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July 14, 2004, 9:00 AM ET, Alert No. 937.
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DOJ Releases Report Touting Benefits of PATRIOT Act

7/13. The Department of Justice (DOJ) released a document [31 pages in PDF] titled "Report from the Field: The USA PATRIOT Act at Work".

Attorney General John Ashcroft released it at an event on Capitol Hill. He argued in his prepared statement that allowing the sunsetting provision of the PATRIOT Act to expire "would be paramount to unilateral disarmament against al Qaeda. To take away the smart bombs, advanced night-vision equipment, and 21st Century communications capabilities from our soldiers, sailors, airmen and Marines would gut their ability to hunt and destroy al Qaeda terrorists. To let the Patriot Act's laser-guided tools sunset would be to disarm the FBI and rollback our ability to target terrorists here at home, and would return us to the vulnerabilities we faced before September 11, 2001."

John AshcroftAshcroft (at right) said that "The Patriot Act is al Qaeda's worst nightmare when it comes to disrupting and disabling their operations here in America. Our law enforcement and intelligence teams have never before been so integrated and coordinated, and technologically-equipped, to target the 21st Century threat of global terror."

The report is a collection of mostly unidentified anecdotes about how certain sections of the PATRIOT Act have been employed to catch or thwart criminals or terrorists. It also contains brief discussions of the language and application of certain sections of the PATRIOT Act.

It is a polemic piece that praises the Act. It is released at a time when critics seek to insert amendments in various annual appropriations bills or other end of the session legislation to limit various provisions of the PATRIOT Act.

It provides defenders of the Act with a collection of talking points to use in debates and public speeches.

For example, the report discusses the PATRIOT Act's provisions regarding extension of pen register and trap and trace devices authority from obtaining incoming and outgoing phone numbers used in telephone communications to obtaining internet routing and addressing information.

The report states that "When Congress first enacted the law governing the use of pen/trap devices in 1986, however, it could not have anticipated the dramatic expansion in electronic communications that has occurred since then. The statute therefore did not expressly apply to the full range of communications media, such as the Internet. Moreover, the original statute did not address the increasingly mobile nature of communications, and therefore limited the effect of a pen/trap order to the territorial boundaries of the federal district in which it was issued. In Section 216 of the USA PATRIOT Act, Congress amended the pen/trap statute to authorize a district court to issue an order that is valid throughout the United States, and it clarified that the pen/trap provisions in criminal investigations apply to communications via means other than telephones, such as the Internet."

The report then addresses how unidentified investigators have made use of the pen register and trap and trace devices authority in the Act. It states that "Investigators recently used section 216 and other USA PATRIOT Act authorities to combat credit card fraud perpetrated over the Internet. In this case, customers of an Internet service provider were being target by ``phishers.´´" The report then continues with an explanation of what phishing is.

The report then states that "Because fraudulent e-mail accounts and websites go up and down quickly, the use of USA PATRIOT Act authorities by investigators was critical to the identification and prosecution of one of the phishers. Investigators used section 216 to obtain pen/traps for Internet service providers located in another state, used section 210 to issue subpoenas to Internet service providers, and used section 220 to obtain search warrants for e- mail content from out-of-district Internet service providers. These USA PATRIOT Act authorities allowed investigators both to apprehend the phishers and to identify retailers who had been defrauded. One defendant has already pleaded guilty to charges as a result of this investigation, which would never have been successfully brought without the authorities contained in the USA PATRIOT Act."

As a legislative report, it is thin of substance. It is a collection of anecdotes, with few comprehensive statistics. For example, the report does not state how many pen register and trap and trace device orders have been obtained each year, and how many have been used to obtain internet routing and addressing information.

Also, while the report states that the PATRIOT Act has been used, it does not address the technologies used by law enforcement entities and service providers. For example, it does not address the technologies used to capture internet addressing and routing information. Nor does the report address the costs imposed upon services providers to comply requests from law enforcement entities.

