4/21. The European Commission (EC) released a report [67 pages in PDF] titled "United States Barriers to Trade and Investment". The report lists and explains numerous US laws and procedures, some of which have protectionist purposes or consequences.

This article focuses on the items in this report that implicate information and communications technologies.

The report asserts that there are several intellectual property related barriers. It discusses the Patent Act's first to invent rule, the Hilmer doctrine in patent interference cases, US patent protection of software and business methods patents, Section 110(5) of the Copyright Act and the US failure to change this following its loss in the Irish music case before the WTO, and abusive use of the Section 337 process.

The report also reports on state barriers to direct wines sales including internet sales, federal barriers affecting telecommunications and electronic equipment, and barriers to the US export of encryption products, which the report states harms electronic commerce.

The report also asserts numerous restrictions to foreign investment in the US, including Section 310 of the Communications Act, the CFIUS review process, and US GAAP accounting standards.

Intellectual Property Related Barriers. First, the report states that "The U.S. patent system applies the principle of ``first-to-invent´´, while the rest of the world follows the principle of ``first-to-file´´, fixing thereby a clearly defined moment when the priority right to a patent is established."

The report explains that "The first-to-invent principle creates several obstacles for EU and U.S. companies trying to obtain a patent right in the U.S., namely because it has a considerable economic impact on the potential right holder."

It adds that this issue "has figured on top of the Transatlantic Business Dialogue agenda and the latter has recommended the adoption of the first-to-file approach in the U.S."

There are pending bills to transition the US patent system from the current first to invent rule to a first to file rule. See, S 1145 [LOC | WW], the "Patent Reform Act of 2007", and HR 1908 [LOC | WW], also titled the "Patent Reform Act of 2007". The main obstacle to passage is the debate over the remedy of damages for infringement. See, stories titled Bush Administration Opposes Senate Version of Patent Reform Act" in TLJ Daily E-Mail Alert No. 1,711, February 5, 2008, and "Secretary Gutierrez Writes Sen. Leahy Regarding Patent Reform" in TLJ Daily E-Mail Alert No. 1,741, April 2, 2008.

The report also states that "transatlantic differences regarding patents are exemplified by the application of the Hilmer Doctrine in patent interference cases, which has been clearly detrimental to European companies."

The report also cites the situations that "American and European law take different approaches to the question of patentability of software and business methods".

The report also raises 17 U.S.C. § 110(5). It states that "Despite a number of positive changes in U.S. legislation following the Uruguay Round, copyright issues are still problematic due to Section 110(5) of the 1976 U.S. Copyright Act (``Irish Music´´ case). Despite losing a WTO case on the issue, the U.S. has not yet brought its Copyright Act into compliance with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs). The EU has safeguarded its rights to suspend trade benefits granted to the U.S. if the Copyright Act is not amended." (Parentheses in original.)

The report also raises the Section 337 process. It states that "Section 337 of the Tariff Act of 1930 provides remedies for holders of U.S. intellectual property rights by keeping the imported goods which are infringing such rights out of the U.S. (``exclusion order´´) or to have them removed from the U.S. market once they have come into the country (``cease and desist order´´). These procedures are carried out by the U.S. International Trade Commission (ITC) and are not available against domestic products infringing U.S. patents." (Parentheses in original.)

The report further states that "the ITC has started new investigations against a number of European and Canadian companies. In the absence of any abusive claim or dilatory claim concepts applicable to the Section 337 procedure they appear to have no other purpose than to compel the European defendants to settle."

The report suggests that the EC may file a complaint with the WTO on this matter.

State Barriers to Direct Wine Sales. The report complains about states that restrict direct wine sales, including internet sales.

The US Supreme Court has struck down protectionist state wine sales statutes that burden interstate commerce. See, opinion [73 pages in PDF] in Granholm v. Heald and story titled "Supreme Court Rules in Internet Wine Sales Case" in TLJ Daily E-Mail Alert No. 1,137, May 17, 2005.

However, the EC complains in this report that states still discriminate against EC wine sellers.

The report states that "Some state legislation prevents cross-state retail sales of wines and spirits; prohibit EU exporters from distributing, rebottling, or retailing their own wine; require duplicate label approvals; levy fees and charges; and other procedures."

The report acknowledges that "some state regulations on direct to consumer shipment are changing due to the U.S. Supreme Court's Granholm ruling. As a result certain states are now allowing shipments of wine directly to consumers if the winery obtains a permit from the state they wish to ship to."

However, it adds that "in most of the cases only domestic wineries are eligible to obtain the permit. In both cases, direct to consumers' shipment and direct distribution, state legislators do not take imported products into account when establishing regulations and appear to discriminate against foreign wines."

Telecommunications and Electronics Equipment. The report states that US regulation of electronics and telecommunications products creates barriers to EC producers.

First, it states that "The electrical safety field in the U.S. is ruled by workplace safety regulations developed by the Occupational Safety and Health Administration (OSHA), the National Electric Code and industry safety standards for electrical equipment such as Underwriters´ Laboratories (UL). European exporters of electrical and electronic equipment and appliances face steep barriers to market their products on the U.S. market."

