1/16. The Office of the U.S. Trade Representative (OUSTR) published a notice in the Federal Register that solicits comments to assist it in making Special 301 identifications of countries that deny adequate and effective protection of intellectual property rights (IPR) or deny fair and equitable market access to U.S. persons who rely on intellectual property protection.

Section 182 of the Trade Act of 1974, which is codified at 19 U.S.C. § 2242, and which is also known as Special 301, requires the OUSTR to make these identifications.

This notice adds that the OUSTR "requests that, where relevant, submissions mention particular regions, provinces, states, or other subdivisions of a country in which an act, policy, or practice deserves special attention in this year's report. Such mention may be positive or negative. For example, submissions may address China's IPR protection and enforcement at the provincial level, including, where relevant, with respect to areas that were the focus of the Special Provincial Review of China conducted in 2007".

The deadline for comments from all parties except foreign governments is 10:00 AM on Monday, February 11, 2008. The deadline for comments from foreign governments is 10:00 AM on Friday, February 29, 2008.

See, Federal Register, January 16, 2008, Vol. 73, No. 11, at Pages 2958-2959.

1/17. The U.S. Court of Appeals (8thCir) issued its opinion [5 pages in PDF] in US v. Sewell, a case involving use of the Kazaa peer to peer file sharing system. However, this is not a copyright infringement case. Rather, it is a criminal case involving offers to distribute child pornography (CP) in violation of 18 U.S.C. § 2251(d)(1)(A).

The Department of Justice (DOJ) is bringing numerous CP prosecutions, many of which result in the issuance of court opinions. TLJ does not cover these cases. However, some of these cases may impact enforcement of copyright laws.

Some of both CP and music infringement cases involve peer to peer systems. Some of the holdings or dicta in CP cases might be invoked in copyright cases. For example, the Court of Appeals wrote in the present case that "In the context of the Kazaa program, placing a file in a shared folder with descriptive text is clearly an offer to distribute the file."

The CP statute reaches "offering ... to ... distribute", which falls short of actual production or distribution. There are currently proposals to amend copyright law to reach attempted infringement, which falls short of actual infringement. For example, the DOJ's Sigal Mandelker testified at a hearing of the House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet and Intellectual Property (SCIIP) on December 13, 2007, that the Copyright Act should be amended to criminalize attempts to commit criminal copyright infringement. See, prepared testimony [PDF].

This proposal is also in the DOJ's draft proposal [29 pages in PDF] titled the "Intellectual Property Protection Act of 2007", and earlier drafts. See also, story titled "AG Gonzales Proposes Intellectual Property Protection Act" in TLJ Daily E-Mail Alert No. 1,252, November 14, 2005, and story titled "DOJ Releases Proposed Revisions to Copyright and Trademark Law" in TLJ Daily E-Mail Alert No. 1,584, May 21, 2007.

This case is US v. Malcolm E. Sewell, U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 07-1991, an appeal from the U.S. District Court for the Western District of Missouri.

1/11. The U.S. Court of Appeals (9thCir) issued its opinion [19 pages in PDF] in Nelson v. NASA, a case involving Constitutional rights regarding informational privacy and searches and seizures, and the Administrative Procedure Act (APA).

Robert Nelson and the other plaintiffs are scientists and engineers at the Jet Propulsion Laboratory (JPL), a joint project of the National Aeronautics and Space Administration (NASA) and the California Institute of Technology. The JPL program is run by CalTech pursuant to something that the Court of Appeals opinion characterizes as a "contract" with the NASA. This contract provides that the NASA can unilaterally amend it. The NASA unilaterally amended the contract to require low risk CalTech scientists to submit to in depth background investigations, including questioning of the scientists, questioning of third parties, and accessing government electronic databases of information.

They filed a complaint in U.S. District Court (CDCal) alleging violation of the APA, violation of the Constitutional right to informational privacy, and violation of the 4th Amendment's ban on unreasonable searches.

The District Court denied the plaintiffs' motion for a preliminary injunction, based upon its finding of an unlikelihood of success on the merits, and the plaintiffs then brought the present interlocutory appeal.

