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June 17, 2004, 9:00 AM ET, Alert No. 920.
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District Court Upholds Constitutionality of § 514 of Uruguay Round Agreements Act

6/10. The U.S. District Court (DC) issued its Memorandum Opinion [21 pages in PDF] in Luck's Music Library v. Ashcroft, a case upholding the constitutionality of the Uruguay Round Agreements Act, which restored copyrights in the U.S. for certain foreign works that had been in the public domain.

Luck's Music Library sells and rents classical orchestral sheet music for works already in the public domain. For example, it sold works published in the former Soviet Union written by Prokofiev, Shostakovich, Stravinsky and others. These works were in the public domain in the U.S.

Moviecraft archives films. Its library included thousands of foreign films in the public domain due to lack of copyright notices.

But then, unfortunately for Luck's and Moviecraft, the Congress passed the Uruguay Round Agreements Act (URAA). Section 514 of the URAA amended the Copyright Act, at 17 U.S.C. § 104A. In particular, the URAA restored the copyrights in the Russian works sold by Luck's, and many of the copyrights in foreign films in Moviecraft's library.

The URAA was HR 5110 in the 103rd Congress. It is now Public Law No. 103-465.

On October 29, 2001 Luck's and Moviecraft filed a complaint in U.S. District Court against John Ashcroft, in his capacity as Attorney General of the U.S., and Marybeth Peters, in her capacity as Register of Copyrights. Luck's and Moviecraft alleged that Section 514 of the URAA is unconstitutional under the intellectual property clause and the First Amendment of the Constitution. They sought declaratory and injunctive relief.

The District Court stayed proceedings to await the Supreme Court's opinion [89 pages in PDF] in Eldred v. Ashcroft, which upheld the constitutionality of the Copyright Term Extension Act, which retroactively extended the maximum duration of copyrights. This opinion was issued on January 15, 2003. It is also published at 537 U.S. 186 (2003). See also, story titled "Supreme Court Upholds CTEA in Eldred v. Ashcroft", in TLJ Daily E-Mail Alert No. 584, January 16, 2003.

Section 514 of the URAA restores copyright to foreign copyright holders whose works remain protected in their origin country, but entered the public domain in the U.S. due to the failure of the foreign copyright holder to comply with the U.S.'s copyright formalities, absence of prior subject-matter protection such as sound recordings fixed before 1972, or failure of the U.S. to recognize copyrights from that country.

The District Court held that Congress does have the power to restore copyrights, and that Section 514 does not otherwise exceed the authority of the Congress under the intellectual property clause. The Court also rejected the freedom of expression argument. Then, it dismissed the complaint for failure to state a claim upon which relief can be granted.

This case is Luck's Music Library, Inc. and Moviecraft, Inc. v. John Ashcroft and Marybeth Peters, U.S. District Court for the District of Columbia, D.C. No. 01-2220 (RMU), Judge Ricardo Urbina presiding.

FTC Recommends Against National Do Not E-Mail Registry

6/15. The Federal Trade Commission (FTC) released a report [60 pages in PDF] titled "National Do Not Email Registry: A Report to Congress".

The report concludes that "a National Do Not Email Registry, without a system in place to authenticate the origin of email messages, would fail to reduce the burden of spam and may even increase the amount of spam received by consumers. Therefore, the Commission proposes a plan that first requires authentication -- strengthening of the email system so that the origin of email messages cannot be falsified -- as a first step and a prerequisite to any type of Registry."

June 16 was the deadline for the FTC to submit its report to the Congress, pursuant to Section 9 of S 877, the "Controlling the Assault of Non-Solicited Pormography and Marketing Act of 2003" (CAN-SPAM Act). See, story titled "FTC Announces CAN-SPAM Act Rulemaking" in TLJ Daily E-Mail Alert No. 855, March 15, 2004.

The report further states that "spammers would most likely use a Registry as a mechanism for verifying the validity of email addresses and, without authentication, the Commission would be largely powerless to identify those responsible for misusing the Registry. Moreover, a Registry-type solution to spam would raise serious security, privacy, and enforcement difficulties. The Commission’s concerns with the security, privacy, and enforcement challenges surrounding a Registry reach a zenith with respect to children’s email accounts. A Registry that identified accounts used by children, for example, could assist legitimate marketers to avoid sending inappropriate messages to children. At the same time, however, the Internet’s most dangerous users, including pedophiles, also could use this information to target children."

