Tech Law Journal Daily E-Mail Alert
May 8, 2008, Alert No. 1,763.
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House Passes PRO IP Act

5/7. The House approved HR 4279 [LOC | WW], the "Prioritizing Resources and Organization for Intellectual Property Act of 2007" or "PRO IP Act", by a vote of 410-11. See, Roll Call No. 300.

Rep. Rick Boucher (D-VA) and Rep. Zoe Lofgren (D-CA) were among those who voted against the bill.

This huge bill addresses remedies for infringement and counterfeiting and the organization and funding of government efforts to enforce intellectual property rights.

See also, story titled "Representatives Introduce PRO IP Act" in TLJ Daily E-Mail Alert No. 1,683, December 5, 2008; story titled "House Subcommittee Amends PRO-IP Act" in TLJ Daily E-Mail Alert No. 1,727, March 05, 2008; and, story titled "House Judiciary Committee Approves PRO IP Act" in TLJ Daily E-Mail Alert No. 1,758, May 1, 2008.

Patrick Ross, head of the Copyright Alliance, praised the bill in a release. He also stated that this bill "makes it harder for infringers to get off on technicalities related to Copyright Office filings. It spurs the creation of a coordinated plan for enforcing IP rights. It extends outreach to other countries on IP enforcement. And it creates a White House position to coordinate -- not supplant -- the many agencies involved in IP, such as USTR, Justice, Commerce, USPTO, US Copyright Office, State, Homeland Security, and others."

Dan Glickman, head of the Motion Picture Association of America (MPAA), stated in a release that this bill "can improve our nationís economic outlook".

Mitch Bainwol, head of the Recording Industry Association of America (RIAA), stated in a release that this bill is a "strong, common sense measure that provides new tools and resources to help protect one of this nationís most important economic engines".

The Senate has not yet passed this bill. Also, the Bush administration has concerns with provisions in the bill regarding reorganization of executive branch enforcement operations.

Rep. Conyers and Rep. Lofgren Introduce Antitrust Based Network Neutrality Bill

5/7. Rep. John Conyers (D-MI) and Rep. Zoe Lofgren (D-CA) introduced HR 5994 [LOC | WW | PDF], the "Internet Freedom and Nondiscrimination Act of 2008"

This bill is very similar, but not identical, to a bill introduced in the 109th Congress, HR 5417 [5 pages in PDF], the "Internet Freedom and Nondiscrimination Act of 2006". For a summary of that bill, see story titled "Sensenbrenner and Conyers Introduce Net Neutrality Bill" in TLJ Daily E-Mail Alert No. 1,375, May 22, 2006.

The just introduced bill follows HR 5417's amendments to the Clayton Act. However, it contains new language regarding exceptions for network management, and other matters.

This bill would attempt to achieve a form of network neutrality through antitrust law and enforcement. Oversight in the Congress of antitrust laws and the Department of Justice (DOJ) lies with the judiciary committees. Rep. Conyers is the Chairman of the House Judiciary Committee (HJC), and Rep. Lofgren is a member.

In contrast, some members of the commerce committees also seek to achieve a form of network neutrality, but through communications law and the Federal Communications Commission (FCC), oversight of which lies within the jurisdiction of the commerce committees.

Thus, this bill not only faces opposition from opponents of network neutrality mandates, it is also subject to turf battles within the House and Senate. Moreover, the bill was introduced late in the present Congress.

Proponents of this bill likely lack sufficient support to obtain enactment of this bill into law in the present Congress.

Bill Summary. This bill would amend the Clayton Act, which is codified at 15 U.S.C. ß 12 et seq., by adding a new Section 28. It would provide that,

"It shall be unlawful for any broadband network provider---
   (1) to fail to provide its broadband network services on reasonable and nondiscriminatory terms and conditions such that any person can offer or provide content, applications, or services to or over the network in a manner that is at least equal to the manner in which the provider or its affiliates offer content, applications, and services, free of any surcharge on the basis of the content, application, or service;
   (2) to refuse to interconnect its facilities with the facilities of another provider of broadband network services on reasonable and nondiscriminatory terms or conditions;
   (3)(A) to block, to impair, to discriminate against, or to interfere with the ability of any person to use a broadband network service to access, to use, to send, to receive, or to offer lawful content, applications or services over the Internet; or (B) to impose an additional charge to avoid any conduct that is prohibited by this subsection;
   (4) to prohibit a user from attaching or using a device on the providerís network that does not physically damage or materially degrade other usersí utilization of the network; or
   (5) to fail to clearly and conspicuously disclose to users, in plain language, accurate information concerning any terms, conditions, or limitations on the broadband network service."

