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February 3, 2005, 9:00 AM ET, Alert No. 1,069.
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Senate Approves Copyright Bill

2/1. On January 25, Sen. Orrin Hatch (R-UT), Sen. Patrick Leahy (D-VT), Sen. John Cornyn (R-TX), and Sen. Dianne Feintstein (D-CA) introduced S 167, the "Family Entertainment and Copyright Act of 2005", which is also known as the FECA. On February 1, the Senate approved the bill by unanimous consent.

The Senate Judiciary Committee held no hearing or markup on this bill in this Congress. The Senate, by unanimous consent, discharged the Committee from further consideration. The Senate then approved the bill, with one minor technical amendment, by unanimous consent, with little discussion.

This bill is a made up of four unrelated titles, all of which pertain mostly to copyright law. It is a carryover from the 108th Congress. It is essentially a subset of S 3021 (108th), which was titled the "Family Entertainment and Copyright Act of 2004". The Senate approved S 3021 very late in the last Congress, on Saturday, November 20, 2004. The House did not approve it. However, three of the provisions of S 3021 were enacted into law through other bills, and hence, are not in S 167.

See, story titled "Senate Approves Copyright Bill" in TLJ Daily E-Mail Alert No. 1,024, November 23, 2004.

Summary of the FECA. S 167, contains four titles. The key parts of the bill are the ART Act, which includes a provision criminalizing certain uses of camcorders in movie theaters, and the Family Movie Act, which pertains to ClearPlay type technology. It also contains the Film Preservation Act and the Orphan Works Act.

Sen. Patrick LeahySen. Leahy (at right), who is the ranking Democrat on the Senate Judiciary Committee, summarized his bill in the Senate on February 1. "The FECA bill is made up of four important provisions. Title I of the bill contains the ART Act, which will criminalize the use of camcorders to steal movies surreptitiously from the big screen. The second title of the bill is the Family Movie Act, which was designed to allow consumers to view only those portions of movies, in their own homes, that they want to."

Sen. Leahy continued that "Title III of the bill contains the Film Preservation Act, legislation that I sponsored in the last Congress. The Film Preservation Act will allow the Library of Congress to continue its important work in preserving America's fading film treasures. What is more, the bill will assist libraries, museums, and archives in preserving films, and in making those works available to researchers and the public. Finally, the bill contains the Preservation of Orphan Works Act, which will correct a drafting error in the Sonny Bono Copyright Term Extension Act and will allow libraries to create copies of orphan works -- copyrighted materials that are in the last 20 years of their copyright term, are no longer commercially exploited, and are not available at a reasonable price." See, Congressional Record, February 1, 2005, at Page S827.

The ART Act and Family Movie Act provisions of S 167 are nearly identical to the parallel provisions of S 3021.

ART Act. The ART Act includes, among other provisions, criminalization of certain unauthorized recording of motion pictures in a motion picture exhibition facility. That is, it criminalizes using camcorders to copy movies in motion picture exhibition facilities, such as movie theaters. It also gives movie theater owners limited immunity for detaining violators.

Another provision of the ART Act requires the Register of Copyrights to "establish procedures for preregistration of a work that is being prepared for commercial distribution and has not been published ... for any work that is in a class of works that the Register determines has had a history of infringement prior to authorized commercial distribution". It also provides that infringement actions may be based upon these preregistrations.

Family Movie Act. The Family Movie Act is more controversial. There are opponents of the provision, and opponents of the provision in its current form.

This provision addresses technology, such as that of ClearPlay, to skip content in copyrighted works. It adds a new  11 to 17 U.S.C. 110 (which provides exceptions to the exclusive rights of copyright).

It contains a content skipping exception: "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 to be used, at the direction of a member of a private household, for such making imperceptible, if no fixed copy of the altered version of the motion picture is created by such computer program or other technology".

The bill also contains related language amending trademark law.

However, it does not include language regarding ad skipping. That is, ClearPlay and other companies can market products that skip violent or obscene content, and ads, in movies.

More on S 3021. S 3021 (108th) also contained four other provisions that are not in S 167 (109th). Three of these provisions were included in other bills, and enacted into law late last year. These include the "Anticounterfeiting Act of 2004", and the "Fraudulent Online Identity Sanctions Act". They were enacted via HR 3632, the "Intellectual Property Protection and Courts Amendments Act of 2004". This bill is now Public Law No. 108-482.

