4/5. A two judge panel of the U.S. Court of Appeals (2ndCir) issued its opinion [39 pages in PDF] in Viacom v. YouTube, affirming in part and vacating the judgment of the U.S. District Court (SDNY).

The District Court granted summary judgment to Google/YouTube on all claims in 2010. It held that the Section 512(c) safe harbor of the Digital Millennium Copyright Act (DMCA) requires knowledge or awareness of specific infringing activity. The Court of Appeals affirmed this. However, the Court of Appeals also vacated for several reasons, reversed other holdings of the District Court, and remanded to the District Court for further proceedings.

This opinion neither provides finality in these proceedings, nor clarity on several legal issues.

No party obtained the holding that it had sought. The Court of Appeals holding has many elements, some of which favor Google/YouTube, and some of which favor Viacom and the other content industry plaintiffs. Moreover, on some issues the Court of Appeals rendered a vaguely worded holding, without articulating a legal standard to be applied by the District Court. Interactive web site operators and rights holders still lack notice as to the precise meaning of the DMCA safe harbor.

Summary. The Court of Appeals upheld the District Court's holding that the Section 512(c)(1)(A) safe harbor requires knowledge or awareness of specific infringing activity. This is a victory for Google and other companies that make money from advertising on web sites that enable users to upload the copyrighted works of others.

However, the Court of Appeals vacated the summary judgment order because it also held that "a reasonable jury could find that YouTube had actual knowledge or awareness of specific infringing activity on its website". Although, this only applies to a limited list of uploaded videos.

Also, the Court of Appeals held that the willful blindness doctrine may be applied to demonstrate knowledge or awareness of specific instances of infringement under § 512(c)(1)(A). But, the Court of Appeals did not elaborate on what willful blindness means in the context of uploaded infringing content.

Also, the Court of Appeals held that the District Court erred in interpreting the Section 512(c)(1)(B) "right and ability to control" infringing activity to require "item-specific" knowledge. But again, the Court of Appeals opinion lacks elucidation.

Also, the Court of Appeals affirmed the District Court's holding that three of the challenged YouTube software functions fall within the safe harbor for infringement that occurs "by reason of" storage at the direction of the user, and remand for further fact-finding with respect to a fourth software function.

Therefore, the case now goes back to the District Court, where much fact finding and legal interpretation remains to be done. One might also predict that this case will eventually be back before the Court of Appeals.

DMCA Safe Harbor. This case involves the meaning of the safe harbor provision of the 1998 DMCA, codified at 17 U.S.C. § 512, which Google/YouTube raised as a defense.

Subsection 512(c) pertains to "Information Residing on Systems or Networks At Direction of Users". Subsection 512(c)(1) provides, in full, with emphasis added, as follows:

(1) In general.---A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider---
   (A)
      (i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
      (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
      (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
   (B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
   (C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

Then, subsection 512(c)(2) pertains to service providers' designation of agents to receive notifications of claimed
infringement. Finally, subsection 512(c)(3) lists the requisite elements of claims of infringement.

District Court Proceedings. Viacom and other rights holders filed a complaint [27 pages in PDF] in the U.S. District Court (SDNY) on March 12, 2007, against Google and YouTube alleging violation of copyright law in connection with the operation of a commercial web site that permits users to publish copies of copyrighted works, without license. See, story titled "Viacom Files Complaint Against Google and YouTube Alleging Violations of Copyright Law" in TLJ Daily E-Mail Alert No. 1,551, March 13, 2007.

The six count complaint alleged direct infringement by public performance, direct infringement by public display, direct infringement by reproduction, inducement of copyright infringement, contributory copyright infringement, vicarious copyright infringement.

The other plaintiffs are Comedy Partners, Country Music Television, Inc., Paramount Pictures Corporation, and Black Entertainment Television.

