|Jury Returns Guilty
Verdict in Sen. Stevens' Case
10/27. A trial jury of the U.S.
District Court (DC) return a verdict of guilty against
Sen. Ted Stevens (R-AK) on seven
counts of violation of
18 U.S.C. § 1001 in connection with his filing of annual Senate
Financial Disclosure Forms (SFDF) for the years 1999 through 2006
containing incomplete information.
The indictment contained no tax, bribery, graft, conflict of interest,
or corruption charges.
Sen. Stevens was, until the release of the indictment, the ranking
Republican on the Senate Commerce
Committee (SCC). Sen. Kay
Hutchison (R-TX) is the current ranking Republican.
Sen. Stevens (at right), who is running for re-election, stated in a
release that "I am obviously disappointed in the verdict but not
surprised given the repeated instances of prosecutorial misconduct in this
case. The prosecutors had to report themselves to the Justice Department's
Office of Professional Responsibility during the trial for ethical
violations. Exculpatory evidence was hidden from my lawyers. A witness was
kept from us and then sent back to Alaska. The Government lawyers allowed
evidence to be introduced that they knew was false. I will fight this
unjust verdict with every ounce of energy I have."
He added that "I am innocent. This verdict is the result of the
unconscionable manner in which the Justice Department lawyers conducted
this trial. I ask that Alaskans and my Senate colleagues stand with me as
I pursue my rights. I remain a candidate for the United States
Sen. Stevens' opponent in the November 4, 2008, election is
Mark Begich, Mayor of
See also, stories titled "DOJ Obtains Indictment of Sen. Stevens
in DC" in
TLJ Daily E-Mail Alert No. 1,802, July 29, 2008, and "Judge
Sullivan Denies Several of Sen. Stevens' Pre-Trial Motions" in TLJ
Daily E-Mail Alert No. 1,823, September 29, 2008.
Disclosure. David Carney, author of this story, is an ex-Alaskan
who voted for Sen. Stevens in the 1984 Senate election.
|6th Circuit Opinion
Impacts Internet Wine Sales
10/27. The U.S. Court of Appeals
(6thCir) issued its
[8 pages in PDF] in Jelovsek v. Bredesen, a commerce clause
challenge to the state of Tennessee's statutes restricting direct sales of
alcoholic beverages, including internet wine sales.
The plaintiffs are wine drinkers and wineries who wish to make direct
purchases and sales of wine, respectively. The defendants are the Governor
of Tennessee (Phil Bredesen), Attorney General of Tennessee (Paul Summers),
and Executive Director of the Tennessee Alcoholic Beverage Commission
(Shari Elks). The Wine and Spirits Wholesalers of Tennessee intervened in
support of Tennessee.
Hypothetically, one might argue that internet wine sales ought not be
prohibited, and that such prohibition would violate the commerce clause of
the Constitution. However, this is not the conclusion of this opinion, or
of the Supreme Court.
On May 16, 2005, the Supreme
Court issued its 5-4
in Granholm v. Heald, and consolidated cases, holding that
Michigan's and New York's regulatory schemes that permited in-state
wineries directly to ship alcohol to consumers, but restricted the ability
of out of state wineries to do so, violate the dormant commerce clause.
That opinion is reported at 544 U.S. 460.
Following the Supreme Court's holding, some states revised their statutes, and/or other their legal arguments, to maintain
their regulatory regimes in the post Granholm v. Heald legal
In another post Granholm case, Baude v. Heath, the
U.S. Court of Appeals (7thCir) upheld
Indiana's statute. See, story titled "7th Circuit Rules
in Wine Sales Case" in
E-Mail Alert No. 1,811, August 12, 2008. In that case, the Court of Appeals
upheld an Indiana state statute that prohibits shipping wine to a customer
without a face to face meeting. This has the effect of prohibiting Indiana
residents from purchasing wine over the internet from west coast wineries.
In the present case, Tennessee maintains that its statute prohibits direct
sales by both wineries in Tennessee, and outside of Tennessee, and hence, does
not discriminate against interstate commerce, and is therefore permissible under
Granholm v. Heald.
The District Court agreed, and upheld Tennessee's ban on direct sales in an opinion
reported at 482 F. Supp. 2d 1013.