S 3021 (108th) also included the CREATE Act, the full title of which is the "Cooperative Research and Technology Enhancement (CREATE) Act of 2004". This is a patent bill which ultimately was enacted as a stand alone bill, S 2192 (108th). It is now Public Law No. 108-453.

S 3021 (108th) also included the "Professional Boxing Amendments Act of 2004''. This lengthy bill has nothing to do with intellectual property. It is not in S 167 (109th).

Bush Delivers State of the Union Address

2/2. President Bush gave the annual State of the Union Address to a joint session of the House and Senate. He had little to say that related to technology.

However, he did speak in broad terms economics. He said that "By making our economy more flexible, more innovative, and more competitive, we will keep America the economic leader of the world."

He elaborated that "To make our economy stronger and more competitive, America must reward, not punish, the efforts and dreams of entrepreneurs. Small business is the path of advancement, especially for women and minorities, so we must free small businesses from needless regulation and protect honest job-creators from junk lawsuits. Justice is distorted, and our economy is held back by irresponsible class-actions and frivolous asbestos claims -- and I urge Congress to pass legal reforms this year."

He also asked "Congress to move forward on a comprehensive health care agenda" that includes "improved information technology to prevent medical error and needless costs".

Bush also gave a speech on January 27, 2005, in which he discussed information technology in the health sector. See, story titled "Bush Promotes Electronic Medical Records" in TLJ Daily E-Mail Alert No. 1,065, January 28, 2005.

Senate Commerce Committee Announces Subcommittees

2/1. The Senate Commerce Committee announced that it will have nine committees, and one study, in the 109th Congress. There is no longer a subcommittee titled "Communications". Communications issues will be handled at the full committee level.

There is a new subcommittee titled "Technology, Innovation, and Competitiveness", that will replace the old Science, Technology and Space Subcommittee. There will be a National Ocean Policy Study. The new subcommittees are as follows:
 • Technology, Innovation & Competitiveness
  Surface Transportation & Merchant Marine
  Science and Space
  Fisheries and the Coast Guard
  Trade, Tourism & Economic Development
  Aviation
  Consumer Affairs, Product Safety & Insurance
  Global Climate Change
  Disaster Prevention & Prediction

Committee spokespersons stated that the Committee has not yet announced the subcommittees' members, Chairs, or ranking Democrats. However, Sen. John Ensign (R-NV) has announced that he will chair the Technology, Innovation & Competitiveness Subcommittee. Sen. Ensign also announced that he will remain as Chairman of the Senate Republican High Tech Task Force. See, full committee release and Sen. Ensign's release.

Sen. Baucus Advocates Open Trade with China and Other Countries

2/1. Sen. Max Baucus (D-MT) spoke in the Senate about trade. He praised the recently negotiated free trade agreement with Australia, proposed negotiating a free trade agreement with New Zealand, and advocated a policy of free trade towards transitioning countries, such as the People's Republic of China.

Sen. Max BaucusSen. Baucus (at right) stated that "Faced with this uncertainty, some Americans look at the Pacific Rim and see danger. They see the rise of China's and Asia's economic prowess as a threat to American prosperity. But we have never been a nation that succeeds only by the economic failure of others."

"We used the Marshall Plan to help pull Europe out of economic distress -- and have benefited enormously. We believed that capitalism would win the Cold War -- and it did", said Sen. Baucus. "Now China, Vietnam, Russia, and others are beginning the transition to a free market economy. This is a positive development -- not one to fear."

He added that "America has never shied away from engagement with the rest of the world. We have been successful because we are confident, innovative, positive, and open. We can only lose our place in the world if we forget who we are and forget how we got here in the first place. That is why I will continue to work for an open trade policy." See, Congressional Record, February 1, 2005, at Pages S735-7.

Sen. Baucus is the ranking Democrat on the Senate Finance Committee, which has trade related jurisdiction.

On Wednesday, February 2, the House approved HRes 57, a resolution urging the European Union to maintain its arms embargo on the People's Republic of China, by a vote of 411-3. See, Roll Call No. 18.

Appeals Court Affirms Judgment Against Mintz Levin

2/2. The U.S. Court of Appeals (4thCir) issued its opinion [21 pages in PDF] in Gallina v. Mintz Levin, a case regarding the firing of an attorney from the Reston, Virginia office of the law firm of Mintz Levin.