The above quoted language is the same as the bill in the 109th Congress.

The bill would also provide that "If a broadband network provider prioritizes or offers enhanced quality of service to data of a particular type, it must prioritize or offer enhanced quality of service to all data of that type (regardless of the origin or ownership of such data) without imposing a surcharge or other consideration for such prioritization or enhanced quality of service." (Parentheses in original.) This too is the same as the bill in the 109th Congress.

The bill would also provide exceptions. This part of the just introduced bill varies from the previous version of the bill.

The just introduced bill provides that "Nothing in this section shall be construed to prevent a broadband network provider from taking reasonable and nondiscriminatory measures---(1) to manage the functioning of its network, on a systemwide basis, provided that any such management function does not result in discrimination between content, applications, or services offered by the provider and unaffiliated provider; (2) to give priority to emergency communications; (3) to prevent a violation of a Federal or State law, or to comply with an order of a court to enforce such law; (4) to offer consumer protection services (such as parental controls), provided that a user may refuse or disable such services; (5) to offer special promotional pricing or other marketing initiatives; or (6) to prioritize or offer enhanced quality of service to all data of a particular type (regardless of the origin or ownership of such data) without imposing a surcharge or other consideration for such prioritization or quality of service." (Parentheses in original.)

Rep. John ConyersStatements Regarding Bill. Rep. Conyers (at left) stated in a release "Americans have come to expect the Internet to be open to everyone ... The Internet was designed without centralized control, without gatekeepers for content and services. If we allow companies with monopoly or duopoly power to control how the Internet operates, network providers could have the power to choose what content is available. Many of the innovations and products we use every day, such as search engines, music download services and online video, likely would never have developed in such a restricted environment."

Rep. Lofgren stated in this release that "Recent events have shown that net neutrality is more than a hypothetical concern. We need a meaningful remedy to prevent those who control the infrastructure of the Internet from controlling the content on the Internet. This legislation will help guarantee that the innovative spirit of the Internet is not trampled."

Gigi Sohn, head of the Public Knowledge, stated in a release that "The bill squarely addresses the issue of the enormous market power of the telephone and cable companies as the providers of 98 percent of the broadband service in the country. The bill restores the principle of non-discrimination that allowed the Internet to flourish in the dial-up era, making certain that the same freedom and innovation will flourish in the broadband era without burdensome regulation."

Markham Erickson, of the Open Internet Coalition, stated in a release that "Over the past year, network operators have repeatedly taken steps to block Internet content, delivering a blow to the core Internet value of openness. Their actions have reduced consumer choices about how to use the Internet and chilled innovation by entrepreneurs and application developers. This has been an unfortunate development in the history of the Internet, one that threatens our leadership position in the information economy and should not be allowed to stand."

Markham added that "Today's bill addresses this threat head-on. By providing a strong antitrust remedy, it puts direct, immediate pressure on broadband providers not to engage in arbitrary discrimination against content or applications. We believe it is a positive step towards reining in these abuses by the cable/telco broadband duopoly, and will help ensure the Internet will be protected and remain open for all Americans."

People and Appointments

5/8. Federal Communications Commission (FCC) Chairman Kevin Martin named Elizabeth Andrion his acting legal advisor for media issues, and Amy Bender his acting legal advisor for wireline issues. Andrion was previously Deputy Chief of the FCC's Office of Strategic Planning and Policy Analysis. Bender was previously Legal Counsel to the Chief of the FCC's Wireline Competition Bureau. Before joining the FCC, she worked for the law firm of Wiley Rein. Michelle Carey, who was advising Martin on media issues, is on maternity leave from the FCC. Ian Dillner, who was advising Martin on wireline issues, is on leave from the FCC to work for the House Commerce Committee (HCC). See, FCC release and Martin's staff page.

5/8. President Bush nominated Judge Glen Conrad to be a Judge of the U.S. Court of Appeals (4thCir).  See, White House release. He has been a Judge of the U.S. District Court (WDVa) since 2003. Before that he was a long time U.S. Magistrate. Sen. Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee (SJC), stated in a release that "Today's nomination of Judge Glen Conrad for a Virginia seat on the Fourth Circuit is another example of the progress that can be made when the President works with the Senate. I commend Senator Warner and Senator Webb for their hard work in resolving the impasse over Virginia seats on the Fourth Circuit. Progress was long coming, but I commend the President for now taking the advice of Senator Warner and Senator Webb. In doing so, the President may have cleared the way for the Senate to consider another nominee in the short time remaining to us this year."

