11/6. The Federal Trade Commission (FTC) released a notice to be published in the Federal Register that announces that it will hold a series of public hearings beginning on December 5, 2008, in Washington DC, to "explore the evolving market for intellectual property".

The FTC stated that these hearings "will examine changes in intellectual property law, patent-related business models, and new learning regarding the operation of the IP marketplace since the FTC issued its October 2003 report, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy."

See, Executive Summary [18 pages in PDF] and Report [2.28 MB in PDF]. See also, story titled "FTC Releases Report on Competition and Patent Law" in TLJ Daily E-Mail Alert No. 768, October 29, 2003.

The FTC's just released notice adds that "Changes and proposed changes in the law, together with evolving business models for buying, selling and licensing IP, could significantly influence a patent’s economic value and the operation of the IP marketplace. The hearings will consider the impact of these changes on innovation, competition and consumer welfare."

This notice states that the FTC seeks public comments. It enumerates numerous questions. The deadline to submit comments is February 5, 2009.

Neither this notice, nor an associated release, solicit requests (or sets a deadline to submit requests) to participate as panelists or speakers at these hearings. The FTC has already fixed the panelists for its December 5, 2008, hearing. See, agenda [PDF].

The first panel, at 10:00 AM, will discuss "the operation of emerging business models, aspects of the patent system that support those models, and industry responses" and "the implications these developing business models have for patent valuation and licensing".

Judge Paul Michel, U.S. Court of Appeals (FedCir), will speak at 1:00 PM.

The second panel, at 1:30 PM, will discuss "recent and proposed changes in remedies law, their impact on innovation and consumers, and the use of economic analysis in determining remedies".

The third panel, at 3:15 PM, will discuss "changes in legal doctrines that affect the value and licensing of patents brought about by recent Supreme Court cases on obviousness, declaratory judgment and exhaustion".

11/6. The Office of the Attorney General of the state of Connecticut announced in a release that it and 39 other states "reached an agreement" with interactive computer service Craigslist under which law enforcement agencies and the National Center for Missing and Exploited Children (NCMEC) will enlist Craigslist in their law enforcement and other activities.

The release also states that Craigslist "committed to sue 14 software and Internet companies that help erotic service ad posters circumvent the website's defenses against inappropriate content and illegal activity". It also states that Craigslist "will provide the attorneys general with information about those businesses for possible civil and criminal prosecution".

This release also states that Craigslist "will require that posters of erotic services ads give a working phone number and pay a fee with a valid credit card" and that Craigslist "will provide the resulting information in response to law enforcement subpoenas".

The release also states that "Craigslist will deploy search technology that it developed to assist the NCMEC and law enforcement agencies in identifying missing persons, children and victims of human trafficking".

47 U.S.C. § 230 provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

10/29. A set of companies, groups, and individuals announced the creation of a "Global Network Initiative" (GNI), the purpose of which is to "protect and advance the human rights of freedom of expression and privacy".

The GNI also launched a web site, and issued a release, in which it stated that there is "increasing government pressure to comply with domestic laws and policies that require censorship and disclosure of personal information in ways that conflict with internationally recognized human rights laws and standards".

Rep. Howard Berman (D-CA), Chairman of the House Foreign Affairs Committee (HFAC), stated in a release that "This initiative is an important, yet only a first step in better protecting freedoms of expression and privacy".

Last year the HFAC held a hearing, and approved legislation, related to Yahoo's assistance to the government of the People's Republic of China (PRC) in identifying a user of Yahoo China, and Yahoo's subsequent misleading of the HFAC regarding that incident. See also, story titled "House Committee Grills Yahoo Executives" in TLJ Daily E-Mail Alert No. 1,671, November 7, 2007, and story titled "House Committee Approves Global Online Freedom Act" in TLJ Daily E-Mail Alert No. 1,662, October 25, 2007.

Sen. Dick Durbin (D-IL) stated in a release that "Freedom of expression is a fundamental right guaranteed to all people and the advent of the internet has allowed billions of people to exercise this right more fully. I commend Google, Microsoft, Yahoo!, and other participants for approving a code of conduct aimed at protecting this right while repressive regimes trample on it."

Sen. Durbin added that "While companies operating in internet-restricting countries have an obligation to respect free expression and user privacy, governments bear the primary responsibility for protecting human rights. Congress should follow the lead of the private sector by considering internet freedom legislation that would complement the code of conduct.  I look forward to working with my colleagues and the new Administration on this issue next year."

