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November 5, 2004, 9:00 AM ET, Alert No. 1,012.
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MPAA Members to File Lawsuits Against Individual Infringers

11/4. The Motion Picture Association of America (MPAA) announced that its member companies will begin filing complaints in federal courts against individuals alleging infringement of copyrighted movies on peer to peer systems. Record companies have already filed over six thousand similar lawsuits against individuals.

On Thursday, November 11, 2004, Dan Glickman, the recently selected Chairman and CEO of the MPAA, will give a luncheon address titled "The Motion Picture Industry in the 21st Century -- A New Golden Age?" at the National Press Club, in Washington DC.

Adam Thierer, Director of Telecommunications Studies at the Cato Institute, wrote in a essay, "If not direct enforcement against infringers, what else? Whereas many of the other enforcement strategies the industry has pursued in recent years are excessive and unwise, targeted lawsuits against individuals who violate the copyright laws are probably the most sensible and just way of protecting copyrights without destroying new technologies in the process."

Alan Davidson, Associate Director of the Center for Democracy and Technology (CDT), stated in a release that "Lawsuits against infringers are an unfortunate, but appropriate, part of protecting artists in the digital age. It is unhealthy for our country, and unfair to copyright holders, for large numbers of people to routinely violate the law of the land".

Gigi Sohn, President of Public Knowledge, stated in a release that "Public Knowledge acknowledges the potential threat that large scale unauthorized file trading of movies may pose, and has encouraged the motion picture industry to protect its copyrights by pursuing strategically targeted, appropriate legal action against actual infringers, particularly in the case of pre-release films."

Public Knowledge is one of the Washington DC based interest groups that opposes S 2560, the "Inducing Infringement of Copyrights Act of 2004", a bill that would create a new cause of action for intentional inducement of infringement. The MPAA supports passage of S 2560.

Appeals Court Holds No Infringement by GU87 Phone

11/3. The U.S. Court of Appeals (FedCir) issued its opinion [6 pages in PDF] in Colida v. Matsushita, affirming the District Court's summary judgment that the Matsushita telephone at issue does not infringe two design patents of Colida.

Tony Colida owns U.S. Design Patent No. Des. 321,347 and U.S. Design Patent No. Des. 321,349. Matsushita Electric Corporation for America owns U.S. Design Patent No. Des. 477,581, and markets a cellular photo phone in the U.S. that displays the design of the '581 patent as the Panasonic GU87.

The District Court found no similarity between either the '347 or '349 patents and the GU87 telephone, and granted summary judgment to Matsushita.

The Court of Appeals affirmed, applying the test for infringement of a design patent articulated by the Supreme Court in Gorham Co. v. White, 81 U.S. 511 (1871). The Supreme Court wrote then that infringement of a design patent occurs "if, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other."

This case is Tony Colida v. Matsushita Electric Corporation for America, U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 04-1348, an appeal from the U.S. District Court for the District of New Jersey, D.C. No. Civ. No. 03-2904 (WGB). The per curiam opinion of the Court of Appeals was joined by Judges Clevenger, Gajarsa and Prost.

Bush Discusses Plans for Second Term

11/4. President Bush met with his cabinet, and then spoke, and answered questions from reporters. As with his speeches leading up to the election, he said little that relates to information technology or communications policies. See, transcript.

He did urge the Congress "to pass an effective intelligence reform bill that I can sign into law" when it meets later this month. This bill will likely include some technology related provisions.

George BushBush (at right) also stated that "In the Cabinet, there will be some changes. I don't know who they will be. It's inevitable there will be changes. It happens in every administration." He also stated that "I have made no decisions on my Cabinet and/or White House staff", or about Supreme Court nominees.

He discussed numerous issues that he plans to address in his second term. He discussed appropriations bills and the budget deficit. He discussed the economy and jobs. He discussed education reform, including strengthening "accountability standards". He discussed "reforming Social Security". He discussed "working on Middle Eastern peace", promoting "freedom and democracy" in the Middle East, and "chasing down the terror networks. He discussed tax "simplification" and "tax relief". He discussed "legal reform and regulatory reform" and limiting "frivolous lawsuits that are driving up the cost of health care and hurting doctors and patients".