In short, "implementation of a National Do Not Email Registry would not reduce the volume of spam".

Sen. Conrad Burns (R-MT), the sponsor of the CAN SPAM Act, stated in a release that the FTC "thoroughly examined the ability to successfully implement such a list at this point and the report has confirmed my concerns regarding the serious risks involved should the wrong person ever get their hands on a Do-Not-Spam list. All along I have stressed the need for continued oversight, both for enforcement purposes and to make sure we stay one step ahead of these big time spammers. Things change quickly in the cyber-world, and we have to work hard to keep up, but I believe we are doing a good job and I will continue working with my colleagues to make sure we continue coming down hard on these guys and continue making smart decisions to protect consumers from unwanted spam."

The FTC report "proposes a program to encourage the widespread adoption of email authentication standards that would help law enforcement and ISPs better identify spammers."

It adds that if "after allowing the private market sufficient time to develop, test, and widely implement an authentication standard, no single standard emerges, the Commission could begin the process of convening a Federal Advisory Committee to help it determine an appropriate email authentication system that could be federally required. If the Commission were to mandate such a standard, after a reasonable period of time following the effective date of such a standard, the Commission will consider studying whether an authentication system combined with enforcement or other mechanisms (e.g., better filters) had substantially reduced the burden of spam. If spam continued to be a substantial problem, if a Registry could significantly reduce it once an authentication system is in place, and if other technological developments removed the security and privacy risks associated with a Registry, the Commission will consider issuing an ANPR proposing the creation of a National Do Not Email Registry."

NTIA's Gallagher Writes Powell Re Interim Unbundling Rules

6/16. Michael Gallagher, the acting Administrator of the National Telecommunications and Information Administration (NTIA) wrote a letter to Federal Communications Commission (FCC) Chairman Michael Powell regarding the FCC's triennial review order, and USTA v. FCC.

He wrote that "The Supreme Court has decided not to grant a stay in United States Telecommunications Association v. Federal Communications Commission. The Administration believes you should act promptly using all methods at your disposal to protect consumers and ensure appropriate competitive access to local networks, including the rapid adoption of interim rules that will accomplish those goals."

Michael GallagherGallagher (at right) continued that "To ensure appropriate competitive access, the Administration believes the interim rules should cover a full year, unless superseded by permanent rules, and include the maximum legally sustainable transition period without wholesale rate increases for those network elements subject to the vacatur of the DC Circuit Court. We support your stated goal of adopting permanent rules by the end of the year, provided that the permanent rules complete the period of rate certainty initiated in the interim rules."

He concluded that "In response to your leadership, the telecommunications industry has participated in an historic effort to use commercial negotiations to end eight years of regulatory and legal stalemate. The Administration continues to support these negotiations as the best way to achieve greater market-based competition within the telecommunications industry. We encourage the FCC to aggressively continue to facilitate these negotiations. Any interim rules should ensure that consumers immediately benefit from the current and future commercially-negotiated agreements and that those agreements are protected from unnecessary legal challenges."

This letter pertains to the March 2, 2004 opinion [62 pages in PDF] of the U.S. Court of Appeals (DCCir) in USTA v. FCC (also known as USTA II), which overturned key provisions of the FCC's triennial review order [576 pages in PDF] regarding the unbundling requirements of incumbent local exchange carriers (ILECs) under 47 U.S.C. § 251.

FCC Commissioners Address Local Telephone Competition Rules

6/14. The Federal Communications Commission (FCC) issued a release [PDF] that states that FCC Chairman Michael Powell "announced today that the Commission will strive to adopt a final order on local telephone competition rules as soon as possible."

This release quotes Powell: "My fellow Commissioners and I will promptly turn to writing a set of sound rules that ensure access to incumbent networks where competition is truly impaired ... I am committed to developing competition rules that comply with the court's mandate and are faithful to the statutory objectives of the Telecommunications Act. Moreover, the Commission is prepared to consider interim, transitional protections to bridge the gap that exists in the period preceding adoption of our final rules."

Powell also stated that "Fair and sustainable competition is our goal and I am fully confident that consumers will reap the benefits ... Facilities-based competition brings the innovation and value that consumers demand. These new rules will also encourage increased investment in infrastructure that will continue to drive down prices for advanced services. In this interim period, I also strongly encourage carriers to find common ground through negotiation. Commercial agreements remain the best way for all parties to control their destiny."

