Tech Law Journal Daily E-Mail Alert
May 7, 2009, Alert No. 1,936.
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Cisco and NASA Hacker Indicted

5/5. The U.S. District Court (NDCal) returned an indictment [6 pages in PDF] that charges Philip Gabriel Pettersson with intentionally causing damage to a protected computer in violation of 18 U.S.C. 1030, and misappropriation of trade secrets in violation of 18 U.S.C. 1832(a)(2) and (a)(4). See, Department of Justice (DOJ) release.

The indictment alleges that Pettersson is a resident of the nation of Sweden who hacked into the computer systems of Cisco Systems and stole its confidential and proprietary source code for its Internetwork Operating System (IOS).

The indictment further alleges that Pettersson acted with "intent to convert trade secrets belonging to Cisco to the economic benefit of someone other than" Cisco.

The indictment further alleges that Pettersson "did knowingly cause, and attempt to cause, the transmission of a program, information, code, and command to the computer system and network of the NASA NAS Supercomputer and NASA Ames, and as a result of such conduct, intentionally caused damage without authorization to a protected computer, ..."

This case is U.S.A. v. Philip Gabriel Pettersson, U.S. District Court for the Northern District of California, D.C. No. CR 09-0471 RMW.

Some members of Congress are advocating legislation that would expand federal powers with respect to regulation of cybersecurity. The Obama administration, which has not yet disclosed its plans and legislative proposals, may also advocate an expansion of federal authority. Disclosing and publicizing cyber breaches at this time may facilitate the attainment of such goals.

Obama Addresses Free Trade

5/6. President Obama issued a statement regarding international trade. He said that "We will negotiate future trade agreements".

He also said that "I am developing a plan of action for pending free trade agreements". He did not mention the US Korea Free Trade Agreement, which was negotiated, but not approved by the Congress.

See also, story titled "US and Korea Announce FTA" in TLJ Daily E-Mail Alert No. 1,559, April 2, 2007. And see, text of the agreement, and particularly, sections regarding telecommunications [17 pages in PDF], electronic commerce [4 pages in PDF], intellectual property rights [35 pages in PDF].

Obama also stated that "I will also work with our trading partners to advance a strong market-opening agreement for agriculture, industrial goods, and services through the Doha Development Round and through other negotiations".

He also used the words "transparent" and "transparency" four times, including in reference to negotiation of trade agreements. See, story titled "Transparency: EFF and PK Complain About OUSTR's Secret ACTA" in TLJ Daily E-Mail Alert No. 1,935, May 6, 2009.

Obama also proclaimed the week of May 17, 2009, through May 23, 2009, to be "World Trade Week".

The White House news office issued a statement on May 6, 2009, that discloses that "President Obama spoke with Chinese President Hu this morning and discussed ways to enhance cooperation on the global economy" and other matters.

US and Japan Discuss PR China's IT Security Products Certification Regime

5/4. The Office of the U.S. Trade Representative (OUSTR) announced in a release that on May 4, 2009, USTR Ron Kirk met in Washington DC with Toshihiro Nikai, Minister of Economy, Trade and Industry of Japan "to discuss various bilateral and multilateral trade-related issues".

This release states that "They reaffirmed that protectionism must be avoided" and that "They agreed to work together closely to achieve a successful Doha Development Round that is both ambitious and balanced."

In addition, "They reaffirmed their joint view, shared by other interested countries, on the need for China to withdraw the implementation of its certification rules for government procurement of 13 IT security products -- rules which are inconsistent with international norms."

The issue is the People's Republic of China (PRC) expansion of its China Compulsory Certificate (CCC) regime to include information technology security products.

The PRC announced the addition of IT security products to its CCC regime on January 28, 2008. The effective date is May 1, 2009.

The certification process could be used for protectionist purposes by the PRC. It could also be used to mandate disclosure to the PRC of trade secrets of the producers of IT security products.

USTR Releases Annual 301 Report

4/30. The Office of the U.S. Trade Representative (OUSTR) released its annual Special 301 Report [44 pages in PDF] identifying countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection.