The trial jury of the U.S. District Court (EDVa) returned a verdict for the fired worker, Gallina, for wrongful retaliation, for complaining about sexual discrimination, in violation of Title VII of the Civil Rights Act of 1964. The jury awarded her $190,000 in compensatory damages and $330,000 in back pay. Mintz Levin appealed the District Court's denial of its motion for judgment as matter of law. Gallina cross appealed the District Court's dismissal of her claim for punitive damages.

The Court of Appeals, in a split opinion, affirmed the judgment against Mintz Levin, but reversed the District Court's dismissal of Gallina's punitive damages claim. The case is remanded for consideration of punitive damages.

This case is Dawn Gallina v. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 03-1883, an appeal from the U.S. District Court for the Eastern District of Virginia, D.C. No. CA-02-647-A, Judge T.S. Ellis presiding. Judge Dennis Shedd wrote the opinion of the Court of Appeals, in which Judge Wilkins joined. Judge Niemeyer dissented. This opinion is 21 pages, and includes analysis of the applicable law. Yet, the Court designated this opinion as "unpublished" and "not binding precedent in this circuit".

People and Appointments

2/2. Mark Stephens was named Special Advisor for Universal Service Fund Oversight in the Federal Communications Commission's (FCC) Wireline Competition Bureau's (WTB) Telecommunications Access Policy Division (TAPD). He will advise the division chief and the division management on issues related to oversight, audits, accounting, and administration of the Universal Service Fund. Stephens is a Certified Public Accountant (CPA) who has worked for the FCC since 1991. See, FCC release [PDF].

2/2. Jeremy Miller was named Deputy Chief of the Federal Communications Commission's (FCC) Wireline Competition Bureau's (WTB) Competition Policy Division (CPD). He is currently Assistant Chief. The FCC also stated in a release [PDF] that he has "consulted on the ongoing proceedings on IP-enabled services". He went to work for the FCC in 2001. Before that, he worked for the law firm of Hogan & Hartson.

2/2. Scott Hammond was appointed Deputy Assistant Attorney General for Criminal Enforcement in the Department of Justice's (DOJ) Antitrust Division (AD). He replaces James Griffin who left in December of 2004.
Hammond was previously the AD's Director of Criminal Enforcement. He will supervise the AD's domestic and international criminal antitrust investigations and prosecutions. He will also review all requests for amnesty under the AD's Corporate and Individual Leniency Policies. Hammond has worked for the AD since 1988, starting as a trial attorney in Litigation II section. Hammond became Director of Criminal Enforcement for the AD in 2000. Marc Siegel was named to replace Hammond as the Director of Criminal Enforcement for the AD. Siegel was previously Assistant Chief in the AD's San Francisco Field Office.

1/31. Sen. Orrin Hatch (R-UT) named Jace Johnson his legislative director for his Washington DC office. Before joining Sen. Hatch's staff two years ago, Johnson worked for Corvis Corporation, which has since changed its name to Broadwing Corporation. It is a telecommunications service provider and maker of optical networking equipment. See, Sen. Hatch's release.

1/28. Sen. Harry Reid (D-NV), the Senate Democratic Leader, designated Shara Aranoff for nomination to a Democratic position on the U.S. International Trade Commission (USITC). She is currently Senior International Trade Counsel on the Democratic staff of the Senate Finance Committee. She has also worked in the USITC's Office of General Counsel, and for the law firm of Steptoe & Johnson. Aranoff will, if nominated by President Bush and confirmed by the Senate, fill the seat of Marcia Miller, who term has expired. Sen. Max Baucus (D-MT), the ranking Democrat on the Senate Finance Committee, praised Aranoff in a release [PDF].

Washington Tech Calendar
New items are highlighted in red.
Thursday, February 3

The Senate will meet at 9:00 AM. It will continue its consideration of the nomination of Alberto Gonzales to be Attorney General.

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

9:30 AM. The Senate Judiciary Committee will hold a business meeting to consider S 5, the "Class Action Fairness Act", and and S 256, a bill to amend the Bankruptcy Code. See, notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

TIME? The Senate Committee on Homeland Security and Government Affairs will hold a business meeting to consider the nomination of Michael Chertoff to be Secretary of Homeland Security. Location: undisclosed.

