10/4. The Supreme Court denied certiorari, without opinion, in Mainstream Marketing v. FTC, No. 03-1552. See, Order List [70 pages in PDF] at page 8. This case pertains to the national do not call registry.

Mainstream Marketing, a group that represents telemarketers, and other telemarketing groups, have sought to stop the do not call registry. They filed complaints in U.S. District Courts challenging the registry on First Amendment grounds.

On September 25, 2003, the U.S. District Court (DColo) issued its Memorandum Opinion and Order [34 pages PDF scan] holding that the FTC's do not call registry violates the First Amendment free speech rights of telemarketers. The District Court's decision was based upon its analysis that the FTC's do not call registry is content based regulation that covers commercial, but not non-profit, solicitations. See, story titled "Colorado District Court Holds That Do Not Call Registry Violates 1st Amendment" in TLJ Daily E-Mail Alert No. 747, September 26, 2003.

On February 17, 2004, the U.S. Court of Appeals (10thCir) issued its opinion [51 pages in PDF] reversing the District Court. The Appeals Court wrote that "The four cases consolidated in this appeal involve challenges to the national do-not-call registry, which allows individuals to register their phone numbers on a national ``do-not-call list´´ and prohibits most commercial telemarketers from calling the numbers on that list. The primary issue in this case is whether the First Amendment prevents the government from establishing an opt-in telemarketing regulation that provides a mechanism for consumers to restrict commercial sales calls but does not provide a similar mechanism to limit charitable or political calls."

The Appeals Court held that "the do-not-call registry is a valid commercial speech regulation because it directly advances the government’s important interests in safeguarding personal privacy and reducing the danger of telemarketing abuse without burdening an excessive amount of speech. In other words, there is a reasonable fit between the do-not-call regulations and the government’s reasons for enacting them."

See also, story titled "10th Circuit Upholds Constitutionality of Do Not Call Registry" in TLJ Daily E-Mail Alert No. 839, February 18, 2004.

The Supreme Court's denial of certiorari lets stand the decision of the Court of Appeals.

10/4. The Supreme Court denied certiorari, without opinion, in Ty v. Peaceable Planet, No. 04-17. See, Order List [70 pages in PDF] at page 37. This is another in Judge Richard Posner's series of beanie baby cases. This is a trademark infringement case involving a claim of reverse passing off.

Ty Inc., a maker of bean filed bags, is located in the 7th Circuit. Its creativity in making bean bags that look like animals is exceeded by its creativity in using intellectual property laws to further its business interests. Its many legal disputes end up in federal court in Chicago. Judge Posner has tended to find fault in Ty's practices and legal analyses.

In the present case, Peaceable Planet, a very small competitor of Ty, made a bean bag toy that resembles a camel. It named the camel "Niles", a allusion to the river that flows through Egypt. Subsequently, Ty produced a bean bag toy that resembles a camel. It named its product "Niles".

Peaceable Planet filed a complaint in U.S. District Court (NDIll) against Ty alleging trademark infringement, false advertising under the Lanham Act, and various state law claims. The District Court granted summary judgment to Ty on all claims. Peaceable Planet appealed.

A three judge panel of the Court of Appeals reversed. Judge Posner wrote the opinion [15 pages in PDF]. Following an intricate analysis of trademark infringement, descriptive marks, and reverse passing off, Posner concluded that " Peaceable Planet has a valid trademark in the name “Niles” as applied to its camel, and so the case must be returned to the district court, where Peaceable Planet, to prove infringement of its trademark (“reverse confusion”), will have to show that a substantial number of consumers think that its camel is actually Ty's."

The Supreme Court's denial of certiorari lets stand the 7th Circuit's decision.

See also, Judge Posner's May 30, 2002 opinion in Ty v. Publications International. For a discussion of this case, see story titled "Posner Addresses Copyright Misuse" in TLJ Daily E-Mail Alert No. 788, November 28, 2003. The Supreme Court denied certiorari in that case also.

