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October 14, 2005, 9:00 AM ET, Alert No. 1,233.
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DOJ Charges Samsung with DRAM Price Fixing

10/13. The Department of Justice (DOJ) charged Samsung by criminal Information filed in the U.S. District Court (NDCal) with fixing the prices of dynamic random access memory (DRAM) sold to original equipment manufacturers (OEMs), in violation of Section 1 of the Sherman Act, which is codified at 15 U.S.C. § 1.

Section 1 provides, in part, that "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine ..."

The action was brought by the DOJ's Antitrust Division. It charges Samsung Electronics Company Limited and its U.S. subsidiary, Samsung Semiconductor, Inc.

The DOJ also announced that Samsung agreed to plead guilty and pay a $300 Million fine. See, DOJ release.

This is another in a series of actions taken by the DOJ regarding price fixing by DRAM makers.

On April 21, 2005, the DOJ charged Hynix with price fixing in the U.S. District Court (NDCal). See, story titled "DOJ Charges Hynix with DRAM Price Fixing" in TLJ Daily E-Mail Alert No. 1,121, April 22, 2005.

On December 2, 2004, the DOJ charged four executives of Infineon Technologies AG, and its subsidiary, Infineon Technologies North America Corporation. See, story titled "DOJ Brings More DRAM Price Fixing Charges" in TLJ Daily E-Mail Alert No.1,030, December 3, 2004.

On September 15, 2004, the DOJ filed a criminal information in the U.S. District Court (NDCal) against Infineon Technologies AG. On October 20, 2004, Infineon plead guilty. See also, story titled "DOJ Charges Infineon With Felony Price Fixing; Infineon Pleads Guilty" in TLJ Daily E-Mail Alert No. 978, September 16, 2004.

Also, on December 17, 2003, the DOJ announced that it charged Alfred P. Censullo, a former employee of Micron Technology Inc., with violation of 18 U.S.C. § 1503 in connection with his "altering and concealing documents containing competitor pricing information, which were requested in a federal grand jury subpoena".

Microsoft and Yahoo Announce Plans to Make IM Service Interoperable

10/12. Microsoft and Yahoo announced an agreement to make their instant messaging services interoperable and interconnected. See, Microsoft release and substantially identical Yahoo release. See also, transcript of joint news conference.

The two companies announced that their IM services, named MSN Messenger and Yahoo Messenger, will be interoperable and interconnected by the second quarter of 2006.

The agreement provides for exchanging instant messages, seeing their friends' online presence, sharing select emoticons, and adding new contacts from either service. The two companies will also enable PC to PC voice communications using their instant messaging services.

Steve Ballmer, CEO of Microsoft, stated that "IM interoperability is the right thing for our customers, our businesses and the industry as a whole". Terry Semel, CEO of Yahoo, stated that "This is truly a turning point for the IM industry, and we believe our agreement with Microsoft will help usher in a new era of IP communications."

The two companies entered into this agreement in the absence of any legal requirement to do so.

In January 2001, the Federal Communications Commission (FCC) did impose limited and temporary restrictions in its antitrust merger review (nominally a license transfer proceeding) of the merger of AOL and Time Warner. The FCC order approving the merger required that AOL's instant messaging (IM) services must interoperate with competing IM providers before it can offer videoconferencing and other streaming video over IM. However, this restraint only affected AOL Time Warner. See, TLJ story titled "FCC Approves AOL Time Warner Merger", and story titled "AOL Time Warner Merger" in TLJ Daily E-Mail Alert No. 100, January 12, 2001.

On April 2, 2003, AOL Time Warner submitted a petition [58 pages in PDF] to the FCC requesting relief from the FCC's January 22, 2001 Memorandum Opinion and Order (MOO) approving the merger of AOL and Time Warner. Specifically, AOL Time Warner sought relief from the condition restricting its ability to offer internet users streaming video advanced Instant Messaging based high speed services (AIHS) via AOL Time Warner broadband facilities. See, story titled "AOL Time Warner Petitions FCC for Relief From Instant Messaging Restriction" in TLJ Daily E-Mail Alert No. 638, April 7, 2003.

