the recordings on the internet. Sen. Feinstein warned that "this is going to decimate this part of our intellectual property industry in America". She added that for the movie industry "there is no greater priority than passage of this bill".

Statutory provisions relating to criminal copyright infringement are found in both Title 18 (criminal code) and Title 17 (copyright act). 17 U.S.C. § 506 contains the criminal prohibition on certain acts of copyright infringement. 18 U.S.C. § 2319 provides penalties for violations of 17 U.S.C. § 506.

First, this bill would add a new Section 2319B to the criminal code prohibiting the unauthorized recording of motion pictures in a motion picture exhibition facility. Second, the bill would revise both 18 U.S.C. § 2319 and 17 U.S.C. § 504 to make it easier to prosecute, and obtain civil remedies for, certain acts of copyright infringement.

See also, story titled "Senators Introduce Bill to Increase Protection of Pre-Released Movies and Other Unpublished Works" in TLJ Daily E-Mail Alert No. 786, November 25, 2003.

USPTO Fee Bill. The Committee approved HR 1561, the "United States Patent and Trademark Fee Modernization Act of 2004" without amendment. However, Sen. Leahy stated that there may be some changes in the version of bill that will be considered on the Senate floor. He did not identify what these changes might be. There was no further debate or discussion of this bill. Although, at the beginning of the meeting, while waiting for a quorum of Senators to arrive, Sen. Hatch praised this bill.

The House passed this bill on March 3, 2004 by a vote of 379-28. See, Roll Call No. 38. See also, story tiled "House Passes USPTO Fee Bill" in TLJ Daily E-Mail Alert No. 849, March 4, 2004.

The bill contains increases in user fees that implement the U.S. Patent and Trademark Office's (USPTO) 21st Century Strategic Plan. It also provides for U.S. outsourcing of patent searches, and an end to the diversion of user fees to subsidize other government programs.

CREATE Act. The SJC also approved, without amendment, and without debate, S 2192, the "Cooperative Research and Technology Enhancement Act" (CREATE Act). This is a non-controversial bill to promote collaborative research.

The House passed its version of the bill, HR 2391, on March 10, 2004 by a voice vote. See, story titled "House Passes CREATE Act" in TLJ Daily E-Mail Alert No. 854, March 11, 2004. Sen. Orrin Hatch (R-UT), the Chairman of the SJC, Sen. Patrick Leahy (D-VT), the ranking Democrat on the SJC, and others, introduced S 2192 on March 10.

The bill would amend Section 103(c) of the Patent Act, which is codified at 35 U.S.C. § 103, to address the August 8, 1997 opinion of the U.S. Court of Appeals for the Federal Circuit in OddzOn Products, Inc. v. Just Toys, Inc., which ruled that derived prior art may serve as evidence of obviousness.

PIRATE Act. Finally, the SJC approved, without amendment and without debate, S 2237, the "Protecting Intellectual Rights Against Theft and Expropriation Act of 2004".

The bill has two provisions. First, it would authorize the Department of Justice (DOJ) to bring civil actions for copyright infringement for conduct that already constitutes criminal copyright infringement under 17 U.S.C. § 506. This would accomplish two things. It would make it easier to prevail, because, among other things, the civil action would have a lower burden of proof. It would also provide a less punitive action for youthful P2P music pirates. Second, the bill would establish a training program (and authorize funding of $2,000,000) to educate DOJ and U.S. Attorneys Office personnel in copyright enforcement matters.

Sen. Leahy and Sen. Hatch introduced this bill on March 25, 2004. See, story titled "Leahy and Hatch Introduce Bill to Give DOJ Authority to Bring Civil Actions for Copyright Infringement" in TLJ Daily E-Mail Alert No. 866, March 30, 2004.

4/29. Leading members from both parties on the House Homeland Security Committee wrote a letter [2 pages in PDF] to Tom Ridge, the Secretary of Homeland Security, requesting information about the Department of Homeland Security's (DHS) implementation of the President’s February 2003 National Strategy to Secure Cyberspace, and requesting Ridge's views on the organization of the DHS's National Cybersecurity Division (NCSD).

The letter was signed by Rep. Chris Cox (R-CA), Chairman of the Committee, Rep. Jim Turner (D-TX), the ranking Democrat on the Committee, Rep. Mac Thornberry (R-TX), the Chairman the Subcommittee on Cybersecurity, Science & Research and Development, and Rep. Zoe Lofgren (D-CA), the ranking Democrat on the Subcommittee.