Also, the DOJ report reviews some sections of the PATRIOT Act, such as Section 216, but leaves out reference to some of the most debated and/or important sections of the Act. For example, it does not address the PATRIOT Act's provisions regarding delayed notice of search warrants, which critics describe as sneak and peak. Nor does it address Section 215 of the Act and access to business records. This is the section that has been criticized by library groups.

Also, the anecdotes contained in the report are mostly unidentified. That is, with the discussion of Section 216, as with all other anecdotes in the report, there is no reference to any case number, case name, court, or prosecuting attorney. While some of the anecdotes reference the names of famous defendants, and reference locations, most anecdotes in the report lack sufficient information to enable the reader to look up further information about the case in other research sources. The report does not enable readers to pursue copies of indictments, plea agreements, and court orders and opinions, and obtain contact information on prosecuting and defense attorneys. The report does not enable the reader to either locate further information, or verify the report's assertions.

Also, the DOJ report does not list any court opinions issued under pre PATRIOT Act provisions, or opinions issued since enactment of the PATRIOT Act. Nor does it list any pending cases challenging provisions of the Act.

Also, the report does not identify the various proposals to amend the PATRIOT Act -- either those supported or opposed by the DOJ.

Also, the report does not discuss implementation of the PATRIOT Act by the DOJ and other federal agencies. There is no information about the promulgation of implementing regulations. There is nothing on any agency's interpretations, policies or opinions. Nor is there any information on staffing levels, or personnel responsible for implementing various parts of the Act.

Finally, the report does not identify its author(s), or the section(s) of the DOJ in which the author(s) is employed.

Attorney General Ashcroft released the report on Capitol Hill. But, while the Congress is in session, he did not appear at an oversight hearing. That is, members of the oversight committees had no opportunity to question the Attorney General or other DOJ personnel about this report or the PATRIOT Act generally.

However, while the DOJ may not be volunteering of the PATRIOT Act, many members of the House and Senate are not exercising effective oversight of the DOJ.

For example, Attorney General Ashcroft and FBI Director Mueller rarely testify before Congressional oversight committees. But, they both testified for hours before the Senate Judiciary Committee recently. This Committee includes many members, in both parties, who oppose certain provisions in the PATRIOT Act. Yet many members (but not all) used their appearances at the hearing to engage in partisan attacks on the Bush administration on issues largely unrelated to the DOJ. They squandered their opportunities to engage either Ashcroft and Mueller on PATRIOT Act issues.

See, story titled "Ashcroft Testifies Before Senate Judiciary Committee" and story titled "Ashcroft Testifies Regarding PATRIOT Act" both published in TLJ Daily E-Mail Alert No. 914, June 9, 2004. See also, story titled "FBI Director Mueller Appears Before Senate Judiciary Committee" in TLJ Daily E-Mail Alert No. 904, May 24, 2004.

Finally, while the report is identified as a report on the PATRIOT Act, it addresses generally how terrorists and criminals are using new technologies, and how law enforcement entities are dealing with these new technologies.

The report states, for example, that "Prior to the USA PATRIOT Act, law enforcement had been operating at a technological disadvantage in the war against terrorism. Agents often were forced to use outdated legal authorities to fight terrorists who were using modern technology. In short, we were waging a 21st century war with mid-20th century weapons. Thankfully, however, the Act has modernized and strengthened key tools needed to accomplish the Department’s now-central mission: preventing acts of terrorism before they take place."

Nevertheless, the report is silent on the continuing deployment of newer technologies, and how these may be affecting law enforcement entities' missions. There is no discussion of voice over internet protocol (VOIP) services, or any of the pending bills pertaining to regulation of, and law enforcement surveillance of, VOIP.

Nor does the report contain any discussion of the Communications Assistance for Law Enforcement Act (CALEA), the Department of Justice's petition [PDF] to the Federal Communications Commission (FCC) regarding expanding the requirements of the CALEA, or the FCC's pending CALEA proceeding. See, FCC RM 10865.

