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June 17, 2008, Alert No. 1,781.
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US and PRC Conclude Meeting of Strategic Economic Dialogue

6/18. Secretary of the Treasury Henry Paulson gave a speech at the conclusion of the Strategic Economic Dialogue (SED) between representatives of the US and the People's Republic of China (PRC). He said that "Our discussions these last two days covered a wide range of priority issues" and have "fostered broad, productive relations".

Henry PaulsonPaulson (at right) said that "Both nations renewed their commitment to work actively toward a positive conclusion of the Doha negotiations."

"We discussed the importance of open investment to both our countries." He added that " we agreed to launch negotiations of a bilateral investment treaty (BIT)".

However, Paulson did not reference trade related aspects of intellectual property rights (IPR) in his speech.

The Department of the Treasury issued a longer release [5 pages in PDF] that does address IPR. This release states that the US and PRC "agreed to intensify cooperation on IPR protection through the IPR Working Group under the JCCT as soon as possible after the close of SED IV and prior to the 19th JCCT."

It continues that "Both sides agree to start the above mentioned cooperation with an introduction of China's recently published ``Outline of National Intellectual Property Rights Strategy´´ and ``Plan for IPR Protection Initiatives in 2008,´´ and both sides may discuss issues that are not related to the claims of the current WTO dispute settlement."

The US and PRC also issued a joint release [4 pages in PDF]. It contains substantially identical language on IPR.

Senate Judiciary Committee Holds Hearing on Intellectual Property

6/17. The Senate Judiciary Committee (SJC) held a hearing titled "Protecting Consumers by Protecting Intellectual Property".

Sen. Patrick Leahy (D-VT), the Chairman of the SJC, wrote in his opening statement that the subject matter of this hearing "should have no partisan flavor whatsoever". He also said that "The lack of coordination among the Federal agencies responsible for IP enforcement seems to be one of the biggest hurdles we face".

There are pending bills that address the topics of funding for, and coordination among, government agencies. First, there is HR 4279 [LOC | WW], the "Prioritizing Resources and Organization for Intellectual Property Act of 2007" or "PRO IP Act". The House passed this bill by a vote of 410-11 on May 7, 2008. See, Roll Call No. 300. See also, story titled "House Passes PRO IP Act" in TLJ Daily E-Mail Alert No. 1,763, May 8, 2008.

Second, there is S 522 [LOC | WW], "Intellectual Property Rights Enforcement Act" or "IPREA", introduced by Sen. Evan Bayh (D-IN) and Sen. George Voinovich (R-OH) on February 7, 2007.

Third, there is S 2317 [LOC | WW], the "Intellectual Property Enforcement Act", which Sen. Patrick Leahy (D-VT) and Sen. John Cornyn (R-TX) introduced on November 7, 2007. See, story titled "Senators Leahy and Cornyn Introduce Intellectual Property Enforcement Act" in TLJ Daily E-Mail Alert No. 1,672, November 8, 2007.

Loren Yager testified on behalf of the Government Accountability Office (GAO), which is an arm of the Congress. The GAO's prepared testimony [PDF] concludes that "The current U.S. government coordinating structure that has evolved for protecting and enforcing U.S. intellectual property rights lacks leadership and permanence, presenting challenges for effective and viable coordination for the long term."

Brian Monks (Underwriters Laboratories) advocated "Additional staffing and resources for DOJ and FBI, with dedicated personnel allocated to combating IP crimes" in his prepared testimony.

See also, prepared testimony [4 pages in PDF] of Mike Rose (Johnson & Johnson), and prepared testimony of Jeffrey Thurnau (Gates Corporation).

Sen. Leahy also commented on the People's Republic of China and copyrights related to the Olympic games. He wrote that "Even the Chinese government, which allows some of the most rampant theft of intellectual property in the world, has realized the value and importance of IP enforcement now that their own IP has been threatened, and they have begun to crack down on infringement of their Olympic copyrights."

10th Circuit Holds that Digital Models Lack Sufficient Originality to Be Protected by Copyright

6/17. The U.S. Court of Appeals (10thCir) issued its opinion [27 pages in PDF] in Meshwerks v. Toyota, a copyright infringement case involving digital modeling of Toyota cars. The Court of Appeals affirmed the summary judgment of the District Court, which held that these digital models lacked sufficient originality to be protected by copyright.

