|NTIA Rebuffs UN Efforts to Gain Control Over
6/30. The National Telecommunications
and Information Administration (NTIA) released a
document titled "U.S. Principles on the Internet’s Domain Name and
Addressing System". With this document, the US restates that it will
retain control of the domain name system (DNS).
The document does not reference the United Nation's (UN)
Working Group on Internet Governance (WGIG), or
forthcoming event titled "World Summit on the Information Society", to be held
in Tunisia in November. The document does not even reference the UN.
However, the WGIG has announced that it will release a report on July 18,
2005. The UN will likely propose to limit US authority over the DNS. The UN has
no authority or ability to take control of the DNS away from the US.
The WGIG has published in its web site comments that it has received
regarding internet governance. For example, Syria submitted a
[PDF], and Saudi Arabia submitted a
[PDF], proposing to shift internet governance from the US to a UN body.
In contrast, the Internet Governance Task Force of Japan submitted a
[PDF] to the WGIG in which it argued that "in principle there isn't need for an
additional arrangement nor body. Whenever we have had issues regarding the Internet,
individuals or organizations that thought it necessary to address those issues have been
able to do so voluntarily and cooperatively. To date, collectively we have been able to
solve those issues. Such dynamic and open processes enable the right people to be in the
right place to address the issues that concern and involve them at the right time. This is
how the existing ``distributed governance architecture´´ was made up, which has worked
very well so far, and will work well in the future if and when any new issues emerge."
The NTIA document is diplomatic. It does not state, for example, that the Bush
administration does not want Bashar Assad and other corrupt and technophobic
dictators to share control of the DNS or internet governance.
Michael Gallagher (at left), the head of the NTIA, gave a speech on June
30 at a Wireless Communications Association International (WCAI) conference in which he
discussed, among other topics, the NTIA document. See,
This presentation states that "The Bush Administration intends
to preserve the security and stability of the Internet's domain name system (DNS),
continues to support ICANN and will work with the international community to find
appropriate ways to address Internet governance issues."
The Information Technology Association of
America (ITAA) submitted a
[PDF] to the UN's WGIG in which it argued against creating a new internet governance
body. Also, after the NTIA released its document, ITAA President Harris Miller
promptly stated in a
release that "The Bush Administration has gotten the issues of Internet
governance exactly right".
The four paragraph NTIA document provides, in full, as follows: "The United
States Government intends to preserve the security and stability of the Internet’s Domain
Name and Addressing System (DNS). Given the Internet's importance to the world’s economy,
it is essential that the underlying DNS of the Internet remain stable and secure. As such,
the United States is committed to taking no action that would have the potential to
adversely impact the effective and efficient operation of the DNS and will therefore
maintain its historic role in authorizing changes or modifications to the authoritative
root zone file."
"Governments have legitimate interest in the management of their country code
top level domains (ccTLD). The United States recognizes that governments have
legitimate public policy and sovereignty concerns with respect to the management
of their ccTLD. As such, the United States is committed to working with the
international community to address these concerns, bearing in mind the
fundamental need to ensure stability and security of the Internet’s DNS."
"ICANN is the appropriate technical manager of the Internet DNS. The United
States continues to support the ongoing work of ICANN as the technical manager
of the DNS and related technical operations and recognizes the progress it has
made to date. The United States will continue to provide oversight so that ICANN
maintains its focus and meets its core technical mission."
"Dialogue related to Internet governance should continue in relevant multiple
fora. Given the breadth of topics potentially encompassed under the rubric of
Internet governance there is no one venue to appropriately address the subject
in its entirety. While the United States recognizes that the current Internet
system is working, we encourage an ongoing dialogue with all stakeholders around
the world in the various fora as a way to facilitate discussion and to advance
our shared interest in the ongoing robustness and dynamism of the Internet. In
these fora, the United States will continue to support market-based approaches
and private sector leadership in Internet development broadly."
The Internet Corporation for Assigned Names
and Numbers (ICANN) will meet in Luxembourg on July 11-15, 2005. See,
notice and agenda.
|DOJ Announces Operations Against Online
Distributors of Pirated Works
6/30. The Department of Justice (DOJ)
announced in a
release that "the FBI and law enforcement from 10 other countries conducted
over 90 searches worldwide as part of ``Operation Site Down,´´ designed to
disrupt and dismantle many of the leading criminal organizations that illegally
distribute and trade in copyrighted software, movies, music, and games on the
In addition, Attorney General Alberto Gonzales gave a
speech. He stated that "Operation Site Down is one of the largest
international law enforcement actions to date dedicated to stopping intellectual
property theft on the Internet. Our objective in this operation was to find and
dismantle large-scale criminal enterprises that illegally obtain, copy,
distribute, and trade in copyrighted software, music, movies, and video games."
