2/12. The U.S. Court of Appeals (4thCir) issued its opinion [28 pages in PDF] in Christopher Phelps & Associates v. Wayne Galloway, a copyright infringement case involving, among other issues, the availability of injunctive relief. The Court of Appeals extended the Supreme Court's patent analysis in eBay v. MercExchange to copyrights.

The underlying copyright in this case is an architectural design for a house.

Copyright is a form of property right. The most fundamental attribute of most types of property is the right of the owner to exclude. The primary method by which owners enforce this right of exclusion is judicial injunction. In eBay v. MercExchange, the Supreme Court overturned the general rule that injunctive relief is generally available once infringement has been proved. It extended general principles of equity that apply to the grant of injunctions in non-property cases to patent cases.

In the just issued opinion, the Court of Appeals extended the holding of eBay v. MercExchange to copyright cases. This case weakens the property right of copyright owners. Copyright owners, especially owners of design copyrights, should take note.

In addition, the Court of Appeals, in an unusual of concoction injunction principles, the first sale doctrine, and the concept of compulsory licensing, concluded that the owner of a house design copyright could not obtain an injunction against the sale of a house built with an infringing copy of that design, because of the first sale doctrine, which allows for the sale of lawfully acquired copies of copyrighted works. The work was not lawfully acquired by the infringer by the purchase of the copy or a license. Rather, the Court of Appeals reasoned that, by bringing an infringement action, the copyright holder "essentially sold him its interest in the house in exchange for the appropriate remedies under the Copyright Act", which in this case was only what the licensing fee would have been, had the infringer lawfully acquired a license.

The opinion also contains extensive discussions of the availability of damages and profits for copyright infringement, and the meaning of derivative works.

Background. Christopher Phelps & Associates LLC is an architectural firm based in Charlotte, North Carolina. It creates custom architectural designs for upscale houses. Wayne Galloway infringed Phelps' copyright by obtaining a copy of a house design, without authorization, from a homeowner whose house had been built according to a Phelps architectural design. That homeowner had purchased from Phelps for $20,000 a license to use the unique plans for that house. These plans contained Phelps' copyright notices.

Galloway, who acted as his own general contractor, hired subcontractors, who in turn warned him of the copyright violation. The Court of Appeals wrote in its opinion that he responded to one subcontractor by stating "They’ve got to find me, catch me first".

An unidentified subcontractor reported him. Phelps sent Galloway a cease and desist letter.

Christopher Phelps testified at trial that had Galloway requested a license, his firm would have revised the plans, because it only designs unique homes, and then licensed the design to him for $20,000.

District Court. Phelps filed a complaint in U.S. District Court (WDNC) against Galloway alleging copyright infringement. It sought actual damages, Galloway's profits (the difference between the market value of the completed house and the costs of building it) and injunctive relief.

The legal issues were tried by a jury. During trial, the District Court admitted evidence offered by Galloway regarding the county's assessed value of the house for property tax purposes in support of his argument that there were no profits. However, the District Court refused to admit Phelps' expert testimony that the county's assessment did not reflect the actual property value. The District Court also instructed the jury that the copyright at issue was a derivative work only. Then, the jury found that there were no profits. It awarded only $20,000 as damages.

The District Court decided the equitable issue of issuance of an injunction. It refused to issue any injunction.

Notably, despite the plain language of 17 U.S.C. § 503 (regarding destruction of copies) and 17 U.S.C. § 504 (regarding injunctions), and Galloway's demonstrated disrespect for copyright law and copyright owners, the District Court did not even order Galloway to destroy or return the infringing copies of the design.

Statutes. The Copyright Act's injunction remedy, which is codified at 17 U.S.C. § 502, provides in part that "(a) Any court having jurisdiction of a civil action arising under this title may, subject to the provisions of section 1498 of title 28, grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright." (28 U.S.C. § 1498(b) pertains to actions for copyright infringement against the federal government. It states the general rule that injunctive relief in not available.)

17 U.S.C. § 504 provides for the recovery of damages and profits. Subsection 502(b) provides that "The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work."

