5/18. The Supreme Court denied certiorari in Steinbeck v. Penguin, a copyright case involving the termination right provided for by 17 U.S.C. §> 304(d). See, Orders List [15 pages in PDF] at page 12, and Supreme Court docket.

This lets stand the August 13, 2008, opinion [22 pages in PDF] of the U.S. Court of Appeals (2ndCir), which reversed the judgment of the District Court, which granted summary judgment to two of author John Steinbeck's descendants.

John Steinbeck, author of Grapes of Wrath, Of Mice and Men, and other classics, granted copyright licenses to Viking (predecessor of Penguin) in 1938 and 1939. The District Court held valid a section 304 notice of termination executed by certain descendents in 2004.

The Court of Appeals reversed. It wrote that "We consider on appeal whether an agreement entered into in 1994 between Steinbeck's widow and the publisher terminated and superseded the 1938 agreement, and, if so, whether the termination notice is therefore ineffective. Because the termination right provided by section 304(d) pursuant to which the 2004 termination notice was issued applies only to pre-1978 grants of transfers or licenses of copyright, and because the 1994 agreement left intact no pre-1978 grant for the works in question, we conclude that the 2004 notice of termination is ineffective. The 1994 agreement remains in effect."

The descendants filed a petition for writ of certiorari with the Supreme Court, which has now declined to hear the case.

This case is Thomas Steinbeck, et al. v. Penguin Group (USA) Inc., et al., Supreme Court of the U.S., Sup. Ct. No. 08-1039, a petition for writ of certiorari to the U.S. Court of Appeals for the 2nd Circuit, App. Ct. Nos. 06-3226 and 06-3696.

5/18. The Supreme Court denied certiorari Bansal v. Microsoft Hotmail, a case regarding government seizure of e-mail from e-mail service provider Microsoft. See, Orders List [15 pages in PDF] at page 13, and Supreme Court docket.

This lets stand the March 7, 2008 opinion [3 pages in PDF], of the U.S. Court of Appeals (3rdCir). The Court of Appeals designated this short opinion as per curiam and non-precedential. Bansal proceeded pros se in the District Court, Court of Appeals, and Supreme Court.

Akhil Bansal was previously criminally prosecuted for the illegal sale over the internet of pharmaceutical products. The Court of Appeals wrote that the federal "government issued several subpoenas and warrants to Microsoft Hotmail, ordering it to divulge emails and furnish information regarding Bansal’s account. Microsoft Hotmail complied pursuant to these court orders."

Bansal filed a pro se civil complaint (without representation by an attorney) against Microsoft in the U.S. District Court (EDPenn) alleging violation of the Stored Communications Act SCA), the federal wiretap act, and the state of Pennsylvania's wiretap act, in connection with the federal government's seizure of his e-mail messages from Microsoft.

The District Court dismissed his complaint. He appealed to the Court of Appeals. It affirmed.

It held that his SCA claim fails for two reasons. First, it held that the SCA exempts "searches of stored electronic communications by the party providing the communications service". Second, "the SCA exempts all parties acting pursuant to a court order from liability".

The Court of Appeals also held that the federal wiretap act claim fails because the act exempts providers of electronic communication services from liability if they have disclosed information pursuant to a court order.

Bansal then filed a petition for writ of certiorari with the Supreme Court. On May 18, the Supreme Court denied this petition.

Statutes. The SCA and wiretap act both bar certain conduct. Both also provide private rights of action for violations. Both also provide exemptions for service providers acting pursuant to court order.

The SCA is codified at 18 U.S.C. §§ 2701-2712.

18 U.S.C. § 2701 provides at subsection (a) that "whoever ... intentionally accesses without authorization a facility through which an electronic communication service is provided ... and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished ..."

18 U.S.C. § 2707 creates private right of action.

But, subsection 2701(c) then provides that subsection 2701(a) "does not apply with respect to conduct authorized ... by the person or entity providing a wire or electronic communications service ..." Also, subsection 2707(e) provides that "A good faith reliance on ... a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization ... is a complete defense to any civil or criminal action ..."

The federal wiretap act is codified at 18 U.S.C. §§ 2510-2522.

18 U.S.C. § 2511 provides, in part, that "any person who ... intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication ... shall be punished". (E-mail is an "electronic communication.)

