8/19. The U.S. Court of Appeals (9thCir) issued its opinion [26 pages in PDF] in MGM v. Grokster, affirming the District Court holding that Grokster's and Streamcast's peer to peer (P2P) file copying networks do not contributorily or vicariously infringe the copyrights of the holders of music and movie copyrights.

The plaintiffs are music and movie industry owners of copyright interests. The defendants are companies that distributed P2P software that enables the individual users to infringe the plaintiffs' copyrights. The individual infringers are not defendants in this suit. This opinion pertains only to the legal theories of contributory and vicarious liability.

District Court. Metro Goldwyn Meyer (MGM), and other movie companies, and various record companies, filed a complaint in the in the U.S. District Court (CDCal) against Grokster, Streamcast and Kazaa alleging copyright infringement, in violation of 17 U.S.C. § 501. They alleged contributory and vicarious infringement.

In addition, professional songwriters and music publishers filed a class action complaint against the same defendants alleging contributory and vicarious infringement. The two actions were consolidated. The parties filed cross motions for summary judgment regarding software provided by Grokster and Streamcast.

On April 25, 2003, the District Court issued its opinion holding that Grokster's and Streamcast's P2P file copying networks do not contributorily or vacariously infringe the copyrights of the holders of music and movie copyrights. See also, story titled "District Court Holds No Contributory or Vicarious Infringement by Grokster or Streamcast P2P Networks" in TLJ Daily E-Mail Alert No. 650, April 28, 2003

Court of Appeals. Plaintiffs appealed. See also, story titled "Music Publishers File Appeal Brief in P2P Infringement Case" in TLJ Daily E-Mail Alert No. 724, August 22, 2003.

The Court of Appeals affirmed.

The Appeals Court first reviewed the nature of P2P technologies, and its variations. The Court wrote that "there are three different methods of indexing: (1) a centralized indexing system, maintaining a list of available files on one or more centralized servers; (2) a completely decentralized indexing system, in which each computer maintains a list of files available on that computer only; and (3) a “supernode” system, in which a select number of computers act as indexing servers."

The Court concluded that Napster used the centralized indexing system, while Streamcast now uses the decentralized index model (by using its own branded Morpheus version of the open source Gnutella code), and Grokster uses the supernode system developed by Kazaa (although Kazaa has sold its FastTrack technology to Sharman Networks).

The Court next reviewed the extent of copyright violation. "Some of the files are copyrighted and shared without authorization, others are not copyrighted (such as public domain works), and still others are copyrighted, but the copyright owners have authorized software users in peer-to-peer file-sharing networks to distribute their work. The Copyright Owners assert, without serious contest by the Software Distributors, that the vast majority of the files are exchanged illegally in violation of copyright law."

The Court then applied the law of vicarious and contributory infringement to the facts of this case. The Court praised, and followed, the analysis of the District Court.

Contributory Infringement. The Court wrote that there are three elements of contributory infringement: "(1) direct infringement by a primary infringer, (2) knowledge of the infringement, and (3) material contribution to the infringement." The Court first briefly noted that "The element of direct infringement is undisputed in this case."

On the element of knowledge, the Court turned to the Supreme Court's opinion in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), which held that Sony did not contributorily infringe with its Betamax technology, and the 9th Circuit's opinion in A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001).

The Appeals Court summarized the Supreme Court's ruling by stating that "it would be sufficient to defeat a claim of contributory copyright infringement if the defendant showed that the product was ``capable of substantial´´ or ``commercially significant noninfringing uses.´´ In applying this doctrine, the Court found that because Sony's Betamax video tape recorder was capable of commercially significant noninfringing uses, constructive knowledge of the infringing activity could not be imputed from the fact that Sony knew the recorders, as a general matter, could be used for infringement."

The Appeals Court summarized the key ruling in the Napster case: "if a defendant could show that its product was capable of substantial or commercially significant noninfringing uses, then constructive knowledge of the infringement could not be imputed. Rather, if substantial noninfringing use was shown, the copyright owner would be required to show that the defendant had reasonable knowledge of specific infringing files."

Thus, this Appeals Court panel concluded that "If the product at issue is not capable of substantial or commercially significant noninfringing uses, then the copyright owner need only show that the defendant had constructive knowledge of the infringement. On the other hand, if the product at issue is capable of substantial or commercially significant noninfringing uses, then the copyright owner must demonstrate that the defendant had reasonable knowledge of specific infringing files and failed to act on that knowledge to prevent infringement."

