2/1. The House approved by voice vote HR 4659, a bill to extend the expiring provisions of the USA PATRIOT Act until March 10, 2006.

The entire substantive language of this bill is as follows: "Section 224(a) of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (Public Law 107-56; 115 Stat. 295) is amended by striking `February 3, 2006' and inserting `March 10, 2006'."

That is, Section 224 of the original USA PATRIOT Act, enacted in 2001, provided that 16 sections sunset on December 31, 2005. In late December of 2005 the Congress enacted S 2167, a short untitled bill that extended the sunset date to February 3, 2006. HR 4659 would further extend the sunset date to March 10.

See also, stories titled "Senate Approves Six Month Extension of Sunsetted Provisions of the PATRIOT Act" in TLJ Daily E-Mail Alert No. 1,278, December 22, 2005, and "House and Senate Approve Five Week Extension of Sunsetted Sections of PATRIOT Act" in TLJ Daily E-Mail Alert No. 1,279, December 23, 2005.

Late last year the House, but not the Senate, approved the conference report [PDF] on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005". It permanently extends most of the sunsetted sections.

Rep. James Sensenbrenner (R-WI), the Chairman of the House Judiciary Committee, introduced HR 4659 on January 31, 2006.

He stated in the House on February 1 that "Unfortunately, we must pass another extension today because a minority of Members of the other body have blocked an up-or-down vote on the conference report for H.R. 3199, the ``USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005,´´ which the full House passed by a broad bipartisan vote of 257-171 on December 14." See, statement [PDF].

Rep. Sensenbrenner (at right) said that "These opponents in the other body has repeatedly cited their concern for civil liberties as a justification for their obstruction. Ironically, the Conference Report that has been blocked contains dozens of vital civil liberties protections -- many included at their request."

Sen. Patrick Leahy (D-VT), one of the most active opponents of the conference report on HR 3199, spoke in the Senate on January 31. He stated that "I have continued meeting and talking with interested Republican and Democratic Senators. Senate staff has finally gotten together this week in a bipartisan meeting. I urge the Majority leader to bring together key interested Senators to work out a bipartisan compromise that improves the failed conference report." See, statement.

"Bush Administration and Republican congressional leaders", said Sen. Leahy, "hijacked the conference report, rewrote the bill in ways that fell short in protecting basic civil liberties and then tried to ram it through Congress as an all-or-nothing proposition."

He added that "Some of us are working hard to protect the security and liberty of Americans.  What is wrong is for the White House to manipulate this into a partisan fight for its partisan political advantage.  Instead of playing partisan politics, the Bush Administration and Republican congressional leadership should join in trying to improve the law."

1/31. The Copyright Office (CO) released a report [133 pages in PDF] titled "Report on Orphan Works". It recommends that the Congress enact legislation limiting both monetary and injunctive relief in copyright infringement actions where the infringer had previously undertaken good faith, reasonably diligent, but unsuccessful searches for the owner of the infringed work.

Orphan Works. The report states that orphan works is "a term used to describe the situation where the owner of a copyrighted work cannot be identified and located by someone who wishes to make use of the work in a manner that requires permission of the copyright owner".

The report explains the problem created by orphan works. "Where the proposed use goes beyond an exemption or limitation to copyright, the user cannot reduce the risk of copyright liability for such use, because there is always a possibility, however remote, that a copyright owner could bring an infringement action after that use has begun. Concerns have been raised that in such a situation, a productive and beneficial use of the work is forestalled -- not because the copyright owner has asserted his exclusive rights in the work, or because the user and owner cannot agree on the terms of a license -- but merely because the user cannot locate the owner. Many users of copyrighted works have indicated that the risk of liability for copyright infringement, however remote, is enough to prompt them not to make use of the work. Such an outcome is not in the public interest, particularly where the copyright owner is not locatable because he no longer exists or otherwise does not care to restrain the use of his work."

The report attributes the problem, in part, to the 1976 copyright act, which provided that works are protected from the moment they are fixed in a tangible medium of expression, and need not be registered with the CO. (The report makes no recommendation to change this.)

