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September 30, 2004, 9:00 AM ET, Alert No. 987.
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Opponents Criticize Latest Draft of Inducing Infringement of Copyright Act

9/29. Opponents of S 2560, the "Inducing Infringements of Copyright Act of 2004", have written letters to Senators urging them not to approve the bill. The Senate Judiciary Committee (SJC) has scheduled a business meeting for Thursday, September 30 at 9:30 AM. While consideration of S 2560 is on the agenda, the Committee is likely to hold it over.

The agenda also includes consideration of other intellectual property and technology related bills, including HR 2391, the "Cooperative Research and Technology Enhancement (CREATE) Act of 2004", S 1635 the "L-1 Visa (Intracompany Transferee) Reform Act of 2003", and S 2373, a bill pertaining to recognition by U.S. Courts of trademarks confiscated by the communist government of Cuba. The agenda also includes consideration of numerous other bills, private bills, resolutions, and nominations.

On September 28, 2004 fifty companies and trade groups wrote a letter in which they argued against approval of draft version of the bill released by SJC staff on September 24.

They wrote that "The new draft, like the original S. 2560, relies on a vague and indeterminate ``totality of circumstances创 standard of intent. Like the first Copyright Office draft, it predicates liability on undefined ``affirmative acts创 -- but unlike that draft, is not limited to the ``dissemination创 of works. Rather, the draft is addressed to the very introduction of products and services into commerce, and equates ``inducement创 with the foreseeability of any significant infringement, no matter how positive the potential economic and social contribution of the product or service may be. This extends well beyond any concept that the Copyright Act or the Supreme Court has yet embraced; it would effectively expand copyright monopolies and, correspondingly, devalue patent grants. It thus implies a fundamental realignment of our intellectual property system."

The argue that "There seems a substantial likelihood that staple hardware and software products that are considered legal today would be found illegal tomorrow."

The signatories include phone companies, consumer electronics makers, library groups, and technology related trade groups. The signatories also include Earthlink, Google, Yahoo, Sun Microsystems and Red Hat.

Also on September 28, Jerry Berman, President of the Center for Democracy and Technology (CDT), wrote a letter [2 pages in PDF] to Sen. Orrin Hatch (R-UT), Sen. Patrick Leahy (D-VT), and the other members of the SJC urging them not to approve S 2560.

He states that the draft version of the bill released by SJC staff on September 24 should not be approved because it "would chill new technologies".

He asserts that this bill could impact iTunes, e-mail, and instant messaging, and that "Providers of ISP services, DVD recorders, Internet search tools, home media centers, or even computers could face liability if just a small percentage of people use their products unlawfully, resulting in ``widespread infringement.创 They face huge monetary damages or injunctions, and could even be forced by courts to redesign their products."

He also asserts that the bill's "exceptions to liability are too narrowly worded to exempt developers and providers of valuable products and services."

People and Appointments

9/29. Russell Hanser was named Special Counsel to the Chief of the Federal Communications Commission's (FCC) Wireline Competition Bureau's (WCB) Competition Policy Division (CPD). He has worked on the VOIP aspects of the IP enabled services proceeding, the triennial review order, Section 271 applications, and other matters. Before joining the FCC he worked for the law firm of Wilmer Cutler & Pickering. In addition, Terri Natoli was named Assistant Chief of the CPD. She has worked on the Pulver.com petition, broadband and VOIP issues, and other matters. Before she joined the FCC in 2002, she worked for Teligent. She previously worked for GTE and Sprint. See, FCC release.

FCC News

9/29. The Federal Communications Commission (FCC) announced that it will delay the enforcement of its Red Light Rule from October 1, 2004 to November 1, 2004. The FCC explained it a Public Notice [PDF] that "Once the rule takes effect, anyone filing an application or seeking a benefit that is discovered to be delinquent in debt owed to the FCC will be notified of the delinquency and given 30 days to pay the debt in full or make other satisfactory arrangements. Failure to do so will result in dismissal of the application or other request for a benefit. The rule is scheduled to go into effect on October 1, 2004."

9/28. The Federal Communications Commission (FCC) released the text [128 pages in PDF] of its Ninth Annual Report to Congress on the state of competition in Commercial Mobile Radio Services (CMRS). The FCC adopted, but did not release, this item at its September 9, 2004 meeting. See, story titled "FCC Adopts Report to Congress on Competition in the Commercial Wireless Industry" in TLJ Daily E-Mail Alert No. 976, September 14, 2004. This item is FCC 04-216 in WT Docket No. 04-111.

