12/5. The New York University law school released a paper [76 pages in PDF] titled "Will Fair Use Survive? Free Expression in the Age of Copyright Control: A Public Policy Report".

This paper, like many of the books, papers, and speeches advocating broader fair use rights, comes from academics. The authors are Marjorie Heins and Tricia Beckles, of the Brennan Center for Justice, at NYU law school.

This paper argues that the Digital Millennium Copyright Act's (DMCA) notice and take down procedure, which is codified at 17 U.S.C. § 512, is widely abused. Some notices involve weak claims of copyright. Others are directed at fair uses of copyrighted works.

The paper similarly argues that copyright holders send aggressive and intimidating cease and desist letters, sometimes based upon weak copyright claims.

The paper argues that, especially in the film industry, there is a "clearance culture".

The paper also complains about the effects of negotiated agreements. In particular, the authors are concerned that universities that purchase or license copyrighted works are bound by the terms to which they have agreed.

The paper states that "Owners' and users' organizations have sometimes negotiated guidelines with specific limits on copying. Frequently used in education, these guidelines offer security to teachers, and near-immunity from suit to the universities that follow them. But they are ringed with arbitrary restrictions. And they ignore the flexibility and equitable nature of fair use." The paper concludes that this can "undermine the educational process".

And all of this, the author argue, has a chilling effect upon expression, creation and education.

Recommendations. The paper offers several recommendations.

First, "Create a clearinghouse on fair use and other free expression issues in IP law, with information that is easily comprehensible and gives practical guidance. Include clear explanations of the DMCA take-down and counter-notice provisions."

Second, "Survey ISPs on their DMCA take-down procedures; then work with them to assure that anyone whose online speech is targeted gets adequate information and help in preparing a counter-notice."

Third, "Create a national legal support backup center, with a network of pro bono attorneys and IP law student clinics, and a clearinghouse of legal pleadings and other resources."

Fourth, "Work with bar associations to assure that educational outreach campaigns deal evenhandedly with fair use. Investigate the possibility of sanctions against lawyers who send frivolous cease and desist letters."

Fifth, "Work with arts service organizations to investigate possibilities for alternative errors and omissions insurance and for statements of best practices."

Sixth, "Investigate opportunities for amending IP law to reduce penalties, to eliminate money damages against anybody who reasonably guesses wrong about a fair use or free expression defense, and to create alternative dispute resolution mechanisms whose decisions, if obeyed, would relieve an accused infringer of money liability."

Trademark. Also, while the title of this paper references copyright, it is about both copyright and trademark. The authors argue that "the free expression problems that arise with overly zealous attempts to enforce trademark rights are similar to the fair use dilemmas in copyright law; and often, companies make both types of claims".

Coincidentally, on the same day that NYU released this paper, the U.S. Court of Appeals (8thCir) issued its opinion [PDF] in Davis v. Disney, affirming the District Court's rejection of a trademark infringement claim, even though the plaintiff had registered its trademark, and the defendant used the mark, verbatim, without license, in a movie. See, following story titled "8th Circuit Rejects Claim that Disney Infringed Trademark".

12/5. The U.S. Court of Appeals (8thCir) issued its opinion [PDF] in Davis v. Disney, a trademark infringement case. The Court of Appeals affirmed the District Court's summary judgment for the alleged infringer.

Leslie Davis owns a registered federal trademark for the term "Earth Protector", on books, pamphlets, and other printed material. He is also the founder and President of an environmental advocacy organization named Earth Protector, Inc.

Disney made a children's movie in which a sinister company named "Earth Protectors" tries to use a computer to take over the world.

Davis filed a complaint in U.S. District Court (DMinn) against Disney and others alleging trademark infringement under 15 U.S.C. § 1125. The District Court held that there was no likelihood of confusion, and therefore granted summary judgment to the alleged infringer, Disney. The Court of Appeals affirmed.

The Court of Appeals applied the 8th Circuit's six factors for evaluating likelihood of confusion, which it summarized as follows: "1) the strength of the plaintiff’s mark; 2) the similarity between the plaintiff’s and defendant’s marks; 3) the degree to which the allegedly infringing product competes with the plaintiff’s goods; 4) the alleged infringer’s intent to confuse the public; 5) the degree of care reasonably expected of potential customers, and 6) evidence of actual confusion."

The Court of Appeals wrote that since Disney appropriated the mark verbatim, the second factor ("the similarity between the plaintiff’s and defendant’s marks") worked in Davis' favor.