Then, applying this standard to the facts of this case regarding the P2P systems used by Grokster and Streamcast, the Court concluded that the P2P software is capable of substantial noninfringing uses. For example, these P2P systems copy both public domain literary works and copyrighted works which owners allow to be placed on these P2P systems.

The Court added that it is not pertinent that almost all of the works distributed are unauthorized copies. What matters is merely that the software is "capable of substantial noninfringing uses". The Court emphasized the word "capable". This opinion thus provides a very minimalist interpretation of the Supreme Court's "capable of substantial noninfringing uses" standard.

The Court wrote that "In the context of this case, the software design is of great import. As we have discussed, the software at issue in Napster I and Napster II employed a centralized set of servers that maintained an index of available files. In contrast, under both StreamCast’s decentralized, Gnutella-type network and Grokster’s quasi-decentralized, supernode, KaZaa-type network, no central index is maintained. Indeed, at present, neither StreamCast nor Grokster maintains control over index files. As the district court observed, even if the Software Distributors ``closed their doors and deactivated all computers within their control, users of their products could continue sharing files with little or no interruption.´´" The Court then concluded that the knowledge element is lacking.

On the third element of contributory infringement, material contribution to the infringement, the Court of Appeals held that Grokster and Streamcast did not materially contribute. It elaborated that they do not provide storage of the infringing files, the site or facilities for infringement, or lists of infringing files. It did not expressly state, but the opinion necessarily implies, that providing the software the enables the infringement is not material contribution.

Vicarious Infringement. The Appeals Court wrote that there are three elements of vicarious infringement: "(1) direct infringement by a primary party, (2) a direct financial benefit to the defendant, and (3) the right and ability to supervise the infringers". The Court concluded, for its vicarious infringement analysis, as for its contributory infringement analysis, that the first element, direct infringement by others, is present. The Court also concluded briefly that the second element, direct financial benefit to Grokster and Streamcast, is met through advertising revenues.

However, the Court held that the vicarious infringement claim fails because the third element, right and ability to supervise, is absent. The Court noted that neither Grokster nor Streamcast "has the ability to block access to individual users." The Court added that "none of the communication between defendants and users provides a point of access for filtering or searching for infringing files, since infringing material and index information do not pass through defendants’ computers."

The Appeals Court also rejected the copyright owners argument that Grokster and Streamcast turned a blind eye to infringement. The Court wrote that "there is no separate ``blind eye´´ theory or element of vicarious liability that exists independently of the traditional elements of liability. Thus, this theory is subsumed into the Copyright Owners’ claim for vicarious copyright infringement and necessarily fails for the same reasons."

Historical Perspective on Copyright Law. The Appeals Court began and ended its opinion with historical perspectives on developments in entertainment technology and copyright protection. It stated at the outset that "From the advent of the player piano, every new means of reproducing sound has struck a dissonant chord with musical copyright owners, often resulting in federal litigation. This appeal is the latest reprise of that recurring conflict, and one of a continuing series of lawsuits between the recording industry and distributors of file-sharing computer software."

It concluded that "The introduction of new technology is always disruptive to old markets, and particularly to those copyright owners whose works are sold through well-established distribution mechanisms. Yet, history has shown that time and market forces often provide equilibrium in balancing interests, whether the new technology be a player piano, a copier, a tape recorder, a video recorder, a personal computer, a karaoke machine, or an MP3 player. Thus, it is prudent for courts to exercise caution before restructuring liability theories for the purpose of addressing specific market abuses, despite their apparent present magnitude."

It added, "Indeed, the Supreme Court has admonished us to leave such matters to Congress. In Sony-Betamax, the Court spoke quite clearly about the role of Congress in applying copyright law to new technologies. As the Supreme Court stated in that case, ``The direction of Art. I is that Congress shall have the power to promote the progress of science and the useful arts. When, as here, the Constitution is permissive, the sign of how far Congress has chosen to go can come only from Congress.´´"

Related Cases. See also, A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001), in which the Appeals Court found vicarious infringement.

See also, the opinion of the U.S. Court of Appeals (7thCir) in In Re Aimster Copyright Litigation, 334 F.3d 643. On June 30, 2003, the 7th Circuit issued its opinion [23 pages in PDF] affirming the District Court's preliminary injunction affecting the Aimster (aka Madster) file copying system. See, story titled "7th Circuit Affirms Preliminary Injunction in Aimster Case" in TLJ Daily E-Mail Alert No. 691, July 1, 2003.