9/27. The Federal Communications Commission (FCC) released the text [137 pages in PDF] of its Report and Order and Further Notice of Proposed Rulemaking regarding wireless services in rural areas. The FCC adopted, but did not release, this item at its July 8, 2004 meeting. This item is 04-166 in WT Docket Nos. 02-381, 01-14, and 03-202.

More News

9/29. Electronic Privacy Information Center (EPIC) published the 2004 edition of a book titled Litigation Under the Federal Open Government Laws. This book covers the Freedom of Information Act (FOIA), Privacy Act, Government in the Sunshine Act, and Federal Advisory Committee Act. This book is edited by Harry Hammitt. It is 572 pages. Its price is $40.00. See, EPIC order page.

9/29. The Progressive Policy Institute (PPI) released a paper [20 pages in PDF] titled "Technological Innovation Without Big Brother". It concludes that "with the right rules and safeguards in place, government can increase its use of advanced information technology tools and realize significant benefits for society as a whole without causing unacceptable harms to the privacy of citizens." The paper was written by Shane Ham, a former PPI policy analyst, and Robert Atkinson, Director of the PPI's Technology and New Economy Project. The PPI is a Democratic Party think tank. See also, summary.

9/28. The House Commerce Committee's Subcommittee on Commerce, Trade and Consumer Protection held a hearing titled "Protecting the Privacy of Consumers' Social Security Numbers". The hearing also addressed HR 2971, the "Social Security Privacy and Identity Theft Act". See, prepared testimony [24 pages in PDF] of Barbara Bovbjerg (Government Accountability Office), and prepared testimony of Chris Hoofnagle (Electronic Privacy Information Center). Rep. Cliff Stearns (R-FL), the Chairman of the Subcommittee, presided. See, Stearns release.

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Washington Tech Calendar
New items are highlighted in red.
Thursday, September 30

The House will meet at 10:00 AM. See, Republican Whip Notice.

The Senate will meet at 9:30 AM for morning business. It will then resume consideration of S 2845, the "National Intelligence Reform Act of 2004".

8:30 AM - 12:00 NOON. Day one of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, September 22, 2004, Vol. 69, No. 183, at Pages 56746 - 56747. Location: Hilton Hotel, 620 Perry Parkway, Gaithersburg, MD.

9:00 AM. Federal Communications Commission (FCC) Commissioner Kathleen Abernathy will host an event titled "briefing for members of the media". Location: Abernathy's office, Room 8B115, FCC, 445 12th St., SW.

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. The agenda includes consideration of S 2560, "Inducing Infringement of Copyrights Act of 2004" and other intellectual property related bills. However, the Committee is unlikely to take up S 2560. Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle (Leahy) at 202 224-4242. Location: Room 226, Dirksen Building.

9:45 AM. The House Commerce Committee will hold a meeting to mark up numerous bills and resolutions, most of which are related to health. The agenda includes HR 3015, the "National All Schedules Prescription Electronic Reporting Act of 2003", a bill to establish an electronic system for practitioner monitoring of the dispensing of certain controlled substances. Press contact: Larry Neal or Jon Tripp at 202 225-5735. Location: Room 2123, Rayburn Building.

CANCELLED. 10:30 AM - 12:30 PM. The House Science Committee will hold a hearing on HR 4670, an untitled bill to provide for the establishment of a "Center for Scientific and Technical Assessment".

2:30 PM. The Senate Commerce Committee's Subcommittee on Communications will hold a hearing on the the security of the internet root servers and domain name system. See, notice. The hearing will be webcast by the Committee. Location: Room 253, Russell Building.

4:00 PM. Rebecca Tushnet will present a paper titled "The First Amendment as Battery Acid: Free Speech versus False Advertising" at an event hosted by the Dean Dinwoodey Center for Intellectual Property Studies at the George Washington University Law School (GWULS). For more information, contact Robert Brauneis at 202 994-6138 or rbraun@law.gwu.edu. The event is free and open to the public. See, notice. Location: GWULS, Faculty Conference Center, Burns Building, 5th Floor, 716 20th St., NW.

Deadline to submit comments to the Internal Revenue Service (IRS) regarding its "advanced notice of rulemaking proceeding" regarding expanding the current three percent excise tax on telephone service to new "communications services" to "reflect changes in technology". See, notice in the Federal Register, July 2, 2004, Vol. 69, No. 127, at Page 40345, and story titled "IRS Publishes Advance NPRM Regarding Expanding the Excise Tax on Telephones to Include New Technologies" in TLJ Daily E-Mail Alert No. 931, July 6, 2004.

