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January 26, 2005, 9:00 AM ET, Alert No. 1,063.
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Petitioners, Solicitor General, & Amici Urge Supreme Court to Reverse in MGM v. Grokster

1/24. The two sets of petitioners and numerous amici curiae, including the Office of the Solicitor General, filed briefs with the Supreme Court in MGM Studios v. Grokster. The District Court and the Ninth Circuit both held that Grokster's and Streamcast's peer to peer (P2P) file copying networks do not contributorily or vicariously infringe the copyrights of the holders of music and movie copyrights.

Amicus curiae is Latin for "friend of the court". Amici is the plural of amicus. See, full definition.

Both opinions relied upon the opinion of the Supreme Court in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), which held that the "sale of video cassette recorders (``VCR´´s) did not subject Sony to contributory copyright liability, even though Sony knew as a general matter that the machines could be used, and were being used, to infringe the plaintiffs' copyrighted works. Because video tape recorders were capable of both infringing and ``substantial noninfringing uses,´´ generic or ``constructive´´ knowledge of infringing activity was insufficient to warrant liability based on the mere retail of Sony’s products."

The respondents' brief is due on February 28, 2005. The Court is scheduled to hear oral argument on March 27, 2005. See, Supreme Court's March calendar [PDF]. The Court would then likely issue an opinion before the end of the term, in May or June.

Proceedings in the District Court. There are two actions. Metro Goldwyn Meyer (MGM), other movie companies, and various record companies, filed a complaint in the U.S. District Court (CDCal) against Grokster, Streamcast and Kazaa alleging copyright infringement, in violation of 17 U.S.C. § 501. These are the Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA) plaintiffs.

They alleged contributory and vicarious infringement by the defendants. They did not name any direct infringers -- the users of the P2P networks.

Second, professional songwriters and music publishers filed a class action complaint against the same defendants alleging contributory and vicarious infringement. These are the National Music Publishers Association (NMPA) plaintiffs.

The District Court consolidated the two actions. The parties filed cross motions for summary judgment.

On April 25, 2003, the U.S. District Court (CDCal) issued its opinion holding that Grokster's and Streamcast's P2P file copying networks do not contributorily or vacariously infringe the copyrights of the holders of music and movie copyrights. See also, story titled "District Court Holds No Contributory or Vicarious Infringement by Grokster or Streamcast P2P Networks" in TLJ Daily E-Mail Alert No. 650, April 28, 2003.

The District Court reasoned that to be held contributorily liable, the defendants must have "knowledge" of the infringing activity. The District Court, unlike the Appeals Court in the Napster case, found that the defendants do not possess "knowledge" that their networks or being used to infringe copyrights. The District Court also wrote that to be held liable vicariously, the defendants must have the "right and ability to supervise the infringing conduct". It found that they did not.

Proceedings in the Court of Appeals. Both the NMPA and the MPAA/RIAA appealed to the U.S. Court of Appeals (9thCir). The Appeals Court consolidated the two appeals. See, story titled "Music Publishers File Appeal Brief in P2P Infringement Case" in TLJ Daily E-Mail Alert No. 724, August 22, 2003.

On August 19, 2004 the Ninth Circuit issued its opinion [26 pages in PDF] affirming the District Court. See, story titled "9th Circuit Holds No Vicarious Infringement in Grokster Case" in TLJ Daily E-Mail Alert No. 963, August 20, 2004. The 9th Circuit's opinion is reported at 380 F.3d 1154.

Certiorari is Latin for "to be informed of, or to be made certain in regard to". It is also the name given to certain appellate proceedings for re-examination of actions of a trial court, or inferior appeals court. The U.S. Supreme Court still uses the term certiorari in the context of appeals.. See, full definition.

Supreme Court. The plaintiffs then filed a petition for writ of certiorari [46 pages in PDF] with the Supreme Court on October 8, 2004. See, story titled "Movie and Music Industry Entities File Cert Petition in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 994, October 11, 2004.

See also, story titled "Summary of Briefs in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,020, November 17, 2004, and story titled "PFF Urges Supreme Court to Grant Certiorari in MGM v. Grokster" in TLJ Daily E-mail Alert No. 1,014, November 9, 2004.

The Supreme Court granted certiorari. See, story titled "Supreme Court Grants Certiorari in P2P Case" in TLJ Daily E-Mail Alert No. 1,036, December 13, 2004. The Supreme Court case number is 04-480.

