|9th Circuit Holds No Vicarious Infringement
in Grokster Case
8/19. The U.S. Court of Appeals
(9thCir) issued its
[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,
titled "Music Publishers File Appeal Brief in P2P Infringement Case" in
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
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
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
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
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
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.
|Senate Judiciary Committee Holds Hearing on
8/19. The U.S. Court of Appeals (9thCir)
wrote in its
[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
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
"(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
(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
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).
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.
(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
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
He also argued that the bill is hopelessly subjective, and would inhibit
investment and innovation. See,
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
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
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
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,
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
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",
• "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
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.
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
|House Judiciary Committee to Hold Hearing on
Tech Issues in 9-11 Commission Report and TAPAC Report
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
[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.
|Washington Tech Calendar
New items are highlighted in red.
|Friday, August 20
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),
(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.
|Monday, August 23
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.
|Wednesday, August 25
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
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
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
email@example.com. RSVP to Evelyn Opany at
Piper Rudnick, 1200 19th St., NW, 7th
Deadline to submit reply comments to the
Federal Communications Commission (FCC) in response to
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.
|Thursday, August 26
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,
For more information, contact 202-626-3488. Location: D.C. Bar Conference
Center, B-1 Level, 1250 H Street, NW.
|Friday, August 27
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,
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
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.
|Monday, August 30
The Republican National Convention will be held in New York City on August
30 through September 2.
|Judge Jackson Fines Journalists
$500 Per Day
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
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
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
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
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
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