However, he did not discuss broadband deployment, reform of telecommunications regulation, intellectual property issues, or any other technology related issues.

6th Circuit Vacates Preliminary Injunction in DMCA Case

10/26. The U.S. Court of Appeals (6thCir) issued its opinion [32 pages in PDF] in Lexmark v. Static Control Components, a case involving the Digital Millennium Copyright Act (DMCA) and secondary markets for replacement products and supplies.

Introduction. Lexmark International makes printers and printer cartridges. Static Control Components (SCC) makes a computer chip, named SMARTEK, that it sells to remanufacturers of printer cartridges. The District Court issued a preliminary injunction against SCC that bars it from selling chips that are used in replacement cartridges because they violate the DMCA by circumventing a technological measure designed to control access to a work protected by copyright statute.

The Court of Appeals vacated the preliminary injunction and remanded. All three judges of the three judge panel wrote opinions, one of which is a partial dissent. However, the three judges all agreed that the DMCA cannot be used by manufacturers to obtain a monopoly in secondary markets for replacement parts.

All three Judges wrote detailed opinions. The case involved application of law to two technologies -- Lexmark's and SCC's, each of which included multiple elements. There were three separate claims, each of which involved lengthy analysis complex statutory provisions, and court precedent. This article does not adequately summarize this opinion. Readers interested in this topic are advised to read the opinion in full.

Background. The Court of Appeals summarized Lexmark's technology. "Lexmark uses an ``authentication sequence创 that performs a ``secret handshake创 between each Lexmark printer and a microchip on each Lexmark toner cartridge. Both the printer and the chip employ a publicly available encryption algorithm known as ``Secure Hash Algorigthm-1创 or ``SHA-1,创 which calculates a ``Message Authentication Code创 based on data in the microchip's memory. If the code calculated by the microchip matches the code calculated by the printer, the printer functions normally. If the two values do not match, the printer returns an error message and will not operate, blocking consumers from using toner cartridges that Lexmark has not authorized."

SCC sells to third party cartridge remanufacturers a microchip, named SMARTEK, that "permits consumers to satisfy Lexmark's authentication sequence each time it would otherwise be performed, i.e., when the printer is turned on or the printer door is opened and shut". The remanufacturers can then replace Lexmark's chip with the SMARTEK chip in refurbished cartridges, and then sell the recycled cartridges to consumers. These recycled cartridges are a lower priced competitor of new Lexmark cartridges.

The SMARTEK chips also include a copy of Lexmark's Toner Loading Program (TLP). The Appeals Court explained. "After the authentication sequence concludes, the Printer Engine Program downloads a copy of the Toner Loading Program from the toner cartridge chip onto the printer in order to Lexmark does not wish to loose its control of the market for replacement cartridges. measure toner levels. Before the printer runs the Toner Loading Program, it performs a ``checksum operation,创 a ``commonly used technique创 to ensure the ``integrity创 of the data downloaded from the toner cartridge microchip. ... Under this operation, the printer compares the result of a calculation performed on the data bytes of the transferred copy of the Toner Loading Program with the ``checksum value创 located elsewhere on the toner cartridge microchip. If the two values do not match, the printer assumes that the data was corrupted in the program download, displays an error message and ceases functioning. If the two values do match, the printer continues to operate."

Complaint. On December 30, 2002 Lexmark filed a complaint [17 page PDF scan] in U.S. District Court (EDKent) against SCC alleging violation of the anti-circumvention provisions of the DMCA in connection with its production and sale of chips for replacement cartridges for certain Lexmark printers.

Lexmark alleged in its complaint that its "strategy is based on a business model of building an installed base of printers that will then generate demand for Lexmark's printer supplies and services. Lexmark designs, manufactures, and distributes a variety of toner cartridges for use in its installed base of laser printers."

It further alleged that "Among the many products developed and marketed by Lexmark are its T520/522 and T620/622 laser printers and toner cartridges. Lexmark is the owner of valid copyright registrations covering computer programs that are used to control various operations of its T520/522 and T620/622 laser printers and to monitor operational characteristics of its toner cartridges."