In contrast, it wrote that the mark is "descriptive" and hence is entitled to only weak protection.

The Court also held that "the allegedly infringing product" does not compete "with the plaintiff’s goods". That is, Disney's product is movies. Davis does not make movies.

The Court also found that there was no "intent to confuse the public", based upon Disney's not using the mark in its promotion of the movie, and Disney's portrayal of the company named "Earth Protectors" as an evil entity.

This case is Leslie Davis, et al. v. The Walt Disney Company, Disney Channel, and ABC, Inc., U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 05-1999, an appeal from the U.S. District Court for the District of Minnesota, Judge Donovan Frank presiding.

11/29. The U.S. Court of Appeals (7thCir) issued its opinion [12 pages in PDF] in Goodman v. Illinois, a case regarding telemarketing and the First Amendment right of free speech. The Court of Appeals affirmed the District Court's denial of injunctive relief to a would be telemarketer.

This case does not involve federal telemarketing statutes or rules. Rather, Jason Goodman, a chiropractor, wants to hire telemarketers in the state of Illinois to advertise his services to persons who may have been in automobile accidents. However, the Illinois Medical Practice Act (IMPA) prohibits medical professionals from soliciting professional patronage.

Goodman filed a complaint in U.S. District Court (CDIll) against Illinois seeking declaratory and injunctive relief. He alleged that the state ban on his telemarketing is unconstitutional under the First Amendment. He requested a preliminary injunction against the state. The District Court denied this request, and he appealed.

The Court of Appeals affirmed. The Court reasoned that the burden was on Goodman to show that his telemarketing was protected speech. However, he did not, for example, submit transcripts to be used by telemarketers. Since he did not meet his burden, the District Court was within its discretion to deny the preliminary injunction.

The Court continued that this is a commercial speech case. Hence, the Supreme Court's the four prong test in Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557 (1980), is controlling. In that case the Supreme Court wrote that a state can suppress "commercial messages that do not accurately inform the public about lawful activity."

The Court of Appeals added that the "Supreme Court has recognized the danger of misleading statements when telemarketing professional services, noting that because professionals render services rather than sell standardized products, there is a ``consequent enhanced possibility for confusion and deception if they were to undertake certain kinds of advertising.´´" (Citing Va. Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976).)

This case is Jason Goodman v. Illinois Department of Financial and Professional Regulation, U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 05-1188, an appeal from the U.S. District Court for the Central District of Illinois, D.C. No. 04 C 3232, Judge Jeanne Scott presiding.

12/2. Federal Communications Commission (FCC) Chairman Kevin Martin selected Fred Campbell to be his legal advisor for wireless issues. He previously was an Attorney Advisor in the FCC's Wireline Competition Bureau (WCB). Before that, he worked for the Washington DC law firm of Harris Wiltshire & Grannis. And before that, he worked for the law firm of Wolfe Snowden. See, FCC release [PDF].

12/1. Attorney General Alberto Gonzales gave a speech in New York City in which he discussed in broad strokes those sections of the USA PATRIOT Act that are scheduled to sunset at the end of this month. He said that "The PATRIOT Act has given investigators additional authorities they need to help stop terrorists before they can hurt Americans and harm our way of life" by "improving our ability to track and investigate terrorist activity in the United States." He added that "Sixteen key provisions of the Act are scheduled to expire at the end of this year. For several months, Congress has debated these provisions. It is good in a democracy like ours that we discuss and analyze the wisdom of every law -- particularly those that, if abused, would infringe your civil liberties. We have done that. Now, Congress must act to reauthorize the PATRIOT Act by sending the President a bill of which all Americans can be proud."

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The House will return from its Thanksgiving recess at 2:00 PM. It will consider numerous non-technology related items under suspension of the rules. Votes will be postponed until 6:30 PM. See, Republican Whip Notice.

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

8:30 AM - 5:00 PM. Day one of a two day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). The agenda includes the following items: (1) Privacy Act framework effort, (2) status reports on ISPAB work plan items, (3) briefing on NIST Next Generation Internet Protocol (IPv6), (4) briefing on NIST National Vulnerability Database Project, (5) NTIA Information Security Outreach Briefing, and (6) discussion of NIST's Cryptographic Hash Function Workshop. See, notice in the Federal Register, November 18, 2005, Vol. 70, No. 222, at Pages 69953 - 69954. Location: Doubletree Hotel and Executive Meeting Center, 1750 Rockville Pike, Rockville, MD.

