Tech Law Journal Daily E-Mail Alert
April 6, 2009, Alert No. 1,922.
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House Commerce Committee Seeks FCC Data on High Cost Universal Service

4/1. Leaders of the House Commerce Committee (HCC) sent a letter [PDF] to Federal Communications Commission (FCC) Chairman Michael Copps to request data about subsidies disbursed under the FCC's universal service high cost program.

The letter was signed by Rep. Henry Waxman (D-CA), Rep. Joe Barton (R-TX), Rep. Rick Boucher (D-VA), and Rep. Cliff Stearns (R-FL), who are the Chairman and ranking members of the HCC and its Subcommittee on Communications, Technology, and the Internet.

They seek "An updated list of the top ten recipients of high-cost support for calendar years 2006, 2007, and 2008", as well as a state by state list of total disbursements to this top ten.

They also seek an "updated list of the ten largest per-line subsidies by study area including for each study area" a list of competitive eligible telecommunications carriers, the total support amounts received by these competitive eligible telecommunications carriers for calendar years 2006, 2007, and 2008, and a list of other competitors that do not receive high-cost support.

They request this data by April 23, 2009.

Consumer Watchdog Asks DOJ to Intervene in District Court Review of Google Books Settlement

4/6. The Consumer Watchdog sent a letter [PDF] to senior officials at the Department of Justice (DOJ) and its Antitrust Division asking that the DOJ intervene in the copyright infringement action against Google related to its book search program. The plaintiffs, publishing companies and the Authors Guild (AG), announced a settlement on October 28, 2008. The settlement still requires court approval.

The AG's 2005 complaint sought class action status. The settlement would also create a publisher class. It would also affect the rights of people and entities not a party to the litigation.

The settlement procedure being pursued by the parties is to add the publishers as plaintiffs to the AG's action, to dismiss the publishers' original complaint, and then use the amended AG/publishers' complaint as the vehicle for settlement. The settlement must be approved by the District Court under rules governing class actions.

The settlement agreement is attached to a declaration [323 pages in PDF] filed with the District Court last October.

The CW asks that the DOJ intervene in the District Court to protect competition. It complains about two items in the agreement, which it describes as the "most favored nation" and "orphan works" provisions. However, it does not cite any statutory sections, or provide any legal analysis. Also, it does not discuss any of the other public policy issues raised by the settlement.

CW has clashed with Google on other issues. See for example, story titled "Consumer Group Complains About Google" in TLJ Daily E-Mail Alert No. 1,906, February 27, 2009.

The remainder of this article contains five sections. The first summarizes the content of the CW's April 6, 2009, letter to the DOJ. The second reviews the history of the litigation against Google. The third provides background and analysis of the orphan works issue. The fourth and fifth sections present two policy arguments not raised by the CW letter -- the potential for the system contemplated by this agreement to facilitate and enhance government censorship and surveillance.

CW Letter. The CW states that the agreement "creates the nonprofit Book Rights Registry to manage book digital rights issues. Among the deal's most troubling aspects is a ``most favored nation´´ clause. It guarantees Google the same terms that any future competitor might be offered."

The CW continues that under this clause the registry "would be prevented from offering more advantageous terms to, for example, Yahoo! or Microsoft, even if it thought better terms would be necessary to enable either to enter into the digital books business and provide competition to Google."

The CW argues that this is an "anti-compete" clause, and "should be eliminated to remove barriers to entry".

The CW also complained to the DOJ about the settlement agreement's treatment of "orphan works".

The CW states this: "The settlement provides a mechanism for Google to deal with ``orphan works´´. Orphan works are works under copyright, but with the rights holders unknown. The danger of using and selling such works is that a rights holder will emerge after the book has been exploited and demand substantial infringement penalties. The proposed settlement protects Google from such potentially damaging exposure, but provides no protection for others. This effectively is a barrier for competitors to enter the digital book business. The orphan works provision of this settlement should be extended to protect all who might enter the business under the same terms as Google enjoys."