In addition, Premier League, Bourne Co., Cal IV Entertainment, LLC, Cherry Lane Music Publishing Company, Inc., X-Ray Dog Music, Inc., Fédération Française de Tennis, Murbo Music Publishing, Inc., and Stage Three Music (US), Inc. filed a similar complaint in the same District Court, and requested class action status. The two actions were assigned to the same judge. Summary judgment motions were considered together.

The District Court granted summary judgment to Google/YouTube on June 23, 2010. It ruled in its opinion and order [30 pages in PDF] that the activities of Google/YouTube at issue in this action fall within the safe harbor protection of the DMCA.

The District Court wrote that the "critical question is whether the statutory phrases ``actual knowledge that the material or an activity using the material on the system or network is infringing,´´ and ``facts or circumstances from which infringing activity is apparent´´ in § 512(c)(1)(A)(i) and (ii) mean a general awareness that there are infringements (here, claimed to be widespread and common), or rather mean actual or constructive knowledge of specific and identifiable infringements of individual items." (Parentheses in original.)

The District Court held that "the phrases `actual knowledge that the material or an activity´ is infringing, and `facts or circumstances´indicating infringing activity, describe knowledge of specific and identifiable infringements of particular individual items." The District Court added that mere knowledge of the prevalence of such activity in general is not enough.

The District Court also rejected a willful blindness theory of knowledge.

The District Court also held that Google/YouTube did not have a "right and ability to control" infringing activity within the meaning of Subsection 512(c)(1)(B).

See, story titled "District Court Grants Summary Judgment to YouTube in Copyright Infringement Case" in TLJ Daily E-Mail Alert No. 2,100, June 23, 2010.

The plaintiffs brought the present appeals to the 2nd Circuit.

Court of Appeals: 512(c)(1)(A) and Actual Knowledge. This subsection provides that "A service provider shall not be liable ... for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider ... does not have actual knowledge that the material or an activity using the material on the system or network is infringing".

The Court of Appeals wrote that the meaning of knowledge in this subsection is the most important question upon appeal.

The Court of Appeals wrote that "we are persuaded that the basic operation of § 512(c) requires knowledge or awareness of specific infringing activity", and "actual knowledge or awareness of facts or circumstances that indicate specific and identifiable instances of infringement will disqualify a service provider from the safe harbor".

This affirms the District Court on this question.

However, the District Court applied this holding to the facts before the court, found no dispute, and granted summary judgment to Google/YouTube. Rule 56 of the Federal Rules of Civil Procedure (FRCP) provides that "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."

The Court of Appeals vacated the summary judgment order "because a reasonable jury could conclude that YouTube had knowledge or awareness under § 512(c)(1)(A) at least with respect to a handful of specific clips". It remanded the case to the District Court "to determine whether YouTube had knowledge or awareness of any specific instances of infringement corresponding to the clips-in-suit".

The Court of Appeals elaborated that surveys by plaintiffs and Google/YouTube that indicated that a high percentage of uploaded videos were infringing "are insufficient, standing alone, to create a triable issue of fact as to whether YouTube actually knew, or was aware of facts or circumstances that would indicate, the existence of particular instances of infringement".

However, the Court of Appeals noted that the summary judgment evidence included "internal YouTube communications that do refer to particular clips or groups of clips" that were infringing. Hence, "Upon a review of the record, we are persuaded that the plaintiffs may have raised a material issue of fact regarding YouTube's knowledge or awareness of specific instances of infringement."

If upon remand the plaintiffs were to prevail as to these clips, they would only obtain damages based upon these enumerated infringing clips.

The Court of Appeals also held that "The willful blindness doctrine may be applied, in appropriate circumstances, to demonstrate knowledge or awareness of specific instances of infringement under § 512(c)(1)(A)". It remanded the case to the District Court "to consider the application of the willful blindness doctrine in the first instance".

Willful blindness is a common law doctrine, not referenced by the DMCA. It has a long history, but prior to these cases, it had not been considered in the context of the DMCA.

