|EC Demands More Money From
2/27. The European Commission (EC) demanded more money from Microsoft. This time, it wants
899 Million Euros. The EC again asserted that Microsoft is violating European competition
The EC alleged in a
release that this action is a "fine" for Microsoft for its "non-compliance
with its obligations under the Commission’s March 2004 Decision"
The EC demanded back in 2004, among other things, that Microsoft license
certain proprietary technology and intellectual property rights to its
competitors. See, stories titled "European Commission Seeks 497 Million Euros
and Code Removal from Microsoft" in
TLJ Daily E-Mail
Alert No. 863, March 25, 2004, and "European Commission Releases Microsoft
Decision" in TLJ
Daily E-Mail Alert No. 883, April 23, 2004. See also, Microsoft
page for this proceeding.
Microsoft then sought judicial review in Europe of the EC's 2004 action. On
September 17, 2007, the European Court of First Instance (CFI) released its
opinion [248 pages in PDF] upholding much of the EC's 2004 decision. See,
story titled "European Court of First Instance Rejects Key Parts of Microsoft's
Appeal" in TLJ
Daily E-Mail Alert No. 1,639, September 14, 2007.
The EC's Nellie
Kroes (at left) stated in the EC release that "I hope that today's Decision
closes a dark chapter in Microsoft's record of non-compliance with the
Commission's March 2004 Decision and that the principles confirmed by the Court
of First Instance ruling of September 2007 will govern Microsoft's future conduct".
An alternative interpretation of the EC's latest action against Microsoft,
and its pending action against Intel, is that these are the beginning of a dark
chapter of EC regulation of U.S. technology companies, under the rubric of
competition law, in the absence of any mergers, acquisitions, or collusive
conduct among competitors, and without regard for economic analysis of the
underlying single firm conduct.
See also, story
titled "European Commission Initiates Proceeding Against Intel Alleging
Anticompetitive Behavior" in
TLJ Daily E-Mail
Alert No. 1,617, July 26, 2007.
The EC's release is short. The EC also released a
second short release in question and answer format. The EC released no
accompanying order, opinion, report, or memorandum. The release does not
articulate arguments regarding how this latest action might reduce
anti-competitive behavior, maximize consumer welfare, or promote innovation.
The EC wrote only that "the interface information of how to ``communicate´´ with
Microsoft’s PC and server operating systems that Microsoft refused to disclose to its
competitors, is vital for them to viably compete in the market for work group server operating
systems and to be able to bring innovative products to that market."
On February 21, 2008, Microsoft announced in a
release and news conference that it is implementing four new
interoperability principles. See, story titled "Microsoft Announces Commitment to Open
Connections" in TLJ Daily E-Mail Alert No. 1,722, February 25, 2008.
The EC, which is regulating by news release, responded in release dated February 21. It
wrote that "This announcement does not relate to the question of whether or not Microsoft
has been complying with EU antitrust rules in this area in the past. The Commission would
welcome any move towards genuine interoperability. Nonetheless, the Commission notes that
today's announcement follows at least four similar statements by Microsoft in the past on
the importance of interoperability."
The release continues that "In January 2008, the Commission initiated two
formal antitrust investigations against Microsoft -- one relating to
interoperability, one relating to tying of separate software products". See, EC
release of January 14, 2008, and story titled "EC Again Targets Microsoft"
in TLJ Daily E-Mail Alert No. 1,700, January 15, 2008.
The EC's February 21 release continues that "In the course of its ongoing
interoperability investigation, the Commission will therefore verify whether
Microsoft is complying with EU antitrust rules, whether the principles announced
today would end any infringement were they implemented in practice, and whether
or not the principles announced today are in fact implemented in practice.
Today's announcement by Microsoft does not address the tying allegations."
"In its Microsoft judgment of 17 September 2007 the Court of First Instance
established clear principles for dominant companies with regard to
interoperability disclosures and the tying of separate software products" the EC
wrote in its February 21 release. "In January 2008 the Commission initiated two
formal antitrust investigations in order to verify whether Microsoft is
complying with the principles established by the Court."