There are two briefs on the merits submitted by petitioners. First, there is the brief of MGM, other motion picture studios, and recording companies. Second, there is the NMPA brief.

MPAA/RIAA Brief. The MPAA/RIAA brief states that the question presented is "Whether the Ninth Circuit erred in concluding, contrary to long-established principles of secondary liability in copyright law (and in acknowledged conflict with the Seventh Circuit), that the Internet-based ``file sharing´´ services Grokster and StreamCast should be immunized from copyright liability for the millions of daily acts of copyright infringement that occur on their services and that constitute at least 90% of the total use of the services." (Parentheses in original.)

It argues that "The Ninth Circuit broke faith with that central tenet of Sony-Betamax when it held that Grokster and StreamCast bear no legal responsibility for the millions of acts of infringement made possible by their services. The court afforded no protection whatsoever to petitioners' copyrights in the creative works unlawfully reproduced and distributed on respondents' services every day. And the court immunized enterprises that are not engaged in legitimate ``unrelated areas of commerce´´ but thrive on infringement. The Ninth Circuit acted in the misguided belief that respondents' ``market abuses, despite their apparent present magnitude,´´ must be tolerated in order to avoid chilling ``innovation.´´"

It argues that the defendants are liable as both contributory infringers and vicarious infringers.

NMPA Brief. The NMPA brief argues that the defendants should be held liable as both contributory infringers and vicarious infringers under established principles of vicarious liability for copyright infringement.

Solicitor General's Brief. The Office of the Solicitor General's (SG) brief urges the Court to reverse. It argues at length that the Court of Appeals misapplied the Sony case. It argues briefly that the Supreme Court might also apply an active inducement of infringement test. The AIPLA brief (see below) argues this point at greater length.

The SG brief states that "Although the Copyright Act does not expressly provide for the imposition of secondary liability for copyright infringement, this Court has recognized that there are ``circumstances in which it is just to hold one individual accountable for the [copyright infringement] of another.´´" (Citation to Sony omitted. Brackets in original.) It continues that "Contributory liability applies to ``one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.´´ Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971)."

It continues that "In Sony, the Court stated that a seller of a product that enables copyright infringement may be held liable if the product is not ``capable of commercially significant noninfringing uses.´´ ... The court of appeals held that, even accepting that 90% or more of the uses of respondents' file-sharing networks are infringing, the mere fact that the systems are ``capable´´ of noninfringing transfers precluded liability under Sony, notwithstanding the relatively trivial proportion and commercial significance of such uses. ... The Ninth Circuit's approach would eviscerate the ``effective´´ protection against copyright infringement that Sony demands."

The SG brief argues that "Although Sony did not give precise content to the term ``commercially significant,´´ commercial significance should be evaluated in the context of the particular defendant’s business, as opposed to the technology in the abstract. While P2P technology unquestionably can be employed for a variety of legitimate purposes without giving rise to rampant copyright infringement, the record (read in the light most favorable to petitioners) suggests that respondents have built their particular P2P networks around the ``draw´´ of massive copyright infringement. Respondents therefore cannot evade liability under Sony merely by pointing to other, legitimate, uses of the technology."

The SG brief adds that "The touchstone for liability under Sony is whether the defendant is engaged in a business ``substantially unrelated´´ to copyright infringement."

The Solicitor General's brief offers the second argument that "respondents might also be found liable for their active inducement of the infringement committed by their users. Petitioners' evidence could support a finding that the copyright infringement that takes place on respondents' networks did not simply ``happen´´ but was the result of active and intentional steps on the part of respondents to induce such infringement, which was essential to respondents' business model."

The SG's brief lists the names of many persons involved in submitting the brief. In addition to Department of Justice personnel, it lists David Carson (General Counsel of the Copyright Office), James Toupin (General Counsel of the USPTO) and John Whealan (Deputy General Counsel for Intellectual Property Law at the USPTO).

Hatch Leahy Brief. Sen. Orrin Hatch (R-UT) and Sen. Patrick Leahy (D-VT) filed an amicus brief [20 pages in PDF]. They state that they "have an interest in the proper differentiation of constitutional responsibilities between Congress and this Court. Resolving the question presented by this case -- whether certain distributed file-sharing services should be held secondarily liable for copyright infringement -- necessarily involves the question of whether and how the Court applies this liability doctrine in light of a new technology."

