3/25. The Federal Communications Commission (FCC) issued a Memorandum Opinion and Order and Notice of Inquiry [24 pages in PDF] in its proceeding titled "In the Matter of BellSouth Telecommunications, Inc. Request for Declaratory Ruling that State Commissions May Not Regulate Broadband Internet Access Services by Requiring BellSouth to Provide Wholesale or Retail Broadband Services to Competitive LEC UNE Voice Customers".

The order portion of this item states that "we find that a state commission may not require an incumbent local exchange carrier (LEC) to provide digital subscriber line (DSL) service to an end user customer over the same unbundled network element (UNE) loop facility that a competitive LEC uses to provide voice services to that end user."

FCC Commissioners Jonathan Adelstein and Michael Copps wrote in a separate statement [PDF] that this order "unwisely flashes the green light for broadband tying arrangements".

Adelstein (at right) and Copps explained that "A tying arrangement occurs when a seller conditions the availability of one product on the buyer’s purchase of a second product. Here, the incumbent carrier refused to sell DSL service to end-users who elected not to purchase voice service from the same carrier. Recognizing that this practice could limit consumer choice and reduce competition, Florida, Kentucky, Louisiana and Georgia chose to do something about it. Each state sought to put an end to tying practices that restricted the availability of broadband service to customers who also purchased analog voice service. The majority responds to these state efforts with the heavy hammer of preemption."

In contrast, Jonathan Banks, VP for Federal, Executive and Regulatory Affairs at BellSouth, the ILEC that filed the petition, stated in a release that "This FCC order continues progress on clearing out regulatory underbrush that handicaps rolling out broadband. By affirming a single national policy in this area, this FCC action will increase the speed and efficiency of bringing to consumers new and innovative broadband service offerings over wireline networks."

In the notice of inquiry (NOI) portion of this item, the FCC stated that "we seek to examine the competitive consequences when providers bundle their legacy services with new services, or ``tie´´ such services together such that the services are not available independent from one another to end users. We seek comment on how such bundling might affect both intramodal and intermodal competition and the effect that it might have on the public interest, including benefits to consumers."

The FCC also rejected efforts by law enforcement entities to sneak unrelated Communications Assistance for Law Enforcement Act (CALEA) determinations into this order. This item states that "We decline to address new and novel issues that are more appropriately dealt with in other Commission proceedings. For example, commenters argue that the Commission should determine that BellSouth’s wholesale and retail broadband Internet access services and its wholesale and retail DSL access services are subject to CALEA."

After the FBI filed its comment [8 pages in PDF], the FCC issued a Notice of Proposed Rulemaking and Declaratory Ruling (NPRM & DR) [100 pages in PDF] regarding imposing CALEA obligations upon broadband internet access services and voice over internet protocol (VOIP) services. That proceeding is ET Docket No. 04-295. See also, story titled "Summary of the FCC's CALEA NPRM" in TLJ Daily E-Mail Alert 960, August 17, 2004.

The FCC adopted this item on March 17, but announced and released it on March 25. This item is 05-78 in WC Docket No. 03-251.

3/25. The U.S. Court of Appeals (9thCir) issued its divided en banc opinion [57 pages in PDF] in Silvers v. Sony, a case regarding whether an accrued action for copyright infringement can be assigned. The majority held that it cannot.

Nancey Silvers wrote the script of a made for television movie titled "The Other Woman", as a work made for hire for Bob & Frank Films. Bob & Frank Films produced the movie. It was broadcast on television. Three years late, Sony Pictures Entertainment produced a movie titled "Stepmom". Silvers asserts that Sony infringed the copyright for the script that she authored.

Bob & Frank Films did not sue Sony. Rather, it executed a document titled "Assignment of Claims and Causes of Action" in favor of Silvers. Bob & Frank Films retained ownership of the copyright in "The Other Woman".

Silvers then filed a complaint in U.S. District Court (CDCal) against Sony alleging copyright infringement, based upon the alleged substantial similarity of the two movies.

Sony filed a motion to dismiss, arguing that Silvers lacks standing to maintain the action because she has no ownership interest in the underlying copyright. The District Court denied Sony's motion to dismiss.