The February 21 release then restates information contained in the January 14 release.
Commentary. The EC has a record of enforcing its competition laws to
reduce anti-competitive behavior involving collusion among competitors. Those
actions are explainable. In contrast, explaining its actions involving single
firm conduct by technology companies is more difficult.
One hypothesis would be that its actions are grounded in economic analysis
and expert application of competition law. However, the EC has failed to
articulate sound economic rationales for its actions. Moreover, U.S. antitrust
agencies, which possess superior resources and expertise in economic analysis to
the EC technology regulators, have take no parallel actions. Indeed, some US
officials have politely criticized the EC in public statements and speeches and
offered more colorful characterizations in discreet communications.
A second hypothesis would be that EC regulators are abusing antitrust
enforcement powers to benefit EC companies, to the detriment of US technology
companies. However, to date, the EC has primarily targeted US companies in a
manner that benefits their US competitors. A related hypothesis would be that
the EC is laying the groundwork for a regime that will in the future be used to
compel to US companies to transfer proprietary rights and secrets to EC
companies, to compel unbundling by US companies for the benefit of EC companies,
and to regulate prices charged by US companies to companies and consumers in the EC.
A third hypothesis is that the EC is building an additional tax on foreign
technology companies. For example, the EC stated in one of February 27 releases
that the money that it confiscates from Microsoft will be "paid into the EU
Budget" and that this "reduces the contribution from Member States".
A fourth hypothesis would be that the EC seeks to establish itself as the
global regulator and planner of new technologies. For example, Kroes, the EC
Competition Commission, stated in a
speech earlier this month that "we want to exercise appropriate political
influence on the global scene" and "we have to ask ourselves how best to keep a
grip on global actors in a global economy". Perhaps Kroes believes that Brussels
bureaucrats would be good at planning the global economy. Alternatively, perhaps
she believes that getting a grip on global technology companies would increase
the business opportunities of Brussels based lawyers, lobbyists, consultants,
TLJ offers no assertions as to which, if any, of these hypotheses are correct.
|Supreme Court Denies Cert in Darden v.
2/25. The Supreme Court denied
certiorari in Darden v. Peters, a case regarding the meaning of
the intellectual property clause of the Constitution. See,
List [10 pages in PDF] at page 3.
This lets stand the May 24, 2007,
pages in PDF] of the U.S. Court of
Appeals (4thCir). This is a little noted case about standards of review in
judicial review of decisions of the
Copyright Office. However, to determine which standard of review to apply,
the courts had to determine whether or not the review concerns a "constitutional
right" within the meaning of the Administrative Procedure Act (APA), at
5 U.S.C. § 706.
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 District Court and Court of Appeals ruled 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.
The Court of Appeals wrote that this clause "grants Congress the power to provide
copyright protection to the extent Congress sees fit", that "Congress is under no
mandate from this clause, however, to provide copyright protection", and that
"whatever rights and remedies exist do so only because Congress provided them".
This is all quite consistent with long standing Supreme Court and lower court
precedent. It is also consistent with how the Congress has long treated the
intellectual property clause. Nevertheless, it is inconsistent with the
plain words of the Constitution, and arguably, the original understanding of the
drafters and ratifiers of the Constitution. It is also inconsistent with
judicial interpretation of other Constitutional provisions that both identify a
right and provide Congressional authority to enact legislation. For example,
14th Amendment (which includes due process and equal protection rights) provides
that "The Congress shall have power to enforce, by appropriate legislation, the
provisions of this article", but the courts have not held that "whatever rights
and remedies exist do so only because Congress provided them".
See also, story
titled "4th Circuit Rules Copyright is Not a Constitutional Right" in TLJ
Daily E-Mail Alert
No. 1,588, May 29, 2007.
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.
|Supreme Court Denies Cert in Convolve v.
2/25. The Supreme Court denied
certiorari in Convolve v. Seagate Technology, a case regarding the
scope of the waiver of attorney client privilege and work product protection
that results when an accused patent infringer asserts an advice of counsel
defense to a charge of willful infringement. See,
List [10 pages in PDF] at page 4.
