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August 23, 2007, Alert No. 1,627.
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8/23. Law professors Stuart Sierra (Columbia), Paul Ohm (University of Colorado), and Timothy Wu (Columbia) have launched a database of web-searchable federal court opinions. Its name and URL is

The three provide the service without charge. The database currently includes 167,143 opinions of the Supreme Court of the U.S. (SCUS), the eleven regional Courts of Appeals, and the Federal Circuit.

Currently, for most of these courts, opinions are available from the mid 1990s through early April of 2007. TLJ spoke with Ohm. He said that will soon make available recent opinions. He expects opinions to be available within 24 hours of publication by the courts. The professors utilize software that automatically downloads opinions from the web sites of the courts.

Pursuant to the SCUS's holdings in Banks v. Manchester 128 U.S. 244 (1888) and Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834), these opinions are in the public domain.

For further discussion of copyright, public domain, court opinions, statutes, and incorporation by reference of model codes, see:

The service does not now publish citation numbers published by Thomson's West Publishing Company. Nor can users search by West citations. Ohm stated that the three hope to add this. He added that he has not yet examined the copyright or proprietary rights implications of this.

Their software assigns a unique numerical identifier to every opinion added to the database. However, users cannot search for opinions, or other opinions that cite the opinions, by using these numbers. The service has no function that is equivalent to Shepardization.

The professors are using mostly free open source software, or code written by Sierra, to operate the web site. They are using Lucene, a text search engine library written entirely in Java. Ohm wrote the code that downloads the opinions.

The service is free. Moreover, Ohm said that the three professors hope that others will expand on what they have done. He commented that they would provide their 13 gigabyte database of opinions to others for free. For example, he suggested that someone might develop a web based service that allows users to comment on opinions.

The service has some drawbacks. The downloading of opinions, conversion to HTML, and addition to the database is done automatically. There is no proofreading by people. Most court opinions are published in PDF. The conversion of some opinions to HTML incorrectly renders some letters with symbols that are not a part of the Roman alphabet. Also, with many opinions, the software does not identify the case name. Hence, many opinions are titled in search results by their identification number, rather than by the names of the parties.

There is no advertising on

1st Circuits Rules Again on Arbitration Clauses in Comcast's Agreements with Customers

8/23. The U.S. Court of Appeals (1stCir) issued its opinion in Anderson v. Comcast, a case regarding a class action plaintiff's efforts to avoid the arbitration provisions in Comcast agreements with it customers. The Court of Appeals held that the action is subject to arbitration, and sent most, but not all issues regarding the arbitration agreement to the arbitrator. However, the Court of Appeals held invalid and severed the agreements' one year limitation period.

Carl Anderson, and other cable television service customers of Comcast owned cable ready televisions or video cassette recorders, but nevertheless leased cable converter boxes from, and paid monthly fees therefor, to Comcast.

Comcast entered into agreements with its customers that includes broad arbitration language. First, it provides that "IF WE ARE UNABLE TO RESOLVE INFORMALLY ANY CLAIM OR DISPUTE RELATED TO OR ARISING OUT OF THIS AGREEMENT OR THE SERVICES PROVIDED, WE HAVE AGREED TO BINDING ARBITRATION ..."

Second, it provides that customers must contact Comcast within a year of injury or waive any claim based on that injury. Third, it requires that customers pay certain costs of arbitration, including customers' attorney's fees. Fourth, it precludes arbitration on a class action basis. Fifth, it denies customers who prevail in arbitration multiple or punitive damages. Finally, the agreement severs any terms that conflict with applicable law.

The Court of Appeals held last year in Kristian v. Comcast [1stCir | AltLaw] that specific provisions of Comcast's arbitration agreement had to be severed from the underlying agreement because they prevented its customers from vindicating rights in the arbitral forum provided for in state and federal antitrust statutes. That opinion is also reported by Thomson's West at 446 F.3d 25.

Anderson filed a class action complaint in state court in Massachusetts against Comcast Corporation and others related companies alleging violation of Chapter 93A of the Massachusetts Consumer Protection Act, as well as common law tort and contract claims. This appeal pertains to the Chapter 93A claim.

Chapter 93A creates a private right of action for consumers who have been injured as a result of unfair methods of competition or unfair or deceptive acts or practices in the conduct of any trade or commerce.