Source: Exhibit A of opinion.

Meshwerks created digital models, in the form of unadorned digital wire frames, of Toyota cars and trucks. Meshwerks did not create the cars and trucks that are represented in its digital models -- Toyota did. But, Toyota wanted advertising of its cars and trucks; and this involved the creation and use of digital models.

The Court of Appeals wrote that "digital models have substantial advantages over the product photographs for which they substitute. With a few clicks of a computer mouse, the advertiser can change the color of the car, its surroundings, and even edit its physical dimensions to portray changes in vehicle styling".

The creation of these digital models involves the use of computers, modeling software, and extensive measurements. Then, the initial digital model is fine tuned manually, and some further features are manually added. The final digital model takes about 80 to 100 hours of effort per vehicle to create.

Toyota contracted with an advertising agency, Saatchi & Saatchi (SS), which in turn contracted with Grace & Wild, Inc. (GW), which in turn contracted with Meshwerks to create the digital models. Meshworks' contract with GW only provided for use in one television commercial. But, the digital models were used to create other ads in other media. Meshwerks registered copyrights with the U.S. Copyright Office.

Meshwerks filed a complaint in U.S. District Court (DUtah) against Toyota, SS and GW alleging copyright infringement and breach of contract. The District Court granted summary judgment to the defendants on the copyright claim, and declined to exercise jurisdiction over the state law contract claim.

Statute. 17 U.S.C. § 102 addresses the subject matter of copyright. It provides in full as follows:

"(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

17 U.S.C. § 101, the definitional section of the Copyright Act, defines "Pictorial, graphic, and sculptural works" to include "two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article."

Neither §101 nor §102 defines the term "original". The courts have, in opinions construing §102, read meaning into this word that does not necessarily follow from the plain meaning of the word, and the context in which it is used in §102.

The Court of Appeals made two brief references to §101, and two to §102, in its opinion. Its analysis was based largely on application of judicial precedent.

The intellectual property clause of the Constitution makes no reference to "original", "originality", or any equivalent term.

Court of Appeals. Meshwerks brought this appeal. The Court of Appeals affirmed.

The Court of Appeals, citing the Supreme Court's 1991 opinion in Feist Publications v. Rural Telephone Services, 499 U.S. 340, wrote that "not every work of authorship, let alone every aspect of every work of authorship, is protectable in copyright; only original expressions are protected. This constitutional and statutory principle seeks to strike a delicate balance -- rewarding (and thus encouraging) those who contribute something new to society, while also allowing (and thus stimulating) others to build upon, add to, and develop those creations." (Parentheses in original.)

The Court of Appeals then offered a short review of the history of copyright protection for photographs, including 19th Century litigation regarding photographs of Oscar Wilde.

It continued that copyright protects "original expression", but does not "reward the labor of authors". It also wrote that originality requires both independent creation and a minimal degree of creativity. And, it wrote that "the unequivocal lesson from Feist is that works are not copyrightable to the extent they do not involve any expression apart from the raw facts in the world."

It continued that "we do not doubt for an instant that the digital medium before us, like photography before it, can be employed to create vivid new expressions fully protectable in copyright."

The Court also noted that the pertinent facts of this case are that "Meshwerks’ digital wireframe computer models depict Toyota’s vehicles without any individualizing features" and that "Meshwerks’ models depict nothing more than unadorned Toyota vehicles".

Quoting the book titled "Nimmer on Copyright", the Court of Appeals wrote that "the photographer is entitled to copyright solely based on lighting, angle, perspective, and the other ingredients that traditionally apply to that art-form."

The Court then continued that "It seems to us that exactly the same holds true with the digital medium now before us: the facts in this case unambiguously show that Meshwerks did not make any decisions regarding lighting, shading, the background in front of which a vehicle would be posed, the angle at which to pose it, or the like -- in short, its models reflect none of the decisions that can make depictions of things or facts in the world, whether Oscar Wilde or a Toyota Camry, new expressions subject to copyright protection."