The report concludes that "there is good evidence that the orphan works problem is real and warrants attention". It discusses proposed solutions, and offers proposed statutory language.

Summary of CO Proposal. The report notes that the CO lacks statutory authority to address this problem by rulemaking. The report recommends that the Congress enact legislation to address the problem. It proposes adding a new Section 514 to the Copyright Act titled "Limitations on Remedies: Orphan Works".

However, while the term "Orphan Works" appears in the title, this section neither defines the term, nor establishes a class of works known as "orphan works". Rather, the proposed language limits the monetary and injunctive remedies available to the copyright owner in an action for infringement where the infringer has been unable to locate the owner after a "good faith, reasonably diligent search". The CO's proposed language does not define this term.

Thus, no particular work is classified as an orphan work. Instead, remedies are limited in certain actions based upon the efforts of the infringer to locate the owner. Hypothetically, one work could fall within the scope of the Section 514 orphan works limitation in one action, but not fall within the scope of the orphan works limitation in another action. For example, the infringer in one action might have conducted a diligent search, but the infringer in another action might not.

The fair use and other limitations now in the Copyright Act operate similarly. That is, if two persons copy from the same copyrighted work, one may be protected by the fair use limitation, while the other may not, depending on the nature of their uses. But what is novel about the present CO proposal is that copying the same work, in the same manner, for the same purpose, and with the same harm to the owner, can be treated differently.

Fair use and other limitations on the exclusive rights of copyright are codified in Chapter 1 of the Copyright Act, titled "Subject Matter and Scope of Copyright". The proposed Section 514 would not be codified in Chapter 1. Rather, it would be placed in Chapter 5, titled "Copyright Infringement and Remedies".

Moreover, the report states that "The limitation on remedies we propose is not intended in any way to affect the existing scope of copyright protection ...".

The report does propose to limit injunctive relief, which is a limitation on the exclusive rights of copyright.

The CO proposal does not affect the duration of copyright, or procedure for registration of copyrights.

The CO proposal would prevent the owner from recovering either actual damages, statutory damages or attorneys fees. However, the owner would be able to recover "reasonable compensation for the use of the infringed work". The body of the report, but not the proposed legislative language, states that this term "is intended to represent the amount the user would have paid to the owner had they engaged in negotiations before the infringing use commenced".

The CO proposal would preclude injunctive relief for many infringements that are in the nature of creation of derivative works. It provides that in other cases, the court "may" (the CO language does not use the word "shall") impose injunctive relief. However, the "relief shall to the extent practicable account for any harm that the relief would cause the infringer due to the infringer’s reliance on this section in making the infringing use".

The CO proposal takes into consideration only the efforts of the infringer in seeking to locate the copyright owner, and not the efforts of copyright owner in attempting place the public on notice of the copyright, its owner, and contact information, or other efforts of the copyright owner to protect his interests.

Nor does the proposal take into consideration the extent or nature of the copying. Use of a quote from a large work would not be treated differently from copying the entire work, for the purpose of Section 514 analysis. Nor does the CO proposal take into consideration the age of the work, whether or not it has been published, or whether or not it has been registered.

The proposed language sets a broad statutory standard. It provides no instructions or authorization to the Copyright Office to write implementing regulations. It creates no new adjudicatory body. It would leave to the federal judiciary adjudication of disputes, and interpretation of Section 514's meaning -- and especially the meaning of the phrase "good faith, reasonably diligent search". Although, other terms and provisions would also require court interpretation, including "reasonable compensation", and wherein lies the burden of proof.

The proposed language may be in the nature of an affirmative defense. However, the language does not specify that it creates an affirmative defense, or that the burden of proof lies with the infringer.