Then, on August 20, 2003, the FCC released a Memorandum Opinion and Order [13 pages in PDF] granting AOL Time Warner's petition to remove the FCC's restriction on its provision of video streaming advanced Instant Messaging based high speed services (AIHS). See, story titled "FCC Releases Order Permitting AOL Time Warner to Provide Advanced IM Services" in TLJ Daily E-Mail Alert No. 723, August 21, 2003.

Grand Jury Indicts Counterfeiters

10/12. A grand jury of the U.S. District Court (NDCal) returned two indictments that charge Ye Teng Wen (aka Michael Wen), Hao He (aka Kevin He), and Yaobin Zhai (aka Ben Zhai) with conspiracy to commit criminal copyright infringement and traffic in counterfeit labels, criminal copyright infringement, trafficking in counterfeit labels, and aiding and abetting, in connection with their replicating CDs containing copyrighted software and music.

The U.S. Attorneys Office (NDCal) stated in a release that "piracy conspiracies often involve geographically separate businesses that secretly handle different stages of the process of pirating intellectual property. Brokers, replicators, assemblers, packagers, printers, distributors and retailers play distinct roles in the conspiracy. Brokers solicit the orders of copyrighted works, while the replicators have the equipment to manufacture hundreds of thousands of CDs. Printers and packagers are responsible for making the infringed work appear legitimate by assembling the CD case, booklet, and artwork into a completed CD/DVD package that almost exactly resembles the copyrighted work."

The USAO continued that "The indicted individuals are charged with involvement in the large scale replication of pirated music and software. The replicator is the business or individual who has the manufacturing equipment to duplicate mass quantities of CDs or DVDs. Using expensive and sophisticated equipment, sometimes including silk screening machines to place artwork on the CDs or DVDs, replicators can quickly create tens of thousands of counterfeit CDs or DVDs. For example, a replicator armed with an easily obtainable mold of a CD or DVD - called a ``stamper´´ -- can potentially manufacture 50,000 to 80,000 counterfeit CDs or DVDs, effectively flooding the market with copies of the work."

The Recording Industry Association of America (RIAA) stated in a release that "More than 500,000 CDs and over one million CD inserts were seized, along with thousands of DVDs and 3,300 ``stampers´´ -- the metal discs used to press multiple copies, making this combined operation the largest manufacturing raid in U.S. history."

3rd Circuit Rules on Lending Tree's Web Use of Real Estate Brokers' Trademarks

10/11. The U.S. Court of Appeals (3rdCir) issued its divided opinion [91 pages in PDF] in Century 21 v. Lending Tree, a trademark infringement case involving the defense of nominative fair use. The Court of Appeals reversed the District Court's preliminary injunction, and sent the case back to District Court for further proceedings in light of Court of Appeals' instructions regarding nominative fair use determinations.

15 U.S.C. § 1115(b) provides, in part, that the registration of a mark "shall be conclusive evidence of the validity of the registered mark and of the registration of the mark, of the registrant’s ownership of the mark, and of the registrant’s exclusive right to use the registered mark in commerce. Such conclusive evidence shall relate to the exclusive right to use the mark on or in connection with the goods or services specified ..."

Then, § 1115(b)(4) provides it is a defense to infringement that "That the use of the name, term, or device charged to be an infringement is a use, otherwise than as a mark, ... of a term or device which is descriptive of and used fairly and in good faith only to describe the goods or services of such party, or their geographic origin".

Nominative fair use, which is the issue in this case, involves use of another's protected mark to describe one's own product. The Court of Appeals noted, for example, that if a car mechanic publishes an ad that he repairs Volkswagens, he uses another's trademark, but it is nominative fair use.

The present opinion builds upon the December 8, 2004, opinion [15 pages in PDF] of the Supreme Court in KP Permanent Makeup v. Lasting Impressions. The Supreme Court held in that case that "a plaintiff claiming infringement of an incontestable mark must show likelihood of consumer confusion as part of the prima facie case, 15 U. S. C. § 1115(b), while the defendant has no independent burden to negate the likelihood of any confusion in raising the affirmative defense that a term is used descriptively, not as a mark, fairly, and in good faith".