He stated that this operation has "dismantled more than eight major online
distribution servers for pirated works -- a distribution network that provides
the vast majority of the illegal digital content now available online. In the
United States, four individuals have been arrested and charged with criminal
copyright infringement violations. 25 U.S. Attorney’s Offices and 32 FBI field
offices worked to obtain and execute the search warrants."
Gonzales added that "By penetrating this illegal world of high-technology and
intellectual-property theft, we have shown that law enforcement can find and
prosecute those who try to use the Internet to create piracy networks beyond the
reach of law enforcement."
|2nd Circuit Rules on Willfulness in Software
Copyright Infringement Case
6/28. The U.S. Court of Appeals
(2ndCir) issued its
opinion [PDF] in
Island Software v. Microsoft, a software copyright infringement
case involving the issue of the standard of proof of willfulness of infringement
at the summary judgment stage. Under 17 U.S.C. § 504, willfulness is relevant in
Island Software is a >software retailer and computer repairer located in
Coram, New York. In 2000 it sold counterfeit copies of Windows 95, Windows 98, and
Office 2000 Professional to a private investigator employed by Microsoft.
Microsoft then sent Island Software a cease and desist letter, in which
it also threatened litigation, but offered to settle for $15,000, and Island
Software's identification of the supplier of the counterfeit items.
Rather than settle, Island Software filed a
complaint in U.S. District Court (EDNY) against Microsoft seeking a declaratory
judgment of noninfringement. Microsoft filed a counterclaim in which it plead
copyright infringement in violation of 17 U.S.C. § 501. Microsoft also sought
enhancement of damages based upon willful infringement.
Microsoft also plead trademark infringement under the Lanham Act, 15 U.S.C. §
1114 et seq., false designation of origin under the Lanham Act, 15 U.S.C. § 1125
et seq., and unfair competition under New York common law. However, these are
not the subject of the present appeal.
Island Software lost. The District Court on summary judgment awarded Microsoft
$240,000 in statutory damages, $30,000 for each of
the eight copyrighted works at issue, based upon its finding of willfulness.
Island Software had submitted an affidavit in which the affiant denied actual
knowledge of the counterfeiting. However, the District Court found that there
was constructive knowledge and reckless disregard, based upon the prices that it
paid to its distributor, its failure to inspect the products that it sold, and a
prior customer complaint that he had been sold a counterfeit product.
The Court of Appeals affirmed the District Court
judgment as to copyright infringement, but vacated the award of damages.
The Court of Appeals held that because of the
affidavit, there was a genuine issue of material fact, and it was error to rule
on the issue of willfulness at the summary judgment stage.
The Court of Appeals wrote that "In the absence of evidence conclusively
demonstrating actual, rather than constructive, knowledge of infringement, we
conclude that summary judgment on the question of willfulness was
However, the Court also added that "the evidence
of willfulness, in the instant case, is strong." Microsoft may well prevail
obtain its $240,000 damage award upon trial.
This case is Island Software and Computer Service, Inc. and Michael
Brunner v. Microsoft Corporation, U.S. Court of Appeals for the 2nd Circuit,
No. 04-0744-cv. Judge Calabresi wrote the opinion of the Court of Appeals, in which Judges
Kearse and Oakes joined.
|People and Appointments
6/30. President Bush nominated Robert Mosbacher to be President of the
Overseas Private Investment Corporation. See, White House
Bush designated Cynthia Glassman (at right) to be acting Chairman of the
Securities and Exchange Commission (SEC). She
replaces William Donaldson. President Bush has already nominated
Rep. Chris Cox (R-CA) to be an SEC Commissioner,
and will designate him the Chairman of the SEC. See, White House
6/30. President Bush nominated Rep. Chris
Cox (R-CA) to be a Commissioner of the Securities
and Exchange Commission (SEC), for a term expiring on June 5, 2009. See, White House
President Bush previously announced that he would make this nomination. See,
titled "Rep. Cox to Replace Donaldson as SEC Chairman" in TLJ Daily E-Mail
Alert No. 1,146, June 2, 2005.
