11/22. The Senate Commerce Committee (SCC) announced that it will hold a series 14 hearings on internet, telecommunications, spectrum and broadcasting issues over a two month period early in the Second Session of the 109th Congress.

This marks a change in SCC procedure from the First Session of the 109th Congress. The incoming Chairman, Ted Stevens (R-AK), announced in January of 2005 that the SCC would handle most telecommunications, spectrum, internet and broadcast issues at the full Committee level, and that it would hold few public hearings or meeting. Instead, he conducted secret and closed hearings. He called closed meetings "listening sessions". He explained in several speeches that this would facilitate the quick enactment of legislation. Although, little has been enacted into law.

The SCC will continue to handle these issues at the full Committee level. However, it will hold the sort of public and open hearings that it evaded in 2005.

11/18. The U.S. Court of Appeals (9thCir) issued its divided opinion [34 pages in PDF] in Twentieth Century Fox v. Dastar, a copyright infringement case involving the issue of whether Dwight Eisenhower's book, Crusade in Europe [Amazon], was a work made for hire. The District Court held that Eisenhower's book was a work made for hire for Doubleday (which licensed film rights to Twentieth Century Fox), and that Dastar's recent video infringed the copyright. The Court of Appeals affirmed.

This opinion, and dissent, contain a fascinating discussion and debate over the principle of works made for hire. However, the analysis is of limited value today. Eisenhower authored the book over fifty years ago. The statute in effect at the time was the Copyright Act of 1909. Since that time the concept of work made for hire has been altered significantly, first by court opinions, and then by the Copyright Act of 1976. The Judges in this case applied the law of works made for hire as it was, not as it is.

Shortly after World War II, Eisenhower contracted with Doubleday regarding the book. Doubleday sold television rights to Fox, which produced a film. Ten years ago, Dastar made a video documentary titled "Campaigns in Europe". Twentieth Century Fox and others eventually filed a complaint in U.S. District Court (CDCal) against Dastar and others alleging, among other claims, copyright infringement, based on Dastar's use of large sections of the Eisenhower book without permission.

One of the reasons that the status of the work under copyright law was less than clear was that Eisenhower and Doubleday were also endeavoring to structure the agreement with the tax consequences for Eisenhower in mind.

This case is Twentieth Century Fox Film Corporation, et al. v. Dastar Corporation, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. Nos. 03-57052, 04-55410 and 03-57234, appeals from the U.S. District Court for the Central District of California, D.C. Nos. CV-98-07189-FMC, CV-98-07189-FMC, and CV-98-07189-FMC, Judge Florence Cooper presiding. Judge Richard Tallman wrote the opinion of the Court of Appeals, in which Judge Jerome Farris joined. Judge Dorothy Nelson wrote a dissent.

This case also involved Lanham Act claims, which, after review by the Supreme Court, have been finally decided. See, story titled "Supreme Court Reverses in Dastar v. Fox" in TLJ Daily E-Mail Alert No. 672, June 3, 2003.

11/22. The U.S. Patent and Trademark Office (USPTO) released a report [156 pages in PDF] titled "Performance and Accountability Report for Fiscal Year 2005".

This report is mostly devoted to an analysis of the finances, management, and patent and trademark operations of the USPTO.

In addition, Jon Dudas (at right), the Director of the USPTO, and the Under Secretary of Commerce for Intellectual Property, wrote in this report that "The tremendous ingenuity of American inventors, coupled with an intellectual property system that encourages and rewards innovation, has propelled our nation from a small agrarian society to the world’s preeminent technological and economic superpower. And all of our patented technology finds its way to the public domain within 20 years -- freely available to any and all. The success of a strong system of intellectual property rights is not limited to the United States -- it has become the basis for economic development in nations throughout the world."

"Unfortunately," wrote Dudas, "a growing chorus of critics now questions whether this fundamental system of patents, trademarks, and copyrights enhances development in other nations. At the same time, there has been dramatic growth in the counterfeiting of products and pirating of digital content because of the advancement of digital technology, an increased focus by criminal organizations, and the lack of understanding by consumers that buying fake goods or illegally copying digital content is stealing and has victims."

See also, short USPTO release, which emphasizes that the USPTO "received a record number of patent and trademark applications" in fiscal year 2005.

11/22. The Securities and Exchange Commission (SEC) published a set of documents titled "Draft Request for Proposal for New, Performance-based Contract for the Ongoing Support of the Electronic Data Gathering, Analysis, and Retrieval (EDGAR) Platform".

The SEC also issued a release. It states that "EDGAR has been the backbone of the SEC's disclosure program since the early 1980s. It receives approximately 700,000 filings each year from tens of thousands of corporate securities issuers, investment companies, and individuals. While EDGAR is regarded as one of the most valuable repositories of investment information in the United States, the information it contains isn't easily used by investors. Instead, the individuals and organizations that used EDGAR for over 375 million on-line searches in fiscal 2005 had to re-enter most of the data they found in order to analyze it."