It also provides that "any person who ... intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection ... shall be punished".

18 U.S.C. § 2520 creates a private right of action.

But, subsection 2511(a)(2)(ii), the provision relied upon by the Court of Appeals, then provides that "Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with ... a court order directing such assistance signed by the authorizing judge".

This case is Akhil Bansal v. Microsoft Hotmail, Supreme Court of the U.S., Sup. Ct. No. 08-9243, a petition for writ of certiorari to the U.S. Court of Appeals for the 3rd Circuit, App. Ct. No. 07-4515. The three judge panel of the Court of Appeals was comprised of Judges Ambro, Jordan, and Fuentes. The Court of Appeals heard an appeal from the U.S. District Court for the Eastern District of Pennsylvania, D.C. No. 06-cv-04029, Judge Norma Shapiro presiding. Chief Justice John Roberts took no part in the consideration or decision of this petition.

5.18. The Supreme Court issued its opinion in AT&T v. Hulteen, a case regarding Title VII, calculation of retirement benefits, and pregnancy leave, at AT&T This case is Hulteen v. AT&T, Supreme Court of the U.S., Sup. Ct. No. 07-543, a petition for writ of certiorari to the U.S. Court of Appeals for the 9th Circuit.

5/18. The Supreme Court issued an Orders List [15 pages in PDF].

5/18. The U.S. Court of Appeals (FedCir) issued its divided opinion [30 pages in PDF] in Autogenomics v. Oxford Gene Technology, a case regarding personal jurisdiction in patent cases.

Oxford is the holder of U.S. Patent No. 6,054,270 titled "Analying polynucleotide sequences". Oxford is a UK company without any offices, facilities, employees or agents in California. However, the opinion of the Court of Appeals recites numerous other contacts between Oxford and the U.S. Oxford has entered into licensing agreements with California companies. It sent representatives to California to negotiate a license with Autogenomics. Oxford either did or did not enter into a joint venture with a California company, Agilent. The parties dispute the nature of the relationship, and the District Court denied jurisdictional discovery. Oxford representatives attended and presented at trade shows in California.

Autogenomics filed a complaint in the U.S. District Court (CDCal) seeking a declaratory judgment that certain claims of the Oxford patent are invalid and unenforceable, and that Autogenomics did not infringe them. The District Court dismissed the complaint for lack of personal jurisdiction.

Autogenomics brought the present appeal. The Court of Appeals affirmed in a divided opinion. It held that there is neither general nor specific jurisdiction.

Judge Pauline Newman dissented. She wrote that "The Federal Circuit again restricts United States parties from access to our courts when a United States patent is owned by a foreign entity. The court rules that the foreign patent owner is not subject to suit in California despite its commercial presence in California including the grant of at least ten patent licenses to companies in California; despite a manufacturing venture of the patent owner with a California-based company to produce and sell microarrays designed by the patent owner; despite participation by the patent owner with respect to the patented technology in trade shows and scientific meetings in California; and despite the patent owner’s threats of infringement against Autogenomics, a California company whose accused activities are conducted in California. On the entirety of these contacts, jurisdiction of this declaratory judgment action was proper in the Central District of California."

This case is Autogenomics, Inc. v. Oxford Gene Technology, Inc., U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 2008-1217, an appeal from the U.S. District Court for the Central District of California, D.C. No. SACV 07-846-MRP. Judge Kimberly Moore wrote the opinion of the Court of Appeals, in which Judge Robert Gentleman (USDC/NDIll) joined. Judge Newman dissented.

This issue contains the following items:
 • Supreme Court Denies Cert In Steinbeck v. Penguin
 • Supreme Court Denies Cert in Stored Communications Act and Wiretap Act Case
 • Federal Circuit Holds No Jurisdiction Over UK Holder of US Patent

The House will meet at 10:00 AM for legislative business. The agenda the day includes a vote on HR 1676 [LOC | WW], the "Prevent All Cigarette Trafficking Act of 2009" or "PACT Act". See, Rep. Hoyer's schedule for week of May 18, and schedule for May 20.

The Senate will meet at 9:30 AM. It will resume consideration of HR 2346 [LOC | WW], the supplemental appropriations bill.