Second, it states that "since telecommunications equipment is subject to continuous testing and assessment in its development and production process, it should be unnecessary to repeat such tests by a third party. Industry stresses the advantages of an appropriate supplier declaration of conformity. U.S. regulatory agencies have begun a review of this approach, and are moving in certain instances towards manufacturer's declarations of conformity (PCs, VCRs, for example)." (Parentheses in original.)

The report states that Federal Communications Commission (FCC) "has deregulated its requirements for wired terminal equipment attachment (much in line with the regulatory approach used in the EU). However, the FCC continues to require third party certification of radio equipment that has been deregulated in the EU in terms of technical product requirements and approval procedures." (Parentheses in original.)

The report urges the FCC to move toward a manufacturers' declaration of conformity for radio equipment. It also urges the FCC "to ensure that U.S. operators only require certification of U.S. specific operations of mobile equipment or align its regime with the EU regime."

Encryption Exports. The report complains that US law regarding encryption products presents barriers, not to sale by EC producers in the US, but to the sale by US producers in the EC.

The report states that "Potential problems are posed by the differential treatment of encryption items depending on whether they are transferred to government and non-government end users. In addition, the generalised introduction of the technical review of encryption products above a certain key length in advance of sale creates a difficulty for the European industry for cases of re-export."

The report concludes that "A combination of the continuing constraints on the export of strong encryption products and on the interoperability of systems employing such technology inhibits not only trade in encryption products but also, more importantly, the effective growth of e-commerce."

CFIUS Review Process. The also lists numerous barriers to foreign investment in the US. First, the report complains about the Committee on Foreign Investment in the United States (CFIUS).

It states that the underlying statute "requires the President to review mergers, acquisitions or takeovers that could result in foreign control of legal persons engaged in interstate commerce to determine their potential effects on U.S. national security if any." The CFIUS is the entity that actually conducts the review.

The report states that "The length of time taken by the screening process, the uncertainty, and the legal and economic costs involved potentially have a negative impact on foreign investment. Moreover, should the President decide that any such transactions threaten national security, which is widely interpreted -- he can take action to suspend or prohibit these transactions. This could include the forced divestment of assets. There are no provisions for judicial review or for compensation in the case of divestment."

Moreover, the report states that because of the vagueness of the statute, "Foreign investors may feel obliged to give prior notification of their proposed investments. In effect a very significant number of EU firms' acquisitions in the U.S. are subject to pre-screening."

GAAP and IFRS. The report also cites different accounting standards as a barrier to investment. It states that EU companies admitted to trading on the New York Stock Exchange (or other U.S. exchanges) must reconcile financial statements with U.S. accounting standards (U.S. GAAP). This means a significant cost for EU companies raising capital in the U.S." (Parentheses in original.)

However, the report also notes that the Securities and Exchange Commission (SEC) is moving towards recognition of International Financial Reporting Standards (IFRS).

SEC Chairman Chris Cox gave a speech on April 18 in which he discussed IFRS at length. He said, among other things that "Later this year" SEC staff "will formally propose to the Commission an updated "roadmap" that lays out a schedule, and appropriate milestones on which the schedule will be conditioned, for continuing the progress that the United States is making in moving to accept IFRS in this country." See, story titled "SEC Chairman Addresses Marriage of IFRS and Interactive Data" in TLJ Daily E-Mail Alert No. 1,753, April 24, 2008.

Investment Barriers in the Communications Act. The report states that "Section 310 of the 1934 Communications Act establishes restrictions to foreign investment in U.S. companies holding a broadcast or common carrier radio license (the latter include also aeronautical en route or aeronautical fixed radio station). Such licenses shall not be granted to, or held by, foreign governments or their representatives, aliens, foreign corporations, or corporations of which more than 20% of the capital stock is owned or voted by a foreign entity. Foreign indirect investment is limited to 25% subject to a public interest waiver. In addition, to provide telecommunications services, operators typically need to integrate radio transmission stations, satellite earth stations and in some cases, microwave towers into their networks. Foreign-owned U.S. operators face additional obstacles in obtaining the licensing of these various elements relative to U.S.-owned firms. As a result, the U.S. broadcasting market today is hardly accessible to foreign media companies."

The report notes that "the FCC may waive these restrictions under the current law by invoking the public interest". However, the report states that this process is "lengthy and costly" and "does not provide certainty to European operators".

Finally, it states that "The EU will continue to monitor the situation carefully and will oppose any action, through legislation or otherwise, that would conflict with the U.S. WTO commitments."

Telecommunications Regulation. The report also provides a summary of federal regulation of telecommunications and internet protocol communications. It offers an obvious conclusion: "the U.S. regulatory framework remains unstable".

It also addresses some specific barriers. "Despite the commitments made at the WTO and especially those pursuant to the GATS Basic Telecommunications negotiations concluded in 1997 and which entered into force in February 1998, European and other foreign-owned firms seeking access to the U.S. market have faced substantial barriers, particularly in the satellite sector (which has suffered from lengthy proceedings, conditionality of market access and de facto reciprocity-based procedures) and the mobile sector (e.g. investment restrictions, lengthy and burdensome proceedings and protectionist attitudes in certain congressional circles). A number of changes have been introduced, in particular in relation to the U.S. spectrum management policy and licensing procedures in the satellite sector. The EU notes these and other gradual improvements on a number of issues, but since some of the previously identified obstacles remain, must conclude that market access is still not fully ensured and this situation is not in line with the market access policy advocated by the U.S."

