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November 19, 2004, 9:00 AM ET, Alert No. 1,022.
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Senate May Consider Intellectual Property Bill

11/18. Numerous intellectual property bills and proposals are being considered by the Congress. Most pertain to copyright, but some address patent, trademark and other topics. Some bills have already been approved by one or both bodies. Last month the Senate Judiciary Committee approved an omnibus bill that incorporates numerous stand alone bills. Another omnibus bill, that overlaps the previous one, is being circulated among Senate offices.

On October 9, 2004, the Senate Judiciary Committee approved a package of copyright 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.

The IPPA is numbered HR 2391. However, HR 2391 EH, which has been approved by the House, is a patent bill. The Senate Judiciary Committee made the content of HR 2391 EH a part of the IPPA.

The current draft, which has not been introduced, states that it would be sponsored by Sen. Orrin Hatch (R-UT), the Chairman of the Senate Judiciary Committee. The original cosponsors would be Sen. Patrick Leahy (D-VT), Sen. John Cornyn (R-TX), and Sen. Joe Biden (D-DE).

Title I: ART Act. This title of the current draft is titled the "Artists' Rights and Theft Prevention Act of 2003", or ART Act. It is a revised version of S 1932, which the full Senate approved as a stand alone bill on June 25, 2004.

This title includes, among other provisions, criminalization of certain unauthorized recording of motion pictures in a motion picture exhibition facility. § 208 of the IPPA, and § 108 of HR 4077, the "Piracy Deterrence and Education Act of 2004", which the House approved on September 28, 2004, contain similar language. It criminalizes using camcorders to copy movies in motion picture exhibition facilities, such as movie theatres. This is aimed at those who take camcorders into movie theatres and surreptitiously copy movies, thereby enabling pirates to obtain and market copies of movies as soon as they are shown in theatres.

Title II: ClearPlay Bill. This title of the current draft contains a much revised version of the "Family Movie Act", which is also known as the ClearPlay bill.

§ 212 of the IPPA (§ 112 of HR 4007 EH) contains another version of the "Family Movie Act". This provision, which is included with the ClearPlay technology in mind, adds a new ¶ 11 to 17 U.S.C. § 110 (which provides exceptions to the exclusive rights of copyright).

The current draft contains a content skipping exception. The exact wording is as follows: "the making imperceptible, by or at the direction of a member of a private household, of limited portions of audio or video content of a motion picture during a performance in or transmitted to that household for private home viewing, from an authorized copy of the motion picture, or the creation or provision of a computer program or other technology that enables such making imperceptible and that is designed and marketed for such use at the direction of a member of a private household, if no fixed copy of the altered version of the motion picture is created by such computer program or other technology".

However, the current draft does not include the IPPA's language regarding ad skipping. That is, the IPPA provided that the new exception applies only if "no changes, deletions or additions are made by such computer program or other technology to commercial advertisements, or to network or station promotional announcements, that would otherwise be performed or displayed before, during or after the performance of the motion picture".

Title III. This title includes the "National Film Preservation Act of 2004" and the "National Film Preservation Foundation Reauthorization Act of 2004". Both of these are in the IPPA.

Title IV. This title includes the "Preservation of Orphan Works Act". This too is in the IPPA.

Title V. This title includes the "Anticounterfeiting Act of 2004" and "Fraudulent Online Identity Sanctions Act".

Title VI: CREATE Act. This title is the "Cooperative Research and Technology Enhancement (CREATE) Act of 2004". This is HR 2391, which has been approved by the House, and S 2192, which has been approved by the Senate. The language of these bills is also in the IPPA.

Provisions Not In the Current Draft. Notably, two of the titles of the IPPA are not in the current draft. The current draft does not include Title III of the IPPA, which is the "Protecting Intellectual Rights Against Theft and Expropriation Act of 2004", or PIRATE Act.

The PIRATE Act would authorize the Department of Justice (DOJ) to bring civil actions for copyright infringement for conduct that already constitutes criminal copyright infringement under 17 U.S.C. § 506. This would accomplish two things. It would make it easier to prevail, because, among other things, the civil action would have a lower burden of proof. It would also provide a less punitive action for youthful P2P music pirates. This is § 302 of the IPPA. This provision would not make any conduct illegal that is not already illegal. Nevertheless, some of the groups that oppose effective protection of copyrights adamantly oppose this provision.