FCC Commissioner Kathleen Abernathy also issued a brief statement [PDF]: "I am pleased that we are turning a corner and putting litigation behind us by commencing a rulemaking in response to the D.C. Circuit’s USTA II decision. In fact, I have argued over the last few months that writing new rules consistent with the Court’s directives is essential to bringing certainty to the market and ensuring appropriate investment incentives. I also join my colleagues in encouraging all parties to continue marketplace negotiations during the pendency of this proceeding."

FCC Commissioner Kevin Martin also issued a statement [PDF]: "I support the Chairman’s efforts to commence a proceeding to adopt local telephone competition rules. In the interim, I encourage carriers to continue their efforts to negotiate commercial arrangement for wholesale access."

The FCC also published in its website copies of letters [5 pages in PDF] from four incumbent local exchange carriers (ILECs), BellSouth, Qwest, SBC, and Verizon, on this subject.

Capitol Hill News

6/16. The House Judiciary Committee met to mark up five bills. However, the Committee did not mark up the three technology related bills that were on the agenda: HR 4518, the "Satellite Home Viewer Extension and Reauthorization Act 2004", HR 338, the "Federal Agency Protection of Privacy Act of 2004", HR 3632, the "Anti-Counterfeiting Amendments of 2003". The next mark up session is likely to be scheduled for next week.

6/16. The House Science Committee held a meeting to mark up several bills. The Committee approved an amendment in the nature of a substitute to HR 4516, the "Department of Energy High-End Computing Revitalization Act of 2004", by a voice vote. The Committee approved HR 4218, the "High Performance Computing Revitalization Act of 2004", by a voice vote. The Committee amended and approved HR 3598, the "Manufacturing Technology Competitiveness Act of 2004", by a roll call vote of 19-13.

6/16. The House Ways and Means Committee held a hearing titled "Implementation of the U.S.-Australia Free Trade Agreement". See, prepared testimony of witnesses: Josette Shiner, (Deputy U.S. Trade Representative), Allen Johnson, (USTR's Chief Agricultural Negotiator), David Sundin, (U.S. Chamber of Commerce), Russell Shade, (National Association of Manufacturers), David Wagner, (Distilled Spirits Council of the United States), and George Franklin, (Grocery Manufacturers of America).

6/15. The Senate Finance Committee held a hearing to examine the U.S. Australia and U.S. Morocco free trade agreements. See, opening statement [PDF] of Sen. Charles Grassley (R-IA), the Chairman of the Committee. See also, prepared testimony [4 pages in PDF] of Peter Allgeier (Deputy U.S. Trade Representative), prepared testimony [6 pages in PDF] of Josette Shiner (Deputy USTR), and prepared testimony [11 pages in PDF] of John Schulman (Time Warner and the Entertainment Industry Coalition for Free Trade).

People and Appointments

6/15. David Cavicke was promoted to Chief Counsel for the House Commerce Committee's Subcommittee on Commerce, Trade and Consumer Protection. He has worked for the Committee since 1995. See, release.

6/16. President Bush nominated Micaela Alvarez to be a Judge of the U.S. District Court for the Southern District of Texas. See, White House release.

Washington Tech Calendar
New items are highlighted in red.
Thursday, June 17

The House will meet at 10:00 AM for legislative business. The agenda includes possible consideration of HR 4520, the "American Jobs Creation Act of 2004". See, Republican Whip Notice.

The Senate will meet at 9:30 AM for morning business. It will then resume consideration of S 2400, the Department of Defense authorization bill for FY 2005.

8:30 AM - 1:30 PM. The Cato Institute will host an event titled "The Law and Economics of File Sharing & P2P Networks" The speakers will include Jack Valenti (Motion Picture Association of America). See, notice. The event will be webcast. Lunch will be served. Free. Location: Cato, 1000 Massachusetts Ave., NW.

8:30 AM - 1:00 PM. Day three of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board. See, notice in the Federal Register, May 28, 2004 Vol. 69, No. 104, at Page 30621. Location: Hilton Hotel, 620 Perry Parkway, Gaithersburg, MD.

9:00 AM. The Senate Governmental Affairs Committee will hold a hearing titled "Buyer Beware: The Danger of Purchasing Pharmaceuticals Over The Internet". See, notice. Location: Room 342, Dirksen Building.