4/15. The Cato Institute released a paper [PDF] titled "Race to the Bottom? The Presidential Candidates' Positions on Trade". The author is the Cato's Sallie James.

She wrote that "Sen. John McCain has largely stuck to his free-trade principles" while "Sens. Hillary Clinton and Barack Obama have entered into a seemingly escalating war of words over the alleged damage done by trade liberalization."

James wrote that based upon Congressional records and campaign statements, "Voters could expect a President Mc-Cain to promote freer trade and cuts in market-distorting subsidies, and a President Clinton or a President Obama to view free trade between voluntary actors as something to be restrained, loaded with conditions, or counterbalanced by an expansion of the welfare state."

Ed Black, head of the Computer and Communications Industry Association (CCIA), offered another take on partisanship and support for free trade in a recent speech, and an opinion piece published in the Mercury News.

He wrote that free trade is good policy, and that the "high-tech sector is a strong supporter of free trade and open markets". He argued that "trade policy is too important to be subjected to political whims", and suggested that Democratic support is lacking because Republicans have used trade as a "wedge issue".

Black wrote that "This nation began to go off track in the late 1990s. A Republican Congress, seeking to preserve and expand its majority, started to use trade as a wedge issue. Votes on trade agreements were structured and exploited to expose vulnerable Democratic members and make some moderates choose between unions and industry. These political tactics were designed to change the balance of power on Capitol Hill, but they undercut broad support for trade and weakened the United States' ability to negotiate favorable trade deals, which ultimately affects the economy."

4/16. Rep. Peter King (R-NY) introduced HR 5814 [LOC | WW], the "Free Speech Protection Act of 2008".

This bill would provide relief to speakers and publishers in the US who find themselves subjected to libel litigation in foreign countries for speech that is protected by the First Amendment in the US.

Introduction. Expression on the internet is available anywhere in the world that there is internet access. Many nations' courts assert jurisdiction in libel actions on the basis that the speech to be suppressed is accessible over the internet in that country.

See for example December 10, 2002, opinion of the High Court of Australia in Dow Jones v. Gutnick, and story titled "High Court Rules Australia Has Jurisdiction Over Dow Jones Based on Web Publication" in TLJ Daily E-Mail Alert No. 564, December 10, 2002.

Also, printed books, even if published in one location, and not distributed elsewhere by the publisher, are sold over the internet in secondary sales, thereby subjecting authors and publishers to lawsuits anywhere in the world.

The US has standards of free speech that are not respected or followed in other nations. Thus, US speakers and publishers who engage in expression in the US are sometimes sued in other nations that aggressively assert jurisdiction over US persons, and reject US First Amendment jurisprudence.

HR 5814 is an attempt to create a legal framework that would protect US persons from abusive speech suppressing litigation abroad. It would create a federal cause of action for a US person subjected to a foreign forum shopping libel action that suppresses speech that is protected by the First Amendment in the US.

Under this bill, the US plaintiff could obtain a declaratory judgment that the foreign judgment is unenforceable in the US, as well as damages based on the amount of the foreign judgment, the costs and attorneys fees of defending the foreign action, consequential damages, and treble damages.

The bill has no cosponsors. It was referred to the House Judiciary Committee (HJC). Rep. King is not a member.

Rep. King (at right) may have as a motivation for introducing this bill a case in the state of New York involving a New York author, Rachel Ehrenfeld, and related legislation in New York.

Ehrenfeld wrote a book [Amazon] titled "Funding Evil: How Terrorism Is Financed -- and How to Stop It" in which she alleged that Khalid Salim Bin Mahfouz financially supported terrorism. He sued her in England, and obtained a default judgment. She filed a complaint in U.S. District Court (SDNY) against Mahfouz seeking a declaratory judgment under the Declaratory Judgment Act, which is codified at 28 U.S.C. § 2201, that the foreign judgment is not enforceable in the U.S. for violating the First Amendment. The District Court dismissed for lack of jurisdiction over Mahfouz, and the Court of Appeals affirmed. See, story titled "2nd Circuit Affirms in Ehrenfeld v. Mahfouz" in TLJ Daily E-Mail Alert No. 1,725, March 3, 2008.

Also, the New York legislature responded to the Mahfouz affair by passing its Libel Terrorism Protection Act. That bill now waits the signature of the Governor. See, story titled "New York Senate Passes Libel Terrorism Protection Act", also in TLJ Daily E-Mail Alert No. 1,725, March 3, 2008.

Patricia Schroeder, a former member of the HJC, and now head of the American Association of Publishers (AAP), sent a letter to New York Governor David Paterson urging him to sign the Libel Terrorism Protection Act.

She wrote that "The sale of books over the Internet exposes New York authors and publishers to the danger of being sued almost anywhere in the world, and libel tourist litigation remains a threat in any country where our strong constitutional protections for speech are absent."