The Court of Appeals reversed and remanded on the APA and information privacy claims. However, it held that the background investigations are not searches within the meaning of the 4th Amendment.

This case is Robert Nelson, et al. v. NASA, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 07-56424, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-07-05669-ODW, Judge Otis Wright presiding. Judge Kim Wardlaw wrote the opinion of the Court of Appeals, in which Judges David Thompson and Edward Reed joined.

1/16. Kathy Leodler joined the Recording Industry Association of America (RIAA) as Director of Investigations for its Western Region Anti-Piracy Unit. She was previously acting Special Agent in Charge of the Federal Bureau of Investigation's (FBI) office in San Diego. See, RIAA release.

1/14. Scott Wallsten joined iGrowthGlobal as VP for Research and Senior Fellow. He was previously Director of Communications Policy at the Progress & Freedom Foundation (PFF).

1/8. Nick Simpson was named press secretary in the Office of the Republican Whip, Rep. Roy Blunt (R-MO). Simpson previously worked for former Sen. Trent Lott (R-MS). Simpson replaces Amos Snead, who went to work for FD Dittus Communications, Inc.

1/21. The Information Technology Association of America (ITAA) and the Government Electronics and Information Technology Association (GEIA) announced that the two groups will merge by April 1, 2008, and continue to use the ITAA name. Phil Bond, the current head of the ITAA, will be the P/CEO of the combined organization. Dan Heinemeier, head of the GEIA, will be EVP of the combined organization. See, ITAA release.

1/18. The National Association of Broadcasters (NAB) responded to the Federal Communications Commission's (FCC) Office of Engineering and Technology's (OET) announcement on January 17, 2008, that it "will begin a second phase of laboratory bench testing on the performance of prototype" television white space devices on January 24, 2008. The NAB's Dennis Wharton stated in a release that the "NAB's paramount objective remains the delivery of interference-free digital broadcast television to more than 100 million American households. We are not opposed to new technology; however, given the failing grade performance and incomplete implementation of the devices submitted in the first round of tests, we have a high degree of skepticism whether tests of these devices will demonstrate that a practical service using portable devices can be introduced without jeopardizing DTV service." The FCC's Public Notice [12 pages in PDF] is numbered DA 08-118.

1/17. The Federal Communications Commission (FCC) published a notice in the Federal Register that announces, describes, recites, and sets the effective date (March 17, 2008) for, the rules changes contained in its Second Order on Reconsideration pertaining to low power FM. The FCC adopted this order on November 27, 2007, and released it on December 11, 2007. This order is FCC 07-204 in MB Docket No. 99-25. See, Federal Register, January 17, 2008, Vol. 73, No. 12, at Pages 3202-3218.

1/17. The Federal Communications Commission (FCC) published a notice in the Federal Register that announces, describes, and recites the rules changes contained in its Report and Order and Declaratory Ruling pertaining to Telecommunications Relay Services and Speech to Speech Services for Individuals with Hearing and Speech Disabilities. The FCC adopted this order on October 26, 2007, and released it on November 19, 2007. This order is FCC 07-186 in CG Docket No. 03-123. See, Federal Register, January 17, 2008, Vol. 73, No. 12, at Pages 3197-3202. This notice does not set the effective date for these rules changes.

1/15. The Department of Labor's (DOL) Employment and Training Administration (ETA) published a notice in the Federal Register regarding its Science, Technology, Engineering, and Mathematics (STEM) Opportunities in the Workforce System Initiative. The ETA will hold an online conference for prospective applicants at 2:00 PM on January 25, 2008. The deadline to submit preliminary proposals is 4:00 PM on March 11, 2008. See, Federal Register, January 15, 2008, Vol. 73, No. 10, at Pages 2529-2543.

