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July 28, 2006, Alert No. 1,420.
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House Approves Health Sector IT Bill

4/27. The House approved HR 4157, the "Better Health Information System Act of 2006", by a vote of 270-148. See, Roll Call No. 416.

Republicans voted 214-9 for the bill. Democrats voted 56-138. Many of the Democrats who voted for this bill represent West Coast districts and/or frequently vote for legislation that promotes the development and use of information technologies.

The Democrats who voted for the bill include Ellen Tauscher and Zoe Lofgren from Silicon Valley, Jay Inslee and Adam Smith from the Seattle area, David Wu and Darlene Hooley from Oregon, Jane Harman and Loretta Sanchez from the Los Angeles area, as well as stalwart technophiles Rick Boucher (VA), James Moran (VA), and Bart Gordon (TN).

The Senate has not yet approved this bill. However, on December 18, 2005, it approved a related bill, S 1418, the "Wired for Health Care Quality Act".

HR 4157 was introduced on October 27, 2005, by Rep. Nancy Johnson (R-CT) as the "Health Information Technology Promotion Act of 2005".

This bill creates in the Department of Health and Human Services (DHHS) an Office of the National Coordinator for Health Information Technology to be headed by a National Coordinator for Health Information Technology.

The purpose of this bill, and this new office, is "the development of a nationwide interoperable health information technology infrastructure" and an "internet-based nationwide health information network".

Floor Debate. Rep. Joe Barton (R-TX) stated in the House that "This legislation should help move our health care system into the modern era and the modern information age."

He said that "Congress and most of the private sector have embraced it", but that "The health care system, for whatever reason, has not done that. For all of its medical genius and astonishing technology in terms of surgery and orthopedics and diagnosis, American health care is still stuck back in the 19th century, with a paper record system that is inefficient, wasteful, error-prone and occasionally dangerous. The legislation before us today should change that."

Rep. Barton elaborated that "The bill before us sets out a framework for endorsing core interoperability guidelines and mandates compliance for a Federal information system within 3 years of endorsement of such guidelines. Of vital importance are provisions contained in the legislation that create safe harbors to the Stark and Anti-kickback laws for the provision of health information technology and services to better coordinate care between hospitals and providers."

Rep. John Dingell (D-MI) called the bill "Bad legislation". He explained that "The Democrats sought a substitute to the committee bill under the rules. The Rules Committee, as usual, rejected it. So we are functioning under a gag rule. This alternative was identical to the bill the Senate passed unanimously last November with strong privacy protections, and with bipartisan sponsorship and support. The Senate bill, S. 1418, was jointly introduced after being negotiated between Senators Frist, Clinton, Enzi and Kennedy. But we won't be permitted to vote on it today."

Rep. John DingellRep. Dingell (at right) complained that the bill under consideration "makes no progress towards protecting the privacy and security of health information. Expanded use of electronic health care systems clearly has a great potential benefit, but it also poses serious threats to patients' privacy by creating greater amounts of personal information susceptible to thieves, rascals, rogues and unauthorized users."

Amendments. The House approved by voice vote an amendment [PDF] offered by Rep. Ruben Hinojosa (D-TX) regarding the availability of information and resources for individuals with low literacy.

The House approved an amendment [PDF] offered by Rep. Ed Towns (D-NY) by a vote of 417-1, See, Roll Call No. 414. This amendment provides for a study that provides benchmarks for best practices and cost effectiveness for the use of health information technology in medically underserved areas.

The House approved by voice vote an amendment [PDF] offered by Rep. Jesse Jackson (D-IL) that requires that emergency contact information or next of kin information be included in any process to modernize medical records.

The House approved by voice vote an amendment [PDF] offered by Rep. Henry Cuellar (D-TX) regarding the bill's health system grant program and coordination of care for the uninsured, underinsured, and medically underserved residing in geographically isolated areas or underserved urban areas.

The House approved by voice vote an amendment [PDF] offered by Rep. Tom Price (R-GA) that requires that the DHHS submit a report to Congress that evaluates the applicability of health care classification methodologies and codes for purposes beyond the coding services for diagnostic documentation or billing purposes, the usefulness, accuracy, and completeness of such methodologies and codes for such purposes, and the capacity of such methodologies and codes to produce erroneous or misleading information.