The present case is Metro-Goldwyn-Meyer Studios, et al. v. Grokster, Ltd., et al., U.S. Court of Appeals for the 9th Circuit, appeals from the U.S. District Court for the Central District of California, Judge Stephen Wilson presiding. Judge Sidney Thomas wrote the opinion of the Court, in which Judges Robert Boochever and John Noonan joined.

8/19. The U.S. Court of Appeals (9thCir) wrote in its opinion [26 pages in PDF] in MGM v. Grokster that any extension of protection to copyright holders in the context of peer to peer (P2P) infringement is a matter for the Congress. Several Senators recognize this, and introduced S 2560, the "Inducing Infringement of Copyrights Act of 2004", on June 22, 2004. This bill was drafted with the distributors of these P2P systems mind.

Currently, 17 U.S.C. § 501 addresses infringement of copyright. S 2560 would add a new subsection (g) to this section. This new subsection, provides, in full, as follows:

"(1) In this subsection, the term `intentionally induces´ means intentionally aids, abets, induces, or procures, and intent may be shown by acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor, including whether the activity relies on infringement for its commercial viability.
(2) Whoever intentionally induces any violation identified in subsection (a) shall be liable as an infringer.
(3) Nothing in this subsection shall enlarge or diminish the doctrines of vicarious and contributory liability for copyright infringement or require any court to unjustly withhold or impose any secondary liability for copyright infringement."

Subsection (a) now provides, in part, that "Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 121 ... or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright ..."

This bill has an impressive list of cosponsors. The lead sponsor is Sen. Hatch, the Chairman of the Senate Judiciary Committee (SJC), which has jurisdiction over this bill. Sen. Patrick Leahy (D-VT), the ranking Democrat on the SJC, is a cosponsor. Sen. Lindsey Graham (R-SC) and Sen. Barbara Boxer (D-CA), also members of the SJC are cosponsors. Sen. Bill Frist (R-TN), the Senate Majority Leader, and Sen. Tom Daschle (D-SD), the Senate Minority Leader, are also cosponsors.

The bill is also cosponsored by Sen. Hillary Clinton (D-NY), Sen. Lamar Alexander (R-TN), Sen. Debbie Stabenow (D-MI), and Sen. Paul Sarbanes (D-MD).

See, story titled "Senators Introduce Bill to Amend Copyright Act to Ban Inducement of Infringement" in TLJ Daily E-Mail Alert No. 925, June 24, 2004.

On July 22, 2004 the SJC held a hearing on this bill.

Marybeth Peters, the Register of Copyrights, testified that "I believe this bill addresses the most important issue facing our copyright system today: new services that employ peer-to-peer technology to create vast, global networks of copyright infringement. There should be no question that such services should be liable for the copyright infringement they encourage and from which they profit."

She wrote in her prepared testimony that "The Copyright Office supports S. 2560 because it improves the existing law of secondary liability for copyright infringement."

Peter (at right) also wrote in her testimony that "In my view, the Grokster decision was wrongly decided, and I hope the Ninth Circuit corrects the errors in the district court's decision. The court employed an unnecessarily cramped view of existing secondary liability doctrines, creating a much narrower test of ``knowledge´´, ``material contribution´´ and ``right and ability to control´´ than any case before it, including the Ninth Circuit's decision in Napster. It also misapplied the Sony decision to an inaccurate characterization of the defendants as mere providers of software, comparing them to a maker of a VCR, when their services were functionally the equivalent of Napster and Aimster. Most importantly, the Grokster decision fails to see the forest for the trees; it essentially ignores defendants' intent to establish and create a network of massive infringement -- by enlisting ordinary consumers to engage in piracy -- upon which they have built their business."

However, on August 19, the Ninth Circuit not only affirmed the District Court, but essentially followed its entire analysis. See, story in this issue titled "9th Circuit Holds No Vicarious Infringement in Grokster Case" TLJ Daily E-Mail Alert No. 963, August 20, 2004.

Sen. Hatch (at left) wrote in his opening statement that "Research now suggests that these piracy rings -- which call themselves filesharing networks -- will create between 12 and 24 billion infringing copies this year alone. This unprecedented level of piracy fundamentally threatens America's world-leading music, movie and software industries and the future of legitimate Internet commerce."

He explained that S 2560 "provides that the courts can impose secondary liability upon those who intend to induce copyright infringement." He said that the bill has three key attributes.