According to the complaint, one of these programs, named the "Toner Loading Programs", is "contained on a microchip located on the T520/522 toner cartridge". There is another "Toner Loading Program" on a microchip in the T620/622. Another of Lexmark's programs is named the "Printer Engine Programs". It controls various printer functions on Lexmark printers.

The complaint states that "In general, the technological measure, or authentication sequence, requires a ``secret handshake创 between the printer and toner cartridge to enable printer functionality."

Lexmark alleged that SCC's "SMARTEK microchips are designed to enable unauthorized toner cartridges to function with Lexmark's T520/522 and T620/622 laser printers." It elaborates that these chips contain copies of Lexmark's programs, and constitutes a "circumvention" within the meaning of the DMCA.

The complaint alleged copyright infringement, in violation of 17 U.S.C. 106, by reproducing the Toner Loading Program on the SMARTEK chip. Second, the complaint alleged violation of the DMCA by selling a product that circumvents access controls on the Toner Loading Program. Third, the complaint alleged violation of the DMCA by selling a product that circumvents access controls on the Printer Engine Program.

Lexmark sought injunctive relief.

Statutes. The relevant provisions of the DMCA are codified at 17 U.S.C. 1201. 17 U.S.C. 1201(a)(1) provides, in part, that "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."

The words "this title" refer to Title 17 of the U.S. Code, which codifies copyright law. In particular, 17 U.S.C. 102 defines the subject matter of copyright. 17 U.S.C. 102(a) provides, in part, that "Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."

17 U.S.C. 102(a)(b) provides that "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

Then, 17 U.S.C. 106 provides that "the owner of copyright under this title has the exclusive rights ... (1) to reproduce the copyrighted work in copies ..."

17 U.S.C. 1201(a)(2) provides that "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that--
   (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
   (B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
   (C) is marketed by that person or another acting in concert with that person with that person抯 knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

17 U.S.C. 1201(a)(3)(A) provides that "to ``circumvent a technological measure创 means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner". It also provides that "a technological measure ``effectively controls access to a work创 if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work."

District Court. The District Court issued a temporary restraining order on January 9, 2003 that enjoined SCC from making or selling its SMARTEK microchip for toner cartridges developed for the Lexmark T520/522 and T620/622 laser printers. See, Lexmark release of January 9.

The District Court issued a preliminary injunction Order [54 page PDF scan] on February 27, 2003. It found  that Lexmark established a likelihood of success on its copyright infringement claim (infringement under Section 106 of the Toner Loading Program). The District Court also found that Lexmark established a likelihood of success on both of its DMCA claims (circumvention under Section 1201 of access controls on the Toner Loading Program and on the Printer Engine Program).

The District Court then presumed irreparable harm, found that the other requirement for issuance of injunctive relief were present, and issued a preliminary injunction.

SCC then brought this interlocutory appeal.

Court of Appeals. The Court of Appeals focused on the likelihood of success on the copyright infringement and circumvention claims, and, like the District Court, presumed irreparable harm would follow.

First, the Court examined the claim of infringement of the Toner Loading Program. It found no infringement, in part, because the TLP is not sufficiently original to warrant copyright protection.

The Court wrote that "computer programs may be entitled to copyright protection as ``literary works创 under 17 U.S.C. 101 and may be protected from infringement under 17 U.S.C. 106." The Court found no issue as to whether copying took place. Rather, the issue was rather the Toner Loading Program is entitled to copyright protection as an original expression, or whether, Lexmark seeks protection for an idea.

The Court of Appeals wrote that "Generally speaking, ``lock-out创 codes fall on the functional-idea rather than the original-expression side of the copyright line. Manufacturers of interoperable devices such as computers and software, game consoles and video games, printers and toner cartridges, or automobiles and replacement parts may employ a security system to bar the use of unauthorized components. To ``unlock创 and permit operation of the primary device (i.e., the computer, the game console, the printer, the car), the component must contain either a certain code sequence or be able to respond appropriately to an authentication process. To the extent compatibility requires that a particular code sequence be included in the component device to permit its use, the merger and sc鑞es faire doctrines generally preclude the code sequence from obtaining copyright protection."