Much has been written in the US about Mahfouz. See for example, story in Human Events titled "The Libel Tourist: Silencing Free Speech", dated November 21, 2007, by Ericka Andersen, and story in the Chicago Tribune titled "Saudi wields British law against U.S. author: Billionaire leverages harsher libel rules to suppress unflattering book", dated March 17, 2008, by James Oliphant. However, Mahfouz is not the only person to avail himself of the libel litigation friendly English courts. See for example, story in the Financial Times titled "English courts in the dock on libel tourism", dated April 1, 2008, by Michael Peel and Megan Murphy.

Summary of HR 5814. Section 1 of the bill provides its title.

Section 2 recites detailed findings. It finds that "Some persons are obstructing the free expression rights of Americans, and the vital interest of the American people in receiving information on matters of public importance, by first seeking out foreign jurisdictions that do not provide the full extent of free-speech protection that is fundamental in the United States and then suing Americans in such jurisdictions in defamation actions based on speech uttered or published in the United States -- speech that is fully protected under First Amendment jurisprudence".

The bill also finds that "Some of these actions are intended not only to suppress the free speech rights of journalists, academics, commentators, experts, and other individuals but to intimidate publishers and other organizations that might otherwise disseminate or support the work of those individuals with the threat of prohibitive foreign lawsuits, litigation expenses, and judgments that provide for money damages and other speech-suppressing relief".

Also, it finds that some foreign countries permit "lawsuits filed by persons who are often not citizens of those countries, under circumstances where there is often little or no basis for jurisdiction over the Americans against whom such suits are brought".

Section 3 of the bill creates a new cause of action, asserts and defines federal jurisdiction, provides for declaratory relief and monetary damages, allows expedited discovery, establishes venue, and sets a limitation.

Subsection 3(a) of the bill provides the cause of action: "Any United States person against whom a lawsuit is brought in a foreign country for defamation on the basis of the content of any writing, utterance, or other speech by that person that has been published, uttered, or otherwise disseminated in the United States may bring an action in a United States district court specified in subsection (f) against any person who, or entity which, brought the foreign suit if the writing, utterance, or other speech at issue in the foreign lawsuit does not constitute defamation under United States law."

The bill later defines US person not only to include US citizens, but also "a business entity lawfully doing business in the United States".

Subsection 3(b) asserts jurisdiction over foreign forum shopping libel plaintiffs: "It shall be sufficient to establish jurisdiction over the person or entity bringing a foreign lawsuit described in subsection (a) that such person or entity has filed the lawsuit against a United States person, or that such United States person has assets in the United States against which the claimant in the foreign action could execute if a judgment in the foreign lawsuit were awarded."

In the US there is a constitutional due process component to the exercise of personal jurisdiction. The Constitution is superior to a federal statute. Hence, if this bill were enacted into law, foreign libel plaintiffs such as Mahfouz would likely assert that exercise of jurisdiction over them by a US court under this statute would violate their due process rights.

Subsections 3(c) and 3(d) address remedies. First, "the district court shall order that any foreign judgment in the foreign lawsuit in question may not be enforced in the United States, including by any Federal, State, or local court".

Second, "damages may be awarded ... based on the ... amount of the foreign judgment  ..." That is, the US judgment against the foreign plaintiff might offset the foreign judgment against the US speaker.

The bill also provides for recovery of costs and attorneys fees of defending the foreign action. It also provides for the award of damages for "harm caused to the United States person due to decreased opportunities to publish, conduct research, or generate funding".

Finally, the bill allows the "factfinder" to award "treble damages" if it finds a "scheme to suppress First Amendment rights". The consequence of all these remedies is that foreign libel plaintiffs could face judgments in US courts that far exceed whatever judgment they obtained from the foreign court.

It should also be noted that HR 5814 provides that the "factfinder" determines whether or not to award treble damages. In a jury trial this would be the jury rather than the judge. A jury is more likely to award treble damages, especially against foreign billionaires.

4/28. The Supreme Court issued its opinion [65 pages in PDF] in Crawford v. Marion County Election Board, upholding the constitutionality of a statute of the state of Indiana that requires voters to present a government issued photo identification to vote.

Indiana Democrats challenged the statute under the equal protection clause of the Constitution. The Supreme Court's right to vote cases are based upon this clause in the 14th Amendment.

The Supreme Court concluded that the statute is a nondiscriminatory law and is supported by valid neutral justifications.

The Supreme Court wrote that "There is no question about the legitimacy or importance of the State’s interest in counting only the votes of eligible voters" and "the fact of inflated voter rolls does provide a neutral and nondiscriminatory reason supporting the State’s decision to require photo identification." Moreover, it wrote that it could not conclude that the statute imposes excessively burdensome requirements on any class of voters.

Justice Stevens wrote the opinion of the Court, in which Justices Roberts and Kennedy joined.