Microsoft's Pamela Passman stated in a release that "Microsoft's mission is to enable people and organizations to realize their full potential, including the social and economic opportunity that technology can unlock through access to information. This Initiative helps us further that mission by creating a systemic approach to company practices, a unique collaboration among industry, human rights organizations, academics and investors, and a strong foundation to engage further around the globe to help advance basic protections for freedom of expression, privacy and to build consumer trust across global networks."

11/5. The U.S. Court of Appeals (9thCir) issued its opinion [PDF] in ESS Entertainment 2000 v. Rock Star Videos, a trademark case involving the series of video games named "Grand Theft Auto". It affirmed the judgment of the District Court.

These video game depicts real cities, and real businesses, but varies their names. ESS Entertainment 2000 asserts that it operates a strip joint named "Play Pen" that is depicted in the game as "Pig Pen".

It filed a complaint in U.S. District Court (CDCal) alleging (1) trade dress infringement and unfair competition under section 43(a) of the Lanham Act, which is codified at 15 U.S.C. § 1125(a), (2) trademark infringement under California Business and Professions Code, (3) unfair competition under California Business and Professions Code, and (4) unfair competition under California common law.

The District Court dismissed all claims on First Amendment grounds. It rejected Rock Star Videos' fair use defense. It did not reach the merits of the trademark claim.

The Court of Appeals affirmed. It concluded that "Rockstar's modification of ESS's trademark is not explicitly misleading and is thus protected by the First Amendment. Since the First Amendment defense applies equally to ESS’s state law claims as to its Lanham Act claim, the district court properly dismissed the entire case on Rockstar's motion for summary judgment."

The Court reasoned that Grand Theft Auto, which depicts strip joints, drug dealers, gangs, prostitutes, and violence is "Not especially saintly", but "artistic", while the Play Pen is "low brow". Game players would not think that this strip joint would produce or support a "technologically sophisticated" video game.

This case is E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc., et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 06-56237, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-05-02966-MMM.

11/6. The U.S. Court of Appeals (9thCir) issued its opinion [18 pages in PDF] in Sullivan v. Oracle, a case regarding overtime compensation for workers employed to train Oracle customers in the use of its software. Oracle previously classified these workers as teachers, who are exempted from overtime pay requirements under California's Labor Code (CLC) and the federal Fair Labor Standard Act (FLSA). Oracle reclassified them, and began paying overtime. Employees then brought class action claims for retroactive compensation. Previously, class action litigation disposed of claims under the CLC and the FLSA. However, the settlement in that case exempted claims under the CLC for overtime for work performed in California to instructors domiciled in other states who worked complete days in California. That is the first claim of the present case. The second claim in the present action alleges violation of the California Unfair Competition Law (CUCL) predicated upon the CLC. The third claim alleges violation of the CUCL predicated upon violation of the FLSA. The District Court granted summary judgment to Oracle on all three claims. The Court of Appeals reversed as to the first and second claims. This case is Donald Sullivan, et al. v. Oracle Corporation, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 06-56649, a appeal from the U.S. District Court for the Central District of California, D.C. No. CV-05-00392-AHS.

11/5. The Rural Utilities Service (RUS) published a notice in the Federal Register that announces, describes, recites, and sets the effective date of, rules changes regarding criteria for approving loans under its Telecommunications Loan Program. See, Federal Register, November 5, 2008, Vol. 73, No. 215, at Pages 65724-65726. The notice states that "This rule is effective December 22, 2008, without further action, unless the Agency receives adverse comments or, submits in writing intent to submit an adverse comment, by December 5, 2008. ... If adverse comments are received, the Agency will publish a timely Federal Register document withdrawing this rule. See also, second notice requesting public comments, at Federal Register, November 5, 2008, Vol. 73, No. 215, at Page 65783.

11/5. The Rural Utilities Service (RUS) published a notice in the Federal Register that announces its Revolving Fund Program (RFP) application window for Fiscal Year 2009. Applications for grants are due by May 31, 2009. See, Federal Register, November 5, 2008, Vol. 73, No. 215, at Pages 65826-65830.

11/4. The Department of Justice's (DOJ) Antitrust Division published a notice in the Federal Register that contains public comments received on the proposed Final Judgment in US v. National Association of Realtors, U.S. District Court (NDIll), D.C. No. 05-C-5140. See, story titled "DOJ and Realtors Settle Antitrust Action Regarding Virtual Office Websites" in TLJ Daily E-Mail Alert No. 1,779, June 13, 2008. See, Federal Register, November 4, 2008, Vol. 73, No. 214, at Pages 65616-65681.

11/4. The Securities and Exchange Commission (SEC) published a notice in the Federal Register that announces, describes, recites, and sets the effective date (January 1, 2009) of, its rules requiring mandatory electronic submission of applications for orders under the Investment Company Act and filings made pursuant to Regulation E. See, Federal Register, November 4, 2008, Vol. 73, No. 214, at Pages 65516-65526.