However, Tennessee's statutes are actually more complicated. In the words
of the Court of Appeals, "These statutes seem to
contradict each other, which creates a confusing web of seemingly applicable
laws, and in its briefing and argument to the court the state did little to
unravel the mystery."
For example, the Court of Appeals wrote that "a
Tennessee resident may transport a greater quantity of wine purchased from a
Tennessee winery as compared to wine purchased in another state". It continued
that wineries are "afforded some exceptions from the general liquor control
statutes, through Tennessee’s Grape and Wine Law" (TGWL).
The Court elaborated that the TGWL "restricts
winery licenses to individuals who have been Tennessee residents for at least
two years, or to corporations whose stock is wholly owned by Tennessee residents
of at least two years; and permits Tennessee wineries which use a sufficient
percentage of Tennessee-grown grapes in their wine production to serve
complimentary samples to patrons, and to sell at retail directly to customers
without any additional license. ... The Grape and Wine Law also provides that,
notwithstanding the transportation restrictions in other statutes, wine
purchased at a Tennessee winery may be transported within the state of
Tennessee." (Citations to statute sections omitted.)
That is, while Tennessee has a statute that
regulates both in state and out of state direct sales, it then provides
exceptions and protections to in state wineries.
The Court of Appeals affirmed the judgment of the District Court as to
the general prohibition of direct sales, but held that the TGWL is facially
discriminatory in violation of the commerce clause, and therefore vacated the
District Court's "judgment to the contrary", and remanded to the District Court
for further proceedings.
This case is Frederick Jelovsek, et al. v. Phil Bredesen, Paul Summers,
Shari Elks, and the Wine and Spirits Wholesalers of Tennessee, U.S. Court of
Appeals for the 6th Circuit, App. Ct. Nos. 07-5443 and 07-5524, appeals from the
U.S. District Court for the Eastern District of Tennessee, at Greeneville, D.C.
Nos. 05-00181 and 06-00149, Judge Curtis Collier presiding. Judge Alan Norris
wrote the opinion of the Court of Appeals, in which Judges Gibbons and Griffin
International Trade. This case involves interstate and intrastate
trade in the U.S. However, state laws also affect international wines sales.
The European Union has complained, post Granholm, that state laws
regulating direct sales of
wine, present a non-tarriff barrier to the export of wine to the U.S. See for
example, April 2008, European Commission (EC)
report [68 pages in PDF] titled "United States Barriers to Trade and
It states that "Some state legislation ... prohibit EU exporters
from distributing, rebottling, or retailing their own wine; require duplicate
label approvals; levy fees and charges; and other procedures. Direct
distribution is becoming an increasingly important issue. Certain states allow
in-state wineries to ship directly to retailers and restaurants, bypassing the
traditional three-tier system." Moreover, while state laws provide some
exceptions, "foreign wines are not allowed to be distributed directly to
The EU report continues that "In addition 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, 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."
|GAO Reports on
Regulation of Export of Semiconductor Equipment to PR
10/27. The Government Accountability Office
(GAO) released a report
[51 pages in PDF] titled "Export Controls: Challenges with Commerce's Validated
End-User Program May Limit Its Ability to Ensure That Semiconductor Equipment
Exported to China Is Used as Intended".
This report states that "Since 2002, China’s ability to manufacture
semiconductors has steadily advanced, but semiconductors produced commercially
in China remain approximately one generation, or about 1 to 2 years, behind
state-of-the-art semiconductors produced in the United States."
The U.S. regulates the export of semiconductor equipment
because of potential military uses.
The report adds that "weapons systems are generally designed
around older technology".
The report continues that U.S. export controls "have become increasingly
focused on the recipients or ``end-users´´ of items, resulting in the
introduction of the Validated End-User (VEU) program in June 2007", by the
Department of Commerce (DOC) Bureau of Industry and Security (BIS).
The report finds that "The introduction of the VEU program has yet to produce
the advantages anticipated by Commerce, and challenges with program
implementation may hinder Commerce's ability to ensure that items are being used
For example, "problems with Commerce's implementation of the VEU program
limit its ability to ensure that semiconductor equipment and materials exported
to China are used as intended. Specifically, although negotiations are ongoing,
Commerce has not reached a VEU-specific agreement with the Chinese government
for conducting on-site reviews of validated end-users, a mechanism cited by
Commerce as critical for ensuring program compliance."
