7/19. Brad Smith, Microsoft's General Counsel, gave a speech in Washington DC titled "How Will Microsoft Enhance Windows While Promoting Competition?" He discussed what Microsoft will do when parts of the 2002 antitrust order and consent decree expire. Microsoft also released a document titled "Windows Principles: Twelve Tenets to Promote Competition".

Many provisions of the 2002 antitrust order expire in November of 2007. Although, the parties to the government antitrust actions have agreed to extend until 2009 provisions in the 2002 order that apply to the licensing of client server communication protocols.

Microsoft has also stated that it will release its Windows Vista operating system sometime in 2007.

Smith (at right) stated that "Through the set of voluntary Windows principles that we are announcing and adopting today, we're taking a principled, transparent and accountable approach to the future of our operating system."

He asserted that "We're ensuring that computer manufacturers will have choice; that software developers will have opportunities to build great products on top of Windows, and that users will have interoperability among disparate computer systems and applications."

The statement of principles released by Microsoft states that they only apply to "Windows desktop development projects going forward". Microsoft has, and will continue to develop, products other than its desktop operating systems. This statement does not apply to them.

This statement attempts to address topics in the 2002 antitrust order, which pertains to the Windows desktop operating system. Microsoft's statement does not, however, address several desktop operating system issues. For example, it does not attempt to satisfy the European Commission, which continues to demand that Microsoft make large payments to it in connection with its 2004 Commission Decision [302 pages in PDF]. Nor is there anything in Microsoft's statement about information security, individual privacy, or law enforcement and intelligence agency activities.

OEMs. The statement first addresses Microsoft's relationship with original equipment manufacturers (OEMs). It states that "Computer manufacturers and customers are free to add any software to PCs that run Windows" and are "free to install and promote any operating system, any application, and any Web service on PCs that run Windows."

This statement elaborates that OEMs "are free to add icons, shortcuts and the like to the Windows Start menu and other places used to access software programs" and that "Microsoft will design Windows so as to enable computer manufacturers and users to set non-Microsoft programs to operate by default in key categories, such as Web browsing and media playback, in lieu of corresponding end-user functionality in Windows. Computer manufacturers are free to set these defaults as they please when building new PCs."

This statement further provides that OEMs "will have the right to remove the means by which end users access key Windows features", such as MSIE and MediaPlayer, and that the "Set Program Access and Defaults utility developed as part of the U.S. antitrust ruling makes it easy for users and computer manufacturers to exercise these options."

This statement also asserts that "Microsoft will not retaliate against any computer manufacturer that supports non-Microsoft software" and that "Microsoft will offer Windows for license on standard terms and conditions so that a computer manufacturer knows that it will be offered the same licensing terms regardless of its decision to promote or not promote software from competitors."

Developers and APIs. The statement of principles next addresses Microsoft's relationship with developers. It states that "Microsoft provides the developer community with a broad range of innovative operating system services, via documented application programming interfaces (APIs), for use in developing state-of-the-art applications. The U.S. antitrust ruling requires that Microsoft disclose all of the interfaces internal to Windows called by ``middleware´´ within the operating system, such as the browser, the media player and so forth."

The statement says that "we will continue to disclose these interfaces even after the U.S. antitrust ruling expires. In fact, we will go further, extending our API commitment to the benefit of all software developers. Going forward, Microsoft will ensure that all the interfaces within Windows called by any other Microsoft product, such as the Microsoft Office system or Windows LiveTM, will be disclosed for use by the developer community generally."

It also states that "Microsoft will design Windows Live as a product that is separate from Windows. Customers will be free to choose Windows with or without Windows Live."

Smith stated in his speech that this is "an issue that has really come to the forefront since the U.S. antitrust ruling". He added that Microsoft will design Windows Live as a product that's separate from Windows, so customers will be free to choose Windows with or without Windows Live and building upon the prior tenet, all of the APIs in Windows that are accessible to Windows Live will be accessible to other web services as well."

The statement also states that the "antitrust ruling generally provides that Microsoft may not enter into contracts that require any third party to promote Windows or any ``middleware´´ in Windows on an exclusive basis. We will maintain this practice going forward, and in fact broaden it to apply to Windows or any part of Windows, whether or not it would qualify as "middleware" under the U.S. antitrust ruling."

Net Neutrality. The statement also addresses issues related to open access and net neutrality. It also states that "Microsoft will design and license Windows so that it does not block access to any lawful Web site or impose any fee for reaching any non-Microsoft Web site or using any non-Microsoft Web service."