Anderson alleged that the unfair or deceptive practices involved federal statutes and regulations. First, he alleged that Comcast violated the federal Communications Act's requirement, which is codified at 47 U.S.C. § 543(f), that a "cable operator shall not charge a subscriber for any service or equipment that the subscriber has not affirmatively requested by name". Second, he alleged that Comcast violated the regulation promulgated pursuant to the Communications Act, which is codified at 47 C.F.R. § 76.630(a), that requires cable providers to unscramble their basic programming signals so they can be received by customers with cable ready equipment.

Comcast removed the action to the U.S. District Court (DMass) based upon diversity of citizenship of the parties.

Comcast then moved to compel arbitration of all claims. Anderson opposed the motion.

The District Court granted the motion to compel arbitration, but first held that the agreement's provisions barring attorney's fees, class actions, and multiple damages were invalid and severed as they related to Anderson's Chapter 93A claim. The District Court also held that the arbitrator had authority to determine whether the agreement's limitations period prevented Anderson from vindicating his statutory claim under Chapter 93A.

Comcast brought the present appeal to contest the holdings as to class actions and multiple damages. Anderson cross-appealed, arguing that the entire arbitration agreement is unconscionable and unenforceable. He also challenged the holding at to time limitation, arguing that Chapter 93A's four year limitation should apply.

The Court of Appeals stated that arbitration agreements are generally enforceable, but "One of the ``narrow circumstances´´ that might raise a question of arbitrability involves an allegation by a party to an arbitration agreement that some of the terms in an arbitration agreement conflict with a statutory right that is not waivable by contract. If that claim withstands analysis, the court will have to decide whether the conflict precludes enforcement of the arbitration agreement."

The Court of Appeals held in this case that a bar on class arbitration is not in conflict with a statutory right. Thus, it held that class representation is a question for the arbitrator, not the District Court.

The Court of Appeals held that the agreement's limitations period is invalid as it relates to Anderson's Chapter 93A claim. The Court of Appeals thus vacated the District Court as to compelling arbitration of the applicability of the contractual limitations period.

The Court of Appeals also reversed the District Court as to multiple damages awards. That goes to the arbitrator.

The Court of Appeals thus held invalid, and severed, the time limitation clause. The District Court's decision regarding attorney's fees was not appealed by Comcast, and therefore stands. The Court of Appeals rejected Anderson's argument that the entire arbitration agreement is invalid. The granting of the motion to compel arbitration is affirmed. The arbitrator has authority to rule on class representation and multiple damages.

This case is Carl Anderson v. Comcast Corporation, et al., U.S. Court of Appeals for the 1st Circuit, App. Ct. Nos. 06-2165 and 06-2203, appeals from the U.S. District Court for the District of Massachusetts, Judge Michael Ponsor presiding. Judge Lipez wrote the opinion of the Court of Appeals, in which Judges Tashima and Howard joined.

European Commission Pursues Rambus Regarding JEDEC Standards Setting Process

8/23. The European Commission (EC) issued a release on August 23, 2007, in which it stated that it issued a Statement of Objections (SO) on July 30, 2007, to Rambus.

The SO alleged violation of European Union competition law in connection with Rambus's participation in a dynamic random access memory (DRAM) standards setting process in which it deceptively withheld information that it was patenting technologies that were incorporated into industry standards.

The EC wrote in its release that "The SO outlines the Commission’s preliminary view that Rambus has infringed EC Treaty rules on abuse of a dominant position (Article 82) by claiming unreasonable royalties for the use of certain patents for ``Dynamic Random Access Memory´´ chips (DRAMS) subsequent to a so-called ``patent ambush´´." (Parentheses in original.)

The U.S. Federal Trade Commission (FTC) long ago faulted Rambus for this same activity. It found that Rambus unlawfully monopolized the markets for four computer memory technologies that have been incorporated into industry standards for DRAM chips.

See, FTC's August 2, 2006, opinion [120 pages in PDF] in its administrative proceeding titled "In the Matter of Rambus, Inc.". See also, FTC Docket No. 9302 for hyperlinks to pleadings in this proceeding.

And see, story titled "FTC Holds That Rambus Unlawfully Monopolized Markets" in TLJ Daily E-Mail Alert No. 1,427, August 8, 2006, and story titled "FTC Files Administrative Complaint Against Rambus" in TLJ Daily E-Mail Alert No. 455, June 20, 2002.

Rambus participated in a council formerly known as the Joint Electron Device Engineering Council or JEDEC.