8:30 AM - 4:30 PM. The Department of Homeland Security's (DHS) Data Privacy and Integrity Advisory Committee will meet. Secretary of Homeland Security Michael Chertoff is scheduled to speak at 8:30 AM. See, agenda [PDF]. Location: JW Marriott Hotel, Capitol Ballroom (E&F), 1331 Pennsylvania Ave., NW.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Regulations and Procedures Technical Advisory Committee will hold a partially closed meeting. The agenda includes a discussion of the BIS's deemed export rules. See, notice in the Federal Register, November 23, 2005, Vol. 70, No. 225, at Page 70784. Location: Room 3884, Hoover Building, 14th Street between Constitution and Pennsylvania Avenues, NW.

10:00 AM. The Department of Commerce (DOC) will host an event titled "National Summit on Competitiveness". The corporate and university participants want the federal government to spend more money subsidizing research. Some parts of this summit will be held in closed session, while other parts will be open to "media" with "press identification". At 10:00 - 11:15 AM there will be a "plenary session that is open to the press". At 2:30 PM, there will be a "Summit press conference". Location: DOC Auditorium, 1401 Constitution Ave., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch titled "Regulatory Issues & Developments in the Media". The speaker will be Donna Gregg, Bureau Chief of the Federal Communications Commission's (FCC) Media Bureau. RSVP to Ben Golant at ben at golant at fcc dot gov Location: Willkie Farr & Gallagher, 1875 K St., NW.

5:00 - 7:00 PM. The Public Knowledge will host an event titled "celebration of the season". RSVP by December 1, 2005 to aoliverio at publicknowledge dot org or 202 518-0020. Location: Suite 650, 1875 Connecticut Ave., NW.

5:30 PM. The House Rules Committee will meet to adopt a rule for consideration of HR 4340, the "United States-Bahrain Free Trade Agreement Implementation Act". Location: Room 309, Capitol Building.

The House will meet at 10:00 AM for legislative business. It may consider several non-technology related items under suspension of the rules. It may also consider, pursuant to a rule, HR 4340, the "United States-Bahrain Free Trade Agreement Implementation Act". See, Republican Whip Notice.

8:00 AM - 11:00 AM. The DC Bar Association's Intellectual Property Law Section will host a panel discussion titled "Trademark Office Speaks". The speakers will include Lynne Beresford (Commissioner for Trademarks), Sharon Marsh (Deputy Commissioner for Trademark Examination Policy), and David Sams (Chief Administrative Trademark Judge, Trademark Trial and Appeal Board). The price to attend ranges from $25-$40. For more information, call 202 626-3463. See, notice. Location: Cosmos Club, 2121 Massachusetts Ave., NW.

8:30 AM - 5:00 PM. Day two of a two day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). The agenda includes the following items: (1) Privacy Act framework effort, (2) status reports on ISPAB work plan items, (3) briefing on NIST Next Generation Internet Protocol (IPv6), (4) briefing on NIST National Vulnerability Database Project, (5) NTIA Information Security Outreach Briefing, and (6) discussion of NIST's Cryptographic Hash Function Workshop. See, notice in the Federal Register, November 18, 2005, Vol. 70, No. 222, at Pages 69953 - 69954. Location: Doubletree Hotel and Executive Meeting Center, 1750 Rockville Pike, Rockville, MD.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet, and Intellectual Property (CIIP) will hold an oversight hearing titled "International IPR Report Card -- Assessing U.S. Government and Industry Efforts to Enhance Chinese and Russian Enforcement of Intellectual Property Rights". The hearing will be webcast by the HJC. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in MIT v. Abacus Software, No. 05-1142, an appeal from the U.S. District Court (EDTex) in a patent infringement case involving image editing software. Location: Courtroom 203, 717 Madison Place, NW.

8:00 AM - 6:00 PM. The Department of Commerce and the EU will jointly host an event titled "EU-US Safe Harbor". At 12:00 NOON Maureen Cooney (acting Chief Privacy Officer of the DHS) will speak on complying with data privacy legislation in multiple jurisdictions. Location: Department of Commerce, 14th St. & Constitution Ave., NW, Room 6057.

3:00 - 5:00 PM. The Brookings Institute will host a panel discussion titled "Software and Law: Is Regulation Fostering or Inhibiting Innovation?" The speakers will be Emery Simon (Business Software Alliance), Brian Kahin (Computer and Communications Industry Association), Daniel Ravicher (Public Patent Foundation), Kenneth Dam (Brookings), and Ben Clemens (Brookings). Location: Brookings, 1775 Massachusetts Ave., NW.