They wrote that the Sony opinion "recognized that principles of secondary liability inhere in the Copyright Act, announced a rule concerning the type of secondary liability at issue there, and decided the case on its merits. In this case, respondents embrace that decision and their understanding of that rule, but incongruously take the position that rendering such a decision in this case is beyond this Court’s authority, and that indeed the Constitution demands that the resolution of such issues belongs solely to Congress. Respondents err in three ways: First, the Court must decide properly presented cases (like this one), while Congress may choose which issues it addresses. Second, Congress has long and properly respected the role of the federal courts in articulating the traditional doctrines of secondary liability, and indeed assumes the continuing force of those doctrines as it legislates in the area of copyright. Third, recent efforts in the Senate to address one species of secondary liability -- inducement to infringe copyright -- can in no way abrogate the courts' authority in this arena."

AIPLA Brief. The American Intellectual Property Law Association (AIPLA) filed a brief [29 pages in PDF] that argues that "``contributory infringement´´ in copyright law includes ``active inducement,´´ much as that concept is known in patent law, and that a showing of ``substantial noninfringing uses´´ is not a defense to ``active inducement.´´ AIPLA further requests that this Court remand the case for a determination as to whether ``active inducement´´ can be established."

This brief states that "this case potentially presents questions not required to be reached in Sony, namely: (1) does Sony’s ``capable of substantial noninfringing uses´´ standard still apply even when the ``primary use´´ of the product at issue is copyright infringement? if so, (2) what does it mean to be ``capable of substantial noninfringing uses´´? and (3) are there circumstances under which there should be secondary liability for the distributor of a product even when that product is ``capable of substantial noninfringing uses´´?"

This brief "focuses on the third question because AIPLA believes that it may lead to the most balanced and harmonized answer to this case."

The AIPLA brief continues that the "patent law ... demonstrates that a showing of ``substantial noninfringing uses´´ (recited in 35 U.S.C. § 271(c)) is not a defense when there is ``active inducement´´ (codified in 35 U.S.C. § 271(b)). A defendant is liable for active inducement when (1) the defendant takes actions which induce (i.e., encourage) acts by another which constitute infringement; (2) the defendant has notice of the infringing nature of those acts; and (3) the defendant has an ``intent to cause the acts which constitute the infringement.´´" (Parentheses in original.) It cites Hewlett-Packard Co. v. Bausch & Lomb, Inc., 909 F.2d 1464, (Fed. Cir. 1990).

It adds that "It is no defense to ``active inducement´´ that the infringing acts were undertaken with a product ``capable of substantial noninfringing uses.´´"

BSA Brief. The Business Software Alliance (BSA) filed a brief that argues that the Court "should reject any arguments that would modify the defense to secondary liability for copyright infringement established in Sony Betamax." In addition, "In reaffirming Sony Betamax, the Court should make clear that customary conduct ancillary to distribution of technology -- like general advertising, product support and upgrades, as well as conveying other information to consumers about the use of a particular technology -- lies within the boundaries of the Sony Betamax defense. The Court should also reaffirm Sony Betamax’s clear holding that products or technologies capable of substantial non-infringing uses lie within the defense, so that there is no requirement to present evidence of current actual commercial non-infringing uses."

Moreover, the BSA brief argues that "the Court should reject the modifications to that defense proposed by Judge Posner in In re: Aimster Copyright Litigation". It asserts that "The Aimster approach is unsuited for application by courts, which would be placed in the position of assessing untested alternative technologies and hypothesizing about their costs and benefits" and because "that approach can be applied only after a product has been introduced to the marketplace, leaving product designers with no reliable basis upon which to predict their liability".

On June 30, 2003, the U.S. Court of Appeals (7thCir) issued its opinion [23 pages in PDF] in In Re Aimster Copyright Litigation. Judge Richard Posner discussed the Sony case at length. He wrote, for example, that "We also do not buy Aimster's argument that since the Supreme Court distinguished ... between actual and potential noninfringing uses, all Aimster has to show in order to escape liability for contributory infringement is that its file-sharing system could be used in noninfringing ways, which obviously it could be. Were that the law, the seller of a product or service used solely to facilitate copyright infringement, though it was capable in principle of noninfringing uses, would be immune from liability for contributory infringement. That would be an extreme result, and one not envisaged by the Sony majority."

However, the BSA brief also argues that "Because the Ninth Circuit incorrectly applied the standard for contributory liability to the evidence in the record of this case, the decision below should be vacated and remanded to the Ninth Circuit for further proceedings."