EPIC Files Appeal Brief in FOIA Case Regarding DOJ Lobbying Over PATRIOT Act Amendment

7/13. The Electronic Privacy Information Center (EPIC) filed its appeal brief [35 pages in PDF] with the U.S. Court of Appeals (DCCir) in EPIC v. DOJ, a Freedom of Information Act (FOIA) case regarding expedited processing of a request for records pertaining to the lobbying efforts of United States Attorneys to oppose a legislative proposal to limit investigative authority granted by the PATRIOT Act.

On September 10, 2003 the EPIC submitted a FOIA request to the DOJ requesting records related to an August 14, 2003 memorandum from Guy Lewis, of the DOJ's Executive Office for United States Attorneys, regarding an amendment offered in the House by Rep. Butch Otter (R-ID).

Rep. Otter offered an amendment last summer to HR 2799, the Commerce, Justice, State and the Judiciary, and Related Agencies Appropriations Act for FY 2004. This was House Amendment 292. The House approved this amendment by a vote of 309-118 on July 22, 2003. See, Roll Call No. 408. This amendment pertained to the PATRIOT Act's provisions regarding delayed notice of search warrants, which provisions are also referred to as sneak and peak.

The EPIC also sought expedited processing of the DOJ's usual glacial pace in responding to FOIA requests.

On October 15, 2003, the EPIC filed a complaint [7 pages in PDF] in U.S. District Court (DC) against the Department of Justice (DOJ) alleging violation of the FOIA, which is codified at 5 U.S.C. § 552. See, story titled "EPIC Files FOIA Suit Seeking DOJ Records Regarding Lobbying Over PATRIOT Act Amendment" in TLJ Daily E-Mail Alert No. 763, October 22, 2003.

On December 22, 2003, the District Court, Judge James Robertson presiding, issued its memorandum opinion [11 pages in PDF] holding that the EPIC is not entitled to expedited processing. He wrote that "I cannot conclude upon my review of the record that EPIC has established ``widespread and exceptional´´ media interest".

This appeal followed. Oral argument is scheduled for January 13, 2005.

This case is EPIC v. DOJ, U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 04-5063 and 04-5072, appeals from the U.S. District Court for the District of Columbia.

2nd Circuit Addresses Copyright Protection for Electronic Compilations of Data

7/13. The U.S. Court of Appeals (2ndCir) issued its opinion [13 pages in PDF] in MyWebGrocer v. HomeTown Info, a case regarding copyright protection for compilations of data in electronic format. The Appeals Court affirmed the District Court's denial of a motion for preliminary injunction. The Appeals did not hold that the data (a large collection of grocery product descriptions) lacks copyright protection. Rather, it gave the District Court guidance on evaluating the copyright issues upon trial on the merits.

MyWebGrocer developed in electronic format grocery product descriptions for online grocery shopping. It also registered this with the U.S. Copyright Office.

MyWebGrocer had a contract with D'Agostino Supermarkets to operate an online grocery store. D'Agostino's later terminated its relationship with MyWebGrocer and contracted with its competitor, HomeTown Info, to operate its online grocery store. HomeTown copied MyWebGrocer's copyrighted work, without authorization, and used it in the web site that it operated for D'Agostino's.

MyWebGrocer filed a complaint in U.S. District Court (DVt) against HomeTown Info and two individuals, alleging copyright infringement, false designation of origin, tortious interference with prospective business relations, a RICO claim, unfair competition, and trespass. HomeTown alleged various counterclaims, and sought a declaratory judgment that MyWebGrocer's copyright was void. MyWebGrocer moved for a preliminary injunction.

This District Court only decided the question of whether or not to grant a preliminary injunction. It denied the request on the grounds that MyWebGrocer's copyrighted product was not sufficiently creative to be copyrightable. This interlocutory appeal followed.

The Appeals Court concluded that MyWebGrocer could not satisfy one of the requisite elements for issuance of a preliminary injunction in the 2nd Circuit, a "showing either of likelihood of success on the merits or of fair grounds for litigation and a balance of hardships tipping decidedly in its favor."