This report removes Korea from the Watch List. Taiwan was removed from the Watch List in January of this year. This report elevates Canada to the Priority Watch List (PWL). The People's Republic of China and Russia remain on the PWL, and primary subjects of the report.

USTR Ron Kirk stated in a release that "As U.S. right holders, businesses, and workers suffer losses from international piracy, counterfeiting, and other forms of IPR theft, the Special 301 Report provides a critical policy tool for focusing on urgent problems that undermine one of America’s great strengths in the global economy -- our innovation and creativity".

He added that "In this time of economic uncertainty, we need to redouble our efforts to work with all of our trading partners -- even our closest allies and neighbors such as Canada -- to enhance protection and enforcement of intellectual property rights in the context of a rules-based trading system."

The report states that "The increased availability of broadband Internet connections around the world has made the Internet an extremely efficient vehicle for disseminating copyright-infringing products. Internet piracy is a significant concern in a number of trading partners, including Canada, China, Greece, Hungary, Korea, Poland, Romania, Russia, Spain, Taiwan, Ukraine, and Vietnam. Unauthorized retransmission of live sports telecasts over the Internet continues to be a problem in many countries, particularly in China."

It continues that "piracy using new technologies is an emerging problem internationally. For example, U.S. copyright industries report growing problems with piracy using cellular telephones, palm devices, flash drives, and other mobile technologies. In some countries these devices are being pre-loaded with illegal content before they are sold. In addition to piracy of music and films using these new technologies, piracy of ring tones, games, and scanned books also occurs."

People and Appointments

5/6. The Federal Trade Commission (FTC) announced in a release that Ken Glazer, Senior Deputy Director of the Bureau of Competition, "plans to leave the FTC this month".

5/6. President Obama nominated Tara O'Toole to be Under Secretary for Science & Technology at the Department of Homeland Security. She is a medical doctor, and head of the University of Pittsburgh Medical Center's (UPMC) Center for Biosecurity. Her background includes appointment to the Board of the Google Foundation's International Networked System for Total Early Disease Detection. See, White House news office release and release, and statement of Secretary of Homeland Security Janet Napolitano.

5/6. President Obama nominated Rep. Ellen Tauscher (D-CA) to be Under Secretary of State for Arms Control and International Security. She will vacate her seat in the House of Representatives. See, White House news office release.

5/6. The Senate confirmed Demetrios Marantis to be a Deputy U.S. Trade Representative. He will be responsible for U.S. trade negotiations and enforcement in Asia and Africa. See, OUSTR release, and Congressional Record, May 6, 2009, at Page S5248.

5/6. The Senate confirmed Ivan Fong to be General Counsel of the Department of Homeland Security (DHS). See, Congressional Record, May 6, 2009, at Page S5248.

5/6. The Senate confirmed Alan Krueger to be Assistant Secretary of the Treasury. See, Congressional Record, May 6, 2009, at Page S5248.

5/1. The Senate confirmed David Cohen to be Assistant Secretary for Terrorist Financing at the Department of the Treasury. See, Congressional Record, May 1, 2009, at Page S5043.

More News

5/7. Federal Communications Commission (FCC) Chairman Michael Copps gave a speech [PDF] to the FCC's Diversity Advisory Committee.

5/6. The Federal Communications Commission (FCC) released an updated version [PDF] of its agenda for its event on May 13, 2009, titled "Open Meeting". As previously announced, the FCC is scheduled to adopt a Report and Order (R&O) on discontinuance requirements for interconnected voice over internet protocol (VOIP) providers. This is part of the FCC's omnibus and perpetual proceeding titled "In the Matter of IP-Enabled Services", and numbered WC Docket No. 04-36. Also as previously announced, the FCC is scheduled to adopt a R&O on the local number portability porting interval for wireline-to-wireline and intermodal port requests. This is WC Docket No. 07-244, and CC Docket No. 95-116. Also as previously announced, the FCC is scheduled to adopt a Notice of Proposed Rulemaking and Order on the assessment and collection of regulatory fees for Fiscal Year 2009. This is MD Docket No. 08-65. This updated agenda does not list any staff reports on transitioning to digital television. See also, story titled "FCC Announces Tentative Agenda for May 13 Meeting" in TLJ Daily E-Mail Alert No. 1,931, April 27, 2009.

