5/25. Rep. John Dingell (D-MI), Chairman of the House Commerce Committee (HCC), and Rep. Ed Markey (D-MA), Chairman of the HCC's Subcommittee on Telecommunications and the Internet, sent a letter [5 pages in PDF] to the five Commissioners of the Federal Communications Commission (FCC) regarding transitioning to digital television. They want the FCC to use its regulatory powers and appropriations to plan consumer knowledge and behavior.

They wrote that "the present lack of leadership, direction, and focus at the Federal level is jeopardizing the transition". They added that the FCC has not articulated any "comprehensive consumer education program". See also, HCC release.

Moreover, they do not want U.S. consumers to be "overly reliant on the good graces of industry to inform them of the steps they need to take to ensure their continuing access" to free broadcast TV.

Reps. Dingell and Markey also wrote that while the Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) is also involved in DTV planning, only the FCC "has regulatory power over industries", which the FCC "can use to develop and manage the educational campaign".

The two suggested that the FCC "could use its existing authority to compel industry to contribute time and resources to a coordinated, national consumer education campaign". They elaborated that the FCC could require multichannel video programming distributors (MVPDs) "to insert periodic notices in customer bills", require broadcasters to report on their efforts, require broadcasters "to air public service announcements and a rolling scroll about the digital transition", and require equipment manufacturers "to include information with television receivers and related devices about the transition".

The two also suggested that the FCC "work with the NTIA to require retailers who participate in the converter box coupon program to detail their employee training and consumer information plans".

The two also proposed that the FCC enforce these mandates with license conditions, penalties, and "spot inspections".

Finally, the two Representatives urged FCC Chairman Kevin Martin direct the FCC to develop a written plan. And, they want a copy by June 11, 2007.

The HCC staff working on this subject are Johanna Shelton, Colin Crowell, and Maureen Flood.

In the event that a politically significant number of consumers complain after the final transition date, Reps. Dingell and Markey will have provided a degree of cover for themselves and other Representatives.

5/29. The Supreme Court denied certiorari in Alpha Telecommunications v. IBM, a contract dispute involving the Federal Communications Commission's (FCC) e-rate subsidy program. See, Orders List [10 pages in PDF] at page 8, and Supreme Court docket.

This lets stand the judgment of the U.S. Court of Appeals (6thCir). See, September 8, 2006, opinion [16 pages in PDF] of the Court of Appeals, which affirmed the District Court's summary judgment for IBM.

IBM and Alpha entered into a contract under which Alpha assisted IBM in preparing bids on requests for services for school districts in Dallas, Ft. Worth, Houston, New Orleans, El Paso, Albuquerque and other cities. The FCC denied the applications for funds. Alpha invoiced IBM for $16 Million. IBM refused to pay. Alpha filed a complaint in U.S. District Court (NDOhio) against IBM alleging breach of contract. The District Court held that under the contract FCC funding was a condition precedent to payment, and therefore granted summary judgment to IBM. IBM sought sanctions, which the District Court denied. The Court of Appeals affirmed.

The House Commerce Committee's (HCC) Subcommittee on Oversight and Investigations (SOI) sent a letter to Alpha on July 14, 2003 requesting information from Alpha regarding its relation with IBM.

Nathaniel Hawthorne, General Counsel of Alpha Telecommunications, later testified at a hearing of the SOI on waste, fraud and abuse in the FCC's e-rate subsidy program. He addressed Alpha's relationship with IBM. See, Hawthorne's prepared testimony of September 22, 2004.

This case is Alpha Telecommunications, Inc. v. International Business Machines Corporation, Sup. Ct. No. 06-1304, petitions for writ of certiorari to the U.S. Court of Appeals for the 6th Circuit, App. Ct. Nos. 05-3974 and 05-4022. The Court of Appeals affirmed the summary judgment of the U.S. District Court for the Northern District of Ohio.