It may be pertinent that the comment of the Glushko-Samuelson Intellectual Property Law Clinic argued that "the user would have the initial burden of proving the efforts that he or she made to locate the owner prior to commencing use", and that "Thereafter, the burden would shift to the copyright owner to prove that, under all the facts and circumstances, those efforts were not ``reasonable.´´"

Finally, the CO proposal contains a ten year sunset clause. This would compel the Congress to reexamine the issue within ten years, and make a determination as to whether or not to extend and/or amend the statute.

Proposed Statutory Language. The Copyright Office's proposed legislative language is, in full, as follows:

SECTION 514: LIMITATIONS ON REMEDIES: ORPHAN WORKS
  (a) Notwithstanding sections 502 through 505, where the infringer:
    (1) prior to the commencement of the infringement, performed a good faith, reasonably diligent search to locate the owner of the infringed copyright and the infringer did not locate that owner, and
    (2) throughout the course of the infringement, provided attribution to the author and copyright owner of the work, if possible and as appropriate under the circumstances, the remedies for the infringement shall be limited as set forth in subsection (b).
  (b) LIMITATIONS ON REMEDIES
    (1) MONETARY RELIEF
      (A) no award for monetary damages (including actual damages, statutory damages, costs or attorney’s fees) shall be made other than an order requiring the infringer to pay reasonable compensation for the use of the infringed work; provided, however, that where the infringement is performed without any purpose of direct or indirect commercial advantage, such as through the sale of copies or phonorecords of the infringed work, and the infringer ceases the infringement expeditiously after receiving notice of the claim for infringement, no award of monetary relief shall be made.
    (2) INJUNCTIVE RELIEF
      (A) in the case where the infringer has prepared or commenced preparation of a derivative work that recasts, transforms or adapts the infringed work with a significant amount of the infringer’s expression, any injunctive or equitable relief granted by the court shall not restrain the infringer's continued preparation and use of the derivative work, provided that the infringer makes payment of reasonable compensation to the copyright owner for such preparation and ongoing use and provides attribution to the author and copyright owner in a manner determined by the court as reasonable under the circumstances; and
      (B) in all other cases, the court may impose injunctive relief to prevent or restrain the infringement in its entirety, but the relief shall to the extent practicable account for any harm that the relief would cause the infringer due to the infringer’s reliance on this section in making the infringing use.
  (c) Nothing in this section shall affect rights, limitations or defenses to copyright infringement, including fair use, under this title.
  (d) This section shall not apply to any infringement occurring after the date that is ten years from date of enactment of this Act.

Public Comments. In January of 2005 the CO issued a Notice of Inquiry requesting public comments on this topic. It received over 850 comments. However, many of these did not relate to orphan works. See, the CO's web pages with hyperlinks to initial comments and reply comments.

For example, the joint comment [10 pages in PDF] of the Association of American Publishers (AAP), Association of American University Presses (AAAP), and the Software & Information Industry Association (SIIA) proposed legislation containing a limitation of remedies for infringement where the infringer had engaged in a good faith diligent, but unsuccessful, search for the copyright owner. That is, their proposal is similar to what the Copyright Office now proposes. However, the CO proposal goes further in limiting injunctive relief than was advocated by these commenters.

The Public Knowledge (PK), an interest group that favors weaker intellectual property rights and remedies, argued in its initial comment [11 pages in PDF] in March of 2005 to the CO that there should be no award of injunctive relief or attorneys fees, and only token monetary damages.

Gigi Sohn, head of PK, stated in a release on February 1, 2006, that the CO should have gone further in its proposals to limit the remedies of copyright holders. She argued that the Congress should put a minimal statutory cap on monetary damages of $200 per use. See also, the PK's web section on orphan works.

The Glushko-Samuelson Intellectual Property Law Clinic (GS) of the American University law school submitted an intial comment last March that not only argued for shifting the burden of proof to the copyright owner, but also for allowing the infringer "to determine what constitutes a reasonable effort in each instance". It added that the CO "could provide general information for potential users on its website, including links to the sites of relevant professional organizations." It also argued that there should be no injunctive relief for qualified users, and only token monetary damages.

