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May 25, 2005, 9:00 AM ET, Alert No. 1,142.
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FTC Announces Effort to Educate ISPs About Spam Zombies

5/24. The Federal Trade Commission (FTC) issued a release that announces and describes a program titled "Operation Spam Zombies". The FTC describes this as "an international campaign to educate Internet Service Providers and other Internet connectivity providers about hijacked, or ``zombie´´ computers that spammers use to flood in-boxes here and abroad."

The release states that the "FTC, Department of Commerce, Department of Homeland Security and 33 agencies from Albania, Argentina, Australia, Belgium, Bulgaria, Canada, Colombia, Cyprus, Denmark, Germany, Greece, Ireland, Japan, Korea, Lithuania, Malaysia, Netherlands, Norway, Panama, Peru, Poland, Spain, Switzerland, Taiwan, and the United Kingdom have joined in this project."

The participating government entities "will send letters to more than 3,000 ISPs around the world, urging them to employ protective measures to prevent their customers’ computers from being hijacked by spammers."

The FTC did not announce or threaten any enforcement actions, or initiate any rule making proceeding. See also, the FTC's web page for "Operation Spam Zombies".

House Approves Business Checking Freedom Act

5/24. The House approved HR 1224, the "Business Checking Freedom Act of 2005", by a vote of 424-1. See, Roll Call No. 206.

This bill amends the Federal Reserve Act, the Home Owners' Loan Act, and the Federal Deposit Insurance Act to repeal the prohibition against the payment of interest on demand deposits. This bill also allows the Federal Reserve to pay interest on reserves that banks keep within the Federal Reserve system.

Rep. Sue Kelly (R-NY) and others introduced this bill on March 10, 2005. The House Financial Services Committee approved the bill on April 27. See also, House Report No. 109-81.

Rep. Kelly stated in the House on May 23 that "for the fifth time in three Congresses, we are here to pass legislation to bring our banking system into the 21st century. Five times this House has passed this legislation to help our small businesses, only for it to fall in the other body."

House Approves Two Spyware Bills

5/23. The House approved HR 744, the "Internet Spyware (I-SPY) Prevention Act of 2005", by a vote of 395-1. See, Roll Call No. 200. The House also approved HR 29, the "Securely Protect Yourself Against Cyber Trespass Act", by a vote of 393-4. See, Roll Call No. 201. The Senate has yet to approve either bill.

University Publishers Accuse Google of Systematic Infringement of Copyright on a Massive Scale

5/20. The Association of American University Presses (AAUP), a group that represents 125 non-profit scholarly publishers, wrote a letter [PDF] to Google asserting that its plan to digitize books appears to involve systematic infringement of copyright on a massive scale.

On December 14, 2004, Google announced that it "is working with the libraries of Harvard, Stanford, the University of Michigan, and the University of Oxford as well as The New York Public Library to digitally scan books from their collections so that users worldwide can search them in Google." See, Google release. See also, Oxford release titled "Google checks out Bodleian Library books".

The Google release describes a program identified as "Google Print". The release adds that "Users searching with Google will see links in their search results page when there are books relevant to their query. Clicking on a title delivers a Google Print page where users can browse the full text of public domain works and brief excerpts and/or bibliographic data of copyrighted material. Library content will be displayed in keeping with copyright law."

The AAUP letter states that Google has programs titled "Google Print for Publishers" and "Google Print for Libraries", and that the later "appears to involve systematic infringement of copyright on a massive scale".

"Google asserts that it can make these copies without seeking permission as a fair use under Section 107 of the Copyright Act, and Google plans to give copies of those digitized works to the participating libraries."

"The idea that once this gigantic digitization project has been completed anyone with a computer and internet access will be able to use Google to search the collections of these libraries -- including the public domain material from the New York Public Library and the Bodleian Library at Oxford -- is enormously seductive. However, in our view it is built on a fundamental, broad-sweeping violation of the Copyright Act, and this large-scale infringement has the potential for serious damage to the members of AAUP.

The AAUP letter goes on to state that its members rely upon revenue from "the sale and licensing of their publications". It adds that "copyright plays an utterly fundamental role in establishing the legal basis on which their business rests".