9:00 AM - 5:00 PM. The Center for Strategic and International Studies (CSIS) will host an event titled "Technology Leaders Explore Geopolitical Consequences of Innovation". Location: CSIS, B-1 Conference Level, 1800 K Street, NW.

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. Location: Room 226, Dirksen Building.

9:30 AM. The House Commerce Committee's Subcommittee on Oversight and Investigations will hold a hearing titled "Problems with the E-rate Program: Waste, Fraud, and Abuse Concerns in the Wiring of Our Nation's Schools to the Internet". The hearing will be webcast. See, notice. Location: Room 2322, Rayburn Building.

9:30 AM. The Senate Foreign Relations Committee will hold a hearing on several treaties, including the Council of Europe Convention on Cybercrime. The witnesses will be Michael Schmitz (Bureau of Customs and Border Protection, Department of Homeland Security), Bruce Swartz (Criminal Division, Department of Justice), and Samuel Witten (Department of State). See, notice. Location: Room 419, Dirksen Building.

10:00 AM. The House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property will hold a hearing on HR __, the "Family Movie Act". Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

10:00 AM. The House Financial Services Committee's Subcommittee on Domestic and International Monetary Policy, Technology, and Trade will hold a hearing titled "The US-EU Regulatory Dialogue: The Private Sector Perspective". The witnesses will be Richard Thornburg (Securities Industry Association), Paul Oldshue, and Hal Scott (Harvard Law School). See, notice. For more information, contact Peggy Peterson or Scott Duncan at 202 226-0471. Location: Room 2128, Rayburn Building.

10:00 AM. Visa USA, Better Business Bureau, Call for Action, Treasury Department, and Federal Trade Commission (FTC) will hold a joint press conference to promote public awareness of phishing. The speakers will included Wayne Abernathy, Assistant Secretary of the Treasury for Financial Institutions. Location: National Press Club, Zenger Room, 529 14th Street, NW.

10:30 AM. The House Commerce Committee's Subcommittee on Commerce, Trade, and Consumer Protection will meet to mark up HR 2929, the "Safeguard Against Privacy Invasions Act". This is Rep. Mary Bono's (R-CA) anti spyware bill. See, notice. The meeting will be webcast by the Committee. Press contact: Samantha Jordan (Barton) at 202 225-5735 or Paul Flusche (Stearns) 202 225-5744. Location: Room 2123, Rayburn Building.

2:00 PM. The House Ways and Means Committee's Subcommittee on Health will hold a hearing titled "Health Care Information Technology". See, notice. Location: Room 1100, Longworth Building.

Day one of a three day event titled "China-U.S. Telecommunications Summit". See, NTIA notice and TIA notice. Location: Chicago, Illinois.

Friday, June 18

The House will meet at 9:00 AM for legislative business. See, Republican Whip Notice.

8:30 AM - 5:30 PM. There will be a one day conference titled "Washington Digital Media Conference". See, conference web site. Location: Hilton McLean, McLean, VA.

9:00 AM - 4:00 PM. The Federal Communications Commission (FCC) Consumer Advisory Committee (CAC) will meet. See, notice and agenda [4 pages in PDF] and notice in the Federal Register, May 27, 2004, Vol. 69, No. 103, at Pages 30293 - 30294. Location: FCC, Commission Meeting Room, Room TW-C305, 445 12th Street, SW.

The Defense Science Board Task Force on Global Positioning System will hold a closed meeting to discuss Galileo and other future radio navigation satellite systems. See, notice in the Federal Register, May 18, 2004, Vol. 69, No. 96, at Pages 28125 - 28126. Location: Strategic Analysis Inc., 3601 Wilson Boulevard, Arlington, VA.

Day two of a three day event titled "China-U.S. Telecommunications Summit". See, NTIA notice and TIA notice. Location: Chicago, Illinois.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of propose rulemaking (NPRM) regarding imposing mandatory minimum Customer Account Record Exchange (CARE) obligations on all local and interexchange carriers. This item is FCC 04-50 in CG Docket No. 02-386. See, notice in the Federal Register, April 19, 2004, Vol. 69, No. 75, at Pages 20845 - 20851.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft [91 pages in PDF] of Special Publication 800-58, titled "Security Consideration for Voice Over IP Systems". Submit comments to Rick Kuhn at

Saturday, June 19

Day three of a three day event titled "China-U.S. Telecommunications Summit". See, NTIA notice and TIA notice. Location: Chicago, Illinois.