17 U.S.C. § 503 provides, in part, that "As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all copies ... found to have been made or used in violation of the copyright owner’s exclusive rights, and ... other articles by means of which such copies ... may be reproduced."

17 U.S.C. § 109 contains the first sale doctrine. Subsection (a) provides, in part, that "Notwithstanding the provisions of section 106(3), the owner of a particular copy ... lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy .."

The Patent Act's injunction remedy, which is codified at 35 U.S.C. § 283, provides in full that "The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable."

eBay v. MercExchange. On May 15, 2006, the Supreme Court issued its opinion [12 pages in PDF] in eBay v. MercExchange, holding that the traditional four factor framework that guides a court's decision whether to grant an injunction applies in patent cases.

U.S. Court of Appeals (FedCir) had previously held in its opinion in this case, and other cases, that because the right to exclude recognized in a patent is but the essence of the concept of property, the general rule is that a permanent injunction will issue once infringement and validity have been adjudged.

The Supreme Court held otherwise. It wrote that, even in a patent case, "a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction."

eBay v. MercExchange is a patent case that construed 35 U.S.C. § 283. In the present case, the Court of Appeals construed 17 U.S.C. § 502, the Copyright Act's injunction remedy. However, the Supreme Court wrote in dicta in eBay v. MercExchange that the four party equitable analysis also applies in copyright infringement cases.

The Supreme Court wrote that both copyright and patent owners possess "the right to exclude others from using his property". It continued that "Like the Patent Act, the Copyright Act provides that courts "may" grant injunctive relief "on such terms as it may deem reasonable to prevent or restrain infringement of a copyright." 17 U. S. C. §502(a). And as in our decision today, this Court has consistently rejected invitations to replace traditional equitable considerations with a rule that an injunction automatically follows a determination that a copyright has been infringed."

See, story titled "Supreme Court Rules on Availability of Injunctive Relief in Patent Cases" in TLJ Daily E-Mail Alert No. 1,371, May 16, 2006.

Court of Appeals. In the present case, the Court of Appeals extended the holding of eBay v. MercExchange to copyright cases.

It rejected the argument that injunctive relief is automatically or generally available following a determination that a copyright has been infringed. It held that the four prong analysis of eBay v. MercExchange must be applied.

The Court of Appeals did not proceed through a strict prong by prong analysis. It held that Phelps' request to enjoin construction of the house is moot because Galloway proceeded to complete the house in the absence of any District Court injunction. Also, in a lengthy discussion, the Court of Appeals concluded that Phelps is not entitled to an injunction against further lease or sale of the property.

In the process, the District Court also considered the first sale doctrine, which provides that "the owner of a particular copy ... lawfully made under this title" can , "sell or otherwise dispose of the possession of that copy ...". The Court of Appeals read the phrase "lawfully made" out of the statute.

The analysis of the Court of Appeals is that Phelps was made whole by the award of $20,000, and that Galloway now stands in the position of lawfully licensed holder of a copy. The Court of Appeals here describes something in the nature of a compulsory license.

The Court of Appeals wrote that "By bringing an infringement action against Galloway, Phelps & Associates essentially sold him its interest in the house in exchange for the appropriate remedies under the Copyright Act. Once those remedies have been sought and a judgment has been rendered, the copyright holder loses his right to sell that particular manifestation of his copyright."

The Court of Appeals asserted that this is not a "judicially created compulsory license".

The Court of Appeals wrote too that "The remedies under the Copyright Act do not resemble a license because the Copyright Act remedies are far broader than simply requiring a defendant to make license payments." Yet, the District Court and the Court of Appeals only allowed Phelps a "license payment", and deprived Phelps of these broader remedies by not allowing him an injunction of the construction of the house, not allowing him an injunction of the sale of the house, not awarding him profits from the construction of the house, and not ordering the destruction or return of the house designs.

The Court of Appeals vacated only one part of the District Court judgment. The Court of Appeals did not hold that is was error not to order the return or destruction of the infringing designs. It did however concede, given the possibility of further copying, distribution, and publication by Galloway, that the District Court should apply the four part eBay v. MercExchange test to the facts of this case to determine whether or not to order the return or destruction of the copies.