The Appeals Court concluded that the District Court erred when it concluded that, because the Toner Loading Program could be written in a number of different ways, it was entitled to copyright protection. And, after a lengthy analysis the Court concluded that the Toner Loading Program was not sufficiently original to qualify for copyright protection.

The Court also reasoned that the copying appears to fall under the fair use exception of 17 U.S.C. 107.

Second, the Appeals Court examined the DMCA claims. It found that both claims fail because neither program effectively controls access to a protected work.

The Court of Appeals summarized that the District Court found that the Printer Engine Program's authentication sequence effectively controls access to a work protected under copyright law, because it "relied on a definition in the DMCA saying that a measure ``effectively controls access to a work创 if, ``in the ordinary course of operation,创 it ``requires the application of information, or a process or treatment, with the authority of the copyright owner, to gain access to the work.创 ... Because Congress did not explain what it means to ``gain access to the work,创 the district court relied on the ``ordinary, customary meaning创 of ``access创: ``the ability to enter, to obtain, or to make use of,创 ... Based on this definition, the court concluded that ``Lexmark抯 authentication sequence effectively 慶ontrols access to the Printer Engine Program because it controls the consumer抯 ability to make use of these programs.创" (Statutory and dictionary citations omitted.)

The Appeals Court disagreed. It wrote that "It is not Lexmark's authentication sequence that ``controls access创 to the Printer Engine Program.... It is the purchase of a Lexmark printer that allows ``access创 to the program. Anyone who buys a Lexmark printer may read the literal code of the Printer Engine Program directly from the printer memory, with or without the benefit of the authentication sequence, and the data from the program may be translated into readable source code after which copies may be freely distributed. ... No security device, in other words, protects access to the Printer Engine Program Code and no security device accordingly must be circumvented to obtain access to that program code."

The Appeals Court then applied the same reasoning to Lexmark's DMCA claim regarding the Toner Loading Program.

Judge Sutton wrote the opinion of the Court. Judge Merritt wrote a concurring opinion, which begins at page 21. Judge John Feikens (a Judge of the U.S. District Court for the Eastern District of Michigan sitting by designation) wrote an opinion in which he concurred in part and dissented in part; it begins at page 23.

Judge Merritt wrote that he concurred with all the Judge Sutton wrote. However, he wrote separately because Judge Sutton's thorough opinion focused solely on the technologies at issue in this case. Judge Merritt focused more broadly on the implications of this case for other manufacturers' attempts to use the DMCA to exclude competition in after markets.

Judge Merritt wrote that "I write separately to emphasize that our holding should not be limited to the narrow facts surrounding either the Toner Loading Program or the Printer Engine Program. We should make clear that in the future companies like Lexmark cannot use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves just by tweaking the facts of this case: by, for example, creating a Toner Loading Program that is more complex and ``creative创 than the one here, or by cutting off other access to the Printer Engine Program. The crucial point is that the DMCA forbids anyone from trafficking in any technology that ``is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a [protected] work.创 ... The key question is the ``purpose创 of the circumvention technology. The microchip in SCC抯 toner cartridges is intended not to reap any benefit from the Toner Loading Program -- SCC抯 microchip is not designed to measure toner levels -- but only for the purpose of making SCC's competing toner cartridges work with printers manufactured by Lexmark." (Citation omitted.)

He continued that "Lexmark would have us read this statute in such a way that any time a manufacturer intentionally circumvents any technological measure and accesses a protected work it necessarily violates the statute regardless of its ``purpose.创 Such a reading would ignore the precise language -- ``for the purpose of创 -- as well as the main point of the DMCA -- to prohibit the pirating of copyright-protected works such as movies, music, and computer programs. If we were to adopt Lexmark's reading of the statute, manufacturers could potentially create monopolies for replacement parts simply by using similar, but more creative, lock-out codes. Automobile manufacturers, for example, could control the entire market of replacement parts for their vehicles by including lock-out chips. Congress did not intend to allow the DMCA to be used offensively in this manner, but rather only sought to reach those who circumvented protective measures ``for the purpose创 of pirating works protected by the copyright statute. Unless a plaintiff can show that a defendant circumvented protective measures for such a purpose, its claim should not be allowed to go forward."