Thomas Lavelle, SVP and General Counsel of Rambus, stated in a release that "The issues raised by the European Commission include Rambus' participation in JEDEC that ended over a decade ago ... These are largely the same issues examined by a number of US courts, the Federal Trade Commission, and currently before the US Court of Appeals for the District of Columbia Circuit. We are studying the Statement of Objections and plan to respond in due course."

Rep. Thompson Writes Chertoff Regarding Satellite Surveillance

8/22. Rep. Bennie Thompson (D-MS), the Chairman of the House Homeland Security Committee (HHSC), sent a letter to Michael Chertoff, Secretary of Homeland Security, regarding the Department of Homeland Security's (DHS) recently disclosed plans to make satellite surveillance resources available to domestic law enforcement agencies beginning on October 1, 2007.

Rep. Thompson wrote that "I am not certain that the proper privacy, civil rights and civil liberties issues have been fully addressed. I need you to provide me with an immediate assurance that upon its October 1st roll out, this program will be operating within the confines of the Constitution and all applicable laws and regulations."

He wrote that "Through media reports I learned of the Department’s intent to create a National Applications Office (NAO) that will purportedly be tasked with facilitating the use of ``spy´´ satellites for domestic homeland security and law enforcement purposes."

See for example, August 15, 2007, story in the Wall Street Journal titled "U.S. to Expand Domestic Use of Spy Satellites" by Robert Block.

After reprimanding Chertoff for failing to keep the HHSC apprised of its activities, Rep. Thompson wrote that the DHS's "failure to include its own Chief Privacy Officer and the Officer for Civil Rights and Civil Liberties in the initial planning stages for the NAO raises serious concerns about the extent to which valid privacy and civil liberties concerns raised by the domestic use of this technology may have been considered and addressed prior to this projected roll out date."

He elaborated that "It would seem to me that one of the lessons that should have been learned from the Department’s unfortunate experience with the CAPPS II and the Secure Flight programs, would have been to include the officials responsible for privacy, civil rights and civil liberties concerns early in the process. It appears that even after these unfortunate instances, the Department still has not embraced that lesson.

He also wrote that "I am also concerned about the Department’s failure to vet this program with the Privacy and Civil Liberties Oversight Board", or PCLOB.

Rep. Thompson also asked for a series of briefings on this program.

Washington Tech Calendar
New items are highlighted in red.
Friday, August 24

The House will not meet due to the August District Work Period. See, House 2007 calendar. The House will next meet at 2:00 PM on September 4, 2007.

The Senate will not meet due to the August District Work Period. The Senate will next meet at 1:00 PM on September 4. See, Senate 2007 calendar.

5:00 PM. Deadline to submit requests to the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Deemed Export Advisory Committee (DEAC) to speak at the DEAC's meeting of September 10, 2007. See, notice in the Federal Register, August 16, 2007, Vol. 72, No. 158, at Page 46035.

Deadline to submit nominations for appointments to its Federal Reserve Board's (FRB) Consumer Advisory Council. See, notice.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding proposed rules to ensure bidirectional compatibility of cable television systems and consumer electronics equipment. The NPRM also seeks comment on whether these rules should apply to non-cable Multichannel Video Programming Distributors (MVPDs) and whether there are technological solutions that are network agnostic and deployable across all MVPD platforms, including DBS, IP, and QAM/IP. The FCC adopted this item on June 27, 2007, and released the text on June 29, 2007. It is FCC 07-120 in CS Docket No. 97-80 and PP Docket No. 00-67. See, notice in the Federal Register, July 25, 2007, Vol. 72, No. 142, at Pages 40818-40824.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the Wireline Competition Bureau's (WCB) notice requesting comments to refresh the record on the issues raised by the FCC's 2004 Further Notice of Proposed Rulemaking (NPRM) regarding its universal service subsidy programs titled "Lifeline" and "Linkup". The WCB issued its notice on March 12, 2007. It is DA 07-1241. The FCC issued its NPRM on June 22, 2004, in WC Docket No. 03-109. See, notice in the Federal Register, July 25, 2007, Vol. 72, No. 142, at Pages 40816-40818.