This lets stand the August 20, 2007, en
[42 pages in PDF] of the U.S. Court of
Appeals (FedCir) which held that the waiver extends to opinion counsel, but
not to trial counsel.
The Court of Appeals wrote that "we conclude that the significantly different
functions of trial counsel and opinion counsel advise against extending waiver to trial
counsel. Whereas opinion counsel serves to provide an objective assessment for making
informed business decisions, trial counsel focuses on litigation strategy and evaluates
the most successful manner of presenting a case to a judicial decision maker. ... Therefore,
fairness counsels against disclosing trial counsel’s communications on an entire subject
matter in response to an accused infringer’s reliance on opinion counsel’s opinion to
refute a willfulness allegation."
The Court of Appeals therefore held, "as a general proposition, that asserting the
advice of counsel defense and disclosing opinions of opinion counsel do not constitute waiver
of the attorney-client privilege for communications with trial counsel."
However, it added that "We do not
purport to set out an absolute rule. Instead, trial courts remain free to
exercise their discretion in unique circumstances to extend waiver to trial
counsel, such as if a party or counsel engages in chicanery."
Similarly, the Court of Appeals held, with respect to work product
protection, that the waiver does not extend to trial counsel's work product,
"absent exceptional circumstances".
This case is Convolve, Inc. v. Seagate Technology, LLC, U.S. Supreme
Court, Sup. Ct. No. 07-656, a petition for writ of certiorari to the U.S. Court
of Appeals for the Federal Circuit, App. Ct. No. 06-M830. The Court of Appeals
heard a petition for writ of mandamus to the U.S. District Court for the
Southern District of New York. See also, Supreme Court
|Court of Appeals Holds One Satisfaction
Rule Applies in Copyright Cases
2/25. The U.S. Court of Appeals (11thCir)
issued an opinion
[15 pages in PDF] in Buc v. International Yacht Council, a copyright
infringement case. The Court of Appeals held that the one satisfaction rule
applies to copyright infringement
Buc International filed a complaint in U.S.
District Court (SDFl) against six defendants alleging direct, vicarious and contributory
copyright infringement. Buc also alleged antitrust law violations, unfair and deceptive trade
practices under state law, and breach of contract; those claims are not pertinent to the
Buc settled with several defendants, for a total of $790,000. Buc then
prevailed at the bench trial against the non-settling defendants, and received an
award of $1,598,278. These non-settling defendants argued that this award should
be reduced, pursuant to the one satisfaction rule, by the amount of the
settlement amounts. The District Court denied the request.
This appeal followed. The Court of Appeals reversed.
The Court of appeals wrote that the one satisfaction rule "has its roots in
elementary principles of tort law. ... The rule generally provides that a
plaintiff is entitled to only one satisfaction for a single injury, such that
amounts received in settlement from an alleged tortfeasor are credited against
judgments for the same injury against non-settling tortfeasors." The Court added
that the rule "operates to prevent double recovery, or the overcompensation of a
plaintiff for a single injury."
The Court of Appeals held that copyright infringement is in the nature of
tort, and that principles of tort law limiting multiple recoveries for one
injury apply to copyright infringement actions.
It wrote, "To hold otherwise would allow a plaintiff to recover
multiple times for a single injury, frustrating this elementary principle of
tort law in a manner that we cannot imagine envisioned by Congress."
This case is Buc International, Inc. v. International Yacht Council Ltd.,
et al., U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 05-16151,
an appeal from the U.S. District Court for the Southern District of Florida,
D.C. No. 02-60772-CV-WPD. Judge Barkett wrote the opinion of the Court of
Appeals, in which Judges Anderson and Trager, sitting by designation, joined.
|More Court News
2/25. The Supreme Court denied
certiorari in Autotech Tech v. Integral Research, a case regarding
jurisdiction of a U.S. District Court over a claim against a semiconducter maker
owned by a foreign government. This lets stand the opinion of the
U.S. Court of Appeals (7thCir), which
vacated the judgment and writ of execution of the District Court. The Court of
Appeals held that the District Court properly exercised jurisdiction over a
claim by a U.S. company (Autotech) against a commercial semiconductor
manufacturer (Integral) that is owned by a foreign government (Belarus).