Justice Scalia wrote a concurring opinion in which Justices Thomas and Alito joined. He wrote that there is no equal protection issue because the statute creates no classes. He wrote that "To vote in person in Indiana, everyone must have and present a photo identification that can be obtained for free. The State draws no classifications, let alone discriminatory ones, except to establish optional absentee and provisional balloting for certain poor, elderly, and institutionalized voters and for religious objectors. Nor are voters who already have photo identifications exempted from the burden, since those voters must maintain the accuracy of the information displayed on the identifications, renew them before they expire, and replace them if they are lost."

Justice Souter wrote a dissenting opinion, in which Justice Ginsburg joined. He wrote that the statute "threatens to impose nontrivial burdens on the voting right of tens of thousands of the State's citizens ... and a significant percentage of those individuals are likely to be deterred from voting".

He also wrote that the statute does not remedy many forms of fraudulent voting, including voting more than once, buying votes, and miscounting of votes by election officials.

Justice Breyer also wrote a dissenting opinion.

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The House will meet at 12:30 PM for morning hour debate, and at 2:00 PM for legislative business. Votes will be postponed until 6:30 PM. The House will consider numerous non-technology related items under suspension of the rules. See, Rep. Hoyer's schedule for week of April 28.

The Senate will meet at 10:00 AM for morning business. It will then resume consideration of the motion to proceed to HR 2881 [LOC | WW], the "FAA Reauthorization Act of 2007".

9:30 AM. The Senate Homeland Security and Government Affairs Committee will hold a hearing titled "The Impact of Implementation: A Review of the REAL ID Act and the Western Hemisphere Travel Initiative". See, notice. Location: Room 342, Dirksen Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "Oversight of Trade Functions: Customs and Other Trade Agencies". The witnesses will be Warren Maruyama (General Counsel, Office of the U.S. Trade Representative), Ralph Basham (Commissioner of Customs, Department of Homeland Security), Julie Myers (Assistant Secretary, U.S. Immigration and Customs Enforcement, DHS), and Daniel Pearson (Chairman of the U.S. International Trade Commission). See, notice. Location: Room 215, Dirksen Building.

12:00 NOON - 2:00 PM. The Progress & Freedom Foundation (PFF) will host a lunch titled "700 MHz ``D Block´´: What's Next?" The speakers will be Declan Ganley (Ch/CEO of Rivada Networks), Kenneth Ferree (PFF), Art Contreras (Mobile Future), Michael Calabrese (New America Foundation), Paul Glenchur (Stanford Washington Research Group). This event is free and open to the public. See, PFF notice and registration page. Location: Rotunda Room, Ronald Reagan Building and International Trade Center, 1300 Pennsylvania Ave., NW.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding its proposal to amend the Trademark Rules of Practice to provide that the procedures for filing trademark correspondence by Express Mail or under a certificate of mailing or transmission do not apply to certain specified documents for which an electronic form is available in the Trademark Electronic Application System (TEAS). See, notice in the Federal Register, February 29, 2008, Vol. 73, No. 41, at Pages 11079-11081.

The House and Senate will meet jointly to hear Bertie Ahern, Prime Minister of Ireland. See, Rep. Hoyer's schedule for week of April 28.

9:00 AM. The Senate Judiciary Committee's (SJC) Subcommittee on the Constitution will hold a hearing titled "Secret Law and the Threat to Democratic and Accountable Government". It will address legal analysis withheld from the public, including memoranda of the Department of Justice's (DOJ) Office of Legal Counsel (OLC). Sen. Russ Feingold (D-WI) will preside. Location: Room 226, Dirksen Building.

9:00 AM - 4:00 PM. Day one of a two day meeting of the National Archives and Records Administration's (NARA) Advisory Committee on the Electronic Records Archives (ACERA). See, notice in the Federal Register, April 11, 2008, Vol. 73, No. 71, at Pages 19903-19904. Location: 700 Pennsylvania Ave., NW.

10:00 AM. The House Science Committee (HSC) will hold a hearing titled "E-Waste: Can the Nation Handle Modern Refuse in the Digital Age?". The witnesses will be Gerardo Castro (Goodwill Industries), Renee St. Denis (HP), Eric Harris (Institute of Scrap Recycling Industries), Ted Smith (Electronics Take Back Coalition), Eric Williams (Arizona State University), and Michael Williams (Sony Electronics). See, notice. Location: Room 2318, Rayburn Building.

CANCELLED. 10:15 AM. The House Judiciary Committee will meet to mark up several bills. The first item on the agenda is HR 4279 [LOC | WW], the "Prioritizing Resources and Organization for Intellectual Property Act of 2007" or "PRO IP Act". Location: Room 2141, Rayburn Building.

12:00 NOON - 1:00 PM. The Heritage Foundation will host a program titled "Civil Rights and the War on Terror: Promoting Accountability and National Security". The speakers will be Michael Chertoff (Secretary of Homeland Security), Dorit Beinisch (President of the Supreme Court of Israel), and Edwin Feulner (Heritage). See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

12:30 - 2:00 PM. The DC Bar Association will host a presentation titled "U.S. Copyright Office's New Electronic Filing Procedure for the Registration of Copyrights". The speaker will be Jeffrey Cole of the Copyright Office. The price to attend ranges from $20 to $25. For more information, contact 202-626-3488. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

1:30 PM. The House Foreign Affairs Committee will meet to mark up several bills, including HR __, the "Security Assistance and Arms Export Control Reform Act of 2008". Location: Room 2172, Rayburn Building.