It therefore held that "To the extent that Meshwerks’ digital wire-frame models depict only those unadorned vehicles, having stripped away all lighting, angle, perspective, and ``other ingredients´´ associated with an original expression, we conclude that they have left no copyrightable matter."

The Court of Appeals also reasoned in dicta that "Digital modeling can be, surely is being, and no doubt increasingly will be used to create copyrightable expressions. Yet, just as photographs can be, but are not per se, copyrightable, the same holds true for digital models. There’s little question that digital models can be devised of Toyota cars with copyrightable features, whether by virtue of unique shading, lighting, angle, background scene, or other choices."

But, "The problem for Meshwerks in this particular case is simply that the uncontested facts reveal that it wasn’t involved in any such process, and indeed contracted to provide completely unadorned digital replicas of Toyota vehicles in a two-dimensional space."

TLJ Commentary. The Court of Appeals has ruled that Meshwerks' expressions are not entitled to copyright protection. The Court added that some digital models could be entitled to protection. However, Meshwerks' digital models are not, because they are representative of things that Meshwerks did not create.

Also, "in an age of virtual worlds", wrote the Court of Appeals, "digital media to mimic the ``real´´ world".

It might also be noted that, in the world of plays, the purpose of creative expression, according to Hamlet, "was and is, to hold, as 'twere, the mirror up to nature".

Mimicking the real world, and holding a mirror up to nature, is what photographers, creators of digital models, and Hamlet's players do.

But, this opinion holds, if that mimicking or mirroring merely expresses "raw facts in the world", it is not subject to copyright protection.

This conclusion is difficult to reconcile with the legal treatment of photography. If the courts were to apply recent originality analysis to photography in the same manner that they have applied it to forms of expression other than photography, then many photographs would have only shakey claims to protection.

Of course, the courts could not now exclude photographs from copyright protection under originality analysis because the Congress (as well as other nations and the Berne convention) has enumerated categories of expression entitled to protection, and this enumeration includes photographs.

However, these enumerations aside, the inconsistency is this. Many photographers take pictures of nature, or things (like Toyota cars) that they have not created. Prior to their photographing, there is creativity in the invention of all the technologies that go into the camera; but the photographer's copyright claims in photographs do not derive from the inventors' creativity. The photographer may have exhibited creativity in getting to the site of the photograph, but this gives rise to no copyrightable interest. The photographer may select a camera, lens, film, camera settings, lighting, angles, and positions. But, selection of an angle is not copyrightable expression. The §102 "tangible medium of expression" in which the photographer claims protection is the photograph. But, this is the direct result of the interaction of a machine and the objective reality of nature. All of the non-copyrightable invention and action has been completed when the photographer presses a button. The result is a pre-ordained object, the picture. The expression is the consequence of the interaction of a machine with nature. There is no originality in this "tangible medium of expression".

Of course, it should be noted that the court in this case, and other courts, have held, and Nimmer has written, that there is originality in photographs, as a consequence of the photographer's selection of lighting, angle, and perspective. See for example, the 9th Circuit's 2000 opinion in Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, which held that a photograph of a non-copyrightable bottle is copyrightable because of the photographers selection of "lighting, shading, angle, background".

Meshworks exercised skill and discretion, and manually edited, its digital models. However, this Court held that these factors do not entitle it to a claim of originality in its digital models. In contrast, courts have held that if a photographer selects lighting and angles, this entitles him to a claim of originality. Yet, both the digital modeler and photographer are merely producing a tangible expression that only mimics a reality that they did not create.

There is reality, nature, and ideas (which are not subject to copyright protection). There is also expression (which may be subject to protection). In the matter of photography, the courts push the photographer's actions and input to the expression side of the ledger. In the matter of digital modeling, this Court pushes all of the modeler's actions and input to the reality side of ledger.

There is a policy argument, which was not addressed by the Court of Appeals in this opinion, for distinguishing between digital models used in advertising, and photographs used in advertising, and affording disparate treatment under copyright law.

A digital modeler such as Meshwerks can contract with an advertiser, such Toyota and its agents, not to publish the digital model, but rather only to use the digital model to produce photo like graphics that are published in advertising. Downstream copiers can only copy these graphics. If Toyota or its agents breach the contract, Meshwerks has a contract remedy even if it has no copyright remedy.