5/24. The U.S. Court of Appeals (4thCir) issued its opinion [14 pages in PDF] in Darden v. Peters, a case regarding registration of copyrights.

Introduction. This is an obscure case regarding standards of review in judicial review of decisions of the Copyright Office regarding registration of copyrights. In this case, whether or not to apply the abuse of discretion standard (which is a very low standard that makes reversal of a government agency difficult), or the de novo review standard (a higher standard), turns on the question of whether or not the review concerns a "constitutional right". Hence, the courts had to address the nature of copyright.

The gist of the opinion in this case is that while copyright is in the Constitution, and the Constitution states that it is a "Right", it does not follow that copyright is a Constitutional right. Therefore, Darden is not entitled to the higher standard.

The opinion is consistent with precedent of the Supreme Court and lower courts. However, this opinion, and the precedent upon which its relies, are arguably inconsistent with the plain wording of the Constitution.

Moreover, these opinions affect far more than standards of review to be applied in challenges to registration decisions of the CO.

Background. William Darden created a web site that assists consumers in locating real estate appraisers. He hired another person to create digital interactive maps for his web site. Darden also seeks to license these works to other businesses. He attempted to register copyrights in these works. The CO refused, on the grounds that his works are not copyrightable subject matter. It concluded that they lacked sufficient originality because they were based upon U.S. Census maps. Darden next exhausted his administrative remedies.

Darden then filed a complaint in U.S. District Court (EDNC) against Marybeth Peters, the Register of Copyrights, alleging violation of the Administrative Procedure Act (APA), which provides remedies for denials of applications to register copyrights.

The District Court affirmed the decisions of the CO. This appeal followed.

Constitution and Statutes. Article I, Section 8, of the Constitution provides that "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries".

The Copyright Act provides for the registration of copyrights with CO, and, with exceptions, provides that registration is a necessary precondition for judicial enforcement of copyrights.

17 U.S.C. § 410 provides, at subsection (b), that "In any case in which the Register of Copyrights determines that, in accordance with the provisions of this title, the material deposited does not constitute copyrightable subject matter or that the claim is invalid for any other reason, the Register shall refuse registration and shall notify the applicant in writing of the reasons for such refusal."

Then, 17 U.S.C. § 701, at subsection (e), provides in part that, with certain exceptions, "all actions taken by the Register of Copyrights under this title are subject to the provisions of the Administrative Procedure Act."

That is, Darden's remedy for the CO's denial is under the APA.

The APA provides, at 5 U.S.C. § 706, that "To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall ... (2) hold unlawful and set aside agency action, findings, and conclusions found to be -- (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; ..."

The standard of review associated with Section 706(2)(A) is abuse of discretion, while the standard of review associated with Section 706((2)(B) is de novo review.

Reasoning of the Court of Appeals. The Court of Appeals affirmed the judgment of the District Court. In so doing, it held that copyright is not a right, and that "whatever rights and remedies exist do so only because Congress provided them", citing Supreme Court precedent.

The opinion is 15 pages, but the key section on constitutional rights is brief. It is substantially set out in full below.

The Court began that "Darden cites no authority even remotely suggesting that any court has ever regarded the agency’s routine decision to deny registration as having constitutional ramifications for the claimant. Darden derives the basis for his argument from Article I of the United States Constitution which grants Congress the power to provide copyright protection to the extent Congress sees fit."

After quoting the copyright clause of the Constitution, the Court of Appeals wrote that "Congress is under no mandate from this clause, however, to provide copyright protection. See Silvers v. Sony Pictures Entertainment, Inc., 402 F.3d 881, 883 (9th Cir. 2005) (``As is clear from its text, that clause of the Constitution grants no substantive protections to authors. Rather, Congress is empowered to provide copyright protection.´´). Copyright is solely a creature of statute; whatever rights and remedies exist do so only because Congress provided them. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984)." (Parentheses in original.)