The Court of Appeals held that the DMCA does not abrogate the willful blindness doctrine. It noted that Section 512(m) provides that the DMCA safe harbor protection cannot be conditioned on affirmative monitoring by a service provider, but this is not the same thing as willful blindness.

However, the Court of Appeals left the District Court and parties with little guidance as to what willful blindness means in the context of uploading of infringing works.

Court of Appeals: 512(c)(1)(B) and Right and Ability to Control. This subsection provides that "A service provider shall not be liable ... for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider ... does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity".

The Court of Appeals wrote that the right and ability to control infringing activity means more than "the ability to remove or block access to materials posted on a service provider’s website".

However, the opinion is unclear regarding what more is required.

The Court of Appeals held that the District Court "erred by requiring ``item-specific´´ knowledge of infringement in its interpretation of the ``right and ability to control´´ infringing activity under 17 U.S.C. § 512(c)(1)(B)". It therefore reversed the District Court on this issue, and remanded the case "for further fact-finding by the District Court on the issues of control and financial benefit".

Public Knowledge Reaction. Sherwin Siy of the Public Knowledge (PK) stated in a a short release that "We are pleased with the Appeals Court ruling. The Court upheld the basic principles of the Digital Millennium Copyright Act (DMCA). Crucially, the Court rejected Viacom's attempt to create a new duty of those hosting content to monitor actively for infringement in order to qualify for the law's safe-harbor provisions. The Court upheld the need for knowledge of specific instances of infringement in the DMCA, and that a general awareness of possible infringement is not sufficient."

He elaborated in a longer release that "Despite the Digital Millennium Copyright Act's (DMCA) clear statements that services don't need to monitor, the content companies keep trying to pick away at other components of the law to work their way around it."

The PK filed an amicus curiae brief with the Court of Appeals. See, story titled "Public Knowledge Urges Court of Appeals Not to Require Filtering As Prerequisite for DMCA Safe Harbor" in TLJ Daily E-Mail Alert No. 2,219, April 7, 2011.

Case Information. The two District Court cases are Viacom International, Inc. et al. v. YouTube, Inc. et al., D.C. No. 07 Civ 2130 (LLS), and Football Association Premier League Limited, et al. v. YouTube, Inc., D.C. No. 07 Civ. 3582 (LLS), both in the U.S. District Court for the Southern District of New York, Judge Louis Stanton presiding.

The Court of Appeals cases are Viacom International, Inc. et al. v. YouTube, Inc., et al., App Ct. No. 10-3270-cv. and Football Association Premier League Limited v. YouTube, Inc., et al., App. Ct. No. 10-3342-cv.

A two judge panel comprised of Judge Jose Cabranes and Judge Debra Ann Livingston affirmed in part, vacated in part, and remanded the case to the District Court. The late Judge Roger Miner had been assigned to the panel, but died on February 18, 2012. Judge Cabranes wrote the opinion of the Court.

More TLJ Coverage.

• "PFF Paper Predicts Reversal of Viacom v. YouTube DMCA Judgment" in TLJ Daily E-Mail Alert No. 2,119, August 5, 2010.
• "Viacom Files Appeal Brief in YouTube Copyright Infringement Case" in TLJ Daily E-Mail Alert No. 2,172, December 8, 2010.
• "MPAA Files Amicus Brief in Viacom v. YouTube" in TLJ Daily E-Mail Alert No. 2,176, December 12, 2010.
• "NMPA Settles with YouTube" in TLJ Daily E-Mail Alert No. 2,293, August 25, 2011.

4/3. The U.S. China Economic and Security Review Commission, which is also known as the USCC, released a report titled "Indigenous Weapons Development in China's Military Modernization". One section addresses the People's Republic of China's (PRC) anti-satellite missile program, and other technologies for destroying or disrupting US satellites.