DiMA Brief. Digital Media Association (DiMA), NetCoalition, Center for Democracy and Technology (CDT), and Information Technology Association of America (ITAA) filed a brief [37 pages in PDF] that urges the Court to vacate the opinion of the Court of Appeals. It states that they participate as amici "to apprise the Court of the dangers to technological innovation, free expression, and democratic values online that are posed by petitioners' position." They want to preserve the Sony standard, but suggest that Grokster may be liable under this standard.

The brief continues that "All technologies that enable the distribution of information -- from the typewriter to the tape recorder, copy machine, VCR, and cellular phone -- may be used to infringe copyrighted works. In the digital world, too, computer operating systems, programs for recording and playing music, e-mail programs, compact discs, and peer-to-peer technology may be used to infringe copyrights. At the same time, all of these technologies have important and far-reaching legal uses, the full extent of which is inherently unpredictable."

"Copyright law must therefore strike a careful balance between protecting copyright owners and shielding innovative companies from secondary liability resulting from the misuse of their novel technologies", the brief states. It concludes that the Supreme Court "struck that balance correctly" in Sony. Nevertheless, it argues that "Grokster’s conduct in this case may well give rise to liability".

IPO Brief. The Intellectual Property Owners Association (IPO) filed a brief [PDF] that states that the IPO "wants to preserve the patent law doctrine of contributory infringement from unintended effects of a decision in this case. Because the Court in" the Sony case "relied in part on the patent law standard for contributory infringement to inform the copyright rule on secondary liability, any re-examination of the copyright rule could indirectly affect patent law."

The IPO brief states that "Copyright law imposes responsibility for another's infringement through doctrines of vicarious liability and contributory infringement. One aspect of contributory infringement is inducement. Just as it did in Sony, the Court should again look to the patent law to inform interpretation of copyright principles. Codified in 35 U.S.C. § 271(b), inducement applies where the supplied product, even if useful for some non-infringing purposes, has been actively promoted as an aid to infringement. In the copyright context, because the necessary element of intent may be proved by circumstantial evidence, inducement can capture those whose obvious aim is to abet illegal reproduction and distribution, leaving unaffected the honest innovator of content distribution systems."

"The Court ruled in Sony that secondary liability may not result from merely providing a staple article of commerce -- that is, a product capable of substantial non-infringing uses. That ruling drew from patent law, which places important reliance on the clearly defined protection of the staple article of commerce doctrine. The Court’s ruling in this case should confirm that a staple article embraces potential uses, and that the Sony standard is met by a use that is non-trivial. Because the case can be resolved through the doctrine of inducement, there is no need to reconsider the definition of a staple article of commerce."

The IPO, which was written by James Pooley and others at Millbank Tweed, concludes that "the opinion of the Ninth Circuit should be vacated and the case remanded to the district court".

PFF Brief. The Progress and Freedom Foundation (PFF) brief [21 pages in PDF], written by James DeLong and Solveig Singleton, cites as many works on game theory and rational choice theory as it does court opinions. It urges the Supreme Court to reverse the Court of Appeals on the basis of a game theoretical concept known as the prisoner's dilemma.

The PFF brief states that "Consumers have two strong interests: (1) Avoiding inhibitions on technological progress; and (2) Fostering the production of content by providing incentives to creators". Moreover, "These are complementary, not conflicting, because each is necessary to the other. Technological devices are useless without content, and content is pointless without means of delivery. But they must be reconciled, because each, taken to the limit of its logic, can do serious harm to the other."

The gist of the PFF argument is that "Consumers face a collective action problem of the type known as Prisoner's Dilemma, the name applied to situations in which the immediate incentives operating on each individual work to undermine the interests of the whole group. In the context of music, each consumer is better off if he or she has total access to unauthorized file-sharing while every other consumer pays for the music. But if everyone responds to this calculus of personal interest, the whole system collapses and everyone loses."

The PFF asserts that "A crucial function of legal rules is to avoid such results." But, it cites no legal authority for this proposition. It then continues that "the Ninth Circuit failed to recognize that no group of consumers, interested in solving its Prisoner’s Dilemma problem and maximizing its long-term enjoyment of music, would select a legal regime that allows the untrammeled operation of Grokster and similar programs. Such a regime would quickly distribute the existing stock of music, but would provide no incentives for future production, and would destroy any hope for the creation of legitimate Internet distribution systems that can provide continuing incentives to the creative community.

People and Appointments

1/24. The Senate confirmed Carlos Gutierrez to be Secretary of Commerce by a voice vote.