5/7. The Senate Judiciary Committee (SJC) held an executive business meeting. The nomination of Steven Agee to be a Judge of the U.S. Court of Appeals (4thCir) was on the agenda. However, this nomination was held over. It is now on the agenda for the SJC's executive business meeting of May 14, 2008.

5/6. President Bush nominated Troy Paredes to be a member of the Securities and Exchange Commission (SEC) for a term expiring on June 5, 2013. This nomination is for the seat being vacated by Paul Atkins. See, White House release.

5/7. President Bush nominated William Wilkins to be the U.S. Attorney for the District of South Carolina for the term of four years. See, White House release.

5/6. President Bush nominated Cynthia Bauerly to be a member of the Federal Election Commission (FEC) for a term expiring on April 30, 2011. This nomination is for the seat previously held by Danny McDonald. President Bush withdrew his previous nomination of Robert Lenhard for this seat. The FEC, among other things, regulates political speech on the internet. See, White House release.

5/6. President Bush nominated Caroline Hunter to be a member of the Federal Election Commission (FEC) for a term expiring on April 30, 2013. This is for the seat of Michael Toner, who has resigned. See, White House release.

5/6. President Bush nominated Donald McGahn to be a member of the Federal Election Commission (FEC) for a term expiring April 30, 2009. This is for the seat previously held by David Mason. President Bush also withdrew his renomination of Mason. See, White House release.

5/8. Megan Gray left the Washington DC law office of Roylance Abrams to open a private practice. She focuses on copyright and trademark litigation and prosecution, and free speech and internet issues. She also lobbies the Congress, negotiates and drafts internet contracts, advises clients on privacy concerns, and analyzes trade secret claims. Her clients include companies in the textile, apparel, software, toy, greeting card, graphic art, real estate and jewelry industries.

Washington Tech Calendar
New items are highlighted in red.
Friday, May 9

The House will not meet.

The Senate will not meet.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in In Re Sealed Case, App. Ct. No. 07-3132, and Steven Hatfill v. Baltimore Sun Company, App. Ct. No. 08-5049. Location: Courtroom 22 Annex, 333 Constitution Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Praxair v. ATMI, App. Ct. No. 2007-1483, an appeal from the U.S. District Court (DDel) in patent infringement case involving the availability of injunctive relief in patent infringement cases following the Supreme Court's 2006, opinion [12 pages in PDF] in eBay v. MercExhange, which held that the traditional four factor framework that guides a court's decision whether to grant an injunction applies in patent cases. See also, story titled "Supreme Court Rules on Availability of Injunctive Relief in Patent Cases" in TLJ Daily E-Mail Alert No. 1,371, May 16, 2006. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Scanner Technologies v. ICOS Vision Systems, App. Ct. No. 2007-1399, an appeal from the U.S. District Court (SDNY) in a patent infringement case involving technology and processes to inspect electronic components. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Fargo Electronics v. Iris, App. Ct. No. 2007-1523, an appeal from the U.S. District Court (DMinn) in a patent infringement case involving identification card printing technology. Location: Courtroom 203, 717 Madison Place, NW.

12:00 NOON. The AeA will release a 150 page report titled "Cyberstates 2008: A Complete State-by-State Overview of the U.S. High-Technology Industry". The AeA invites "Legislative Staff, Press Secretaries, and Members of the Media" to a lunch briefing. In addition, an Intel representative will speak on "public policy priorities". For more information and to RSVP, contact Anne Caliguiri at 202-682-4443 or anne_caliguiri at aeanet dot org. Location: Room 2322, Rayburn Building.

12:00 NOON - 1:30 PM. The DC Bar Association will host panel presentation titled "Patent Litigation in China and Japan". The speakers will be Kevin McCabe (Sterne Kessler Goldstein & Fox), Xiaoguang Cui (Beijing Sanyou Intellectual Property Agency, Ltd.), and Yasuhiro Ichiba (Judge, Tokyo District Court, Criminal Division). The price to attend ranges from $10 to $30. For more information, contact 202-626-3488. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

TIME? The U.S. Patent and Trademark Office's (USPTO) Patent Public Advisory Committee (TPAC) will meet. Location?

Sunday, May 11

Mothers Day.

Monday, May 12

The House will meet at 2:00 PM.