(See, opinion of the Supreme Court in Sony v. Universal City Studios. The U.S. Court of Appeals (9thCir) issued its opinion [9 pages in PDF] in Silvers v. Sony Pictures on June 3, 2003. See also, story titled "9th Circuit Rules That An Accrued Cause of Action for Copyright Infringement May Be Assigned" in TLJ Daily E-Mail Alert No. 673, June 4, 2003.)

The Court of Appeals then concluded, "Thus, as there is no constitutional right to copyright registration, the Register’s refusal to register Darden’s claim cannot be ``contrary to constitutional right´´ as it must be for section 706(2)(B) to apply."

Article I, Section 8, enumerates numerous Congressional powers. However, in only one of the these clauses does the Constitution designate that there is a "Right". The opinion does not address the question of why the founding fathers' use of the term "Right" does not mean that there is a Constitutional right.

Nor does this opinion attempt to distinguish the copyright clause of the Constitution from the other clauses of the Constitution that both identify a right and provide Congressional authority to enact legislation. The courts have not relegated any of these other rights to non-rights status.

For example, the 13th Amendment provides that "Congress shall have power to enforce this article by appropriate legislation." The 14th Amendment (including due process and equal protection) provides that "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Similarly, all of the "right" to vote amendments, 15th (race), 19th (sex), 24th (voting taxes), and 26th (18 year olds), also contain delegations of legislative authority to the Congress. Yet, the courts have not deconstructed any of these rights to the point that "whatever rights and remedies exist do so only because Congress provided them".

The courts have singled out the rights designation of the copyright clause for inconsistent treatment.

Consequences. There would likely be numerous consequences, other than the standard of review to be applied in challenges to denials of copyright registrations, were copyright to be recognized as a Constitutional right.

For example, this case involves review of a denial of a copyright registration application, not a challenge to a grant of a copyright registration application. Yet, the CO's regulations create no administrative procedure for challenging the validity copyright registrations, and it is the position of the CO that there is no such remedy, even though such registrations may be for works not authored by the registrant, and may cloud the title of the actual author. Hypothetically, were copyright recognized by the judiciary as a Constitutional right, an author would have a stronger claim to clearing his title by administrative process.

There is also the matter of registration fees. The courts have struck down other fees associated with the exercise of Constitutional rights. Yet, copyright registration fees deter some authors from registering their works. Moreover, the case would be even more compelling in the case of inventions. Not only are the U.S. Patent and Trademark Office's (USPTO) patent related fees prohibitively high for some inventors, but the Congress uses USPTO fees to subsidize other government programs unrelated to protecting the rights of inventors. That is, there is essentially a tax, in addition to a user fee, associated with the exercise of a "Right".

A system of rights generally limits the ability of majorities or organized interests to use the government to harm individuals protected by rights. In contrast, where an area of activity is left open to regulation by the Congress, majorities and organized interests can take from or harm minorities or individuals who lack their legislative prowess.

The language of the Constitution suggests that it was the understanding of the founding fathers who drafted, debated, ratified, and promptly amended the Constitution that certain activities, including those of authors, inventors, ministers, speakers, owners of printing presses, and those who petitioned the government, were too fundamental to the success of the nation, and too vulnerable to abuse by majorities, to be circumscribed by the whims of legislative action. Nevertheless, the recent holdings of the courts that "Copyright is solely a creature of statute; whatever rights and remedies exist do so only because Congress provided them" places copyright back within the legislative arena. Moreover, these opinions stand in contrast to those which confer Constitution rights status upon activities that are not mentioned in the Constitution, let alone designated as rights.

Today, authors and inventors are generally few, weak, geographically dispersed, and disorganized in the political process. In contrast, the aggregators, publishers and distributors of creative works, such as the movie studios, record companies, book publishers, broadcasters, and software companies, tend to be well organized and financed, and effective lobbyists. Their interests sometimes diverge from those of creators. And more recently, consumer electronics companies and internet based services companies, which are generally hostile to copyright, have demonstrated political effectiveness in Washington DC.