3:30 - 5:30 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "Antitrust and the New Economy: Transatlantic Turmoil". The speakers will be Makan Delrahim (Brownstein Hyatt & Farber), Richard Epstein (University of Chicago law school), and Robert Pitofsky (Georgetown law school). See, notice. Location: AEI, Twelfth floor, 1150 17th St., NW.

4:00 - 7:00 PM. The Progress and Freedom Foundation (PFF) will host an event titled "DACA USF Conference". The PFF's Digital Age Communications Act (DACA) project is in the process of developing draft legislation. One of the topics that it is examining is Universal Service Fund (USF) reform. The keynote speaker will be Sen. John Sununu (R-NH), a member of the Senate Commerce Committee. There will be a panel presentation by the PFF's DACA Universal Service Working Group. The presenters will be Ray Gifford (PFF), Adam Peters (Kamlet Shepherd & Reichert), Michael Riordan (Columbia Business School), Robert Atkinson (Columbia Institute for Tele-Information), and Jerry Ellig (Mercatus Center, George Mason University). Then there will be a panel of industry representatives will provide reaction. The panelists will be Jonathan Askin (General Counsel, Pulver.com), Bob Blau (BellSouth), David Cohen (US Telecom), Gary Lytle (Qwest), John Nakahata (Harris Wiltshire & Grannis), and Joe Waz (Comcast). See, notice and registration pages. Location: Thornton Room, Hyatt Regency Capitol Hill, 400 New Jersey Ave., NW.

7:00 PM. The Progress and Freedom Foundation (PFF) will host a "holiday gala" that will include "libations". The PFF invites not only supporters of "telecom reform", but also "erstwhile advocates for commons, mandated ``openness´´ and regulatory interventions". Location: Thornton Room, Hyatt Regency Capitol Hill, 400 New Jersey Ave., NW.

TIME? The Securities and Exchange Commission (SEC) will hold a presolicitaion conference regarding the draft RFP [154 pages in PDF] for remaking the SEC's Electronic Data Gathering, Analysis, and Retrieval (EDGAR) Platform. See also, SEC release, draft RFP cover letter [PDF], and story titled "SEC Seeks Contractor to Remake EDGAR" in TLJ Daily E-Mail Alert No. 1,259, November 23, 2005. Location: __.

The Federal Communications Commission (FCC) will begin its Multichannel Video Distribution and Data Service (MVDDS) auction (Auction No. 63). See, notice in the Federal Register, September 15, 2005, Vol. 70, No. 178, at Pages 54541 - 54555.

The House will meet at 10:00 AM for legislative business. It may consider several non-technology related items under suspension of the rules. It may also consider, pursuant to a rule, HR 4340, the "United States-Bahrain Free Trade Agreement Implementation Act". See, Republican Whip Notice.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in CTIA v. FCC, No. 05-1008. This is a petition for review of the final order of the Federal Communications Commission (FCC) that adopted the "Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process", which regulates tower and antenna construction. This order is FCC 04-222 in WT Docket No. 03-128. At issue is whether the FCC has authority under Section 106 of the NHPA, which is codified at 16 U.S.C. § 470f, to write these rules. See, stories titled "FCC Announces NPRM Regarding Communications Facilities and the National Historic Preservation Act" in TLJ Daily E-Mail Alert No. 677, June 10, 2003, and "FCC Adopts Report and Order Re FCC Licensing and the National Historic Preservation Act" in TLJ Daily E-Mail Alert No. 975, September 13, 2004. See also, brief [PDF] of the FCC. Judges Tatel, Garland and Griffith will preside. Location: Courtroom 20, Prettyman Courthouse, 333 Constitution Ave., NW.

9:30 AM. The Business Software Alliance (BSA) and International Data Corporation (IDC) will hold a news conference to announce and describe its report titled "Global Economic Impact Study on Piracy Reduction". The speakers will include Chris Israel, Deputy Assistant Secretary for Technology Policy at the Department of Commerce. Location: Peter Lisagor Room, National Press Club, 529 14th Street N.W., 13th Floor.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Inpro II Licensing v. T-Mobile USA, No. 05-1233. Location: Courtroom 201, 717 Madison Place, NW.

The Federal Communications Bar Association (FCBA) will host an event titled "19th Annual Chairman's Dinner". Location: Washington Hilton Hotel.

The House may meet. See, Republican Whip Notice.