The Senate will meet at 2:00 PM for morning business.

12:00 NOON - 1:00 PM. The Heritage Foundation will host a panel discussion titled "Winning the Global Talent War: H-1B Visa Reform". The speakers will be James Sherk (Heritage), William Beach (Heritage), Kelly Hunt (U.S. Chamber of Commerce), and George Fisherman (Chief Counsel, House Judiciary Committee's Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law ). See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

TIME?. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet. The agenda may include advice for the U.S. government on the ITU World Telecommunication Standardization Assembly 2008 (WTSA 08), meetings of the Telecommunication Sector Advisory Group (TSAG), and group meetings on the International Telecommunication Regulations, cybersecurity, and other subjects. See, notice in the Federal Register, February 28, 2008, Vol. 73, No. 40, at Page 10854. Location?

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding information collection practices, and paperwork reduction, pursuant to the Paperwork Reduction Act of 1995. See, 44 U.S.C. ß 3506(c)(2)(A) and notice in the Federal Register, March 12, 2008, Vol. 73, No. 49, at Pages 13211-13214.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding SP 800-116 [55 pages in PDF], titled "DRAFT A Recommendation for the Use of PIV Credentials in Physical Access Control Systems (PACS)".

Tuesday, May 13

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch titled "DTV Consumer Education Requirements: FCC Form 388 and Beyond". The speakers will be Eloise Gore (FCC) and Ann Bobeck (National Association of Broadcasters). Location: NAB, 1771 N St., NW.

Wednesday, May 14

9:30 AM. The Federal Communications Commission (FCC) may hold an event titled "Open Meeting". The agenda may include a Second Further Notice of Proposed Rulemaking related to the failed D Block component of Auction No. 73 (700 MHz auction), and a Fourth Memorandum Opinion and Order on narrowbanding. See, notice. Location: FCC, Commission Meeting Room, 445 12th St., SW.

RESCHEDULED FROM APRIL 21. 10:00 AM. The Securities and Exchange Commission (SEC) will meet. The agenda states that the SEC "will consider whether to propose amendments to provide for corporate financial statement information to be filed with the Commission in interactive data format, and a near- and long-term schedule therefor." See, notice of postponement. Location: SEC,  Room L-002, 100 F St., NE.

CANCELLED. 12:30 - 2:00 PM. The Progress & Freedom Foundation (PFF) will host an event titled "The Future of Broadcast Regulation: Markets or Mandates?".

Thursday, May 15

10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of S 2913 [LOC | WW], the "Shawn Bentley Orphan Works Act Of 2008", and S 1738 [LOC | WW], the "Combating Child Exploitation Act". S 2913 degrades the remedies available to copyright owners in civil actions for infringement of copyright. S 1738 would, among other things, provide for more Department of Justice (DOJ) regional computer forensic laboratories, and provide that "crimes against children" are predicate offenses for the issuance of wiretap orders to state law enforcement agencies. The agenda also includes consideration of the nomination of Steven Agee to be a Judge of the U.S. Court of Appeals (4thCir). See, notice. The SJC rarely follows its published agendas. All three of these items were held over from the May 8 meeting. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Commerce Committee will hold a business meeting. The agenda includes consideration of of the nomination of Lily Claffee to be General Counsel of the Department of Commerce. See, notice. Location: Room 253, Russell Building.

10:00 AM - 5:00 PM. Day one of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Cyberinfrastructure. See, notice in the Federal Register, April 11, 2008, Vol. 73, No. 71, at Page 19904. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

12:00 NOON - 1:30 PM. The Alliance for Public Technology (APT) and The Children's Partnership (TCP) will host a brown bag lunch titled "Information Technology Making a Difference in Children's Lives". The speakers will be Joy Howell, Laurie Lipper, and Ken Kelly. Location: APT, 10th floor, 919 18th St., NW.

Friday, May 16

8:00 AM - 12:00 NOON. Day two of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Cyberinfrastructure. See, notice in the Federal Register, April 11, 2008, Vol. 73, No. 71, at Page 19904. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

12:00 NOON - 2:00 PM. The DC Bar Association will host panel presentation titled "Arbitration of Antitrust Claims in the U.S. and Europe". The speakers will be Daniel Margolis, Mark Joelson, Donald Baker (Baker & Miller), and Gordon Blanke (SJ Berwin). The price to attend ranges from $5 to $30. For more information, contact 202-626-3463. See, notice. Location: Arnold & Porter, 10th floor, 555 12th St., NW.

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