The NetCoalition, whose members include Bloomberg, CNET, Google, and Yahoo, submitted a comment [PDF] that supports the GS proposal. The NetCoalition wrote that it "strongly supports the amendment of the Copyright Act to eliminate the barriers it places on the dissemination of orphan works. A statutory framework for orphan works should be simple so as to avoid unnecessary transaction costs. It should apply to all categories of works in order to maximize the benefit to society. It should not place onerous burdens on owners to preserve their copyrights. It should contain safeguards to prevent abuse prejudicial to copyright owners. And it should contain a mechanism for providing limited compensation to owners who object to the unauthorized publication of their works." It added that the GS proposal "is one possible approach that meets all these criteria. We urge the Copyright Office to consider it carefully."

The Home Recording Rights Coalition (HRRC) and the Consumer Electronics Association (CEA) also submitted a joint comment [3 pages in PDF] in support of the GS proposal.

See also, comment of the Library Copyright Alliance, which includes the American Library Association, and other library related interest groups.

See also, comment of the Recording Industry Association of America (RIAA), comment of the Motion Picture Association of America (MPAA).

Availability of Copyright Information. The CO's recommendation focuses only on limitation of owner's remedies, based upon users' diligent searches. It contains no legislative proposals directed at increasing the availability of information about copyrights.

For example, many commenters proposed that various forms of databases containing copyright ownership information be created and maintained, with public access.

The CO report makes no legislative recommendations that pertain to registration, CO databases, or private sector databases. However, the CO report discusses, and rejects, various proposals. It states that "many of the proposed solutions involve registries or other databases of owner or user information, some of which would be administered by the Copyright Office. While it may be the case that such administrative mechanisms might ultimately be of great assistance in helping put owners and users of orphan works together, it is our view, at this time, that such systems would likely entail more resources and efforts than the proponents anticipate or are readily available without providing offsetting benefits, and therefore should only be implemented when a clear need for them is presented." (Footnote omitted.)

The CO report makes no recommendations that the Congress require and fund the CO to maintain any new databases. The CO report makes no recommendations pertaining to incenting authors to register copyrights, for example, by reducing registration fees, or by bringing clarity to the registration procedures.

The CO's proposal similarly contains nothing that would incent private sector entities to collect, organize, and make available to the public information about copyrights.

One impediment to the creation of private sector, publicly available, databases containing copyright information is that the cost of creating and maintaining such databases is high, yet copyright law affords little protection to databases. The Congress declined to enact such protection following the Supreme Court's 1991 opinion in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340.

Section 514 Litigation. The CO proposal addresses the problem of meritorious use of orphan works following good efforts to locate owners. It does not address non-meritorious assertion of an orphan works defense as a dilatory litigation tactic.

Good faith, diligence, and reasonableness are all complex factual issues. Resolution could entail extended discovery, including requests for documents, interrogatories, depositions spread across the country, discovery disputes, and extensive briefing and affidavits in support of, and in opposition to, Section 514 motions for summary judgment. Also, for many years, the courts would be occupied with interpreting the meaning of Section 514. This would entail considerable time and expense for the parties to the litigation.

Litigation to enforce copyright interests is already more complex, time consuming, and expensive than litigation to enforce most other forms of property rights. The proposed Section 514 would provide relief to meritorious users of orphan works. It would offer the public benefits that would flow from this. It would also offer non-meritorious copiers another means to delay and burden litigation with a frivolous defenses.

Origins of the CO Report. Sen. Orrin Hatch (R-UT), Sen. Patrick Leahy (D-VT), Rep. Lamar Smith (R-TX), and Rep. Howard Berman (D-CA) requested the CO report. Sen. Hatch is a senior member of the Senate Judiciary Committee (SJC). Sen. Leahy is the ranking Democrat. Rep. Smith and Rep. Berman are the Chairman and ranking Democrat on the House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet and Intellectual Property (CIIP).

Rep. Smith stated in a release on February 1 that "The current process for dealing with orphan works inhibits the creation of new uses of these works ... This report will shed light on the problem and potential answers."