10/4. The Supreme Court denied certiorari in Mult-Tech Systems v. Microsoft, No. 03-1719. See, Order List [70 pages in PDF] at page 13. This is a patent infringement case involving personal computer based systems and methods for simultaneously transmitting voice and/or data to a remote site over a telephone line. The holder of the patents in suit, Multi-Tech, filed a complaint in U.S. District Court (DMinn) against Microsoft alleging patent infringement. The District Court entered judgment of non-infringement. The Court of Appeals affirmed. See, February 3, 2004 opinion of the U.S. Court of Appeals (FedCir).

10/4. The Supreme Court denied certiorari in Durruthy v. Pastor, No. 03-1522. See, Order List [70 pages in PDF] at page 61. Albert Durruthy, a photo journalist, was arrested by Miami Police Officer Jennifer Pastor for lawful news gathering activity. He filed a complaint in U.S. District Court (SDFla) against Pastor and the City of Miami. The District Court held that Durruthy's Fourth Amendment rights were violated and that he could sue for damages. The U.S. Court of Appeals (11thCir) reversed. The National Press Photographers Association, Radio-Television News Directors Association, Society of Professional Journalists, and Reporters Committee for Freedom of the Press supported Durruthy's petition for writ of certiorari as amici curiae. The Supreme Court order lets stand the 11th Circuit decision.

10/4. The Supreme Court's October 4, 2004 Order List [70 pages in PDF] references a case numbered "04M4" and titled "DOE, JOHN V. UNITED STATES". The Order List, at page 3, states "The motion for leave to file a petition for a writ of certiorari under seal with redacted copies for the public record is granted."

10/4. The Supreme Court denied certiorari in DeCarlo v. Archie Comic Publications, No. 03-1577. See, Order List [70 pages in PDF] at page 9. This case pertains to ownership of comic book characters.

10/4. Kenneth Juster, the Under Secretary of Commerce for Industry and Security, gave a speech in Washington DC regarding, among other topics, the Bureau of Industry and Security's (BIS/BXA) regulation of the technology sector.

He stated that the BIS/BXA "has prepared a draft rule that would allow U.S. companies to release higher levels of computer technology and software to eligible foreign nationals working in the United States. We expect to publish this rule soon. Moreover, if the Wassenaar Expert Group agrees to raise the threshold for actual exports of computer technology, the Bureau is prepared to publish a second rule covering such exports."

Juster (at left) also stated that the BIS has "drafted a rule to raise the current microprocessor technology license requirement threshold level for foreign nationals working in the United States on the design, development, and production of general purpose microprocessors. Because microprocessor technology accounts for well over 20 percent of all deemed export licenses annually, increasing this threshold level will provide a measure of relief from licensing requirements. Again, if the Wassenaar Expert Group agrees to raise the threshold for actual exports of microprocessor technology, the Bureau is prepared to publish a rule covering such exports."

Also, he said that the BIS has "obtained interagency agreement for our proposal to implement a number of process improvements for deemed export licensing renewals. We are now granting automatic six-month extensions for existing deemed export licenses if an exporter has submitted both a renewal license application and a written request for extension of the existing license. We have also reached agreement for expediting requests for technology upgrades of existing deemed export licenses by having the agencies agree to make their best efforts to process such applications in 20 days."

10/4. The Senate Judiciary Committee held a business meeting at 5:00 PM on Monday, October 4. The Committee neither considered nor discussed S 2560, the "Inducing Infringement of Copyrights Act of 2004". However, Committee staff and representatives met again on Monday afternoon to discuss possible revisions to the bill. The Committee cancelled its business meeting scheduled for Tuesday morning, October 5. The Committee has scheduled another business meeting for Thursday morning, October 7. The Committee could mark up the bill at that meeting.