1/14. The Progress and Freedom Foundation (PFF) published a paper titled "Breaking Metcalfe's Law". It pertains to Bain Capital's (a private equity firm) plans to purchase 3Com, with Huawei (a People's Republic of China telecommunications company) holding a 17% minority stake. The Department of the Treasury's Committee on Foreign Investment in the United States (CFIUS) is reviewing the transaction. The paper states the members of House and Senate are harassing Bain. It states that "The more often the U.S. blocks or merely harasses foreign investors, the stronger message we send that we don't want the world's capital. The more obstacles we lay before highly skilled visa applicants and would- be immigrants, America's status as the strongest magnet for ideas and talent erodes. As we build more robust firewalls to repel this ``dangerous´´ knowledge and money, the more likely it is that ideas and capital will flow through other nodes of the global economic network." The author is the PFF's Brett Swanson.

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Notices & Disclaimers
Copyright 1998-2007 David Carney, dba Tech Law Journal. All rights reserved.

The House will meet at 12:30 PM for morning hour, and at 2:00 PM for legislative business. The House will consider several non-technology related items under suspension of the rules. Votes will be postponed at least until 6:30 PM. See, Rep. Hoyer's 2008 calendar [4.25 MB PDF] and calendar for week of January 21.

The Senate will return from recess at 10:00 AM. It will begin consideration of S 1200 [LOC | WW], the "Indian Health Care Improvement Act Amendments of 2007".

8:00 AM. Secretary of the Treasury Henry Paulson will give a speech regarding the economy, housing and credit markets. See, notice. Location: U.S. Chamber of Commerce, 1615 H St., NW.

TIME? The Federal Communications Commission (FCC) will hold a mock spectrum auction by internet and telephone in advance of its Auction Number 73, which is scheduled to begin on January 24, 2008. This is the 700 MHz band auction. See also, story titled "FCC Adopts 700 MHz Band Order" in TLJ Daily E-Mail Alert No. 1,619, July 31, 2007. And see, FCC's Public Notice [122 pages in PDF] dated October 5, 2007, and numbered DA 07-4171, and Public Notice [12 pages in PDF] dated January 14, 2008, and numbered DA 08-83.

9:00 - 10:30 AM. The Information Technology and Information Foundation (ITIF) will host an event titled "Framing a National Broadband Policy". The speakers will be Blair Levin (Stifel Nicolaus), Larry Irving (Irving Information Group), and Robert Atkinson (ITIF). Breakfast will be served. See, notice. The event will also be web cast. Location: ITIF, Suite 200, 1250 Eye St., NW.

11:30 AM - 2:00 PM. The New America Foundation (NAF) will host an event titled "Free My Phone: Is Regulation Needed to Ensure Consumer Choice". The speakers will be Michael Copps (FCC Commissioner), Walt Mossberg (Wall Street Journal), Stephen Wildstrom (Business Week), Tony Lewis (Verizon Wireless), Blair Levin (Stifel Nicolaus), Christopher Libertelli (Skype), Robert Frieden (University of Pennsylvania Law School), and Michael Calabrese (NAF). See, NAF notice. Location: Room 253, Russell Building, Capitol Hill.

12:15 - 2:00 PM. The Federal Communications Bar Association's (FCBA) Wireless Practice Committee will host lunch. The topic will be "Hot Topics in the CMRS Industry for 2008". The speakers will be Brian Fontes (VP, AT&T Services Inc.), Lawrence Krevor (VP -- Spectrum, Sprint Nextel), Grant Spellmeyer (Director -- Regulatory Affairs, US Cellular), and Thomas Sugrue (VP, T-Mobile USA). The price to attend is $15. See, notice and registration page. Location: Sidley Austin, 1501 K St., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Intellectual Property Practice Committee will host a brown bag lunch. The topic will be "Cable and Satellite Content Protection Technologies". The event is free. See, notice and registration page. Location: Dow Lohnes, 1200 New Hampshire Ave, NW.

2:00 PM. The Senate Judiciary Committee (SJC) will hold a hearing on the nominations of Kevin O’Connor (to be Associate Attorney General) and Gregory Katsas (to be Assistant Attorney General in charge of the Civil Rights Division). See, notice. Location: Room 226, Dirksen Building.