Smith stated that this "addresses open Internet access. It commits, if you will, that Microsoft will honor the principle of net neutrality. We will never charge a fee for the use of Microsoft Windows to access any legitimate site or service on the Internet."

There are numerous proposals being considered by the House and Senate that relate to network neutrality. None has yet been enacted into law. However, the Federal Communications Commission (FCC) in August of 2005 adopted a policy statement [3 pages in PDF] related to network neutrality.

Microsoft's statement of principles follows the first and second elements of the FCC's policy statement, which provide that "consumers are entitled to access the lawful Internet content of their choice", and that "consumers are entitled to run applications and use services of their choice".

However, neither Smith, nor the written statement of principles, addressed the fourth element of the FCC's policy statement, which provides that "consumers are entitled to competition among network providers, application and service providers, and content providers".

Moreover, the FCC's policy statement is qualified by the clause, "subject to the needs of law enforcement". Neither the statement, nor Smith's speech, addressed this.

Smith was asked to elaborate on net neutrality during the question and answer session. He said that "antitrust enforcement clearly is very important. I think that's been proven in the case of software, and I don't meet general counsel in any major company who would question that premise. In no doubt, antitrust rules and enforcement will continue to play a very important role to new technologies and practices with respect to the Internet."

He added that the key antitrust statute prohibiting monopolization is only two sentences long. This, he said "places quite a substantial burden, I think, on government officials, on judges, on lawyers, and companies to try to predict what the law is going to be."

He also spoke vaguely about legislative proposals. He said that when "we get to a point where the dust has settled, the issues are more concrete, and you can get some codification, that's not bad. And sometimes it's codification in the antitrust arena, but frankly, more often it is then picked up in another regulatory area. And I think that is why I think that the -- whether one agrees or disagrees that a particular bill should be passed, I think it's healthy that everybody is engaged in this kind of dialogue about what the rules of the road will be as the internet moves forward."

Interoperability, Licensing and Standards. Finally, Microsoft's statement of principles addresses interoperability. It states that "Microsoft will make available, on commercially reasonable terms, all of the communications protocols that it has built into Windows and that are used to facilitate communication with server versions of Windows."

It also provides that Microsoft "will generally license patents on its operating system inventions (other than those that differentiate the appearance of Microsoft's products) on fair and reasonable terms so long as licensees respect Microsoft's intellectual property rights." (Parentheses in original.)

And, it states that "Microsoft is committed to supporting a wide range of industry standards in Windows that developers can use to build interoperable products. Microsoft is committed to contributing to industry standard bodies as well as working to establish standards via ad hoc relationships with others in the industry."

7/18. Brian Besanceney, the Department of Homeland Security's (DHS) Assistant Secretary for Public Affairs, will leave on July 28, 2006. He will become the Department of State's Deputy Chief of Staff for Planning. See, DHS release.

7/20. The House approved HR 5684, the "United States-Oman Free Trade Agreement Implementation Act", by a vote of 221-205. See, Roll Call No. 392. Republicans voted 199-28 for the bill. Democrats voted 22-177.

7/19. The U.S. Court of Appeals (9thCir) issued its per curiam opinion [45 pages in PDF] in Miller v. Glenn Miller Productions, affirming the judgment, and adopting the opinion, of the District Court in favor of Glenn Miller Productions. The Courts held that a licensee of trademark and related publicity rights may not sublicense those rights to third parties without express permission from the original licensor. That is, the Court followed other jurisdictions in extending the sublicensing rule from copyright and patent law to the licensing of trademark and related publicity rights. However, Glenn Miller Productions prevailed because the plaintiffs were barred by the doctrine of laches. This case is Jonnie Miller, et al. v. Glenn Miller Productions, Inc., U.S. Court of Appeals for the 9th Circuit, App. Ct. Nos. 04-55874 and No. 04-55994, appeals from the U.S. District Court for the Central District of California, D.C. Nos. CV-03-00529-AHM and CV-03-00529-AHM, Judge Howard Matz presiding.