10/4. The Senate Judiciary Committee held a business meeting at 5:00 PM on Monday, October 4. The Committee neither considered nor discussed HR 2391, the "Cooperative Research and Technology Enhancement (CREATE) Act of 2004". It had been on the agenda.

10/4. The Senate Judiciary Committee held a business meeting at 5:00 PM on Monday, October 4. The Committee neither considered nor discussed S 2396, the "Federal Courts Improvement Act of 2004". It had been on the agenda.

10/4. The House Rules Committee adopted a rule for consideration of S 878, a bill to create numerous new federal judgeships. The House is scheduled to take up this bill on Tuesday, October 5. See, Republican Whip Notice. This rule makes in order two amendments. First, there is an amendment [8 page PDF scan] offered by Rep. James Sensenbrenner (R-WI). Second, there is an amendment [10 page PDF scan] offered by Rep. Mike Simpson (R-ID) to split the U.S. Court of Appeals for the Ninth Circuit into two separate circuits.

10/4. PeopleSoft announced its Board of Directors' "decision to terminate Craig Conway as President and CEO of the Company, effective immediately". PeopleSoft issued a lengthy release that included no kind words for Conway. It added that the "decision resulted from a loss of confidence in Mr. Conway's ability to continue to lead the Company". PeopleSoft also announced that Dave Duffield, the company's founder and Chairman, has been named CEO. Kevin Parker and Phil Wilmington have been named Co-Presidents. Aneel Bhusri has been named Vice Chairman of the Board.

10/4. The Senate Judiciary Committee approved the nomination of Susan Neilson to be a Judge of the U.S. Court of Appeals for the 6th Circuit on a roll call vote of 10-8. It was a straight party line vote.

10/4. The Senate Judiciary Committee approved the nomination of Christopher Boyko to be a Judge of the U.S. District Court for the Northern District of Ohio, without objection.

10/4. The Federal Communications Commission (FCC) hosted an event in connection with its efforts to plan consumer preferences regarding television and digital television (DTV). FCC Chairman Michael Powell spoke. The FCC hosted two panel discussions. And, the FCC initiated a web site -- www.dtv.gov. The FCC announced that this exercise is titled "DTV -- Get it!" See, FCC release [PDF] and release [PDF]. See also, Consumer Electronics Association (CEA) release.

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The House will meet at 9:00 AM for morning hour, and at 10:00 AM for legislative business. The agenda includes consideration, under suspension of the rules, of HR 2929, the "Securely Protect Yourself Against Cyber Trespass Act", or SPY ACT. The is the House Commerce Committee's spyware bill. The agenda also includes consideration, subject to a rule, of S 878, a bill to create numerous additional federal judgeships. There is also an amendment in order that would split the Ninth Circuit. See, Republican Whip Notice.

The Senate will meet at 9:00 AM for morning business. It will then resume consideration of S 2845, the "National Intelligence Reform Act of 2004".

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 - 5:30 PM. The President's Council of Advisors on Science and Technology (PCAST) will host a meeting titled "Enhancing International Mobility for European and American Researchers". At 9:00 - 10:30 AM there will be a panel titled "Enhancing International Mobility for European and American Researchers". At 10:45 AM -12:15 PM there will be a panel titled "Funding Collaborative Research". At 1:30 - 3:00 PM there will be a panel titled "Negotiating Differences in Legal and Regulatory Approaches". At 3:15 - 4:45 PM there will be a panel titled "The Future of Trans-Atlantic Science Collaborations -- Success Stories and Trends". See, agenda and notice in the Federal Register, September 23, 2004, Vol. 69, No. 184, Pages 57029 - 57030.. Location: Horizon Ballroom, Ronald Reagan Building and International Trade Center, 1300 Pennsylvania Ave., NW.

9:00 AM. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property (CIIP) will hold a oversight hearing titled "Peer-to-Peer Piracy (P2P) on University Campuses: An Update". The hearing will be webcast by the Committee. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

CANCELLED. 9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. The agenda may include consideration of S 2560, "Inducing Infringement of Copyrights Act of 2004". See, notice. Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle (Leahy) at 202 224-4242. Location: Room 226, Dirksen Building.