9:15 AM. Solicitor General Elena Kagan will give a speech at an event hosted by Georgetown University's (GU) law school titled "Striking the Balance: Fair and Independent Courts in a New Era". Location: GU, Hart Auditorium, McDonough Hall, 600 New Jersey Ave. NW.

9:30 AM. The Senate Homeland Security and Government Affairs Committee (SHSGAC) will meet to consider several pending nominations, including Cass Sunstein (to be head of the OMB's Office of Information and Regulatory Affairs) and David Heyman (to be Assistant Secretary at the DHS). See, notice [PDF]. Location: Room 342, Dirksen Building.

10:00 AM. The House Judiciary Committee (HJC) will hold a hearing on the Federal Bureau of Investigation (FBI). The HJC will webcast this event. See, notice. Location: Room 2141, Rayburn Building.

10:00 AM. The Securities and Exchange Commission (SEC) will hold a meeting to consider changes to the federal proxy rules to facilitate director nominations by shareholders. See, notice. Location: SEC, Auditorium (Room L-002).

12:00 NOON - 2:00 PM. The DC Bar Association will host a brown bag lunch titled "Standards & Patents: Living with Contradictions". The speaker will be Donald Purcell. He will discuss the DC Circuit's April 22, 2008, opinion [24 pages in PDF] in Rambus. v. FTC, 522 F.3d 456, the Federal Circuit's December 1, 2008, opinion [40 pages in PDF] in Qualcomm v.  Broadcom, 548 F.3d 1004, and the 3rd Circuit's September 4, 2007, opinion [39 pages in PDF] in Broadcom v. Qualcomm, 501 F.3d 297. See also, story titled "Supreme Court Denies Cert in Rambus Case" in TLJ Daily Alert No. 1,903, February 24, 2009; story titled "Court of Appeals Rules in Rambus v. FTC" in TLJ Daily E-Mail Alert No. 1,752, April 23, 2008; story titled "Federal Circuit Affirms in Qualcomm v. Broadcom" in TLJ Daily E-Mail Alert No. 1,865, December 2, 2008; and story titled "3rd Circuit Rules that Deception of SDO Can Give Rise to Claims for Violation of Sherman Act" in TLJ Daily E-Mail Alert No. 1,635, September 7, 2007. The price to attend ranges from $10 to $20. See, notice. The DC Bar Association has a history of excluding persons from its events. For more information, call 202-626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

1:00 PM. The President's Economic Recovery Advisory Board will hold its first meeting. See, notice in the Federal Register, May 5, 2009, Vol. 74, No. 85, at Pages 20779-20780. Location: White House, 1600 Pennsylvania Ave.,  NW.

2:00 PM. The House Appropriations Committee's (HAC) Subcommittee on Financial Services will hold a hearing on appropriations for the Office of Management and Budget (OMB). The HAC will webcast this event. Location: Room 2359, Rayburn Building.

TIME? The U.S.-China Economic and Security Review Commission will hold a meeting titled "China in Asia, with particular focus on Pakistan, and the former Soviet Republics in Asia: Economic and security issues and implications for the United States". Location: Room __, Dirksen Building, Capitol Hill.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Hot Topics in FCC Enforcement". The first panel is titled "Current FCC Enforcement Topics: Indecency, Payola, the Omnibus CPNI NAL and Other Substantive FCC Enforcement Initiatives". The speakers will be Tom Davidson (Akin Gump), John Fiorini (Wiley Rein), and Jon Frankel (Bingham McCutchen). The second panel is titled "Important FCC Enforcement Procedural Issues for Practitioners: Consent Decree Negotiations, Tolling Agreements, Escrow Agreements, and Statute of Limitations Issues and Interpretations". The speakers will be Kathryn Berthot (Chief of the FCC's Enforcement Bureau's Spectrum Enforcement Division), Mace Rosenstein (Covington & Burling), and Irene Flannery (FCC's EB's Investigations and Hearings Division). The price to attend ranges from $25 to $150. Location: Bingham McCutchen, 2020 K St., NW.

Extended target date in the U.S. International Trade Commission's (USITC) Section 337 proceeding titled "In the Matter of Certain Semiconductor Chips With Minimized Chip Package Size and Products Containing Same" and numbered 337-TA-605. See, notice in the Federal Register, April 1, 2009, Vol. 74, No. 61, at Pages 14820-14821.