The report concludes that "China could execute capabilities that undermine or complicate U.S. access to space in the event of a conflict". Moreover, this "has immense strategic implications for U.S. space capabilities. The reliance of the United States on space assets for intelligence, surveillance, and reconnaissance; communication; navigation; and positioning creates a particular vulnerability to attacks".

It discusses a PRC test in 2007 in which an anti-satellite, or ASAT, missile destroyed a PRC weather satellite.

The report also states that "China's intended approach is to continue to develop ground-based kinetic kill vehicles (e.g., the SC-19 ASAT), as well as lasers and a variety of jammers and other electromagnetic spectrum disruption hardware." (Parentheses in original.)

The report also states the the PRC "is also simultaneously attempting -- sometimes in concert with Russia -- to limit the space power of the United States and other potential competitor nations by repeatedly proposing arms control agreements that would limit the ``weaponization of and an arms race in outer space´´ by restricting space-based platforms, but that would not regulate ground-based anti-space platform capabilities."

Also, "Increased military expenditures catalyzed by hypothetical Taiwan scenarios, conflicting territorial claims, and geopolitical competition in the Asia-Pacific region contribute to the speed of procurement, development -- and, ultimately, field deployment -- of more advanced indigenous Chinese weapons systems."

This report focuses on the military threat. However, it also notes that the PRC's 2007 ASAT missile test was "history's greatest single instance of human-created space debris".

The report also addresses the PRC's development of submarines, stealth fighter jets, and anti-ship ballistic missiles.

4/5. The Office of the U.S. Trade Representative (OUSTR) released a report [17 pages in PDF] titled "2012 Section 1377 Review On Compliance with Telecommunications Trade Agreements".

4/5. The U.S. Patent and Trademark Office (USPTO) announced in a release that the USPTO and the Hungarian Intellectual Property Office (HIPO) signed a Memorandum of Understanding making permanent the Patent Prosecution Highway (PPH) program between the two offices. The USPTO also explained that under the PPH program, "an applicant receiving a ruling from the Office of First Filing (OFF) that at least one claim in an application filed in the OFF is patentable may request that the Office of Second Filing (OSF) fast track the examination of corresponding claims in corresponding applications filed in the OSF."

4/5. The National Telecommunications and Information Administration (NTIA) released another quarterly report on the Broadband Technology Opportunities Program (BTOP), the $4.7 Billion grant program funded by HR 1 [LOC | WW], the huge spending bill enacted in February of 2009.

4/4. President Obama signed into law S 2038 [LOC | WW], the "Stop Trading on Congressional Knowledge Act of 2012", or "STOCK Act". See, White House news office release. It is now Public Law No. 112-105.

The House will not meet on the week of Monday, April 2, through Friday, April 6, or on the week of Monday, April 9, through Friday, April 13, except for pro forma sessions.

The Senate will not meet on the week of Monday, April 2, through Friday, April 6, or on the week of Monday, April 9, through Friday, April 13, except for pro forma sessions.

Day three of a three day conference and exhibition titled "Federal Office System Exposition" (FOSE). There will be numerous panels and workshops on April 3 and 4 pertaining to mobile government, cyber security, and cloud computing and virtualization. See, schedule. Location: Washington Convention Center, 801 Mt. Vernon Place, NW.

8:00 AM - 6:00 PM. Day one of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Mathematical and Physical Sciences. See, notice in the Federal Register, Vol. 77, No. 53, Monday, March 19, 2012, at Page 16076, and forthcoming correction notice. Location: NSF, Room 1235, 4201 Wilson Boulevard, Arlington, VA.

9:00 AM - 5:15 PM. Day one of a two day meeting of the Department of Commerce's (DOC) Science Advisory Board (SAB). See, notice in the Federal Register, Vol. 77, No. 53, Monday, March 19, 2012, at Pages 15996-15997. Location: Washington Plaza Hotel, 10 Thomas Circle, NW.