Litigation Background. On October 19, 2005, five book publishing companies filed a complaint in U.S. District Court (SDNY) against Google alleging that its Google Print for Libraries (GPL) program infringes copyrights.

The publishers alleged infringement in the scanning (copying) of books under copyright, in providing copies of these scans to the libraries which provided access to the hard copies, in offering searches of these copies to the public via its web site, and in publicly displaying excerpts of these copied books (what Google called "snippets").

The publishers sought "A Final Order that permanently enjoins Google from, in any manner, reproducing, publicly distributing and/or publicly displaying all or any part of any Publisher's copyrighted works as port of the Google Library Project, or otherwise, except upon the express prior authorization of the Publisher owning or controlling the copyrights in such works."

The plaintiffs are McGraw Hill, Pearson Education, Penguin, Simon & Schuster, and John Wiley & Sons. All are members of the Association of American Publishers (AAP). See, story titled "Major Book Publishers Sue Google for Digitizing Copyrighted Books" in TLJ Daily E-Mail Alert No. 1,237, October 20, 2005.

On September 20, 2005, the Author's Guild and others filed a similar complaint in U.S. District Court (SDNY) against Google alleging copyright infringement in connection with the Google Print project. This is a class action brought on behalf of book authors. See, story titled "Author's Guild Sues Google for Copyright Infringement" in TLJ Daily E-Mail Alert No. 1,218, September 21, 2005, and story titled "University Publishers Accuse Google of Systematic Infringement of Copyright on a Massive Scale" in TLJ Daily E-Mail Alert No. 1,142, May 25, 2005.

See also, story titled "Google, Publishers and Authors Debate Google's Print for Libraries Program" in TLJ Daily E-Mail Alert No. 1,239, October 25, 2005; story titled "District Court Rules in Perfect 10 v. Google" in TLJ Daily E-Mail Alert No. 1,319, February 28, 2006; and story titled "Microsoft Counsel Says Google Systematically Violates Copyright" in TLJ Daily E-Mail Alert No. 1,547, March 6, 2007.

These two actions were not consolidated. However, both actions were filed in the same court, and were assigned to the same judge. Moreover, the court coordinated discovery in the two actions.

The parties conducted extensive discovery. However, the court did not decided, or even receive, any dispositive motions, or motions on the affirmative defenses, such as those arising under 17 U.S.C. § 107 (fair use) or 17 U.S.C. § 108 (reproduction by libraries and archives).

Libraries were not named in either action. The settlement agreement does not create and bind any library class. However, the agreement sets forth a generous offering for libraries that elect to participate.

On October 28, 2008, Google, the AAP, and the AG announced their settlement.

Orphan Works. The agreement does not rely upon any future Congressional implementing legislation. However, it contemplates Congressional amendment of copyright law. In particular, in references "orphan works".

It provides that "Google will be able to take advantage of any future legislative change(s), such as legislation allowing the use of orphan works (if enacted), that put Google at a competitive disadvantage in its use of Books in any Google Products and Services that are subject to this Settlement Agreement; provided, however, that Google may choose to receive the benefit of such change(s) only if a third party is actually taking advantage of such law(s) in connection with services that competitively disadvantage Google in its provision of any such Google Products and Services".

This is a reference to two bills in the 110th Congress -- S 2913 [LOC | WW], the "Shawn Bentley Orphan Works Act of 2008", approved by the Senate on September 26, 2008, and HR 5889 [LOC | WW], the "Orphan Works Act of 2008". Neither was enacted into law.

The AAP has long supported orphan works legislation. The primary opposition has come from various creators of visual works, rather than creators of textual works. Book authors, titles, and contents are expressed in text, which in contrast to drawings and photographs, is inherently susceptible to organization, alphabetization, and searching. This makes the process of identifying and locating holders of rights in books easier than finding rights holders for visual works.

