|FCC Releases MO&O Re Rules
for 4.9 GHz Band
11/12. The Federal Communications Commission
(FCC) adopted, but did not release, a Memorandum Opinion and Order (MO&O) regarding
changes to its rules applicable to the 4.940-4.990 GHz Band at its November 9, 2004 meeting.
On November 12, the FCC released the
[15 pages in PDF] of this MO&O. See also, November 9
This MO&O considers a Petition for Reconsideration filed on July 30, 2003 by
the National Public Safety Telecommunications
Council (NPSTC) requesting the FCC to reconsider certain of the technical
rules in the FCC's
Memorandum Opinion and Order and Third Report and Order [50 pages in PDF]
establishing licensing and service rules for 4.940-4.990 GHz
band. This is Third Report and Order is FCC 03-99. The FCC adopted it on April
23, 2003, and released it on May 2, 2003.
The present MO&O states that the FCC "grants the NPSTC petition in part by
adopting new 4.9 GHz emission masks -- one for high power operations (the DSRC-C
mask), and one for low power operations (the DSRC-A mask)." (Footnotes omitted.
Parentheses in original.)
The MO&O states that "We also reaffirm our decisions in the Third R&O not to
adopt a technology standard, and not to make regional planning mandatory in the
4.9 GHz band."
This MO&O is FCC 04-265 in WT Docket No. 00-32. This proceeding is titled "In
the Matter of The 4.9 GHz Band Transferred from Federal Government Use" and
|District Court Holds Copyright Registration
Invalid on Technicality
11/8. The U.S. District Court (EDPenn)
opinion [17 pages in PDF] in Gallup v. Kenexa, a copyright
infringement case in which the District Court granted summary judgment to an
alleged infringer on the basis that the copyright registration was invalid
because the attached copy of the work was not the original, but rather a slightly
The opinion offers defense counsel for pirates and infringers additional
arguments and authority for defeating or delaying copyright infringement actions
based upon technical defects in the registration of the copyright. However, in the
context of copyrights for web sites, blogs, web pages, and other digital works, this
opinion is a bonanza for infringers.
Neither the Copyright Act, nor the
Copyright Office's regulations, provide any clear guidance regarding
what is required to register such works. Hence, any registration will be subject
to the argument that it is technically deficient, and therefore invalid. There is no way of knowing
at the time of registration whether the manner registration will ultimately be
held to be invalid for technical defects.
This case is Gallup Inc. v. Kenexa Corporation, U.S. District for the
Eastern District of Pennsylvania, D.C. No. 00-5523, Judge Lawrence Stengel
Gallup v. Kenexa. Gallup Inc and Kenexa Corporation are competitors. They both provide
management consulting for large corporations, and specialize in conducting
employee surveys and assessing employee
satisfaction in the workplace. Gallup developed a lengthy questionnaire for its
employee surveys. It has revised this survey over time. Kenexa copied and used
much of Gallup's questionnaire in its employee surveys.
Gallup filed a complaint in District Court against
Kenexa alleging numerous causes of actions. However, the only cause of action at
issue in the present opinion is copyright infringement. Moreover, the present
opinion only addresses one defense to this cause of action -- the validity of
the registration with the Copyright Office.
The District Court held that the registration
was invalid because Gallup attached to its registration form a subsequent
version of the questionnaire, rather than the original version.
Registration of a copyright with the Copyright Office is not required under
the Copyright Act. However, registration is a prerequisite for bringing a
lawsuit for infringement. See,
U.S.C. § 411.
The Copyright Act also provides certain basic requirements for the registration
17 U.S.C. §§ 408 addresses registration in general. It provides, in part, that
"the material deposited for registration shall include ... in the case of a
published work, two complete copies or phonorecords of the best edition". Then,
17 U.S.C. §§ 409 addresses the application for copyright registration.
In the Gallup case the District Court relied primarily upon two Appeals Court
cases, Kodadek v. MTV Networks, Inc., 152 F.3d 1209 (9th Cir. 1998)
v. Wonder , 283 F.3d 798 (6th Cir. 2002). See also, story titled "6th Circuit
Rules in Copyright Registration Case" in
TLJ Daily E-Mail
Alert No. 393, March 21, 2002.
The Kodadek case is also know as the Beavis and Butthead case.
After MTV had produced its popular TV show, Kodadek came forward and claimed to
have drawn cartoon characters that MTV used in the TV show. He did not have an
original. He drew a new copy, registered it with the Copyright Office, and
The Coles case involves a song recorded by Stevie Wonder titled
"For Your Love". Coles claimed he wrote it, and Wonder copied it. After Wonder
recorded it, Coles made a new copy, backdated it, and registered it with the
The Appeals Court wrote in Kodadek that "the registration deposit requirement
permits `bona fide copies of the original work only ... .´" The District Court in
the present case followed this in holding that Gallup had to register the original of
Perhaps it should be noted here that neither the words "original work",
or any variation thereof, appear in 17 U.S.C. §§ 408,
409, or 411.