However, it vacated the judgment against the Integral on other procedural
grounds. See also, story titled "7th Circuit Addresses Jurisdiction in Actions
Against Companies Owned by Foreign Governments" in
TLJ Daily E-Mail
Alert No. 1,631, August 30, 2007. This case is Autotech Technologies L.P.
v. Integral Research & Development Corporation, U.S. Supreme Court, Sup. Ct.
No. 07-879, a petition for writ of certiorari to the U.S. Court of Appeals for
the 7th Circuit, App. Ct. No. 06-1718. The Court of Appeals heard an appeal from
the U.S. District Court for the Northern District of Illinois, Eastern Division,
D.C. No. 96 C 3193, Judge David Coar presiding. Judge Wood wrote the opinion of
the Court of Appeals, in which Judge Kane and Williams joined. See also, Supreme
2/25. The U.S. Court of Appeals (5thCir) issued
opinion [PDF] in American Rice v. Producers Rice Mill, a trademark
and contract case involving marketing of rice in Saudi Arabia. This case addresses several
issues, including extraterritorial applications of US law, likelihood of confusion, and
remedies. This case is American Rice, Inc. v. Producers Rice Mill, Inc., U.S. Court
of Appeals for the 5th Circuit, App. Ct. No. 06-20645, an appeal from the U.S. District Court
for the Southern District of Texas. Judge Eugene Davis wrote the opinion of the Court of
Appeals, in which Judge Higginbotham joined. Judge Jerry Smith dissented on the likelihood
of confusion issue.
|Tech Law Journal experienced technical difficulties sending
Monday and Tuesday, February 25-26, 2008. TLJ also received
numerous e-mail error messages indicating non-delivery of
Daily E-Mail Alert No. 1,722. Hence, this issue has been
published in the TLJ web site.
|Washington Tech Calendar
New items are highlighted in red.
|Wednesday, February 27
The House will meet at 10:00 :AM for legislative business. See,
schedule for week of February 25.
The Senate will meet at 9:30 AM. It will resume consideration
of the motion to proceed on S 2633,
a bill related to Iraq.
8:30 AM - 5:00 PM. The U.S.-China Economic and Security Review Commission
will hold a public hearing titled "China's Views of Sovereignty and Methods
of Access Control". The hearing will also address "ways that China may be
influencing the development of international sovereignty laws and norms in space and
notice in the Federal Register, January 30, 2008, Vol. 73, No. 20, at
Pages 5631-5632. Location: Room 562, Dirksen Building, Capitol Hill.
10:00 AM. The House Commerce
Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a
hearing regarding "H.R. __, a Discussion Draft on Wireless Consumer Protection
and Community Broadband Empowerment". The witnesses will be
Steve Largent (CTIA), Larry Darby
(American Consumer Institute), Chris
Murray (Consumers Union), and Joey Durel (City of Lafayette, Louisiana). This event
will be webcast by the HCC. Location: Room 2322, Rayburn Building.
1:30 PM. The House Judiciary
Committee's (HJC) Subcommittee on Courts, the Internet and Intellectual Property will
hold an oversight hearing on the
U.S. Patent and Trademark
Office (USPTO). See,
notice. Location: Room 2141,
6:00 - 8:15 PM. The Federal Communications
Bar Association's (FCBA) Enforcement Committee will host a closed event titled "FCC
Hearings and Investigations -- Nuts and Bolts Review". See,
notice and registration page. Registrations are due by 5:00 PM on February 25.
This event offers continuing legal educations (CLE) credits. The price to attend ranges from
$25 to $135. Location: Wilmer Hale, 1875
Pennsylvania Ave., NW.
Day three of a three day conference hosted by the
National Association of Broadcasters (NAB)
titled "2008 NAB State Leadership Conference". See,
web site. Location: Mandarin Oriental Hotel.
Deadline to submit requests to the Federal
Trade Commission (FTC) to be panelists at its May 6-7, 2008, workshop titled
"Beyond Voice: Mapping the Mobile Marketplace". See,
|Thursday, February 28
The House will meet at 10:00 AM for legislative business. See, Rep.
schedule for week of February 25.