Deadline to submit comments National Institute of Standards and Technology (NIST) regarding Draft NIST Special Publication 800-70 [PDF] titled "Security Configuration Checklists Program for IT Products". Send comments to checklists@nist.gov.

Deadline to submit written comments, or requests to participate, to the Federal Trade Commission (FTC) for the FTC's and the National Institute of Standards and Technology's (NIST) event titled "Email Authentication Summit", to be held on November 9-10, 2004. The FTC's interest in this issue is dealing with spam and fraudulent e-mail. The Simple Mail Transfer Protocol (SMTP) for the email system allows information to travel freely with relative anonymity and ease, thereby enabling cheap bulk unsolicited distribution, and fraud. The purpose of this summit is to encourage the development, testing, evaluation and implementation of domain level authentication systems. See, notice in the Federal Register, September 15, 2004, Vol. 69, No. 178, at Pages 55632 - 55636.

Friday, October 1

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

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Committee will host a luncheon. The price to attend is $15. Registrations and cancellations are due by 5:00 PM on Tuesday, September 28. See, registration form [PDF]. Location: Sidley Austin, 1501 K Street, NW.

EXTENDED TO DECEMBER 30. Deadline to submit reply comments to Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [38 pages in PDF] regarding use by unlicensed devices of broadcast television spectrum where the spectrum is not in use by broadcasters. This NPRM is FCC 04-113 in ET Docket Nos. 04-186 and No. 02-380. See, notice (setting original deadlines) in the Federal Register, June 18, 2004, Vol. 69, No. 117, at pages 34103-34112. See, notice [PDF] of extended deadlines, and erratum [PDF].

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding Amateur Radio Service rules. The FCC adopted this NPRM on March 31, 2004, and released it on April 15, 2004. This NPRM is FCC 04-79 in WT Docket No. 04-140. See, notice in the Federal Register, August 17, 2004, Vol. 69, No. 158, at Pages 51028 - 51034.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the Wireline Competition Bureau's (WCB) public notice inviting interested parties to update the record pertaining to petitions for reconsideration of the 1997 Price Cap Review Order. This is in CC Docket Nos. 94-1 and 96-262. See, notice [PDF].

Deadline to submit comments to the Federal Trade Commission (FTC) regarding its consent agreement with its Bonzi Software, Inc., it owners and officers, Joe Bonzi and Jay Bonzi. On September 1, 2004, the FTC filed an administrative complaint [6 pages in PDF], and simultaneously entered into an Agreement Containing Consent Decree [7 pages in PDF]. The FTC alleged violation of Section 5(a) of the FTC Act, which is codified at 15 U.S.C. 45, in connection with the deceptive marketing and sale of software named "InternetALERT". See, notice in the Federal Register, September 9, 2004, Vol. 69, No. 174, at Pages 54667 - 54668. See also, story titled "FTC Stops Deceptive Claims by Security Software Maker" in TLJ Daily E-Mail Alert No. 970, September 6, 2004.

Monday, October 4

The Supreme Court will hear the first oral arguments of its October 2004 Term.

Day one of a two day event hosted by the Department of Commerce's Bureau of Industry and Security titled "17th Annual Update Conference on Export Controls and Policy". Location: Washington DC.

3:00 - 4:00 PM. The Federal Communications Commission's (FCC) Advisory Committee on Diversity for Communications in the Digital Age will meet by teleconference. See, FCC notice [PDF], and notice in the Federal Register, September 24, 2004, Vol. 69, No. 185, at Pages 57293 - 57294.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to it Public Notice [PDF] requesting interested parties to provide comments on filings by AT&T and TracFone Wireless regarding eligible telecommunications carrier (ETC) designations and the Lifeline and Link-Up universal service support mechanism. This is CC Docket No. 96-45 and WC Docket No. 03-109.

Tuesday, October 5

The Supreme Court will hear oral argument in KP Permanent Makeup v. Lasting Impressions, No. 03-409. The U.S. Court of Appeals (9thCir) issued its opinion [20 pages in PDF] on April 30, 2003. The Supreme Court granted certiorari on January 9, 2004. See, story titled "Supreme Court Grants Cert in Trademark Case" in TLJ Daily E-Mail Alert No. 813, January 12, 2004. This case is No. 03-409.