9:00 AM - 6:00 PM. Day one of a two day meeting to the National Science Foundation's (NSF) Advisory Committee for Mathematical and Physical Sciences, the scope of which includes computer science. See, notice in the Federal Register, Vol. 77, No. 57, Friday, March 23, 2012, at Page 17102. Location: Room 1235, NSF, 4201 Wilson Boulevard, Arlington, VA.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Picture Patents v. Aeropostale, App. Ct. No. 2011-1558. Panel J. Location: Courtroom 203.

12:00 NOON - 1:30 PM. The National Economics Club (NEC) will host a lunch. Andrew Sherman (Jones Day) will give a speech titled "Harvesting Intangible Assets: Making the Most of Intellectual Property Management". Open to the public. Prices vary. Location: National Federation of Independent Business (NFIB), Suite 200, 1201 F St., NW.

1:00 - 2:30 PM EST. The American Bar Association (ABA) will host a webcast panel discussion titled "Willful Infringement Before and After Powell v. Home Depot". See, November 14, 2011, opinion of the U.S. Court of Appeals (FedCir) in Powell v. Home Depot. The speakers will be Shawn Cage (Buchanan Ingersoll & Rooney), Alissa Lipton (Finnegan Henderson), and Edward Mathias (Axinn Veltrop). Prices vary. CLE credits. See, notice.

Deadline to submit initial comments to the Federal Communications Commission's (FCC) Consumer and Governmental Affairs Bureau (CGAB) regarding whether certain docketed FCC proceedings should be terminated as dormant. See, February 15, 2012, Public Notice (DA 12-220 in CG Docket No. 12-39), and notice in the Federal Register, Vol. 77, No. 44, Tuesday, March 6, 2012, at Pages 13322-13323.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding jurisdictional separations, the process by which incumbent local exchange carriers (ILECs) apportion regulated costs between the intrastate and interstate jurisdictions. The FCC once again proposes to extend the current freeze, through June 30, 2014. This item is FCC 12-27 in CC Docket No. 80-286. See, notice in the Federal Register, Vol. 77, No. 56, Thursday, March 22, 2012, at Pages 16900-16902.

Good Friday.

Passover begins at sundown.

8:00 AM - 3:00 PM. Day two of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Mathematical and Physical Sciences. See, notice in the Federal Register, Vol. 77, No. 53, Monday, March 19, 2012, at Page 16076, and forthcoming correction notice. Location: NSF, Room 1235, 4201 Wilson Boulevard, Arlington, VA.

9:00 AM - 3:00 PM. Day two of a two day meeting to the National Science Foundation's (NSF) Advisory Committee for Mathematical and Physical Sciences, the scope of which includes computer science. See, notice in the Federal Register, Vol. 77, No. 57, Friday, March 23, 2012, at Page 17102. Location: Room 1235, NSF, 4201 Wilson Boulevard, Arlington, VA.

9:15 AM - 2:30 PM. Day two of a two day meeting of the Department of Commerce's (DOC) Science Advisory Board (SAB). See, notice in the Federal Register, Vol. 77, No. 53, Monday, March 19, 2012, at Pages 15996-15997. Location: Washington Plaza Hotel, 10 Thomas Circle, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Wi-Lan v. LG Electronics, App. Ct. No. 2011-1626. Panel K. Location: Courtroom 201.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Apple v. Samsung, App. Ct. No. 2011-1105. Panel L. Location: Courtroom 402.

10:00 AM - 12:00 PM. The Center for Strategic and International Studies (CSIS) will host an event titled "A Conversation with Six Former USTRs: Taking Stock and Assessing Priorities for the 2012 Trade Agenda". The speakers will be Susan Schwab, Charlene Barshefsky, Michael Kantor, Carla Hills, Clayton Yeutter, and William Brock. See, notice. Location: CSIS, 1800 K St., NW.