The report recommends that the DOC "suspend the VEU program to
China until Commerce negotiates a VEU-specific agreement with China or the 2004
End Use Visit Understanding (EUVU) is amended to include the VEU program, and
develops operating procedures for selecting and conducting on-site reviews that
are applicable to all validated end-users."
The report also lists the areas in which DOC representatives disagree with
|About Tech Law
Tech Law Journal publishes a free access web site and
a subscription e-mail alert. The basic rate for a subscription
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recipient. There are discounts for subscribers with multiple
Free one month trial subscriptions are available. Also,
free subscriptions are available for journalists, federal
elected officials, and employees of the Congress, courts, and
executive branch. The TLJ web site is free access. However,
copies of the TLJ Daily E-Mail Alert are not published in the
web site until two months after writing.
For information about subscriptions, see
subscription information page.
TLJ is published by
carney at techlawjournal dot com
P.O. Box 4851, Washington DC, 20008.
Copyright 1998-2008 David Carney. All rights reserved.
|In This Issue
This issue includes the following items:
• Jury Returns Guilty Verdict in Sen. Stevens' Case
• 6th Circuit Opinion Impacts Internet Wine Sales
• GAO Reports on Regulation of Export of Semiconductor Equipment
to PR China
• More News (including a settlement of the Google books cases)
The next issue will cover the Google books settlement.
10/28. Google, the Association of
American Publishers (AAP), and the
Authors Guild (AG) announced
the settlement of two copyright infringement cases against Google in
connection with its book search
program. This class action settlement, if approved by the U.S.
District Court (SDNY), will establish a regime governing digitization and
online display of books subject to U.S. copyright. The AAP and AG filed a
pleading [348 pages in PDF] with the District Court that contains the
"Settlement Agreement", and a
pleading [48 pages in PDF] titled "Memorandum of Law in Support of
Plaintiff's Motion for Preliminary Settlement Approval".
10/27. The Information Technology Association
of America (ITAA) announced in a release that "Spending by the federal
government on information technology will increase gradually over the next five
years as most departments and agencies focus on replacing and refreshing
necessary operational IT infrastructure systems". The ITAA added that "Most of
this growth is predicted to come in later years and will be concentrated in a
few departments including Health and Human Services, Homeland Security, Treasury
and Veterans Affairs".
10/27. The Public Knowledge (PK)
published a short piece
regarding the Digital Millennium Copyright Act (DMCA). The author is the
PK's Rashmi Rangnath. She wrote that the anti-circumvention provisions codified
17 U.S.C. § 1201, et seq. prevent fair uses of
covered works. Moreover, she asserted that the
Copyright Office's triennial
rulemaking procedure "which is supposed to mitigate the adverse
effects of the anti-circumvention provisions on lawful uses, is
ineffective". She also argued that the notice and take down
provisions codified at
17 U.S.C. § 512
"have resulted in users' content being taken down unfairly", and
"Users have also been exposed to the possibility that ISPs will cut
off their Internet access without verifying allegations of
New items are highlighted in
The House will not meet. Its next scheduled meeting is at 11:00 AM on
January 3, 2009. See,
The Senate will not meet.
9:00 AM - 5:15 PM. The
Department of Energy's (DOE)
Advanced Scientific Computing Advisory Committee (ASCAC) will
notice in the Federal Register, October 16, 2008, Vol. 73, No. 201,
at Page 61412. Location: Hilton Washington DC North, 620 Perry Parkway,
10:00 AM. The Federal Communications Commission's
(FCC) Advisory Committee on
Diversity for Communications in the Digital Age will meet. See,
notice in the
Federal Register, October 16, 2008, Vol. 73, No. 201, at Pages 61419-61420.
Location: FCC, Commission Meeting Room, 445 12th St., SW.
