9/14. Sen. Arlen Specter (R-PA), Sen. Patrick Leahy (D-VT), and ten others Senators, introduced S 1699, the "Stop Counterfeiting in Manufactured Goods Act".

This is a companion bill to HR 32, also titled the "Stop Counterfeiting in Manufactured Goods Act". It was introduced on January 4, 2005, approved by the House Judiciary Committee's (HJC) Subcommittee on Crime on March 17, approved by the full HJC on April 13, and approved by the House by voice vote on May 23. See also, House Report No. 109-68, and story titled "House Approves Bill Regarding Trafficking in Counterfeit Marks" in TLJ Daily E-Mail Alert No. 1,141, May 24, 2005.

This bill amends the Criminal Code with respect to trafficking in counterfeit marks, including wrappers, boxes and stickers. The bill makes numerous changes to 18 U.S.C. § 2320, which pertains to "Trafficking in counterfeit goods or services"

The bill amends § 2320(a) to impose criminal liability upon anyone who "intentionally traffics or attempts to traffic in labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature, knowing that a counterfeit mark has been applied thereto, the use of which is likely to cause confusion, to cause mistake, or to deceive".

The bill further provides that "Any article bearing or consisting of a counterfeit mark used in committing a violation" of § 2320(a), as amended, "shall be subject to forfeiture to the United States and no property right shall exist in such property".

This bill does not address the trafficking of non-counterfeit marks, as for example, in the removal of marks from non-counterfeit goods, and the subsequent reattachment to counterfeit goods.

Sen. Specter (at right) issued a release that states that "The current loophole was created in large part by the Tenth Circuit’s opinion in United States v. Giles, 213 F.3d 1247 (10th Cir. 2000). In this case, the United States prosecuted the defendant for manufacturing and selling counterfeit Dooney & Bourke labels that third parties could later affix to generic purses.  Examining Title 18, section 2320, of the United States Code, the Tenth Circuit held that persons who sell counterfeit trademarks that are not actually attached to any “goods or services” do not violate the federal criminal trademark infringement statute."

The U.S. Court of Appeals (10thCir) issued its opinion in U.S. v. Giles on May 19, 2000. Donald R. Giles sold to an undercover FBI agent counterfeit labels that were not attached to any goods. He was prosecuted under § 2320. The Court of Appeals reversed his conviction. It wrote that "A trademark is meant to identify goods so that a customer will not be confused as to their source", but that "Giles' conduct did not confuse any consumer about the origin of goods because there were no goods involved in the transaction". The Court concluded that "Section 2320 does not clearly penalize trafficking in counterfeit labels which are unattached to any goods."

The other original cosponsors of the bill are Sen. Evan Bayh (D-IN), Sen. Sam Brownback (R-KS), Sen. Jon Cornyn (R-TX), Sen. Mike DeWine (R-OH), Sen. Russ Feingold (D-WI), Sen. Orrin Hatch (R-UT), Sen. Carl Levin (D-MI), Sen. Jack Reed (D-RI), Sen. Debbie Stabenow (D-MI) and Sen. George Voinovich (R-OH).

The U.S. Chamber of Commerce praised the Senate bill in a release.

9/16. The U.S. Court of Appeals (11thCir) issued an opinion [18 pages in PDF] in Klay v. Humana. This case is a large class action suit brought by physicians and independent physicians' associations (Leonard Klay and others) against large managed care providers (Humana and others) alleging a racketeering conspiracy by the managed care providers by systematically underpaying for health care services rendered by the plaintiffs. However, the present opinion concerns only the intellectual property rights of a non-party, the American Medical Association (AMA). The Court of Appeals held that the AMA must disclose intellectual property (IP), for free, even though it licenses it to others. The Court's discussion of the non-rivalrousness of IP may be of interest to some readers.

Introduction. The AMA has long collected survey data from physicians. It produces annual reports, which it licenses, pursuant to written contract, for a fee. Humana and the other defendants, which are some of the largest managed care providers in the US, subpoenaed the AMA, not for only its reports, but also for its underlying collection of data, which the AMA does not disclose or license. Moreover, Humana wants it for free. The AMA seeks its regular licensing fees.