Under the present opinion, and other recent cases, authors and inventors have no recourse to the Constitution when the Congress limits the scope of their copyrights, or their ability to enforce them.

This case is William Darden v. Marybeth Peters, U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 06-1177, an appeal from the U.S. District Court for the Eastern District of North Carolina, D.C. No. 2:04-cv-00030-BO, Judge Terrence Boyle presiding. Judge Traxler wrote the opinion of the Court of Appeals, in which Judges Widener and Duncan joined.

President Bush had sought to elevate Judge Boyle to the Court of Appeals for the 4th Circuit in the 109th Congress. However, his nomination encountered opposition from Senate Democrats. Bush did not renominate Judge Boyle in the 110th Congress.

One of the groups that lobbied against Judge Boyle's confirmation was People for the American Way (PFAW). It wrote a report [27 pages in PDF] in 2005 stating that Judge Boyle issued troubling rulings in individual rights cases. The PFAW complained in its report about one of Judge Boyle's opinions involving copyright. The PFAW complained that Judge Boyle had allowed restitution from a copyright infringer. That is, for the PFAW, the rights of authors and copyright holders are not salient to the debate. Rather, convicted criminal infringers are the ones with the critical rights. (See, page 8.)

The House will not meet on Monday, May 28 through Monday, June 4, due to the Memorial Day District Work Period. It will next meet on Tuesday, June 5. See, House 2007 calendar.

The Senate will not meet on Monday, May 28 through Friday, June 1, due to the Memorial Day District Work Period. It will next meet on Monday, June 4.

2:00 PM. The Federal Communications Commission's (FCC) Advisory Committee on Diversity for Communications in the Digital Age will hold an organizational meeting. See, notice in the Federal Register, May 15, 2007, Vol. 72, No. 93, at Pages 27309-27310. Location: FCC, Commission Meeting Room (Room TW-C305), 445 12th St., SW.

Deadline to submit comments to eight federal regulatory agencies in response to their joint notice of proposed rulemaking (NPRM) regarding implementation of the privacy provisions of the Gramm Leach Bliley Act. This NPRM proposes a safe harbor model privacy form that financial institutions may use to provide disclosures under the privacy rules. The eight agencies are the Department of the Treasury's Office of the Comptroller of the Currency (OCC), Office of Thrift Supervision (OTS), Federal Reserve System (FRS), Federal Deposit Insurance Corporation (FDIC), National Credit Union Administration (NCUA), Federal Trade Commission (FTC), Securities and Exchange Commission (SEC), and Commodity Futures Trading Commission (CFTC). See, notice in the Federal Register, March 29, 2007, Vol. 72, No. 60, at Pages 14939-15000.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its request to update the record in its equal access and nondiscrimination proceeding. The FCC issued its original Notice of Inquiry (NOI) in February of 2002. See, notice in the Federal Register, March 28, 2007, Vol. 72, No. 59, at Pages 14554-14555. This proceeding is CC Docket No. 02-39. See also, Public Notice (DA 07-1071) [PDF] released on March 7, 2007.

2:00 - 4:30 PM. The National Telecommunications and Information Administration's (NTIA) Spectrum Management Advisory Committee (SMAC) will meet. It will hear recommendations of its Subcommittee on Technical Sharing Efficiencies; it will discuss its Spectrum Sharing Test-Bed Proposal; it will hear a report from its Subcommittee on Operational Sharing Efficiencies; and, it will hear public comment. See, notice in the Federal Register, May 15, 2007, Vol. 72, No. 93, at Pages 27294-27295. Location: Department of Commerce, Hoover Building, Room 4830, 1401 Constitution Ave., NW.