Judge Feikens concurred in part, and dissented in part. He wrote that all three Judges agree that the DMCA "was not intended by Congress to be used to create a monopoly in the secondary markets for parts or components of products that consumers have already purchased."

On the first claim -- copyright infringement -- he concluded that "the record could support a finding that there was enough original expression in the TLP to qualify it for copyright protection."

Judge Feikens concurred with both the result and reasoning of Judge Sutton on the DMCA claim regarding the Printer Engine Program. However, he merely concurred in the result on the DMCA claim regarding the Toner Loading Program.

This case is Lexmark International, Inc. v. Static Control Components, Inc., U.S. Court of Appeals for the 6th Circuit, App. Ct. No. 03-5400, an appeal from the U.S. District Court for the Eastern District of Kentucky, at Lexington, D.C. No. 02-00571, Judge Karl Forester presiding.

Related Case. On August 31, 2004, the U.S. Court of Appeals (FedCir) issued its opinion [46 pages in MS Word] in Chamberlain v. Skylink, another case involving the anti-circumvention provisions of the DMCA, and interoperability of after market products. The product in that case is portable radio frequency transmitting devices that activate garage door openers (GDO).

Chamberlain asserted that Skylink, by selling GDOs that interoperate with its equipment, is trafficking in devices that circumvent a technological measure that effectively controls access to a copyrighted work. The District Court rejected Chamberlain's claim. The Court of Appeals affirmed.

See, story titled "Federal Circuit Rejects Anti-Circumvention Claim in Garage Door Opener Case" TLJ Daily E-Mail Alert No. 971, September 7, 2004.

Washington Tech Calendar
New items are highlighted in red.
Friday, November 5

The House is in recess until November 16, 2004. See, Republican Whip Notice.

The Senate is in recess until November 16, 2004.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in NJ TV Corp v. FCC, No. 03-1444. Judges Henderson, Rogers and Williams will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel M, will hear oral argument in Junker v. Eddings (No. 04-1208), ASM America v. Genus Inc. (No. 04-1211), Mayer Berkshire v. Berkshire Fashion (No. 04-1254), and Carolina Tobacco v. Bureau of Customs (No. 04-1269). See, FedCir calendar. Location: Courtroom 402, 717 Madison Place, NW.

12:00 NOON. The Cato Institute will host a Capitol Hill Briefing titled "Here We Go Again: Congress Attempts to Outlaw Spyware". The speakers will be Federal Trade Commission (FTC ) Commissioner Orson Swindle and Jim Harper (Cato's Director of Information Policy Studies). Lunch will be served. See, notice and registration page. Location: Room HC-6, Capitol Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Practice Committee will host a luncheon. The topics will be wireless services and homeland security, CALEA, network outage reporting, and wireless priority service. The speakers will be Jeffery Goldthorp (FCC Office of Engineering and Technology), Geraldine Matise (OET), and Christopher Guttman-McCabe (CTIA). The price to attend is $15. See, registration form [PDF]. Location: Wiley Rein & Fielding, 1776 K St., NW.

2:00 PM. The U.S. Court of Appeals (FedCir), Panel N, will hear oral argument in Invitrogen v. Clonetech Labs (No. 04-1039). See, FedCir calendar. Location: Courtroom 402, 717 Madison Place, NW.

12:00 NOON. Deadline to submit comments to the Office of the U.S. Trade Representative (USTR) regarding its out of cycle reviews of Malaysia, Poland, and Taiwan, pursuant to Section 182 of the Trade Act of 1974, which is codified at 19 U.S.C. 2242 (also known as Special 301), which requires the USTR to identify countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. See, notice in the Federal Register, October 13, 2004, Vol. 69, No. 197, at Pages 60928 - 60929.