The House approved by voice vote an amendment [PDF] offered by Rep. Cathy McMorris (R-WA) and Rep. Adam Smith (D-WA) that directs the DHHS to establish a two year project to demonstrate the impact of health information technology on disease management for chronic disease sufferers within the Medicaid population. See also, McMorris release.

John Engler, head of the National Association of Manufacturers (NAM), stated in a release that "Health IT is a critical step in attaining higher quality health care and lower health costs ... We applaud supporters of this bill who clearly recognized that affordable and quality health care is a win-win for all consumers. The NAM believes that the best solutions in Health IT will be driven by the private sector, and this bill will facilitate those solutions".

Kazaa Settles With Music Companies

7/27. The Recording Industry Association of America (RIAA) announced in a release that "The major record companies have reached a global out-of-court settlement of international litigation against the operators of the Kazaa peer-to-peer network."

Sharman Networks owns Kazaa. See, Sharman release.

The RIAA stated that this settlement "concludes the ongoing legal proceedings brought by the record companies against the service's operators in Australia and the United States. Under the terms of the settlement, Kazaa has agreed to pay a substantial sum in compensation to the record companies that took the legal action to stop copyright infringement on the Kazaa network. Kazaa will also introduce filtering technologies ensuring that its users can no longer distribute copyright-infringing files."

On June 27, 2005, the Supreme Court issued its unanimous opinion [55 pages in PDF] in MGM v. Grokster, reversing the judgment of the U.S. Court of Appeals (9thCir) regarding vicarious copyright infringement by the distributors of peer to peer (P2P) systems. The Supreme Court held that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." See, story titled "Supreme Court Rules in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.

The Federal Court of Australia similarly found Kazaa to be in violation of its copyright law.

Mitch Bainwol, head of the RIAA, stated that "A little more than a year ago, the U.S. Supreme Court struck a wise balance between protecting innovation and the rights of creators ... This meaningful decision has helped bring legal and moral clarity to the marketplace. Services based on theft are going legit or going under, and a legal marketplace is showing real promise. That's encouraging news for the industry's ability to invest in new music."

Nikki Hemming, CEO of Sharman Networks, stated that "This settlement marks the dawn of a new age of cooperation between P2P technology and content industries which will promise an exciting future for online distribution in general and Kazaa users in particular".

Backgound on Litigation. The U.S. case is Metro-Goldwyn-Meyer Studios, et al. v. Grokster, Ltd., et al., U.S. District Court for the Central District of California, D.C. Nos. CV 01-08541-SVW (PJWx) and CV 01-09923-SVW (PJWx).

Metro Goldwyn Meyer (MGM), and other movie companies, and various record companies, filed a complaint in the U.S. District Court (CDCal) against Grokster, Streamcast and Kazaa alleging copyright infringement in violation of 17 U.S.C. 501. They alleged contributory and vicarious infringement. In addition, professional songwriters and music publishers filed a class action complaint against the same defendants alleging contributory and vicarious infringement. The two actions were consolidated.

The parties filed cross motions for summary judgment in the District Court regarding software provided by Grokster and Streamcast. On April 25, 2003, the District Court issued its opinion holding that Grokster's and Streamcast's P2P networks do not contributorily or vacariously infringe the copyrights of the holders of music and movie copyrights. See also, story titled "District Court Holds No Contributory or Vicarious Infringement by Grokster or Streamcast P2P Networks" in TLJ Daily E-Mail Alert No. 650, April 28, 2003

On August 19, 2004, the U.S. Court of Appeals (9thCir) issued its opinion [26 pages in PDF], affirming the District Court, and holding that Grokster's and Streamcast's P2P networks do not contributorily or vicariously infringe the copyrights of the holders of music and movie copyrights. See, story titled "9th Circuit Holds No Vicarious Infringement in Grokster Case" in TLJ Daily E-Mail Alert No. 963, August 20, 2004.

The Australia case is Universal Music Australia Pty Ltd & Ors v. Sharman License Holdings Ltd & Ors.