Effective date of the Copyright Royalty Judges' final regulations that set the rates and terms for the use of sound recordings in transmissions made by new subscription services and for the making of ephemeral recordings necessary for the facilitation of such transmissions for the period commencing from the inception of the new subscription service through December 31, 2010. See, notice in the Federal Register, December 20, 2007, Vol. 72, No. 244, at Pages 72253-72256.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding its program access and retransmission consent rules and whether it may be appropriate to preclude the practice of programmers to tie desired programming with undesired programming. The FCC adopted this NPRM on September 11, 2007, and released the text [144 pages in PDF] on October 1, 2007. It is FCC 07-169, in MB Docket No. 07-198. See also, story titled "FCC Adopts R&O and NPRM Regarding Program Access Rules" in TLJ Daily E-Mail Alert No. 1,640, September 17, 2007. The original comments deadlines were November 30 and December 17, 2007. See, original notice in the Federal Register, October 31, 2007, Vol. 72, No. 210, at Pages 61590-61603. See, also notice of extended deadlines, Federal Register, December 28, 2007, Vol. 72, No. 248, at Pages 73744-73745.

The House will meet at 10:00 AM for legislative business. It will consider several non-technology related items. See, Rep. Hoyer's 2008 calendar [4.25 MB PDF] and calendar for week of January 21.

12:30 - 1:30 PM. The DC Bar Association will host closed panel discussion titled "Public Safety and Critical Infrastructure : Key Issues for 2008 and Beyond". The speakers will be Allan Manuel (FCC's Public Safety and Homeland Security), Mike Keogh (National Association of Regulatory Utility Commissioners), Patrick Halley (National Emergency Number Association), Robert Mayer (USTA). The price to attend ranges from $5 to $10. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

The House will not meet. Day one of the three day House Republican Retreat. See, Rep. Hoyer's calendar for week of January 21.

The Federal Communications Commission (FCC) will commence its spectrum Auction Number 73. This is the 700 MHz band auction. See also, story titled "FCC Adopts 700 MHz Band Order" in TLJ Daily E-Mail Alert No. 1,619, July 31, 2007. And see, the FCC's Public Notice [122 pages in PDF] dated October 5, 2007, and numbered DA 07-4171, and Public Notice [12 pages in PDF] dated January 14, 2008, and numbered DA 08-83.

9:00 AM - 5:00 PM. The Federal Communications Bar Association (FCBA) will host a continuing legal education seminar titled "Communications Law 101". See, notice and registration form [PDF]. The price to attend ranges from $95-$395. Location: Wiley Rein, 1776 K St., NW.

10:00 AM - 12:00 NOON. The Department of State's (DOS) Advisory Committee on International Communications and Information Policy (ACICIP) will hold a public meeting to discuss various upcoming international telecommunications meetings and conferences. See, notice in the Federal Register, December 28, 2007, Vol. 72, No. 248, at Page 73962. Location: Loy Henderson Auditorium, DOS, 2201 C St., NW.

12:00 NOON - 1:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a program titled "How Information Technology Can Help Fix America's Ailing Construction Industry". The speaker will be Barry LePatner. See, notice. Refreshments will be served. Location: ITIF, Suite 200, 1250 Eye St., NW.

12:00 NOON - 2:00 PM. The DC Bar Association will host panel discussion titled "Practicing Law in the E-Court of Public Opinion: How the Internet Can Make or Break a Lawyer's or Law Firm's Reputation and What You Can Do about It". The speakers will be Carolyn Elefant (www.myshingle.com), Mark Britton (Avvo.com), Andrew Mirsky (Mirsky & Company), and David Lat (AboveTheLaw.com). The price to attend ranges from $10 to $25. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

12:30 - 2:00 PM. The DC Bar Association will host a brown bag lunch on celebrity domain name arbitration. The speaker will be Neil Brown, arbitrator on the Domain Name Panel of the World Intellectual Property Organization (WIPO)'s Arbitration and Mediation Center. The price to attend ranges from free to $30. For more information, call 202-626-3463. See, notice. Location: Arnold and Porter, 555 12th St., NW.