See also, story titled "Supreme Court Rules on Fair Use in Trademark Case" in TLJ Daily E-Mail Alert No. 1,034, January 9, 2004. That opinion is also reported at 125 S.Ct. 542.

In the present case, the plaintiffs in the District Court, and the appellees in the Court of Appeals, are Century 21 Real Estate Corporation, Coldwell Banker Real Estate Corporation, and ERA Franchise Systems, Inc. They are real estate brokerage companies. The Court of Appeals opinion uses the acronym CCE to refer collectively to these three companies.

Real estate brokerage companies, and the National Association of Realtors (NAR), have a history of seeking to limit the availability of certain internet based services for home buyers and sellers.

For example, on September 8, 2005, the Department of Justice's (DOJ) Antitrust Division filed a civil complaint in U.S. District Court (NDIll) against the NAR alleging violation of federal antitrust laws in connection with its obstruction of real estate brokers who use internet tools to offer services to consumers. The DOJ has since filed an amended complaint.

See also, story titled "DOJ Sues National Association of Realtors for Obstructing Internet Based Brokers" in TLJ Daily E-Mail Alert No. 1,210, September 9, 2005; "GAO Reports on Real Estate Brokers and Use of the Internet" in TLJ Daily E-Mail Alert No. 1,224, September 29, 2005; and "DOJ Amends Complaint Against Realtors" in TLJ Daily E-Mail Alert No. 1,228, October 6, 2005.

The defendant and appellant in the present case is Lending Tree (LT), a "diversified consumer-oriented Internet business that helps consumers identify and select qualified lenders, real estate brokers, auto insurers, and other financial service companies."

The CCE companies have registered trademarks. LT used these marks in block letter form in its web site. For example, LT stated that it will "give you access to a national network of brokers representing the country's leading real estate companies, including Coldwell Banker, ERA and Century 21", and "LT is affiliated with more than 700 certified brokers such as Coldwell Banker, Century 21, Prudential, ERA and RE/MAX."

The CCE companies filed a complaint in U.S. District Court (DNJ) against LT alleging unfair competition and trademark infringement in violation of §§ 32 and 43(a) of the Lanham Act, which are codified at 15 U.S.C. §§ 1114(1) and 1125(a).

The District Court granted a preliminary injunction to the CCE companies. This interlocutory appeal followed.

The Court of Appeals reversed and remanded. The Court of Appeals did not rule on the ultimate question of whether there was nominative fair use. Rather, it provided detailed instructions to the District Court to apply in subsequent proceedings.

The Court of Appeals held that "we hold today that the Lapp test for likelihood of confusion still has an important place in a trademark infringement case in which the defendant asserts the nominative fair use defense. In this case, the test should focus on the four relevant factors: (1) the price of the goods and other factors indicative of the care and attention expected of consumers when making a purchase; (2) the length of time the defendant has used the mark without evidence of actual confusion; (3) the intent of the defendant in adopting the mark; and (4) the evidence of actual confusion." See, Interspace Corp. v. Lapp, Inc., 721 F.2d 460, 463 (3d Cir. 1983).

It continued that "Once plaintiff has met its burden of proving that confusion is likely, the burden then shifts to defendant to show that its nominative use of plaintiff’s marks is nonetheless fair. In this Circuit, we have today adopted a test for nominative fair use in which a court will pose three questions: (1) Is the use of the plaintiff’s mark necessary to describe both plaintiff's product or service and defendant’s product or service? (2) Is only so much of the plaintiff’s mark used as is necessary to describe plaintiff’s products or services? (3) Does the defendant’s conduct or language reflect the true and accurate relationship between plaintiff and defendant’s products or services? If each of these questions can be answered in the affirmative, the use will be considered a fair one, regardless of whether likelihood of confusion exists."

It concluded that "We adopt a bifurcated approach that tests for confusion and fairness in separate inquiries in order to distribute the burden of proof appropriately between the parties at each stage of the analysis. The defendant has no burden to show fairness until the plaintiff first shows confusion. Furthermore, by properly treating nominative fair use as an affirmative defense, our approach allows for the possibility that a district court could find a certain level of confusion, but still ultimately determine the use to be fair. By contrast, a unified likelihood of confusion test would require a defendant to negate likelihood of confusion by undercutting the Lapp factors. Because the Supreme Court explicitly rejected such a proposition in KP Permanent Make-Up, we decline to adopt it."