Deadline to submit comments to the Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) in response to Geophysical Survey Systems, Inc.'s (GSSI) request for a waiver of Part 15 of the FCC's rules to permit the higher power operation of ultra-wideband (UWB) non-contact ground penetrating radars (GPRs). See, FCC notice [2 pages in PDF]. This is ET Docket No. 04-374.

Monday, November 8

12:00 NOON - 1:30 PM. The DC Bar Association will host a CLE program titled "Overview Of Community Trademark And Community Design Law". The speakers will be Elia Sugra馿s (Oficina Sugranes, Barcelona, Spain) and Daan Teeuwissen (Knijff Weesp, The Netherlands). See, notice. Prices vary from $15-$20. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Law Journal Committee will meet to discuss the Federal Communications Law Journal. Lunch will be served. RSVP to jamison.prime@fcc.gov by Wednesday, November 3. Location: Conference Room 13170E (13th Floor), Wilmer Cutler, 1801 Pennsylvania Ave., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a brown bag lunch. The agenda includes planning for future lunches and CLE sessions. RSVP to Howard Liberman at hliberman@dbr.com. Location: Drinker Biddle & Reath, 1500 K Street, NW, 11th Floor.

12:30 - 2:00 PM. The DC Bar Association's Computer Law Section and Telecommunications Law Section will host a panel discussion titled "Technology Companies And Telecom: The View From The Outside ... For Now". The speakers will be Jonathan Askin (General Counsel, pulver.com), Paula Boyd (Microsoft), Elizabeth Banker (Yahoo), Peter Pitsch (Intel), Jonathan Frankel (Wilmer Cutler & Pickering), and Julie Veach (FCC). See, notice. Prices vary from $15-$30. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "How to Litigate an Intellectual Property Case Series, Part 1: How to Litigate a Copyright Case". The speaker will be Kenneth Kaufman (Skadden Arps). See, notice. Prices vary from $70 to $115. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking and Declaratory Ruling (NPRM & DR) [100 pages in PDF] regarding imposing Communications Assistance for Law Enforcement Act (CALEA) obligations upon broadband internet access services and voice over internet protocol (VOIP). This NPRM is FCC 04-187 in ET Docket No. 04-295. The FCC adopted this NPRM at its August 4, 2004 meeting, and released it on August 9. See, story titled "Summary of the FCC's CALEA NPRM" in TLJ Daily E-Mail Alert No. 960, August 17, 2004. See, notice in the Federal Register, September 23, 2004, Vol. 69, No. 184, Pages 56976 - 56987.

Deadline to submit reply 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 reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding amendments to FCC rules to permit VHF public coast (VPC) and automated maritime telecommunications system (AMTS) licensees to provide private mobile radio service to units on land. This NPRM is FCC 04-171 in WT Docket No. 04-257 and RM-10743. See, notice in the Federal Register, August 10, 2004, Vol. 69, No. 153, at Pages 48440 - 48443.

Extended extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its public notices (DA 04-1690, DA 04-1758, and DA (04-2906) requesting public comments on constitutionally permissible ways for the FCC to identify and eliminate market entry barriers for small telecommunications businesses and to further opportunities in the allocation of spectrum based services for small businesses and businesses owned by women and minorities. This proceeding is MB Docket No. 04-228. See, notice in the Federal Register, September 15, 2004, Vol. 69, No. 178, at Pages 55630 - 55631.

Tuesday, November 9

8:30 AM - 5:30 PM. Day one of a two day event hosted by the Federal Trade Commission (FTC) and the National Institute of Standards and Technology (NIST) titled "Email Authentication Summit". 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. Written comments are due by September 30, 2004. Written requests to participate are due by September 30, 2004. See, FTC notice and notice in the Federal Register, September 15, 2004, Vol. 69, No. 178, at Pages 55632 - 55636. Location: FTC Satellite Building, 601 New Jersey Ave., NW.

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. The event will be webcast. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in James A. Kay v. FCC, No. 04-1014. Judges Edwards, Henderson and Garland will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

9:30 AM - 12:00 NOON. The Department of Homeland Security's (DHS) Telecommunications Service Priority (TSP) System Oversight Committee will hold a meeting. See, notice in the Federal Register, October 8, 2004, Vol. 69, No. 195, at Page 60415. Location: NCS, 2nd floor conference room, 701 South Courthouse Road, Arlington, VA.