The District Court could have, but did not, distinguish that facts of the
Kodadek and Coles cases from the facts of the present case. In both
of those earlier cases, after the commercial successes of a television show and
music recording, two individuals came forward and claimed authorship of works
that they claimed were copied to make that TV program and that sound recording.
They created documents after the successful commercialization, and then passed
those off at the Copyright Office as having been created before the
commercialization. They misled the Copyright Office.
In cases of this nature, the individual plaintiffs have scant evidence of
their prior authorship. There are often real questions as to whether they in
fact are prior authors whose works were copied. This provides a rationale for
enforcing a requirement of registering an original copy.
In contrast, in the present case, there is no dispute that Gallup authored
its questionnaire -- all versions of its questionnaire. The strict registration
requirement applied by the Court does not serve to filter out questionable or
unprovable claims of prior authorship. The rationale that might exist in cases
such as Kodedek and Coles is absent in the Gallup case.
Applying the rule of Kodadek and Coles in some cases with
different facts precludes actions by actual authors who did
not have the foresight to employ expert copyright lawyers to oversee all aspects
of their business operations.
Moreover, in the case of new digital works, even authors who employ expert
legal counsel, and attempt to scrupulously comply with registration requirements,
could still have their registrations invalidated, if Courts follow cases such as
Kodadek, Coles and Gallup.
Obsolescence of Registration Statute and Regulations. The Copyright Office has
promulgated detailed and lengthy regulations governing how to register different
types of works, forms for different types of registrations, deposits required
for different types of registrations, and fees. See,
37 CFR § 202.3
[PDF]. For example, there are the Form TX, Form PA, Form VA, Form
SR, Form SE, Form SE/Group, and so forth.
However, neither the statute nor the Copyright Office's registration rules have been
updated to take into account the invention of the internet, the web, e-mail, and the many
media in which digital content can be stored, delivered, and read. The regulations address
daily newspapers and other printed serials, nondramatic literary works such as
novels and poetry, visual arts such as photographs and charts, works of the
performing arts such as plays and movies, and other types of works. However,
microfiche is the most advanced technology addressed by these regulations.
The regulations make no reference to new media. And hence, there is
uncertainty as to how to register works in new media. For example, the regulations
address how to register a printed daily newspaper. But, the regulations say
nothing about how to register the online version of a newspaper. Is it already
covered by registration of the print version? Which is the original? What about additional content
published only online? Can it be registered daily? What if it is updated hourly?
Must web publishers make an additional registration every time a web site
is altered? How does one submit a copy of an electronic work for deposit with
the Copyright Office? Does one register a page view or the source code of a web page? If one
registers the source code of a web page that displays a nondramatic literary
work, must this be registered under the rules for software programs? What is the
work to be registered if a browser displayed page draws content from multiple
electronic files resident upon web servers?
The are many unanswered questions. These questions create uncertainty as to
how to register new media works, and whether registrations will be
sufficient to maintain an action for infringement.
Copyright Office officials appear at legal, policy, and professional
conventions and panel discussions. They generally state that the registration
rules are out of date, and provide little guidance for how to register new media
works. The Copyright Office's examiners tell persons seeking
registrations that they have no rules or guidelines to apply to new media. The
verbal instructions dispensed by the Copyright Office's front desk personnel
change as frequently as the weather.
Pending Congressional Proposals. The Congress is perhaps beginning to
take note of the deficiencies of the
current legal framework for registration of copyrights. There are currently a
few minor changes to the law in bills working their way through the Congress.
Although, these changes are primarily intended to protect copyright interests of
the music and movie industries against internet based piracy.
On October 8, 2004 the Senate
Judiciary Committee approved an omnibus bill comprised of a package of other
bills. This composite bill is titled the "Intellectual Property Protection
Act of 2004", or "IPPA". See,
text of bill
[44 pages in PDF], and
bill, in HTML, with hyperlinked table of contents, and U.S. Code hyperlinks. See
story titled "Senate Judiciary Committee Approves Large Collection of
Copyright Bills" in TLJ Daily E-Mail Alert No. 994, October 11, 2004.
This bill is HR 4007 RS. The House approved its version of
the "Piracy Deterrence and Education Act of 2004 ", by a voice vote, on
September 28, 2004. See,
titled "House Approves Copyright Bill" in TLJ Daily E-Mail Alert No. 986,
September 29, 2004.