First, it is "technology neutral: It does not single out peer-to-peer networking technology for punitive regulation just because a few bad actors have misused it." He added that the technology has "intriguing, legitimate uses" that are not targeted by the bill.

Second, S 2560 "uses a proven model for structuring secondary liability. The substantial-noninfringing-use rule that Sony imported from the Patent Act coexists there alongside liability for intent to induce infringement -- a concept that the Patent Act calls active inducement."

Third, S 2560 changes the law "only for a very narrow class of defendants".

He added that this bill preserves the holding in the Sony case. Sen. Leahy also stated that "our bill does not undermine the Sony-Betamax decision, it does not undermine the fair use doctrine, and it does not target or penalize any technology."

Sen. Leahy added that S 2560 "will help companies like Apple who, through their iTunes service and iPod devices, offer legitimate alternatives to illegal downloading. This bill will protect our copyright holders and spur innovation."

Sen. Hatch and Sen. Leahy were the only two Senators to participate in the hearing. This hearing was held just prior to the beginning of the August recess when the Senate was hectic with other activities.

The Committee also heard from several witnesses who lacked the Senators' enthusiasm for the bill.

Gary Shapiro, P/CEO of the Consumer Electronics Association (CEA), said that "this bill would reverse and rewind the Betamax case", which he described as the technology industry's Magna Carta. He also argued that the bill is hopelessly subjective, and would inhibit investment and innovation. See, prepared testimony.

Kevin McGuinness, of the NetCoalition, also testified in opposition. He wrote in his prepared testimony [13 pages in PDF] that "S 2560 is much broader in scope than described by its proponents and open to multiple interpretations. As a result, it would have severe repercussions on Internet companies, products, and services; jeopardize the introduction of new technologies; and trigger a flood of litigation."

Several of the opponents of the bill argued that it would lead to frequent litigation. McGuiness quipped that the technology industry did not want "to sit idly by watching legislation go forward that is based upon the presumption of good intentions for ever of lawyers from the entertainment industry. It is a little troubling, they would never never ever ever use the statute for economic benefit."

Gigi Sohn, President of Public Knowledge, Gene Kimmelman (Consumers Union), and Mark Cooper (Consumer Federation of America) did not testify, but submitted joint written testimony for the record. They wrote that "Because S 2560 in its current form will chill innovation -- and in so doing limit consumer choice -- by putting technology makers and vendors at greater risk of expensive litigation, our consumer-advocacy organizations must oppose it."

Andrew Greenberg of the Institute of Electrical and Electronics Engineers (IEEE) also testified. He enumerated a number of criticisms of the bill as written, in his prepared testimony. He also suggested alternative language. He wrote that the bill should instead provide that "Whoever actively and knowingly induces infringement of a copyrighted work by another with the specific and actual intent to cause the infringing acts shall be liable as an infringer."

Mitch Bainwol, Ch/CEO of the Recording Industry Association of America (RIAA), testified in support of the bill. See, prepared testimony.

Robert Holleyman, P/CEO of the Business Software Alliance (BSA), offered limited support for the bill. He said that many elements are necessary to deal with P2P piracy, including market solutions, criminal prosecution, public education, and technology. He wrote in his prepared testimony [PDF] that "If the Committee determines that an additional cause of action, such as S. 2560, is necessary to address the problem of online piracy, we urge that any such bill be carefully crafted and properly balanced to curtail irresponsible and harmful practices while avoiding adverse unintended consequences for legitimate technology companies."

He offered some specific recommendations, including that,
 • "the bill should state clearly that the Supreme Court’s decision in the Betamax case is unaffected",
 • "it should be made clear that to meet the intent standard of the bill an actor must be shown to have engaged in conscious, recurring, persistent and deliberate acts demonstrated to have caused another person to commit infringement", and
 • "mere knowledge by a developer of a technology or a provider of a service of the actual or potential infringing acts of another person using that technology or service does not demonstrate intent to induce copyright infringement".

Sen. Hatch suggested at the end of the hearing that "I suspect that we are going to try to resolve this over the month of August". He added that he wants to pass legislation this year.

Whether this bill will be enacted is another matter. Not only are there legislators, companies and groups that oppose it, there are legislative proposals to accomplish just the opposite -- to weaken copyright protection. See for example, HR 107, the "Digital Media Consumers' Rights Act of 2003", cosponsored by Rep. Rick Boucher (D-VA) and Rep. John Doolittle (R-CA). It now has 21 sponsors in the House.