Meshwerks has no contract remedy against persons who copy the ads. But, these ads are not the digital model. In contrast, when a photographer licenses a photograph to Toyota, and a downstream copier copies from Toyota's ads, the photographer's work is copied, and he has no contract remedy against the downstream copier.

In short, digital modelers who work with advertisers are better able to protect their proprietary interests via contract than are photographers, and hence, as a policy matter, are less in need of a copyright remedy.

This case is Meshwerks, Inc. v. Toyota Motor Sales USA, Inc., et al., U.S. Court of Appeals for the 10th Circuit, App. Ct. No. 06-4222, an appeal from the U.S. District Court for the District of Utah, D.C. No. 2:06-CV-97-TC. Judge Neil Gorsuch wrote the opinion of the Court of Appeals, in which Judge Briscoe and Holmes joined.

Judge Gorsuch is not unfamiliar with copyright. He is a recent appointee who previously worked at the Department of Justice, where he was a member of the Intellectual Property Task Force. Also, he wrote the 10th Circuit's January 28, 2008, opinion [36 pages in PDF] in Dudnikov v. Chalk & Vermilion Fine Arts, the Betty Boop DMCA take down case. See, story titled "10th Circuit Addresses Personal Jurisdiction in Copyright DJ Actions Following DMCA Take Down Notices" in TLJ Daily E-Mail Alert No. 1,706, January 29, 2008.

In the event that Meshwerks files a petition for writ of certiorari with the Supreme Court, it may be significant that the author of the 3rd Circuit's en banc opinion in Southco v. Kanebridge, another leading case on originality and subject matter of copyright, was Judge Sam Alito, who is now a Supreme Court Justice. See, December 3, 2004, divided en banc opinion [40 pages in PDF]. See also, story titled "3rd Circuit Opines on Copyright Originality Requirement and Rules Based Expression" in TLJ Daily E-Mail Alert No. 1,042, December 22, 2004. The Supreme Court denied certiorari in this case on October 3, 2005. See also, story titled "Supreme Court Lets Stand Holding That Product Numbers Are Not Copyrightable" in TLJ Daily E-Mail Alert No. 1,228, October 6, 2005. Also, Judge Gorsuch is a former law clerk of Justice Anthony Kennedy of the Supreme Court.

Washington Tech Calendar
New items are highlighted in red.
Thursday, June 19

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of June 16, and schedule for June 19.

The Senate will meet at 9:30 AM for morning business. It will then resume consideration of the motion to proceed to HR 6049 [LOC | WW], the "Renewable Energy and Job Creation Act of 2008".

9:00 AM. The Internal Revenue Service's (IRS) Electronic Tax Administration Advisory Committee (ETAAC) will meet. See, notice in the Federal Register, May 30, 2008, Vol. 73, No. 105, at Page 31194. Location: IRS, Room 2116, 1111 Constitution Ave., NW.

8:30 AM - 5:00 PM. Day two of a two day invitation only conference hosted by the American Antitrust Institute (AAI). FTC Commissioner Thomas Rosch will participate in a panel at 3:30 PM. See, schedule. Location: Ballroom, National Press Club, 13th floor, 529 14th St., NW.

10:00 AM. The House Small Business Committee will hold a hearing titled "Small Business Exports in the Current Economic Climate". Location: Room 1539, Longworth Building.

12:00 NOON - 2:00 PM. The DC Bar Association will host a program titled "Shhhhh, it's a Secret: Litigating Cases When the Government Claims Information is Secret". The speakers will be Daniel Schwartz (Bryan Cave), Barbara Van Gelder (Morgan Lewis & Bockius), Meredith Fuchs (National Security Archive), and William Leonard. The price to attend ranges from $10 to $20. For more information, contact 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

1:00 - 5:00 PM. The Progress & Freedom Foundation (PFF) and the National Chamber Foundation (NCF) will host a panel discussion of the book [Amazon] titled "Let Them In: The Case for Open Borders". The speakers will be Elizabeth Dickson (Ingersoll Rand Company), Jacob Kirkegaard (The Peterson Institute), Jason Riley (Wall Street Journal), James Sherk (Heritage Foundation), Jenifer Verdery (Intel), and Bret Swanson (PFF). See, notice. Location: U.S. Chamber of Commerce, 1615 H St., NW.

