7/30. The Department of Commerce's (DOC) Bureau of Economic Analysis (BEA) released its advance estimate for the gross domestic product (GDP) for the second quarter of 2010. It stated that "the output of goods and services produced by labor and property located in the United States -- increased at an annual rate of 2.4 percent in the second quarter of 2010". See, BEA release.

Gross private domestic investment (GPDI) in equipment and software grew at a seasonally adjusted annual rate of 21.9 percent in the second quarter. (See, Table 1.). It was up 15.1 percent from the second quarter of 2009 (See, Table 8.) It rose from $969.5 Billion in the first quarter (QI) to $ 1,016.9 Billion in the second quarter (QII). (See, Table 3A.)

GPDI in information processing equipment and software rose from $568.0 Billion in QI to $584.4 Billion in QII. Within this category, GPDI in computers and peripheral equipment rose from $90.5 Billion to $99.2 Billion, while GDPI in software rose from $274.7 Billion to $279.2 Billion. (See, Table 3A.)

The BEA stated in its release that "The increase in real GDP in the second quarter primarily reflected positive contributions from nonresidential fixed investment, exports, personal consumption expenditures, private inventory investment, federal government spending, and residential fixed investment. Imports, which are a subtraction in the calculation of GDP, increased."

7/26. The Copyright Office released a notice in the Federal Register that contains its fourth triennial rules designating exemptions to the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA).

See, Federal Register, July 27, 2010, Vol. 75, No. 143, at Pages 43825-43839. See also, CO's short summary titled "Statement of the Librarian of Congress Relating to Section 1201 Rulemaking", and detailed memorandum [256 pages in PDF] of Marybeth Peters (Register of Copyright), dated June 11, 2010.

This notice designates six exemptions to the prohibition: (1) certain movies on DVD protected by CSC, (2) certain programs that enable wireless phones (especially the iPhone) to execute software applications, (3) programs that enable used wireless phones to connect to a wireless telecommunications network if allowed by the network operator, (4) certain video games, for the purpose of investigating or correcting security flaws, (5) certain programs protected by dongles, and (6) e-book when all e-book editions of the work do not allow read aloud functions.

These exemptions replace the third triennial exemptions. However, there is considerable overlap.

The new third exemption (connecting to wireless networks) is similar to a previous exemption. The new fourth exemption (investigating and correcting security flaws) is a narrower than, and related to, a previous exemption. The new fifth exemption (dongles) and new sixth exemption (e-books and read aloud functions) are the same as previous exemptions.

The new exemptions, like the old exemptions, are codified at 37 C.F.R. § 201.40.

Statutory and Procedural Background. The anti-circumvention provisions of the DMCA are codified at 17 U.S.C. § 1201, et seq. Subsection 1201(a)(1)(A) provides that "No person shall circumvent a technological measure that effectively controls access to a work protected under this title ...".

Then, § 1201(a)(2)(A) provides that "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that --- (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;"

Furthermore, § 1201(b)(1)(A) provides that "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that --- (A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; ..."

Then, Subsections 1201(a)(1)(B) through (E) provide for rulemaking proceedings conducted by the CO every three years to establish exemptions to the prohibition of (a)(1)(A) for certain non-infringing uses.

October 27, 2009, was the expiration date for the third triennial DMCA exemption rules. However, the CO published a notice in the Federal Register in which it stated that the third triennial rules were extended. See, Federal Register, October 27, 2009, Vol. 74, No. 206, at Pages 55138-55139. See also, story titled "Copyright Office Extends Term of Anti-Circumvention Exemptions" in TLJ Daily E-Mail Alert No. 2,010, November 2, 2010.

The CO began its 4th triennial review proceeding in 2008. See, story titled "Copyright Office Announces 4th Triennial Review of DMCA Exemptions" in TLJ Daily E-Mail Alert No. 1,839, October 7, 2008.

The length and complexity of the Register's memorandum suggests a reason for delaying the issuance of the new rules. However, the statute requires a rulemaking every three years. Will the relevant date for calculating the deadline to conclude the fifth triennial rulemaking be October 27, 2009 or July 27, 2010? The July 27 notice in the Federal Register asserts the latter.

Movies on DVD Protected by CSC. This exemption is as follows:

"Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:

Educational uses by college and university professors and by college and university film and media studies students;
Documentary filmmaking;
Noncommercial videos."

This exemption is new.

