1/11. The U.S. Court of Appeals (6thCir) issued its opinion [7 pages in PDF] in Ritchie v. Williams, a case regarding 17 U.S.C. § 301 and the doctrine of complete preemption.

Basically, state courts can hear suits involving either state or federal claims. Federal courts can hear only claims arising under federal laws, and diversity suits. Under the well pleaded complaint rule, whether a case is one arising under the Constitution or a law or treaty of the United States is determined from what appears in the plaintiff’s complaint. For example, federal defenses or counterclaims cannot serve as the basis for federal question jurisdiction.

In the present case, one party filed a complaint in state court that stated only state law claims. Nevertheless, the other party removed the case to federal court, and the District Court and Court of Appeals both found that there is federal jurisdiction. The courts applied the Copyright Act's preemption section, and the doctrine of complete preemption.

Robert Ritchie is a long time singer and songwriter of trailer trash rap. Devotees of the genre know him as Kid Rock. Ritchie entered into a series of contracts with Alvin Williams and others that were were designed to control the ownership, performance rights and exploitation of copyrights on songs written by Ritchie. These contracts were signed in 1989. Ritchie wrote a letter to Williams in 1990 stating he did not intend to work with the parties to the 1989 contracts with respect to the publishing, production or performance of his songs. He asserted ownership of the songs that he wrote.

The statute of limitations for a copyright infringement action is three years. Williams filed a complaint, ten years later, in state court in Michigan against Ritchie alleging only state law causes of action, including breach of contract, unjust enrichment, misrepresentation, conversion, and injunctive relief. Although, the claims related to ownership of songs. Ritchie removed the action to the U.S. District Court (EDMich).

The District Court held that the state court action is preempted by the Copyright Act under the doctrine of complete preemption, and hence, is removable to the federal court as presenting federal copyright issues rather than state claims. The District Court also held that the state claims are foreclosed under the three year statute of limitations for copyright claims.

The Court of Appeals affirmed.

Section 301 provides, in part, that "all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State."

First, the Court of Appeals noted that Section 301 is particularly strict. It provides that copyright infringement actions under 17 U.S.C. § 106 can only be brought in federal court. They cannot also be brought in state court. Also, it provides that actions that "are equivalent to" actions for copyright infringement can only be brought in federal court.

Next, the Court reviewed the doctrine of complete preemption. The Supreme Court briefly articulated the complete preemption doctrine in 1987 in Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, an ERISA case. The doctrine provides that an action that pleads a state law cause of action may be converted into a federal cause of action for the purposes of the well pleaded complaint rule, for the purposes of determining the jurisdiction of the federal court. The doctrine permits the court to recharacterize the plaintiff's state claims as federal claims so that removal to federal court is proper.

The Court of Appeals then concluded that the doctrine of complete preemption does apply to the Copyright Act, and that most of Williams' state laws claims must be recharacterized as copyright infringement and copyright ownership claims.

Then, the Court concluded that since most of the state claims must be recharacterized as copyright claims, and there is three year statute of limitations on copyright claims, these claims are precluded.

This case is Robert Ritchie, et al. v. Alvin Williams, et al., U.S. Court of Appeals for the 6th Circuit, App. Ct. No. 03-1279, an appeal from the U.S. District Court for the Eastern District of Michigan, at Detroit, D.C. No. 01-71712, Judge Nancy Edmunds presiding. Judge Merritt wrote the opinion of the Court of Appeals, in which Judges Gilman and Hood joined.

Meanwhile, the American Family Association (AFA) and similar groups successfully pressured the presidential inauguration organizers not to invite Ritchie to perform at an inauguration event later this month. The AFA states in its web site that it "believes that the entertainment industry, through its various products, has played a major role in the decline of those values on which our country was founded and which keep a society and its families strong and healthy." See also, Ritchie's CD titled "Devil Without A Cause" [Amazon], and lyrics to the title song.