2:00 - 4:00 PM. The National Telecommunications and Information Administration (NTIA) will host a public meeting regarding the DTV converter box program. See, NTIA notice and notice in the Federal Register, January 2, 2008, Vol. 73, No. 1, at Page 171. Location: Room 4830, Department of Commerce, 1401 Constitution Ave., NW.

2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for advice for the U.S. on positions for the February 2008 meeting of the Telecommunication Development Advisory Group (TDAG) of the International Telecommunication Union (ITU-D). See, notice in the Federal Register, December 19, 2007, Vol. 72, No. 243, at Page 71992. Location: DOS Main, Room 5804, 2201 C St., NW.

5:00 - 7:00 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a public event titled "Happy Hour" and "Comm Law 101 Postlude". For more information, contact Chris Fedeli at chrisfedeli at dwt dot com or Tarah Grant at tsgrant at hhlaw dot com. Location: Restaurant K by Alison Swope, 1700 K St., NW.

The House will not meet. Day two of the three day House Republican Retreat. See, Rep. Hoyer's calendar for week of January 21.

10:00 AM. The Federal Communications Commission's (FCC) Joint Advisory Committee on Communications Capabilities of Emergency Medical and Public Health Care Facilities will meet. See, notice [PDF]. Location: FCC, Commission Meeting Room, 445 12th St., SW.

12:00 NOON EST - 1:30 PM. National Venture Capital Association will host a webcast seminar titled "The Latest Trends in Venture Capital Deal Terms". The speakers will include John Hession (Cooley Godward & Kronish). See, registration page. For more information, contact Sara Stark at sara at ibfconferences dot com or 763-497-2067.

12:00 NOON. Deadline to submit reply comments to the Office of the US Trade Representative (OUSTR) regarding compliance with telecommunications trade agreements. See, notice in the Federal Register, November 19, 2007, Vol. 72, No. 222, at Pages 65109-65111.

The DC Bar Association will host a panel discussion titled "China's New Anti-Monopoly Law". The speakers will be Stuart Chemtob (DOJ Antitrust Division), Mark Whitener (General Electric), Yee Wah Chin (Ingram Yuzek), Yingxi Fu-Tomlinson (Kaye Scholer), and Xiang Ji. The price to attend ranges from $10 to $35. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

2:00 PM. The Department of Labor's (DOL) Employment and Training Administration (ETA) will hold an online conference regarding its Science, Technology, Engineering, and Mathematics (STEM) Opportunities in the Workforce System Initiative. See, notice in the Federal Register, January 15, 2008, Vol. 73, No. 10, at Pages 2529-2543.

The House will not meet. Day three of the three day House Republican Retreat.

The President will give a speech titled "State of the Union Address". Location: House of Representatives.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) in which it proposes to extend the current five year registration period for the Do Not Call Registry. This NPRM is FCC 07-203 in CG Docket No. 02-278. See, notice in the Federal Register, December 14, 2007, Vol. 72, No. 240, at Pages 71099-71102. See also, story titled "FCC Adopts NPRM Regarding Extending Do Not Call Registrations" in TLJ Daily E-Mail Alert No. 1,680, November 30, 2007.

12:00 NOON - 1:00 PM. The Federal Communications Bar Association's (FCBA) Annual Seminar Committee will host a brown bag lunch. This event is free. Attendance may be restricted to FCBA members. For more information, contact Charla Rath at 202-589-3766. See, notice and registration page. Location: Harris Wiltshire & Grannis, 1200 18th St., NW.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "Rapidly Developing Pleadings Standards in Securities Cases". The speakers will be Larry Ellsworth (Jenner & Block), Daniel Sommers (Cohen Milstein), Mark Adler (Securities and Exchange Commission), and Howard Suskin (Jenner & Block). The price to attend ranges from $5 to $10. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

1:00 PM. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing titled "Public, Educational, and Governmental (PEG) Services in the Digital TV Age". Location: Room 2322, Rayburn Building.