Peters (at right) explained in her June 11 memorandum, released on July 26, that "Because the proposal was narrowly tailored with regard to a discrete set of users who had demonstrated a sufficient need to circumvent DVD access controls for limited noninfringing purposes that are entitled to special consideration under Section 1201(a)(1)(C), and because such tailoring greatly reduced the risk that the circumvention would be for improper purposes or would lead to large-scale circulation of unprotected, digital motion pictures, potentially deterring further rights-holder investment in DVD creation or distribution, the Register found that the circumvention of CSS on DVDs for the purpose of classroom instruction was proper."

She added that "the record in the rulemaking demonstrated that the pedagogical needs of film and media studies professors could not be met by analog VHS tapes or by recording the works from the television screen with a video camera because (1) the nature of the courses required high-quality images and sound and (2) DVDs frequently contain extra features not found on VHS tapes."

Programs that Enable Wireless Phones to Execute Software Applications. This exemption is as follows:

"Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset."

This exemption is new.

Sherwin Siy of the Public Knowledge stated in a release that this "will allow consumers the freedom to have more choice of applications for their iPhones".

Mario Ciabarra of Rock Your Phone stated in the same release that this exemption "is a big win for consumers and applications developers. Consumers will have more choices of products. New markets will open up for developers and artists. The Copyright Office has given our community the legitimacy it deserves. Our apps are already on four million devices worldwide, with almost $2 million in sales. We expect our business and that of others in the field to grow as a result of today's actions".

Peters wrote a long, complex, and multifaceted analysis of this exemption. She noted first that "Despite the fact that proponents have alleged that a number of manufacturers (or, in some cases, providers) impose technological restrictions on interoperability between third-party applications and the operational programs resident on the devices themselves, the vast majority of the record in this rulemaking relates to one particular device and its restrictions -- the Apple iPhone." (Parentheses in original. Footnote omitted.)

She also wrote that "The evidence supports the contention that a technological measure is adversely affecting adding applications to the iPhone. The evidence in the record suggests that approximately 350,000 iPhone owners have jailbroken their iPhones to load applications from one independent app store alone. The record tends to indicate that the total number of jailbroken iPhones is significantly higher, constituting up to ten percent of all iPhones sold." (Footnotes omitted.)

She further concluded that "when one ``jailbreaks´´ a smartphone in order to make the operating system on that phone interoperable with an independently created application that has not been approved by the maker of the smartphone or the maker of its operating system, the modifications that are made purely for the purpose of such interoperability are likely to be fair uses".

Connecting to Wireless Networks. The exemption is as follows:

"Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network."

Aparna Sridhar of the Free Press stated in a release that "is an important step toward promoting open wireless networks. Opening up wireless networks to innovative uses and devices promotes consumer choice, market efficiency and competition in the market for wireless services."

She added that "This approach will assist consumers who want to vote with their feet by taking the phone of their choice to the carrier of their choice. Not only is this a win for consumers, but it’s also a win for innovators and developers whose products and applications now have a fighting chance in a market plagued by exclusive device arrangements dictated by the largest wireless carriers".

The previous rules exempted "Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network." The new exemption adds the restriction of authorization by the network operator.

Investigating and Correcting Security Flaws. The exemption is as follows:

"Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if:

(i) The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and
(ii) The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law."

This is a narrower version of a previous exemption. The previous rules exempted "Sound recordings, and audiovisual works associated with those sound recordings, distributed in compact disc format and protected by technological protection measures that control access to lawfully purchased works and create or exploit security flaws or vulnerabilities that compromise the security of personal computers, when circumvention is accomplished solely for the purpose of good faith testing, investigating, or correcting such security flaws or vulnerabilities."

Dongles. The exemption is as follows:

"Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace".

This is the same as a previous exemption.

E-Books and Read Aloud Functions. The exemption is as follows:

"Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format."

This is the same as a previous exemption.

Siy stated that this exemption "allows the visually impaired to have better access to eBooks".

Prior Triennial Reviews. The CO published its third triennial review exemptions on November 27, 2006. See, notice in the Federal Register, November 27, 2006, Vol. 71, No. 227, at Pages 68472-68480. These exemptions were effective from November 27, 2006 through October 27, 2009, and then extended through July 27, 2010.