1/12. Johanna Shelton will become minority counsel to the House Commerce Committee on February 1, 2005. She is well versed in communications, media, intellectual property and technology issues. She is currently a Legal Advisor to Federal Communications Commission (FCC) Commissioner Jonathan Adelstein on media issues.

Shelton (at right) previously worked for Rep. Rick Boucher (D-VA), who is a senior member of the House Commerce Committee, and its Telecommunications and the Internet Subcommittee, as well as the House Judiciary Committee, and its Courts, the Internet and Intellectual Property Subcommittee.

She worked for Rep. Boucher during the 107th and early 108th Congresses at the time that he introduced HR 5544 (107th) and HR 107 (108th), the "Digital Media Consumers' Rights Act of 2003", a bill that would provide a fair use exception to the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA); HR 1066 (108th), the "Benefit Authors without Limiting Advancement or Net Consumer Expectations (BALANCE) Act of 2003"; and, HR 2724 (107th), the "Music Online Competition Act", which is also known as MOCA.

Before working for Rep. Boucher, Shelton worked as an Attorney Advisory in the Policy and Program Planning Division of the FCC's Common Carrier Bureau. The Wireline Competition Bureau was previously known as the Common Carrier Bureau, the Competition Policy Division was previously known as the Policy and Program Planning Division, and Johanna Shelton was previously known as Johanna Mikes.

Before going to work for the FCC's Common Carrier Bureau, she worked for the law firm of Latham & Watkins.

Commissioner Adelstein praised her work in a release [PDF].

1/12. Secretary of Commerce Don Evans gave a speech in Beijing, China to the AmCham China and the U.S.-China Business Council. He stated that "Ending the climate of loose IPR protections in China is a critically important goal and I'll be speaking further about piracy and counterfeiting at the Ambassador's IPR roundtable tomorrow." See also, DOC release and USPTO release.

1/12. The U.S. Court of Appeals (8thCir) issued its opinion [14 pages in PDF] in USA v. Mugan, an appeal from a criminal conviction for a federal pormography related offense. The Constitutional basis for this statute is the Commerce Clause. In this case, the defendant argued that his conduct did not reach interstate commerce because he had not sold or distributed his photographs. The Appeals Court affirmed the conviction. It held that the interstate commerce element was met solely by Mugan's use of a digital camera that stored images on a memory card. The Court wrote that "By storing the images on this digital card, Mugan placed them on a medium which would permit their immediate and widespread dissemination over the internet. Although locally produced and possessed, Mugan’s images were thus ready to be offered on the national market ..." This case is USA v. Allan C. Mugan, U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 03-4074, an appeal from the U.S. District Court for the Northern District of Iowa.

1/6. The U.S. Court of Appeals (FedCir) issued its opinion [21 pages in PDF] in NCR v. Palm, a patent infringement case involving handheld computer technology. NCR filed a complaint in U.S. District Court (DDel) against Palm and Handspring alleging infringement of two of its patents, U.S. Patent No. 4,634,845 titled "Portable personal terminal for use in a system for handling transactions", and U.S. Patent No. 4,689,478 titled "System for handling transactions including a portable personal terminal". The District Court granted summary judgment of noninfringement. The Court of Appeals affirmed. This case is NCR Corporation v. Palm Inc. and Handspring, Inc., U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 04-1093 , an appeal from the U.S. District Court for the District of Delaware. The Court also wrote that "this disposition is not citable as precedent".

1/6. The U.S. Court of Appeals (FedCir) issued its opinion [18 pages in PDF] in Business Object v. Microstrategy, a patent infringement case involving relational databases. Business Objects filed a complaint in U.S. District Court (NDCal) against Microstrategy alleging infringement of its U.S. Patent No. 5,555,403, titled "Relational database access system using semantically dynamic objects". The District Court entered summary judgment that MicroStrategy's products do not infringe claims 1, 2 and 4 of the patent, either literally or under the doctrine of equivalents. The Appeals Court affirmed in part and vacated in part. It wrote that "Because the district court did not err in construing the asserted claims, this court affirms the district court’s ruling of no literal infringement of claims 1, 2 and 4. Because the district court also did not err in holding that prosecution history bars Business Objects from asserting equivalents for claims 1 and 2, this court affirms that portion of the order as well. Because the district court erred in holding that an amendment to claim 4 during prosecution narrowed the scope of the claim, this court reverses the district court’s ruling that Business Objects is precluded from claiming equivalents of claim 4." This case is Business Objects, S.A. v. Microstrategy, Inc., U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 04-1009, an appeal from the U.S. Court of Appeals for the Northern District of California, Judge Charles Breyer presiding.