The agreement uses the phrase "allowing the use of orphan works". However, the above referenced bills create no category of orphan works, create no process for designating particular works as orphan works, and do not authorize any use of orphan works. Rather, they would create an affirmative defense to infringement of a copyrighted work, in a specific legal action, on the basis of the infringer's prior unsuccessful efforts to locate the copyright holder.

Even without the enactment of orphan works legislation, this agreement provides Google relief related to that offered by legislation -- limitation on liability.

For example, if Google digitizes a book subject to U.S. copyright, categories it as an out of print "Display" book, generates revenue there from, and forwards revenues to the registry in compliance with the revenue sharing provisions of the agreement, it is largely immune from liability if a copyright holder comes forward. The U.S. copyright holder can demand that the book be treated by Google as "No Display", but cannot recover damages from Google for its prior acts. The copyright holder can turn to the registry to claim a share of the revenue, but not damages.

Censorship. Settlement agreements in copyright cases typically focus on compensation and injunctive relief for past infringement. This agreement is far from typical. While it does settle complaints and provides for payment for past copying, the bulk of this massive agreement establishes a new regime governing digitization and online display of books subject to U.S. copyright.

This agreement establishes, defines and limits the rights of Google and libraries that elect to participate, as well as authors and publishers who do not promptly elect to opt out of the agreement.

Thus this agreement resembles legislation. Indeed, the CW letter states that "Normally Congress or regulatory bodies would be involved in a transformation of this magnitude and the interests of all stakeholders would be considered. Because that has not been the case, it all the more important for the Justice Department to intervene".

The agreement creates something that looks like a new legal regime, separate from the Copyright Act. It affects the interests of a many segments of American society, including publishers, authors, students, educators, libraries, and the reading public. It affects the rights numerous persons and businesses that are not a party to the litigation, except pursuant to class representation. It also affects the powers of government.

First, there is the matter of censorship. This section presents the hypothesis that moving from a technology of hard copy books to digitized books that reside on central servers presents increased risks of harm flowing from censorship efforts. Under this hypothesis, the pertinent issue is not Google's and publishers' commitment to free speech, but rather the vulnerability of server based books to censorship despite Google's and publishers' commitment to free speech.

The agreement addresses censorship and related issues. It provides that "Google may, at its discretion, exclude particular Books from one or more Display Uses for editorial or non-editorial reasons. However, Google's right to exclude Books for editorial reasons (i.e., not for quality, user experience, legal or other non-editorial reasons) is an issue of great sensitivity to Plaintiffs and Google." (Parentheses in original.)

It continues that "Accordingly, because Plaintiffs, Google and the libraries all value the principle of freedom of expression, and agree that this principle is an important part of GBS and other Google Products and Services, Google agrees to notify the Registry of any such exclusion of a Book for editorial reasons and of any information Google has that is pertinent to the Registry's use of such Book other than Confidential Information of Google and other than information that Google received from a third party under an obligation of confidentiality."

The agreement also states that "Google may not intentionally alter the text of a Book or Insert when displayed to users".

TLJ spoke with Patricia Schroeder, head of the AAP, last October. She stated that book publishers have a long history of zealously defending First Amendment rights. She added that publishers will be represented in the management of the registry created by the just announced agreement.

Nevertheless, one might hypothesize that, despite the best intentions of publishers and service providers, moving to digitization and central servers presents increased risks. Censoring hard copy books, whether by government decree, private litigation, or book burnings, is a difficult task. Book printers tend to be spread over much geographic territory. Shutting down or overseeing all printers is difficult. In addition, books can be imported, or smuggled, from abroad.

Moreover, once books have been printed and distributed, censorship becomes even more difficult. Governments, defamation lawyers, and book burners can not simply issue a recall notice and expect all copies to be returned to them. Books are distributed through private homes, numerous libraries, and other geographically dispersed locations.

The just announced agreement contemplates a completely different technology for storing and accessing textual material. Instead of putting text into privately held, untraceable, unlocatable, and widely dispersed books, Google's business model is to put text into central computer servers controlled by one company. This company is more easily subjected to legal process and government decree than a vast multitude of hard copy book owners.