See also, stories titled "Copyright Office Announces Proceeding on DMCA Anti-Circumvention Exemptions" in TLJ Daily E-Mail Alert No. 1,229, October 7, 2005; "Copyright Office Delays Release of Triennial DMCA Exemptions Rule" in TLJ Daily E-Mail Alert No. 1,478, October 30, 2006; and "Copyright Office Releases DMCA Anti-Circumvention Exemptions" in TLJ Daily E-Mail Alert No. 1,494, November 27, 2006.

The CO published its second triennial review exemptions in a notice in Federal Register, October 31, 2003, Vol. 68, No. 241, at Pages 62011-62018.

The CO published its first triennial review exemptions in a notice in Federal Register, October 27, 2000, Vol. 65, No. 209, at Pages 64555-64574.

The Securities and Exchange Commission (SEC) filed civil complaint [78 pages in PDF] in the U.S. District Court (SDNY) that charges Sam and Charles Wyly with violation of federal securities laws. The complaint alleges insider trading based upon a Sterling Software stock transaction 11 years ago. The bulk of the complaint alleges failure to accurately disclose 5% beneficial ownership in publicly traded companies. Most of the alleged wrongdoing occurred in the 1990s.

The 13 count complaint alleges securities fraud in violation of Section 10b of the Exchange Act and SEC Rule 10b5 thereunder, including for trading on the basis of material nonpublic information. It also alleges violation of Section 17 of the Securities Act. However, most of the counts allege technical registration and reporting violations regarding 5% beneficial ownership.

The complaint does not allege that the Wyly's made false statements about public traded companies in order to induce investors to buy stock in those companies, lied to auditors, or stole or embezzled -- the core acts to which the securities laws are directed.

The Wyly brothers began their careers working for IBM. They later founded Sterling Software, which was acquired by Computer Associates in 2000. They have also been major contributors to Republican candidates and committees, including politically controversial committees, such as the Swiftboat Veterans for Truth.

The SEC has a history of devoting substantial resources to bringing high profile cases against famous and wealthy founders of technology and web based companies, such as Mark Cuban, Henry Samueli, and Martha Stewart. These actions arguably have done little if anything to increase the integrity of securities markets. (The District Court dismissed two of these cases.) Meanwhile, the SEC has failed to detect and stop actual instances of large scale securities fraud, as for example, in the case of Bernard Madoff.

Lorin Reisner (at right), Deputy Director of the SEC's Division of Enforcement, stated in a release that "The cloak of secrecy has been lifted from the complex web of foreign structures used by the Wylys to evade the securities laws ... They used these structures to conceal hundreds of millions of dollars of gains in violation of the disclosure requirements for corporate insiders".

Federal Election Commission (FEC) records show that Reisner gave $1,000 to the Presidential campaign of Barack Obama. He joined the SEC in 2009. He had previously worked for the law firm of Debevoise & Plimpton.

The SEC has statutory authority to bring civil, but not criminal, charges. The Department of Justice (DOJ) has that authority. A DOJ employee told TLJ on July 30 that she is unaware of any criminal charges against the Wylys.

Summary of the Complaint. The complaint alleges that "Defendants Sam Wyly and Charles Wyly engaged in a 13-year fraudulent scheme to hold and trade tens of millions of securities of public companies while they were members of the boards of directors of those companies, without disclosing their ownership and their trading of those securities. The Wylys' scheme defrauded the investing public by materially misrepresenting the Wylys' ownership and trading of the securities at issue while enabling the Wylys to realize hundreds of millions of dollars of unlawful gain and other material benefits in violation of the federal securities laws governing the ownership and trading of securities by corporate insiders."

The complaint continues that through "an elaborate sham system of trusts and subsidiary companies located in the Isle of Man and the Cayman Islands" they "were able to sell without disclosing their beneficial ownership".

The complaint alleged that they violated securities laws by not filing SEC Schedules 13D and Forms 4 that accurately disclosed their 5% beneficial ownership.

The complaint explains that "the investing public routinely used such disclosures to, among other things, gauge the sentiment of public companies' insiders and large shareholders about those companies' financial condition and prospects, thereby relying on them in making investment decisions".

That is, the Wyly brothers deprived "existing shareholders and potential investors of information deemed material by the federal securities laws", and gained financially thereby.

The complaint also alleges an instance of insider trading. It states that they made "a massive and bullish transaction in Sterling Software in October 1999 based upon the material and non-public information that they, the Chairman and Vice-chairman of Sterling Software, had jointly decided to sell the company. This transaction yielded ill-gotten gains of over $31.7 million when Sterling Software's sale was ultimately announced to the public less than four months later."