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The House will not meet. It will next meet on January 20, 2005.See, Republican Whip Notice.

The Senate will not meet. It will next meet on January 20, 2005.

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

10:00 AM. The U.S. Court of Appeals (FedCir), Panel H, will hear oral argument in Checkpoint Systems v. All Tag Security (No. 04-1395). See, FedCir calendar. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel I, will hear oral argument in Pause Technology v. Tivo (No. 04-1263). See, FedCir calendar. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The Antitrust Modernization Commission (AMC) will hold a public meeting. See, notice [PDF] in the Federal Register, December 7, 2004, Vol. 69, No. 234, at Page 70627. For more information, contact 202 233–0701 or info@amc.gov. Location: Federal Trade Commission (FTC), Rooms A & B, 601 New Jersey Ave., NW.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee and Cable Practice Committee will host a brown bag lunch. The topic will be the Federal Communications Commission's (FCC) Report and Order and FNPRM [54 pages in PDF] on the children's programming obligations of digital broadcasters. The speakers will be Barbara Kreisman (Chief of the FCC's Media Bureau's Video Division), Kim Matthews (FCC) and Mary Beth Murphy (FCC). See, story titled "FCC Adopts Report and Order Re Children's Programming Obligations of DTV Broadcasters" in TLJ Daily E-Mail Alert No. 975, September 13, 2004. RSVP to John Logan at jlogan@dlalaw.com by 12:00 NOON on Wednesday, January 12. Submit written questions for the speakers to Ann Bobeck at abobeck@nab.org by Tuesday, January 11. The deadline to submit comments to the FCC in response to the NPRM is March 1, 2005. The deadline for reply comments is April 1. Location: Dow Lohnes & Albertson, 8th Floor, 1200 New Hampshire Ave., NW.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "Practical Review and Update to the Madrid Protocol". The speakers will be David Starr (Nath & Associates), Carla Calcagno (Rothwell Figg Ernst & Manbeck), Jay Hines (Oblon Spivak), and a representative of the U.S. Patent and Trademark Office. 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.

TIME? The Department of Defense's (DOD) Defense Science Board Task Force on Global Positioning System will meet. The agenda includes review of issues dealing with Galileo and other future radio navigation satellite systems. This meeting is closed to the public. See, notice in the Federal Register, December 10, 2004, Vol. 69, No. 237, at Page 71803. Location: Strategic Analysis Inc., 3601 Wilson Blvd., Arlington, VA.

EXTENDED TO FEBRUARY 14. Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Public Notice [4 pages in PDF] (DA 04-3891) of December 14, 2004 seeking comments on the report of Avatar Environmental, LLC regarding migratory bird collisions with communications towers. See, Public Notice [2 pages in PDF] (DA 04-4021) of December 22, 2004 extending deadlines. This proceeding is WT Docket No. 03-187.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Northpoint Technology v. FCC, No. 04-1052. Judges Edwards, Henderson and Randolph will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

9:30 AM - 12:00 NOON. The Department of State's International Telecommunication Advisory Committee (ITAC) will meet to prepare for the International Telecommunications Union's ITU-T Study Group 2 (Service Definitions, Numbering, Routing, and Global Mobility) meeting. See, the ITU's calendar of meetings. See, notice in the Federal Register, December 30, 2004, Vol. 69, No. 250, at Pages 78515-78516. For more information, including the location, contact minardje@state.gov. Location: undisclosed.