A three judge panel of the Court of Appeals affirmed. That opinion is also reported at 330 F.3d 1204. See also, story titled "9th Circuit Rules That An Accrued Cause of Action for Copyright Infringement May Be Assigned" in TLJ Daily E-Mail Alert No. 673, June 4, 2003.

An eleven judge en banc panel reversed. Judge Susan Graber wrote the majority opinion. Judge Marsha Berzon wrote a lengthy dissent that was joined by Judge Stephen Reinhardt. Judge Carlos Bea wrote a lengthy dissent that was joined by Judge Andrew Kleinfeld.

These three long and wide ranging opinions provide detailed discussions of the nature of copyright, the source of copyright law, rules of construction of the Copyright Act, the use of legislative history and legislative intent, the role of the underlying purpose of copyright protection, and other matters.

Judge Graber, writing for the majority, reasoned that copyright is solely a creature of statute. Hence, if Silvers has standing to sue, it must be granted by the Copyright Act.

Judge Graber relied heavily upon 17 U.S.C. § 501(b), which provides, in part, that "The legal or beneficial owner of an exclusive right under a copyright is entitled ... to institute an action for any infringement of that particular right committed while he or she is the owner of it."

Silvers is neither the legal nor beneficial owner of the copyright. Hence, Graber, who would not look beyond the statute, the legislative history and intent, and other opinions construing the Copyright Act of 1976, concluded Silvers has no standing.

She wrote that "an assignee who holds an accrued claim for copyright infringement, but who has no legal or beneficial interest in the copyright itself" cannot institute an action for infringement.

Four Judges rejected this analysis. Judge Berzon concluded that Silvers does have standing. She would extend standing to the holders of assignments, such as Silvers, who have an interest in the litigation. In this case, Silvers is the author. Judge Bea not only concluded that Silvers has standing to sue, but that any assignee of any accrued claim for infringement has standing.

The dissenters found several points of attack. First, they noted that while the statute provides that the "legal or beneficial owner of an exclusive right under a copyright" can sue, it does not state that anyone else lacks standing. Moreover, nothing in the statute prohibits the assignment of claims. As one dissenter noted, the Congress knows how to write a clause barring assignments of claims.

The dissenters also found support for their positions in materials outside of the statute, including the common law, contract law, and the underlying purpose of copyright protection -- to incent authors such as Silvers to create works.

Judge Bea also wrote that the 9th Circuit has allowed assignees of other accrued claims that arise under federal statute to bring actions, and that it would be inconsistent not to allow assignees of copyright claims to bring actions.

There is also the matter of precedent. The Second Circuit has issued an opinion that is in accord with the majority opinion in this case. However, there is a contrary Fifth Circuit opinion. The majority concluded that it is inapplicable because it was written before the enactment of the Copyright Act of 1976, which includes the Section 501 language referencing "legal or beneficial owner of an exclusive right under a copyright". The dissenters argued that it remains precedent for the proposition that a copyright claim can be assigned.

Neither the majority opinion, nor either of the dissenting opinions, discusses Article 6 of the Berne Convention, the moral rights or authors, or the personal interests of authors in enforcing copyrights that are separate from the financial interests of the publishers that own the copyrights for their works.

This case is Nancey Silvers v. Sony Pictures Entertainment, Inc., App. Ct. No. 01-56069, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-00-06386-SVW.

3/24. David Strickland was named Assistant Division Chief in the Federal Communications Commission's (FCC) International Bureau's (IB) Policy Division. He was previously a Legal Advisor to the Bureau Chief. Before joining the FCC in 2002 he worked for the law firm of Bryan Cave. See, FCC release [PDF].

3/24. Steven Spaeth was named Assistant Division Chief in the Federal Communications Commission's (FCC) International Bureau's (IB) Satellite Division. He was previously a Legal Advisor to the Bureau Chief. See, FCC release [PDF].

3/23. Dina Dublon was named to the Board of Directors of Microsoft. She was previously EVP and CFO of JPMorgan Chase. Microsoft expanded the size of its Board from nine to ten. See, Microsoft release.