The Appeals Court concluded, based upon its analysis of copyright law, and the facts not in dispute, that MyWebGrocer has shown fair grounds for litigation, but has not shown likelihood of success upon the merits. Moreover, since the balance of hardships is even, MyWebGrocer is not entitled to a preliminary injunction.

MyWebGrocer may yet prevail on its copyright infringement claim following trial on the merits by the District Court.

The Appeals Court's reasoning regarding the copyright issues involved provides guidance for the District Court, and is otherwise noteworthy.

The Appeals Court began by quoting from the 1991 opinion of the Supreme Court in Feist Publications, Inc. v. Rural Telephone Service Co., which is also reported at 499 U.S. 340. The Appeals Court wrote that "A compilation of non-protectible facts is copyrightable if it ``features an original selection or arrangement of facts,´´ ... so that the selection or arrangement ``possesses at least some minimal degree of creativity´´."

The Appeals Court continued that "``Selection implies the exercise of judgment in choosing which facts from a given body of data to include in a compilation.´´ Key Publ’ns, Inc. v. Chinatown Today Publ’g Enters., Inc., 945 F.2d 509, 513 (2d Cir. 1991). We recently held that ``if the selection process imbues a compilation with the requisite creative spark, the compilation may be protected so long as there are indicia that principles of selection (other than all-inclusiveness) have been employed.´´ Silverstein v. Penguin Putnam, Inc., 368 F.3d 77, 83 (2d Cir. 2004)

The Appeals Court reasoned that "HomeTown is correct that the idea of using a manufacturer’s factual identification of a grocery product is not a sufficient exercise of creativity and that the facts in a description of a product's brand, manufacturer, or name are not copyrightable. But some aspects of the MyWeb descriptions may involve original selection, and if so, they are protected at least from wholesale verbatim copying. The parties have not agreed that the record is complete with regard to creativity and perhaps other issues, that is to say, a full trial would involve more evidence. When the record is complete, a trier of fact might conclude that the various providers have different concepts of the most attractive and useful product description -- brevity versus completeness, bare physical essentials versus essentials plus puffery, full product names versus abbreviations, for example. A trier might conclude that MyWeb made creative choices about what to include or exclude in its product descriptions -- e.g. advertising slogans, sub-brands, product colors, and phrases from product packaging -- for the purpose of facilitating and encouraging online shopping."

The Appeals Court also offered the District Court guidance on the merger doctrine and scenes a faire.

But, since the Appeals Court concluded that "it is not clear that MyWeb is likely to succeed on the merits", and that MyWebGrocer has only presented fair grounds for litigation, "it is not entitled to a preliminary injunction unless the balance of the hardships tips decidedly in its favor. However, the balance of hardships is, viewing the facts in the light most favorable to MyWeb, equal." Hence, the Appeals Court affirmed the denial of the preliminary injunction.

This case is MyWebGrocer, LLC v. HomeTown Info, Inc., d/b/a Grocery Shopping Network, et al., U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 03-7909, an appeal from the U.S. District Court for the District of Vermont, Judge William Sessions presiding. Judge Ralph Winter wrote the opinion for the three judge panel, in which Judges Straub and Lay joined.

The Appeals Court cited Supreme Court and 2nd Circuit cases. Recent cases in which courts in other circuits 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).

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 legislation or litigation regarding legal protection of collections of data.

Notice of Change of E-Mail Address

The e-mail address for Tech Law Journal has changed. The new address is as follows:

Address Graphic

All previous e-mail addresses no longer operate. This new address is published as a graphic to avoid e-mail address harvesting, and the associated spam messages and malicious code messages. If your e-mail system does not display graphics, see notice in TLJ website.