The AAUP letter also propounds fifteen written interrogatories, many with multiple parts, to be answered by Google. The AAUP set a deadline for responses of June 30, 2005.

These questions provide some indication of the AAUP underlying allegation. It asserts that Google will scan, digitize and index books held by the participating libraries. Some of these books and other materials remain under copyright protection. Google will enable its users to search these indices. It will not however make available to the user the full text of the protected works. It will only produce a "snippet". There is no dissemination of the full texts to Google users to complain about. Rather, the AAUP is concerned about the acts of copyright inherent in Google's scanning, and databasing of copyrighted books.

However, the AAUP is also concerned about the size of a "snipet". It is also concerned that in the future Google may make available to its users the full text of copyrighted works. It is also concerned about Google's plans to give participating libraries full copies of the works that it has scanned; it is concerned that they will in turn make these available to their users.

The AAUP has raised a legal objection to digitizing books. Others have articulated cultural objections. For example, in February of this year, Jean-Noel Jeanneney, President of the Bibliothèque Nationale de France (BNF), complained that Google's plans are too anglophone. Similarly, in April of 2000, James Billington, the head of the Library of Congress, denigrated the digitization of books.

He said that "So far, the Internet seems to be largely amplifying the worst features of television's  preoccupation with sex and violence, semi-literate chatter, shortened attention spans, and near-total subservience to commercial marketing." He added that books made of bound paper, but not digitized books on the internet, "inspire a certain presumption of reverence". See, story titled "Library of Congress Will Not Digitize Books", April 15, 2000.

Most of the AAUP's members are affiliated with universities. Google's plan to digitize books, and the response that it has provoked from the AAUP, demonstrate a reversal of traditional roles in copyright debates. Typically, academic groups argue for weaker copyright laws, and expanded exemptions for educational and scholarly uses. And typically, private sector companies argue for greater copyright protection. In contrast, in the present dispute, it is the academic entities that argue for copyright protection, and a corporation that stands on the side of weak protection.

Perhaps the AAUP's letter is evidence for the proposition that academic groups are proponents of exceptions and limitations on copyright protection for educational and scholarly purposes, but only when it is education and scholarly groups that are the economic beneficiaries of these exceptions and limitations.

And finally, Google and others frequently promote Google's digitization project by stating that it will make available the great books of the famous Bodleian Library at Oxford University. Perhaps, one might also recollect the historical origin of this august library. It was founded late in the reign of Queen Elizabeth I by Thomas Bodley. He acquired the core collection of valuable books from Robert Devereaux (aka Essex), who stole it from the library of the Bishop of Faro in a pirate raid that also including the plundering of the port of Cadiz, Spain. In other words, the Bodleian Library was founded upon piracy. Elizabeth later chopped off Essex's head, not for stealing books, but for leading a rebellion against her.

People and Appointments

5/24. President Bush announced his intent to nominate Timothy Flanigan to be Deputy Attorney General, the number two position in the Department of Justice (DOJ). He is currently SVP and General Counsel of Tyco International., the company previously run by Dennis Kozlowski. Flanigan previously worked for President Bush as Deputy Assistant to the President and Deputy Counsel. That is, he was an assistant to then White House Counsel, Alberto Gonzales, who is now the Attorney General. If confirmed by the Senate, Flanigan would once again be an assistant to Gonzales. During the administration of the elder President Bush, Flanigan worked in the DOJ's Office of Legal Counsel (OLC), including briefly as the Assistant Attorney General in charge of the OLC. He has been involved in selecting judicial nominees, and in the political contests over their confirmations, including that of Justice Clarence Thomas. President Bush will likely make at least one appointment to the Supreme Court this summer. Flanigan would be able to provide leadership of DOJ efforts to win confirmation of any nominees. But first, the process of Senate confirmation of Flanigan could be eventful. Flanigan has also worked for the law firm of White & Case. See, White House release.

Kathie Olsen

5/24. President Bush announced his intent to nominate Kathie Olsen (at right) to be Deputy Director of the National Science Foundation (NSF). She is currently Associate Director of Science in the President's Office of Science and Technology Policy (OSTP). She was previously Chief Scientist at the National Aeronautics and Space Administration (NASA). See, White House release.