POSTPONED. 2:30 PM. The House Appropriations Committee (HAC) will meet to mark up two items, including the commerce, justice, and science appropriations bill. The HAC will webcast this meeting. Location: Room 2359, Rayburn Building.

6:00 PM. Deadline to file short form applications to participate in Auction 78 with the Federal Communications Commission (FCC). This is the AWS-1 and Broadband PCS auction. See, Public Notice (DA 08-1090) and notice in the Federal Register, May 29, 2008, Vol. 73, No. 104, at Pages 30919-30938.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Second Further Notice of Proposed Rulemaking (2ndFNPRM) regarding satellite carriers' carriage obligations under Section 338 of the Communications Act as the high definition (HD) carriage requirement becomes effective. The FCC adopted its Second Report and Order, Memorandum Opinion, and 2ndFNPRM on March 19, 2008, and released the text on March 28, 2008. It is FCC 08-86 in CS Docket No. 00-96. See, notice in the Federal Register, May 5, 2008, Vol. 73, No. 87, at Pages 24515-24519. See also, story titled "FCC Releases DBS HD Carry One Carry All Order" in TLJ Daily E-Mail Alert No. 1,738, March 27, 2008.

Friday, June 20

Rep. Hoyer's schedule for week of June 16 states that "no votes are expected in the House".

10:00 AM. The Senate Homeland Security and Governmental Affairs Committee will hold a hearing on the nomination of Elaine Duke to be Under Secretary for Management at the Department of Homeland Security (DHS). See, notice. Location: Room 342, Dirksen Building.

12:00 NOON - 1:30 PM. The Federal Communications Bar Association (FCBA) will host a lunch. The speaker will be Rep. Ed Markey (D-MA), Chairman of the House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet. See, notice and registration page. The price to attend is $70.00. Location: Mayflower Hotel, 1127 Connecticut Ave., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Second Further Notice of Proposed Rulemaking (2ndFNPRM) regarding reauctioning the D block of the 700 MHz auction (Auction No. 73). The FCC adopted this item on May 14, 2008. See, story titled "FCC Announces NPRM for D Block Auction" in TLJ Daily E-Mail Alert No. 1,766, May 14, 2008. The FCC later released the text [101 pages in PDF]. It is FCC 08-128 in WT Docket No. 06-150 and PS Docket No. 06-229. See, notice in the Federal Register, May 21, 2008, Vol. 73, No. 99, at Pages 29581-29623.

Saturday, June 21

Deadline to submit replies to oppositions to the Federal Communications Commission (FCC) regarding a petition for reconsideration [42 pages in PDF] in the FCC's universal service and access charge reform proceedings (CC Docket No. 96-45, CC Docket No. 96-262, and WC Docket No. 06-122). See, notice in the Federal Register, May 27, 2008, Vol. 73, No. 102, at Page 30393.

Monday, June 23

No events listed.

Tuesday, June 24

9:30 AM. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing titled "The Future of Universal Service: To Whom, By Whom, For What, and How Much?" This hearing will be webcast by the HCC. Location: Room 2123, Rayburn Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "Oversight of Trade Functions: Customs and Other Trade Agencies". See, notice. Location: Room 215, Dirksen Building.

11:30 AM. The House Judiciary Committee's (HJC) Subcommittee on Crime will hold a hearing titled "Online Pharmacies and the Problem of Internet Drug Abuse". See, notice. This hearing will be webcast by the HJC. Location: Room 2141, Rayburn Building.

1:00 PM. The House Judiciary Committee's (HJC) Subcommittee on Administrative Law will hold a hearing on HR 5267 [ LOC | WW], the "Business Activity Tax Simplification Act of 2008". See, notice and story titled "Boucher and Goodlatte Again Introduce BAT Bill" in TLJ Daily E-Mail Alert No. 1,715, February 11, 2008. Location: Room 2237, Rayburn Building.

TIME? The U.S. District Court (DC) will hold a status hearing in U.S. v. Microsoft. See, June 17, 2008, pleading [17 pages in PDF] titled "Joint Status Report on Microsoft's Compliance with the Final Judgments". This case is D.C. No. 98-1232 (CKK) and D.C. No. 98-1233, consolidated.