RESCHEDULED FOR NOVEMBER 10. 12:15 PM. The Federal Communications Bar Association (FCBA) Mass Media Practice Committee will host a brown bag lunch.

Wednesday, November 10

8:30 AM - 5:30 PM. Day two of a two day event hosted by the Federal Trade Commission (FTC) and the National Institute of Standards and Technology (NIST) titled "Email Authentication Summit". The purpose of this summit is to encourage the development, testing, evaluation and implementation of domain level authentication systems. See, FTC notice and notice in the Federal Register, September 15, 2004, Vol. 69, No. 178, at Pages 55632 - 55636. Location: FTC Satellite Building, 601 New Jersey Ave., NW.

10:00 AM - 12:00 NOON. The Federal Communications Commission's (FCC) Advisory Committee for the 2007 World Radiocommunication Conference (WRC-07 Advisory Committee) will meet. See, original notice in the Federal Register, July 6, 2004, Vol. 69, No. 128, at Pages 40637 - 40638, and rescheduling notice in the Federal Register, August 10, 2004, Vol. 69, No. 153, at Pages 48493. See also, FCC notice of rescheduling to November 10. Location: FCC, 445 12th Street, SW., Room TW-C305.

12:00 NOON. The Cato Institute will host a discussion of the book titled Shakedown: How Corporations, Government, and Trial Lawyers Abuse the Judicial Process [Amazon]. The speakers will be Robert Levy (author), Walter Olson (Manhattan Institute), and Edward Crane (Cato). See, notice and registration page. Lunch will follow the program. Location: 1000 Massachusetts Ave., NW.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Foundation Board of Trustees will meet. Location: Wiley Rein & Fielding, 1776 K St., NW.

12:15 PM. The Federal Communications Bar Association (FCBA) Access to Records and Mass Media Practice Committees will host a brown bag lunch. Renee Licht (FCC's Office of Managing Director), Mark Reger (FCC Chief Financial Officer), and other FCC personnel will discuss the Debt Collection Improvement Act of 1996 and the FCC's red light rule. RSVP to Rebecca Cunningham at rcunningham@lsl-law.com. Location: NAB, 1771 N St. NW.

3:00 - 6:30 PM. The American Enterprise Institute (AEI) will host a program titled "Federalism under the Influence: Dope, Booze, and the Commerce Clause". There will be three panel discussions. The first, titled "Uncorking the Commerce Clause", will address Swedenburg v. Kelly and consolidated cases, which involve Commerce Clause challenges to state barriers to internet sales, and other direct sales, of alcoholic beverages. The speakers on this panel include Brannon Denning (Cumberland School of Law), Todd Zywicki (George Mason University Law School), and Hewitt Pate (Department of Justice). The Supreme Court will hear oral argument in Swedenburg v. Kelly on December 7, 2004. See, 2002 paper [47 pages in PDF] by Denning titled "Smokey and the Bandit in Cyberspace: The Dormant Commerce Clause, the Twenty-First Amendment, and the State Regulation of Internet Alcohol Sales". See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

Thursday, November 11

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

12:30 PM. Dan Glickman, Ch/CEO of the Motion Picture Association of America (MPAA), will give a luncheon address titled "The Motion Picture Industry in the 21st Century -- A New Golden Age?". He will discuss the digital delivery of content, and internet piracy of movies. For reservations, call 202 662-7501. Location: National Press Club, 529 14th St. NW, 13th Floor.