The complaint also names as defendants the Wyly's attorney and stock broker, perhaps to incent them to assist the SEC in obtaining judgments against the Wylys.

The complaint seeks injunctive and monetary relief.

Wyly Brothers. Hoover's Guide to Computer Companies (1996 edition) states that "Dallas-based Sterling and its subsidiaries sell more than 150 software products for electronic commerce, systems management, application development, and reengineering" and "provides technical, scientific, and professional services to certain sectors of the federal government" including the Department of Defense.

It adds, "the Wyly family controls about 5% of the company's stock".

The Dallas Morning News (DMN) published a news story titled "Billionaire brothers under a microscope" on August 27, 2006. It states that "They're potential kingmakers in Republican politics" with "prodigious fundraising ability".

"Staunch Republicans, the Wylys have been big party donors since the Nixon presidency, personally giving about $10 million to Republican causes and candidates since the early 1970s", wrote Katie Fairbank and Sudeep Reddy of the DMN.

The DMN article adds that "they contributed to Swiftboat Veterans for Truth, which sought to discredit Sen. John Kerry's military service in Vietnam. Each contributed $10,000 to the controversial campaign that became one of the most acrimonious elements of the 2004 presidential race".

FEC records show that Charles Wyly gave $10,000 to the National Republican Congressional Committee (NRCC) last year.

SEC Forum Shopping. The SEC has likely engaged in forum shopping in this case to obtain a court and jury more favorable for its case.

The Wyly brothers are residents of the Northern District of Texas. Sterling Software was based in that District. However, the SEC brought this action in the Southern District of New York.

In contrast, when the SEC filed its civil charges in 2008 against Mark Cuban, another resident of the Northern District of Texas, it filed in the Northern District of Texas. See, civil complaint [9 pages in PDF]. See also, stories titled "SEC Charges Mark Cuban with Insider Trading" in TLJ Daily E-Mail Alert No. 1,858, November 18, 2008, and "Cuban Rebuts Some SEC Allegations" in TLJ Daily E-Mail Alert No. 1,859, November 19, 2008.

The SEC lost that case on the merits. The U.S. District Court (NDTex) dismissed the complaint. The SEC has appealed to the U.S. Court of Appeals (5thCir). See, Cuban's appeal brief. (See, App. Ct. No. 09-10996.)

Similarly, when the SEC filed its civil charges against Henry Samueli, a founder of Broadcom, it filed in the Central District of California. See, civil complaint [39 pages in PDF]. See also, stories titled "SEC Files Complaint Against Samueli and Other Broadcom Officers" in TLJ Daily E-Mail Alert No. 1,767, May 15, 2008, "9th Circuit Issues Opinion in Samueli Case" in TLJ Daily E-Mail Alert No. 1,989, September 25, 2009, and "SEC Drops Case Against Samueli" in TLJ Daily E-Mail Alert No. 2,046, February 17, 2010.

And, the SEC lost that case on the merits too. The U.S. District Court (CDCal) dismissed the complaint. The SEC decided to take no further action.

When the SEC brought civil charges against Martha Stewart, founder of Martha Stewart Living Omnimedia (MSLO), it filed in the Southern District of New York. However, MSLO and ImClone (trading of its securities gave rise to the action) were both based in New York City, and many defendants and witnesses lived in the vicinity of New York City.

Partisan Politics at the SEC. The circumstances of recent high profile SEC cases are not inconsistent with the hypothesis that partisan politics plays a role in SEC decision making, in both Republican and Democratic administrations.

FEC records show that Stewart has been a major contributor to federal candidates and committees. She has given primarily to Democrats. She was sued during the Bush administration.

Samueli has been a major political donor. FEC records show that he has given a total of $97,500 to federal candidates since 1999. He has given to both Republican and Democratic candidates and committees, including the Presidential campaigns of Sen. John McCain (R-AZ), Sen. Hillary Clinton (D-NY), Sen. Joe Lieberman (D-CT), and Rudy Guiliani. He gave less -- $1,000 -- to George Bush. He was sued during the Bush administration.

Cuban is not a major donor. FEC records show only one recent contribution -- $1,000 to a Silicon Valley Democrat. He was sued by the Bush SEC.

