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Tuesday, April 2, 2013, Alert No. 2,544.
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2nd Circuit Affirms in Aereo Copyright Cases

4/1. The U.S. Court of Appeals (2ndCir) issued its divided opinion [62 pages in PDF] in WNET v. Aereo and ABC v. Aereo affirming the order of the U.S. District Court (SDNY) denying Aereo's motion for a preliminary injunction.

The majority held that Aereo's service, which captures, stores, and almost immediately retransmits broadcasters' programming, without license, to its own customers, for a fee, via a multitude of antennas, is not a public performance with the meaning of the Copyright Act, and hence, does not infringe the exclusive rights of broadcasters.

The dissent argued that Aereo's system is a sham, functionally equivalent to a cable system, constructed solely to exploit a perceived loophole in the Copyright Act, that must be viewed as a public performance in violation of the exclusive rights of broadcasters.

Outline of this Article.

    Proceedings Below.
    Judge Droney's Majority Opinion.
    Judge Chin's Dissenting Opinion.
    Impending Circuit Split.
    More Case Information.

Introduction. The District Court issued its opinion [52 pages in PDF] in WNET v. Aereo and ABC v. Aereo on July 11, 2012.

This is a pair of copyright infringement cases involving the Aereo online retransmission service. The two cases are substantially similar, but not consolidated. The District Court and Appeals Court have considered the two cases simultaneously, and issued opinions that span both cases.

The key issue in these cases is how to apply broadcasters' public performance right to Aereo's service. While the public performance right is not important for many types of works subject to copyright, it is critical for the holders of entertainment video programming.

Both the District Court and the Court of Appeals held, relying upon the Second Circuit's 2008 opinion in Cartoon Network v. CSC Holdings, that Aereo's service, since it retransmits using a large number of antennas, is not a public performance, and thus is not an infringement of broadcasters' exclusive right to public performance.

Statute. 17 U.S.C. § 106 sets forth the exclusive rights of copyright. Subsection 106(4) provides that a copyright owner has the exclusive right "to perform the copyrighted work publicly".

17 U.S.C. § 101 provides pertinent definitions, written before development of the IT based technologies at issue in this and other recent cases. The term "perform" means "to recite, render, play, dance, or act it, either directly or by means of any device or process".

The term "publicly" means to "to perform ... it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of family and its social acquaintances is gathered" or "to transmit or otherwise communicate a performance ... of the work to a place" specified by the previous clause, "or to the pubic, by means of any device or process, whether the members of the public capable of receiving the performance ... receive it in the same place or in separate places and at the same time or at different times".

Proceedings Below. WNET and other broadcasters filed their original complaint [36 pages in PDF] in the U.S. District Court (SDNY) on March 1, 2012, alleging copyright infringement by Aereo.

The WNET plaintiffs alleged that Aereo offers an unlicensed subscription service that streams television programming over the internet to paying subscribers' computers, smart phones and tablets in violation of the broadcaster's exclusive rights of copyright (pubic performance right and reproduction right).

ABC and other broadcasters filed a second complaint (alleging violation of reproduction, distribution, and public performance rights) against Aereo on March 12, 2012, in the same District Court.

The District Court issued an opinion [PDF] on July 11 denying the plaintiffs' motions for a preliminary injunction on the public performance right claim. That opinion is also reported at 874 F. Supp. 2d 373.

The District Court relied on the 2nd Circuit's 2008 opinion in Cartoon Network v. CSC Holdings, 536 F.3d 121. See, story titled "2nd Circuit Reverses in Remote Storage DVR Copyright Case" in TLJ Daily E-Mail Alert No. 1,806, August 5, 2008.

Judge Denny Chin wrote the District Court opinion that was overturned by that 2008 opinion. He is now a Court of Appeals Judge. He wrote the dissent in the present case.

That opinion is also sometimes referred to as the "Cablevision" opinion, because the defendant, Cablevision Systems Corporation (CSC), provided the Remote Storage Digital Video Recorder (RS-DVR) system at issue in that case. The Court of Appeals held that that DVR service does not infringe the rightholders' (Cartoon Network and others) exclusive rights of reproduction and public performance.

Judge Droney's Majority Opinion. Broadcasters in both cases brought the present appeals. The 2nd Circuit considered the two cases together, and ordered expedited briefing and oral argument.

Broadcasters argued that reliance upon the Cablevision opinion is misplaced, that the Aereo service provides public performance, and that it violates their exclusive rights to provide public performances. Aereo urged reliance upon the Cablevision opinion, and affirmance of the District Court. See, story titled "2nd Circuit Hears Oral Argument in Aereo Case" in TLJ Daily E-Mail Alert No. 2,482, December 4, 2012.