More News

7/28. The House Rules Committee adopted a closed rule for the consideration of HR 1956, the "Business Activity Tax Simplification Act of 2006" on Monday, July 24, 2006. The House Republican leadership initially scheduled this bill for consideration by the full House on Tuesday, July 25. A staff assistant to Rep. Bob Goodlatte (R-VA), the lead sponsor of the bill, told TLJ that the bill was then pulled from the calendar to allow time to respond to "misinformation" and "last minute scare tactics". The bill has not yet been considered by the full House. See also, story titled "House Subcommittee Holds Hearing on State Business Activity Taxes" in TLJ Daily E-Mail Alert No. 1,223, September 28, 2005.

7/27. The Senate Judiciary Committee held an executive business meeting. It again did not take up S 2453, the "National Security Surveillance Act of 2006", S 2455, the "Terrorist Surveillance Act of 2006", S 2468, a bill to provide standing for civil actions for declaratory and injunctive relief to persons who refrain from electronic communications through fear of being subject to warrantless electronic surveillance for foreign intelligence purposes, S 3001, the "Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006", S 2831, the "Free Flow of Information Act of 2006", and S 1845, the "Circuit Court of Appeals Restructuring and Modernization Act of 2005". All of these bills were on the agenda.

7/26. The House Commerce Committee (HCC) amended and approved HR 1078, the "Social Security Number Protection Act of 2005" by voice votes. The HCC approved an amendment [3 pages in PDF] offered by Rep. Ed Markey (D-MA), the sponsor of the bill.

7/26. Federal Trade Commission (FTC) announced that it will host a four day partially closed conference on November 6-9, 2006, titled "Protecting Consumers in the Next Tech-ade". The topics to be addressed include "The Changing Nature of Consumer Products, Mobile Devices and Marketing, Data Security and Privacy, Convergence, The Evolving Internet, Payment Systems and Trends, Advertising and Marketing Trends, and Demographic Shifts". The November 9 session is closed to the public. See, notice and conference web site. It will be held at George Washington University, Lisner Auditorium, 730 21st Street, NW.

7/26. The U.S. Patent and Trademark Office (USPTO) announced in a release that beginning on August 1, 2006, hearings conducted by the Board of Patent Appeals and Interferences (BPAI) and the Trademark Trial and Appeal Board (TTAB) will be open to the public.

7/25. The Cato Institute published a short paper arguing that compulsory jury service should be replaced with an all volunteer jury system.

7/20. The Copyright Office announced in a release that "The Copyright Card Catalog located in the James Madison Memorial Building of the Library of Congress will temporarily close to the public from August 14-18, 2006. The Records Room containing copyright registration records, also located in the Madison Building in LM B-14, will close to the public during the same period." It adds that "As of August 7, 2006, the Copyright Office Public Information Office will be temporarily relocated to room LM-430 of the Madison Building. Hours of service, telephone numbers, and email addresses will remain the same. It is anticipated that the Public Information Office will return to its location in LM-401 by the end of the year."

7/18. Federal Reserve Board (FRB) Governor Kevin Warsh gave a speech in Washington DC titled "Corporate Cash Balances and Economic Activity" in which he stated that "Spending on high-tech equipment has been rising at an annual rate of more than 15 percent, several percentage points faster than in 2003 and 2004, with spending especially strong for telecommunications equipment."

FCC Releases Agenda for August 3 Meeting

7/27. The Federal Communications Commission (FCC) released the agenda [PDF] for its event on Thursday, August 3, 2006, titled "Open Meeting". The FCC is likely to rule on the United Power Line Council's (UPLC) request that broadband over power line (BPL) internet access service be classified as an interstate information service. It will also likely rule on various petitions for reconsideration of the FCC's BPL order.

The first item on the FCC's is adoption of a Memorandum Opinion and Order (MOO) concerning the regulatory classification of BPL internet access service.

On December 23, 2005, the United Power Line Council (UPLC) filed a Petition for Declaratory Ruling [16 pages in PDF] with the FCC requesting that the FCC "declare that BPL-enabled Internet access service is an interstate information service, consistent with the Cable Modem Declaratory Ruling and the DSL Order."

That is, BPL service providers do not wish to be subject to federal regulation under Title II of the Communications Act, or be subject to state regulation of intrastate telecommunications.