6:00 - 8:00 PM. The
Federal Communications Bar
Association's (FCBA) Mass Media and Engineering and Technical
Practice Committees will host a seminar titled "The Final 100
Days Until the DTV Transition: Ready? Set? Go!!!". The speakers
will be David O'Connor (Wilkinson Barker Knauer),
John Burgett (Wiley
Rein), Jack Goodman (Wilmer Hale), Eloise Gore (FCC), Dianne Smith (Fox
Television Stations), Parul Desai (Media Access Project), Jonathan Collegio (National Association of Broadcasters), Mark Lloyd (Leadership
Conference on Civil Rights), Cathy Seidel (FCC), and Dennis Wallace
(Meintel Sgrignoli & Wallace). This event qualifies for continuing
legal education credits. Prices vary. See,
notice. Location: Wilmer Hale, 1875 Pennsylvania
9:00 AM - 12:00 NOON. The
Department of Energy's (DOE)
Advanced Scientific Computing Advisory Committee (ASCAC) will meet.
in the Federal Register, October 16, 2008, Vol. 73, No. 201, at Page
61412. Location: Hilton Washington DC North, 620 Perry Parkway,
12:15 - 1:30 PM. The
Federal Communications Bar
Association's (FCBA) FCBA Foundation Scholarship Committee
will host a brown bag lunch to plan. For more information, contact Erin
Dozier at edozier at nab dot org or 202-775-4970. Location:
National Association of Broadcasters
(NAB), 1771 N St., NW.
8:00 AM. The Federal Aviation Administration's (FAA)
Commercial Space Transportation Advisory Committee will meet. See,
the Federal Register, September 16, 2008, Vol. 73, No. 180, at Page
53477. Location: FAA headquarters building, Bessie Coleman Conference
Center, 2nd floor, 800 Independence Ave., SW.
9:00 AM. The
CompTIA will host an event titled
"Tech Policy and the '08 Presidential Elections -- the Campaigns
Debate". For more information, contact Tom Liszka at
202-543-3003 or TLiszka at comptia dot org. Location: Murrow Room,
National Press Club, 13th Floor, 529
14th St., NW.
12:30 - 2:00 PM. The
Federal Communications Bar
Association's (FCBA) International Telecommunications Practice
Committee will host a brown bag lunch titled "International
Undersea Cables -- A Global Market Update/Overview (What’s Behind the
New Wave of Planned Construction?)". The speaker will be
Timothy Stronge (TeleGeography). For more information, contact Susan
O'Connell at susan dot oconnell at fcc dot gov or 202-418-1484. RSVP by
October 24 to Jennifer Ullman at Jennifer dot ullman at verizon dot com
or 202-515-2432. Location: Verizon, 5th floor, Suite 400 West, 1300 I
12:30 - 1:45 PM. The
New America Foundation (NAF)
will host an event titled "McCain v. Obama: The Technology Policy
Smackdown". The speakers will be Douglas Holtz-Eakin (McCain
campaign), Reed Hundt (Obama campaign), and Nicholas Thompson (NAF
and registration page. Lunch will be served. Location: NAF, 7th
floor, 1630 Connecticut Ave., NW.
Deadline to submit comments to the
National Institute of Standards and
Technology's (NIST) Computer
Security Division (CSD) regarding its
SP 800-70 Rev. 1 [66 pages in PDF] titled "DRAFT National
Checklist Program for IT Products -- Guidelines for
Checklist Users and Developers".
Deadline to submit comments to the Copyright Royalty
Judges regarding its proposed regulations that set the rates and terms for the
use of musical works in limited downloads, interactive streaming and
incidental digital phonorecord deliveries. See,
notice in the
Federal Register, October 1, 2008, Vol. 73, No. 191, at Pages 57033-57040.
Deadline for the Federal Communications Commission (FCC) to respond to
Rep. John Dingell's (D-MI)
interrogatories regarding unlicensed use of the TV white space.
See, Rep. Dingell's
letter [PDF], and story titled "Rep. Dingell Writes FCC
Regarding Unlicensed Devices in the White Space" in TLJ Daily
E-Mail Alert No. 1,847, October 27, 2008.
10:00 AM. The
U.S. Court of Appeals (FedCir) will hear oral argument in
ClearValue v. Pearl River Polymers, Inc., App. Ct. No.
2007-1487, a patent infringement case. See, Federal Circuit
calendar. Location: Courtroom 201, Federal Circuit courthouse,
LaFayette Square, 717 Madison Place, NW.