Monday, August 27

10:00 AM. Deadline to submit comments to the Office of the U.S. Trade Representative (USTR) regarding its Special 301 Out-of-Cycle Review of the Russian Federation. This is a review of countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. See, notice in the Federal Register, July 9, 2007, Vol. 72, No. 130, at Pages 37272-37273.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) in its XM Sirius merger review proceeding that seeks comment on whether the language in an earlier order barring the merger constitutes a binding FCC rule, and if so, whether the FCC should waive, modify, or repeal the prohibition if the FCC determines that the proposed merger would serve the public interest. See, notice in the Federal Register, July 12, 2007, Vol. 72, Number 133, at Pages 38055-38056.

Tuesday, August 28

1:00 - 3:00 PM. The Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC) will hold the second of two meetings by teleconference regarding "revising and updating accessibility guidelines for telecommunications products and accessibility standards for electronic and information technology". The deadline to register is August 22, 2007. See, notice in the Federal Register, August 3, 2007, Vol. 72, No. 149, at Pages 43211-43212. Location: Suite 1000, 1331 F St.,  NW.

Day one of a three day conference hosted by the National Institute of Standards and Technology's (NIST) titled "Performance Metrics for Intelligent Systems (PerMIS) Workshop". See, notice. August 21 is the deadline to register. The price to attend is $375. Location: Courtyard Gaithersburg Washingtonian Center, 204 Boardwalk Place, Gaithersburg, MD.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "What You Need to Know About Spam Cases: Litigation and Anti-Spam Regulations". The speakers will be Jason Levine (McDermott Will & Emery) and Yaron Dori (Hogan & Hartson). The price to attend ranges from $80 to $115. For more information, call 202-626-3488. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its request to refresh the record of its 2001 Further Notice of Proposed Rulemaking (FNPRM) regarding "the status of the market for the provision of telecommunications services in Multiple Tenant Environments (MTEs), and on whether the prohibition on exclusive access contracts in commercial MTEs should be extended to residential MTEs". See, notice in the Federal Register, May 30, 2007, Vol. 72, No. 103, at Pages 29928-29929. This item is DA 07-1485 WT Docket No. 99-217 and CC Docket No. 96-98.

Wednesday, August 29

Day two of a three day conference hosted by the National Institute of Standards and Technology's (NIST) titled "Performance Metrics for Intelligent Systems (PerMIS) Workshop". See, notice. Location: Courtyard Gaithersburg Washingtonian Center, 204 Boardwalk Place, Gaithersburg, MD.

Thursday, August 30

Day two of a three day conference hosted by the National Institute of Standards and Technology's (NIST) titled "Performance Metrics for Intelligent Systems (PerMIS) Workshop". See, notice. Location: Courtyard Gaithersburg Washingtonian Center, 204 Boardwalk Place, Gaithersburg, MD.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding rule changes related to the DTV transition. The FCC adopted this NPRM on April 25, 2007, and released the text [93 pages in PDF] on May 18, 2007. It is FCC 07-70 in MB Docket No. 07-91. See, notice in the Federal Register, July 9, 2007, Vol. 72, No. 130, at Pages 37309-37344, and Public Notice [PDF] (DA 07-3518) extending deadlines.

People and Appointments

8/23. Wan Kim, the Assistant Attorney General in charge of the Department of Justice's (DOJ) Civil Rights Division, will resign at the end of this month. See, DOJ release.

More News

8/22. The Federal Communications Commission (FCC) published a notice in the Federal Register that announces, describes, and sets comment deadlines for its Further Notice of Proposed Rulemaking (FNPRM) regarding potential interference unique to the reverse band operating environment in the 17/24 GHz BSS. This FNPRM is FCC 07-76 in IB Docket No. 06-123. See, Federal Register, August 22, 2007, Vol. 72, No. 162, at Pages 46939-46949.

8/22. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register that announces, describes, recites, and sets the effective date (September 30, 2007) for its final rule adjusting certain patent fee amounts to reflect fluctuations in the Consumer Price Index (CPI). See, Federal Register, August 22, 2007, Vol. 72, No. 162, at Pages 46899-46903.

8/23. Hal Leonard Music Pro Guides published a book [Amazon listing] titled "Hey, That's My Music: Music Supervision, Licensing, and Content Acquisition", by Brooke Wentz. This book is an introductory guide for musicians, music supervisors, film makers, and other laymen, rather than attorneys. It includes 117 pages of guidance on copyright rights and formalities, permissions, music sources, music supervision, clearance requests, and pricing and negotiation. The book also includes several appendices, including one with 57 pages of Copyright Office forms, license agreements, and other forms.

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