The UPLC wrote that "Both cable modem service and DSL now enjoy regulatory certainty and regulatory parity as a result of each being classified as interstate information services subject to regulation under Title I. However, the Commission's decisions clarifying the regulatory status of cable modem and DSL-enabled Internet access were limited to those respective technologies. The Commission's provision of the requested declaratory ruling would help provide the same level of regulatory clarity to the nascent BPL industry as well, thereby assuring regulatory neutrality among the competing technologies." (Footnote omitted.)

This proceeding is WC Docket No. 06-10.

Second, the FCC is scheduled to adopt a MOO in response to petitions for reconsideration of the rules applicable to BPL systems.

The FCC promulgated these rules in its Report and Order [86 pages in PDF] adopted on October 14, 2004, and released on October 28, 2004. This R&O is FCC 04-245 in ET Docket No. 04-37 and ET Docket No. 03-104. See also, story titled "FCC Adopts BPL Report and Order" in TLJ Daily E-Mail Alert No. 997, October 15, 2004, and story titled "FCC Adopts Broadband Over Powerline NPRM" in TLJ Daily E-Mail Alert No. 836, February 13, 2004. The FCC released the text [38 pages in PDF] of the NPRM on February 23, 2004.

Third, the FCC is scheduled to adopt a Notice of Proposed Rulemaking (NPRM) regarding possible changes to its rules governing wireless licenses in the 698-746, 747-762, and 777-792 MHz Bands.

This event is scheduled for 9:30 AM on Thursday, August 3, 2006 in the FCC's Commission Meeting Room, Room TW-C305, 445 12th Street, SW. The event will be webcast by the FCC. The FCC does not always consider all of the items on its published agenda. The FCC sometimes adds items to the agenda without providing the "one week" notice required 5 U.S.C. 552b. The FCC does not always start its monthly meetings at the scheduled time. The FCC usually does not release at its meetings copies of the items that it adopts at its meetings.

Washington Tech Calendar
New items are highlighted in red.
Friday, July 28

The House may meet at 10:00 AM for legislative business. See, Republican Whip Notice and Friday Whipping Post.

The Senate will meet at 10:00 AM. It will resume consideration of S 3711, the Gulf of Mexico energy security bill.

9:30 AM. The Senate Homeland Security and Governmental Affairs Committee's Subcommittee on Federal Financial Management, Government Information, and International Security will hold a hearing titled "Cyber Security: Recovery and Reconstitution of Critical Networks". The witnesses will be George Foresman (DHS's Under Secretary for Preparedness), Richard Schaeffer (NSA's Director of Information Assurance), Karen Evans (OMB), David Powner (GAO), Tom Noonan (ISS), Roberta Bienfait (AT&T), Michael Aisenberg (Verisign), Karl Brondell (State Farm, for the Business Roundtable). See, notice. Location: Room 342, Dirksen Building.

Monday, July 31

The House will not meet from Monday, July 31 (tentative), through Monday, September 4. See, Majority Whip's calendar.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding NIST Special Publication 800-53A [305 pages in PDF], titled "Guide for Assessing the Security Controls in Federal Information Systems".

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding on whether and how an open global database of proxy numbers of Video Relay Service (VRS) users may be created so that a hearing person may call a VRS user through any VRS provider without having to ascertain the first VRS user's current internet protocol address. See, notice in the Federal Register, May 31, 2006, Vol. 71, No. 104, at Pages 30848-30856. This FNPRM is FCC 06-57 in CG Docket No. 03-123.

Extended deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice in the Federal Register regarding revisions to guidelines used by USPTO personnel in their review of patent applications to determine whether the claims in a patent application are directed to patent eligible subject matter. The USPTO seeks comments on, among other topics, "claims that perform data transformation" and "claims directed to a signal per se". With respect to the later, the USPTO asks "If claims directed to a signal per se are determined to be statutory subject matter, what is the potential impact on internet service providers, satellites, wireless fidelity (WiFi [reg]), and other carriers of signals?" See, Federal Register, December 20, 2005, Vol. 70, No. 243, at Pages 75451 - 75452. See also, story titled "USPTO Seeks Comments on Subject Matter Eligible for Patents" in TLJ Daily E-Mail Alert No. 1,278, December 22, 2005. See also, notice in the Federal Register (June 14, 2006, Vol. 71, No. 114, at Pages 34307-34308) extending deadline, and story titled "USPTO Seeks Further Comments on Patentable Subject Matter" in TLJ Daily E-Mail Alert No. 1,391, June 14, 2006.

