11/5. The Cato Institute held a panel discussion titled "Here We Go Again: Congress Attempts to Outlaw Spyware". The speakers were Commissioner Orson Swindle of the Federal Trade Commission (FTC), Jim Harper, Cato's Director of Information Policy Studies, and Susan Chamberlin, Cato's VP for Government Affairs. They criticized pending spyware bills.

The House approved two spyware bills before recessing for the general election. The Senate Commerce Committee approved its own bill. The Congress could enact a spyware bill when it reconvenes later this month.

Commissioner Swindle (at right) suggested that spyware legislation could do more harm than good. He also stated that in the area of information technology, "by the time we solve the problem legislatively, the problem no longer exists", because industry has already solved it. He said that he believes that industry can solve this problem.

He was asked why the House has not followed the recommendations of some members of the FTC on this issue. Swindle answered, "it is an even numbered year". He also stated that "too often legislation moves through because it is emotional."

He also said that "some of the legislation has some rather strong notice and consent provisions", and that this is getting into "European" type privacy safeguards. He concluded, "we don't want to go there".

Jim Harper also reflected on the notice provisions of the Gramm Leach Bliley (GLB) bill, the GLB financial privacy regulations, and the Health Insurance Portability and Accountability Act (HIPAA) regulations. He argued that we "pretty much failed miserably".

The House approved HR 2929, the "Securely Protect Yourself Against Cyber Trespass Act", or SPY ACT, by a vote of 399-1 on October 5, 2004. See, Roll Call No. 495. HR 2929 is the House Commerce Committee's spyware bill. It prohibits certain conduct with respect to spyware, and gives the FTC civil enforcement authority. See, story titled "House Passes First Spyware Bill" and story titled "Summary of House Commerce Committee Spyware Bill" in TLJ Daily E-Mail Alert No. 991, October 6, 2004.

The House approved HR 4661, the "Internet Spyware (I-SPY) Prevention Act of 2004", by a vote of 415-0 on October 6, 2004. See, Roll Call No. 503. This is the House Judiciary Committee's bill. It amends Title 18 to provide criminal penalties for certain conduct related to spyware. See, story titled "House Approves Second Spyware Bill" in TLJ Daily E-Mail Alert No. 993, October 8, 2004.

The Senate has not approved either of these bills. However, there is also S 2145, the "Software Principles Yielding Better Levels of Consumer Knowledge Act", or SPY BLOCK Act, sponsored by Sen. Conrad Burns (R-MT) and others. The Senate Commerce Committee amended and approved S 2145 on September 22, 2004. See, story titled "Senate Commerce Committee Approves Spyware Bill" in TLJ Daily E-Mail Alert No. 983, September 24, 2004.

Harper stated that the problem is not the existence of law. He noted that the FTC already has authority to pursue certain spyware related conduct under the Federal Trade Commission Act.

Indeed, the FTC filed a civil complaint [14 pages in PDF] in U.S. District Court (DNH) against several defendants alleging unfair and deceptive trade practices in violation of Section 5(a) of the FTC Act, which is codified at 15 U.S.C. § 45, in connection with fraudulent dissemination of spyware. The FTC filed this complaint at the same time that the Congress was debating spyware legislation. See, story titled "FTC Files Complaint Against Spyware Con Artists" in TLJ Daily E-Mail Alert No. 994, October 11, 2004.

He added that there are state and federal computer fraud and abuse statutes, and the cause of action for trespass to chattels. He concluded that "finding the people who do it is the most difficult problem", and this requires a lot of leg work by the FTC and internet service providers.

Harper also compared pending spyware bills to the CAN SPAM Act. He said that the CAN SPAM Act has not reduced spam, and the spyware bills would not reduce spyware.

Harper also discussed the potential impact of spyware legislation on innovation. He said that if legislation is passed, then companies that develop new products will have to spend legal fees to have lawyers review how the product might violate the statute, and then spend more to modify the product to bring it in line with legal recommendations. He said that for small companies and start up companies with limited funding, these increased costs would be significant.

He also said that spyware legislation "was supported, or at least not resisted, by a whole host of tech companies that are represented in DC, that signed off." He said that they will not be harmed by this legislation because they can afford the costs of compliance. Harper added, "Those are not innovative companies. They are closing the door on the next innovative companies. So, we need to think, not of the companies of today, but of companies of the future."

The event was held in the Capitol Building, and was attended by Congressional staff and others. The FTC "wants to work with the staffs up on the Hill", said Swindle, "to get it right".

11/4. Rep. Michael Oxley (D-OH), the Chairman of the House Financial Services Committee, wrote a letter [PDF] to the Government Accountability Office (GAO) in which he requested that it "review and report on how the provision of real estate services may be affected by or benefit from new forms of information technology and electronic commerce."

Rep. Oxley (at right) asked the GAO to "assess and report on: (1) how the residential real estate transaction is evolving as a result of electronic commerce; (2) any barriers to greater use electronic commerce in residential real estate transactions; (3) how removal of those barriers could benefit both consumers and real estate professionals; and, (4) how those changes may affect homeownership."

He also posed a number of specific questions. For example, he asked, "How does consumer and industry use of information technology in residential real estate compare to the use in other areas of commerce?", "How could greater use of information technology benefit consumers and residential real estate professionals?", and "What legal or regulatory barriers or self-regulatory practices hinder greater innovation and modernization of residential real estate transactions?"