12:15 PM. The Federal Communications Bar Association (FCBA) Wireless Telecommunications Practice Committee will host a lunch. The speakers, Scott Delacourt, Cathy Seidel and Peter Tenhula of the Federal Communications Commission's (FCC) Wireless Telecommunications Bureau (WTB), will address "WTB hot topics". The price to attend is $15.00. Registrations are due 5:00 PM on Tuesday, January 11. See, registration form [PDF]. Location change: Sidley Austin, 6th Floor, 1501 K Street, NW. Wiley Rein & Fielding, 1776 K Street, NW, Ground Floor Conference Center.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding wireless services in rural areas. On September 27, 2004, the FCC released the text [137 pages in PDF] of its Report and Order and FNPRM. The FCC adopted this item at its July 8, 2004 meeting. This item is 04-166 in WT Docket Nos. 02-381, 01-14, and 03-202. See, notice in the Federal Register, December 15, 2004, Vol. 69, No. 240, at Pages 75174 - 75185.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (FNPRM) regarding the application of 47 U.S.C. 251(h)(2) to the reclassification of competitive local exchange carriers (LECs) to incumbent LECs. This is the Mid-Rivers Telephone Cooperative, Inc. proceeding. This NPRM is FCC 04-252 in WC Docket No. 02-78. See, notice in the Federal Register, November 30, 2004, Vol. 69, No. 229, at Pages 69573 - 69578.

EXTENDED TO FEBRUARY 28. Deadline to submit comments to the Internet Corporation for Assigned Names and Numbers (ICANN) regarding its three year Strategic Plan [73 pages in PDF]. See, ICANN's November 16, 2004 notice. See also, ICANN's web page with information about the Strategic Plan.

5:00 PM. Deadline to submit to the National Institute of Standards and Technology (NIST) recommendations for focus areas in the upcoming US-China Workshop on Standards and Conformity Assessment (to be held in late August or early September 2005). See, notice in the Federal Register, December 17, 2004. Vol. 69, No. 242, at Pages 75515 - 75516.

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

12:00 NOON. Deadline to submit reply comments to the Office of the U.S. Trade Representative (USTR) regarding various trade related telecommunications issues. The USTR seeks comments on "Whether any WTO member is acting in a manner that is inconsistent with its commitments under the WTO Basic Telecommunications Agreement or with other WTO obligations", "Whether Canada or Mexico has failed to comply with their telecommunications commitments or obligations under NAFTA", "Whether Chile or Singapore or any other FTA partner with an Agreement that comes into force on or before January 1, 2005 has failed to comply with their telecommunications commitments or obligations under the respective FTAs", "Whether other countries have failed to comply with their commitments under additional telecommunications agreements", and "Whether there remain outstanding issues from previous Section 1377 reviews". See, notice in the Federal Register, Vol. 69, No. 226, Wednesday, November 24, 2004, at Page 68439.

9:00 AM. The Senate Foreign Relations Committee will hold a hearing on the nomination of Condi Rice to be Secretary of State. Location: Room 216, Hart Building.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Second Further Notice of Proposed Rulemaking (2FNPRM) regarding reducing barriers to secondary markets for spectrum rights. See, notice in the Federal Register, December 27, 2004, Vol. 69, No. 247, at Pages 77560 - 77568. This 2FNPRM is a part of a larger item that the FCC adopted on July 8, 2004, and released on September 2, 2004. See, story titled "FCC Adopts Second Secondary Markets Report and Order" in TLJ Daily E-Mail Alert No. 934, July 9, 2004; and story titled "FCC Releases Second Secondary Markets Report and Order" in TLJ Daily E-Mail Alert No. 969, September 3, 2004. See also, story titled "FCC Sets Comment Deadlines on 2FNPRM Regarding Secondary Markets for Spectrum" in TLJ Daily E-Mail Alert No. 1,045, December 28, 2004.