This case is Century 21 Real Estate Corporation, et al. v. Lending Tree, Inc., U.S. Court of Appeal for the 3rd Circuit, App. Ct. No. 03-4700, an appeal from the U.S. District Court for the District of New Jersey, D.C. No. 03-cv-02810, Judge Joseph Greenaway presiding. Judge Rendell wrote the opinion of the Court of Appeals, in which Judge Yohn joined. Judge Fisher wrote a dissent.

People and Appointments

10/13. Anne Caliguiri joined the American Electronics Association (AEA) as Director of Communications in Washington DC. She previously worked for the Motion Picture Association of America (MPAA) in Los Angeles, California.

There was no issue of the TLJ Daily E-Mail Alert on Thursday, October 13, 2005.
Washington Tech Calendar
New items are highlighted in red.
Friday, October 14

The House will not meet the week of October 10-14. See, Republican Whip Notice.

The Senate will not meet the week of October 10-14. It will next meet on October 17 at 2:00 PM.

5:00 PM. Deadline to submit comments to the Office of the U.S. Trade Representative (USTR) regarding its out of cycle reviews of Ukraine and Saudi Arabia. Section 182 of the Trade Act of 1974 requires the USTR to identify countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. See, notice in the Federal Register, September 8, 2005, Vol. 70, No. 173, at Pages 53410 - 53412. See also, story titled "USTR Lifts Trade Sanctions on Ukraine and Announces Special 301 Out of Cycle Review" in TLJ Daily E-Mail Alert No. 1,205, September 1, 2005. See also, notice in the Federal Register, September 14, 2005, Vol. 70, No. 177, at Pages 54436 - 54437.

Monday, October 17

12:00 NOON. Andrew Chin ( University of North Carolina Law School) will deliver a paper titled "Artful Prior Art and the Quality of DNA Patents". This event is a part of the George Washington University Law School's (GWULS) intellectual property workshop series. RSVP by Tuesday, October 11, 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) Mass Media Practice Committee will host a brown bag lunch. The topic will be "Meet the Media Bureau Chief -- Donna Gregg". No RSVP is requested. For more information, contact Ann Bobeck at abobeck at nab dot org. Location: National Association of Broadcasters (NAB), 1771 N Street, NW.

2:00 PM. The Cato Institute will host a panel discussion titled "Restoring Property Rights After Kelo v. New London". The speakers will be Sen. John Cornyn (R-TX), Roger Pilon (Cato), and John Echeverria (Georgetown Environmental Law and Policy Institute). See, notice and registration page. Cato will webcast the event. Lunch will be served after the program. Location: Cato, 1000 Massachusetts Ave., NW.

Tuesday, October 18

8:00 AM. The Federal Communications Bar Association (FCBA) will host a breakfast. The speaker will be Sen. John Ensign (R-NV). See, registration form [PDF]. Registrations and cancellations are due by 12:00 NOON on October 14. The price to attend ranges from $30 to $55. Location: J.W. Marriott, 1331 Pennsylvania Ave., NW, bottom level.

10:00 AM. The Senate Finance Committee will hold a hearing on several pending nominations, including Susan Schwab (to be Deputy U.S. Trade Representative), Karan Bhatia (to be Deputy USTR), Franklin Lavin (to be Under Secretary of Commerce for International Trade), and Clay Lowery (to be Deputy Under Secretary of the Treasury). Location: Room 219, Dirksen Building.

10:30 AM - 3:00 PM. The U.S. Chamber of Commerce will host an event titled "Comprehensive Immigration Reform: Fixing a Broken System". The price to attend ranges from free to $145. For more information, contact Winsome Walker at 202 463-5500. See, notice. Location: U.S. Chamber of Commerce, 1615 H Street, NW.

2:30 PM. The Senate Judiciary Committee (SJC) may hold a hearing on pending judicial nominations. The SJC frequently cancels of postpones hearings 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. See, notice. Location: Room 226, Dirksen Building.