1:30 - 3:30 PM. The Department of Commerce's (DOC) National Telecommunications and Information Administration's (NTIA) Spectrum Management Advisory Committee will meet. The agenda includes receiving recommendations and reports from working groups of its Technical Sharing Efficiencies Subcommittee and Operational Sharing Efficiencies Subcommittee. See, NTIA notice and notice in the Federal Register, April 11, 2008, Vol. 73, No. 71, at Pages 19828-19829. Location: Room 1412, DOC, 1401 Constitution Ave., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rule Making regarding public safety communications in the 800 MHz band. The FCC adopted and released this item on March 5, 2008. This item is FCC 08-73 in WT Docket No. 02-55 and ET Docket Nos. 00-258 and 95-18. See, notice in the Federal Register, March 31, 2008, Vol. 73, No. 62, at Pages 16822-16826.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding SP 800-39 [67 pages in PDF], titled "DRAFT Managing Risk from Information Systems: An Organizational Perspective".

The House will meet at 10:00 AM for legislative business. The agenda includes no technology related items. See, Rep. Hoyer's schedule for week of April 28.

9:00 AM - 4:00 PM. Day two of a two day meeting of the National Archives and Records Administration's (NARA) Advisory Committee on the Electronic Records Archives (ACERA). See, notice in the Federal Register, April 11, 2008, Vol. 73, No. 71, at Pages 19903-19904. Location: 700 Pennsylvania Ave., NW.

9:00 - 10:30 AM. Robert Atkinson, head of the Information Technology and Innovation Foundation (ITIF), will present a report titled "Explaining International Broadband Leadership". The other speakers will be Tom Bleha and Magnus Härviden (Embassy of Sweden). See, notice. Location: National Press Club, 529 14th St., NW.

9:30 AM. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing on a yet to be introduced bill that the HCC titles "Draft Legislation Enhancing Access to Broadband Technology and Services for Persons with Disabilities". The hearing will be webcast by the HCC. Location: Room 2123, Rayburn Building.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Crime, Terrorism, and Homeland Security will hold a hearing on HR 4081 [LOC | WW], the "Prevent All Cigarette Trafficking Act of 2007", and HR 5689 [LOC | WW], the "Smuggled Tobacco Prevention Act of 2008". One of the purposes of these bills is to further regulate cigarette sales to increase federal, state and local tax revenues, particularly with respect to internet sales. See, notice. This hearing will be webcast by the HJC. Location: Room 2141, Rayburn Building.

12:00 NOON - 1:30 PM. The National Economists Club (NEC) will host a lunch. The speaker will be Gary Hufbauer. The topic will be "NAFTA at 14: Why the Uproar?". Location: Chinatown Garden Restaurant, 618 H St., NW.

TIME CHANGE. 2:15 PM. The Senate Judiciary Committee (SJC) will hold a hearing on the nominations of Steven Agee (to be a Judge of the U.S. Court of Appeals for the 4th Circuit), William Lawrence (U.S. District Court, SDInd), and Murray Snow (USDC, DAriz). See, notice. Location: Room 226, Dirksen Building.

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing on the nomination of Lily Claffee to be General Counsel of the Department of Commerce (DOC). See, notice. Location: Room 253, Russell Building.

6:00 PM. Deadline for the winning bidders in Auction 73 to avoid default for failure to submit final payment, including late fees, for their winning bids. See, notice.

Rep. Hoyer's schedule for week of April 28 states that "no votes are expected in the House".

9:00 AM - 3:30 PM. The Department of Commerce's (DOC) Economics and Statistics Administration's (ESA) Bureau of Economic Analysis's (BEA) BEA Advisory Committee will meet. The agenda includes a discussion of how offshoring might bias the Gross Domestic Product (GDP) statistics. See, notice in the Federal Register, March 24, 2008, Vol. 73, No. 57, at Page 15477. Location: BEA, 1441 L St., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in James Kay v. FCC, App. Ct. No. 03-1072. Judges Tatel, Garland and Kavanaugh will preside. Location: 333 Constitution Ave., NW.

11:00 AM - 6:00 PM. The National Science Foundation (NSF) Advisory Committee for Computer and Information Science and Engineering will meet. The agenda includes discussion of "strategic priorities in computing". See, notice in the Federal Register, April 16, 2008, Vol. 73, No. 74, at Page 20721. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

12:30 PM. The Heritage Foundation will host a book talk by Dianne Furchtgott-Roth, author of the book [Amazon] titled "Overcoming Barriers to Entrepreneurship in the United States". See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

Deadline to submit to the Copyright Royalty Judges petitions to participate in the proceeding to determine the Phase I distribution of 2000, 2001, 2002, and 2003 royalties collected under the cable statutory license. See, notice in the Federal Register, April 2, 2008, Vol. 73, No. 64, at Pages 18004-18005.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Maxwell Technologies v. Nesscap, App. Ct. No. 2007-1324, an appeal from the U.S. District Court (SDCal) in a patent infringement case involving ultracapacitor technology. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Stanford v. Motorola, App. Ct. No. 2007-1564. Location: Courtroom 402, 717 Madison Place, NW.