5:00 PM. Deadline to submit to the Bureau of Industry and Security (BIS) requests to make presentations at the BIS' Deemed Export Advisory Committee's (DEAC) meeting on June 19, 2007, from 8:30 AM to 12:30 PM, in Boston, Massachusetts. See, notice in the Federal Register, May 21, 2007, Vol. 72, No. 97, at Page 28467. The BIS regulates exports of dual use products, including computers, components, software and encryption products. Deemed exports include employment practices of companies that make dual use products.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding its rules governing wireless licenses in the 698-806 MHz Band (700 MHz Band). See, notice in the Federal Register, May 2, 2007, Vol. 72, No. 84, at Pages 24238-24253. The FCC adopted its Report and Order and FNPRM [170 pages in PDF] on April 25, 2007, and released it on April 27, 2007. This FNPRM is FCC No. 07-72 in WT Docket No. 06-150, CC Docket No. 94-102, WT Docket No. 01-309, WT Docket No. 03-264, WT Docket No. 06-169, PS Docket No. 06-229, and WT Docket No. 96-86.

9:30 AM. The Federal Communications Commission (FCC) may hold an event titled "Open Meeting". The FCC does not always start its events at the scheduled time, or at all. See, agenda [PDF]. Location: FCC, Commission Meeting Room (TW-C305), 445 12th St., SW.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a continuing legal education (CLE) seminar titled "Counseling Communications Companies in Financial Trouble: Legal Issues and Operational Considerations". The speakers will be Stewart Block (FCC Office of General Counsel), Robert Irving (Leap Wireless), James Barker (Latham & Watkins), Evan Blum (Blum Advisors), and Gerard Catalanello (Thelen Reid Brown Raysman & Steiner). The price to attend ranges from $50 to $125. See, registration form [PDF]. Registrations and cancellations are due by 5:00 PM on Tuesday, May 29. Location: Wiley Rein, 1776 K St., NW.

TIME? The Department of Defense's (DOD) Defense Science Board Task Force on Integrating Sensor-Collected Intelligence will hold another of its closed sessions regarding intelligence, surveillance and reconnaissance systems. See, notice in the Federal Register, April 2, 2007, Vol. 72, No. 62, at Page 15659. Location: Science Applications International Corporation, 4001 N. Fairfax Drive, Arlington, VA.

9:00 AM -- 4:00 PM. The Federal Communications Commission (FCC) Public Safety and Homeland Security Bureau (PSHSB) will hold an event titled "Spectrum Policy and Management: Building Interoperable Public Safety Communications". See, FCC notice [PDF]. Location: FCC, Commission Meeting Room (TW-C305), 445 12th St., SW.

2:00 - 3:00 PM. The Information Technology Association of America (ITAA) will host a webcast continuing legal education (CLE) seminar titled "Outsourcing Remedies: Problematic Outsourcing Relationships: Is There a Cure?". See, notice.

TIME? The Department of Defense's (DOD) Defense Science Board Task Force on Integrating Sensor-Collected Intelligence will hold another of its closed sessions regarding intelligence, surveillance and reconnaissance systems. See, notice in the Federal Register, April 2, 2007, Vol. 72, No. 62, at Page 15659. Location: Science Applications International Corporation, 4001 N. Fairfax Drive, Arlington, VA.

The Senate will meet at 2:30 PM. It will resume consideration of S 1348, a bill related to immigration and other matters.

9:00 AM - 12:00 NOON. The U.S. National Commission on Libraries and Information Science
(NCLIS) will meet. See, notice in the Federal Register, May 22, 2007, Vol. 72, No. 98, at Page 28714. Location: Room 642, Madison Building, Library of Congress, 101 Independence Ave., SE.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Microstrategy v. Business Objects, App. Ct. No. 2006-1320. Location: Courtroom 203.

10:00 AM - 12:00 NOON. The National Telecommunications and Information Administration (NTIA) will hold a public meeting regarding the Public Safety Interoperable Communications Grant Program. See, NTIA notice and notice in the Federal Register, May 22, 2007, Vol. 72, No. 98, at Pages 28685-28686. Location: Auditorium, Department of Commerce, 1401 Constitution Ave., NW.