7/18. The U.S. Court of Appeals (11thCir) issued its opinion [15 pages PDF] in International Stamp Art v.  U.S. Postal Service, affirming the District Court's summary judgment for the US Postal Service (USPS) on International Stamp Art's (ISA) claim of trademark infringement, pursuant to the defense of fair use. ISA registered the mark, the parties stipulated that the mark is incontestable, and the USPS used it. However, it asserted the defense of fair use. The Court of Appeals wrote that a fair use defense is established if a defendant proves that its use is (1) other than as a mark, (2) in a descriptive sense, and (3) in good faith. The only issue in this case is the third element -- good faith. The Court of Appeals held that good faith element means that the defendant must have "intended to benefit from the good will". The Court of Appeals concluded that the USPS had not, so its use was in good faith, and the fair use defense succeeds. This case is International Stamp Art, Inc. v.  U.S. Postal Service, U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 05-13492, an appeal from the U.S. District Court for the Northern District of Georgia, D.C. No. 02-02459-CV-TWT-1.

7/17. The Government Accountability Office (GAO) released a report [76 pages in PDF] titled "Information Technology: Agencies and OMB Should Strengthen Processes for Identifying and Overseeing High Risk Projects".

7/17. The Consumer Electronics Association (CEA) and the Home Recording Rights Coalition (HRRC) filed an amicus curiae brief [25 pages in PDF] with the U.S. District Court (SDNY) in Atlantic Recording Corporation v. XM Satellite Radio. On May 16, 2006, Atlantic and other members of the Recording Industry Association of America (RIAA) filed their complaint against XM Satellite Radio alleging various copyright related claims. The nine count complaint alleges direct infringement of distribution rights, unauthorized digital phonorecord delivery, direct infringement of reproduction rights, and ephemeral recordings infringement. It also alleges inducement of infringement, and contributory and vicarious infringement  The complaint alleges that XM's services are not like traditional terrestrial broadcast radio. The complaint alleges that XM provides a "digital download subscription service that obliterates the careful limits Congress imposed in Section 114". The CEA and HRRC assert that the RIAA's copyright claims are barred by the Audio Home Recording Act of 1992 (AHRA), which is codified at 17 U.S.C. § 1001, et seq. See also, stories titled "Summary of the RIAA Lawsuit Against XM Satellite Radio", "Summary of the Sen. Feinstein's Perform Act", and "Music Licensing, Satellite Radio, and Perform Act Debated" in TLJ Daily E-Mail Alert No. 1,384, June 5, 2006.

The House will meet at 10:00 AM for legislative business. It will consider HR 5684, the "United States-Oman Free Trade Agreement Implementation Act". See, Republican Whip Notice.

The Senate will meet at 9:30 AM. It will begin consideration of HR 9, the voting rights reauthorization bill.

9:30 AM. The House Ways and Means Committee will hold an event titled "Informal Markup" of the draft implementing proposal of HR __, the "United States-Peru Trade Promotion Agreement Implementation Act". Location: Room 1100, Longworth Building.

CANCELLED. 9:30 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. See, notice. The SJC frequently cancels or postpones meetings without notice. The SJC rarely follows its published agenda. Press contact: Courtney Boone at 202-224-5225. Location: Room 226, Dirksen Building.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing on HR 5785, the "Warning, Alert, and Response Network Act of 2006". See, notice. Press contact: Larry Neal (Barton) at 202-225-5735 or Sean Bonyun (Upton) at 202-225-3761. Location: Room 2123, Rayburn Building.

10:00 AM. The House Financial Services Committee (HFSC) will hold a hearing to hear testimony from Federal Reserve Board (FRB) Chairman Ben Bernanke. Location: Room 2128, Rayburn Building.

10:00 AM. The House International Relations Committee (HIRC) will hold a hearing titled "Asian Free Trade Agreements:  Are They Good for the USA?" The witness will include Karan Bhatia, Deputy U.S. Trade Representative. See, notice. Location: Room 2172, Rayburn Building.

10:00 AM - 12:00 NOON. The House Science Committee will hold a hearing titled "How Can Technologies Help Secure Our Borders?" Location: Room 2138, Rayburn Building.

10:00 AM - 3:00 PM. The Federal Communications Commission's (FCC) Technological Advisory Council will hold a meeting. See, FCC notice [PDF] and notice in the Federal Register, July 12, 2006, Vol. 71, No.133, at Page 39322. Location: FCC, Commission Meeting Room, TW-C305 at 445 12th St., SW.

11:30 AM. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will hold a hearing titled "Legislative Hearing on H.R. 682, the Regulatory Flexibility Improvements Act". See, HR 682 and notice of hearing. Press contact: Jeff Lungren or Terry Shawn at 202-225-2492.Location: Room 2141, Rayburn Building.