The AMA charges for profit entities $13,000 per year and non-profit entities $6,500 per year for the reports. The AMA also requires its licensees to sign a written contract that the data cannot be disseminated to or used by persons other than the licensee without the consent of the AMA.

The District Court, and the Court of Appeals, concluded that Humana is entitled to all of this information for free. The Court of Appeals treated this as the compelled disclosure of intellectual property case in which Rule 45 controls. It did not specify what species of intellectual property is involved.

Neither the state of Florida, nor the 11th Circuit, is home to any major IP based industries. Hence, a relatively small portion of the case in the federal courts in Florida and the 11th Circuit involve IP issues. This opinion may reflect this lack of experience and expertise. (The three judge panel did include one member from the 9th Circuit, sitting by designation. The 9th Circuit, which includes California, hears many IP cases. However, this Judge was Arthur Alarcon, an 80 year old former state prosecutor and state court judge who has long been on senior status.)

Human subpoenaed the reports and data pursuant to Rule 45, Federal Rules of Civil Procedure. The U.S. District Court (SDFla) ordered the AMA to turn over its reports and data, without compensation. The District Court's order provided that the reports and data could not be used "for any purpose other than the prosecution or defense of this litigation." The Court of Appeals affirmed.

The Court of Appeals reasoned that this case involved IP, and that Rule 45 requires compensation for the taking of intellectual property, but the compensation in this case is nothing. The Court of Appeals offered an analysis based upon its understanding of the non-rivalrous nature of IP. In the key portion of the opinion, it cited no IP cases and no IP treatises. Rather, it relied primarily upon a non-IP case, Alabama Power Company v. FCC, 311 F.3d 1357 (11th Cir, 2002).

Alabama Power is a case involving the Federal Communications Commission's (FCC) implementation of the Pole Attachments Act. It is well known to communications lawyers. See, stories titled "11th Circuit Rules on FCC Pole Attachments Rates" in TLJ Daily E-Mail Alert No. 551, November 18, 2002, and "Supreme Court Denies Certiorari in Pole Attachments Case" in TLJ Daily E-Mail Alert No. 754, October 7, 2003.

That is, without recourse to IP law or the rationales underlying IP law, the Court concluded that IP is like telephone and power polls, and should be treated accordingly. IP lawyers drafting licensing agreements may wish to take note of this opinion when considering choice of forum and choice of law clauses.

Rule 45, FRCP. The Court of Appeals affirmed in an opinion based in part upon the wording of Rule 45.

Rule 45, at (c)(2)(B), provides, in part, that "a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena ... serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. ... Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded."

Rule 45, at (c)(3)(B), provides, in part, that "If a subpoena ... (i) requires disclosure of a trade secret or other confidential research, development, or commercial information ... the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions."

Analysis of Rule 45. The Court of Appeals provided this analysis of Rule 45.

Humana, and the other managed health care providers, sought the AMA's confidential information by subpoena. Rule 45 governs. The information sought falls within the meaning of 45(c)(3)(B)(i). Rule 45(c)(3)(B) gives the Court only two options when 45(c)(3)(B)(i) confidential information is involved: it can either quash the subpoena or order its production, subject to the party being "reasonably compensated", and subject to "specified conditions". Human meets the "substantial need" test, so an order to produce is appropriate, provided that there is reasonable compensation and conditions.

The Court then provided its analysis of what "reasonably compensated" means in the context of confidential information. The Court, relying in part on the FRCP's drafters' notes, concluded that compelled taking of intellectual property may require compensation. It discussed the example of experts, who are in the business of selling their expertise, are compelled to provide their expertise, pursuant to subpoena. Lawyers should not be able to procure expert testimony by abuse of subpoena powers.

The Court thus concluded that under Rule 45, the AMA is entitled to compensation, but that Rule 45 does not identify what the compensation should be. The Court concluded that "The question before us is the measure of compensation for a forced disclosure of confidential intellectual property."