Tuesday, August 1

LOCATION CHANGE. 9:00 AM. The Senate Homeland Security and Governmental Affairs Committee's Subcommittee on Investigations will hold a hearing titled "Offshore Abuses: The Enablers, The Tools & Offshore Secrecy". This hearing will focus on the use of foreign financial services companies by U.S. citizens, but not the use of U.S. financial services companies by foreign citizens. See, notice. Location: Room 106, Dirksen Building.

10:00 AM. The National Association of Manufacturers (NAM) will host an event to release a report on supply chain security. The speakers will include Jerry Jasinowski (NAM), Theo Fletcher (IBM), Lesley Sept (Stanford University), and Arnold Allemang (Dow Chemical Company). For more information, contact Laura Narvaiz at 202-637-3104 or lnarvaiz at nam dot org. Coffee and doughnuts will be served. Location: NAM, 1331 Pennsylvania Ave., NW, Suite 600.

Wednesday, August 2

9:45 AM - 12:00 NOON and 2:00 - 3:30 PM. The DC Bar Association will host two events titled "Visits to the U.S. Copyright Office". The price to attend ranges from $15-$25. For more information, call 202-626-3463. See, notice and notice. Location: Copyright Office, Room 401, James Madison Memorial Building, 1st Street & Independence Ave., SE.

Thursday, August 3

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).

Monday, August 7

The Senate will not meet from Monday, August 7 (tentative), through Monday, September 4. See, 2006 Senate calendar.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Overstock.com, Inc. v. Furnace Brook, LLC, a patent case involving personal jurisdiction. Furnace Brook bought a patent at a bankruptcy auction. It did not practice it. It sent cease and desist letters to other companies, alleging infringement, and seeking licensing fees. One recipient, Overstock.com, filed a complaint in U.S. District Court (DUtah) seeking a declaration that it did not infringe the patent. The Federal Circuit has held that sending a cease and desist letter into a state does not give rise to personal jurisdiction over the sender in that state. The District Court dismissed for lack of personal jurisdiction. However, the District Court also held that Furnace Brook is a "patent troll". See, opinion [PDF]. This is App. Ct. No. 2006-1121, and D.C. No. 2:05-CV-00679 PGC. Location: Courtroom 201, 717 Madison Place, NW.

The Federal Communications Commission (FCC) will conduct a mock auction for Auction 66. This is the auction of Advance Wireless Services (AWS) licenses in the 1710-1755 MHz and 2110-2155 MHz (AWS-1) bands. See also, notice in the Federal Register, June 2, 2006, Vol. 71, No. 106, at Pages 32089-32091.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its Draft Special Publication 800-100 [huge Zipped PDF] titled "Information Security Handbook: A Guide for Managers".

People and Appointments

7/27. The Senate Judiciary Committee reported favorably the nomination of Kimberly Moore to be a Judge of the U.S. Court of Appeals (FedCir). See also, story titled "Bush Nominates Kimberly Moore for Federal Circuit" in TLJ Daily E-Mail Alert No. 1,374, May 19, 2006.

7/27. The Senate Judiciary Committee reported favorably the nomination of Steven Bradbury to be Assistant Attorney General in charge of the Office of Legal Counsel.

7/26. The Senate confirmed Frederic Mishkin to be a member of the Board of Governors of the Federal Reserve System for the unexpired portion of a fourteen year term that began on February 1, 2000. See, Congressional Record, July 26, 2006, at Page S8328.

7/25. The Senate confirmed Jerome Holmes to be a Judge of the U.S. Court of Appeals (10thCir) by a vote of 67-30. See, Roll Call No. 213. See also, Congressional Record, July 25, 2006, at Page S8210.

7/24. Conrad Hewitt was named Chief Accountant of the Securities and Exchange Commission (SEC), effective August 18, 2006. See, SEC release.

7/21. The Senate confirmed Brett Tolman to be the U.S. Attorney for the District of Utah for the term of four years. See, Congressional Record, July 21, 2006, at Page S8110.

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