Other Issues. There is also a long discussion of the meaning of derivative works in this opinion. The Court of Appeals concluded that while the District Court erred in instructing the jury that Phelps only held a copyright in a derivative work, the error was harmless.

The Court of Appeals glossed over the evidentiary issues with little discussion. It noted that District Courts have wide discretion in the area of expert testimony.

The Court of Appeals opinion is silent on the issue of attorney's fees.

4th Circuit's Homestead Exemption to 17 U.S.C. § 106. Perhaps the Court of Appeals intends that its opinion be read in light of the circumstances that the defendant is an old retired man, and that this case involves the house in which he lives. Other areas of law, such as real property, debt collection, bankruptcy, and law enforcement procedure, offer individuals enhanced possessory and privacy rights in the homes in which they reside.

In contrast, the Copyright Act contains no homestead exemption to the exclusive rights of copyright, which are codified at 17 U.S.C. § 106. Perhaps the Court of Appeals has engaged in strained legal analysis for the purpose of extending this defendant protection in the nature of a homestead right, without actually acknowledging as much.

However, nothing in the opinion even hints at this interpretation. Nothing in the opinion limits its reach to architectural designs for houses. The opinion is written in entirely general language. It is now the law of the 4th Circuit for all copyright injunction cases, and precedent to be cited in other circuits.

This case on its face allows owners of architectural design copyrights with little recourse, and would be infringers with little incentive not to infringe. A would be infringer can either purchase a license, or use an infringing copy. If caught and sued, the infringer is then liable only for the licensing fee, and faces little risk of injunction, or the award of other damages. This provides little incentive not follow the infringing option.

Also, infringers of copyrights other than architectural designs will likely argue that this case precludes the award of various types of injunctive relief against them.

This case is Christopher Phelps & Associates, LLC v. R. Wayne Galloway, et al., U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 05-2266, an appeal from the U.S. District Court for the Western District of North Carolina, at Charlotte, D.C. No. CA-03-429-3, Judge Graham Mullen presiding. Judge Niemeyer wrote the opinion, in which Judge Motz and Judge Traxler joined.

2/9. The U.S. Court of Appeals (2ndCir) issued its opinion [28 pages in PDF] in Southold v. East Hampton, a dormant commerce clause case. The dispute giving rise to this case does not involve technology. It is about an interstate ferry service. However, the legal analysis applied by the Court of Appeals may be applied in future dormant commerce clause cases involving state attempts to regulate electronic commerce or internet services.

The opinion does not cite Gibbons v. Ogden., the mother of all dormant commerce cases, even though the facts are similar. Back in 1824 the Supreme Court held in Gibbons v. Ogden, 22 U.S. 1, that an attempt by the state of New York to regulate ferries that operated between the states of New York and New Jersey was unconstitutional. In the present case, the Court of Appeals sent back to the District Court a case regarding an attempt by a political subdivision of the state of New York, the Town of East Hampton, to regulate ferries that operate between eastern Long Island, New York, and New London, Connecticut.

However, the Court of Appeals did cite and rely upon Supreme Court's 2005, opinion [73 pages in PDF] in Granholm v. Heald, which held unconstitutional the attempts by states, including New York, to regulate internet wine sales. See, story titled "Supreme Court Rules in Internet Wine Sales Case" in TLJ Daily E-Mail Alert No. 1,137, May 17, 2005.

There is, of course, no dormant commerce clause in the Constitution. There is only a commerce clause. Article I, Section 8, of the Constitution provides that "The Congress shall have Power ... to regulate Commerce with foreign Nations, and among the several States ..."

The dormant commerce clause is the judicially created principle that the Constitution, by delegating certain authority to the Congress to regulate commerce, thereby bars the states from legislating on certain matters that affect interstate commerce, even in the absence of Congressional legislation.