11/3. The U.S. Patent and Trademark Office (USPTO) and the Danish Patent and Trademark Office (DKPTO) announced that they intend to launch a new trial cooperation initiative named Patent Prosecution Highway (PPH). The USPTO stated in a release that the 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."

10/30. Intel announced in a release that it has signed an agreement with the Taiwan Ministry of Economic Affairs (MOEA) to jointly establish an enabling centre for Moblin, open source software and applications optimized for Intel Atom processor-based devices. Intel also announced that it will invest in Taiwanese carrier VMAX.

This issue contains the following items:
 • FTC to Hold Hearings on IP Law
 • State Prosecutors and NCMEC Enlist Craigslist
 • GNI Announces Effort to Resist Government Efforts to Censor Speech and Violate Privacy
 • 9th Circuit Considers Trademark Law and First Amendment

11/6. Rep. Rahm Emanuel (D-IL) was named to be Chief of Staff to President elect Barack Obama.

11/6. Rep. Roy Blunt (R-MO) announced that he will not seek re-election by House Republicans to the position of House Republican Whip in the 111th Congress.

11/4. Rep. Adam Putnam (R-FL) announced that he will not seek re-election by House Republicans to the position of Chairman of the House Republican Conference.

11/6. The Department of Homeland Security (DHS) announced in a release that it "has been aggressive in preparing internally for the upcoming transition, to ensure there are no gaps in the leadership team or in our planning efforts." The DHS's transition effort is headed by U.S. Coast Guard Rear Admiral John Acton, the DHS's Under Secretary for Management.

11/6. John White, Director of the Securities and Exchange Commission's (SEC) Division of Corporation Finance, will leave the SEC. See, SEC release.

11/4. Martin Murphy was named Associate Regional Director for Examinations in the Securities and Exchange Commission's (SEC) Los Angeles Regional Office. He replaces Rosaline Tyson, who was recently named Regional Director of the Los Angeles Office. See, SEC release.

The House will not meet.

The Senate will not meet.

9:00 AM - 3:30 PM. The Bureau of Economic Analysis's (BEA) BEA Advisory Committee (BEAAC) will meet. The meeting will address ways in which the national economic accounts can be presented more effectively for current economic analysis and recent statistical developments in national accounting. The BEAAC focuses on activities arising from innovative and advancing technologies. See, notice in the Federal Register, September 29, 2008, Vol. 73, No. 189, at Page 56548. Location: BEA, 1441 L St., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Synthes (USA) v. GM Dos Reis, App. Ct. No. 2008-1279, a patent infringement case involving the issue of personal jurisdiction. See, Federal Circuit oral argument calendar. Location: Courtroom 201, Federal Circuit courthouse, LaFayette Square, 717 Madison Place, NW.

2:00 - 3:00 PM. The U.S. Patent and Trademark Office's (USPTO) Patent Public Advisory Committee (TPAC) will meet. See, agenda. Location: USPTO, Madison East 2nd Floor, 600 Dulany St., Alexandria, VA.

The Senate will meet in pro forma session.

12:00 NOON. The Cato Institute will host a discussion of the book [Amazon] titled "Against Intellectual Monopoly". The speakers will be Michele Boldrin (co-author), Robert Atkinson (Information Technology and Innovation Foundation) and Jim Harper (Cato). See, notice and registration page. This event is free and open to the public. Lunch will be served after the program. The Cato Institute will web cast this event. Location: Cato, 1000 Massachusetts Ave., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) regarding requiring devices capable of receiving Satellite Digital Audio Radio Service (SDARS) to include digital audio broadcast (DAB), HD Radio, or other technologies capable of providing audio entertainment services. This is a part of the FCC's proceeding on the merger of XM and Sirius. See, story titled "FCC Approves XM Sirius Merger" in TLJ Daily E-Mail Alert No. 1,800, July 25, 2008. The FCC adopted this NOI on August 22, 2008, and released the text [9 pages in PDF] on August 25, 2008. It is FCC 08-196 in MB Docket No. 08-172. See, notice in the Federal Register, September 10, 2008, Vol. 73, No. 176, at Pages 52657-52660.

Veteran's Day. See, Office of Personnel Management's (OPM) list of 2008 federal holidays.

7:00 - 9:00 PM. The George Mason University School of Law will host a program titled "The Economics of Electronic Discovery". For more information, contact Katie Aufderhaar at 703-966-2447. See, notice. A reception will follow the program. This event is free. Location: GMU law school, 3301 Fairfax Drive, Arlington, VA.