More News

1/25. Lee Jong-wook, Director-General of the World Health Organization and Chairman of the Board of the Global Alliance for Vaccines and Immunization (GAVI), stated in a release that "I salute the Bill and Melinda Gates Foundation and Norway for the announcement, today, of over one billion dollars for global immunization. These large contributions will help save the lives of hundreds of thousands of people and prevent immense suffering and disability over the coming years." The GAVI stated in a release that "The Bill & Melinda Gates Foundation announced a grant of $750 million, and Norway committed $290 million". See also, release of the Bill & Melinda Gates Foundation.

1/25. The Department of Homeland Security (DHS) issued a release and a document describing its use of radio frequency identification technology at U.S. borders as part of the US VISIT program.

1/25. The Federal Communications Commission's (FCC) International Bureau released a report [306 pages in PDF] titled "2003 International Telecommunications Data". This report, which is based upon data from 2003 and before, finds that "In 2003, fifty-seven U.S. facilities-based and facilities-resale ... carriers reported that they billed $8.4 billion for international telephone service, $620 million for private line services and $156 million for international other miscellaneous services, compared to $9.4 billion, $988 million, and $113 million, respectively, in 2002." See also, FCC release [PDF].

1/25. The Federal Communications Commission (FCC) released a notice [4 pages in PDF] that requests public comments to assist it in preparing the report required by Section 208 of the Satellite Home Viewer Extension and Reauthorization Act of 2004 (SHVERA). The SHVERA requires the FCC, within 9 months of passage, to "complete an inquiry regarding the impact on competition in the multichannel video programming distribution market of the current retransmission consent, network nonduplication, syndicated exclusivity, and sports blackout rules, including the impact of those rules on the ability of rural cable operators to compete with direct broadcast satellite industry in the provision of digital broadcast television signals to consumers. Such report shall include such recommendations for changes in any statutory provisions relating to such rules as the Commission deems appropriate." Comments are due by March 1, 2005. Reply comments are due by March 16, 2005. This Public Notice is DA 05-169.

1/25. Sen. Patrick Leahy (D-VT) issued a release in which he stated that he "will serve as the ranking Democratic member of the Intellectual Property Subcommittee of the Senate Judiciary Committee in the coming 109th Congress. Hatch will serve as the subcommittee's chairman." The two also jointly filed an amicus curiae brief with the Supreme Court in MGM v. Grokster.

1/25. The U.S. Patent and Trademark Office (USPTO) released a report titled "Performance and Accountability Report Fiscal Year 2004". See also, USPTO release.

1/25. Securities and Exchange Commission (SEC) Chairman William Donaldson gave a speech in London, United Kingdom, titled "U.S. Capital Markets in the Post-Sarbanes-Oxley World: Why Our Markets Should Matter to Foreign Issuers". He also made a couple of references to the internet and computers. First, he said that "Are there certain situations in which rules should not apply? Or where old rules have been outmoded or are in need of revision? For instance, we have recently proposed reforms to the rules governing the ``quiet period´´ in the weeks preceding initial public offerings, reflecting the advances made in modern communications methods, such as the Internet." See, SEC release of October 26, 2004 and notice [97 pages in PDF] in the Federal Register, November 17, 2004, Vol. 69, No. 221, at Pages 67392 - 67487. He also said that "the fundamental issue for everyone involved in financial markets today, regardless of company or country, must be to maintain high standards -- legal, regulatory, and ethical -- that breed trust and confidence. This becomes increasingly important at a time when money managers can move capital around the globe with a few clicks on a computer."

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Washington Tech Calendar
New items are highlighted in red.
Wednesday, January 26

The House will meet at 10:00 AM for legislative business. No technology related items are on the agenda. See, Republican Whip Notice.

The Supreme Court is in recess until February 22, 2005.

The Federal Communications Commission (FCC) will hold a Broadband PCS Spectrum Auction. This is Auction No. 58. This auction had previously been scheduled for January 12, 2005. See, notice [3 pages in PDF].

8:00 AM. The Federal Communications Bar Association (FCBA) will host a breakfast with Rep. Chip Pickering (R-MS), Vice Chairman of the House Commerce Committee. For more information, contact at Location: J.W. Marriott Hotel, 1331 Pennsylvania Ave., NW.

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. It is scheduled to consider the nomination of Alberto Gonzales to be Attorney General. See, Committee notice. Location: Room 226, Dirksen Building.

10:00 AM. The House Commerce Committee will hold a hearing titled "Combating Spyware: HR 29, the SPY Act". This hearing will be webcast by the Committee. See, notice. Location: Room 2123, Rayburn Building.