12:00 NOON - 1:30 PM. The DC Bar Association's Intellectual Property Law Section will host a brown bag lunch titled "What's Hot and What's Not on Capitol Hill?". The topic is the prospects in the 109th Congress for intellectual property bills, such as the the Family Movie Act, Art Act, PIRATE Act, CREATE Act, Inducing Infringement of Copyright Act, Digital Media Consumers' Rights Act, Piracy Deterrence & Education Act, and Stop Counterfeiting in Manufactured Goods Act. The scheduled speakers are Paul Martino (Majority Counsel for Senate Commerce Committee's Subcommittee on Communications), David Strickland (Senior Counsel for Senate Commerce Committee's Subcommittee on Competition & Consumer Affairs), Jonathan Meyer (Counsel to Sen. Joe Biden), Robert Brauneis (George Washington University Law School), and Barbara Berschler. See, notice. Prices vary from $10 to $30. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

1:30 - 3:30 PM. The WRC-07 Advisory Committee's Informal Working Group 2: Satellite Services and HAPS will meet. See, FCC notice [PDF]. Location: Leventhal Senter & Lerman, 7th Floor Conference Room, 2000 K St. NW.

2:00 PM. The Senate Appropriations Committee's Subcommittee on Commerce, Justice, State, and the Judiciary will hold a hearing on the Federal Bureau of Investigation's (FBI) failed information technology modernization program, Trilogy. Location: Room 192, Dirksen Building.

TIME? The Judicial Conference of the United States (JC) will hold a public hearing on its proposed amendment to Bankruptcy Rule 5005 regarding electronic filings. The JC has proposed amendments to Civil Rule 5, Appellate Rule 25, and Bankruptcy Rule 5005. Each of these proposed amendments would permit the applicable court, by local rules, to "permit or require papers to be filed, signed, or verified by electronic means" (or similar language). Current rules provide that the applicable court may "permit" filing by electronic means. See, JC notice [PDF] and notice in the Federal Register, Federal Register, December 2, 2004, Vol. 69, No. 231, at Page 70156. Location: undisclosed.

Friday, February 4

9:30 AM - 1:30 PM. The WRC-07 Advisory Committee's Informal Working Group 4: Broadcasting and Amateur Issues will meet. See, FCC notice [PDF]. Location: Shaw Pittman, 2300 N St., NW, Room 1B.

Monday, February 7

9:30 AM. The U.S. Court of Appeals (DC) will hear oral argument in National Science and Technology Network, Inc. v. FCC, No. 03-1376. Judges Ginsburg, Henderson and Randolph will preside. This is an appeal of the FCC's cancellation of nine licenses to operate private land mobile radio stations in the Los Angeles, California area. See, FCC's brief [25 pages in PDF]. Oral argument is limited to 10 minutes per side. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

12:00 NOON. The Cato Institute and the Discovery Institute will host a luncheon and panel discussion titled "The Telecom Act Nine Years Later: Why Reform Can't Wait". The speakers will be George Gilder (Discovery), Adam Thierer (Cato), John Wohlstetter (Discovery), and John Drescher (Discovery). Gilder is the author of Telecosm: The World After Bandwidth Abundance [Amazon]. Lunch will be served. The event is free. See, notice and registration page. Location: Room B-338, Rayburn Building, Capitol Hill.

Deadline to submit comments to the National Science Foundation (NSF) regarding its notice of proposed rulemaking (NPRM) regarding amending the NSF patents regulation to require grantees to use an electronic reporting and management system for inventions made with NSF assistance. See, notice in the Federal Register, December 9, 2004, Vol. 69, No. 236, at Pages 71395 - 71396.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its draft of SP 800-76. This is Special Publication 800-76, Biometric Data Specification for Personal Identity Verification [PDF]. Send comments and questions to DraftFIPS201@nist.gov.

Tuesday, February 8

9:30 AM - 12:30 PM. The Federal Communications Commission's (FCC) Media Bureau will host an event titled "Low Power FM Forum". Press contact: Rebecca Fisher at 202 418-2359. Location: FCC, Commission Meeting Room, 445 12th St., SW.

10:00 AM. The Senate Banking Committee will hold a hearing on the role of credit rating agencies in capital markets. Location: Room 538, Dirksen Building.

10:00 AM. The House Ways and Means Committee will hold a hearing on President Bush's Fiscal Year 2006 budget. Secretary of the Treasury John Snow will testify. Location: Room 1100, Longworth Building.