Numerous persons in the CO worked on this report. Jule Sigall (Associate Register for Policy and International Affairs) was the principal drafter of the report. Oliver Metzger (Attorney Advisor), Matt Skelton (Attorney Advisor), and Rob Kasunic (Principal Legal Advisor in the Office of General Counsel) also worked on research and drafting.

See also, CO's report with appendices [PDF] and the CO's web section on orphan works. This is a long and carefully drafted report. Readers interested in the topic should read the report.

The House will next meet on February 7.

The Senate will meet at 9:30 AM.

CANCELLED. 9:30 AM. The Senate Judiciary Committee may hold an executive business meeting. See, notice. The SJC frequently cancels or postpones meetings without notice. Location: Room 226, Dirksen Building.

12:00 NOON - 1:30 PM. The DC Bar Association will host a panel discussion titled "State Sales Tax and Congress: An Update on the SST and Corresponding Federal Legislation". The topics will include the 1992 opinion of the Supreme Court in Quill v. North Dakota, which is reported at 504 U.S. 298, and Senate bills S 2152, the "Sales Tax Fairness and Simplification Act", and S 2153, the "Streamlined Sales Tax Simplification Act ". The speakers will include Neal Osten (National Conference of State Legislatures), Maureen Riehl (National Retail Federation), and Leonard Bickwit (Miller & Chevalier). The price to attend ranges from $15-$27. For more information, call 202 626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

TIME CHANGE. 10:00 AM. The Senate Judiciary Committee (SJC) may hold a hearing on the nomination of Paul McNulty to be the Deputy Attorney General. See, notice. The SJC frequently cancels or postpones hearing without notice. Location: Room 226, Dirksen Building.

3:00 - 4:30 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "Knowledge and the Growth Process: The Case of India". The speakers will be Sam Pitroda (National Knowledge Commission), John Calfee (AEI), Tarun Das (Confederation of Indian Industry), Victoria Espinel (Office of the USTR), and James Glassman (AEI). See, notice. Location: 12th, 1150 17th St., NW.

Deadline to submit reply 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 to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [24 pages in PDF] regarding amendments to its unsolicited facsimile advertising rules and the established business relationship (EBR) exception to the rules. This NPRM was adopted by the FCC on December 9, 2005, and released on December 9, 2005. It is FCC 05-206 in CG Docket No. 02-278. See, notice in the Federal Register, December 19, 2005, Vol. 70, No. 242, at Pages 75102 - 75110.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to a petition for declaratory ruling [34 pages in PDF] filed by the Fax Ban Coalition that asks the FCC to find that the FCC has exclusive authority to regulate interstate commercial fax messages, and that § 17538.43 of the California Business and Professions Code, and all other State laws that purport to regulate interstate facsimile transmissions, are preempted by the TCPA, which is codified at 47 U.S.C. § 541.

The House will meet at 2:00 PM in pro forma session. See, Republican Whip Notice.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Mobile Relay Association v. FCC, No. 04-1413. Judges Sentelle, Henderson and Tatel will preside. This is a case regarding the FCC reorganization of the 800 MHz band. See, FCC brief [PDF]. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

Super Bowl Sunday.

9:30 AM. The Senate Judiciary Committee will hold a hearing titled "Wartime Executive Power and the NSA’s Surveillance Authority". The witnesses will include Attorney General Alberto Gonzales. Press contact: Blain Rethmeier (Specter) at 202 224-5225. Location: Room 216, Hart Building.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Paradise Cable v. FCC, No. 05-1040. Judges Ginsburg, Henderson and Randolph will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Net Neutrality". See, notice. 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. Location: Room 562, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Arendi USA v. Microsoft, an appeal from the U.S. District Court (DRI) in patent infringement case involving smart tags in Microsoft's Office XP. This is App. Ct. No. 05-1170. Location: Courtroom 402, 717 Madison Place, NW.

1:00 PM. The House Ways and Means Committee will hold a hearing titled "President's Fiscal Year 2007 Budget with U.S. Department of the Treasury Secretary John Snow". See, notice. Location: Room 1100, Longworth Building.