5/24. President Bush announced his intent to nominate William Alan Jeffrey to be Director of the National Institute of Standards and Technology (NIST). He is currently Senior Director for Homeland and National Security and Assistant Director for Space and Aeronautics in the President's Office of Science and Technology Policy (OSTP). That is, he works for John Marburger. Previously, he was Deputy Director of the Department of Defense's (DOD) Defense Advanced Research Projects Office Agency's (DARPA) Advanced Technology Office (ATO). The ATO works on many communications and information technology related projects, including Next Generation Communications (XG). See, White House release.

Washington Tech Calendar
New items are highlighted in red.
Wednesday, May 25

The House will meet at 10:00 AM for legislative business. It will begin consideration of HR 1815, the "National Defense Authorization Act FY 2006". See, Republican Whip Notice.

8:15 AM. The ABA's Committee on Law & National Security will host a panel discussion titled "PATRIOT Debates: Experts Debate the Patriot Act". For more information, contact Holly McMahon at 202 662-1035 Location: Holeman Lounge, National Press Club, 529 14th St. NW, 13th Floor.

9:30 AM. The Senate Judiciary Committee has scheduled an executive business meeting. See, notice. The SJC frequently cancels meetings without notice. The SJC rarely follows its agenda. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

9:30 AM. The Senate Homeland Security and Governmental Affairs Committee will hold a hearings titled "How Counterfeit Goods Provide Easy Cash for Criminals and Terrorists". See, notice. Location: Room 562, Dirksen Building.

10:00 AM. The Senate Banking Committee will hold a hearing on pending nominations, including that of Ben Bernanke to be a Member of the President's Council of Economic Advisers. See, notice. Location: Room 538, Dirksen Building.

12:00 NOON. The Federal Communications Bar Association's (FCBA) State and Local Practice Committee will host a brown bag seminar titled "Mergers and Consolidations in the Telecommunications Industry and their Impact on Competition". The speakers will be Robert Nelson (Commissioner of the Michigan Public Service Commission and Chairman of NARUC's Committee on Communications), Heather Gold (SVP of XO Communications), and Gary Phillips (SBC Communications). RSVP to Enrico (Erick) Soriano at esoriano at fw-law dot com. For more information, contact Enrico Soriano, J.G. Harrington at jharringto at dlalaw dot com, or Brad Ramsay at jramsay at naruc dot org. Location: Fleischman & Walsh, 1919 Pennsylvania Ave., NW, Sixth Floor.

2:30 PM. The Senate Judiciary Committee's Intellectual Property Subcommittee has scheduled a hearing titled "Piracy of Intellectual Property". See, notice. The SJC frequently cancels meetings without notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

Thursday, May 26

The House will meet at 10:00 AM for legislative business. It will continue its consideration of HR 1815, the "National Defense Authorization Act FY 2006". See, Republican Whip Notice.

9:30 AM. The House Judiciary Committee's (HJC) Subcommittee on Crime, Terrorism, and Homeland Security will hold another in its long series of oversight hearings on the USA Patriot Act (PA). This hearing is titled "Implementation of the USA PATRIOT Act: Sections 505 and 804". Section 505 of the PA pertains to national security letters. Section 804 of the PA pertains to jurisdiction over crimes committed at U.S. facilities abroad, and material witness provisions of the Criminal Code. The hearing will be webcast by the HJC. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

9:30 AM. The Senate Judiciary Committee has scheduled an executive business meeting. See, notice. The SJC frequently cancels meetings without notice. The SJC rarely follows its agenda. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

11:30 AM. The House Commerce Committee's (HCC) Subcommittee on on Telecommunications and the Internet will hold a hearing on its discussion draft of HR __, the "DTV Transition Act of 2005". This hearing will be webcast by the HCC. See, notice. Press contact: Larry Neal at 202 225-5735. Location: Room 2322, Rayburn Building.