10:00 AM. The Senate Committee on Aging will hold a hearings to examine the risks and benefits associated with internet pharmacy and importation. Location: Room 628, Dirksen Building.

10:00 AM. The Senate Banking Committee will hold an organizational meeting. The Committee will consider its rules, subcommittee structure, and funding. Sen. Richard Shelby (R-AL) will preside. See, notice. Location: Room 538, Dirksen Building.

10:00 AM. The Senate Homeland Security and Governmental Affairs Committee will hold a hearing titled "The Department of Homeland Security: The Road Ahead". See, notice. Location: Room 342, Dirksen Building.

12:00 NOON - 1:30 PM. The DC Bar Association will host a brown bag lunch titled "International Aspects of Criminal Antitrust Enforcement". The speakers will be Lisa Phelan (Chief of the Department of Justice's Antitrust Division's National Criminal Enforcement Section) and Anthony Nanni (Fried Frank Harris Shriver & Jacobson). See, notice. Prices vary from $5 to $10. For more information, call 202 626-3463. Location: Fried Frank, 1001 Pennsylvania Ave., NW.

12:00 NOON - 1:30 PM. The DC Bar Association will host a brown bag lunch titled "I’m an IP attorney, how can I do pro bono work?". The speakers will be Mary Kennedy (Finnegan Henderson) and Maureen Syracuse (Director of the DC Bar Association's Pro Bono Program). See, notice. Prices vary from $5 to $10. For more information, contact Rebecca McNeill 202 408-4086 or Location: Finnegan Henderson, 901 New York Ave., NW.

2:00 PM. The House Armed Services Committee will meet to organize for the 109th Congress. Location: Room 2118, Rayburn Building.

TIME CHANGE. 4:30 PM. The House Judiciary Committee will meet to organize the Committee, including ratification of subcommittee assignments, adoption of the Committee rules, and approval of the Committee's Oversight Plan. Location: Room 2141, Rayburn Building.

4:00 - 5:45 PM. The American Enterprise Institute (AEI) will host a panel discussion title "Trade Policy: The Next Four Years". The speakers will be Lael Brainard (Brookings Institution), Edward Gresser (Progressive Policy Institute), Gary Hufbauer (Institute for International Economics), Brink Lindsey (Cato Institute), and Claude Barfield (AEI). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host continuing legal education (CLE) seminar titled "An Overview of Contract Drafting". Location: Dow Lohnes & Albertson, 1200 New Hampshire Ave. NW.

Thursday, January 27

No votes are scheduled in the House. See, Republican Whip Notice.

12:00 NOON. The Federal Communications Bar Association's (FCBA) State and Local Practice Committee will host a brown bag seminar titled "Current State Regulatory Issues: An Update". The speakers will be Tom Pugh (Commissioner of the Minnesota Public Utilities Commission), Beth Keating (attorney, Florida Public Service Commission), Robert Mayer (New York Public Service Commission), and Tammy Cooper (Administrative Law Judge, Texas Public Utility Commission). For more information, contact Erick Soriano at 202 939-7921 or Location: Fleischman & Walsh, 1919 Pennsylvania Ave., NW, Suite 600.

12:00 NOON - 1:30 PM. The DC Bar Association will host a brown bag lunch titled "Current Topics in Entertainment Law: Anti-Piracy and Film Financing Incentives". The speakers will be David Green (Motion Picture Association of America) and Michele LeBlanc (LeBlanc & Associates), and Aoi Nawashiro (Browdy & Neimark). See, notice. Prices vary from $20 to $30. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

10:00 AM. The Department of State's International Telecommunication Advisory Committee (ITAC) will meet to prepare for the International Telecommunications Union's ITU-T Study Group 17 (security, languages and telecommunication software) meeting, and the ITU-T Study Group 4 (telecommunication management). See, the ITU's calendar of meetings. See, notice in the Federal Register, December 20, 2004, Vol. 69, No. 243, at Page 76027. Location: Communication Technologies, Inc. (COMTek), 14151 Newbrook Dr., Suite 400, Chantilly, VA.

2:00 - 4:00 PM. The Department of State's International Telecommunication Advisory Committee will meet to discuss the meeting of the ITU Council's Ad Hoc Group on Cost Recovery for Satellite Network Filings that will take place March 21-22, 2005 in Geneva, Switzerland. See, notice in the Federal Register, January 13, 2005, Vol. 70, No. 9, at Page 2450. Location: Room 6 South (6B516), Federal Communications Commission (FCC), 445 12th St., SW.