Regardless of how dedicated Google and the registry are to free speech rights, the circumstance remains that they are more vulnerable to effective censorship than a system based on widely dispersed paper books.

Surveillance. This section offers the hypothesis that digitization of books, storage on centralized servers, and online use, facilitates government monitoring of books reading habits. Such monitoring in itself can be harmful. It can also cause harm by inhibiting people from reading certain works, and inhibiting publishers from publishing those works.

When books are printed on paper, it is difficult for the government to keep track of who is reading what. One can walk into a Barnes & Noble bookstore, pay cash for a book, and take it home. There may be no record of the transaction, or of the location, possession or ownership of the book. Similarly, the government cannot know if the book is read, loaned, or resold. Also, one can enter a library, read a hard copy book, and leave no record.

In contrast, if in the future books migrate from hard copy to central computer servers, and readers obtain and read books through a service such as Google's, then there is the technological potential for automatically storing and retrieving individually identifiable information regarding book searches, book purchases and reading activities.

Just as a central server based system is more vulnerable to government censorship orders, such a system is also more vulnerable to government data retention and disclosure mandates. And again, the issue is not Google's commitment to privacy. It is a question of the vulnerability of its technology to abusive government surveillance.

Perhaps it is also pertinent to consider the recent history of libraries and government surveillance.

The Department of Justice's (DOJ) Federal Bureau of Investigation (FBI) has employed National Security Letter (NSL) authority under 18 U.S.C. § 2709 to obtain "transactional records" of libraries. NSLs do not require a court order, and recipients are subjected to a gag order.

See for example, story titled "Suit Challenges Constitutionality of National Security Letters" in TLJ Daily E-Mail Alert No. 1,202, August 25, 2005, and story titled "2nd Circuit Stays District Court Injunction in National Security Letter Case" in TLJ Daily E-Mail Alert No. 1,218, September 21, 2005.

The American Library Association (ALA) stated in a release that this case demonstrates that "the FBI is indeed using provisions of the USA PATRIOT Act to obtain library patron reading records".

And perhaps it is pertinent that the DOJ's Office of the Inspector General (OIG) has issued two reports finding that the FBI has abused it NSL authority. See, report [187 pages in PDF] released on March 13, 2008, titled "A Review of the FBI’s Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006", and story titled "DOJ Inspector General Releases Second Report on FBI Misuse of National Security Letters" in TLJ Daily E-Mail Alert No. 1,730, March 30, 2008. See also, report [30 MB in PDF] released on March 9, 2007, titled "A Review of the Federal Bureau of Investigation's Use of National Security Letters", and report [10 MB in PDF] titled "A Review of the Federal Bureau of Investigation’s Use of Section 215 Order for Business Records", and story titled "DOJ IG Releases Reports on Use of NSLs and Section 215 Authority" in TLJ Daily E-Mail Alert No. 1,551, March 13, 2007.

There is also the matter of § 215 of the 2001 USA PATRIOT Act, which rewrote § 501 of the Foreign Intelligence Surveillance Act (FISA), which is codified in Title 50 as § 1861. It pertains to "Access to Certain Business Records for Foreign Intelligence and International Terrorism Investigations". While the statute does not expressly include library records, it is not disputed that library records could be obtained. The ALA has also been a vociferous opponent of § 215.

Finally, it may be relevant that Google is increasingly becoming involved in, and vulnerable to, various government regulatory regimes. These make it more susceptible to government pressures. First, for example, the DOJ, which presides over much of the federal government's surveillance activities, also reviews the antitrust implications of Google's various activities. Second, Google is becoming increasingly dependent upon federal spectrum related policies. The Federal Communications Commission (FCC), which has authority with respect to spectrum, is dependent upon the DOJ in many ways. For example, only the DOJ can seek Supreme Court review of Circuit Court decisions adverse to the FCC. The DOJ has leveraged this and other authority to influence surveillance related proceedings at the FCC, as for example, in its taking the Brand X case to the Supreme Court.