Unlike many dormant commerce clause cases, there is no attempt by East Hampton to favor a local service provider to the detriment of an outside service provider. Rather, East Hampton seeks to prevent all ferry service. It is a posh community at the far end of Long Island where rich people maintain second homes. East Hampton's ordinance does not seek to prohibit huge private yachts. Rather, it is designed to keep ordinary people off of the roads to the ferry docks and out of this exclusive community.

The Supreme Court has also created a considerable body of law around its dormant commerce clause. It has created different standards of review for different types of state regulation of interstate commerce. State attempts to discriminate against out of state competitors, for the purpose of assisting in state competitors, are subject to a high level of scrutiny review, under which almost all such regulation is held unconstitutional. In Granholm v. Heald New York discriminated against out of state direct sellers of wine, while exempting in state direct sellers. That is, under the statute, one could buy wine on the internet from a New York winery, but from not a California winery. The Supreme Court applied the higher level of scrutiny. Most other types of state regulation of interstate commerce are subject to a lower standard of review. The leading case setting forth this complex and vaguely articulated standard is Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).

The Town of Southhold and the Town of Shelter Island are other political subdivisions of New York located on eastern Long Island. Cross Sound Ferry Service, Inc., is a Connecticut based company that wants to provide ferry service made infeasible by East Hampton's ordinance.

Southold, Shelter Island, and Cross Sound filed a complaint in U.S. District Court (EDNY) against East Hampton seeking a declaratory judgment that the ordinance violates the dormant commerce clause and equal protection clause of the federal Constitution, as well as related state law claims.

The District Court granted summary judgment to East Hampton, prior to pretrial discovery.

Cross Sound brought the present appeal. The Court of Appeals reversed the grant of summary judgment to East Hampton on the dormant commerce clause claim.

The Court of Appeals held that since the ordinance does not discriminate against an out of state ferry service provider to provide an advantage to a local ferry service provider, the lower Pike v. Bruce Church standard applies.

The Supreme Court wrote in Pike v. Bruce Church that "Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities."

The Court of Appeals concluded in the present case that there are genuine issues of material fact in dispute with respect to applying this standard. Hence, it held that the grant of summary judgment was in error. It reversed and remanded to the District Court. However, East Hampton may yet prevail.

This case illustrates that under court precedent, it is not the extent of the burden on interstate commerce, or the harm to interstate commerce, or even a purpose to benefit local citizens at the expense of distant citizens, that makes a regulation more likely to be held unconstitutional. Rather, it is discriminating against distant businesses for the purpose of advantaging local providers of a fungible goods or services that invokes the higher level of scrutiny.

This is significant because many attempts to regulate internet commerce fall into the latter category, where legislators regulate distant internet companies for the purpose of providing some local social benefit, such as decency.

More Internet Related Cases. The courts have issued other opinions regarding the application of the dormant commerce clause to internet commerce.

See for example, September 10, 2004, Order [3 pages in PDF] and memorandum [110 pages in PDF] of the U.S. District Court (EDPenn) in Center for Democracy and Technology v. Pappert, holding that the state of Pennsylvania's Internet Child Pornography Act, which is codified at 18 Pa. Cons. Stat. § 7621-7630, is unconstitutional under both the First Amendment and the dormant commerce clause. See also, story titled "District Court Holds Pennsylvania Internet Statute Unconstitutional" in TLJ Daily E-Mail Alert No. 975, September 13, 2004.

See also, March 25, 2004, opinion [PDF] of the U.S. Court of Appeals (4thCir) in PSInet v. Chapman, 362 F.3d 227, and story titled "Divided 4th Circuit Affirms in Internet Smut Case, PSINet v. Chapman" in TLJ Daily E-Mail Alert No. 864, March 26, 2004, and story titled "4th Circuit Denies Rehearing En Banc in PSINet v. Chapman Following Procedural Flukes" in TLJ Daily E-Mail Alert No. 926, June 25, 2004.

And see, American Library Association v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997); American Booksellers Foundation v. Dean, 342 F.3d 96 (2d Cir. 2003); ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999); and Southeast Booksellers Ass’n v. McMaster, 282 F. Supp. 2d 389 (D.S.C. 2003).