8:30 AM. The President's Council of Advisors On Science and Technology (PCAST) will hold an open meeting. The agenda includes a discussion of transatlantic research and development cooperation. See, notice in the Federal Register, September 23, 2004, Vol. 69, No. 184, Pages 57029 - 57030. Location: Horizon Ballroom, Ronald Reagan Building, International Trade Center, 1300 Pennsylvania Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in NCR v. Palm. This is No. 04-1093. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM - 12:00 NOON. The World Radiocommunication Conference (WRC-07) Advisory Committee's Informal Working Group 5: Regulatory Issues will meet. See, FCC notice [PDF]. Location: FCC, Room 6-B516 (6th Floor South Conference Room).

12:15 PM. The Federal Communications Bar Association's (FCBA) Engineering & Technical Practice Committee will host a brown bag lunch. The topic will be "activities for the coming year". RSVP to Deborah Wiggins at dwiggins@g2w2.com. Location: Goldberg Godles Wiener & Wright, 1229 19th St., NW.

Day two of a two day event hosted by the Department of Commerce's Bureau of Industry and Security titled "17th Annual Update Conference on Export Controls and Policy". Location: Washington DC.

Wednesday, October 6

8:30 AM - 12:15 PM. The U.S. Chamber of Commerce will host a conference, and release a report, both of which are titled "Sending the Right Signals: Promoting Competition Through Telecommunications". See, notice and agenda [PDF]. Location: U.S. Chamber of Commerce, 1615 K St., NW.

9:00 AM - 4:00 PM. The Federal Communications Commission (FCC) will host a one day symposium titled "Unleashing the Educational Power of Broadband". See, notice and agenda [PDF]. The event will be webcast. Location: FCC, 445 12th Street, SW.

12:15 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications Committee will host a brown bag lunch titled is "Planning Meeting to Discuss Proposed Programs and Obtain Suggestions for the Upcoming Year". RSVP to Evelyn Zamora at zamorae@coudert.com. Location: Coudert Brothers, 1627 I Street, NW, 11th Floor.

Day one of a two day conference hosted by the National Institute of Standards and Technology (NIST), Department of Homeland Security (DHS) and the National Cyber Security Partnership's (NCSP) Coordinating Committee titled "Common Criteria Users' Forum". Amit Yoran, the Director of the DHS's National Cyber Security Division, will speak from 8:30 - 9:00 AM on October 6. The event is free for government employees. The price to attend is $100 for non-government employees. See, notice [PDF]. See also, the NCSP's April 2004 report [104 pages in PDF] containing recommendations regarding common criteria. Location: L'Enfant Plaza.

6:00 - 8:00 PM. The DC Bar Association's Intellectual Property Law Section and Litigation Section will host a continuing legal education (CLE) program titled "What You Need to Know About Copyright Damages". The speaker will be Terence Ross (Gibson Dunn & Crutcher). See, notice. Prices vary from $80 to $115. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

Thursday, October 7

8:45 AM - 5:00 PM. The Cato Institute will host a conference titled "Trade and the Future of American Workers". At 9:30 - 10:15 AM, Roger Ferguson (Vice Chairman of the Federal Reserve Board) will give the keynote address. At 1:15 - 2:00 PM, Sen. Chuck Hagel (R-NE) will speak. At 3:15 PM, Rep. Cal Dooley (D-CA) will speak. See, notice. Location: Cato, 1000 Massachusetts Avenue, NW.

9:30 AM - 12:00 NOON. The World Radiocommunication Conference (WRC-07) Advisory Committee's Informal Working Group 4: Broadcasting and Amateur Issues will meet. See, FCC notice [PDF]. Location: Shaw Pittman, 2300 N St., NW.

9:30 AM - 4:30 PM. The Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) will host an event titled "Radio Frequency Identification Workshop". See, notice and agenda [PDF]. The scheduled speakers include Chairman Michael Powell, Commissioners Kathleen Abernathy, Ed Thomas (Chief of the OET), and Julius Knapp (Deputy Chief of the OET). For more information, contact Bill Lane at william.lane@fcc.gov or voice: 202-418-0676. The event will be webcast. Location: FCC, Commission Meeting Room (TW-C305), at 445 12th Street, SW.

The National Institute of Standards and Technology's (NIST) Computer Security Division will host a workshop titled "Personal Identity Verification of Federal Employees/Contractors ". See, NIST notice, and notice in the Federal Register, September 15, 2004, Vol. 69, No. 178, at Page 55586. Location: Hilton Hotel, Gaithersburg, MD.

Day two of a two day conference hosted by the National Institute of Standards and Technology (NIST), Department of Homeland Security (DHS) and the National Cyber Security Partnership's (NCSP) Coordinating Committee titled "Common Criteria Users' Forum". The event is free for government employees. The price to attend is $100 for non-government employees. See, notice [PDF]. Location: L'Enfant Plaza.