Nor does the current draft include Title VI of the IPPA, which is the "Enhancing Federal Obscenity Reporting and Copyright Enforcement Act of 2004", also known as the EnFORCE Act. This is S 1933.

Also, there are many other intellectual property bills that that are not in the current draft, the IPPA, or HR 4077 EH.

None of these bills includes S 2560, the "Inducing Infringement of Copyrights Act of 2004", a bill that responds to the opinions of the U.S. District Court and the U.S. Court of Appeals (9thCir) in MGM v. Grokster. It would create a new cause of action for "intentional inducement of infringement".

None include HR 107, the "Digital Media Consumers' Rights Act of 2003".

None include HR 3261, the "Database and Collections of Information Misappropriation Act", or HR 3872, the "Consumer Access to Information Act of 2004", bills related to databases

And, none include HR 1561, the "United States Patent and Trademark Fee Modernization Act of 2004". The House passed this bill on March 3, 2004 by a vote of 379-28. See, Roll Call No. 38. See also, story tiled "House Passes USPTO Fee Bill" in TLJ Daily E-Mail Alert No. 849, March 4, 2004. HR 1561 contains increases in user fees that implement the U.S. Patent and Trademark Office's (USPTO) 21st Century Strategic Plan. It also provides for U.S. outsourcing of patent searches, and an end to the diversion of user fees to subsidize other government programs.

Congress Considers Video Voyeurism Bill

11/17. The Senate agreed to a House request to return S 1301, the "Video Voyeurism Prevention Act of 2003", The House approved its version of the bill on September 21, 2004. The Senate approved a different version on September 25, 2003.

Sen. George Allen (R-VA) stated in the Senate on November 17, "I ask unanimous consent that the Senate agree to the request of the House regarding the papers relating to S. 1301". There being no objection, it was so ordered. There was no discussion or debate. See, Congressional Record, November 17, 2004, at Page S11398.

On October 8, 2004 the House approved HRes 842 which provides that "the Clerk of the House of Representatives request the Senate to return to the House the bill (S. 1301) entitled `An Act to amend title 18, United States Code, to prohibit video voyeurism in the special maritime and territorial jurisdiction of the United States, and for other purposes.´"

The House approved S 1301, the "Video Voyeurism Prevention Act of 2003", by voice vote, on September 21, 2004. It criminalizes conduct such as surreptitious use of small digital cameras to capture and publish via the internet privacy invasive images and video. See, story titled "House Approves Video Voyeurism Prevention Act" in TLJ Daily E-Mail Alert No. 981, September 22, 2004.

This bill, if enacted into law, would have limited impact. It only applies in "the special maritime and territorial jurisdiction of the United States". That is, it only applies on federal property, and within federal jurisdiction. However, many states already have enacted similar or related laws. This bill may provide model language for states to follow.

More News

11/18. The Department of Commerce's (DOC) Economics and Statistics Administration and National Telecommunications and Information Administration (NTIA) published in the NTIA web site their September 2004 report [32 pages in PDF] titled "A Nation Online: Entering the Broadband Age". This is the sixth in a series of DOC statistical reports on use of computers and the internet in the U.S.

11/18. The Federal Communications Commission's (FCC) International Bureau released foreign ownership guidelines for FCC common carrier and aeronautical radio licenses [PDF]. See also, FCC release [PDF].

11/16. The Progress and Freedom Foundation (PFF) published a paper [17 pages in PDF] titled "Standardization in Digital Networks: The Case of 2G Mobile Phones". Andrew Russell wrote the paper. See also, PFF release.

People and Appointments

11/18. Sen. Orrin Hatch (R-UT), the outgoing Chairman of the Senate Judiciary Committee, announced in a release that on January 4, 2005, the Republican members of the Committee intend to vote for Sen. Arlen Specter (R-PA) to be Chairman of the Committee. See also, statement by Sen. Specter.