2:00 PM. The Information Technology Association of America (ITAA) will host an event titled "Michelin Worldwide: Rolling with an RFID Strategy". See, notice. For more information, contact Eerik Kreek, This event will be webcast only.

4:00 PM. Scott Kieff (Washington University's St. Louis School of Law) will present a draft paper titled "Introducing a Case Against Copyright: A Comparative Institutional Analysis of Intellectual Property Regimes". See, abstract of paper, and notice of event. This event is part of the Spring 2005 Intellectual Property Workshop Series sponsored by the Dean Dinwoodey Center for Intellectual Property Studies at the George Washington University Law School (GWULS). For more information, contact Robert Brauneis at 202 994-6138 or The event is free and open to the public. Location: GWULS, Faculty Conference Center, Burns Building, 5th Floor, 716 20th St., NW.

4:00 PM. The Cato Institute will host a book forum on Seth Mnookin's book titled Hard News: The Scandals at The New York Times and Their Meaning for American Media [Amazon]. The speakers will be Mnookin and Jack Shafer (Slate). A reception will follow the event. See, notice. Location: Cato, 1000 Massachusetts Ave., NW.

TIME? There will be a meeting of the Executive Office of the President's (EOP) Office of Science and Technology Policy's (OSTP) National Science and Technology Council's (NSTC) Committee on Science's Subcommittee on Research Business Methods. The meeting is closed to the public. For more information, contact Megan Columbus at 301 435-0937. Location: undisclosed.

Extended deadline to file with the Federal Communications Commission (FCC) first round DTV channel election forms. This proceeding is titled "In the matter of Second Periodic Review of the Commission’s Rules and Policies Affecting the Conversion To Digital Television". This is MB Docket No. 03-15. See, FCC order extending deadline [PDF].

Effective date of the Copyright Office's final rule regarding reconsideration procedure. See, notice in the Federal Register, December 28, 2004, Vol. 69, No. 248, at Pages 77636 - 77637.

Friday, January 28

No votes are scheduled in the House. See, Republican Whip Notice.

Deadline to submit to the Federal Communications Commission (FCC) replies to oppositions to petitions to deny the applications of NextWave Telecom and Cellco Partnership dba Verizon Wireless for FCC approval of their proposed transfer of control of broadband Personal Communications Services (PCS) licenses from NextWave to Cellco. See, FCC notice [4 pages in PDF]. This notice is DA 04-3873 in WT Docket No. 04-434.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the FCC's public notice regarding BellSouth's petition for forbearance from certain Title II and Computer Inquiry requirements. This proceeding is WC Docket No. 04-405. See, notice of extension [PDF].

EXTENDED TO MARCH 14. Deadline to submit reply 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.

Monday, January 31

12:30 PM. Eliot Spitzer, Attorney General of New York, will give a luncheon address. Location: National Press Club, 529 14th St. NW, 13th Floor.

Extended deadline to submit reply comments to Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [38 pages in PDF] regarding use by unlicensed devices of broadcast television spectrum where the spectrum is not in use by broadcasters. See, story titled "FCC Adopts NPRM Regarding Unlicensed Use of Broadcast TV Spectrum" in TLJ Daily E-Mail Alert No. 898, May 14, 2004, and story titled "FCC Releases NPRM Regarding Unlicensed Use of TV Spectrum" in TLJ Daily E-Mail Alert No. 905, May 26, 2004. This NPRM is FCC 04-113 in ET Docket Nos. 04-186 and No. 02-380. See, notice (setting original deadlines) in the Federal Register, June 18, 2004, Vol. 69, No. 117, at pages 34103-34112; first notice [PDF] of extended deadlines; erratum [PDF]; and December 22, 2004 Public Notice [PDF] (DA 04-4013) further extending the deadline for reply comments to January 31.

Deadline to submit comments to the Securities and Exchange Commission (SEC) in response to its Notice of Proposed Rulemaking (NPRM) regarding disseminate information to investors during the securities offering process. The NPRM states that "Significant technological advances over the last three decades have increased both the market's demand for more timely corporate disclosure and the ability of issuers to capture, process, and disseminate this information. Computers, sophisticated financial software, electronic mail, teleconferencing, videoconferencing, webcasting, and other technologies available today have replaced, to a large extent, paper, pencils, typewriters, adding machines, carbon paper, paper mail, travel, and face-to-face meetings relied on previously. Our evaluation of the securities offering process and procedural enhancements seeks to recognize the integral role that technology plays in timely informing the markets and investors about important corporate information and developments."