See also, 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; story titled "Reps. Boucher and Doolittle Introduce Digital Fair Use Bill" in TLJ Daily E-Mail Alert No. 582, January 14, 2003; and story titled "Chairman Barton Says Commerce Committee Will Mark Up Boucher Doolittle Bill in July" in TLJ Daily E-Mail Alert No. 924, July 23, 2004. (No House Committee has yet approved this bill.)

8/19. The House Judiciary Committee's Subcommittee on Commercial and Administrative Law and Subcommittee on the Constitution will hold a joint hearing at 10:00 AM on Friday, August 20, 2004 titled "Privacy and Civil Liberties in the Hands of the Government Post-September 11, 2001: Recommendations of the 9/11 Commission and the U.S. Department of Defense Technology and Privacy Advisory Committee".

The National Commission on Terrorist Attacks Upon the United States (9-11 Commission) released its report last month. Two members of the 9-11 Commission will testify, former Rep. Lee Hamilton (D-IN) and former Sen. Slade Gordon (R-WA).

The 9-11 Commission report includes recommendations regarding the use of information technologies, as for example, in the use of computer databases in the Computer Assisted Passenger Prescreening System (CAPPS) by the Department of Homeland Security's (DHS) Transportation Security Administration (TSA). Nuala Kelly, the Chief Privacy Officer of the DHS, will testify.

The Department of Defense (DOD) established the Technology and Privacy Advisory Committee (TAPAC) in February of 2003 in response to Congressional concerns about the data privacy implications of the DOD's Defense Advanced Research Projects Agency (DARPA) Total Information Awareness (TIA) program. On May 17, 2004, this TAPAC released a report [140 pages in PDF] titled "Safeguarding Privacy in the Fight Against Terrorism" regarding data mining by the DOD and the rest of the federal government, the DARPA's Total Information Awareness program, and individual privacy.

It concluded that data mining is an important tool for fighting terrorism, and should be used, but with more concern for the protecting individual data privacy of U.S. persons. See, story titled "DOD Advisory Committee Backs Data Mining, with Attention to Privacy" in TLJ Daily E-Mail Alert No. 900, May 18, 2004. John Marsh of the TAPAC will testify.

The hearing will be held in Room 2141 of the Rayburn Building. It will be webcast by the Committee.

The House and Senate are in recess through September 6.

10:00 AM. The House Judiciary Committee's Subcommittee on Commercial and Administrative Law and Subcommittee on the Constitution will hold a joint hearing titled "Privacy and Civil Liberties in the Hands of the Government Post-September 11, 2001: Recommendations of the 9/11 Commission and the U.S. Department of Defense Technology and Privacy Advisory Committee". The witnesses will include Lee Hamilton (9-11 Commission), Slade Gordon (9-11 Commission), Nuala Kelly (Chief Privacy Officer of the Department of Homeland Security), and John Marsh (TAPAC). The hearing will be webcast. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

10:00 AM. The House Financial Services Committee will hold a hearing titled "The 9/11 Commission Report: Identifying and Preventing Terrorist Financing". See, report of the National Commission on Terrorist Attacks Upon the United States (9-11 Commission). Press contact: Peggy Peterson at 202 226-0471. Location: Room 2128, Rayburn Building.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding the reporting requirements for U.S. providers of international telecommunications services. This NPRM is FCC 04-70 in IB Docket No. 04-112. See, notice in the Federal Register, May 25, 2004, Vol. 69, No. 101, at Pages 29676 - 29681.

10:30 AM - 12:15 PM. The Federal Communications Commission (FCC) will hold an event titled "Discussion on the Debt Collection Improvement Act Rules and Rules Governing Applications or Other Request for Benefits by Debtors". See, notice [PDF]. Location: FCC, Commission Meeting Room, 445 12th Street, SW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Online Communications Practice Committee will host a brown bag lunch. The topic will be Federal Communications Commission (FCC) and Department of Agriculture (USDA) policies related to deployment of wireless broadband services in rural areas. The speakers will be Peter Corea (Special Counsel, FCC's WTB's Broadband Division) and Chris Moore (USDA). For more info contact Ann Bobeck at abobeck@nab.org. RSVP to Evelyn Opany at evelyn.opany@piperrudnick.com Location: Piper Rudnick, 1200 19th St., NW, 7th Floor.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [30 pages in PDF] regarding its annual report to the Congress on the status of competition in the market for the delivery of video programming. See also, story titled "FCC Adopts NOI For Annual Report to Congress on Video Programming" in TLJ Daily E-Mail Alert No. 916, June 11, 2004. This NOI is FCC 04-136 in MB Docket No. 04-227. See also, notice in the Federal Register, July 1, 2004, Vol. 69, No. 126, at Pages 39930 - 39933.