9:00 AM - 12:00 NOON. The Department of Commerce's
(DOC) National Telecommunications and Information
Administration (NTIA) will hold a public meeting to to discuss the mid-term review of the
Joint Project Agreement (JPA) between the DOC and the Internet
Corporation for Assigned Names and Numbers (ICANN). See,
notice in the Federal Register, January 24, 2008, Vol. 73, No. 16, at Page
4181. Location: DOC, Auditorium, 1401 Constitution Ave., NW.
10:00 AM. The Senate
Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes
consideration of several bills, including S 2449
"Sunshine in Litigation Act of 2007", and S 352
"Sunshine in the Courtroom Act of 2007". The agenda also includes
consideration of the nominations of Kevin O'Connor (to be Associate Attorney General)
and Gregory Katsas (to be Assistant Attorney General in charge of the Civil Division).
The SJC rarely follows its published agendas. All of the above listed agenda items have been
on prior agendas. See,
notice. Location: Room 226, Dirksen Building.
10:00 AM. The House Homeland
Security Committee (HHSC) will hold a hearing titled "Cyber Initiative".
The witnesses will be Robert Jamison (DHS's Under Secretary for National Protection and
Programs), Scott Charbo (DHS's Deputy Under Secretary for National Protection and Programs
Directorate), Karen Evans (OMB), and Shawn Henry (FBI's Deputy Assistant Director of the
Cyber Division). This hearing will be webcast by the HHSC. For more information, contact
Dena Graziano or Adam Comis at 202-225-9978. Location: Room 311, Cannon Building.
12:00 NOON - 2:00 PM. The Federal
Communications Bar Association's (FCBA) International Telecommunications Practice
Committee will host a panel discussion titled "EU Telecommunications Law
Developments". The speakers will be Gerry
Oberst (Hogan & Hartson), Winston
Maxwell (Hogan & Hartson), and
David Gross (Department of State). Lunch will be provided by Hogan & Hartson. RSVP
to aqfitzgerald at hhlaw dot com. Location: Hogan &
Hartson, Litigation Center, 555 13th St., NW.
12:15 PM. The Federal
Communications Bar Association's (FCBA) Wireless Practice and Privacy and Data Security
Committees will host a panel discussion titled "Protecting Wireless Consumer
Privacy". The speakers will be Michael Altschul
David Solomon (Wilkinson
Barker & Knauer). Lunch will be served. The price to attend is $15.00. See,
notice and registration page. Registrations are due by 12:00 NOON on
February 26. Location: Sidley Austin,
1501 K St., NW.
2:00 - 3:00 PM. The President's
National Security Telecommunications Advisory Committee (NSTAC) will hold a partially
closed meeting by teleconference. The agenda of the open portion of the meeting, which
begins at 2:00 PM, includes a discussion and vote on the NSTAC's Global Positioning
Systems report. The agenda of the closed portion of the meeting, which begins at
2:30 PM, includes a discussion of the results of the NSTAC's investigation of the
global network infrastructure environment, and a discussion of the work of the NSTAC's
Network Security Scoping Group. See,
notice in the Federal Register, February 4, 2008, Vol. 73, No. 23, at Pages
Deadline for the Department of Education's National
Mathematics Advisory Panel to submit its final report to the President. See,
notice in the Federal Register, August 20, 2007, Vol. 72, No. 160, at Pages
|Friday, February 29
schedule for week of February 25 states that "no votes are expected in the
10:00 AM. Deadline for foreign governments to submit comments to the
Office of the U.S. Trade Representative (OUSTR) to assist
it in making Special 301 identifications 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, story titled "OUSTR Seeks
Special 301 Comments on Countries that Deny Adequate IPR Protection" in TLJ Daily E-Mail
Alert No. 1,703, January 22, 2008, and
notice in the Federal Register, January 16, 2008, Vol. 73, No. 11, at Pages 2958-2959.