3/23. Arvind Sodhani was named President of Intel Capital, effective immediately. He was SVP and Treasurer. He replaces John Miner as President. Miner will leave Intel on June 1, 2005. In addition, Pamela Pollace, VP and Director of Intel's Corporate Communications Group, will leave Intel on May 1, 2005. See, Intel release.

3/22. Edward Mueller was named to the Board of Directors of VeriSign. He is the CEO of Williams-Sonoma. See, VeriSign release.

3/23. Ed Keating was named VP of the Content Division of the Software & Information Industry Association (SIIA), effective immediately. See, SIIA release [PDF].

3/18. Dave Thomas was named VP of the Software Division of the Software & Information Industry Association (SIIA). See, SIIA release [PDF].

3/25. The Federal Communications Commission (FCC) announced deadlines for petitions and comments in its antitrust merger review proceeding (transfer of control of licenses) associated with the acquisition of MCI by Verizon. Initial comments and petitions to deny are due by May 9, 2005. Reply comments and oppositions to petitions to deny are due by May 24, 2005. See, FCC Public Notice DA 05-762 in WC Docket No. 05-75.

3/25. The Federal Communications Commission (FCC) released an order [6 pages in PDF] in its proceeding titled "In the Matter of Rules and Regulations Implementing the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991". This order amends the FCC's CAN-SPAM Act rules to reflect changes in the Federal Trade Commission's (FTC) rules. The proceeding is CG Docket Nos. 04-53 and 02-278.

3/25. The Copyright Office published a notice in the Federal Register announcing the voluntary negotiation period for the purpose of determining the royalty fees for the retransmission of digital over the air television broadcast signals by satellite carriers under the statutory license. The voluntary negotiation period commences on March 25, 2005 and concludes on April 25, 2005. Voluntary agreements must be submitted by April 25, 2005. See, Federal Register, March 25, 2005, Vol. 70, No. 57, at Pages 15368 - 15369.

3/25. The National Institute of Standards and Technology (NIST) released Special Publication 800-66 [huge PDF file] titled "An Introductory Resource Guide for Implementing the Health Insurance Portability and Accountability Act (HIPAA) Security Rule". SP 800-66 identifies NIST resources relevant to the specific security standards included in the HIPAA Security Rule, and provides implementation examples for each.

3/23. The Federal Communications Commission (FCC) released a report titled "FCC Report to Congress on the Deployment of E-911 Phase II Services by Tier III Service Providers".

3/24. Computer Associates International, Inc. (CAI) and Quest Software Inc. announced that they have settled a lawsuit regarding intellectual property rights in the development of database administration products. See, CAI release and Quest release.

3/23. Ericsson filed lawsuits in the courts of European nations against Sendo alleging infringement of its patents pertaining to GSM and GPRS technologies. See, Ericsson release. Sendo then complained to the European Competition Commission regarding Ericsson's patent licensing fees. In 2002, Sendo filed a complaint [27 pages in PDF] in U.S. District Court in Texas against Microsoft. It made allegations about a Microsoft "Secret Plan" to misappropriate its trade secrets. See, story titled "Sendo Sues Microsoft" in TLJ Daily E-Mail Alert No. 574, December 24, 2002. Microsoft and Sendo announced a secret settlement on September 13, 2004.

3/22. Mark Cooper wrote a paper [79 pages in PDF] titled "Time For Recording Industry To Face The Music: The Political, Social And Economic Benefits Of Peer-To-Peer Communications Networks". Cooper is, among other things, a fellow at Stanford University's Center on Internet and Society. He wrote the paper on behalf of several groups.

3/23. A trial jury of the Superior Court for the State of California, County of Santa Clara, returned a verdict in favor of Lexar Media on its theft of trade secrets and breach of fiduciary duty claims against Toshiba. The case involves flash memory technology.

The jury awarded Lexar $380 Million in damages. Lexar's claim for unfair competition, under California Business and Professions Code Section 17200, will be tried by the Court. See, Lexar release.