Measuring Compensation. In short, the Court concluded that the AMA is entitled to compensation, but the compensation to which it is entitled is properly measured at zero dollars.

First, the Court, relying on the authority of the Black's Law Dictionary, wrote that "compensation is required when compliance with a subpoena causes an actual property loss. An expert witness, for example, suffers a property loss when he is forced to testify; the witness no longer has bargaining power relative to the party seeking the witness’s testimony."

The Court then turned to its opinion in Alabama Power, the pole attachments case. This case did not involve any form of intellectual property. Nor did it involve Rule 45, subpoenas, or any form of pretrial discover.

The Pole Attachments Act, which is codified at 47 U.S.C. § 224, provides that cable companies may gain access to the pole networks of power companies at rates set by the FCC. Subsection (f)(1) states that "A utility shall provide a cable television system or any telecommunications carrier with nondiscriminatory access to any pole, duct, conduit, or right-of-way owned or controlled by it."

The power companies argued that this constitutes a taking under the Fifth Amendment of the Constitution, which provides, "nor shall private property be taken for public use without just compensation". The Court of Appeals issued its opinion on November 14, 2002, in which it rejected the taking clause argument.

The Court wrote in Alabama Power that "Typically, the subject of a government condemnation proceeding is ordinary property, such as land. In such a case, the "value" of the thing taken is congruent with the loss to the owner ... This is because most property is rivalrous -- its possession by one party results in a gain that precisely corresponds to the loss endured by the other party. In this case, however, the property that has been taken- space on a pole - may well lack this congruence. It may be, for practical purposes, nonrivalrous. This means that use by one entity does not necessarily diminish the use and enjoyment of others. A common example of a nonrivalrous good is national defense."

The Court wrote in the present case that "The measure of the compensation owed in a takings case depends on the nature of the property. In an ordinary takings case, one party's gain directly corresponds to another party’s loss. ... That measure is common because “most property is rivalrous -- its possession by one party results in a gain that precisely corresponds to the loss endured by the other party." (Citations to Alabama Power are omitted here and from quotation below.)

It continued "A different rule prevails for another form of property. If the property is nonrivalrous -- i.e., one party’s use of the property “does not necessarily diminish the use and enjoyment of others” -- compensation for the nonrivalrous use of the property will ordinarily be limited to the marginal cost incurred by that use. ... This limitation is proper even if the taking deprives the owner of the opportunity to sell the use of its property at a desired price, because the “one immutable principle in the law of just compensation ... is that the value to the taker is not to be considered, only loss to the owner is to be valued.”

The Court wrote that "Like the law of takings, Rule 45(c)(3)(B) governs forced disclosures of both rivalrous and nonrivalrous property. Expert testimony is a form of rivalrous property, because the measure of its loss to the owner is the same as the gain to its taker. Confidential information is a form of nonrivalrous property, and that fact affects the measure of compensation for its taking."

Finally, "The gain to the party seeking confidential information through a subpoena is not the measure of compensation reasonably owed to the owner of that information. The measure is the loss to the owner of the property. If the enforcement of a subpoena under Rule 45(c)(3)(B) causes no loss, then the amount of compensation reasonably owed will be zero. If the loss to the owner of the information is substantial, then so will be the amount of compensation even if the gain to the taker of the information is slight."

Then, based upon the foregoing, the Court concluded that the AMA suffers no "loss in the commercial value of its property", and hence, is entitled to zero compensation.

The Court of Appeals affirmed the District Court. The AMA must disclose. The AMA is entitled to no payment.

Commentary. This is a case involving the intersection of pretrial procedure rules and intellectual property rights. Unfortunately, the Court does not identity what kind of intellectual property is involved. Nor does its recitation of the facts inform readers as to what its conclusion might have been. It refers to the subject matter in various terms, including "confidential information" and "intellectual property". But, it does not state whether it, or any part, is subject to protection under federal copyright law, state trade secret law (or what state's law trade secret law would apply), or as a collection of data. There is no discussion of protection under contract law or the law of misappropriation. And, the Court makes no reference to its opinion in Warren Publishing, Inc. v. Microdos Data Corp., 115 F.3d 1509 (11th Cir. 1997) or to the Supreme Court opinion in the Feist case. Identifying the character of the property is relevant to the subject of loss to the owner.