Friday, November 12

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in AT&T Corp v. FCC, No. 03-1431. This is a petition for review of a final order of the FCC regarding AT&T's tarriffs and resellers 800 service plans. See, FCC brief [37 pages in PDF]. Judges Ginsburg, Tatel and Roberts will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

9:30 - 11:30 PM. The American Enterprise Institute (AEI) will host a program titled "Success Taxes, Entrepreneurial Entry, and Innovation". The speakers will be William Gentry (Williams College), William Randolph (Department of the Treasury), Kevin Hassett (AEI), and Eric Engen (AEI). Gentry and Glenn Hubbard (Columbia University) are the authors of a paper [30 pages in PDF] with the same title as the program. They find that "while the level of the marginal tax rate has a negative effect in entrepreneurial entry, the progressivity of the tax also discourages entrepreneurship". See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) to examine the proper number of end user common line charges that carriers may assess upon customers that obtain derived channel T-1 service where the customer provides the terminating channelization equipment and upon customers that obtain Primary Rate Interface (PRI) Integrated Service Digital Network (ISDN) service. This NPRM is FCC 04-174 in WC Docket No. 04-259 and RM-10603. See, notice in the Federal Register, August 13, 2004, Vol. 69, No. 156, at Pages 50141 - 50146.

Deadline for licensees of all site specific licenses operating under part 22, Paging and Radiotelephone Service with "CD" radio service code and all site specific licenses operating in the 929-930 MHz band on exclusive
private carrier paging channels with "GS" radio service to respond to the Federal Communications Commission's (FCC) Wireless Telecommunications Bureau's (WTB) audit letter. See, Public Notice DA 04-3050, and notice in the Federal Register, October 12, 2004, Vol. 69, No. 196, at Page 60626.

Deadline to submit comments to the Department of Commerce's Bureau of Industry and Security (BIS/BXA) in response to its notice of proposed rulemaking (NPRM) regarding amendments to the Export Administration Regulations (EAR). The BIS proposes to amend its EAR to revise the definition of knowledge to incorporate a reasonable person standard, and to replace the phrase "high probability" with "more likely than not". The BIS also proposes to revise the red flags guidance, and provide a safe harbor from liability arising from knowledge under that definition. See, notice in the Federal Register, October 13, 2004, Vol. 69, No. 197, at Pages 60829 - 60836.

Monday, November 15

The Supreme Court will begin a recess. It will return on Monday, November 29, 2004. See, Order List [14 pages in PDF] at page 14.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "How to Litigate an Intellectual Property Case Series, Part 2: How to Litigate a Trademark Case". The speakers will be Shauna Wertheim (Roberts Abokhair & Mardula) and Steven Hollman (Hogan & Hartson). See, notice. Prices vary from $70 to $115. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Professional Responsibility Committee will host a brown bag lunch. This is an organizational meeting. Location: Paul Hastings, 1299 Pennsylvania Ave., NW, 10th Floor.

Extended deadline to reply submit comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [15 pages in PDF] regarding "issues relating to the presentation of violent programming on television and its impact on children." This NOI is FCC 04-175 in MB Docket No. 04-261. See, story titled "FCC Issues NOI on Violent TV Programming" in TLJ Daily E-Mail Alert No. 950, August 2, 2004. See also, Order [PDF] extending the deadlines.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding "Internet Protocol (IP) Relay and Video Relay Service (VRS), including the appropriate cost recovery methodology for VRS, possible mechanisms to determine which IP Relay and VRS calls are intrastate and which are interstate for purposes of reimbursement, whether IP Rely and VRS should become mandatory TRS services, whether IP Relay and VRS should be required to be offered 7 days a week, 24 hours a day, and whether, when, and how we should apply the speed of answer rule to the provision of VRS." See, notice in the Federal Register, September 1, 2004, Vol. 69, No. 169, at Pages 53382 - 53385. The FCC adopted this NPRM on June 10, 2004, and released it on June 30, 2004. It is FCC 04-134 in CG Docket No. 03-123. Comments are due by October 18, 2004.

Deadline to submit comments for, or requests to participate in, the Federal Trade Commission's (FTC) workshop titled "Peer to Peer File-Sharing Technology: Consumer Protection and Competition Issues". See, FTC release and notice [13 pages in PDF] to be published in the Federal Register.

More News

11/4. The Federal Trade Commission (FTC) filed a civil complaint [13 pages in PDF] in U.S. District Court (DNJ) against Norvergence, Inc. alleging unfair or deceptive trade practices, Section 5(a) of the FTC Act, which is codified at 15 U.S.C. 45(a), in connection with the sale and financing of telecommunications services and related products. See also, FTC release.

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