The present case is Town of Southhold, Town of Shelter Island, and Cross Sound Ferry Service, Inc. v. Town of East Hampton, U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 06-0335-cv, an appeal from the U.S. District Court for the Eastern District of New York.

The House will meet at 9:00 AM for morning hour, and at 10:00 AM for legislative business. It may begin consideration of a resolution regarding Iraq. See, Hoyer's calendar [PDF].

The Senate will meet at 10:00 AM for morning business. It will then resume consideration of HJRes 20, the "Revised Continuing Appropriations Resolution, 2007".

9:30 AM - 5:00 PM. The Federal Communications Commission's (FCC) North American Numbering Council (NANC) will meet. See, agenda in notice in the Federal Register, January 26, 2007, Vol. 72, No. 17, at Pages 3847-3848. Location: FCC, Room TW-C305, 445 12th St., SW.

10:00 AM. The Senate Commerce Committee (SCC) will meet in executive session. See, notice. Location: Room 253, Russell Building.

10:00 AM. The Senate Homeland Security and Governmental Affairs Committee will hold a hearing on President Bush's FY 2008 budget request for the Department of Homeland Security. Secretary Michael Chertoff will testify. See, notice. Location: Room 342, Dirksen Building.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare advice on U.S. positions for the Organization of American States (OAS) Inter-American Telecommunications Commission's Permanent Consultative Committee I (Telecommunications). See, notice in the Federal Register, January 11, 2007, Vol. 72, Number 7, at Page 1363. Location: undisclosed.

12:00 NOON - 1:30 PM. The DC Bar Association will host a panel discussion titled "Multi-jurisdictional Premerger Notification and Antitrust Review: Where to Start and how to Avoid Pitfalls". The speakers will include Anna Lueje (Northrop Grumman), Deborah Feinstein (Arnold & Porter), Ethan Litwin (Simpson Thacher & Bartlett), and John Ingrassia (Proskauer Rose). The price to attend ranges from free to $20. For more information, call 202-626-3463. See, notice. Location: Arnold & Porter, 555 12th St., NW.

Day one of a two day event hosted by the Federal Trade Commission (FTC) titled "Broadband Connectivity Competition Policy". The agenda includes discussions of "network neutrality", "Discrimination Against and Blockage of Content and Applications", and "Network Operators Charging Fees for Prioritized Delivery of Data". See, FTC notice. The event will be webcast by the FTC. Location: FTC satellite building conference center, 601 New Jersey Ave., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the National Exchange Carrier Association's (NECA) proposed modification of average schedule formulas for interstate settlements. See, FCC's Public Notice [PDF] (DA 07-306). This proceeding is WC Docket No. 06-223.

The House will meet at 10:00 AM for legislative business. See, Hoyer's calendar [PDF].

10:00 AM. The House Ways and Means Committee will hold a hearing titled "U.S. Trade Agenda". See, notice. Location: Room 1100, Longworth Building.

10:00 AM. The Senate Banking Committee will hold a hearing titled "The First Monetary Policy Report to the Congress for 2007". The witness will be Ben Bernanke, Chairman of the Board of Governors of the Federal Reserve System. See, notice. Location: Room 106, Dirksen Building.

10:00 AM - 12:00 NOON. The House Science Committee (HSC) will hold a hearing titled "The Administration's FY2008 Research and Development Budget Proposal". The witness will be John Marburger (Director of the Office of Science and Technology Policy). Location: Room 2318, Rayburn Building.

2:30 PM. The House Homeland Security Committee's (HHSC) Subcommittee on Emerging Threats, Cyber Security, and Science and Technology will hold a hearing titled "Understanding the Budget and Strategic Agenda of the Science and Technology Directorate". Location: Room 2118, Rayburn Building.

TIME AND LOCATION CHANGE. 10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Judicial Security and Independence". Supreme Court Justice Anthony Kennedy will testify. Press contract, Tracy Schmaler at 202-224-2154. Location: Room 216, Hart Building.