5:00 PM. Deadline to submit applications to the National Telecommunications and Information Administration (NTIA) for Public Telecommunications Facilities Program (PTFP) grants for fiscal year 2006. See, NTIA notice and notice in the Federal Register, December 13, 2005, Vol. 70, No. 238, at Pages 73737 - 73738.

8:15 AM - 4:30 PM. The Center for Democracy and Technology (CDT) will host an event titled "2006 Internet Caucus State of the Net Conference". See, notice. For more information, contact Danielle Yates at dyates at netcaucus dot org or 202 638-4370. Location: Hyatt Regency Capitol Hill, 400 New Jersey Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in All Computers, Inc. v. Intel, an appeal from the U.S. District Court (EDVa). This is App. Ct. No. 05-1271. Location: Courtroom 402, 717 Madison Place, NW.

10:00 - 11:30 AM. The American Enterprise Institute (AEI) will host a panel discussion titled "The Tenth Anniversary of the Telecommunications Act of 1996: A Tough Act to Follow?". The speakers will be Kevin Martin (FCC Chairman), former Sen. Ernest Hollings (D-SC), former Sen. Larry Pressler (R-SD), former Rep. Tom Bliley (R-VA), and Harold Furchtgott-Roth (former FCC Commissioner). See, notice. Location: 12th, 1150 17th St., NW.

12:00 NOON - 1:30 PM. The DC Bar Association will host a panel discussion titled "State Sales Tax and Congress: An Update on the SST and Corresponding Federal Legislation". The topics will include the 1992 opinion of the Supreme Court in Quill v. North Dakota, which is reported at 504 U.S. 298, and Senate bills S 2152, the "Sales Tax Fairness and Simplification Act", and S 2153, the "Streamlined Sales Tax Simplification Act ". The speakers will include Neal Osten (National Conference of State Legislatures), Maureen Riehl (National Retail Federation), and Leonard Bickwit (Miller & Chevalier). The price to attend ranges from $15-$27. For more information, call 202 626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

2:00 - 4:00 PM. The Department of State's International Telecommunication Advisory Committee (ITAC) will hold the fifth in a series of weekly meetings to prepare for the International Telecommunications Union's (ITU) 2006 ITU Plenipotentiary Conference, to be held November 6-24, 2006, in Antalya, Turkey. See, notice in the Federal Register, December 21, 2005, Vol. 70, No. 244, at Page 75854. This notice incorrectly states that these meetings will be held on Tuesdays; they are on Wednesdays. For more information, contact Julian Minard at 202 647-2593 or minardje at state dot gov. Location: AT&T, 1120 20th St., NW.

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing on protecting consumer phone records. Sen. George Allen (R-VA) will preside. See, notice. 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. Location: Room 562, Dirksen Building.

5:00 - 7:00 PM. The Center for Democracy and Technology (CDT) will host its "Ninth Annual Reception and Technology Fair". See, notice. Location: __.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host a continuing legal education (CLE) seminar titled "The New Telecom Bills -- The Return of the Tax Certificate? & The Future of FCC Designated Entity (DE) Credits". The speakers will be Carolyn Williams (Director of the FCC's Office of Communications Business Opportunities), Dirck Hargraves (Issue Dynamics), David Honig (Minority Media and Telecommunications Council), Jeneba Ghatt (The Ghatt Law Group), Jenell Trigg (Leventhal Senter & Lerman), and Andrew Barrett (The Barrett Group). See, notice [MS Word] and registration form [MS Word]. The price to attend ranges from $50-$175. Location: Hogan & Hartson.