RESCHEDULED FROM DECEMBER 15. 9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. The event will be webcast by the FCC. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room). December 9 is Commissioner Kathleen Abernathy's last day at the FCC.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Semitool v. Dynamic Micro Devices, No. 05- 1299. Location: Courtroom 201, 717 Madison Place, NW.

11:00 AM - 12:00 NOON. The Advisory Committee for the 2007 World Radiocommunication Conference will meet. See, notice and agenda [PDF] and notice in the Federal Register, October 19, 2005, Vol. 70, No. 201, at Pages 60840 - 60841. Location: FCC, Commission Meeting Room, TW-C305, 445 12th Street, SW.

Deadline to submit initial comments to the Office of the U.S. Trade Representative (USTR) regarding the operation, effectiveness, and implementation of and compliance with (1) the World Trade Organization (WTO) agreements affecting market opportunities for telecommunications products and services of the U.S., (2) the telecommunications provisions of the North American Free Trade Agreement (NAFTA), (3) the U.S. free trade agreements (FTAs) with Chile, Singapore, and Australia, and (4) any other FTAs coming into effect by January 1, 2006. See, notice in the Federal Register, November 16, 2005, Vol. 70, No. 220, at Pages 69621 - 69622.

Deadline for the U.S. Trade Representative (USTR) to submit to the Congress is annual report on the People's Republic of China's compliance with its World Trade Organization (WTO) commitments. See, Section 421 of the U.S.-China Relations Act of 2000, Public Law No. 106-286).

The Senate will return from its Thanksgiving recess at 2:00 PM.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in EchoStar Satellite v. FCC, 04-1304. The proceeding pertains to an order of the Federal Communications Commission (FCC) adopting rules implementing the Satellite Home Viewer Extension and Reauthorization Act of 2004, which is now Public Law No. 108-447. See, brief [PDF] of the FCC. Judges Tatel, Garland and Griffith will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch titled "Meet the Trade Press". For more information, contact Ann Bobeck at abobeck at nab dot org. Location: National Association of Broadcasters (NAB), 1771 N St. NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the notice of proposed rulemaking (NPRM) portion of the Order and FNPRM that provides that facilities based broadband service providers and interconnected VOIP providers are subject to requirements under the 1994 Communications Assistance for Law Enforcement Act (CALEA). See, public notice [2 pages in PDF] and notice in the Federal Register, October 13, 2005, Vol. 70, No. 197, at Pages 59704 - 59710. The FCC adopted, but did not release, this item at its August 5, 2005, meeting. See, story titled "FCC Amends CALEA Statute" in TLJ Daily E-Mail Alert No. 1,191, August 9, 2005. The FCC released the text [59 pages in PDF] of this item on September 23, 2005. It is FCC 05-153 in ET Docket No. 04-295 and RM-10865.

Deadline to submit reply 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 initial comments to the Federal Communications Commission (FCC) regarding the petition for declaratory ruling (DR) filed by Grande Communications that seeks a DR regarding the treatment of traffic terminated through Grande to end users of interconnected local exchange carriers (LECs), in circumstances where customers of Grande have certified that the traffic originated in Internet protocol (IP) format. See, notice in the Federal Register, November 2, 2005, Vol. 70, No. 211, at Pages 66411 - 66412. See also, story titled "FCC Sets Comment Deadlines for DR Petition on IP Originated VOIP Traffic and Intercarrier Compensation" in TLJ Daily E-Mail Alert No. 1,246, November 3, 2005. This proceeding is WC Docket No. 05-283.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing on the nominations of Deborah Tate and Michael Copps to be members of the Federal Communications Commission (FCC). Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. The hearing will be webcast by the SCC. See, notice. Location: Room 106, Dirsksen Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Legislation and IP-Based Communications Practice Committees will host a brown bag lunch titled "Legislative Reform Affecting IP-Based Services". RSVP to Wendy Parish at wendy at fcba dot org. Location: Verizon Wireless, 1300 Eye Street, NW, Suite 400 West.

2:30 PM. The Senate Commerce Committee (SCC) will hold a business meeting. Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. Location: Room 106, Dirsksen Building.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "2005 Intellectual Property Law Review Series, Part 1: Copyright, Trademark and Internet Update". The speakers will include Brian Banner (Banner & Witcoff), Beckwith Burr (Wilmer Cutler), and Terence Ross (Gibson Dunn & Crutcher). The price to attend ranges from $70-$125. For more information, call 202 626-34638. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.