Deadline to submit applications and nominations to the Federal Communications Commission (FCC) for membership on the FCC's Consumer Advisory Committee (CAC). See, Public Notice [PDF] (DA 04-3892) and notice in the Federal Register, December 29, 2004, Vol. 69, No. 249, at Pages 78024 - 78025.

Deadline to submit comments to the Office of the U.S. Trade Representative's (USTR) Trade Policy Staff Committee (TPSC) regarding "general U.S. negotiating objectives as well as country-, product-, and service-specific priorities for the multilateral negotiations and work program in the Doha Development
Agenda (DDA) negotiations conducted under the auspices of the World Trade Organization". See, notice in the Federal Register, December 9, 2004, Vol. 69, No. 236, at Pages 71466 - 71468.

Tuesday, February 1

10:15. The U.S. District Court (DC) will hold a status conference in USA v. Microsoft, No. 98-1232 (CKK). See, rescheduling order. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

12:00 NOON - 1:30 PM. The DC Bar Association will host a brown bag lunch titled "Entertainment Law: The Year In Review". The speakers will be Maurita Coley and David Silverman (both of Cole Raywid & Braverman). See, notice. Prices vary from $20 to $30. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

Deadline to submit applications to the U.S. Department of Agriculture's (USDA) Rural Utilities Service (RUS) for Distance Learning and Telemedicine (DLT) grants. See, notice in the Federal Register, December 3, 2004, Vol. 69, No. 232, at Pages 70217 - 70222; and notice in the Federal Register, January 18, 2005, Vol. 70, No. 11, at Pages 2844 - 2849.

Wednesday, February 2

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 Location: undisclosed.

10:00 AM. The Senate Committee on Homeland Security and Government Affairs will hold a hearing on the nomination of Michael Chertoff to be Secretary of Homeland Security. See, notice. Location: Room 342, Dirksen Building.

10:30 AM. The House Ways and Means Committee will meet to adopt Committee rules, approve the Committee budget, approve the Committee oversight plan, and make subcommittee assignments. See, notice. Location: Room 1100, Longworth 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 Location: undisclosed.

Deadline to register for the Federal Communications Bar Association's (FCBA) February 8 continuing legal education (CLE) seminar titled "Communications Law 101". See, registration form [PDF].

FCC Denies 36 Indecency Complaints

1/24. The Federal Communications Commission (FCC) released a Memorandum Opinion and Order (MOO) [11 pages in PDF] that denies 21 complaints filed by the Parents Television Council (PTC) against various television broadcast licensees alleging violations the Communications Act and the FCC's rules regarding the broadcast of indecent material.

The PTC complained about, among other things, the broadcast of "Austin Powers: The Spy Who Shagged Me".

The FCC adopted this MOO on December 8, 2004, but did not disclose it until 7 weeks later, January 24, 2005. The FCC also released a second Memorandum Opinion and Order [11 pages in PDF], also adopted back on December 8, 2004, that denies 15 more complaints submitted by the PTC.

Tim Winter, Executive Director of the PTC, responded in the PTC web site that "The FCC had 36 individual opportunities to provide clarity and direction -- both to families and to broadcasters, but they chose not to do so. Instead, the FCC abandoned its public interest responsibility by lumping all 36 complaints into one great mish-mash of imprecision. Furthermore, it took the FCC over three years to rule on at least one complaint and almost two years to rule on several others. That's unacceptable. The FCC should be able to determine and rule within six months time whether a broadcaster has crossed the line."

Winters also commented on Powell's resignation. He said that "We must have an FCC Chairman who will take this issue seriously and we believe such a candidate exists with FCC Commissioner Kevin Martin. We strongly recommend the President nominate him to be Chairman of the FCC".

The FCC also issued a release [PDF] that states as follows: "Commissioner Martin issuing a statement at a later date".

FCC Commissioner Michael Copps wrote that "In these two Orders, the Commission combines 36 unrelated complaints with no apparent rhyme or reason other than that they concern television broadcasts. The Commission then denies these complaints with hardly any analysis of each individual broadcast, relying instead on generalized pronouncements that none of these broadcasts violates the statutory prohibition against indecency on the airwaves. I believe that some of these broadcasts present a much closer call."

These two MOOs are FCC 04-279 and FCC 04-280.

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