He also asked the GAO to examine multiple listing services. He wrote that "please review the role of multiple listing services (MLSs). The MLSs effectively are the residential real estate marketplaces -- where home sellers provide essential information to buyers. Today all, or virtually all, MLSs appear to provide information about homes for sale in electronic form, yet there appear to be significant limitations on the accessibility of this information. Please review and explain any rules for Internet display of MLS information, and any other relevant regulatory structure."

The Federal Trade Commission (FTC) and Department of Justice (DOJ) have examined legal barriers to electronic commerce in many sectors of the economy, including real estate. For example, on March 20, 2003, the FTC and the DOJ's Antitrust Division wrote a letter to the Georgia State Bar's Standing Committee on the Unlicensed Practice of Law in response to its inquiry regarding preparation of deeds and other real estate conveyance instruments. The FTC and DOJ focused on the impact that an overly broad restriction on the practice of law would have on internet competition and electronic commerce.

The DOJ and FTC argued that "these potential restrictions are likely to impede substantially the growth of e-commerce. The Internet is changing the way many goods and services are delivered, and consumers benefit from the increased choices and convenience and decreased costs that the Internet can deliver." They added that "when restrictions may foreclose potential new Internet competitors, one should proceed cautiously, mindful of the unintended consequences that may unduly limit the choices of consumers." See, story titled "FTC/DOJ Oppose Restraints on E-Commerce Posed by Unlicensed Practice of Law Rules" in TLJ Daily E-Mail Alert No. 629, March 24, 2003.

Similarly, the FTC and DOJ wrote a letter to the American Bar Association (ABA) on December 20, 2002. They argued that "The Internet is changing how many goods and services are delivered, and consumers benefit from the increased choices and convenience and decreased costs that the Internet can deliver. Yet over-broad restrictions on the practice of law can impair the growth of e-commerce by (1) prohibiting or increasing the costs of electronic provision of forms or other legal self-help computer programs, (2) negatively impacting Internet mortgage lenders who rely on lay real estate closers, and (3) restricting the ability of providers to experiment and develop new forms of Internet services touching on legal matters that could benefit consumers directly."

11/5. The U.S. Court of Appeals (9thCir) issued its opinion [5 pages in PDF] in Laparade v. Ivanova, in which the Court of Appeals affirmed the District Court's judgment regarding the rights to and funds from 34 Spanish language movies.

17 U.S.C. § 104A(b), which pertains to restoration of copyrights, provides in part that "A restored work vests initially in the author or initial rightholder of the work as determined by the law of the source country of the work." In this case, the source country is Mexico. Hence, the U.S. District Court (DCCal) had to determine who is the author of the works under the law of Mexico.

The District Court concluded that the production company of the movie is the author under the laws of Mexico. The Court of Appeals affirmed, following the opinion [25 pages in PDF] of the U.S. Court of Appeals (5thCir) in Alameda Films SA de CV v. Authors Rights Restoration Corp., 331 F.3d 472, cert. denied, 124 S. Ct. 814 (2003).

This case is Eduardo Moreno Laparade and Authors' Rights Restoration Corporation v. Mario Moreno Ivanova, individually and as executor for the estate of Mario Moreno Reyes, Columbia Pictures Industries, Natasha Gelman, and Joyce Jett, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 03-55238, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-97-00615-WJR, Judge William Rea presiding. The Court of Appeals issued a per curiam opinion that was joined by David Thompson, Barry Silverman, and Kim Wardlaw.

11/3. The National Archives and Records Administration (NARA) published a notice in the Federal Register that describes and sets the comment deadline (January 3, 2005) for its notice of proposed rule making regarding changing its rules to permit the destruction of certain e-mail records of federal agencies. The NARA proposes to allow the destruction of "very short-term temporary e-mail". See, Federal Register, November 3, 2004, Vol. 69, No. 212, at Pages 63980 - 63981.

11/8. The TLJ Daily E-Mail Alert and TLJ web site incorrectly stated that the Progressive Policy Institute's (PPI) program titled "The Japanese Broadband Miracle: Are There Lessons for the United States?" would be held on Friday, October 5, 2004. This event will be held on Friday, October 19, 2004.

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

The Senate is in recess until November 16, 2004.

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 Sugraņes (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.

4:00 - 6:00 PM. American University will host a panel discussion, and release a report, both titled "Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers". The speakers will be Jim Gilliam (Robert Greenwald Productions), Grace Guggenheim (Guggenheim Productions), Jeffrey Tuchman (Documania Films), Peter Jaszi (Washington College of Law), Mike Madison (University of Pittsburgh Law School), Joseph Turow (University of Pennsylvania Annenberg School), and Pat Aufderheide (School of Communication). See, notice. Location: Room 603, Washington College of Law, American University, 4801 Massachusetts Ave., 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.

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.

CANCELLED. 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. See, notice of cancellation in the Federal Register, November 3, 2004, Vol. 69, No. 212, at Page 64091.

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

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host a continuing legal education (CLE) program titled "Potential of Alternative Dispute Resolution for Enhancing Communications Practices and Clients' Business Objectives". Location: Wiley Rein & Fielding, 1776 K St., NW.

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.

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.

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.

10:30 AM. Public Knowledge (PK) will host an event that its describes as a "a press conference ... to discuss copyright legislation in the upcoming lame duck session". The participants will be Gigi Sohn (PK), Gary Shapiro (Consumer Electronics Association), Ed Black (Computer and Communications Industry Association), James Burger (TiVo), and Sarah Deutsch (Verizon). Location: PK, Suite 650, 1875 Connecticut Ave., NW, at Connecticut and T Streets.

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.