The securities charges against the Wylys are mostly a decade old. The Bush SEC took no action. The Obama SEC now has. If the charges have merit, then there exists the appearance that the Bush SEC may not have brought charges for political reasons -- to protect and reward two of its leading financial benefactors. If the charges lack merit, then there exists the appearance that the Obama SEC may have improperly brought charges for political reasons -- to penalize and deter financial contributions to Republicans.

The House will meet at 9:00 AM for legislative business. See, Rep. Hoyer's schedule for the week of July 26, and schedule for July 30.

The House is scheduled to "complete its business for the July work period". See, Rep. Steny Hoyer's June 18 release.

The Senate will meet at 10:00 AM.

RESCHEDULED FROM JUNE 25. 12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch titled "Bridging the Gap: Broadband 101 -- An Introduction to Broadband Regulation and Policy". The speaker will be Dan Brenner (Hogan Lovells). For more information, contact Micah Caldwell at mcaldwell at fh-law dot com or Mark Brennan at mark dot brennan at hoganlovells dot com. Location: Harris Corporation, Suite 850E, 600 Maryland Ave., SW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rule Making (NPRM) regarding amateur radio use of the allocation at 5 MHz. The FCC adopted this NPRM on May 4, 2010, and released the text on May 7, 2010. It is FCC 10-76 in ET Docket No. 10-98. See, notice in the Federal Register, June 15, 2010, Vol. 75, No. 114, at Pages 33748-33752.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Public Notice [PDF] regarding revisions to FCC Forms 470 and 471. This item is DA 10-1248 in CC Docket No. 02-6.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice [PDF] regarding Dish Network's Application for Certification as a qualified carrier pursuant to the Satellite Television Extension and Localism Act of 2010. See, Section 105 of S 3333 [LOC | WW], signed into law on May 27, 2010. See also, story titled "Obama Signs Satellite TV Bill" in TLJ Daily E-Mail Alert No. 2,089, May 28, 2010. This item is DA 10-1036 in MB Docket No. 10-124.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notice [21 pages in PDF] requesting input and data on mobile wireless competition for the FCC's Fifteenth Annual Report on the State of Competition in Mobile Wireless. This item is DA 10-1234 in WT Docket No. 10-133.

1:00 - 4:00 PM. The Federal Communications Bar Association's (FCC) Young Lawyers Committee will host an event titled "Summer Rooftop BBQ and Pool Party". For more information, contact Justin Faulb at faulb at lojlaw dot com, Evan Morris at evan dot morris at harris dot com, or Mark Brennan at mark dot brennan at hoganlovells dot com. Location: undisclosed.

Extended deadline to submit nominations to the U.S. Patent and Trademark Office's (USPTO) National Medal of Technology and Innovation Nomination Evaluation Committee. See, notice in the Federal Register, May 24, 2010, Vol. 75, No. 99, at Pages 28782-28783.

The House is in recess until September.

The Senate will meet at 2:00 PM.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Phoenix Solutions v. Directv Group, App. Ct. No. 2010-1125. Location: Courtroom 201.

Extended deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding its draft [76 pages in PDF] of its "FY 2010-2015 Strategic Plan". See, notice in the Federal Register, July 9, 2010, Vol. 75, No. 131, at Pages 39493-39494. See also, story titled "USPTO Releases Draft Five Year Plan" in TLJ Daily E-Mail Alert No. 2,102, July 12, 2010. And see, notice of extention.

8:30 - 10:45 AM. Day one of a two day partly closed meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Emerging Technology and Research Advisory Committee. The BIS did not disclose the subject matter of this meeting. See, notice in the Federal Register: July 16, 2010, Vol. 75, No. 136, at Pages 41439-41440. Location: DOC, Hoover Building, Room 3884, 14th Street between Pennsylvania and Constitution Avenues, NW.

12:00 NOON - 1:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced event titled "The New HIPAA/HITECH Regulations: What's New and What Do Those Changes Mean?". See, notice. Prices vary. CLE credit.

1:30 - 5:00 PM. The Federal Aviation Administration's (FAA) RTCA Special Committee 222: Inmarsat Aeronautical Mobile Satellite (Route) Services will meet. See, notice in the Federal Register, July 12, 2010, Vol. 75, No. 132, at Pages 39724-39725. Location: ARINC Building 6, Conference Center Room 6-A1, 2551 Riva Road, Annapolis, MD.