The letter states that "We request a detailed action or implementation plan that links the Department’s cyber program and budget needs to the National Strategy to Secure Cyberspace."

It also states that "We would appreciate receiving your views on both the effectiveness and organizational placement of the National Cybersecurity Division."

See also, story titled "Bush Administration Releases Final Cyber Security Plan" in TLJ Daily E-Mail Alert No. 605, February 17, 2003, and story titled "House Democrats Criticize Bush Administration on Cyber Security and Use of IT" in TLJ Daily E-Mail Alert No. 818, January 19, 2004.

4/29. The House Commerce Committee's Subcommittee on Commerce, Trade, and Consumer Protection announced that it will hold a hearing on HR 107, the "Digital Media Consumers' Rights Act of 2003" on Wednesday, May 12.

Rep. Rick Boucher (D-VA) and Rep. John Doolittle (R-CA) introduced this bill on January 7, 2003, and an earlier version, HR 5544 (107th Congress), in late 2002. It would roll back the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) by creating fair use exceptions to the bans on circumvention of technological measures to protect copyrighted works, and by providing an exception for scientific research into technological protection measures.

See, story titled "Reps. Boucher and Doolittle Introduce Digital Fair Use Bill" in TLJ Daily E-Mail Alert No. 582, January 14, 2003, and stories titled "Reps. Boucher and Doolittle Introduce Digital Media Consumer Rights Act" and "Summary of the Digital Media Consumer Rights Act" in TLJ Daily E-Mail Alert No. 532, October 4, 2002.

This is an intellectual property bill. It has been referred to both the House Judiciary Committee, which tends to support intellection property protections, and the House Commerce Committee, which often does not. The bill also contains a provision requiring that certain information be placed on the labels of music discs, and providing that a violation would constitute an unfair or deceptive trade practice within the meaning of the Federal Trade Commission Act. This serves as the basis for Commerce Committee jurisdiction.

4/29. The U.S. Court of Appeals (9thCir) issued an order [PDF] the the case Gator.com v. L.L. Bean be reheard en banc. The three judge panel issued its opinion [16 pages in PDF] on September 2, 2003 holding that personal jurisdiction over an out of state defendant may be based upon its operation of a web site that engages in electronic commerce.

The three judge panel held that L.L.Bean (which is a corporation based in the state of Maine that sells clothing and related items to consumers by direct mail and over the internet) has substantial or continuous and systematic contacts with California sufficient to support a finding of general jurisdiction.

It wrote that "It is increasingly clear that modern businesses no longer require an actual physical presence in a state in order to engage in commercial activity there. With the advent of ``ecommerce,´´ businesses may set up shop, so to speak, without ever actually setting foot in the state where they intend to sell their wares. Our conceptions of jurisdiction must be flexible enough to respond to the realities of the modern marketplace." It added that "Businesses who structure their activities to take full advantage of the opportunities that virtual commerce offers can reasonably anticipate that these same activities will potentially subject them to suit in the locales that they have targeted."

It also distinguished L.L.Bean from some other smaller entities that engage in e-commerce, or merely operate a web site. It wrote that L.L.Bean is "a multi-million dollar company that concedes that its agents regularly do business around the country, including flying to California to meet with vendors. Nor does this case present issues whose disposition will rely on access to L.L. Bean's facilities or records. Moreover, the burden on Gator if it were forced to proceed in Maine would be at least equal to, if not more severe, than the burden faced by L.L. Bean."

The body of case law regarding personal jurisdiction over out of forum parties based upon internet activity is growing, but not consistent. The Supreme Court has yet to take a case in this area.

See also, story titled "9th Circuit Rules on Personal Jurisdiction Over Internet Retailers" in TLJ Daily E-Mail Alert No. 731, September 3, 2003.

This case is Gator.com Corp. v. L.L. Bean Inc., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 02-15035, an appeal from the U.S. District Court for the Northern District of California, Magistrate Judge Maria-Elena James presiding, D.C. No. CV-01-01126-MEJ.

4/29. Sen. Orrin Hatch (R-UT), the Chairman of the Senate Judiciary Committee, spoke about the nomination of Jonathan Liebowitz to be a Commissioner of the Federal Trade Commission (FTC) at a Committee meeting. Sen. Hatch praised Liebowitz, who was previously a long time Judiciary Committee staff assistant to Sen. Herb Kohl (D-WI).