The Court concluded that under the either the takings clause or Rule 45 the measure of compensation is the loss to the owner of the value of his property, and that there is no loss in the value of his property for the taking of non-rivalrous property, including intellectual property.

The rivalrousness argument warrants further analysis. The Court concludes, without much discussion, that intellectual property is non-rivalrous. The Court notes that nonrivalrous means that one party's use of the property does not necessarily diminish the use and enjoyment of others.

Many scholars make the same argument. For example, Lawrence Lessig wrote in The Future of Ideas (at page 57) that "Knowledge ... is nonrivalrous; your knowing something does not lessen the amount that I can know." (See also, pages 20-22.) As Lessig points out, the reading of Einstein's theory is non-rivalrous.

Such is also the case for other types of mass market IP products, such as music and movies.

But there is also the argument, untouched by the Court, that in the case of sophisticated collections of complex information, collected and organized at great expense, and marketed to a limited number of commercial entities for substantial compensation, that the non-rivalrous characterization is only partially applicable. One business may consume an IP product, not merely for its own enjoyment or information, but also for the purpose of gaining commercial advantage over businesses with which it competes. The value to this consuming business rests in part upon its gaining information that its competitors do not. Moreover, the price it is willing to pay may diminish even as a few others obtain the information. And, when the value to the potential consumer drops, so too does the value of property to the owner.

Assigning the label of non-rivalrous to all informational products fails to distinguish between those produced for mass consumption, and those complex products licensed to a small number (or just one) commercial consumer.

There is also the matter of risk. Normally when a producer sells a physical product on credit, its risk exposure is that the buyer will not pay. If the buyer pays in full, there is still the risk that he will seek rescission, or damages for a defective product. The exposure of the producer is usually only the value of the one product.

Risk in the case of information products is sometimes much different. A producer may license a confidential informational product to 50 buyers, but if one breaches the licensing agreement, and the information is copied on the internet by parties not bound by the agreement, the entire value of the product may be destroyed. That is, one sale can place at risk the entire future revenue stream from that product. Risk plays a role in the seller's pricing decisions, and decisions whether to sell to a particular buyer. The Court did not value the risk to which the AMA has been exposed by ordering the production of all of its data.

There is also the matter of remedies. If the owner of an information product licenses it in a market transaction, he can obtain a signed contract, including provisions regarding remedies. The Court merely ordered production, and ordered Humana not to use the information for non-litigation purposes. If Humana violates the order, the AMA has no contractual remedies. It can only pursue contempt proceedings or discovery sanctions. The Court did not value this.

Finally, there is also the matter of the plain meaning of Rule 45. The Court found that Humana had shown that it had a "substantial need" for the AMA's information. But the full phrase is "substantial need for the testimony or material that cannot be otherwise met without undue hardship". The Court ignored the phrase "cannot be otherwise met". Humana could have easily, like other market participants, paid for the information, and signed the AMA's licensing agreement.

There was a operating marketplace. The AMA collected and licensed the information. Consumers purchased it. The Court in essence compelled the licensing of the information, and replaced the marketplace as the determinant of price with its own decision as to what the price should be.

This case is Leonard Klay, et al. v. Humana, Inc., et al., U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 04-13062, an appeal from the U.S. District Court for the Southern District of Florida, D.C. No. 00-01334-MD-FAM. Judge Pryor wrote the opinion of the Court of Appeals, in which Judges Tjoflat and Alarcon joined.

The House will meet at 12:30 PM for morning hour, and at 2:00 PM for legislative business. Votes will be postponed until 6:30 PM. The House will consider several non-technology related items under suspension of the rules. See, Republican Whip Notice.