Deadline to submit certain initial comments to the Federal Communications Commission (FCC) in response to its supplemental Notice of Inquiry [22 pages in PDF] regarding its preparation of a video competition report for the years ending June 30, 2007, June 30, 2008, and June 20, 2009. This deadline pertains to comments regarding 2007 and 2008. See, notice in the Federal Register, April 27, 2009, Vol. 74, No. 79, at Pages 19085-19091. See also, story titled "FCC Resumes Its Statutory Obligation to Study Video Competition" in TLJ Daily E-Mail Alert No. 1,886, January 21, 2009, and story titled "FCC Releases Amended NOI on Annual Video Competition Reports" in TLJ Daily E-Mail Alert No. 1924, April 11, 2009.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of May 18.

8:00 AM. The Federal Aviation Administration's (FAA) Commercial Space Transportation Advisory Committee will meet. See, notice in the Federal Register, April 13, 2009, Vol. 74, No. 69, at Page 16914. Location: FAA Headquarters Building, Bessie Coleman Conference Center, 2nd floor, 800 Independence Ave., SW.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Fiber to the Library: Next Generation Broadband for Next Generation Libraries". The speakers will be Rob Atkinson (ITIF), Don Means (Digital Village Associates), and John Windhausen (Telepoloy). Location: ITIF, Suite 200, 1250 Eye St.,  NW.

10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda again includes consideration of S 417 [LOC | WW], the "States Secret Protection Act", and HR 985 [LOC | WW] and S 448 [LOC | WW], both titled the "Free Flow of Information Act of 2009". See, stories titled "Senate Judiciary Committee to Consider State Secrets Bill" and "9th Circuit Rules in State Secrets Case" in TLJ Daily E-Mail Alert No. 1,933, April 29, 2009. The agenda also includes consideration of the nominations of David Hamilton to be a Judge of the U.S. Court of Appeals (6thCir), Andre Davis to be a Judge of the U.S. Court of Appeals (4thCir), and Thomas Perez to be Assistant Attorney General in charge of the Civil Rights Division. The SJC rarely follows its published agendas. The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "The U.S. - Panama Trade Promotion Agreement". See, notice. Location: Room 215, Dirksen Building.

2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics (BOE) will host a seminar by Chris Knittel (UC Davis). He is an economist, and co-author of the paper [76 pages in PDF] titled "Estimation of Random Coefficient Demand Models: Challenges, Difficulties and Warnings". Location: FTC Conference Center, 601 New Jersey Ave., NW.

The House will meet at 9:00 AM for legislative business. See, Rep. Hoyer's schedule for week of May 18.

Memorial Day. See, Office of Personnel Management's (OPM) list of 2009 federal holidays.

The House will not meet the week of May 25-29.

The Senate will not meet the week of May 25-29. See, Senate calendar.

9:00 AM - 3:45 PM. The American Enterprise Institute (AEI) will host an event titled "China Since Tiananmen: Power, Party, and Society". There will be five panels, including one on competition, and another on the economy. See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division will host a seminar conducted by Stefan Buehler (University of St. Gallen) on his paper titled "Making Sense of Non-Binding Retail-Price Recommendations". 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.

Deadline to submit initial comments to the Copyright Royalty Judges (CRJ) in response to its Notice of Inquiry (NOI) regarding "the costs of census versus sample reporting to assist the Judges in the revision of the interim regulations for filing notices of use and the delivery of records of use of sound recordings under two statutory licenses of the Copyright Act". See, notice in the Federal Register, April 8, 2009, Vol. 74, No. 66, at Pages 15901-15904. See also, the CRJ's notice in the Federal Register regarding its Notice of Proposed Rulemaking (NPRM), Federal Register, December 30, 2008, Vol. 73, No. 250, at Pages 79727-79734, and the CRJ's web page with hyperlinks to the comments submitted in response to the NPRM.

Tech Law Journal publishes a free access web site and a subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year for a single recipient. There are discounts for subscribers with multiple recipients.

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.

Tech Law Journal now accepts credit card payments. See, TLJ credit card payments page.

TLJ is published by David Carney
Contact: 202-364-8882.
carney at techlawjournal dot com
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998-2009 David Carney. All rights reserved.