Lexar filed its complaint on November 5, 2002. See, Lexar's release of November 5, 2002.

This case is Lexar Media, Inc. v. Toshiba Corporation, Toshiba America Inc., Toshiba America Electronic Components, Inc., No. CV-812458. Lexar is represented by Matthew Powers of the Redwood Shores office of the law firm of Weil Gotshal & Manges.

There is also a pending civil action in U.S. District Court (NDCal) involving patent related claims. That action is Toshiba Corporation v. Lexar Media, Inc., D.C. No. C02 05273 (RS).

The House will not meet. It will return from its Spring recess at 2:00 PM on Tuesday, April 5. See, House calendar.

The Senate will not meet. It will return from its Spring recess at 2:00 PM on Monday, April 4. See, Senate calendar.

RESCHEDULED FROM MARCH 16. 12:30 PM. The Federal Communications Bar Association (FCBA) will host a luncheon. The speaker will be Federal Communications Commission (FCC) Commissioner Michael Copps. See, registration form [PDF]. The deadline for reservations and cancellations is March 24 at 5:00 PM. Prices range from $35 to $65. Location: J.W. Marriott Hotel, 1331 Pennsylvania Ave., NW, Lower Level.

The Supreme Court will hear oral argument in MGM v. Grokster. See, March calendar [PDF].

The Supreme Court will hear oral argument in the Brand X case. See, March calendar [PDF].

10:00 AM - 1:00 PM. The Federal Communications Commission's (FCC) Network Reliability and Interoperability Council (NRIC) will meet. See, FCC notice [PDF] and notice in the Federal Register, March 1, 2005, Vol. 70, No. 39, at Page 9951. Location: FCC, Room TW-305, 445 12th St., SW.

Day one of a four day conference of the American Bar Association's Section on Antitrust. See, agenda [PDF]. Location: JW Marriott Hotel and Willard Hotel.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the progress made by the states in implementing E911 solutions for multi-line telephone systems (MLTSs). See, notice in the Federal Register, January 13, 2005, Vol. 70, No. 9, at Pages 2405 - 2406.

11:00 AM. Lydia Parnes, acting Director of the Federal Trade Commission's (FTC) Bureau of Consumer Protection, will hold a news conference to announce actions targeting deceptive and misleading debt related services. For more information, call 202-326-2180. The FTC notice adds that "Reporters unable to attend the event may call in. The call-in information is as follows:
  Dial-in Number: 1-800-377-4562
  Confirmation Number: 40068804
  Chairperson: Bruce Jennings"
Location: FTC, Room 432, 600 Pennsylvania Ave., NW.

12:00 PM. The Cato Institute will host a panel discussion titled "The Case for CAFTA: Consolidating Central America’s Freedom Revolution". The speakers will be Daniel Griswold and Daniel Ikenson of the Cato's Center for Trade Policy Studies. See, notice and registration page. Lunch will be served. Location: Room B-354, Rayburn Building, Capitol Hill.

Day two of a four day conference of the American Bar Association's Section on Antitrust. See, agenda [PDF]. Location: JW Marriott Hotel and Willard Hotel.

Day one of a two day conference hosted by the National Institute of Standards and Technology (NIST), the Department of Homeland Security (DHS), and other entities titled "Workshop on Biometrics and E-Authentication Over Open Networks". See, NIST notice and conference web site. Location: NIST, Gaithersburg, MD.

Day one of a two day conference hosted by Isen.com titled "F2C: Freedom to Connect". Prices ranges from $250 to $350. See, conference web site. Location: AFI Silver Theatre and Cultural Center, 8633 Colesville Road, Silver Spring, Maryland.

Deadline to submit to the Federal Communications Commission (FCC) petitions to deny Nextel's and Sprint's joint applications for FCC approval of the transfer of control to Sprint of the licenses and authorizations held both by Nextel. That is, this is a merger review proceeding. See, FCC Public Notice [7 pages in PDF], No. DA 05-502, in WT Docket No. 05-63. On December 15, 2004, the two companies announced a "definitive agreement for a merger of equals". See, Nextel release and release.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking regarding changes to patent and trademark fees. See, notice in the Federal Register, February 28, 2005, Vol. 70, No. 38, at Pages 9570-9573.