6/30. President Bush nominated Robert Kimmitt to be Deputy Secretary
of the Treasury. White House
6/30. President Bush nominated Julie Myers to be Assistant Secretary of Homeland
Security for the Bureau of Immigration and Customs Enforcement. She is currently
Special Assistant to the President for Presidential Personnel. She was
previously head of enforcement at the Bureau
of Industry and Standards (BIS). Before that, she was Chief of Staff of the
Department of Justice's (DOJ) Criminal
Division. This was when
Chertoff was the Assistant Attorney General in charge of the Criminal
Division. Chertoff is now head of the Department
of Homeland Security. See, White House
6/30. President Bush nominated Michael Garcia to be the U.S.
Attorney for the Southern District of New York for the term of four years. If confirmed,
he will replace James Comey, who is now the
Deputy Attorney General at the
Department of Justice (DOJ). See, White House
6/30. President Bush nominated John Redd to be Director of the National
Counterterrorism Center at the Office of the Director of National Intelligence. See, White
|Senate Approves CAFTA
6/30. The Senate approved
S 1307, the
"Dominican Republic-Central America-United States Free Trade Agreement Implementation
Act", by a vote of 54-45. See,
Roll Call No. 170.
In addition, the House Ways
and Means Committee approved
HR 3045, the
"Dominican Republic-Central America-United States Free Trade Agreement Implementation
free trade agreement was signed by representatives of the participating
nations on August 5, 2004. See especially, sections pertaining to
Electronic Commerce [PDF], and
Intellectual Property Rights [PDF].
President Bush released a
"I appreciate the bipartisan support in the United States Senate for the CAFTA-DR
agreement, which is good for American workers, good for our farmers, and good for small
businesses. When passed, it will eliminate trade barriers immediately on 80% of US-made
goods and the rest within a few years, which will help increase sales abroad and job
creation at home. The agreement is also a strong boost for young democracies in our own
hemisphere, whose success is important for America's national security and for reducing
Robert Portman, the U.S. Trade Representative (USTR), stated in a
release that "While the momentum for CAFTA-DR is clearly building, and we're
drawing more and more support from all sides, the debate will continue when the
House returns after the July 4th recess. I look forward to working to build
towards successful passage in July."
Sen. Charles Grassley (R-IA), the Chairman of the
Senate Finance Committee,
stated in a release that "This agreement levels the playing field for U.S.
exporters. Farmers, ranchers, manufacturers, and service providers in Iowa and
nationwide will get a better trade deal in CAFTA countries than what they have
today. "Six months ago people said this agreement was a non-starter. Now a
majority of senators think it’s a no-brainer. It’s halfway to becoming the law
of the land. A strong Senate vote gives momentum for a solid House vote. It
looks like the President will have the bill on his desk this summer."
|Washington Tech Calendar
New items are highlighted in red.
|Friday, July 1
The House will not meet. It will next
meet at 2:00 PM on July 11.
The Senate will meet at 10:00 AM.
Day four of a four day conference of the
Wireless Communications Association International (WCA) titled "WCA 2005".
See, notice. Location:
Marriott Wardman Park Hotel.
Effective date of the final rule of the Department of the Treasury's (DOT)
Office of the Comptroller of the Currency (OCC), the DOT's Office of Thrift
Supervision (OTS), the Federal Reserve System, and the Federal Deposit Insurance
Corporation (FDIC) implementing § 216 of the Fair and Accurate Credit Transactions
Act of 2003, which is also known as the FACT Act. The FACT Act was
in the 108th Congress. It is now Public Law No. No. 108-159. § 216 of the FACT
Act adds a new § 628 to the Fair Credit Reporting Act (FCRA) that pertains to
protecting consumers against the risks associated with unauthorized access to
information about the consumer contained in a consumer report, such as fraud
and related crimes, including identity theft. The FCRA is codified at 15
U.S.C. § 1681 et seq. The new section is codified at 15 U.S.C. § 1681w. See,
notice in the Federal Register, December 28, 2004, Vol. 69, No. 248,
at Pages 77610 - 77621. See also, story titled "Financial Regulators Publish
Notice of Final Rule Implementing Section 216 of FACT Act" in TLJ Daily E-Mail
Alert No. 1046, December 29, 2004.
Deadline to submit comments to the Antitrust
Modernization Commission (AMC) in response to the AMC's request for public comments
regarding the Robinson-Patman Act. See,
notice in the Federal Register: May 19, 2005, Vol. 70, No. 96, at Pages
28902 - 28907.
Deadline to submit initial comments to the
Federal Communications Commission (FCC) in response
to its public notice regarding refreshing the record on issues raised in the Further
Notice of Proposed Rulemaking (FNPRM) related to carrier identification code (CIC)
conservation and the definition of "entity" as found in section 1.3 of the CIC
Assignment Guidelines. This public notice is DA 05-1154 in CC Docket No. 92-237; it
was released on April 26, 2005. See,
notice in the Federal Register, June 1, 2005, Vol. 70, No. 104, at Pages
31405 - 31406.