It adds that the "last management contract for EDGAR was awarded in 1998. The draft RFP released today contemplates a significant, multi-year project to update the system's underlying technology. It will also cover ongoing management of the system."

The release also states that "The SEC has already begun to move toward the use of interactive data in its disclosure program. Since February 2005, the Commission has been testing the use of data tagging in periodic and investment company reports, using a format known as Extensible Business Reporting Language (XBRL). Filing financial data in XBRL is currently voluntary, and a number of registrants have begun to use the program."

SEC Chairman Chris Cox (at left) has been giving speeches recently on the subject of interactive data. See, November 7, 2005 speech in Tokyo, Japan, and November 11 speech in Boca Raton, Florida. See also, story titled "SEC Chairman Cox Discusses Use of Interactive Data in Corporate Reporting" in TLJ Daily E-Mail Alert No. 1,250, November 9, 2005.

The cover letter [PDF] states that this request for proposals (RFP) is "intended to establish a new, performance-based contract for the ongoing support of the EDGAR platform."

This letter states that the contract work will include "Conversion of an increasing amount of filed information to structured, interactive formats, building on the XML- and XBRL-based filing regimes already in place", "More robust use of metadata to describe specific characteristics of filings and registrants, and provide more effective searching and analysis", and "Restructuring of the data formats and transmission protocols used in disseminating filings to the public".

It also stated that "while today's EDGAR system is built on reasonably modern technology, it is in some ways based on processes and concepts that originated in a paper-based filing environment. Over the next few years, we anticipate developing a long-range strategy for more fully exploiting modern technology to make the filing process less burdensome, and the disclosed information more useful for both SEC staff and the investing public. This strategy will likely involve developing and implementing a new architectural vision for EDGAR, and substantially transforming it over time via a series of incremental upgrades and enhancements."

The draft RFP [154 pages in PDF] states that "A presolicitation conference will be held in Washington, DC on December 7, 2005." It also states that comments regarding improving the draft RFP are due by Monday, December 19, 2005.

11/22. President Bush signed into law HR 2862, the "Science, State, Justice, Commerce, and Related Agencies Appropriations Act, 2006". This contains funding for the Federal Communications Commission (FCC), Federal Trade Commission (FTC), Securities and Exchange Commission (SEC), and National Science Foundation (NSF). It also contains funding for the Department of Commerce (DOC), and all of its components, including the U.S. Patent and Trademark Office (USPTO), National Institute of Standards and Technology (NIST), National Telecommunications and Information Administration (NTIA), and the Bureau of Industry and Security (BIS). It also contains funding for the Department of Justice (DOJ), and all of its components, including the Antitrust Division. See, White House release.

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The House will next meet on Tuesday, December 6, 2005.

The Senate will next meet on Monday, December 12, 2005.

Deadline to submit comments to the Internal Revenue Service (IRS) regarding its notice of proposed rulemaking (NPRM) regarding the source of income derived from international communications activity. See, notice in the Federal Register, September 19, 2005, Vol. 70, No. 180, at Pages 54859 - 54878.

Thanksgiving Day.

There will be no issue of the TLJ Daily E-Mail Alert.

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

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding closed captioning rules for video programming. See, notice in the Federal Register, September 26, 2005, Vol. 70, No. 185, at Pages 56150-56157. This NPRM is FCC 05-142 in CG Docket No. 05-231.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the notice of proposed rulemaking (NPRM) regarding the the specific relocation procedures applicable to Broadband Radio Service (BRS) operations in the 2150-2160/62 MHz band, which the FCC previously decided will be relocated to the newly restructured 2495-2690 MHz band. The FCC also seeks comment on the specific relocation procedures applicable to Fixed Microwave Service (FS) operations in the 2160-2175 MHz band. This NPRM is FCC 05-172 in ET Docket No. 00-258. See, notice in the Federal Register, October 26, 2005, Vol. 70, No. 206, at Pages 61752 - 61762.

Deadline to submit written comments to the Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) regarding their joint workshop on October 25, 2005, 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.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding whether its roaming requirements for commercial mobile radio service (CMRS) providers should be modified, expanded, or eliminated. This NPRM is FCC 05-160 in WT Docket Nos. 05-265 and 00-193. See, notice in the Federal Register, September 28, 2005, Vol. 70, No. 187, at Pages 56612 - 56620.

Deadline to submit nominations for members of the Commerce Spectrum Management Advisory Committee to the Department of Commerce's National Telecommunications and Information Administration (NTIA). See, NTIA release.

10:00 AM. The Supreme Court will hear oral argument in Illinois Tool Works v. Independent Ink, No. 04-1329, a patent tying antitrust case. See, story titled "Supreme Court Grants Certiorari in Patent Tying Antitrust Case" in TLJ Daily E-Mail Alert No. 1,158, June 21, 2005.

12:00 NOON - 1:30 PM. The Federal Communications Bar Association (FCBA) will host an event titled "The On-Going Debate Over the Sunshine Act". Location: __.