5/6. The Federal Communications Commission (FCC) released a report [12 pages in PDF] titled "Report on Informal Consumer Inquiries and Complaints: 4th Quarter Calendar Year 2008", and a report [12 pages in PDF] titled "Report on Informal Consumer Inquiries and Complaints: 3rd Quarter Calendar Year 2008".

5/4. The Department of Justice's (DOJ) Antitrust Division and Consolidated Multiple Listing Services filed a proposed final judgment and stipulation with the U.S. District Court (DSCar) in USA v. CMLS. This is an antitrust action involving real estate brokers, in which the government has alleged, among other things, that restrictions on out of area brokers blocks internet and technology based competition. See also, story titled "Antitrust Division Files Brief in US v. CMLS" in TLJ Daily E-Mail Alert No. 1,902, February 23, 2009. This case is USA v. Consolidated Multiple Listing Services, Inc., U.S. District Court for the District of South Carolina, Columbia Division, D.C. No. 3:08-CV-01786-SB, Judge Sol Blatt presiding.

4/30. The Federal Trade Commission (FTC) announced in a release that it will delay enforcement of its Red Flags Rule until August 1, 2009, "to give creditors and financial institutions more time to develop and implement written identity theft prevention programs". See also, FTC document [PDF] titled "FTC Extended Enforcement Policy: Identity Theft Red Flags Rule, 16 CFR 681.1".

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In This Issue
This issue contains the following items:
  Cisco and NASA Hacker Indicted
  Obama Addresses Free Trade
  US and Japan Discuss PR China's IT Security Products Certification Regime
  USTR Releases Annual 301 Report
Washington Tech Calendar
New items are highlighted in red.
Friday, May 8

Rep. Hoyer's schedule for week of May 4 states that "no votes are expected in the House.

8:30 - 11:00 AM. The Technology Policy Institute (TPI) will host an event titled "ICANN at a Crossroads: Privatization, Reform, Both, or Neither?". See, registration page. For more information, contact Ashley Creel at 202-828-4405 or events at techpolicyinstitute dot org. Location: National Press Club, 13th Floor, 529 14th St. NW.

10:00 AM. The Senate Finance Committee (SFC) will hold hearing on the nomination of Neal Wolin to be Deputy Secretary of the Treasury. See, notice. Location: Room 215, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Wedgetail v. Huddleston Deluxe, App. Ct. No. 2009-1045. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Garber v. Chicago Mercantile Exchange, App. Ct. No. 2009-1047. Location: Courtroom 203, 717 Madison Place, NW.

Day three of a three day hearing of the Copyright Office (CO) in Washington DC regarding its triennial DMCA rulemaking proceeding on possible exemptions to the prohibition against circumvention of technological measures that control access to copyrighted works. See, notice in the Federal Register, March 9, 2009, Vol. 74, No. 44, at Pages 10096-10097. See also, story titled "Copyright Office to Hold Hearings on DMCA Exemptions" in TLJ Daily E-Mail Alert No. 1,911, March 10, 2009. Location: Copyright Hearing Room (LM-408), James Madison Building, Library of Congress, 101 Independence Ave., SE.