5:00 PM. Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding (1) potential revocation of competitive need limitations (CNL) waivers, (2) possible de minimis CNL waivers, and (3) possible redesignations of articles currently not eligible for GSP benefits because they previously exceeded the CNL thresholds. See, notice in the Federal Register, Vol. 77, No. 52, Friday, March 16, 2012, at Pages 15839-15841.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-53 Rev. 4 [375 pages in PDF], titled "Security and Privacy Controls for Federal Information Systems and Organizations".

Easter.

12:00 NOON - 1:30 PM. The American Bar Association (ABA) will host an on site and teleconferenced panel discussion titled "Navigating the Landmines of Data Security Breaches: Practical Lessons Learned in Unearthing, Disarming, and Avoiding Cyber Threats and Digital Disasters". The speakers will be Lucy Thomson (CSC), Kimberly Peretti (Price Waterhouse Coopers), Robin Campbell (Crowell & Moring), and David Bodenheimer (Crowell & Moring). The price is $15. No CLE credits. See, notice. Location: Crowell & Moring, 1001 Pennsylvania Ave., NW.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its request for comments regarding its practice guide for the proposed trial rules to advise the public on the general framework of the proposed regulations, including the structure and times for taking action in each of the new proceedings. See, notice in the Federal Register, Vol. 77, No. 27, Thursday, February 9, 2012, at Pages 6868-6879.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking regarding rules of practice to implement the provisions of the Leahy Smith America Invents Act that provide for trials before the Patent Trial and Appeal Board (PTAB). See, notice in the Federal Register, Vol. 77, No. 27, Thursday, February 9, 2012, at Pages 6879-6914.

8:30 AM - 5:00 PM. The American Intellectual Property Law Association (AIPLA), Intellectual Property Owners Association (IPO), and American Bar Association (ABA) will host an event titled "USPTO Design Day". Free. See, notice and registration page. Location: Madison Auditorium, USPTO, 600 Dulaney St., Alexandria, VA.

1:00 - 2:30 PM EST. The American Bar Association (ABA) will host a webcast panel discussion titled "Piracy Update: IPR Center Strategies and Successes". The speakers will be Lev Kubiak (Director of the National Intellectual Property Rights Coordination Center) and Alexandra Darraby (The Art Law Firm). Prices vary. CLE credits. See, notice.

CANCELLED. 6:00 - 7:30 PM. The Federal Communications Bar Association's (FCBA) Commendations and Acknowledgements and Young Lawyers Committees will host an event titled "Mentoring Panel and Networking Reception: Reflections on a Career in Communications Law". Location: Drinker Biddle & Reath, 2nd floor, 1500 K St., NW.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking regarding creation, pursuant to the Leahy Smith America Invents Act, of a new derivation proceeding to be conducted before the Patent Trial and Appeal Board (PTAB). See, notice in the Federal Register, Vol. 77, No. 28, Friday, February 10, 2012, at Pages 7028-7041.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking regarding creation, pursuant to the Leahy Smith America Invents Act, of a new inter partes review proceeding to be conducted before the Patent Trial and Appeal Board (PTAB). See, notice in the Federal Register, Vol. 77, No. 28, Friday, February 10, 2012, at Pages 7041-7060.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking regarding creation, pursuant to the Leahy Smith America Invents Act, of a new post grant review proceeding to be conducted before the Patent Trial and Appeal Board (PTAB). See, notice in the Federal Register, Vol. 77, No. 28, Friday, February 10, 2012, at Pages 7060-7080.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking regarding creation, pursuant to the Leahy Smith America Invents Act, of a new transitional post grant review proceeding for covered business method patents to be conducted before the Patent Trial and Appeal Board (PTAB). See, notice in the Federal Register, Vol. 77, No. 28, Friday, February 10, 2012, at Pages 7080-7095.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking regarding regulations for determining whether a patent is for a technological invention in a transitional post grant review proceeding for covered business method patents. See, notice in the Federal Register, Vol. 77, No. 28, Friday, February 10, 2012, at Pages 7095-7108.