5:00 PM. Deadline to submit applications to the National Institute of Standards and Technology (NIST) for funding for "basic research in the field of nanoscale electronics focused on developing the next logic switch beyond complementary metal oxide semiconductor (CMOS)". See, notice in the Federal Register , May 4, 2007, Vol. 72, No. 86, at Pages 25264-25267.

The House will return from its Memorial Day District Work Period at 2:00 PM.

9:00 AM. The Senate Homeland Security and Governmental Affairs Committee's Subcommittee on Investigations will hold a hearing on stock options. Location: Room 342, Dirksen Building.

9:00 AM - 3:00 PM. The U.S. National Commission on Libraries and Information Science (NCLIS) will meet. See, notice in the Federal Register, May 22, 2007, Vol. 72, No. 98, at Page 28714. Location: Room 642, Madison Building, Library of Congress, 101 Independence Ave., SE.

12:00 NOON. Anthony Romero, head of the ACLU, will speak on his book titled "In Defense of Our America: The Fight for Civil Liberties in the Age of Terror" [Amazon]. See, notice and registration page. Lunch will be served after the program. Location: Cato Institute, 1000 Massachusetts Ave.,  NW.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host a continuing legal education (CLE) seminar titled "The Judicial Year in Review". The price to attend ranges from $50 to $125. See, registration form [PDF]. Registrations are due by 5:00 PM on Friday, June 1. Location: __?

TIME? The AeA will host its annual event titled "Annual Technology for Government Dinner". The keynote speaker will be Jonathan Schwartz, P/CEO of Sun Microsystems. The AeA states that this event is for "government CIO’s and government leaders together with high-tech Industry executives". Prices vary. See, notice. For more information, contact Anne Caliguiri at 202-682-4443 or anne_caliguiri at aeanet dot org. Location: Independence Ballroom, Grand Hyatt, 1000 H St., NW.

Thursday, May 31. 8:30 AM - 5:00 PM. The National Institute of Standards and Technology (NIST) will host an event titled "Roundtable for Organizations Interested in Utilization of VoIP for Communication Between Public Safety Personnel". The NIST states that "is considering developing protocol implementation profiles for VoIP communications between public safety personnel". See, notice in the Federal Register, April 24, 2007, Vol. 72, No. 78, at Pages 20324. Location: Institute for Telecommunication Sciences (ITS), The Radio Building (Building 1), Auditorium and/or Room 1107, 325 Broadway, Boulder, Colorado.

Wednesday, June 6. 8:30 AM - 12:30 PM. The Department of Education's National Mathematics Advisory Panel will meet. See, notice in the Federal Register, May 22, 2007, Vol. 72, No. 98, at Pages 28691-28692. Location: Miami Dade College, Wolfson Campus, Building 3, Room 3210, 300 NE., 2 Ave., Miami, Florida.

Thursday, June 7. 2:00 - 6:00 PM. The Japan Society will host a symposium titled "Digital Social Responsibility: Searching for Ethics on the Internet". The keynote speaker will be Craig Newmark, founder of Craigslist. The price to attend varies. See, notice. Location: Japan Society, 333 East 47th Street, New York.

5/29. The Supreme Court denied certiorari in Fodor v. AOL Time Warner. See, Orders List [10 pages in PDF] at page 8, and Supreme Court docket. This is a pro se action in which Fodor alleged invasion of privacy, unlawful wiretaps, and numerous other claims. The District Court dismissed most of his claims as time barred. The Court of Appeals affirmed in a short non-precedential opinion [3 pages in PDF] on January 10, 2007. This case is Gyorgy Fodor v. AOL Time Warner, Inc., et al., Sup. Ct. No. 06-1367, a petition for writ of certiorari to the U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 05-56655. The Court of Appeals heard an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-05-00470-CBM.

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