Deadline for states and telecommunications relay services (TRS) providers to
file with the Federal Communications Commission (FCC)
their annual consumer complaint log summaries. See, FCC
|Wednesday, July 6
10:00 AM. The U.S. Court
of Appeals (FedCir)
will hear oral argument in Sicom Systems v. Agilent Technologies, a case
regarding standing to sue for patent infringement. See, October 5, 2004
Memorandum Opinion [PDF] of the U.S. District Court (Del). This is D.C. No.
03-1171-JJF, and App. Ct. No. 05-1066. Location: U.S. Court of Appeals, LaFayette
Square, 717 Madison Place, Courtroom 201.
12:00 NOON - 2:00 PM. The DC Bar Association
will host a program titled "File Sharing and Copyright Infringement after MGM
Studios v. Grokster". The price to attend ranges from $10-$20. For more
information, contact 202-626-3463. See,
Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.
|Thursday, July 7
10:00 AM. The U.S. Court of
Appeals (FedCir) will hear oral argument in Ericsson Inc. v. Harris
Corp., No. 04-1444. Location: U.S. Court of Appeals, LaFayette Square, 717
Madison Place, Courtroom 201.
10:00 AM - 12:00 NOON. The Department of State's
(DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare
for the Americas Regional Preparatory Meeting for the World Telecommunication Development
Conference (WTDC-06) in Lima, Peru, from August 9-11, 2005. See,
notice in the Federal Register, June 22, 2005, Vol. 70, No. 119, Page
36224. Location: DOS, Room 2533A.
|Friday, July 8
10:30 AM - 12:00 NOON. The Heritage
Foundation will host a panel discussion titled "Are Bloggers and Journalists
Friends or Enemies?". The speakers will be Ed Morrissey
(Captain’s Quarters Blog), Jim Hill
(Washington Post Writers Group), and
Mark Tapscott (Heritage).
See, notice. Location:
Heritage, 214 Massachusetts Ave., NE.
12:00 NOON - 2:00 PM. The
Progress and Freedom Foundation (PFF) will
host a panel discussion titled "MGM v. Grokster: What's Next?". See,
and registration page.
Location: Room 1537, Longworth Building, Capitol Hill.
Deadline to submit initial comments to the Federal
Communications Commission (FCC) in response to its notice of second further proposed
rulemaking regarding horizontal and vertical cable ownership limits. The FCC adopted this
Second Further NPRM on May 13, 2005, and released it on May 17, 2005. This item is FCC
05-96 in MM Docket No. 92-264. See,
notice in the Federal Register, June 8, 2005, Vol. 70, No. 109, at Pages 33679 -
6/29. The Recording Industry Association of
America (RIAA) announced the filing of another round of lawsuits against
individuals in U.S. District Courts alleging copyright infringement in
connection with their alleged copying on peer to peer systems. See, RIAA
6/28. The Federal Communications Commission
(FCC) adopted, and released, an
order [pages in PDF] in its proceeding titled "In the Matter of
Telecommunications Relay Services and Speech-to-Speech Services for Individuals with
Hearing and Speech Disabilities". The order states that it "adopts interstate
TRS compensation rates for the July 1, 2005 through June 30, 2006 TRS Fund year. We adopt
separate compensation rates for traditional TRS and Internet Protocol (IP) Relay. We adopt
per-minute compensation rates as follows for this fund year: for Speech-to-Speech Service
(STS), $1.579; for traditional TRS, $1.440; for IP Relay, $1.278; and for Video Relay
Service (VRS), $6.644." (Footnotes omitted.) This item is FCC 05-135 in CC Docket
No. 98-67 and CG Docket No. 03-123.
6/28. The U.S. Court of Appeals (DCCir)
issued its divided
opinion [32 pages PDF] in APCC Services v. Sprint. The Court of
Appeals held that Chapter 5 of the Communications Act, which is codified at 47 U.S.C.
§§ 151–615b, does not create a private right of action for an owner or operator of a
payphone to recover from an interexchange carrier (IXC) the compensation for coinless
payphone calls required by a Federal Communications Commission (FCC) rules. This case
is APCC Services, Inc. v. Sprint Communications Co., No. 04-7034, appeals from the U.S.
District Court (DC), D.C. Nos. 01cv00642 and 99cv00696.
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