Tech Law Journal Daily E-Mail Alert
July 1, 2005, 9:00 AM ET, Alert No. 1,166.
Home Page | Calendar | Subscribe | Back Issues | Reference
NTIA Rebuffs UN Efforts to Gain Control Over Internet Governance

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 the UN's 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 comment [PDF], and Saudi Arabia submitted a comment [PDF], proposing to shift internet governance from the US to a UN body.

In contrast, the Internet Governance Task Force of Japan submitted a comment [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 GallagherMichael 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, presentation slides [PDF].

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 comment [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 Internet."

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 awarding damages.

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 inappropriate."

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 release and release.

Cynthia Glassman6/30. President 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 release.

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 release. President Bush previously announced that he would make this nomination. See, story 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 release.

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 Michael 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 release.

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 release.

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 House release.

Senate Approves CAFTA Implementation Bill

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 Act".

This free trade agreement was signed by representatives of the participating nations on August 5, 2004. See especially, sections pertaining to Telecommunications [PDF], Electronic Commerce [PDF], and Intellectual Property Rights [PDF].

President Bush released a statement: "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 illegal immigration."

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 HR 2622 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 notice.

Monday, July 4

Independence Day.

The House will not meet on Monday, July 4 through Friday, July 8. See, House calendar.

The Senate will not meet on Monday, July 4 through Friday, July 8. See, Senate calendar.

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

Tuesday, July 5

Deadline to submit reply comments to the Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) in response to its Public Notice [PDF] regarding the United Telecom Council (UTC) request to be the Access Broadband over Power Line (Access BPL) database manager. This is DA 05-1637, dated June 9, 2005, in ET Docket No. 04-37.

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, notice. 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, notice 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 - 33687.

More News

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 release.

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.

About Tech Law Journal

Tech Law Journal publishes a free access web site and subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year. However, there are discounts for subscribers with multiple recipients. Free one month trial subscriptions are available. Also, free subscriptions are available for journalists, federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until one month after writing. See, subscription information page.

Contact: 202-364-8882.
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998 - 2005 David Carney, dba Tech Law Journal. All rights reserved.