2:00 PM. The Senate Appropriations Committee's Subcommittee on Commerce, Justice, State, and the Judiciary will hold a hearing on the proposed budget for FY 2006 for the Department of Commerce. Secretary of Commerce Carlos Gutierrez will testify. See, notice. Location: Room S-146, Capitol Building.

2:30 PM. The Senate Homeland Security and Governmental Affairs Committee's Subcommittee on Federal Financial Management, Government Information, and International Security will hold a hearing titled "An Assessment of Federal Funding for Private Research and Development". The witnesses will be Robin Nazzaro (Government Accountability Office), Brian Reidl (Heritage Foundation), and Charles Wessner (The National Academies). See, notice. Location: Room 562, Dirksen Building.

Friday, May 27

The House may meet at 10:00 AM for legislative business. It would continue its consideration of HR 1815, the "National Defense Authorization Act FY 2006". See, Republican Whip Notice.

Deadline to submit comments to the Bureau of Industry and Security (BIS) in response to its notice in the Federal Register pertaining to deemed exports. The BIS seeks comments regarding the report [64 pages in PDF] written by the Department of Commerce's (DOC) Office of Inspector General (OIG) titled "Deemed Export Controls May Not Stop the Transfer of Sensitive Technology to Foreign Nationals in the U.S.". See, Federal Register, March 28, 2005, Vol. 70, No. 58, at Pages 15607 - 15609.

Deadline to submit comments to the Copyright Office in response to its notice of proposed rulemaking (NPRM) regarding requiring eligible digital audio services availing themselves of the statutory licenses set forth in 17 U.S.C. §§ 112 and 114 to report their usage of sound recordings. See, notice in the Federal Register, April 27, 2005, Vol. 70, No. 80, at Pages 21704-21711.

Monday, May 30

Memorial Day.

The House will not meet on Monday, May 30 through Friday, June 3. See, House calendar.

The Senate will not meet on Monday, May 30 through Friday, June 3. See, Senate calendar.

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

Wednesday, June 1

Day one of a two day conference titled "Broadband Policy Summit 2005: A New Leadership Blueprint" hosted by Pike & Fischer. See, notice. Location: Willard InterContinental Hotel.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding two modes of operation -- Galois Counter Mode (GCM) or the Carter-Wegman + Counter (CWC) -- for use with the Advanced Encryption Standard (AES). See, NIST web page regarding modes.

More News

5/24. The Government Accountability Office (GAO) released a report titled "Internet Protocol Version 6: Federal Agencies Need to Plan for Transition and Manage Security Risks".

5/24. The House Judiciary Committee's Subcommittee on the Constitution and Subcommittee on Commercial and Administrative Law held a joint hearing titled "Economic Development and the Dormant Commerce Clause: the Lessons of Cuno v. Daimler Chrysler and Its Effect on State Taxation Affecting Interstate Commerce". See, prepared testimony of Bruce Johnson (Ohio Lieutenant Governor), prepared testimony [PDF] of Michele Kuhrt (Director of Taxes and Financial Administration, Lincoln Electric), prepared testimony [PDF] of Walter Hellerstein (University of Georgia School of Law), and prepared testimony [PDF] of Edward Zelinsky (Cardozo School of Law).

5/24. Reuters announced in a release that "it has received clearance from the European Commission for its pending acquisition of Moneyline Telerate, a global provider of real-time financial information, and it anticipates it will shortly receive early termination of the mandatory waiting period under United States antitrust laws. All other regulatory clearances necessary to complete the acquisition have been granted." The U.S. Department of Justice's (DOJ) Antitrust Division announced in a release that Reuters and Moneyline Telerate "will restructure Reuters' planned acquisition of Telerate in order to alleviate the Department's antitrust concerns. Under the restructuring, Telerate will license to HyperFeed Technologies Inc. its TRS software platform, which is used by companies to distribute and analyze a broad range of financial information, and Active8, which users need to interact with the TRS software platform."

5/24. Jon Dudas, the head of the U.S. Patent and Trademark Office (USPTO), gave a speech to 6th grade students at an elementary school in the state of Utah. He said that "Copying and downloading Star Wars video games and movies is not okay -- it's breaking the law because it is stealing someone else's property." See, USPTO release.

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