The Senate will meet at 9:45 AM for morning business. It will then resume consideration of HR 2744, the agriculture appropriations bill.

The Supreme Court is between terms. The opening conference of its October 2005 Term will be held on September 26.

9:00 AM. The President's Council of Advisors on Science and Technology (PCAST) will meet. The agenda includes an update on nanotechnology. See, notice in the Federal Register, September 6, 2005, Vol. 70, No. 171, at Pages 53029 - 53030. Location: Room 100, National Academies Keck Center, 500 5th St., NW.

9:30 AM. The Federal Communications Commission's (FCC) North American Numbering Council (NANC) will meet. See, notice in the Federal Register, August 31, 2005, Vol. 70, No. 168, at Page 51814. Location: FCC, 445 12th St., SW., Room TW-305.

10:00 AM. The Senate Judiciary Committee may hold a hearing titled "The Kelo Decision: Investigating Takings of Homes and other Private Property". See, the June 23, 2005, opinion [58 pages in PDF] of the Supreme Court in Kelo v. City of New London, a takings clause case. The witnesses will be Sen. John Cornyn (R-TX), Susette Kelo, Fred Jenkins (Pastor, St. Luke’s Pentecostal Church), Eddie Perez (National League of Cities), Hilary Shelton (NAACP), Thomas Merrill (Columbia University Law School), and Steven Eagle (George Mason University Law School). The SJC frequently cancels or postpones heairngs 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.

10:00 AM. The Senate Banking Committee will hold a hearing on several nominations, including Emil Henry (to be Assistant Secretary for Financial Institutions at the Department of the Treasury), and Patrick O’Brien (to be Assistant Secretary for Terrorist Financing at the Department of the Treasury). See, notice. Location: Room 538, Dirksen Building.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Ten Ways to Protect Intellectual Property When Drafting E-Commerce Agreements". The speaker will be Walter Effross (American University law school). The price to attend ranges from $80-$125. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

The House will meet at 10:00 AM for legislative business. See, Republican Whip Notice.

9:30 AM. The Senate Judiciary Committee may hold a hearing titled "Able Danger and Intelligence Information Sharing". See, notice. This involves data mining. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. The SJC frequently cancels or postpones meetings without notice. Location: Room 226, Dirksen Building.

POSTPONED. 10:00 AM. The House Judiciary Committee (HJC) will meet to mark up HR 3648, a bill to impose additional fees with respect to immigration services for intracompany transferees. The meeting will be webcast by the HJC. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

CANCELLED. 10:00 AM - 1:00 PM. The Federal Communications Commission's (FCC) Network Reliability and Interoperability Council (NRIC) will meet. See, notice in the Federal Register, August 31, 2005, Vol. 70, No. 168, at Page 51814. Location: FCC, 445 12th St., SW., Room TW-305. See, notice [PDF] of cancellation.

10:30 AM - 1:30 PM. The Progress and Freedom Foundation (PFF) will host an event titled "Net Neutrality or Net Neutering in a Post- Brand X World: Self-Regulation, Policy Principles, and Legal Mandates in the Broadband Marketplace". The speakers will include Tom Tauke (Verizon), Randolph May (PFF), Peter Pitsch (Intel), Dan Brenner (National Cable and Telecommunications Association), Gigi Sohn (Public Knowledge), David McClure (U.S. Internet Industry Association), and Adam Thierer (PFF). Lunch will be served. See, notice and registration pages. Location: Capital Hilton, 1001 16th Street, NW.

12:00 NOON -1:30 PM. The Federal Communications Bar Association's (FCBA) International Practice Committee will host a brown bag lunch. The topic will be Mobile Satellite Services/Ancillary Terrestial Component (MSS/ATC). The speakers will be Anna Gomez (Deputy Chief of the FCC's International Bureau), Howard Griboff (FCC International Bureau), Jennifer Manner (VP Regulatory Affairs of Mobile Satellite Ventures), and Tim Farrar (Telecom, Media and Finance Associates, Inc.). No RSVP requested. Location: Hogan & Hartson, 555 13th St., NW, 13th Floor.