8:30 AM - 12:00 NOON. The National Institute of Standards and Technology (NIST) will host a meeting to discuss the policy, privacy, and security issues associated with Homeland Security Presidential Directive-12, titled "Common Identification Standard for Federal Employees and Contractors." The keynote speaker will be Karen Evans, Administrator for E-Government and Information Technology is the keynote speaker. The event is free and open to the public. However, January 11 is the deadline to register. Contact Sara Caswell at Sara.caswell@nist.gov or 301 975-4634. Location: auditorium, Potomac Center Plaza, 550 12th Street, SW (near the Smithsonian and L’Enfant Plaza metro stations).

9:00 AM. The Senate Foreign Relations Committee will hold a hearing on the nomination of Condi Rice to be Secretary of State. Location: Room 216, Hart Building.

9:30 AM - 5:00 PM. The North American Numbering Council (NANC) will meet. See, FCC notice [PDF] and notice in the Federal Register, December 3, 2004, Vol. 69, No. 232, at Page 70259. Location: FCC, Room TWC305, 445 12th, SW.

9:30 AM - 12:30 PM. The Federal Information Systems Security Educators' Association (FISSEA) will host a workshop on NIST Special Publication 800-16, titled "Information Technology Security Training Requirements: A Role- and Performance-Based Model". See, Part 1 [845 KB in PDF], Part 2 [96 KB in PDF], and Part 3 [374 KB in PDF]. Preregistration is required. See, notice. Location: National Institute of Standards and Technology (NIST), North Building.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Common Carrier Practice Committee will host a brown bag lunch. The topic will be the FCC's Remand Order on unbundled network elements. The speakers will include Tom Hughes (SBC) and Praveen Goyal (Covad Communications). RSVP to cmburnett@hhlaw.com by Friday, January 7. Location: Hogan & Hartson, Moot Courtroom, 555 13th St., NW.

2:00 PM. The Senate Finance Committee will hold a hearing on the nomination of Michael Leavitt to be Secretary of Health and Human Services. Location: Room 215, Dirksen Building.

2:00 - 4:00 PM. The Department of State's International Telecommunication Advisory Committee (ITAC) will meet to prepare for the International Telecommunications Union's (ITU) Telecommunication Standardization Advisory Group (TSAG) meeting. See, the ITU's calendar of meetings. See, notice in the Federal Register, December 20, 2004, Vol. 69, No. 243, at Page 76027. For more information, including the location, contact Julian Minard at minardje@state.gov. Location: undisclosed.

2:00 PM. The Software and Information Industry Association (SIIA) will host an event titled "Improving the Ed Tech RFP: What Works and What Doesn't". See, notice. The price to participate is $40 for non-members of the SIIA. This event will be webcast and telecast only.

2:30 PM. The Senate Energy and Natural Resources Committee will hold a hearing on the nomination of Samuel Bodman to be Secretary of Energy. Location: Room 366, Dirksen Building.

4:00 - 5:00 PM. The President's National Security Telecommunications Advisory Committee (NSTAC) will meet via conference call. The NSTAC addresses issues and problems related to implementing national security and emergency preparedness communications policy. This meeting is be closed to the public. See, notice in the Federal Register, January 4, 2005, Vol. 70, No. 2, at Page 370.

The Senate will reconvene at 3:00 PM. It will begin with a period for morning business, and then proceed to consideration of cabinet nominees. See, Senate calendar. See also, Congressional Inaugural Committee web site.

Inauguration Day. This is not a federal holiday listed in the Office of Personnel Management's (OPM) list of federal holidays. The OPM states that "An employee who works in the District of Columbia, Montgomery or Prince George's Counties in Maryland, Arlington or Fairfax Counties in Virginia, or the cities of Alexandria or Falls Church in Virginia, and who is regularly scheduled to perform non-overtime work on Inauguration Day, is entitled to a holiday. There is no in-lieu-of holiday for employees who are not regularly scheduled to work on Inauguration Day."

The Copyright Office will be closed. The Federal Communications Commission (FCC) will be closed. See, FCC calendar [PDF]. The Department of Justice (DOJ) issued a memorandum stating that its Washington DC area employees may take the day off; however, it is silent on closure of DOJ offices.