Google's current managers have expressed their commitments to user privacy. However, they also have duties to maximize shareholder value. The DOJ and FCC both have the ability to decrease that shareholder value. One might consider the analogy of telecommunications carriers. They have long been subjected to burdensome federal and state regulatory regimes. As a consequence, they have not proven to be effective advocates of the privacy of their customers and users against government intrusions.

In This Issue

This issue contains the following items:
 • House Commerce Committee Seeks FCC Data on High Cost Universal Service
 • Consumer Watchdog Asks DOJ to Intervene in District Court Review of Google Books Settlement
 • 2nd Circuit Addresses Google's Sale of Trademarked Terms as Keywords in Context Based Advertising
 • Groups Write Obama Regarding IPR Related Appointments

Washington Tech Calendar
New items are highlighted in red.
Monday, April 6

The House will not meet the week of April 6-10 or 13-17. It will next meet at 2:00 PM on April 21, 2009. See, HConRes 93.

The Senate will not meet the week of April 6-10 or 13-17. It will next meet on April 20, 2009, at 2:00 PM, at which time it may begin consideration of S 386 [LOC | WW], the "Fraud Enforcement and Recovery Act".

8:30 AM - 5:00 PM. Day one of a two day meeting of the Judicial Conference of the United States' Advisory Committee on Rules of Criminal Procedure. This meeting is open to the public for observation, but not participation. See, notice in the Federal Register, January 26, 2009, Vol. 74, No. 15, at Page 4459. Location: Thurgood Marshall Federal Judiciary Building, One Columbus Circle, NE.

2:00 - 4:00 PM. The Department of Transportation's (DOT) Intelligent Transportation Systems Program Advisory Committee (ITSPAC) will meet. See, notice in the Federal Register, March 12, 2009, Vol. 74, No. 47, at Pages 10800-10801. Location: DOT, Conference Room 2, West Building, 1200 New Jersey Ave., SE.

The U.S. Patent and Trademark Office (USPTO) and others will host an event titled "USPTO Design Day 2009". See, notice. Location: USPTO, Madison Auditorium, Alexandria, VA.

Tuesday, April 7

8:30 AM - 5:00 PM. Day two of a two day meeting of the Judicial Conference of the United States' Advisory Committee on Rules of Criminal Procedure. This meeting is open to the public for observation, but not participation. See, notice in the Federal Register, January 26, 2009, Vol. 74, No. 15, at Page 4459. Location: Thurgood Marshall Federal Judiciary Building, One Columbus Circle, NE.

2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division will host a seminar conducted by Yongmin Chen (University of Colorado at Boulder) and David Sappington (University of Florida) on their paper [33 pages in PDF] titled "Exclusive Contracts, Innovation, and Welfare". This is a theoretical paper that also addresses AMD, Intel and microprocessor chips. Sappington worked at the FCC during the Chairmanship of Michael Powell. To request permission to attend, contact Patrick Greenlee at 202-307-3745 or atr dot eag at usdoj dot gov. Location: Bicentennial Building, 600 E St., NW.

Wednesday, April 8

The Federal Communications Commission (FCC) may hold an event titled "Open Meeting". Location: FCC, Commission Meeting Room (Room TW-C305), 445 12th St., SW.

10:00 AM. The Securities and Exchange Commission (SEC) will host an event titled "Open Meeting". See, agenda. Location: SEC, 100 F St., NE.

12:00 NOON - 2:00 PM. The Federal Communications Bar Association's (FCBA) Diversity and Young Lawyers Committees will host an event titled "4th Annual Mentoring Luncheon". The speaker will be Anna Gomez (NTIA). For more information, contact Bill Cook at 202-942-5996 or William_Cook at aporter dot com, or Cathy Hilke at 202-719-7418 or chilke at wileyrein dot com. The luncheon cost is $25.Location: Arnold & Porter, 10th floor, 555 12th St., NW, 10th Floor.