Deadline to submit replies to oppositions to the numerous petitions for reconsideration (PFRs) of the Federal Communications Commission's (FCC) white space order. This is the Second Report and Order Memorandum Opinion and Order [130 pages in PDF] in its proceeding titled "In the Matter of Unlicensed Operation in the TV Broadcast Bands" and numbered ET Docket No. 04-186), and its proceeding titled "Additional Spectrum for Unlicensed Devices below 900 MHz and in the 3 GHz Band", and numbered ET Docket No. 02-380. This order is FCC 08-260. The FCC adopted it on November 4, 2008, and released the text on November 14, 2008. See for example, PFR [144 pages in PDF] of the NCTA, PFR [10 pages in PDF] of Dell and Microsoft, PFR [46 pages in PDF] of Motorola, PFR [10 pages in PDF] of Sprint Nextel, Comptel, and the RTG, PFR [PDF] of Dish and Directv, PFR [PDF] of the Wireless Internet Service Providers Association, PFR [PDF] of the Wi-Fi Alliance, and PFR [28 pages in PDF] of the New America Foundation, Public Knowledge, Open Source Wireless Coalition, and others. See, story titled "FCC Adopts White Space Order" in TLJ Daily E-Mail Alert No. 1,852, November 4, 2009. See, notice in the Federal Register, April 13, 2009, Vol. 74, No. 69, at Page 16870.

Saturday, May 9

Attorney General Eric Holder will give a commencement speech at Howard University's law school.

Sunday, May 10
Mothers' Day
Monday, May 11

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Co-Chair Election & Brown Bag Lunch Planning Meeting". Send nominations to Tarah Grant at tsgrant at hhlaw dot com and Cathy Hilke at chilke at wileyrein dot com by Monday, May 4, 2009. Location: Wiley Rein, 1776 K St., NW.

Tuesday, May 12

8:00 AM - 6:00 PM. Day one of a three day meeting of the Department of Homeland Security's (DHS) Homeland Security Information Network Advisory Committee (HSINAC). See, notice in the Federal Register, April 24, 2009, Vol. 74, No. 78, at Page 18737. Location: Bolger Center, 9600 Newbridge Drive, Potomac, MD.

9:15 AM - 5:00 PM. Day one of a two day meeting of the Social Security Administration's (SSA) Future Systems Technology Advisory Panel (FSTAP). The FSTAP seeks public written or oral comments regarding the "SSA's systems in the area of Internet application". See, notice in the Federal Register, April 21, 2009, Vol. 74, No. 75, at Page 18273. Location: Westin Alexandria, 400 Courthouse Square, Alexandria, VA.

9:30 AM - 1:15 PM. The DC Bar Association will host an event titled "Essential Checklist for Electronic Discovery". The speakers will include John Facciola, (U.S. District Court), Conrad Jacoby (efficientEDD), and Courtney Barton (Crowell & Moring). The price to attend ranges from $89 to $129. See, notice. This event qualifies for continuing legal education credits. The DC Bar Association has a history of excluding persons from its events. For more information, call 202-626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

10:00 AM. The Senate Homeland Security and Government Affairs Committee (SHSGAC) will hold a hearing on the nomination of Cass Sunstein to be Administrator of the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs. See, notice. Location: Room 342, Dirksen Building.

11:00 AM. The Senate Commerce Committee (SCC) will hold a hearing on the nomination of Julius Genachowski to be Chairman of the Federal Communications Commission (FCC). Location: Room 253, Russell Building.

2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division will host a seminar conducted by Marius Schwartz (Georgetown University) and Yongmin Chen (University of Colorado at Boulder) on their paper titled "Product Innovation Incentives: Monopoly vs. Competition". 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.

2:30 PM. The Senate Judiciary Committee (SJC) will hold a hearing on the nominations of Gerard Lynch (to be a Judge of the U.S. Court of Appeals for the 2nd Circuit) and Mary Smith (to be Assistant Attorney General in charge of the Tax Division). See, notice. The SJC will webcast this hearing. Location: Room 226, Dirksen Building.

3:00 - 5:00 PM. The Center for Democracy and Technology (CDT) will host two panel discussions titled "Privacy and Analytics on Government Web Sites". Location: CDT, 11th floor, 1634 Eye St., NW.