12:00 NOON - 1:15 PM. The DC Bar Association will host a seminar titled "Current Topics in Patent Law: Interference Practice and Patent Reform". The speaker will be Charles Gholz (Oblon Spivak McClelland Maier & Neustadt). The price to attend ranges from $10-$30. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

6:30 - 8:30 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Happy Hour". Location: 14K Restaurant at the Hamilton Crowne Plaza Hotel, 14th and K Streets, NW.

EXTENDED FROM AUGUST 22. Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to it notice of proposed rulemaking (NPRM) regarding low power FM rules. The FCC adopted its order and NPRM on March 16, 2005, and released it on March 17, 2005. It is FCC 05-75 in MM Docket No. 99-25. See, original notice in the Federal Register, July 7, 2005, Vol. 70, No. 129, at Pages 39217 - 39227. See also, FCC notice [PDF] extending the deadlines.

The House will meet at 10:00 AM for legislative business. See, Republican Whip Notice.

9:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet and Intellectual Property will hold a hearing titled "Reducing Peer-To-Peer Piracy (P2P) on University Campuses: A Progress Update". The hearing will be webcast by the HJC. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

9:00 AM - 1:00 PM. The Department of Homeland Security's (DHS) Transportation Security Administration's (TSA) Aviation Security Advisory Committee (ASAC) will meet. The agenda includes "final report and recommendations of the Secure Flight Privacy/IT Working Group". See, notice in the Federal Register, September 1, 2005, Vol. 70, No. 169, at Page 52119. Location: Residence Inn by Marriott, Pentagon City, 550 Army Navy Drive, Arlington, VA.

9:30 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of Judge John Roberts to be Chief Justice of the United States, and Timothy Flanigan to be the Deputy Attorney General. The agenda also includes numerous bills, including S 1088, the "Streamlined Procedures Act of 2005", S _, the "Personal Data Privacy and Security Act of 2005", and S 751, the "Notification of Risk to Personal Data Act", and S 1326, the "Notification of Risk to Personal Data Act". The SJC frequently cancels or postpones meetings without notice. The SJC rarely follows its published 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. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Banking Committee will hold a hearing on "Examining the Financial Services Industry’s Responsibilities and Role in Preventing Identity Theft and Protecting Sensitive Financial Information". The witnesses will be Sen. Mark Pryor (D-AR), Stuart Pratt (Consumer Data Industry Association), Edmund Mierzwinski (USPIRG), Ira Hammerman (Securities Industry Association), Gilbert Schwartz (Schwartz & Ballen), Oliver Ireland (Morrison and Foerster). See, notice. Location: Room 538, Dirksen Building.

10:00 AM. The House Financial Services Committee's Subcommittee on Financial Institutions will hold a hearing on HR 3505, the "Financial Services Regulatory Relief Act of 2005". See also, story titled "House Subcommittee to Hold Hearing on Financial Services Regulatory Relief Act" in TLJ Daily E-Mail Alert No. 1215, September 15, 2005. Location: Room 2128, Rayburn Building.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Communications in Disaster". The first panel will address the protection of critical communications infrastructure in a disaster. The second panel will address communications for first responders. See, notice. The hearing will be webcast by the SCC. Press contact: Melanie Alvord (Stevens) 202 224-8456 or Melanie_Alvord at commerce dot senate dot gov, or Andy Davis (Inouye) at 202 224-4546 or Andy_Davis at commerce dot senate dot gov Location: Room 562, Dirksen Building.

10:00 AM. The President's Export Council Subcommittee on Export Administration (PECSEA) will meet. See, notice in the Federal Register, July 21, 2005, Vol. 70, No. 139, at Pages 42027 - 42028. Location: Room 4832, Department of Commerce, 14th Street between Pennsylvania and Constitution Avenues, NW.