Day two of a two day event hosted by the Federal Trade Commission (FTC) titled "Broadband Connectivity Competition Policy". The agenda includes discussions of "network neutrality", "Discrimination Against and Blockage of Content and Applications", and "Network Operators Charging Fees for Prioritized Delivery of Data". See, FTC notice. The event will be webcast by the FTC. Location: FTC satellite building conference center, 601 New Jersey Ave., NW.

The House will meet at 10:00 AM for legislative business. See, Hoyer's calendar [PDF].

9:00 AM. The House Homeland Security Committee (HHSC) will hold a hearing on the Department of Homeland Security's (DHS) goals for 2007. Deputy Secretary Michael Jackson will testify. Location: Room 311, Cannon Building.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing on the Federal Communications Commission (FCC). The witnesses will be the five FCC Commissioners. Press contact: Jodi Seth (Dingell) at 202-225-5735 or Larry Neal (Barton) at 202-225-3641. Location: Room 2123, Rayburn Building.

10:00 AM. The House Ways and Means Committee's (HWMC) Subcommittee on Trade will hold a hearing titled "Trade with China". See, notice. Location: Room 1100, Longworth Building.

10:00 AM - 12:00 NOON. The House Science Committee (HSC) Subcommittee on Technology and Innovation will hold a hearing titled "The National Institute of Standards and Technology's Role in Supporting Economic Competitiveness in the 21st Century". The witnesses will be William Jeffrey (Director of the National Institute of Standards and Technology), Stan Williams (Hewlett Packard), Peter Murray (Welch Allyn), and Michael Borrus (X/Seed Capital). Location: Room 2318, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a business meeting. The agenda includes numerous bills, including S 236, the "Federal Agency Data Mining Reporting Act of 2007", and S 316, the "Preserve Access to Affordable Generics Act", a bill to prohibit brand name drug companies from compensating generic drug companies to delay the entry of a generic drug into the market. See, notice. The SJC does not take up all of the items on its published agenda. The SJC has held this bill over once. Press contract, Tracy Schmaler (Leahy) at 202-224-2154 or . Location: Room 226, Dirksen Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "The Administration’s 2007 Trade Agenda". U.S. Trade Representative (USTR) Susan Schwab will testify. See, notice. Location: Room 215, Dirksen Building.

2:00 PM. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet and Intellectual Property (SCIIP) will hold a hearing titled "Oversight Hearing on The Patent System -- American Innovation at Risk: The Case for Patent Reform". See, notice. Location: Room 2141, Rayburn Building.

5:00 PM. Deadline to submit applications to the National Institute of Standards and Technology (NIST) to participate in the summer 2007 Gaithersburg Summer Undergraduate Research Fellowship Program, or the Boulder Summer Undergraduate Research Fellowship Program. Both programs are soliciting applications in the areas of "Electronics and Electrical Engineering" and "Information Technology". See, notice in the Federal Register, December 22, 2006, Vol. 71, No. 246, at Pages 76982-76987.

The House will meet at 9:00 AM. See, Hoyer's calendar [PDF].

12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a panel discussion titled "Allocating the Electromagnetic Spectrum: A Discussion of the M2Z Proposal". The speakers will be Thomas Lenard (PFF), Robert Atkinson (Information Technology and Innovation Foundation), Chris McCabe (CTIA -- The Wireless Association), John Muleta (M2Z Networks), and Lawrence White (New York University). See, PFF release and registration page.. Lunch will be served. Press contact: Amy Smorodin at 202-289-8928 or asmorodin at pff dot org. Location: Room 2105, Rayburn Building, Capitol Hill.

Day one of the National Association of Regulatory Utility Commissioners' (NARUC) winter committee meetings. Location: Renaissance Washington Hotel.

George Washington's Birthday.

The House will be in recess for the Presidents' Day District Work Period on the week of February 19-23. See, House 2007 calendar.

The Senate will be in recess for the Presidents' Day District Work Period on the week of February 19-23. See, Senate 2007 calendar.