12:00 NOON. The Cato Institute will host an event titled "U.S. Trade Policy in the Wake of Doha: Why Unilateral Liberalization Makes Sense". The speakers will include Dan Ikenson (Cato) and Will Martin, lead economist at the World Bank's Development Research Group. Lunch will be served. See, notice and registration page. Location: Room B-339, Rayburn Building, Capitol Hill.

The Republican Whip Notice states that "the House will meet at 9:00 a.m. for legislative business".

10:00 AM. The House Homeland Security Committee's Subcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment will hold a hearing titled "The Homeland Security Information Network: An Update on DHS Information Sharing Efforts". The witnesses will include Charles Allen (DHS Chief Intelligence Officer). Location: Room 311, Cannon Building.

9:30 AM - 5:30 PM. The Antitrust Modernization Commission (AMC) will hold a meeting to deliberate on possible recommendations regarding the antitrust laws to Congress and the President. The meeting is open to the public, but registration is required. See, notice in the Federal Register, June 23, 2006, Vol. 71, No. 121, at Pages 36059-36060.

10:30 AM. The Senate Finance Committee will hold a hearing titled "How Much Should Borders Matter?: Tax Jurisdiction in the New Economy". The witnesses will be Sen. Michael Enzi (R-WY), Sen. Byron Dorgan (D-ND), Daniel Noble (Wyoming Department of Revenue), George Isaacson (Brann & Isaacson, Lewiston), Christopher Rants (Speaker of the Iowa House of Representatives), Robert Benham (Balliet's, LLC), Gary Imig (Sierra Trading Post), Douglas Lindholm (Council on State Taxation), Dan Bucks (Montana Department of Revenue), and Michael Mundaca (Ernst & Young). See, notice. Location: Room 215, Dirksen Building.

11:30 AM. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will hold an oversight hearing titled "The 60th Anniversary of the Administrative Procedure Act: Where Do We Go From Here?" See, notice. The hearing will be webcast by the HJC. Press contact: Jeff Lungren or Terry Shawn at 202-225-2492. Location: Room 2141, Rayburn Building.

9:00 AM - 4:00 PM. Day one of a two day public meeting of the Federal Accounting Standards Advisory Board (FASAB). See, agenda [PDF] and notice in the Federal Register, July 12, 2006, Vol. 71, No. 133, at Pages 39318. Location: Room 7C13, GAO Building, 441 G St., NW.

9:30 AM - 5:30 PM. The Antitrust Modernization Commission (AMC) will hold a meeting to deliberate on possible recommendations regarding the antitrust laws to Congress and the President. The meeting is open to the public, but registration is required. See, notice in the Federal Register, June 23, 2006, Vol. 71, No. 121, at Pages 36059-36060.

12:00 NOON - 2:00 PM. The DC Bar Association's Intellectual Property Law Section will host a panel discussion titled "Introduction To Patent Law and Trade Secret Law". The speakers will include Steven Warner (Fitzpatrick Cella Harper & Scinto) and Milton Babirak (Babirak Vangellow & Carr). The price to attend ranges from $15-$30. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

2:00 - 5:00 PM. The National Telecommunications and Information Administration (NTIA) will hold a meeting regarding management of the internet domain name and addressing system. See, notice in the Federal Register, Federal Register, May 26, 2006, Vol. 71, No. 102, at Pages 30388-30389. Location: auditorium of the Department of Commerce's main building at 1401 Constitution Ave., NW.

9:00 AM. The House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property will hold a hearing on HR 5055, an untitled bill to amend the Copyright Act to provide to protection for fashion design. See, notice. Press contact: Jeff Lungren or Terry Shawn at 202-225-2492. Location: Room 2141, Rayburn Building.

9:00 AM - 4:00 PM. Day one of a two day public meeting of the Federal Accounting Standards Advisory Board (FASAB). See, agenda [PDF] and notice in the Federal Register, July 12, 2006, Vol. 71, No. 133, at Pages 39318. Location: Room 7C13, GAO Building, 441 G St., NW.

11:45 AM - 1:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch titled "The Role of Communications Trade Association Counsel and Policymakers". The speakers will be Dan Brenner (National Cable & Telecommunications Association), Carolyn Brandon (Cellular Telecommunications & Internet Association), Ann Bobeck (National Association of Broadcasters), Colin Sandy (National Exchange Carriers Association), and David Cavossa (Satellite Industry Association). Location: Willkie Farr & Gallagher, 1875 K Street, NW.

6:00 - 8:00 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Trade Secrets: Case Law Update 2006". The speakers will include Milton Babirak (Babirak Vangellow & Carr). 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.

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