2:30 PM. The Senate Homeland Security and Government Affairs Committee's (SHSGAC) Subcommittee on Federal Financial Management, Government Information, Federal Services, and International Security will hold a hearing titled "Transforming Government Through Innovative Tools and Technology". See, notice. The SHSGAC will webcast this event. Location: Room 342, Dirksen Building.

8:30 - 10:45 AM. Day two of a two day partly closed meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Emerging Technology and Research Advisory Committee. The BIS did not disclose the subject matter of this meeting. See, notice in the Federal Register: July 16, 2010, Vol. 75, No. 136, at Pages 41439-41440. Location: DOC, Hoover Building, Room 3884, 14th Street between Pennsylvania and Constitution Avenues, NW.

9:00 AM - 5:00 PM. Day one of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). The agenda includes "Embedded software (biomedical, ICS) and associated malware", "FISMA Guidance", "National Initiative for Cybersecurity Education (NICE)", "Key Priorities next 2-3 years for NIST in cyber security", "Threat Vector Initiative", "Fedramp", "Cyber Coordinator Briefing", "National Protection and Programs Directorate Briefing", "Security Roadmap", "Initiative 3 Exercise (Einstein)", "S-Cap usage and continuous monitoring", "Authentication and Trust Framework Secure Online Transaction (SOT) Work", and "Assurance of Legitimate Government Outbound Mail". See, notice in the Federal Register, July 13, 2010, Vol. 75, No. 133, at Pages 39920-39921. Location: Marriott Hotel Washington, 1221 22nd St., NW.

10:00 AM. The Senate Judiciary Committee's (SJC) Subcommittee on Terrorism and Homeland Security will hold a hearing titled "Government Preparedness and Response to a Terrorist Attack Using Weapons of Mass Destruction". See, notice. The HJC will webcast this event. Location: Room 226, Dirksen Building.

10:00 - 11:00 AM. The American Enterprise Institute (AEI) will host an event titled "After ECFA: The Present and Future of Cross-Strait Relations". The ECFA is the Economic Cooperation Framework Agreement, a free trade agreement between the People's Republic of China and Taiwan. The speakers will be Shin-Yuan Lai (Minister of Taiwan's Mainland Affairs Council), and Gary Schmitt (AEI). See, notice. Location: AEI, 1150 17th St., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Shum v. Intel, App. Ct. Nos. 2009-1385 and 2010-1109. Location: Courtroom 201.

2:00 - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. See, FCC notice and notice in the Federal Register, July 19, 2010, Vol. 75, No. 137, at Page 41863. Location: FCC, Room 3B516, 445 12th St., SW.

8:30 AM - 5:00 PM. Day two of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, July 13, 2010, Vol. 75, No. 133, at Pages 39920-39921. Location: Marriott Hotel Washington, 1221 22nd St., NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of several judicial nominees: Mary Helen Murguia (to be a Judge of the U.S. Court of Appeals for the 9th Circuit), Edmond E-Min Chang (U.S. District Court, Northern District of Illinois), Leslie Kobayashi (USDC/DHawaii), Denise Casper (USDC/DMass), and Carlton Reeves (USDC/DMiss). See, notice. The SJC will webcast this event. The SJC rarely follows its published agendas. Location: Room 226, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Typhoon Touch v. Dell, App. Ct. No. 2009-1589, an appeal from the U.S. District Court (EDTex) in a patent infringement case regarding touch screen computing technology. Location: Courtroom 201.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Nuance Communications v. ABBYY Software, App. Ct. No. 2010-1100. Location: Courtroom 201.

10:30 AM. The Federal Communications Commission (FCC) may hold an event titled "open meeting". Location: FCC, Commission Meeting Room, 445 12th St., SW.

8:00 AM - 12:30 PM. Day three of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, July 13, 2010, Vol. 75, No. 133, at Pages 39920-39921. Location: Marriott Hotel Washington, 1221 22nd St., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Extreme Network v. Enterasys Network, App. Ct. No. 2009-1325, an appeal from the U.S. District Court (WDWisc) in a patent infringement case regarding computer networks technology. Location: Courtroom 201.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Western Union v. Moneygram, App. Ct. No. 2010-1080, an appeal from the U.S. District Court (WDTex) in a patent infringement case regarding money transfer technology. Location: Courtroom 201.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding license renewals, discontinuance of operations, geographic partitioning, and spectrum disaggregation for certain Wireless Radio Services. The FCC adopted this NPRM on May 20, 2010, and released the text [71 pages in PDF] on May 25, 2010. It is FCC 10-86 in WT Docket No. 10-112. See, notice in the Federal Register, July 7, 2010, Vol. 75, No. 129, at Pages 38959-38974.