12:00 NOON - 2:00 PM. The
iGrowthGlobal (IGG) will host a
panel discussion titled "Network Management: The Latest Battle Over Net
Neutrality". The speakers will be Scott Wallsten (IGG), David Burstein (DSLPrime),
Jay Monahan (Vuze, Inc.), George Ou (ZDNet), Haruka Saito (Counselor for
Telecom Policy, Embassy of Japan), and Christopher Yoo (University of
Pennsylvania). Lunch will be served. Register by contacting Ashley Creel at
202-828-4405 or creela at igrowthglobal dot org. Location: Room 2322,
Rayburn Building (House Commerce Committee's 3rd floor hearing room).
Deadline to submit to the Department of Commerce's (DOC)
National Telecommunications and Information
Administration (NTIA) expressions of interest to participate
in the spectrum sharing innovation test-bed. See,
notice in the Federal Register, February 5, 2008, Vol. 73, No. 24, at
Deadline to submit comments or objections to the
Copyright Royalty Judges' proposed rules that set the
rates and terms for the making of an ephemeral recording of a sound recording by a
business establishment service for the period 2009-2013. See,
notice in the Federal Register, January 30, 2008, Vol. 73, No. 20, at
Deadline to submit petitions to participate (and filing fees) in
the Copyright Royalty Judges' proceeding to determine
the Phase II distribution of 1998 and 1999 royalties collected under the cable statutory
notice in the Federal Register, January 30, 2008, Vol. 73, No. 20, at Page 5596-5597.
Deadline to submit comments to the
Copyright Royalty Judges
in response to its request for comments regarding controversies at Phase I and Phase II
for distribution of the 1999 through 2005 royalty funds collected under the satellite
carrier statutory license. The deadline to submit comments is February 29, 2008. See,
notice in the Federal Register, January 30, 2008, Vol. 73, No. 20, at Page 5597.
Deadline to submit comments to the
Copyright Royalty Judges regarding a motion for partial
distribution funds under the partial Phase I settlement in connection with the 2004 and 2005
cable royalty funds. Comments are due by February 29, 2008. See,
notice in the Federal Register, January 30, 2008, Vol. 73, No. 20, at
|Saturday, March 1
Deadline to submit Form 477, titled "Local Telephone
Competition and Broadband Reporting", to the Federal Communications Commission
(FCC). See, Form 477 [MS Excel]
and FCC document [17 pages
in PDF] titled "Instructions for Local Telephone Competition and Broadband Reporting
Form (FCC Form 477)".
|Monday, March 3
Deadline to submit initial comments to the Federal Communications
Commission (FCC) in response to its Third Further Notice of Proposed Rulemaking regarding
cable carriage of digital television broadcast signals. The FCC adopted this item on
September 11, 2007, and released the
pages in PDF] on November 30, 2007. This item is FCC 07-120 in CS Docket No. 98-120. See,
notice in the Federal Register, February 1, 2008, Vol. 73, No. 22, at Pages 6099-6101,
and story titled "FCC Adopts R&O and Further NPRM Regarding Cable Carriage of Digital
Broadcast TV Signals" in TLJ
Daily E-Mail Alert No. 1,640, September 17, 2007.
|Tuesday, March 4
10:00 AM - 4:00 PM. The U.S. Patent
and Trademark Office's (USPTO) National Medal of Technology and Innovation Nomination
Evaluation Committee will hold a closed meeting to discuss persons and companies that have
been nominated for awards. See,
notice in the Federal Register, February 12, 2008, Vol. 73, No. 29, at
Pages 8033-8034. Location: USPTO, 600 Dulany Street, Alexandria, VA.
1:00 - 4:00 PM. The Architectural and Transportation Barriers Compliance
Board's (ATBCB) Telecommunications and Electronic and Information Technology
Advisory Committee (TEITAC) will meet by conference call. See,
notice in the Federal Register, January 24, 2008, Vol. 73, No. 16, at Page 4132.