Deadline to submit to the
Office of the U.S. Trade Representative's
(OUSTR) post hearing briefs in connection with the 2008
Generalized System of Preferences (GSP) Annual Review. See,
the Federal Register, September 12, 2008, Vol. 73, No 178, at Pages
Deadline to submit initial
comments to the Federal Communications Commission (FCC) in response to
its Third Further Notice of Proposed Rulemaking (3rdFNPRM) regarding
its failed D block auction and its efforts to facilitate a
nationwide interoperable broadband wireless network for public safety
entities. The FCC adopted and released this
3rdFNPRM [237 pages in PDF] on September 25, 2008. See, story titled
"FCC Adopts Further NPRM Regarding Public Safety Broadband
Network" in TLJ Daily E-Mail Alert No. 1,832, September 25, 2008.
This item is FCC 08-230 in WT Docket No. 06-150 and PS Docket No. 06-229.
in the Federal Register, October 3, 2008, Vol. 73, No. 193, at Pages
Court will hear oral argument in FCC v. Fox Television
Stations, Sup. Ct. No. 07-582. See, story titled "Supreme
Court Grants Certiorari in FCC Fleeting Expletives Case" in
TLJ Daily E-Mail
Alert No. 1,732, March 18, 2008. This is a petition for writ of certiorari
to the U.S. Court of Appeals (2ndCir).
On June 4, 2007, Court of Appeals issued its divided
opinion [53 pages in PDF], which is also reported at 489 F.3d 444, holding
that the FCC's new policy sanctioning "fleeting expletives" is arbitrary and
capricious. See, story titled "2nd Circuit Vacates and Remands FCC Profanity
Order" in TLJ
Daily E-Mail Alert No. 1,590, June 4, 2007. See also, Supreme Court
Location: Supreme Court, 1 First St., NW.
10:00 AM. The U.S.
Court of Appeals (FedCir) will hear oral argument in Sumitomo
Mitsubishi Silicon Corporation v. Memc Electronic Materials,
Inc., App. Ct. No. 2007-1578. See, Federal Circuit
calendar. Location: Courtroom 201, Federal Circuit courthouse,
LaFayette Square, 717 Madison Place, NW.
|Events Outside of
Wednesday, October 29
8:00 AM - 12:30 PM. The
National Institute of Standards and Technology's
(NIST) Visiting Committee on Advanced Technology will meet. See,
notice in the
Federal Register, September 30, 2008, Vol. 73, No. 190, at Page 56797.
Location: Building 1, Room 1107, NIST, Boulder, Colorado.
4:00 - 6:00 PM. Pascal Lamy, Director General of the
World Trade Organization (WTO), will give a
speech titled "The Case for Trade: Why the Multilateral Trading System is
More Important Than Ever for the U.S.". For more information, contact
Emily Best at ebest at law dot berkeley dot edu or 510-642-7830. See,
registration page. Location:
University of California at Berkeley law school, Berkeley, California.
6:00 - 9:00 PM. The New York City Bar Association will host an event
titled "The Internet and Copyright: Public Policies Collide". The
speakers will be Robert Bernstein (moderator),
(Harvard Law School), David Carson (Associate Register for Policy and
International Affairs, Copyright Office),
Jeffrey Mausner (attorney for Perfect
10), Andrew Bridges (Winston & Strawn),
Alexander Macgillivray (Google), and Stanley Pierre-Louis (Viacom). This event
is free and open to the public. For more information, contact Eric Friedman at
212-382-6754 or efriedman at nycbar dot org. Location: New York City Bar, 42
West 44th St., New York, New York.
6:30 - 8:30 PM. There will be a book release party for the
book [Amazon] titled "Remix: Making Art and Commerce Thrive
in the Hybrid Economy", by Lawrence Lessig. See, Lessig's
Remix web site, and Stanford
University law school's
notice of this event. For more information, contact 650-723-2730 or
alumni dot relations at law dot stanford dot edu. Location: W Hotel San
Francisco, 181 3rd St., San Francisco, California.
Day one of a four day event titled "Digital
Hollywood Fall". See,
site. Location: Grand Ballroom at Hollywood and Highlands, and the
adjacent Renaissance Hollywood Hotel, 1755 N. Highland Ave., Hollywood,