4/29. Joe Pouliot was named Communications Director for the House Science Committee. He has been the acting Communications Director since March.

4/29. David Mayorga was named Administrative Clerk of the House Science Committee. He has been, and remains, Special Assistant to the Chief of Staff of the Committee.

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 comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding unwanted mobile service commercial messages and the CAN-SPAM Act. This is CG Docket No. 04-53. See, notice in the Federal Register, March 31, 2004, Vol. 69, No. 62, at Pages 16873 - 16886.

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.

Deadline for the President to submit a report to the Congress on the operations of the Directorate of Information Analysis and Infrastructure Protection of the Department of Homeland Security and the Terrorist Threat Integration Center. This report is required by Section 359 of HR 2417, the "Intelligence Authorization Act for Fiscal Year 2004". See, story titled "Bush Signs Intelligence Authorization Bill" in TLJ Daily E-Mail Alert No. 799, December 15, 2003.

The Supreme Court will begin a recess. (It will return on May 17, 2004.)

9:00 - 10:30 AM. The American Enterprise Institute (AEI) will host a panel discussion titled "The Audiovisual Services Sector in the GATS Negotiations". The audiovisual services sector includes movies, television, radio. See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Typeright v. Microsoft, No. O3-1197. Location: Courtroom 203, 717 Madison Place, NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding whether certain rules should be repealed or modified because they are no longer necessary in the public interest. The FCC released this NPRM on January 12, 2004. This item is FCC 03-337 in WC Docket No. 02-313. See, notice in the Federal Register, March 18, 2004, Vol. 69, No. 53, at Pages 12814-12826.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding broadband over powerline systems. The FCC adopted this NPRM on February 12, 2004. See, story titled "FCC Adopts Broadband Over Powerline NPRM" in TLJ Daily E-Mail Alert No. 836, February 13, 2004. The FCC released the text of this NPRM on February 23, 2004. This NPRM is FCC 04-29 in ET Docket Nos. 03-104 and 04-37. See, notice in the Federal Register, March 17, 2004, Vol. 69, No. 52, at Pages 12612-12618.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rule Making and Order [53 pages in PDF] regarding cognitive radio technologies and software defined radios. This item is FCC 03-322 in ET Docket No. 03-108 and ET Docket No. 00-47. See, notice in the Federal Register, February 17, 2004, Vol. 69, No. 31, at Pages 7397 - 7411, and story titled "FCC Releases Cognitive Radio Technology NPRM" in TLJ Daily E-Mail Alert No. 808, December 31, 2003.

9:30 AM. The Senate Commerce Committee will hold a hearing on reauthorization of the Satellite Home Viewers Improvement Act of 1999. Location: Room 253, Russell Building.

9:30 AM. The Heritage Foundation will host an event titled "Protecting Civil Liberties and Fighting Terrorism: The USA Patriot Act". The speakers will be James Comey (Deputy Attorney General), Asa Hutchinson (Undersecretary for Border Security and Transportation, Department of Homeland Security), William Fox (Department of the Treasury), William Bennett (Empower America), and Edwin Meese (Heritage). See, notice. Location: Heritage Foundation, 214 Massachusetts Ave., NE.

2:00 AM. The House Financial Services Committee's (HFSC) Subcommittee on Capital Markets will hold its second hearing on the Financial Accounting Standards Board's (FASB) exposure draft on share-based payments, or stock options, and its effects on publicly traded companies. It held its first hearing on April 21. This hearing is titled "The FASB Stock Options Proposal: Its Effect on the U.S. Economy and Jobs". Location: Room 2128, Rayburn Building.

9:00 AM - 12:00 PM. The Telecommunications Service Priority System Oversight Committee will meet. See, notice in the Federal Register, April 16, 2004, Vol. 69, No. 74, at Page 20636. Location: 701 South Courthouse Road, Arlington, VA.