Deadline to submit to the Copyright Royalty Board (CRB) petitions to participate in three proceedings to determine reasonable rates and terms of royalty payments. See, notice in the Federal Register (January 9, 2006, Vol. 71, No. 5, at Pages 1453 - 1454) regarding the commencement of a proceeding to determine the reasonable rates and terms for use of certain works in connection with noncommercial broadcasting; notice (January 9, 2006, Vol. 71, No. 5, at Pages 1454 - 1455) in the Federal Register regarding the commencement of a proceeding to determine the reasonable rates and terms for making and distributing phonorecords; and, notice (January 9, 2006, Vol. 71, No. 5, at Page 1455) in the Federal Register regarding the commencement of a proceeding to determine the reasonable rates and terms for preexisting subscription and satellite digital audio radio services. See also, story titled "Copyright Royalty Board Commences Proceedings" in TLJ Daily E-Mail Alert No. 1,285, January 9, 2006.

Deadline for the parties in U.S. v. Microsoft, D.C. No. 98-1232 (CKK), to file their next Joint Status Report with the U.S. District Court.

9:00 AM - 5:30 PM. The Anti-Spyware Coalition (ASC) will host a one day conference titled "Anti-Spyware Coalition Public Workshop: Defining the Problem, Developing Solutions". The speakers will include FTC Chairman Deborah Majoras, Walt Mossberg (Wall Street Journal Columnist), and Susannah Fox (Pew Internet and American Life). See, agenda. For more information, contact Ari Schwartz of the Center for Democracy and Technology (CDT) at 202 637-9800. The price to attend is $200 (for registrations before December 3), $250 (after December 3). The ASC states that "The event is free for press. Contact David McGuire, (202) 637-9800 x106 to obtain credentials." Location: Hyatt Regency Capitol Hill, 400 New Jersey Ave., NW.

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).

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Transportation Security Administration's Aviation Passenger Pre-Screening Programs -- Secure Flight and Registered Traveler". The witnesses will be Kip Hawley (Assistant Secretary, Transportation Security Administration), Cathleen Berrick (GAO), James May (Air Transport Association of America), Charles Barclay (American Association of Airport Executives), Tim Sparapani (ACLU), and Bill Connors (National Business Travel Association). The hearing will be webcast by the SCC. Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. See notice. Location: Room 562, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Fiber Optic Design v. Season Special, App. Ct. No. 05-1488. Location: Courtroom 201, 717 Madison Place, NW.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "E-Mail and the Securities Regulators: The View From All Sides". The speakers will include Donald Dowie (SEC's Division of Enforcement), Kevin Carroll (NASD's Enforcement Department), Ann Griffith (Friedman Billings Ramsey Group), Jay Perlman (O'Melveny & Myers), Daniel Regard (LECG), Julian Ackert (LECG), and Ivan Knauer (Bingham McCutchen). The price to attend ranges from $5-$10. For more information, call 202 626-4363. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

2/1. President Bush gave a speech in Nashville, Tennessee, in which he repeated and reinforced many of the points that he made in his January 31 state of the union speech.

For example, he again defended electronic surveillance being conducted by the National Security Agency (NSA). He said that "I've authorized NSA to listen to a phone call from outside the United States in, or inside the United States out. In other words, this is not a program where we're listening to phone calls inside the United States. One of the people making the call has to be al Qaeda, suspected al Qaeda, and/or affiliate."

He continued that "Federal courts have ruled that the President -- a President has constitutional authority to use foreign intelligence surveillance against enemies. Previous Presidents have used the same constitutional authority I have. I've got statutory authority, as well. The Congress passed the authorization to use military force against al Qaeda after September the 11th, and the Supreme Court, in a recent opinion, ruled that the President -- the Congress gave me the authority to use what's called the ``fundamental incidents of war.´´"

"In other words, Congress authorized me to use force in the fundamental incidents of war, which means in this case, you can't defeat the enemy until you know when the enemy is going to hit. And therefore, using this surveillance to find out the intention of the enemy is a fundamental incident of war to protect the American people. Let me put it to you in Texan: If al Qaeda is calling into the United States, we want to know", said Bush.

He also touched again on trade. "Protectionism doesn't work". He added that "It's important for us to stay competitive to open up markets. The temptation is to shut markets down. I'm confident in our ability."

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