§ 206 of the IPPA (§ 106 of HR 4007 EH) amends
17 U.S.C. § 411, which establishes registration of a copyright as a
prerequisite for filing a claim for copyright infringement. Some pirates now
obtain and distribute works before they are completed, or after completion but
before the Copyright Office has issued a certificate of registration. Moreover,
this early piracy can cause tremendous economic harm to the ultimate copyright
holder. § 206 of the IPPA allows federal prosecutors to take action against
these early pirates without having to wait for the completion of the
602 of the IPPA amends 17
U.S.C. § 411, by adding a new subsection that provides that "A certificate of
registration shall satisfy the requirements of this section and section 412
irrespective of any inaccurate information therein, unless -- (A) the inaccurate
information was included on the application for copyright registration with
knowledge that it was inaccurate; and (B) the inaccurate information, if known,
would have caused the Register of Copyrights to refuse registration."
Sen. Orring Hatch (R-UT) stated when
he introduced the bill that first included this language that "Some accused
infringers have tried to avoid liability for statutory damages by challenging the
accuracy of the information in copyright registrations; this bill clarifies that courts
should resolve such challenges by applying the existing judicial doctrine of
fraud-on-the-Copyright-Office." See, Hatch
release. See also, story titled "Sen. Hatch Introduces Bill With Numerous
Amendments to Copyright Act" in
TLJ Daily E-Mail Alert No.
791, December 3, 2003.
However, there are no bills pending that would amend the registration
sections of the Copyright Act to address how to register works in new media.
Delay in Raising Defense of Defective Registration. There is another
part of this opinion that benefits infringers. Kenexa did not raise this defense
in its answer. It waited almost four years, until the pre-trial conference on
the eve of trial to raise this issue in a tardy motion for summary judgment.
The District Court could have disallowed the motion because of its timing,
based upon some theory of waiver or delay. Nevertheless, the Court allowed it,
because the issues raised "concern the very basis
for this copyright action." Such a precedent allows defense counsel to engage in
Disclosure. The author of this article is a copyright holder whose
copyrights are frequently infringed. Readers may wish to take this into consideration
when assessing the objectivity of any article in Tech Law Journal pertaining to protection
of copyrights in literary works.
|Notice Regarding Searching TLJ
There is now a Google search function on the home page of the
TLJ web site that enables users to search on the pages of the TLJ web site. All
issues of the TLJ Daily E-Mail Alert are published in the web site after about
45 days, and promptly indexed by Google. Neither recent issues of the TLJ Daily E-Mail Alert,
nor password protected pages, such as the Washington Tech Calendar, are
available in Google searches.
|Sen. Leahy Comments on Gonzales
11/10. Sen. Patrick Leahy (D-VT),
the ranking Democrat on the Senate Judiciary
Committee, stated in a
release that "I
like and respect Judge Gonzales and look forward to our committee's
consideration of his nomination."
Sen. Leahy (at right) continued
that "The Justice Department in the first Bush term was the least accountable
Justice Department in my lifetime. Meaningful oversight and accountability were thwarted
for years. We will be looking to see if Judge Gonzales intends to change that."
He added that "These confirmation hearings will be a rare opportunity
for the Senate and the public to finally get some answers on several issues for which
the Administration has resisted accountability, including its use of the PATRIOT Act,
the lack of cooperation with Congress on oversight, and the policies that have been rejected
by the courts on the treatment of detainees."
|Washington Tech Calendar
New items are highlighted in red.
|Friday, November 12
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 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".
will be William Gentry
(Williams College), William Randolph (Department of the
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.
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
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,
in the Federal Register, August 13, 2004, Vol. 69, No. 156, at Pages 50141 -
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
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
Court will begin a recess. It will return on Monday, November 29, 2004. See,
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,
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
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
notice [13 pages
in PDF] to be published in the Federal Register.
|Tuesday, November 16
The House will meet at 2:00 PM. See,
Republican Whip Notice.
The Senate will meet at 12:00 NOON.
9:30 AM. The
Senate Judiciary Committee will
hold a hearing titled "Judicial Nominations". Location: Room 226, Dirksen
9:30 AM - 1:00 PM. The DC Bar
Association will host a continuing legal education (CLE) program titled
"Essential Checklist for Electronic Discovery". The speakers will be
Kenneth Withers (Federal Judicial Center), Robert Eisenberg (CoreFacts), Magistrate John
Facciola (U.S. District Court for the District of Columbia), Virginia Llewellyn
(LexisNexis Applied Discovery), Jonathan Redgrave (Jones Day). See,
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.