3:00 PM. The House Homeland Security Committee's Subcommittee on Economic Security, Infrastructure Protection, and Cybersecurity will hold a hearing titled "SCADA and the Terrorist Threat: Protecting the Nation’s Critical Control". SCADA is an acronym for supervisory control and data acquisition. It relates computer systems that monitor and control industrial facilities, such as telecommunications networks. The witnesses will include Andy Purdy (acting Director of the Department of Homeland Security's National Cybersecurity Division), Larry Todd (Department of the Interior), Sam Varnado (Sandia National Laboratory), KP Ananth (Idaho National Laboratory), William Rush (Gas Technology Institute), Alan Paller (SANS Institute). See, notice. Location: Room 311, Cannon Building.

6:00 - 9:00 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "What Every Lawyer Needs to Know About Antitrust Law". The speakers will include William Kovacic (George Washington University Law School), Michael Brockmeyer (DLA Piper Rudnick Gray Cary), and Laura Wilkinson (Weil Gotshal & Manges). The price to attend ranges from $70-$125. For more information, call 202 626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

Wednesday, October 19

9:30 AM. The Senate Judiciary Committee (SJC) may hold a hearing on reporters' privilege legislation. The SJC frequently cancels of postpones hearings 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. See, notice. Location: Room 226, Dirksen Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) State and Local Practice Committee will host a brown bag lunch. The speaker will be Monica Desai, Chief of the Federal Communications Commission's (FCC) Consumer & Governmental Affairs Bureau. RSVP to ann at fcba dot org. Location: FCC, 445 12th St., SW, Conference Room 4-B516.

2:00 PM. The House Commerce Committee's Subcommittee on Commerce, Trade, and Consumer Protection will hold a hearing titled "Protecting Property Rights After Kelo". See, notice. Press contact: Larry Neal (Barton). Location: Room 2123, Rayburn Building.

2:00 - 5:00 PM. The Federal Communications Commission's (FCC) Network Reliability and Interoperability Council (NRIC) will meet. The agenda includes "E911 implementation and evolution, network security, network reliability, and broadband". See, FCC notice [PDF] and notice in the Federal Register, September 28, 2005, Vol. 70, No. 187, at Page 56690. Location: FCC, Commission Meeting Room, 445 12th Street, SW.

2:30 PM. The Senate Commerce Committee will meet to mark up four bills: S __, a DTV bill, S 1753, the "Warning, Alert, and Response Network Act", S 967, the "Truth in Broadcasting Act of 2005", and S 1063, the "IP-Enabled Voice Communications and Public Safety Act of 2005". See, notice. Location: Room SDG-50, Dirksen Building.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Introduction to Export Controls". The speakers will include Thomas Scott (Weadon & Associates). 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.

6:00 - 8:00 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers' Committee will host an event titled "Happy Hour". For more information, contact Pam Slipakoff at pamslip at yahoo dot com. Location: Circle Bistro, One Washington Circle Hotel, One Washington Circle.

Thursday, October 20

9:00 AM - 3:00 PM. The Department of Justice's (DOJ) Office of Justice Programs's (OJP) Global Justice Information Sharing Initiative Federal Advisory Committee will meet. See, notice in the Federal Register, August 16, 2005, Vol. 70, No. 157, at Page 48195. Location: Sheraton Crystal City Hotel, 1800 Jefferson Davis Highway, Arlington, VA.

10:00 AM - 12:00 PM. The House Science Committee will hold a hearing titled "Science, Technology, and Global Economic Competitiveness". The witness will be Norman Augustine, former Ch/CEO of Lockheed Martin. Press contact: Joe Pouliot at Joe dot Pouliot at mail dot house dot gov or 202 225-6371. Location: Room 2318, Rayburn Building.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "Federal and State Regulation of the U.S. Wireless Telecom Industry: Striking the Right Balance". The speakers will include Chuck Davidson (former Florida PUC Commissioner), Debra Berlyn (AARP), John Rogovin (Wilmer Cutler Hale & Dorr, former FCC General Counsel). The price to attend ranges from $15-$25. For more information, call 202 626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

2:00 - 4:30 PM. The Department of State's (DOS) Advisory Committee on International Communications and Information Policy (ACICIP) will meet. The agenda for this meeting includes "industry input for the first meeting of the newly-formed U.S.-India Information and Communications Technologies Working Group" and "a status report on preparations for the second phase of the World Summit on the Information Society, which will take place in Tunis, Tunisia from November 16-18, 2005. Contact Robert Watts at wattsrm at state dot gov by 5:00 PM to request permission to attend. See, notice in the Federal Register, September 30, 2005, Vol. 70, No. 189, at Page 57350. Location: Loy Henderson Auditorium, Truman Building, DOS, 2201 C Street, NW.