Washington Tech Calendar
New items are highlighted in red.
Wednesday, July 14

The House will meet at 10:00 AM for legislative business. The agenda for July 14 and 15 includes consideration of several technology related items, including HRes 705, urging the President to resolve the disparate treatment of direct and indirect taxes presently provided by the World Trade Organization (WTO), HRes 576, urging People's Republic of China to improve its protection of intellectual property rights, and HR 4759, the "United States-Australia Free Trade Implementation Act". See, Republican Whip Notice.

8:30 AM - 12:00 NOON. The DC Bar Association's Intellectual Property Law Section will host a program titled "The ABC's Of Patent, Trademark And Copyright Law". The speakers will be Steven Warner (Fitzpatrick Cella Harper & Scinto), Gary Krugman (Sughrue Mion), John Hornick (Finnegan Henderson), and Aoi Nawashiro (Browdy & Neimark). Prices vary. A breakfast buffet is included. See, notice. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

9:00 AM - 1:15 PM. The National Telecommunications and Information Administration (NTIA) will host an event titled " Forum: Developing a Safe Place on the Internet for Children". See, NTIA notice and notice in the Federal Register, June 4, 2004, Vol. 69, No. 108, at Pages 31590-31591. Location: Department of Commerce, 1401 Constitution Ave., NW, Room 4830.

10:00 AM. The Senate Finance Committee will hold an open executive session. The agenda includes (1) a mock mark up to consider proposed legislation implementing the U.S.-Morocco Free Trade Agreement, (2) consideration of S 2610, the U.S.-Australia Free Trade Agreement Implementation Act, and (3) consideration of the nominations of Joey Russell George (to be Treasury Inspector General for Tax Administration), Patrick O'Carroll (Inspector General, Social Security Administration), Timothy Bitsberger (Assistant Secretary for Financial Markets, Department of the Treasury), and Paul Jones and Charles Kolbe (IRS Oversight Board). Location: Room 215, Dirksen.

10:00 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "Competition and Consumer Choice in the MVPD Marketplace -- Including an Examination of Proposals to Expand Consumer Choice, Such as A La Carte and Themed-Tiered Offerings". Press contact: Jon Tripp (Barton) at 202 225-5735 or Sean Bonyun (Upton) at 202 225-3761. Location: Room 2123, Rayburn Building.

CANCELLED. 10:00 AM. The House Armed Services Committee and the House International Relations Committee will hold a joint hearing on the "Role of Arms Export Policy in the Global War on Terror". The witnesses will be Lincoln Bloomfield (Assistant Secretary of State, Bureau of Political-Military Affairs), Lisa Bronson (Deputy Under Secretary of Defense for Technology Security Policy and Counterproliferation), and Peter Lichtenbaum (Assistant Secretary for Export Administration, Bureau of Industry and Securities, Department of Commerce). The hearing notice does not disclose the extent to which the hearing might focus on the export of items involving information and communications technologies. Location: Room 2118, Rayburn Building.

11:30 AM. The House Commerce Committee's Subcommittee on Commerce, Trade and Consumer Protection will hold a hearing titled "Radio Frequency Identification (RFID) Technology: What the Future Holds for Commerce, Security, and the Consumer". The witnesses will be Sanjay Sarma (MIT), Linda Dillman (Wal-Mart), Sandra Hughes (Procter & Gamble), Paula Bruening (Center for Democracy and Technology), William Galione (Philips Semiconductors), Barry Steinhardt (American Civil Liberties Union), Brian Matthews (VeriSign), Cédric Laurant (Electronic Privacy Information Center), John Molloy (ViaTrace). Press contacts: Samantha Jordan (Barton) at 202 225-5735 or Paul Flusche (Stearns) at 202 225-5744. Location: Room 2322, Rayburn Building.

5:00 PM. The House Ways and Means Committee will meet to mark up a draft implementing proposal of HR __, the "United States-Morocco Free Trade Agreement Implementation Act". Location: Room 1100, Longworth Building.

