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 text [15 pages in PDF] of this MO&O. See also, November 9 release [PDF].

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 numbered.

11/12. The Federal Communications Commission (FCC) announced that "Due to Scheduled Maintenance the FCC Website and Related Filing Systems Will be Unavailable from Friday 11/12/04 Starting at 9:00 PM EST until Monday 11/15/04 at 6:00 AM EST. During that time, no documents will be available."

11/9. The Federal Communications Commission's (FCC) International Bureau presented a report at the FCC's October 9, 2004 meeting. The report pertains to the International Telecommunications Union's (ITU) World Telecommunication Standardization Assembly (WTSA), held on October 5, 2004. See, FCC release [PDF].

11/8. The U.S. District Court (EDPenn) issued an 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 modified revision.

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 presiding.

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, 17 U.S.C. § 411.

The Copyright Act also provides certain basic requirements for the registration of copyrights. 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) Coles 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 backdated it.

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 Copyright Office.

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 its questionnaire.

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 text of bill, in HTML, with hyperlinked table of contents, and U.S. Code hyperlinks. See also, 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 HR 4077, the "Piracy Deterrence and Education Act of 2004 ", by a voice vote, on September 28, 2004. See, story 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 registration process.

Also, § 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 dilatory tactics.

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.

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.

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."

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". 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.

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.

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 Building.

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, 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.

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.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. Jon Cody, Legal Advisor to FCC Chairman Michael Powell, will speak. For more information, contact Catherine.Bohigian@fcc.gov. Location: Mintz Levin, 701 Pennsylvania Ave., NW.

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, invitation [PDF], 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 hmarshall@wrf.com. Location: Wiley Rein & Fielding, 1776 K St., NW.

CANCELLED. The Federal 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.

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 International Telecommunication 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 Georgetown Law Colloquium on Intellectual Property & Technology Law. For more information, contact Julie Cohen at 202 662-9871 or jec@law.georgetown.edu, or Jay Thomas at 202 662-9925. Location: Georgetown University Law Center, 600 New Jersey Ave., NW.

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