11/18. The Senate Commerce Committee held a hearing on several pending nominations, including that of Jonathan Adelstein to be a Commissioner of the Federal Communications Commission (FCC). He stated in his prepared testimony [2 pages in PDF] that he will "put the communications needs of our public safety and national security communities at the forefront". He also said that he will "preserve and advance" universal services programs. He said that "It is vital that these programs remain on solid footing. Increasingly, voice, video, and data will flow to homes and businesses over broadband platforms. In this new world, we must promote a comprehensive rollout to all Americans". He also said that the "airwaves belong to the American people", and quoted from Red Lion v. FCC, 395 U.S. 367 (1969).

11/18. The Board of Directors of Sirius Satellite Radio named Mel Karmazin to be the new Chief Executive Officer (CEO). He will replace Joseph Clayton, who will remain as Chairman of the Board of Directors. Until recently, Karmizin was P/CEO of Viacom. Clayton stated in a release that "I am very confident that Mel will accelerate the very positive momentum that we have established at SIRIUS in the past two years. Our recent announcement of the signing of Howard Stern, our exclusive relationship with the National Football League and the partnerships with automakers such as DaimlerChrysler, Ford and BMW are all indications that satellite radio has a central role in the future of broadcast media. We fully expect to achieve the subscriber projections we have given to Wall Street for this year."

Washington Tech Calendar
New items are highlighted in red.
Friday, November 19

The House may meet at 10:00 AM. See, Republican Whip Notice. On November 18, when the House recessed at 11:15 AM, the Speaker announced that the next meeting is subject to the call of the Chair.

The Senate will meet at 9:30 AM for morning business. It will then take up HR 1047, the "Miscellaneous Trade and Technical Corrections Act of 2004".

9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. The agenda [5 pages in PDF] includes presentations titled "Accessibility in Broadband Content", "Wireless Solutions for People Who Are Blind or Visually Impaired", "Navigating and Linking to the FCC Website", "Report & Recommendations of the Competition Policy Working Group", "Report of Consumer Complaints, Outreach, Education and Participation Working Group", "Report & Recommendations of Homeland Security Working Group", and "Report & Recommendations of BroadBand DTV Working Group". See also, 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).

9:00 AM. Day two of a two day conference hosted by the American Bar Association's (ABA) Section of Antitrust Law titled "Fall Forum". At 9:15 - 9:45 AM, Thomas Barnett (Deputy Assistant Attorney General, Antitrust Division) will give a speech. At 9:45 - 11:00 AM, there will be a panel on non-merger matters; the speakers will include Susan Creighton (Director of the FTC's Bureau of Competition), Bruce McDonald (Deputy Assistant Attorney General, Antitrust Division), and others. See, event web site. Location. National Press Club, 529 14th St. NW, 13th Floor.

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 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, or Jay Thomas at 202 662-9925. Location: Georgetown University Law Center, 600 New Jersey Ave., NW.

Monday, November 22

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Minnesota Christian Broadcasters, Inc v. FCC, No. 03-1439. This case pertains to an auction for a construction permit for a new commercial FM station. Judges Edwards, Sentelle and Garland will preside. See, brief [26 pages in PDF] filed by the FCC on July 27, 2004. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

Deadline to submit reply 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.

Tuesday, November 23

8:30 AM - The National Science Foundation's (NSF) President's Committee on the National Medal of Science will hold a meeting that is closed to the public. See, notice in the Federal Register, November 5, 2004, Vol. 69, No. 214, at Page 64596. Location: Room 1235, NSF, 4201 Wilson Blvd., Arlington, VA.

Thursday, November 25

Thanksgiving Day.

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

There will be no issue of the TLJ Daily E-Mail Alert.

Friday, November 26

There will be no issue of the TLJ Daily E-Mail Alert.

Monday, November 29

The Supreme Court will return from the recess that it began on Monday, November 25, 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 3: How to Litigate a Patent Case". The speaker will be Patrick Coyne (Finnegan Henderson). 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 reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding the Emergency Alert System (EAS). The FCC adopted this NPRM at its August 4, 2004 meeting, and released it on August 12, 2004. This NPRM is FCC 04-189 in EB Docket No. 04-296. See, notice in the Federal Register, August 30, 2004, Vol. 69, No. 167, at Pages 52843 - 52847.

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