Thursday, July 15

The House will meet at 10:00 AM for legislative business. The agenda for July 14 and 15 includes consideration of several technology related items, including HRes 705, urging the President to resolve the disparate treatment of direct and indirect taxes presently provided by the World Trade Organization (WTO), HRes 576, urging People's Republic of China to improve its protection of intellectual property rights, and HR 4759, the "United States-Australia Free Trade Implementation Act". See, Republican Whip Notice.

TIME CHANGE. 9:30 AM. The Senate Commerce Committee's Subcommittee on Communications will hold a hearing on implementation of the Nielsen local people meter TV rating system. See, notice. The hearing will be webcast. Press contact: Rebecca Fisher at 202 224-2670. Location: Room 253, Russell Building.

10:00 AM. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property will hold an oversight hearing titled "Internet Streaming of Radio Broadcast: Balancing the Interests of Sound Recording Copyright Owners With Those of Broadcasters". The hearing will be webcast by the Committee. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

12:00 NOON - 1:30 PM. Congressional Internet Caucus' Advisory Committee will host a panel discussion titled "The DMCA Revisited: What's Fair?". Lunch will be served. Location: Mansfield Room, S-207, Capitol Building.

12:15 - 2:00 PM. The Forum on Technology & Innovation (FTI) will host a luncheon discussion titled "The Policy Implications of Open Source Software". The speakers will be Andrew Morton (lead maintainer for the Linux public production kernel), Bill Guidera (Microsoft), Cheryl Bruner (IBM), and Morgan Reed (Association for Competitive Technology). See, notice. Lunch is available at 12:15 PM. The event will be webcast by the FTI. The program will begin at 12:30 PM. Register by 5:00 PM on  July 13 by by fax at 202 682-5150 or at; provide your name, title, office, and e-mail address. Location: Room 902, Hart Building, Capitol Hill.

POSTPONED. 2:00 PM. The House Armed Services Committee's Tactical Air Land Forces Subcommittee will hold a hearing on "Small Business Innovation and Technology". Location: Room 2118, Rayburn Building. The Committee has not yet rescheduled this hearing.

TIME CHANGE. 2:00 PM. The Senate Judiciary Committee will hold an executive business meeting. See, notice. Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle (Leahy) at 202 224-4242. Location: Room 226, Dirksen Building.

6:00 - 9:30 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "Antitrust Investigations in the Era of Enron and WorldCom". The speakers will include Ray Hartwell (Hunton & Williams), Scott Hammond (Director of Criminal Enforcement, Antitrust Division, Department of Justice), and Donald Klawiter (Morgan Lewis & Bockius). Prices vary. See, notice. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

Extended deadline to submit comments to the Federal Communications Commission (FCC) in response to its Public Notice (DA 04-1454) regarding a la carte and themed programming and pricing options for programming distribution on cable TV and direct broadcast satellite systems. This is MB Docket No. 04-207. See, notice of extension [PDF].

Friday, July 16

10:30 AM. The Progress and Freedom Foundation (PFF) will host a conference titled "Should the Net's Physical Layer be Regulated?". Christopher Yoo (Vanderbilt Law School) will give the opening address. There will be a panel discussion by Joe Waz (Comcast), Rick Whitt (WorldCom), Adam Thierer (Cato Institute), and Randolph May (PFF). Kenneth Ferree (Chief of the FCC's Media Bureau) will be the luncheon address. See, notice and registration pages. For more information, contact Brooke Emmerick at 202 289-8928 or Press contact: David Fish at 202 775-2644 or Location: Washington Mandarin Oriental hotel, 1330 Maryland Ave., SW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee and Young Lawyers Committee will host a brown bag lunch. The topic will be "The Basics of A La Carte Cable Pricing". For more information, contact Natalie Roisman at, or Jason Freidrich at Location: Willkie Farr & Gallagher, 1875 K Street, NW, 2d Floor.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rule Making (FNPRM) and Notice of Inquiry (NOI) regarding digital audio broadcasting (DAB). This item is FCC 04-99 in MB Docket No. 99-325. See, story titled "FCC Announces FNPRM and NOI Regarding Digital Audio Broadcasting" in TLJ Daily E-Mail Alert No. 878, April 16, 2004, and notice in the Federal Register, May 17, 2004, Vol. 69, No. 95, at Pages 27874 - 27885.