10:00 - 11:30 AM. The Federal Communications
Commission's (FCC) Media Security and Reliability Council will meet. The
event will be webcast by the FCC. The public may submit written comments. See,
notice in the Federal Register, July 15, 2004, Vol. 69, No. 135, at Page
42439. Location: FCC, 445 12th St. SW, Room TW-C305 (Commission Meeting Room).
11:00 AM. The Federal
Communications Commission's (FCC) International
Bureau will hold an event titled "Media briefing on the 10th Anniversary
of the FCC’s International Bureau". Bureau Chief Don Abelson will speak. RSVP
to Jacki Ponti at
Jacki.Ponti@fcc.gov or Meribeth
McCarrick at Meribeth.Mccarrick@fcc.gov.
Location: FCC, 445 12th Street, SW, Room TW A-402/A-442.
12:00 NOON. The Federal
Communications Bar Association's (FCBA) Executive Committee will meet.
Location: Wiley Rein & Fielding, 1776 K St., NW.
|Thursday, November 18
9:00 AM - 3:00 PM. The Department of Commerce's (DOC)
Bureau of Industry and Security (BIS) will host an
event titled "U.S. India High Technology Cooperation Group Dialogue on
Defense Technology, Data Privacy, and Export Licensing". See,
registration form, and
agenda. Location: DOC 1401 Constitution Ave., NW.
9:30 AM. The U.S. Court of Appeals
(DCCir) will hear oral argument in USTA v. FCC, No. 03-1414. This is
petition for review of a final order of the FCC pertaining to number portability.
See, brief [47 pages
in PDF] of the FCC. Judges Sentelle, Randolph and Garland will preside. Location:
Courtroom 20, Prettyman Courthouse, 333 Constitution Ave., NW.
9:30 AM. The U.S. Court of Appeals
(DCCir) will hear oral argument in Ctrl TX Tele Coop v. FCC, No.
03-1405. Judges Sentelle, Randolph and Garland will preside. Location: Courtroom 20,
Prettyman Courthouse, 333 Constitution Ave., NW.
9:30 AM. The U.S. Court of Appeals
(DCCir) will hear oral argument in Covad Communications Co. v. Bell Atlantic
Corp., No. 02-7057. Judges Ginsburg, Rogers and Tatel will preside. Location:
Prettyman Courthouse, 333 Constitution Ave., NW.
11:00 AM. The Federal Communications Bar
Association's (FCBA) Legislation Committee will host an event. The speaker will
be Gregg Rothschild (Democratic Counsel, House Commerce Committee). He will
speak on legislative issues. RSVP to Helene Marshall at
Wiley Rein & Fielding, 1776 K St., NW.
Communications Bar Association's (FCBA) will host a breakfast. The speaker will be
Jeff Carlisle, Chief of the Federal Communications Commission's (FCC)
Wireline Competition Bureau.
|Friday, November 19
9:00 AM - 4:00 PM. The
Federal Communications Commission's (FCC) Consumer
Advisory Committee will meet. The agenda includes receiving a
report and recommendations from its broadband working group with regard
to digital television and the FCC's DTV outreach campaign, receiving a report
and recommendations from its consumer complaints, education and outreach
working group, receiving a report and recommendations from its competition
policy working group regarding consumer issues in competition policy, and
receiving a report and recommendations from its homeland security working
group regarding emergency communications. See, FCC
notice [PDF] and
notice in the Federal Register, October 29, 2004, Vol. 69, No. 209, at
Pages 63152 - 63153. Location: FCC, 445 12th St. SW, Room TW-C305
(Commission Meeting Room).
9:30 -11:00 PM. The
Progressive Policy Institute (PPI) will host
a program titled "The Japanese Broadband Miracle: Are There Lessons for the
United States?". The speakers will be Yasu Taniwaki (Economic Counselor and
Telecommunications Attaché, Embassy of Japan) and Rob Atkinson (Director of the PPI's
Technology and New Economy Project). A light breakfast will be served. RSVP to 202
547-0001 or PPIEvents@dlcppi.org. Location:
600 Pennsylvania Ave., SE, Suite 400.
10:00 AM - 12:00 NOON. The
Department of State's (DOS) International
Telecommunication Advisory Committee (ITAC) will meet to advise the DOS on policy
and technical issues with respect to the
Union (ITU), and in particular, the December 15-17, 2004 meeting of ITU's
Telecommunications Development Advisory
Group (TDAG) in Geneva, Switzerland. See,
notice in the Federal Register, November 5, 2004, Vol. 69, No. 214, at Page
64620. Location: DOS, Room 2533A.
TIME? Jonathan Zittrain
(Harvard Law School) will give a lecture titled "Free Software and the Future of
the Internet" as part of the
Colloquium on Intellectual Property & Technology Law. For more information,
contact Julie Cohen at 202 662-9871 or
email@example.com, or Jay Thomas at
202 662-9925. Location:
Georgetown University Law Center, 600 New
Jersey Ave., NW.
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Copyright 1998 - 2004 David Carney, dba Tech Law Journal. All