EXTENDED FROM MAY 4. 5:00 PM. Extended deadline to submit reply comments to the Copyright Office (CO) and the U.S. Patent and Trademark Office (USPTO) in response to their notice of inquiry (NOI) regarding facilitating access to copyrighted works for blind or disabled people. See, notice in the Federal Register, March 26, 2009, Vol. 74, No. 57, at Pages 13268-13270, notice in the Federal Register, April 17, 2009, Vol. 74, No. 73, at Page 17884, and notice of extension in the Federal Register, Federal Register, April 27, 2009, Vol. 74, No. 79, at Page 19108.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host an event titled "The Future of Broadcast Spectrum -- Opportunities and Challenges". The first panel will be titled "Spectrum for all?". The speakers will be Bryan Tramont (Wilkinson Barker Knauer), David Donovan (Association for Maximum Service Television), Gigi Sohn (Public Knowledge), Dean Brenner (Qualcomm), and Mark Lipp (Wiley Rein). The second panel is titled "Is there a consumer demand for the proposed use of the spectrum?" The speakers will be Bryan Tramont, Lynn Claudy (NAB and Ion Media/Urban Television), and Wayne Leighton (Empiris). The price to attend ranges from $25 to $150. See, notice. Location: Wiley Rein, 1776 K St., NW.

Wednesday, May 13

8:00 AM - 6:00 PM. Day two of a three day meeting of the Department of Homeland Security's (DHS) Homeland Security Information Network Advisory Committee (HSINAC). See, notice in the Federal Register, April 24, 2009, Vol. 74, No. 78, at Page 18737. Location: Bolger Center, 9600 Newbridge Drive, Potomac, MD.

8:45 - 11:00 AM. The New America Foundation (NAF) will host a panel discussion titled "Who Pays for the News: Media Business Models and the Role of Philanthropy". The keynote speaker will be Sen. Ben Cardin (D-MD). The panel speakers will be Steve Coll (NAF), Paul Glastris (Washington Monthly), Alex Jones (Joan Shorenstein Center on the Press, Politics and Public Policy), Jeffrey Leonard (Global Environment Fund), Douglas McGray (NAF), and John Thornton (Austin Ventures). See, notice and registration page. Location: NAF, 4th floor, 1899 L St., NW.

8:30 AM - 12:00 NOON. Day two of a two day meeting of the Social Security Administration's (SSA) Future Systems Technology Advisory Panel (FSTAP). The FSTAP seeks public written or oral comments regarding the "SSA's systems in the area of Internet application". See, notice in the Federal Register, April 21, 2009, Vol. 74, No. 75, at Page 18273. Location: Westin Alexandria, 400 Courthouse Square, Alexandria, VA.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a brown bag lunch titled "Representing Communications Companies in Bankruptcy". The speakers will include Stewart Block (FCC Office of the General Counsel). For more information, contact Marc Knox at mknox at wbklaw dot com. The FCBA has a history of excluding persons from its lunches. Location: Wilkinson Barker Knauer, Suite 700, 2300 N St., NW.

5:00 PM. Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding its review of U.S. equipment industry access to the European Community's Galileo program and European markets for related goods and services. See, notice in the Federal Register, April 15, 2009, Vol. 74, No. 71, at Pages 17548-17549.

Deadline to submit comments to the National Science Foundation (NSF) in response to its notice of proposed rulemaking (NPRM) regarding amendments to its Freedom of Information Act (FOIA) rules. See, notice in the Federal Register: April 13, 2009, Vol. 74, No. 69, at Pages 16815-16823.

Deadline to submit comments to the Office of Science and Technology Policy (OSTP) in response to President Obama's March 9, 2009, memorandum regarding "Scientific Integrity". See, notice in the Federal Register, April 23, 2009, Vol. 74, No. 77, at Pages 18596-18597.

Thursday, May 14

8:00 AM - 1:30 PM. Day three of a three day meeting of the Department of Homeland Security's (DHS) Homeland Security Information Network Advisory Committee (HSINAC). See, notice in the Federal Register, April 24, 2009, Vol. 74, No. 78, at Page 18737. Location: Bolger Center, 9600 Newbridge Drive, Potomac, MD.

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

9:00 AM - 4:00 PM. The Department of Homeland Security's (DHS) Data Privacy and Integrity Advisory Committee (DPIAC) will meet. The DPIAC will hear presentations on the US VISIT and e-Verify programs, and deliberate and vote on a draft white paper on DHS Information Sharing and Access Agreements. This event is open to the public. See, notice in the Federal Register, April 17, 2009, Vol. 74, No. 73, at Pages 17875-17876. Location: Capitol Ballroom, JW Marriott Hotel, 1331 Pennsylvania Ave., NW.