The Federal Communications Commission (FCC) and other federal offices will be closed. See, Office of Personnel Management's (OPM) list of federal holidays and 5 U.S.C. § 6103.

The National Press Club will be closed.

Day one of a four day convention titled "Satellite 2007". See, web site. Location: Washington Convention Center, 801 Mount Vernon Place, NW.

Day two of the National Association of Regulatory Utility Commissioners' (NARUC) winter committee meetings. Location: Renaissance Washington Hotel.

2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare advice on U.S. positions for the Organization of American States (OAS) Inter-American Telecommunications Commission's Permanent Consultative Committee I (Telecommunications). See, notice in the Federal Register, January 11, 2007, Vol. 72, Number 7, at Page 1363. Location: undisclosed.

Day two of a four day convention titled "Satellite 2007". See, web site. Location: Washington Convention Center, 801 Mount Vernon Place, NW.

Day three of the National Association of Regulatory Utility Commissioners' (NARUC) winter committee meetings. Location: Renaissance Washington Hotel.

EXTENDED TO MAY 23. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) in its proceeding titled "In the Matter of Effects of Communications Towers on Migratory Birds". This NPRM [40 pages in PDF] is FCC 06-164 in WT Docket No. 03-187. The FCC adopted this NPRM on November 3, 2006. It released it on November 17, 2006. See, FCC's notice of extension [PDF] (DA 07-72), and notice in the Federal Register, January 26, 2007, Vol. 72, No. 17, at Pages 3776-3777.

Deadline to submit initial comments to the Federal Communications Commission's (FCC) International Bureau (IB) regarding a proposal to remove from the Section 214 Exclusion List those non-U.S. licensed satellites that have been allowed to enter the U.S. market for satellite services pursuant to the procedure adopted in the DISCO II order. See, FCC's Public Notice [4 pages in PDF] (DA 07-100). This proceeding is IB Docket No. 95-118.

2/12. The U.S. Court of Appeals (6thCir) issued its opinion [10 pages in PDF] in Roger Miller Music v. Sony/ATV Publishing, a case involving ownership of renewal copyrights in songs of the late great Roger Miller, who wrote and recorded King of the Road, Dang Me [audio] and other songs. The Court of Appeals affirmed the judgment of the District Court that the claims are not untimely, and that Sony/ATV owns certain of the renewal copyrights at issue (1958-1963 songs). However, the Court of Appeals remanded back to the District Court the issue of ownership of other copyrights (1964 songs). This case is Roger Miller Music, Inc. and Mary A. Miller v. Sony/ATV Publishing, LLC, U.S. Court of Appeals for the 6th Circuit, App. Ct. Nos. Nos. 05-6824 and 05-6880, appeals from the U.S. District Court for the Middle District of Tennessee at Nashville, D.C. No. 04-01132, Judge William Haynes presiding.

2/12. The U.S. Court of Appeals (FedCir) issued its opinion [PDF] in Dippin Dots v. Mosey, a case regarding patent and antitrust law. The patent in suit, U.S. Patent No. 5,126,156, involves ice cream technology. The District Court granted summary of noninfringement and judgment following jury trial that all claims of that patent are obvious, that the patent is unenforceable due to inequitable conduct during prosecution, and that Dippin Dots violated antitrust law by asserting a patent that had been procured through fraud on the Patent Office. The Court of Appeals affirmed the judgments of noninfringement, obviousness, and unenforceability, but reversed the antitrust judgment. This case is Dippin' Dots, Inc. and Curt D. Jones v. Thomas R. Mosey, et al., U.S. Court of Appeals for the Federal Circuit, App. Ct. Nos. 2005-1330 and 2005-1582, appeals from the U.S. District Court for the Northern District of Texas, Judge Thomas Thrash presiding.

Tech Law Journal publishes a free access web site and subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year. However, there are discounts for subscribers with multiple recipients. Free one month trial subscriptions are available. Also, free subscriptions are available for journalists, federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until one month after writing. See, subscription information page.

Contact: 202-364-8882.
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998 - 2006 David Carney, dba Tech Law Journal. All rights reserved.