9:30 AM - 3:00 PM. The American Enterprise Institute (AEI) will host an event titled "Sarbanes-Oxley: A Review". At 12:15 PM, the luncheon speaker will be Dell CEO Kevin Rollins. See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

12:15 - 1:45 PM. The Center for Democracy and Technology (CDT) will host a brown bag lunch titled "South Korea's 2nd Net Election -- The Screen Shots" and "US Election 2004 Online -- A Virtual Civil War?". RSVP by 12:00 NOON on Tuesday, May 4 to ari@cdt.org or 202 637-9800. Location: CDT, 1634 I St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry and Notice of Proposed Rulemaking (NOI & NPRM) [31 pages in PDF] regarding the interference temperature method of quantifying and managing interference among different services. See, notice in the Federal Register, January 21, 2004, Vol. 69, No. 13, at Pages 2863 - 2870. This NOI/NPRM is FCC 03-289 in ET Docket No. 03-237. See also, stories titled "FCC Announces NOI/NPRM on Interference Temperature Model" in TLJ Daily E-Mail Alert No. 779, November 14, 2003, and "FCC Releases NOI/NPRM on Interference Temperature Approach" in TLJ Daily E-Mail Alert No. 789, December 1, 2003.

9:30 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "The 'Dot Kids' Internet Domain: Protecting Children Online". The hearing will be webcast. Press contact: Jon Tripp (Barton) at 202 225-5735 or Sean Bonyun (Upton) 202 225-3761. See, notice. Location: Room 2123, Rayburn Building.

10:00 AM. The House Commerce Committee's Subcommittee on Commerce, Trade and Consumer Protection will hold a hearing titled "Online Pormography: Closing the Doors on Pervasive Smut". The hearing will be webcast by the Committee. Rep. Cliff Stearns (R-FL) will preside. Press contact: Samantha Jordan (Barton) at 202 225-5735 or Paul Flusche (Stearns) at 202 225-5744. Location: Room 2322, Rayburn Building.

2:30 PM. The Senate Judiciary Committee will hold a hearing on the nomination of Jonathan Dudas to be Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office (USPTO). Location: Room 226, Dirksen Building.

Day one of a two day conference hosted by the Computer Law Association titled "2004 World Computer and Internet Law Congress". Prices vary. See, event brochure [PDF]. Location: Park Hyatt, 1201 24th Street, NW.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding the provision of international telecommunications
service. This NPRM is FCC 04-40 in IB Docket No. 04-47. See, notice in the Federal Register, March 22, 2004, Vol. 69, No. 55, at Pages 13276 - 13278.

9:00 AM - 1:00 PM. The Federal Communications Commission's (FCC) Internet Policy Working Group (IPWG) will hold its second "Solutions Summit". This summit will focus on disability access issues associated with internet protocol technologies. See, agenda [PDF]. Location: FCC, 445 12th St., SW.

9:30 AM. The U.S. Court Appeals (DCCir) will hear oral argument in AT&T Wireless v. FCC, No. 03-1042. Judges Edwards, Randolph and Tatel will preside. Location: Prettyman Courthouse, 333 Constitution Ave.

10:00 AM - 4:00 PM. The Department of Commerce's (DOC) National Medal of Technology Nomination Evaluation Committee will hold a closed meeting to discuss the relative merits of persons and companies nominated for the medal. See, notice in the Federal Register, April 19, 2004, Vol. 69, No. 75, Page 20863. Location: Room 4813, DOC, 1401 Constitution Ave., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch. The topic will be "The Role of In House Counsel". The speakers will be Susan Fox (Disney), Phil Passanante (RCN), Doug Brandon (AT&T Wireless), and Lon Levin (XM Satellite Radio). For more information, contact Chris Fedeli at cfedeli@covad.net or Tony Lin at tony.lin@shawpittman.com. Location: Shaw Pittman, 2300 N Street, NW, Conference Room.

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Committee will host a luncheon titled "Hot Topics for NTIA". The speaker will be Michael Gallagher (acting head of the National Telecommunications and Information Administration), and NTIA staff. The price to attend is $15.00. FCBA registration form [PDF] required. Location: Sidley Austin, 1501 K Street, NW, 6th floor.

Day two of a two day conference hosted by the Computer Law Association titled "2004 World Computer and Internet Law Congress". Prices vary. See, event brochure [PDF]. Location: Park Hyatt, 1201 24th Street, NW.

Deadline to submit requests to the Federal Trade Commission (FTC) to participate as a panelist in its June 21, 2004 workshop on the uses, efficiencies, and implications for consumers associated with radio frequency identification (RFID) technology. See, FTC web page for this workshop, and notice in the Federal Register, April 15, 2004, Vol. 69, No. 73, at Pages 20523 - 20525.