TIME? The Senate Commerce Committee (SCC) will host an event titled "Open Forum on Decency". Press contact: Melanie Alvord (Stevens) at 202 224-8456 or Melanie_Alvord at commerce dot senate dot gov, or Aaron Saunders (Stevens) at 202 224-3991 or Aaron_Saunders at commerce dot senate dot gov. Location:__.

9:00 AM - 4:00 PM. The National Archives and Records Administration's (NARA) Advisory Committee on the Electronic Records Archives (ACERA) will hold a meeting. The NARA asserts that registration is required for attendance. See, notice in the Federal Register, November 15, 2005, Vol. 70, No. 219, at Pages 69360. Location: 700 Pennsylvania Ave., NW.

9:30 AM. The Federal Communications Commission's (FCC) North American Numbering Council (NANC) will meet. See, notice in the Federal Register, November 9, 2005, Vol. 70, No. 216, at Pages 68045 - 68046. Location: FCC, Commission Meeting Room (Room TW-C305), 445 12th Street, SW.

TIME? The Federal Communications Bar Association's (FCBA) will host a luncheon on the future of regulation of communications. The panelists will be Ray Gifford (Progress and Freedom Foundation), Andy Schwartzman (Media Access Project), Jeannine Kenney (Consumers Union), and Jerry Ellig (Mercatus Center at George Mason University). The moderators will be FCBA President Michele Farquhar and Bryan Tramont. Location: Hogan & Hartson, 13th floor, 555 13th Street, NW.

TIME? The Federal Communications Bar Association (FCBA) will host an event titled "Think Tanks and Public Interest Group Luncheon". Location: __.

2:00 - 3:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for meetings of the Organization for Economic Cooperation and Development/Committee for Information, Computer and Communications Policy (OECD/ICCP) Working Parties ITU-D Telecommunication Development Advisory Group (TDAG). See, notice in the Federal Register, October 26, 2005, Vol. 70, No. 206, at Page 61876. Location: DOS, Harry Truman Building, Room 2533A.

10:00 AM. The Antitrust Modernization Commission (AMC) will meet. There will be a panel from 10:00 AM to 12:00 NOON titled "Government Civil Remedies". There will be three panels from 1:15 - 4:30 PM titled "Statutory Immunities and Exemptions". See, notice in the Federal Register, November 16, 2005, Vol. 70, No. 220, at Page 69511. Location: Federal Trade Commission, Conference Center, 601 New Jersey Ave., NW.

12:00 NOON - 2:00 PM. The Forum on Technology will host an event titled "The Future of Broadband". Location: Room G50, Dirksen Building, Capitol Hill.

12:30 - 2:00 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications Practice Committee will host a brown bag lunch. David Gross (U.S. Coordinator for Communications and Information Policy at the State Department) will discuss the November meeting of the World Summit on Information Society (WSIS) in Tunis, Tunisia. Location: Hogan & Hartson, 555 13th St., NW, Concourse Level.

TIME? The Antitrust Modernization Commission (AMC) will meet. The topic will be "Statutory Immunities and Exemptions". Location: Federal Trade Commission, Conference Center, 601 New Jersey Ave., NW.

CANCELLED. 6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host a continuing legal education (CLE) seminar titled "Regulation in the Post-Katrina Environment".

Deadline to submit initial comments to the Copyright Office in response to its notice of inquiry (NOI) regarding exempting certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works. See, 17 U.S.C. § 1201(a), and notice in the Federal Register, October 3, 2005, Vol. 70, No. 190, at Pages 57526 - 57531.

Deadline for the National Cable & Telecommunications Association's (NCTA) and Consumer Electronics Association (CEA) to file their second round of status reports with the Federal Communications Commission (FCC) regarding progress in talks regarding the feasibility of a downloadable security solution for integrating navigation and security functionalities in cable set top boxes. See, FCC's Second Report and Order [37 pages in PDF] adopted and released on March 18, 2005. This order is FCC 05-76 in CS Docket No. 97-80. See also, FCC release [PDF] summarizing this order, and story titled "FCC Again Delays Deadline for Integrating Navigation and Security Functionalities in Cable Set Top Boxes" in TLJ Daily E-Mail Alert No. 1,099, March 21, 2005. See also, notice of extensions (DA 05-1930) [2 pages in PDF].

8:30 AM - 3:00 PM. The National Institute of Standards and Technology's (NIST) Malcolm Baldrige National Quality Award Board of Overseers will meet. See, notice in the Federal Register, November 18, 2005, Vol. 70, No. 222, at Page 69954. Location: NIST, Administration Building, Room A1038, Gaithersburg, MD.

Deadline to submit comments to the Office of the U.S. Trade Representative (USTR) regarding its out of cycle reviews (OCRs) of Russia, Canada, Indonesia and the Philippines. These OCRs pertain to the identification of 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 29, 2005, Vol. 70, No. 188, at Pages 56963 - 56964.