12:30 - 2:00 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications Practice Committee will host a brown bag lunch. The topic will be "Understanding the Internet: An International Perspective". The speakers will include Irene Wu (FCC and Georgetown University). For more information, contact John Giusti at John dot Giusti at fcc dot gov. Location: Verizon, 5th floor, 1300 I St., NW.

Deadline to submit proposals to the Internet Corporation for Assigned Names and Numbers (ICANN) in response to its April 21, 2008, Request for Proposals (RFP) regarding the appointment of an independent evaluator to undertake a review of the ICANN Board.

EXTENDED TO MAY 19. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to it Notice of Proposed Rulemaking (NPRM) regarding the Recommended Decision of the Federal-State Joint Board on Universal Service, released on November 20, 2007, regarding comprehensive reform of high cost universal service taxes and subsidies. The FCC adopted this NPRM on January 15, 2008, and released the text on January 29, 2008. It is FCC 08-02 in WC Docket No. 05-337 and CC Docket No. 96-45. See, original notice in the Federal Register, March 4, 2008, Vol. 73, No. 43, at Pages 11587-11591. See also, notice [PDF] of extension (DA 08-674).

EXTENDED TO MAY 19. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to it Notice of Proposed Rulemaking (NPRM) regarding the use of reverse auctions to determine the amount of high cost universal service subsidies provided to eligible telecommunications carriers serving rural, insular, and high cost areas. The FCC adopted this NPRM on January 9, 2008, and released the text on January 29, 2008. It is FCC 08-05 in WC Docket No. 05-337 and CC Docket No. 96-45. See, original notice in the Federal Register, March 4, 2008, Vol. 73, No. 43, at Pages 11591-11602. See also, notice [PDF] of extension (DA 08-674).

EXTENDED TO MAY 19. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to it Notice of Proposed Rulemaking (NPRM) regarding the FCC's rules governing the amount of high cost universal service subsidies provided to competitive eligible telecommunications carriers (ETCs). This NPRM also tentatively concludes that the FCC should eliminate the existing identical support rule, which is also known as the equal support rule. The FCC adopted this NPRM on January 9, 2008, and released the text on January 29, 2008. It is FCC 08-04 in WC Docket No. 05-337 and CC Docket No. 96-45. See, original notice in the Federal Register, March 4, 2008, Vol. 73, No. 43, at Pages 11580-11587. See also, notice [PDF] of extension (DA 08-674).

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in University of Texas v. Benq, App. Ct. No. 2007-1388, an appeal from the U.S. District Court (WDTex) in patent infringement case involving cell phone technology. See, web site with hyperlinks to District Court pleadings. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Technology Properties v. ARM, App. Ct. No. 2008-1020. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in AdvanceME v. RapidPay, App. Ct. No. 2007-1036, an appeal from the U.S. District Court (EDTex) in a patent infringement case involving the concept of joint infringement. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Technology Licensing v. Videotek, App. Ct. No. 2007-1441, a patent infringement case involving video signal processing. Location: Courtroom 203, 717 Madison Place, NW.

12:00 NOON - 2:00 PM. The Information Technology and Innovation Foundation (ITIF) will host a lecture by William Lewis titled "Unleashing the Power of Productivity at Home and Abroad". The other speaker will be Ike Brannon (Department of the Treasury). This event is free and open to the public. See, notice. Location: ITIF, Suite 200, 1250 Eye St., NW.

The Computer and Communications Industry Association (CCIA) will host an event titled "2008 Washington Caucus". Prices vary. Location: Willard Hotel.

Day one of a two day workshop hosted by the Federal Trade Commission (FTC) titled "Beyond Voice: Mapping the Mobile Marketplace". See, notice. Location: FTC Conference Center, 601 New Jersey Ave., NW.

4/28. The U.S. Court of Appeals (4thCir) issued its opinion [10 pages in PDF] in U.S. v. Curry, affirming the District Court's imposition of a sentence of imprisonment of 36 months for mail fraud and wire fraud in connection with fraudulent eBay auctions. Kenneth Curry auctioned on eBay gold coins that he did not have. This case is U.S. v. Kenneth W. Curry, II, U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 07-4152, an appeal from the U.S. District Court for the Eastern District of Virginia, at Norfolk, D.C. No. 2:05-cr-00003-WDK, Judge Walter Kelley presiding.

4/28. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register that announces that it withdraws its prior proposal to amend the Rules of Practice in Trademark Cases to require a request for reconsideration of an examining attorney's final refusal or requirement to be filed through the Trademark Electronic Application System (TEAS) within three months of the mailing date of the final action. The USPTO also proposed instead to require a fee of $50 for filing a request for reconsideration on paper, whereas no fee would be required for a request for reconsideration filed through TEAS. Currently, no fee is required in connection with a request for reconsideration, filed either on paper or through TEAS. See, Federal Register, April 28, 2008, Vol. 73, No. 82, at Pages 22894-22895.