7/30. Federal Communications Commission (FCC) Chairman Julius Genachowski named Zac Katz to be his Legal Advisor for wireline communications, international, and internet issues. He was previously Deputy Chief of the FCC's Office of Strategic Planning and Policy Analysis. Before that, he worked in President Obama's White House Counsel's Office. And before that, he worked in the Los Angeles office of the law firm of Munger Tolles & Olson. He will replace Priya Aiyar, who has been appointed Deputy Chief Counsel to the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Oil Drilling. See, FCC release.

7/30. The four member Investigation Subcommittee of the House Committee on Standards of Official Conduct, also known as the House Ethics Committee, released a Statement of Alleged Violation [PDF] that states that there is "substantial reason to believe" 13 allegations of ethical violations by Rep. Charles Rangel (D-NY). Rep. Michael McCaul (R-TX), one of the four, wrote in his statement [PDF] that "It is certainly not lost on any member of this subcommittee on the approval ratings of this body. With only 11% of the public having a positive view of this institution, the pressure is even greater to ensure these proceedings are fair, open, and conducted in a strictly nonpartisan manner. In the mind of the American people Congress has become completely self-serving, and so tone-deaf, its members somehow feel the rules just don't apply to them. We must regain the people's trust." See also, statement [PDF] of Rep. Rangel in response, statement [PDF] by Rep. Zoe Lofgren (D-CA), statement [PDF] of Rep. Joe Bonner (R-AL), and statement [PDF] of Rep. Gene Green (D-TX).

7/29. The Senate Judiciary Committee (SJC) held an executive business meeting at which it held over consideration of several judicial nominees: Mary Helen Murguia (to be a Judge of the U.S. Court of Appeals for the 9th Circuit), Edmond E-Min Chang (U.S. District Court, Northern District of Illinois), Leslie Kobayashi (USDC/DHawaii), Denise Casper (USDC/DMass), and Carlton Reeves (USDC/DMiss). All are again on the agenda for the SJC's meeting of August 5, 2010. See, notice.

7/29. Michael Zubrensky, Senate Judiciary Committee (SJC) counsel to Sen. Richard Durbin (D-IL), is leaving Sen. Durbin's office to become the Deputy Assistant Attorney General (DAAG) in the Department of Justice's (DOJ) Office of Legal Policy (OLP), where he will be responsible for screening prospective judicial nominees.

7/28. President Obama nominated Marina Marmolejo to be a Judge of the U.S. District Court for the Southern District of Texas. See, White House news office release and release.

7/30. The Department of Commerce's (DOC) Bureau of Industry and Security (BIS) published a notice in the Federal Register that announces, describes, recites, and sets the effective date (July 30, 2010) for, its rules changes regarding export licenses and license exceptions for certain foreign made items, including items that are the "direct product of U.S.-origin software or technology that requires a written assurance as a supporting document for a license or as a pre-condition for use of License Exception Technology and Software, Restricted (TSR)". See, Federal Register, July 30, 2010, Vol. 75, No. 146, at Pages 44887-44890.

7/29. The Federal Communications Commission (FCC) released an agenda for its August 5, 2010, event titled "Open Meeting". It contains the same two items that the FCC listed in its tentative agenda, released on July 15, 2010. See, "FCC Announces Agenda for August 5 Meeting" in TLJ Daily E-Mail Alert No. 2,105, July 15, 2010. First, the FCC is scheduled to adopt a Report and Order (R&O) and Further Notice of Proposed Rulemaking (FNPRM) regarding hearing aid compatibility for mobile handsets. This is WT Docket No. 07-250. Second, the FCC is scheduled to adopt a NPRM and Notice of Inquiry (NOI) regarding the use of spectrum for wireless backhaul and other point to point and point to multipoint communications. This is WT Docket Nos. 09-106 and 07-121. This event is scheduled for 10:30 AM in the FCC's Commission Meeting Room.

7/29. Jane Lute, Deputy Secretary of the Department of Homeland Security (DHS), gave a philosophical speech in Las Vegas, Nevada, regarding the nature of cyber space, cyber security, and war. She also said that "We are advancing a trusted identity strategy in cyberspace", and that "We can protect our privacy and our rights".

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