Monday, July 19

10:00 AM. The U.S. District Court (DC) will hold a status conference in U.S. v. Microsoft, and New York v. Microsoft, Case Nos. 1:1998-cv-01232 and 3, Judge Colleen Kotelly presiding. Location: Courtroom 11, Prettyman Courthouse, 333 Constitution Ave.

Wednesday, July 21

9:00 AM. Day one of a two day meeting of the Department of Commerce's (DOC) Bureau of Industry and Standards (BXA/BIS) Information Systems Technical Advisory Committee (ISTAC). Some of the meetings will be closed to the public. The agenda includes a summary of the Wassenaar Arrangement inter-sessional meeting on semiconductor manufacturing equipment, and a presentation on computational capability of graphics processors. See, notice in the Federal Register, July 6, 2004, Vol. 69, No. 128, at Page 40601. Location: DOC, Room 3884, 14th Street between Pennsylvania Ave. and Constitution Ave., NW.

12:00 NOON. The Heritage Foundation will host a book presentation. James Rogan, a former member of the House Judiciary Committee and a former director of the U.S. Patent and Trademark Office (USPTO), will talk about his book titled Rough Edges: My Unlikely Road from Welfare to Washington [Amazon]. See, notice. Location: 214 Massachusetts Ave., NE.

11th Circuit Rules U.S. Courts Have Subject Matter Jurisdiction Over Foreign Infringer Who Sends Copies Into the U.S.

7/13. The U.S. Court of Appeals (11thCir) issued its opinion [11 pages in PDF] in Palmer v. Braun, a case involving subject matter jurisdiction of a U.S. District Court in a copyright infringement case brought against an individual residing in France.

Harry Palmer authored course materials for a course of instruction on how to explore and master one's own consciousness. He does business, and maintains a web site, under the name of Avatar.

Palmer's web site states that these courses provide "experiential exercises that enables you to rediscover your self and align your consciousness with what you want to achieve". Apparently, this stuff is copyrightable subject matter, under 17 U.S.C. § 102.

Eldon Braun who had been one of Palmer's instructors, quit, went to France, infringed Palmer's works, and sold copies over the internet.

Palmer filed a complaint in U.S. District Court (MDFl) against Braun alleging, among other things, copyright infringement. The District Court entered judgment for Palmer. Braun brought this appeal. While he raised numerous issues in this appeal, the Appeals Court only addressed the subject matter jurisdiction at length. It also briefly disposed of the personal jurisdiction and improper venue appeal issues.

The Appeals Court wrote that "federal copyright law has no extraterritorial effect, and cannot be invoked to secure relief for acts of infringement occurring outside the United States. ... Thus, it is only where an infringing act occurs in the United States that the infringement is actionable under the federal Copyright Act, giving the federal courts jurisdiction over the action."

However, it continued that "Where a person imports an infringing work into the United States, the federal courts have jurisdiction over the action for infringement because" 17 U.S.C. § 106 gives authors the exclusive right to, among other things, import copies of their copyrighted works.

In the present case, while Braun was in France, he sold copies of the infringing work over the Internet, and mailed them to persons inside of the U.S. The Court wrote that "the importation of the infringing work is an infringing act occurring in the United States." Hence, the Appeals Court held that the U.S. District Court has subject matter jurisdiction.

Braun also raised on appeal questions of improper venue and personal jurisdiction. These might have been interesting appellate issues, had Braun asserted them with greater expertise before the District Court. However, he did not, and the Appeals Court therefore was able to quickly reject these appeal points.

Braun raised the issue of personal jurisdiction for the first time on appeal. The Appeals Court held that he had waived it.