4/28. The U.S. Patent and Trademark Office (USPTO) stated in a release that the USPTO and European Patent Office (EPO) "intend to launch a new trial cooperation initiative called the Patent Prosecution Highway (PPH) in September". The USPTO release states that the Patent Prosecution Highway (PPH) "will leverage fast-track patent examination procedures already available in both offices to allow applicants to obtain corresponding patents faster and more efficiently. It also will permit each office to exploit the work previously done by the other office and reduce duplication. In turn, the initiative will reduce examination workload and improve patent quality." See also, EPO release. And see, USPTO release of September 4, 2007, regarding PPH initiative with the United Kingdom Intellectual Property Office (UKIPO), and USPTO release of May 24, 2006, and release of December 21, 2007, regarding PPH initiative with the Japan Patent Office.

4/28. Thomas Sydnor of the Progress & Freedom Foundation (PFF) wrote a paper [17 pages in PDF] titled "Tragedy and Farce: An Analysis of the Book Free Culture". It is an assault upon the writings of Stanford Law School professor Lawrence Lessig, and especially his 2004 book [Amazon] titled "Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity". Lessig, Sydnor writes, is a "name-calling demagogue" who has "demonized copyright owners". Moreover, he is a "hypocritical demagogue -- one so terrifyingly self-righteous and hopelessly partisan that he could scarcely recite his pious ode to restraint before he resumed using the rhetoric of racism to brand the other side as the devil’s own". Sydnor compares Free Culture to Karl Marx's and Frederick Engel's brief book titled "Manifesto of the Communist Party". He argues that Lessig's book should be consigned to Leon Trotsky's dustbin of history. Lessig responded in his web site that Sydnor's paper is "an interesting read".

4/25. The Anti-Spyware Coalition (ASC) announced in a release that it "has created a new internal working group to review the ASC's current working reports in the context of new behavioral targeting practices. Members will consider whether revisions to current working reports or additional best practices are necessary. At a recent ASC meeting, members agreed to review the privacy concerns that rise out of partnerships between behavioral targeting advertising companies and ISPs, where all, or substantially all, user Web traffic is passed to advertisers in order to allow them to engage in targeted advertising."

4/25. The recently created iGrowthGlobal announced that it has changed its name to the Technology Policy Institute (TPI). It is a Washington DC based think tank that focuses on the economics of innovation, technological change, and related regulation, particularly with respect to communications and broadband policy, online privacy, and internet governance. Its key personnel, Tom Lenard, Scott Wallsten, and Garland McCoy, were previously associated with the Progress & Freedom Foundation (PFF).

4/21. The Internet Corporation for Assigned Names and Numbers (ICANN) announced that it is seeking to appoint an independent evaluator to undertake a review of the ICANN Board. See, Request for Proposals (RFP). The deadline to submit proposals is May 5, 2008.

4/28. The Supreme Court denied certiorari in Michael Bender v. Michael Dudas, Sup. Ct. No. 07-847. See, Orders List [10 pages in PDF] at page 2. This lets stand the June 21, 2007, opinion [18 pages in PDF] of the U.S. Court of Appeals (FedCir). See also, Supreme Court docket. The Court of Appeals affirmed the District Court affirmance of the U.S. Patent and Trademark Office's (USPTO) disciplinary action excluding Bender from practicing before the USPTO. The Court of Appeals wrote that individual inventors are unfamiliar with "even the most basic principles of patent law, do not know where to turn for help, and are vulnerable to those who seek to take advantage of their inexperience". Moreover, the Court of Appeals wrote, "mainstream media sources frequently confuse and misunderstand basic intellectual property law precepts". Hence, the USPTO must regulate those who practice before it.

4/28. The Supreme Court denied certiorari in Excel Innovations, Inc. v. Indivos Corporation, Sup. Ct. No. 07-963. See, Orders List [10 pages in PDF] at page 2. This lets stand the September 7, 2007, opinion [22 pages in PDF] of the U.S. Court of Appeals (9thCir), which is also reported at 502 F.3d 1086. See also, Supreme Court docket. This is a bankruptcy case involving when a debtor in bankruptcy can obtain an injunction of an arbitration proceeding involving two non-bankrupt parties on the grounds that it could affect the debtor and the bankruptcy estate. In this case, the debtor and parties in arbitration are technology companies, and the arbitration proceeding involves patent rights.

4/28. The Supreme Court denied certiorari in Cias, Inc. v. Alliance Gaming Corporation, Sup. Ct. No. 07-964. See, Orders List [10 pages in PDF] at page 2. This lets stand the September 27, 2007, opinion [14 pages in PDF] of the U.S. Court of Appeals (FedCir). This is a patent infringement case involving technology for detecting counterfeit currency. See also, Supreme Court docket.

4/28. The Supreme Court denied certiorari in Cliff Thompson v. Virgin Records, Sup. Ct. No. 07-1225. See, Orders List [10 pages in PDF] at page 3. This lets stand the January 4, 2008, opinion [5 pages in PDF] of the U.S. Court of Appeals (5thCir). See, story titled "5th Circuit Denies Attorneys Fees to Prevailing Defendant in P2P Music Case" in TLJ Daily E-Mail Alert No. 1,697, January 8, 2008. See also, Supreme Court docket.