9:00 AM - 5:00 PM. Day one of a two day meeting of the National Aeronautics and Space Administration's (NASA) National Space-Based Positioning, Navigation and Timing Advisory Board. See, notice in the Federal Register, April 30, 2009, Vol. 74, No. 82, at Page 19999. Location: Embassy Suites Hotel at Chevy Chase Pavilion, 4300 Military Road, NW.

9:30 AM - 5:00 PM. The Free Press (FP) will host an event titled "Free Press Summit: Changing Media". The speakers will include Michael Copps, Susan Crawford, Jessica Rosenworcel (Senate Commerce Committee staff), Michael Powell, Reed Hundt, Ram Shriram, and Ben Scott (FP). This event is free and open to the public. See, FP notice and registration page. Location: Newseum, 6th Street and Pennsylvania Ave., NW.

12:30 - 2:00 PM. The Information Technology and Innovation Foundation (ITIF) will host an event titled "Smart Roads, Smart Cars: How IT is Transforming Transportation". The speakers will be Rob Atkinson (ITIF), Rep. Mike Rogers (R-MI), Scott Belcher (Intelligent Transportation Society America), and Jonathan Gifford (George Mason University). See, notice. Location: Congressional Meeting Room -- South, Capitol Visitor Center.

2:00 - 4:00 PM. The House Science Committee (HSC) will hold a hearing titled "An Overview of the Federal R&D Budget for FY 2010". Location: Room 2318, Rayburn Building.

2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics will host a seminar by John Thanasoullis (Oxford University) on his paper [41 pages in PDF] titled "Upstream Competition and Downstream Buyer Power". Location: FTC Conference Center, 601 New Jersey Ave., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice and Privacy and Data Security Committees will host an event titled "Privacy across Platforms: Rules of the Road and Emerging Issues". The first panel will address "privacy regimes applying in the cable, VOIP, wireline, and wireless worlds". The speakers will be Matthew Brill (Latham & Watkins), Christopher Harvie (Mintz Levin), and Barry Ohlson (Wilkinson Barker Knauer). The second panel will address "online behavioral advertising and social networking" and other emerging privacy issues. The speakers will be Jerry Cerasale (Direct Marketing Association), Mamie Kresses (FTC's Bureau of Consumer Protection), Edward Palmieri (Sprint Nextel), and Jules Polonetsky (Future of Privacy Forum). The price to attend is $150. See, notice. Location: Sidley Austin, 1501 K St., NW.

Friday, May 15

9:00 AM - 1:00 PM. Day two of a two day meeting of the National Aeronautics and Space Administration's (NASA) National Space-Based Positioning, Navigation and Timing Advisory Board. See, notice in the Federal Register, April 30, 2009, Vol. 74, No. 82, at Page 19999. Location: Embassy Suites Hotel at Chevy Chase Pavilion, 4300 Military Road, NW.

12:15 - 1:45 PM. The Federal Communications Bar Association's (FCBA) Engineering and Technical Practice Committee will host a brown bag lunch titled "The FCC and NTIA’s Boulder Labs: What They Do, How They Differ, How To Use Them". The speakers will be Rashmi Doshi (Chief of the FCC's Office of Engineering and Technology's Laboratory Division), Edward Drocella (Chief of the NTIA's Spectrum Engineering & Analysis Division), Mitchell Lazarus (Fletcher Heald & Hildreth), and Al Vincent (Director of the NTIA's Institute for Telecommunications Services). For more information, contact Tami Smith at tsmith07 at sidley dot com or 202-736-8257. Location: Sidley Austin, 1501 K St., NW.

Deadline to submit comments to the Federal Trade Commission (FTC) in connection with its third set of hearings on "The Evolving Marketplace for Intellectual Property", on March 18 and 19, 2009. See, notice.