Wednesday, June 25

9:30 AM. The Senate Judiciary Committee's (SJC) Subcommittee on the Constitution will hold a hearing titled "Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel". Sen. Russ Feingold (D-WI) will preside. Location: Room 226, Dirksen Building.

Thursday, June 26

11:00 AM - 12:30 PM. The Heritage Foundation will host a panel discussion titled "Homeland Security, Privacy and Civil Liberties: A Five Year Review". The speakers will be Michael Chertoff (Secretary of Homeland Security), Daniel Sutherland (Officer for Civil Rights and Civil Liberties, DHS), Hugo Teufel (Chief Privacy Officer, DHS), Peter Swire (Ohio State University law school), Kevin Lanigan (Human Rights First), and James Carifano (Heritage). See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

12:00 NOON. The Cato Institute will host a panel discussion titled "Trade Facilitation: The New Wave of International Trade Liberalization?". The speakers will be Steven Creskoff (Creskoff & Doram), Michael Finger, Bill Lane (Caterpillar, Inc.), John Wilson (World Bank), and Dan Ikenson (Cato). Cato will webcast this event. Lunch will be served after the program. See, notice and registration page. Location: Cato, 1000 Massachusetts Ave., NW.

4:00 - 5:45 PM. The American Enterprise Institute (AEI) will host a discussion of the book [Amazon] titled "Termites in the Trading System: How Preferential Agreements Undermine Free Trade", by Jagdish Bhagwati. The speakers will be Bhagwati, Brian Hindley (European Centre for International Political Economy), Philip Levy (AEI), and Claude Barfield (AEI). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

Constitutional Rights in Intellectual Property

6/17. The U.S. Supreme Court issued its opinion [134 pages in PDF] on June 12, 2008, in Boumediene v. Bush, a case regarding the Constitutional habeas corpus rights of enemy combatants being held by the U.S. military at Guantanamo Bay, Cuba.

Justice Anthony Kennedy, who wrote the opinion of the Court, noted, "Indeed, the only mention of the term ``right´´ in the Constitution, as ratified, is in its clause giving Congress the power to protect the rights of authors and inventors. See Art. I, §8, cl. 8."

However, Kennedy did not go on to hold, or advocate holding, that intellectual property rights are Constitutional rights.

Indeed, federal courts have held that they are not rights. See for example, May 24, 2007, opinion [14 pages in PDF] of the U.S. Court of Appeals (4thCir) in Darden v. Peters. The Supreme Court denied certiorari on February 25, 2008. 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, and story titled "Supreme Court Denies Cert in Darden v. Peters" in TLJ Daily E-Mail Alert No. 1,723, February 26, 2008.

Sen. Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee (SJC), referenced Justice Kennedy's statement at a SJC hearing on June 17 titled "Protecting Consumers by Protecting Intellectual Property". He added that "These rights in intellectual property have been fundamental to Americans since our founding and have never been more important than they are today." See, opening statement.

The intellectual property case 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.

The habeas corpus case is Lakhadar Boumediene, et al. v. George Bush, et al., Supreme Court of the U.S., Sup. Ct. Nos. 06–1195 and 06–1196.

People and Appointments

6/18. President Bush nominated J.V. Schwan to be a member of the U.S. International Trade Commission for a term expiring June 16, 2017. He is currently Deputy Chief of Staff at the Department of Commerce. See, White House release and release.

6/18. Donald Hoerl was named acting Regional Director of the Securities and Exchange Commission's (SEC) Denver Regional Office. See, SEC release.

More News

6/18. The U.S. Court of Appeals (5thCir) issued a revised opinion [8 pages in PDF] in Stroman Realty v. Florida and California, a case regarding personal jurisdiction over distant state regulators of internet and direct mail based businesses. See, story titled "5th Circuit Rules on Personal Jurisdiction Over State Regulators" in TLJ Daily E-Mail Alert No. 1,768, May 16, 2008.

6/18. The Senate Commerce Committee (SCC) postponed its hearing titled "Privacy Implications of Online Advertising", which had been scheduled for June 18, 2008.

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