9:30 AM - 3:30 PM. The Federal Communications Commission (FCC) will hold an orientation session for the new Integrated Spectrum Auction System (ISAS). See, FCC notice [PDF]. Preregistration is requested; call 888 225-5322. Location: FCC, 445 12th Street, SW.

TIME? The Advisory Committee for the Congressional Internet Caucus will host a panel discussion titled "McCain-Feingold in Cyberspace: How Much Should Bloggers and the Internet Be Regulated?". See, notice. RSVPs to rsvp at netcaucus dot org or 202 638-4370. Location?.

Day two of a two day conference hosted by the National Institute of Standards and Technology (NIST), the Department of Homeland Security (DHS), and other entities titled "Workshop on Biometrics and E-Authentication Over Open Networks". See, NIST notice and conference web site. Location: NIST, Gaithersburg, MD.

Day two of a two day conference hosted by Isen.com titled "F2C: Freedom to Connect". Prices ranges from $250 to $350. See, conference web site. Location: AFI Silver Theatre and Cultural Center, 8633 Colesville Road, Silver Spring, Maryland.

Day three of a four day conference of the American Bar Association's Section on Antitrust. See, agenda [PDF]. Location: JW Marriott Hotel and Willard Hotel.

Deadline to submit comments to the Office of the U.S. Trade Representative's (USTR) Trade Policy Staff Committee on the scope of the environmental review of the multilateral negotiations of the Doha Development Agenda (DDA) conducted under the auspices of the World Trade Organization (WTO). The deadline to submit comments is March 31, 2005. See, notice in the Federal Register, January 14, 2005, Vol. 70, No.10, at Pages 2695 - 2696.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding TSA Stores, Inc.'s Petition for Declaratory Ruling to preempt a provision of the statutes of the state of Florida as applied to interstate telephone calls. This is CG Docket No. 02-278, which pertains to rules implementing the Telephone Consumer Protection Act of 1991 (TCPA). See, notice in the Federal Register, March 1, 2005, Vol. 70, No. 39, at Pages 9875-9876.

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Practice Committee will host a luncheon. The topic will be "Intercarrier Compensation". The speakers will be Diane Cornell (CTIA), Charles McKee (Sprint), James Ramsey (National Association of Regulatory Utility Commissioners), and Gerry Duffy (Alliance). The price to attend is $15. Send RSVP's and/or cancellations to Wendy Parish at wendy@fcba.org by 5:00 PM on Wednesday, March 30. For more information, contact Adam Krinsky at akrinsky at wbklaw dot com. Location: 6th Floor, Sidley Austin, 1501 K Street, NW.

Day four of a four day conference of the American Bar Association's Section on Antitrust. See, agenda [PDF]. Location: JW Marriott Hotel and Willard Hotel.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Report and Order and Further Notice of Proposed Rulemaking (FNPRM) [54 pages in PDF] regarding the children's programming obligations of digital television broadcasters. This item is FCC 04-221 in MM Docket 00-167. 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.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to BellSouth's petition for pricing flexibility for switched access services. See, FCC Public Notice DA 05-740 in WC Docket No. 05-148.

The Senate will return from its Spring recess. See, Senate calendar.

The American Bar Association's Section on Public Utility, Communications and Transportation Law will host a one day conference. At 10:45 AM there will be a panel titled "Voice Over Internet: Molding a Regulatory Structure from Legacy Regulations". The scheduled speakers include William Banks Wilhelm (counsel for Vonage), Chris Libertelli, and Keith Epstein (SBC). At 3:15 PM Sen. Larry Craig (R-ID) is scheduled to speak. See, agenda [PDF]. Location: PEPCO Holdings Conference Center, 701 9th Street, NW.

11:00 AM - 12:00 NOON. The Advisory Committee for the 2007 World Radiocommunication Conference will meet. Location: FCC, Room TW-C305 (Commission Meeting Room), 445 12th St., SW.

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