12:00 NOON - 6:00 PM. Day one of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Engineering. See, notice in the Federal Register, Vol. 77, No. 61, Thursday, March 29, 2012, at Page 19036. Location: NSF, 4201 Wilson Boulevard, Suite 1235, Arlington, VA.

12:30 - 2:00 PM. The Federal Communications Bar Association's (FCBA) Homeland Security and Emergency Communications and Engineering and Technical Practice Committees will host a brown bag lunch titled "An Interoperable Public Safety Broadband Network: The Challenge of Standards Development". The speakers will be Dereck Orr (NTIA's Public Safety Communications Research Program), Jeffrey Bratcher (NTIA/PSCRP), Jesus Trujillo Gomez (Cisco Systems), Jean-Paul Emard (Alliance for Telecommunications Industry Solutions), Thomas Hengeveld (Harris Corp.), Ajit Kahaduwe (Nokia Siemens Networks), and Vint Cerf (Google). For more information, contact Gina Harrison at 202-482-2695 or rharrison at ntia dot doc dot gov. Location: National Association of Broadcasters, 1771 N St., NW.

12:30 - 2:00 PM. The DC Bar Association's Media Law Committee will host a closed brown bag lunch meeting to discuss media and communications law developments. Free. No CLE credits. Reporters are barred from covering this event. For more information, contact the DC Bar at 202-626-3463 or Kurt Wimmer (Covington & Burling) at kwimmer at cov dot com or Jim McLaughlin at mclaughlinj at washpost dot com. See, notice. Location: Covington & Burling, 1201 Pennsylvania Ave., NW.

6:00 - 9:15 PM. The DC Bar Association will host an event titled "Open Source Licensing: Legal Strategies and Risks". The speakers will be Victoria Hall (solo practice), Daniel Berlin (Google), and Jay Westermeier (Finnegan Henderson). CLE credits. The price to attend ranges from $89 to $129. See, notice. For more information, call 202-626-3488. The DC Bar has a history of barring reporters from its events. Location: DC Bar Conference Center, 1101 K St., NW.

Deadline for communications carriers, handset manufacturers, and operating system developers to respond to letters sent by House Commerce Committee (HCC) Democrats regarding regarding what they are doing to combat theft of smart phones, and protect consumers from theft of personal and financial information. See, story titled "House Commerce Committee Democrats Question Companies Regarding Smart Phone Theft" in TLJ Daily E-Mail Alert No. 2,356, March 25, 2012.

8:00 AM - 2:00 PM. Day two of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Engineering. See, notice in the Federal Register, Vol. 77, No. 61, Thursday, March 29, 2012, at Page 19036. Location: NSF, 4201 Wilson Boulevard, Suite 1235, Arlington, VA.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Grand Innovation Challenges of the 21st Century". The speakers will be Thomas Kalil (Deputy Director for Policy of the White House Office of Science and Technology Policy, Rick Valencia (Qualcomm Life), and Robert Atkinson (ITIF), See, notice. Location: ITIF/ITIC: Suite 610, 1101 K St., NW.

5:30 - 2:00 PM. The DC Bar Association will host a program titled "Ethics and E-Discovery Searches". The speakers will be Ellen Pyle (McDermott Will & Emery), Bennett Borden (Williams Mullen), and Maura Grossman (Wachtell Lipton). The price to attend ranges from $89 to $129. CLE credits. See, notice. For more information, call 202-626-3488. The DC Bar has a history of barring reporters from its events. Location: DC Bar Conference Center, 1101 K St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding jurisdictional separations, the process by which incumbent local exchange carriers (ILECs) apportion regulated costs between the intrastate and interstate jurisdictions. The FCC once again proposes to extend the current freeze, through June 30, 2014. This item is FCC 12-27 in CC Docket No. 80-286. See, notice in the Federal Register, Vol. 77, No. 56, Thursday, March 22, 2012, at Pages 16900-16902.

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