2:00 PM. The House Ways and Means Committee will hold a hearing on President Bush's Fiscal Year 2006 budget. Office of Management and Budget (OMB) Director Joshua Bolten will testify. Location: Room 1100, Longworth Building.

2:00 - 6:00 PM. The Federal Communications Bar Association's (FCBA) will host a continuing legal education (CLE) seminar titled "Communications Law 101". Prices ranges from $125 to $275. See, registration form [PDF]. The deadline to register is February 2. Location: Wiley Rein & Fielding, 1776 K St., NW.

6:00 - 8:00 PM. The Advisory Committee for the Congressional Internet Caucus (ACCIC) will host a pre-conference reception. On February 9, the ACCIC will host an event titled "State of the Net Conference". Conference non-attendees RSVP to rsvp@netcaucus.org or 202 638-4370. Location: Thorton Room, Hyatt Regency on Capitol Hill, 400 New Jersey Ave., NW.

6:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Happy Hour". Location: Porter's, 1207 19th St. NW.

Deadline to submit reply comments to the Federal Communications Commission's (FCC) in response to the further notice of proposed rulemaking (FNPRM) portion of its Report and Order and FNPRM regarding the former ITFS, MDS, and MMDS, now named the Broadband Radio Service (BRS) and the Educational Broadband Service (EBS), in the 2496-2690 MHz band. The FCC adopted this item at its June 10, 2004 meeting. The FCC released the text on July 29, 2004 (FCC 04-135), and then released a modified item on October 29, 2004 (FCC 04-258). This is WT Docket 03-66. See, notice in the Federal Register, December 10, 2004, Vol. 69, No. 237, at Pages 72019 - 72047. See also, story titled "FCC Adopts RO & NPRM Re ITFS/MDS Band" in TLJ Daily E-Mail Alert No. 916, June 11, 2004.

Wednesday, February 9

7:30 AM - 4:30 PM. The Advisory Committee for the Congressional Internet Caucus will host an event titled "State of the Net Conference". The speakers will include Sen. Ted Stevens (R-AK). See, agenda in TLJ Washington DC Calendar. Registration is required. Prices range from free to $350. For more information, contact Danielle Yates at dyates@netcaucus.org or 202 638-4370. See, notice and brochure [PDF]. Location: Hyatt Regency on Capitol Hill, 400 New Jersey Ave., NW.

12:00 NOON - 1:30 PM. The DC Bar Association will host a brown bag lunch titled "When Bad Things Happen To Good Computers". The topics will be security threats, both technology based and human, for law offices' computers, computer networks, PDAs and cell phones, and potential liabilities for failure to protect the confidential information. The speakers will be Don Philmlee (Potomac Consulting Group) and Todd Haley (Spriggs & Hollingsworth). See, notice. Prices vary from $15 to $25. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

5:00 - 7:00 PM. The Advisory Committee for the Congressional Internet Caucus will host a technology fair and reception. Location: Room SDG-50, Dirksen Building.

Thursday, February 10

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

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. Press contact: Blain Rethmeier (Specter) at 202 224-5225 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

10:00 AM - 12:00 NOON. The WRC-07 Advisory Committee's Informal Working Group 5: Regulatory Issues will meet. See, FCC notice [PDF]. Location: The Boeing Company, 1200 Wilson Blvd., Arlington, VA.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. The speakers will be Lisa Sutherland (Chief of Staff, Senate Commerce Committee), Christine Kurth (Deputy Chief of Staff, Senate Commerce Committee), and James Assey (Minority Counsel, Senate Commerce Committee). For more information, contact Catherine Bohigian at Catherine.Bohigian@fcc.gov. Location: Mintz Levin, 701 Pennsylvania Ave., NW.

12:30 - 1:30 PM. The DC Bar Association will host a program titled "Trade Secrets Damages: What Can a Successful Claimant Expect to Recover?". The speaker will be Carla Mulhern (Analysis Group, Inc.). See, notice. Prices vary from $10 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 comments to the U.S. Patent and Trademark Office (USPTO) regarding revisions to the rules of practice in patent cases to implement the Cooperative Research and Technology Enhancement Act of 2004 (CREATE Act). See, notice in the Federal Register, January 11, 2005, Vol. 70, No. 7, at Pages 1818-1824. This bill was S 2192 in the 108th Congress. President Bush signed it on December 10, 2004. See, story titled "President Signs CREATE Act" in TLJ Daily E-Mail Alert No. 1,037, December 14, 2004.

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