Thursday, April 9

12:00 NOON - 1:30 PM. The National Economists Club (NEC) will host a lunch titled "Securities Markets and Regulatory Reform". The speaker will be Eric Sirri, Director of the Securities and Exchange Commission's (SEC) Division of Market Regulation. Location: 2nd floor, Chinatown Garden Restaurant, 618 H St., NW.

12:15 - 1:45 PM. The New America Foundation (NAF) will host a book discussion. The speaker will be J.P. Singh (Georgetown Univ.), author of the book [Amazon] titled "Negotiation and the Global Information Economy". See, notice and registration page. Location: NAF, Suite 400, 1899 L St., NW.

Friday, April 10

Good Friday.

Extended deadline for Cox Enterprises and others to file with the Federal Communications Commission's (FCC) Media Bureau amendments to pending waiver requests or renewal applications or to file requests for permanent waivers of the newspaper/broadcast cross-ownership rule. See, February 6, 2009, order [PDF].

Deadline to submit initial comments to the The Federal Communications Commission (FCC) in response to its Public Notice [4 pages in PDF] regarding its implementation of Subsections 103(b) and 103(c)(1) of the Broadband Data Improvement Act (BDIA). President Bush signed S 1492 [LOC | WW], the BDIA, into law on October 10, 2008. It is now Public Law No. 110-385.

Sunday, April 12


Monday, April 13

The House will not meet the week of April 13-17.

Deadline to submit comments to the National Telecommunications and Information Administration (NTIA) and the Rural Utilities Service (RUS) regarding the broadband grant programs created by HR 1 [LOC | WW], the huge spending bill enacted in February, which programs are also known as the Broadband Technology Opportunities Program (BTOP). See, notice in the Federal Register, March 12, 2009, Vol. 74, No. 47, at Pages 10716-10721, and notice in the Federal Register, March 18, 2009, Vol. 74, No. 51, at Page 11531.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Public Notice [4 pages in PDF] regarding the FCC's consultative role in implementing the broadband grants and loans provisions of HR 1, the huge spending bill enacted in February. This PN is DA 09-668 in GN Docket No. 09-40.

2nd Circuit Addresses Google's Sale of Trademarked Terms as Keywords in Context Based Advertising

4/3. The U.S. Court of Appeals (2ndCir) issued its opinion [PDF] in Rescuecom v. Google, vacating the District Court's dismissal of the trademark holder's complaint.

This is a defeat for Google, and its method of selling context based advertising. That is, Google sold advertising to competitors of Rescuecom, which had trademarked its name. So, when users conducted a Google search with the term "rescuecom", Google displayed hyperlinked ads for Rescuecom's competitors. But, Google only used the trademarked term in meta data not visible to Google's users. Rescuecom nevertheless cried consumer confusion. Google responded that use of trademarked terms in its internal data cannot be a trademark violation. The District Court sided with Google, and dismissed pursuant to Rule 12(b)(6). The Court of Appeals vacated and remanded. The Court of Appeals held that Rescuecom stated a claim. To prevail, Rescuecom must still prove that there was consumer confusion.

This opinion follows the 2nd Circuit's 2005 opinion [PDF] in a similar case, 1-800 Contacts, Inc. v., Inc., which is also reported at 414 F.3d 400. The Court of Appeals distinguished that case. It did not overturn or criticize it.

Rescuecom holds a valid registered federal trademark in in "Rescuecom". Rescuecom is a national computer service franchising company that offers on site computer services and sales.

Google provides free internet searches, and sells context based advertising. It sells terms, or keywords, to advertisers, including trademarked terms. When a user searches with one of these terms, Google provides a page with relevancy ranked search results, and ads associated with the term. It does not, however, display the trademarked term. It only uses the trademarked term internally.