2:00 - 4:00 PM. The Department of State's (DOS) International
Telecommunication Advisory Committee (ITAC) will hold one of a series of meetings to
discuss the U.S. positions for the March and April 2008 meeting of the ITU-T Study Group 3
and related issues of the international telecommunication regulations. See,
notice in the Federal Register, February 4, 2008, Vol. 73, No. 23, at Page
Day one of a three day conference hosted by the
National Institute of Standards and Technology (NIST)
and others titled "7th Symposium on Identity and Trust on the Internet" or
"IDtrust 2008". See,
notice. The basic
price to attend is $110. Location: NIST, 100 Bureau Drive, Gaithersburg, MD.
Day one of a two day conference hosted by the George Washington University's
(GWU) Graduate School of Public Management's (GSPM) Institute for
Politics, Democracy & the Internet titled "Politics Online Conference
2008". See, conference web site.
Location: Renaissance Hotel, 999 9th St., NW.
|CCIA Comments on FTC Letter Regarding
Copyright Notices Complaint
2/25. The Computer and Communications
Industry Association (CCIA) issued a release regarding its August 1, 2007,
[PDF] submitted to the Federal Trade Commission
(FTC) regarding copyright notices.
The CCIA alleged in its complaint that Major League Baseball, National Football League,
NBC/Universal, and others violated Section 5 of the FTC Act, which is codified at
15 U.S.C. § 45, in connection with their alleged use of deceptive and
threatening copyright notices. See also, CCIA's August 1, 2007,
Section 5 is not directed at copyright notices or sports programming. Rather,
it is a broad prohibition of unfair and deceptive trade practices. It provides
that "Unfair methods of competition in or affecting commerce, and unfair or
deceptive acts or practices in or affecting commerce, are hereby declared
The CCIA requested that the FTC order the copyright holders to cease making deceptive
statements. It also sought an order directing copyright holders to "forebear from
attempting to force consumers into waiving their rights through contractual instruments".
It also sought an order directing the copyright holders to "provide for educational
awareness programs" from third parties regarding "fair use rights".
The FTC sent the CCIA a
pages in PDF] on December 6, 2007, stating that "the FTC staff has determined
not to recommend that the Commission take any formal action against the
companies named in the CCIA's complaint at this time". (TLJ failed to
report on the issuance of this letter in a timely manner.)
Nevertheless, Ed Black, head of the
CCIA, stated that "We are pleased with the statements of the FTC that
acknowledge the risks to consumer rights ... The FTC letter issues an early
warning to copyright owners that they are not immune from consumer protection
laws and that the FTC will be monitoring the situation."
Also, TLJ spoke with Black. He added that "we
will be submitting more information to the FTC of various types".
The FTC letter states that "Copyright warnings can serve the valuable purpose of
notifying consumers in a succinct fashion that infringement has potentially serious legal
consequences. ``FBI copyright warnings´´ on DVD and VHS tape cases, as well as in the motion
pictures embodied in the DVDs and tapes therein, can be evidence in criminal piracy cases
that defendants' copyright infringement was willful."
"Copyright owners are not, however, entitled to engage in deceptive and
unfair practices to protect their copyrighted works against infringement."
It continues that "After reviewing the various warnings cited in the CCIA's
complaint, the FTC staff concludes that consumers would likely interpret the
statements as representations that the material at issue is copyrighted and that
there can be significant penalties for infringing that copyright. We do not have
a sufficient basis to conclude that consumers would view those brief warnings as
complete statements of their rights with respect to the works. Nor do we have a
sufficient basis to conclude that consumers would be likely to refrain from
engaging in lawful activities as a consequence of reading those warnings."
However, the letter adds that "FTC staff encourages copyright owners to be
accurate in their characterizations of their rights and any limitations on
consumers' rights to use copyrighted works. Widespread use of inaccurate
copyright warnings could contribute to consumers' misunderstanding of the
statutory protections available to them under the Copyright Act. Further, if
consumers routinely confront exaggerated and inaccurate copyright warnings they
may tend to disregard them altogether, to the detriment of consumers and
copyright owners alike."
See also, August 3, 2007,
letter [PDF] of the
Public Knowledge and other groups, and August
letter [4 pages in PDF] of the
Library Copyright Alliance (LCA).
|About Tech Law Journal
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