Second, he argued both in the District Court, and on appeal that venue was improper in the Middle District of Florida. 28 U.S.C. § 1400(a) provides that a civil suit to enforce the Copyright Act may be brought in any district "in which the defendant or his agent resides or may be found." The Appeals Court wrote that "A defendant ``may be found´´ in a district in which he could be served with process; that is, in a district which may assert personal jurisdiction over the defendant."

The Court continued that "Here, Braun appeared before the district court without contesting the court's jurisdiction over his person or his amenability to process in the district. By his consent to personal jurisdiction, Braun was ``found´´ in the Middle District of Florida for purposes of § 1400(a) venue."

This case is Harry Palmer, Stars Edge, Inc. v. Eldon Braun, U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 03-13963, an appeal from the U.S. District Court for the Middle District of Florida, D.C. No. 00-01662 CV-ORL-31-JGG.

People and Appointments

7/13. Daniel Caprio was named Chief Privacy Officer of the Department of Commerce (DOC). He joined the DOC last month as Deputy Assistant Secretary for Technology Policy. Before that, he was Special Assistant and Chief of Staff to Federal Trade Commission (FTC) Commissioner Orson Swindle. See, DOC release.

7/13. Harry Yoo was named Chief Financial Officer of Oracle. He previously worked for Accenture. He will replace Jeffrey Henley. See, Oracle release.

7/13. Charles Giancarlo was named Chief Technology Officer at Cisco Systems. Cisco also announced several other personnel changes. See, Cisco release.

More News

7/13. The Library of Congress published a notice in the Federal Register that describes, and sets a comment deadline for, its notice of proposed rulemaking (NPRM) regarding amendments to its regulations to provide for the reporting of uses of sound recordings performed by means of digital audio transmissions pursuant to statutory license for the period October 28, 1998, through March 31, 2004. Comments are due by August 12, 2004. See, Federal Register, July 13, 2004, Vol. 69, No. 133, at Pages 42007 - 42010.

7/13. The Library of Congress published a notice in the Federal Register that describes, and sets comment deadlines for, its notice of proposed rulemaking (NPRM) regarding continuation, with a few modifications, of the procedures adopted by the Copyright Office in 1995 that permit copyright applicants to request reconsideration of decisions
to refuse registration of copyrights
. Comments are due by September 13, 2004. Reply comments are due by October 26, 2004. See, Federal Register, July 13, 2004, Vol. 69, No. 133, at Pages 42004-42007.

7/13. The Office of the U.S. Trade Representative (USTR) published a notice in the Federal Register requesting public comments pertaining to its Special 301 out of cycle review of Israel and other nations. Comments are due by August 6, 2004. Section 182 of the Trade Act of 1974, which is codified at 19 U.S.C. § 2242, requires the USTR to identify countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. This is also referred to as the Special 301 provision. See, Federal Register: July 13, 2004, Vol. 69, No. 133, at Pages 42077-42078.

7/13. The U.S. Department of Justice (DOJ) filed its post trial brief [61 pages in PDF, redacted] with the U.S. District Court (NDCal) in U.S. v. Oracle. The DOJ asserts that it has proven its case that Oracle's proposed acquisition of PeopleSoft would substantial lessen competition in the market for high function HRM and FMS software. Hence, the DOJ argues that the Court should enjoin the acquisition pursuant to Section 7 of the Clayton Act.

7/12. Federal Communications Commission (FCC) Chairman Michael Powell gave a speech in San Francisco, California at an event titled "Broadband Access Network Coordination (BANC) Event". He repeated some familiar themes. He said that "The FCC's goal is to make ubiquitous and affordable broadband a reality for all Americans, regardless of where they live. In order to make that goal a reality, our role is to facilitate competition within the broadband market in order to spur greater deployment. I believe wireless technology has the potential to transform the marketplace by bringing much needed competition to the existing DSL and cable-modem platforms. We also must think about broadband broadly. We at the FCC have tried to become champions and supporters of innovative efforts to develop alternative competitive platforms, including wireless broadband networks deployed in the unlicensed bands."

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