11:00 AM. The House Judiciary Committee's (HJC) Subcommittee on the Constitution will hold a hearing titled "The Supreme Court's Kelo Decision and Potential Congressional Responses". See, the June 23, 2005, opinion [58 pages in PDF] of the Supreme Court in Kelo v. City of New London, a takings clause case. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

4:00 PM. The Cato Institute will host a panel discussion titled "Mr. Smith Leaves Washington". The speakers will be Bradley Smith (Capital University School of Law), Rep. Mike Pence (R-IN), and John Samples (Cato). Smith was until recently a Commissioner of the Federal Election Commission (FEC). He was a leading opponent of government regulation of internet based speech. See, notice and registration page. A reception will follow the program. Location: Cato, 1000 Massachusetts Ave., NW.

5:00 - 7:00 PM. William Baumol will give a lecture titled "How Regulators Can Be Misled By Simplistic Theory". He is the author of, among other works, the book titled "The Free Market Innovation Machine" [Amazon]. The event is hosted by the AEI Brookings Joint Center for Regulatory Studies. See, notice. Location: American Enterprise Institute, 12th floor, 1150 17th St., NW.

EXTENDED FROM SEPTEMBER 1. Extended deadline to submit reply comments to the Copyright Office regarding its first report to the Congress required by the Satellite Home Viewer Extension and Reauthorization Act of 2004. See, original notice in the Federal Register, July 7, 2005, Vol. 70, No. 129, at Pages 39343 - 39345. See also, notice extending deadlines in the Federal Register, August 15, 2005, Vol. 70, No. 156, at Page 47857.

The House may meet at 9:00 AM for legislative business. See, Republican Whip Notice.

8:00 AM. The American Bar Association's (ABA) Standing Committee on Law and National Security will host a breakfast. The speaker will be Nuala Kelly, Chief Privacy Officer at the Department of Homeland Security (DHS). The title of her speech will be "Challenges in Preserving Privacy while Protecting Homeland Security". The price to attend is $20. See, notice and registration form [PDF]. Location: University Club, 1135 16th St., NW.

EXTENDED FROM SEPTEMBER 9. Extended extended deadline to submit reply 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, original notice in the Federal Register, June 8, 2005, Vol. 70, No. 109, at Pages 33679 - 33687. See also, notice of extension of deadlines, in the Federal Register, July 6, 2005, Vol. 70, No. 128, at Pages 38848 - 38849. See also, notice [PDF] of further extension.

Deadline to submit requests to participate as a panelist in the Department of Justice's (DOJ) Antitrust Division's and the Federal Trade Commission's (FTC) October 25, 2005, workshop titled "Competition and Real Estate Workshop". See, FTC notice and notice in the Federal Register, September 8, 2005, Vol. 70, No. 173, at Pages 53362 - 53364.

The Supreme Court will hold the opening conference of the October Term 2005. See, calendar [PDF].

12:00 NOON. Xuan-Thao Nguyen (Southern Methodist University School of Law) will deliver a paper titled "Collateralizing Intellectual Property". This event is a part of the George Washington University Law School's (GWULS) intellectual property workshop series. RSVP by Tuesday, September 20, to Rosalie Kouassi at rkouassi at law dot gwu dot edu. Location: GWULS, Faculty Conference Center, 5th Floor Burns, 716 20th St., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. This will be an organizational meeting. For more information, contact Frank Buono at fbuono at willkie dot com. Location: Willkie Farr & Gallagher, 875 K Street, NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in American Association of Paging Carriers v. FCC, No. 04-1359. This petition for review pertains to paging carriers and licensing by itinerant mobile radio transmitters on a nationwide, non-coordinated basis. The AAPC challenges the Federal Communications Commission's (FCC) Memorandum Opinion and Order (MOO) adopted September 1, 2004, and released on September 8, 2004. This MOO is FCC 04-212 in WT Docket No. 01-146. See, brief [43 pages in PDF] of the AAPC. Judges Henderson, Garland and Griffith will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "How to Litigate a Patent Infringement Case". The speakers will be Patrick Coyne and Jerry Ivey (both of Finnegan Henderson). The price to attend ranges from $80-$125. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

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