Monday, June 21

The Supreme Court will return from the recess that it began on June 14.

8:30 AM - 5:30 PM. The Federal Trade Commission (FTC) will hold a 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.

1:00 PM. The Center for Democracy and Technology (CDT) will host a telephone press conference to discuss the Supreme Court's opinion in Ashcroft v. ACLU, a challenge to the constitutionality of the Child Online Protection Act (COPA). If the Supreme Court does not issue the opinion on this date, then the CDT will reschedule this conference for the next likely date for the issuance of the opinion -- June 28. To participate, call 334 260-2557 and provide security code 36991.

Tuesday, June 22

5:45 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host a continuing legal education (CLE) program titled "Migration Trends in Spectrum Use and Regulation" The speakers are all Federal Communications Commission (FCC) officials. Julius Knapp (FCC Office of Engineering and Technology), Kenneth Carter (FCC Office of Strategic Plans and Policy Analysis), and Peter Tenhula (FCC Wireless Telecommunications Bureau). To register, contact Wendy Parish at The FCBA states that "After 6:00 p.m. the doors will be locked." Location: FCC, Commission Meeting Room, 445 12th Street, SW.

CANCELLED. The Federal Communications Commission's (FCC) Network Reliability and Interoperability Council VII will meet. See, notice of cancellation [PDF].

Extended deadline to submit reply 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. See also, Order Granting Extension of Time [3 pages in PDF].

Wednesday, June 23

1:30 PM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "Protecting Homeland Security: A Status Report on Interoperability Between Public Safety Communications Systems". The hearing will be webcast by the Committee. See, notice. Press contacts: Jon Tripp (Barton) at 202 225-5735 or Sean Bonyun (Upton) at 202 225-3761. Location: Room 2322, Rayburn Building.

Thursday, June 24

12:15 - 2:00 PM. The DC Bar Association's Arts, Entertainment and Sports Law Section will host a lunch titled "Indecent Exposure: Broadcast Standards and the First Amendment". The speakers will be Lee Carosi (Majority Counsel, Senate Commerce Committee) Thomas Carpenter (American Federation of Television and Radio Artists), Robert Corn-Revere (Davis Wright & Tremaine), Kelly Zerzan (Majority Counsel, House Commerce Committee), and John Davis Malloy. Prices vary. See, notice. For more information, call 202-626-3463. Location: Jenner & Block, 601 13th Street, NW, Concourse Level.

12:30 PM. The Federal Communications Bar Association (FCBA) will hold its Annual Meeting and Luncheon. The speaker will be Federal Communications Commission (FCC) Commissioner Kathleen Abernathy. Location: J.W. Marriott, 1331 Pennsylvania Ave., NW.

Deadline to submit comments to the Federal Trade Commission (FTC) to assist it in preparing its report (which is required by the Fairness to Contact Lens Consumers Act, 15 U.S.C. § 7601 et seq.) on the strength of competition in the sale of prescription contact lenses. See, notice in the Federal Register, April 22, 2004, Vol. 69, No. 78, at Pages 21833 - 21836.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rule making (NPRM) regarding expanding the disruption reporting requirements beyond wireline carriers. See, notice in the March 26, 2004, Vol. 69, No. 59, at Pages 15761 - 15774.

More News

6/15. U.S. Trade Representative (USTR) Robert Zoellick and Taib Fassi-Fihri of Morocco signed the U.S.-Morocco Free Trade Agreement. Zoellick stated at a press conference that "Morocco has made broad commitments to open its service sector, creating new opportunities for U.S. banking, insurance, telecommunications, and technology companies." He continued that "With this agreement -- and in the exchange of technologies, investments, skills, that it will surely promote -- Morocco will find some of the tools with which prosperity can be produced and its benefit multiplied." He added that "I alluded a moment ago to the exchange that necessarily accompany free trade -- investment, and the sharing of technologies and skills. But, most importantly, there is the free flow of people and ideas." See, transcript [7 pages in PDF]. See also, USTR release.

6/16. The U.S. Patent and Trademark Office (USPTO) published in its web site its latest revision of its Manual of Patent Examining Procedure (MPEP).

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