4:00 PM. The House Armed Services Committee's Subcommittee on Tactical Air and Land Forces  and Intelligence Committee's Subcommittee on Technical and Tactical Intelligence will hold a joint hearing on the Aerial Common Sensor (ACS) program. This program involves the development of a long range manned aircraft for surveillance and intelligence gathering operations, including communications intelligence (COMINT), electronic intelligence (ELINT), electro optical (EO), infrared (IR), synthetic aperture radar (SAR), and moving target indicator (MTI). The scheduled witnesses include Claude Bolton, Assistant Secretary of the Army (Acquisition, Logistics and Technology). Location: Room 2118, Rayburn Building.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Annual Fall Reception with the FCC Bureau Chiefs". The price to attend ranges from $20-$75. See, registration form [PDF]. Location: J.W. Marriott Hotel, 1331 Pennsylvania Ave, NW.

Friday, October 21

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Verizon v. FCC, No. 04-1331. Judges Ginsburg, Rogers and Griffith will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the joint petition filed by CTIA and the Rural Cellular Association (RCA) requesting relief of the FCC's requirement that wireless licensees that employ a handset based Enhanced 911 (E911) Phase II location technology achieve 95% penetration of location capable handsets among their subscribers by December 31, 2005. See, FCC notice [4 pages in PDF]. This proceeding is WT Docket No. 05-288. This is also the deadline to submit initial comments regarding Alltel's related petition. See, notice [PDF] in WT Docket No. 05-287. This is also the deadline to submit initial comments regarding Sprint Nextel's related petition. See, notice [PDF] in WT Docket No. 05-286.

More News

10/13. The U.S. Court of Appeals (9thCir) issued its opinion [10 pages in PDF] in In Re Grand Jury Subpoena to Nancy Bergeson. The Department of Justice (DOJ) subpoenaed Nancy Bergeson, a public defender, to testify before a grand jury against her client. She filed a complaint in U.S. District Court (DOre) seeking an order quashing the subpoena. The District Court, applying Rule 17(c)(2) of the Federal Rules of Criminal Procedure, held that the subpoena was "unreasonable and oppressive", and quashed it. The DOJ appealed. The Court of Appeals affirmed. But, the Court added, "We do not suggest that a subpoena of a lawyer to testify against her client before a grand jury would always be unreasonable or oppressive. The circumstances, such as the risk of imminent physical harm to others, magnitude of the case, scarcity of evidence -- all sorts of things that bear on reasonableness -- can legitimately be weighed along with the potential harm from enforcing the subpoena."

10/12. The Progress and Freedom Foundation (PFF) released a paper [7 pages in PDF] titled "Improving Patent Quality: Inside Out, Outside In, or Upside Down?". Solveig Singleton is the author.

10/12. The Federal Communications Commission (FCC) released a Memorandum Opinion and Order [15 pages in PDF] in its proceeding titled "In the Matter of Rainbow DBS Company LLC, Assignor, and EchoStar Satellite L.L.C., Assignee, Consolidated Application for Consent to Assignment of Space Station and Earth Station Licenses, and related Special Temporary Authorization". The MOO grants the applications of Rainbow DBS Company and EchoStar Satellite for consent to assign from Rainbow DBS to EchoStar authority to operate a direct broadcast satellite space station at the 61.5º W.L. orbital location on 11 odd numbered channels from 1-21. This MOO is FCC 05-177 in IB Docket No. 05-72.

10/6. David Gross (State Department) and Michael Gallagher (head of the National Telecommunications and Information Administration) spoke at a media roundtable of the Foreign Press Center in Washington DC regarding regulation of the internet. See, transcript.

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