12:00 NOON. Barry Salzberg, CEO of Deloitte Touche, will speak at an event hosted by the U.S. Chamber of Commerce's National Chamber Foundation (NCF). See, notice. Location: U.S. Chamber, 1615 H St., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a brown bag lunch titled "Closing and Post-Closing Issues: Regulatory and Operational Concerns". The speakers will be Lawrence Movshin (Wilkinson Barker Knauer) and Todd Anderson (Constantine Cannon). RSVP to Christine Crowe at ccrowe at wbklaw dot com. Location: Wilkinson Barker Knauer, Suite 700, 2300 N St., NW.

4:00 - 5:30 PM. George Mason University (GMU) Information Economy Project (IEP) will host a lecture by William Webb (Head of Research and Development at OFCOM) titled "The Theory, Practice, Politics and Problems of Spectrum Reform". For more information, contact Drew Clark at Drew Clark at iep dot gmu at gmail dot com. Location: Room 121, GMU law school, 3301 Fairfax Drive, Arlington, VA. The nearest Metro stop is Virginia Square-GMU on the Orange Line.

6:00 - 8:15 PM. The DC Bar Association will host the second of two parts of a program titled "Export Control Courses". This second part is titled "Export Controls and Economic Sanctions 2008: Recent Developments and Current Issues". The speakers will be Thomas Scott and Carol Kalinoski. The total price to attend ranges from $140 to $210. For more information, contact 202-626-3488. See, notice. This event qualifies for continuing legal education (CLE) credits. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

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. See, notice in the Federal Register, October 3, 2008, Vol. 73, No. 193, at Pages 57749-57851.

12:15 - 1:30 PM. The Federal Communications Bar Association (FCBA) will host a brown bag lunch titled "The World of Wireless: A British View--A Chat with the UK Regulator About the Future World of Wireless". The speaker will be William Webb (head of Ofcom Research and Development). RSVP to Tony Lin at 202-663-8452 or tony dot lin at pillsburylaw dot com. Location: Pillsbury Winthrop Shaw Pittman, 2300 N St., NW.

Deadline to submit to the Office of the U.S. Trade Representative's (OUSTR) new petitions to grant waivers to competitive need limitations (CNLs) for products exceeding the CNLs in 2008, in connection with the OUSTR's 2008 Generalized System of Preferences (GSP) Annual Review. See, notice in the Federal Register, September 12, 2008, Vol. 73, No 178, at Pages 53054-53056, and notice in the Federal Register, October 16, 2008, Vol. 73, No. 201, at Pages 61444-61445.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) regarding management and oversight of the Universal Service Fund (USF). The FCC adopted this NOI on August 15, 2008 and released the text [17 pages in PDF] on September 12, 2008. It is FCC 08-189 in WC Docket No. 05-195. See, notice in the Federal Register, October 14, 2008, Vol. 73, No. 199, at Pages 60689-60695.

EXTENDED TO NOVEMBER 24. Deadline to submit comments to the Copyright Office (CO) in response to its request for comments regarding its proposal to raise fees for registration of claims, special services and Licensing Division services. See, original notice in the Federal Register, October 14, 2008, Vol. 73, No. 199, at Pages 60658-60662. See also, story titled "Copyright Office Proposes to Raise Registration Fees" in TLJ Daily E-Mail Alert No. 1,843, October 15, 2008. See, notice of extension, Federal Register, October 31, 2008, Vol. 73, No. 212, at Pages 64905-64906.

9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. See, notice in the Federal Register, October 29, 2008, Vol. 73, No. 210, at Page 64333-64334. Location: FCC, Commission Meeting Room (Room TW-C305), 445 12th St., SW.

Deadline to submit comments to the Copyright Royalty Judges in response to their request for comments regarding a motion of Phase I claimants for partial distribution in connection with the 2006 cable royalty funds. See, notice in the Federal Register, October 15, 2008, Vol. 73, No. 200, at Page 61172.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the Notice of Proposed Rulemaking (NPRM) portion of its Memorandum Opinion and Order (MO&O) and NPRM regarding collecting and reporting of carrier service quality, customer satisfaction, and infrastructure and operating data. The FCC adopted and released this MO&O and NPRM [57 pages in PDF] on September 6, 2008. It is FCC 08-203 in WC Docket No. 08-190. See, notice in the Federal Register, October 15, 2008, Vol. 73, No. 200, at Pages 60997-61006. See also, story titled "FCC Grants Carriers Forbearance From ARMIS Reporting Rules" in TLJ Daily E-Mail Alert No. 1,822, September 8, 2008.

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