The Court of Appeals wrote that "Rescuecom's competitors, some responding to Google's recommendation, have purchased Rescuecom's trademark as a keyword in Google's AdWords program, so that whenever a user launches a search for the term ``Rescuecom,´´ seeking to be connected to Rescuecom's website, the competitors' advertisement and link will appear on the searcher’s screen. This practice allegedly allows Rescuecom's competitors to deceive and divert users searching for Rescuecom's website. According to Rescuecom's allegations, when a Google user launches a search for the term ``Rescuecom´´ because the searcher wishes to purchase Rescuecom's services, links to websites of its competitors will appear on the searcher’s screen in a manner likely to cause the searcher to believe mistakenly that a competitor’s advertisement (and website link) is sponsored by, endorsed by, approved by, or affiliated with Rescuecom." (Parentheses in original.)

Google argued that the 1-800 case suggests that the inclusion of a trademark in an internal computer directory cannot constitute trademark use.

Rescuecom filed a complaint in the U.S. District Court (NDNY) against Google alleging trademark infringement, false designation of origin, and dilution under the Lanham Act. The District Court dismissed the complaint, for failure to state a claim upon which relief may be granted, on the grounds that Google did not use the mark in commerce within the meaning of the Lanham Act.

Rescuecom brought the present appeal. The Court of Appeals vacated and remanded.

The District Court dismissed under Rule 12(b)(6). The Court of Appeals ruled only that Rescuecom stated a claim that is actionable under the Lanham Act. It added, "We have no idea whether Rescuecom can prove that Google's use of Rescuecom’s trademark in its AdWords program causes likelihood of confusion or mistake."

The Court of Appeals wrote that "If we were to adopt Google and its amici's argument, the operators of search engines would be free to use trademarks in ways designed to deceive and cause consumer confusion."

The Court added in a footnote, "For example, instead of having a separate “sponsored links” or paid advertisement section, search engines could allow advertisers to pay to appear at the top of the ``relevance´´ list based on a user entering a competitor's trademark -- a functionality that would be highly likely to cause consumer confusion. Alternatively, sellers of products or services could pay to have the operators of search engines automatically divert users to their website when the users enter a competitor's trademark as a search term. Such conduct is surely not beyond judicial review merely because it is engineered through the internal workings of a computer program."

This case is Rescuecom Corp. v. Google, Inc., U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 06-4881-cv, an appeal from the U.S. District Court for the Northern District of New York, Judge Mordue presiding. Judge Leval wrote the opinion of the Court of Appeals, in which Judges Calabresi and Wesley joined.

Groups Write Obama Regarding IPR Related Appointments

4/2. The Center for Democracy and Technology (CDT), Computer and Communications Industry Association (CCIA), Consumer Electronics Association (CEA), Home Recording Rights Coalition (HRRC), Public Knowledge (PK), and 14 other groups sent a letter to President Obama regarding selection for personnel for intellectual property related positions.

They asked that future appointments to IPR "policy positions reflect the diversity of stakeholders affected by IP policy, and that your administration create offices devoted to promoting innovation and free expression within the relevant agencies".

They added that "To date, several of your appointees to positions that oversee the formulation and implementation of IP policy have, immediately prior to their appointments, represented the concentrated copyright industries. For example, two of the most senior officials in the Department of Justice represented the recording industry in litigation for many years."

See, stories titled "Obama Names Perrelli to be DOJ Associate Attorney General" and "Obama Names David Ogden to be Deputy Attorney General" in TLJ Daily E-Mail Alert No. 1,878, January 6, 2009.

These groups did not mention that Obama's pick to head the Federal Trade Commission (FTC), Jonathan Leibowitz, previously worked for the Motion Picture Association of America (MPAA).

These groups continued that "Many positions with IP policy responsibilities remain to be filled at the Patent and Trademark Office (PTO), the United States Trade Representative (USTR), and the Department of State. In selecting these officials, we ask you to consider that individuals who support overly broad IP protection might favor established distribution models at the expense of technological innovators, creative artists, writers, musicians, filmmakers, and an increasingly participatory public."

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