9:30 AM. The Senate Commerce Committee will hold a hearing to examine issues relating to the Federal Communications Commission's (FCC) e-rate subsidy program. The witnesses will be Thomas Bennett (Assistant Inspector General for USF Oversight at the FCC), George MacDonald (USAC Schools and Libraries Division), Frank Gumper (USAC), and Winston Himsworth (E-rate Central). See, notice. The hearing will be webcast by the Committee. Press contact: David Wonnenberg at 202 224-2670 or david_wonnenberg @commerce.senate.gov. Location: Room 253, Russell Building.

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).

11:45 AM - 1:45 PM. The New America Foundation (NAF) will host a panel discussion titled "The Trade Adjustment Assistance Reform Act: Two Years Later". The speakers will be Sen. Max Baucus (D-MT), Sen. Norm Coleman (R-MN), Rep. Phil English (R-PA), Howard Rosen (Executive Director of the Trade Adjustment Assistance Coalition), and Greg Mastel (TAAC). RSVP to Jennifer Buntman at 202 986-4901 or to buntman@newamerica.net. Lunch will be served. See, notice. Location: Room 902, Hart Senate Office Building.

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.

3:30 PM. Rep. Joe Barton (R-TX), Rep. Mary Bono (R-CA), Rep. Cliff Stearns (R-FL), Rep. John Dingell (D-MI), and Rep. Ed Towns (D-NY) will hold a press conference regarding House action on HR 2929, the "Securely Protect Yourself Against Cyber Trespass Act (SPY ACT)". Location: Room H-321 (House Radio/TV Gallery), U.S. Capitol.

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.

The House will meet at 10:00 AM. The agenda for Wednesday and the remainder of the week includes consideration, under suspension of the rules, of HR 4661, the "Internet Spyware (I-SPY) Prevention Act of 2004", the House Judiciary Committee's spyware bill. See, Republican Whip Notice.

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". The speakers will include Thomas. Donohue (P/CEO of the U.S. Chamber), John Kneuer (National Telecommunications and Information Administration), Lisa Sutherland (Sen. Ted Stevens' Appropriations Committee staff), Harry Alford (National Black Chamber of Commerce), Tom Hazlett (Manhattan Institute), William Smith (CTO of Bell South), Joseph Waz (Comcast), and Hank Hamilton (AIG). See, notice and agenda [PDF]. Press registration: press@uschamber.com or 202-463-5682. Prices vary. Location: U.S. Chamber of Commerce, 1615 K Street, 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.

RESCHEDULED FOR OCTOBER 14. 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". 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.

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

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. The Senate Judiciary Committee will hold an executive business meeting. The agenda may include consideration of S 2560, "Inducing Infringement of Copyrights Act of 2004". Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle (Leahy) at 202 224-4242. See, notice. Location: Room 226, Dirksen Building.

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 St., 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.

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

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in PC Connector v. SmartDisk. This is No. 04-1180. Location: Courtroom 203, 717 Madison Place, NW.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding its proposal to eliminate paper filings and require applicants to file electronically filings related to international telecommunications services. This NPRM is FCC 04-133 in IB Docket No.04-226. See, notice in the Federal Register, August 9, 2004, Vol. 69, No. 152, at Pages 48188 - 48192.

Deadline to submit comments to the Department of Homeland Security's (DHS) Transportation Security Administration (TSA) regarding its notice of proposed rulemaking (NPRM) in which its proposes to exempt the Registered Traveler Operations Files from several provisions of the Privacy Act. See, notice in the Federal Register, September 8, 2004, Vol. 69, No. 173, at Pages 54256 - 54258.

Columbus Day. The Federal Communications Commission (FCC) and other federal offices will be closed. See, Office of Personnel Management's (OPM) list of federal holidays.

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