Deadline to submit comments and notices of intention to participate to the Copyright Office regarding ascertainment of controversy for the 2002 cable royalty funds. The CO published a notice in the Federal Register that "directs all claimants to royalty fees collected for calendar year 2002 under the cable statutory license to submit comments as to whether a Phase I or Phase II controversy exists as to the distribution of those fees and announces the deadline for the filing of Notices of Intention to Participate in a royalty distribution proceeding concerning those royalty fees." See, Federal Register, July 26, 2004, Vol. 69, No. 142, at Pages 44548 - 44549.

6:00 - 9:15 PM. The DC Bar Association's Intellectual Property Law Section and Computer and Telecommunications Law Section will host a continuing legal education (CLE) program titled "Software Patent Primer: Acquisition, Exploitation, Enforcement and Defense". The speakers will be Richard Litman (Litman Law Firm), Stephen Parker (Rothwell Figg, Ernst & Manbeck), David Temeles (Temeles & Temeles), and Martin Zoltick (Rothwell Figg). Prices vary. See, notice. For more information, contact 202-626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding unlicensed use of the 3650-3700 MHz band. The FCC adopted this NPRM on April 15, 2004. This item is FCC 04-100 in ET Docket Nos. 04-151, 02-380 and 98-237. See, notice in the Federal Register, May 14, 2004, Vol. 69, No. 94, at Pages 26790 - 26803. See also, story titled "FCC Announces NPRM Regarding Unlicensed Use in the 3650-3700 MHz Band" in TLJ Daily E-Mail Alert No. 878, April 16, 2004.

Deadline to submit comments to the Federal Communications Commission FCC) in response to its notice of proposed rulemaking (NPRM) [11 pages in PDF] that proposes to require that television and radio broadcasters retain program recordings for a period of time for purposes of enforcing the statutory prohibition, codified at 18 U.S.C. § 1464, against obscene, indecent, or profane programming. This NPRM is FCC 04-145 MM Docket No. 04-232. See, story titled "FCC Proposes That Broadcasters Retain Recordings To Facilitate Enforcement of Smut Ban" in TLJ Daily E-Mail Alert No. 933, July 8, 2004. See, notice in the Federal Register, July 30, 2004, Vol. 69, No. 146, at Pages 45665 - 45668.

The Republican National Convention will be held in New York City on August 30 through September 2.

8/19. The U.S. District Court (DC) issued a Memorandum & Order [13 pages in PDF] in Lee v. DOJ, holding in contempt of court five journalists for failing to provide information about confidential sources to a litigant in a private lawsuit.

The order states that five journalists "are each fined the sum of $500.00 per day, payable to the United States, until he complies therewith". It adds that "the foregoing fines are stayed for thirty (30) days, or until completion of proceedings on a timely appeal herefrom, whichever is the later".

The five journalists are not parties to the case. Rather, this is a civil case brought by an individual against the Department of Justice and Department of Energy alleging that they improperly released information about its investigation of him.

The Judge in this case is Thomas Jackson. He was also the presiding Judge in the government's antitrust case against Microsoft, until he was replaced. Judge Jackson is personally experienced in improperly providing information to journalists. In that case he met with and discussed the merits of the case with journalists including from the New York Times. In the present case, two of the journalists work for the New York Times.

Microsoft later learned of the meetings, and raised this on appeal. The U.S. Court of Appeals (DCCir), in a unanimous, en banc opinion, wrote that Judge Jackson's actions violated the Code of Conduct for United States Judges. It wrote that his violations were "deliberate, repeated, egregious, and flagrant".

The Appeals Court wrote in its June 28, 2001 opinion that "Because he was talking to reporters, the Judge knew his comments would eventually receive widespread dissemination." It added that The public cannot be expected to maintain confidence in the integrity and impartiality of the federal judiciary in the face of such conduct."

The present case is Wen Ho Lee v. Department of Justice, et al., U.S. District Court for the District of Columbia, No. 99-3380-TPJ, Judge Thomas Jackson presiding.

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