Judge Christopher Droney wrote the opinion of the Court, in which Judge Gleason joined.

Judge Droney wrote that "Aereo transmits to its subscribers broadcast television programs over the internet for a monthly subscription fee. Aereo is currently limited to subscribers living in New York City and offers only New York area channels. It does not have any license from copyright holders to record or transmit their programs."

"The details of Aereo’s system are best explained from two perspectives. From its subscribers’ perspective, Aereo functions much like a television with a remote Digital Video Recorder (``DVR´´) and Slingbox. Behind the scenes, Aereo’s system uses antennas and a remote hard drive to create individual copies of the programs Aereo users wish to watch while they are being broadcast or at a later time. These copies are used to transmit the programs to the Aereo subscriber."

"The outcome of this appeal turns on whether Aereo’s service infringes the Plaintiffs’ public performance right under the Copyright Act."

He continued that the "Plaintiffs claim that Aereo's transmissions of broadcast television programs while the programs are airing on broadcast television fall within the plain language of the Transmit Clause and are analogous to the retransmissions of network programing made by cable systems, which the drafters of the 1976 Copyright Act viewed as public performances. They therefore believe that Aereo is publicly performing their copyrighted works without a license."

But, Judge Droney wrote, there is the Cablevision opinion.

He stated that "Cablevision's holding that Cablevision’s transmissions of programs recorded with its RS-DVR system were not public performances rested on two essential facts. First, the RS-DVR system created unique copies of every program a Cablevision customer  wished to record. ... Second, the RS-DVR’s transmission of the recorded program to a particular customer was generated from that unique copy; no other customer could view a transmission created by that copy. Id. Given these two features, the potential audience of every RS-DVR transmission was only a single Cablevision subscriber, namely the subscriber who created the copy. And because the potential audience of the transmission was only one Cablevision subscriber, the transmission was not made ``to the public.´´"

He reasoned that "The same two features are present in Aereo's system. When an Aereo customer elects to watch or record a program using either the ``Watch´´ or ``Record´´ features, Aereo's system  creates a unique copy of that program on a portion of a hard drive assigned only to that Aereo user. And when an Aereo user chooses to watch the recorded program, whether (nearly) live or days after the program has aired, the transmission sent by Aereo and received by that user is generated from that unique copy. No other Aereo user can ever receive a transmission from that copy. Thus, just as in Cablevision, the potential audience of each Aereo transmission is the single user who requested that a program be recorded."

Judge Droney then proceeded to reject the plaintiffs' other arguments, including that discrete transmissions should be aggregated to determine whether they are public performances, and that the Aereo system is functionally equivalent to a cable television provider.

And, he declined to overturn the Cablevision opinion.

Judge Chin's Dissent. Judge Denny Chin wrote in dissent that "by transmitting (or retransmitting) copyrighted programming to the public without authorization, Aereo is engaging in copyright infringement in clear violation of the Copyright Act." (Parentheses in original.)

He explained that Aereo's technology platform is "a sham".

"The system employs thousands of individual dime-sized antennas, but there is no technologically sound reason to use a multitude of tiny individual antennas rather than one central antenna; indeed, the system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law."

He continued that "After capturing the broadcast signal, Aereo makes a copy of the selected program for each viewer" using a multitude of antennas. However, "These are very much public performances."

Judge Chin did not argue that Cablevision should be overturned. However, he argued that it is distinguishable.

Judge Chin wrote that "there are critical differences between Cablevision and this case. Most significantly, Cablevision involved a cable company that paid statutory licensing and retransmission consent fees for the content it retransmitted, while Aereo pays no such fees.

Moreover, wrote Judge Chin, "the subscribers in Cablevision already had the ability to view television programs in real-time through their authorized cable subscriptions, and the remote digital video recording service at issue there was a supplemental service that allowed subscribers to store that authorized content for later viewing. In contrast, no part of Aereo's system is authorized. Instead, its storage and time-shifting functions are an integral part of an unlicensed retransmission service that captures broadcast television programs and streams them over the Internet."

Hence, "Aereo is doing precisely what cable companies, satellite television companies, and authorized Internet streaming companies do -- they capture over-the-air broadcasts and retransmit them to customers -- except that those entities are doing it legally, pursuant to statutory or negotiated licenses, for a fee."

He concluded that "the majority elevates form over substance. Its decision, in my view, conflicts with the text of the Copyright Act, its legislative history, and our case law."

Judge Chin has substantially experience with copyright law, both as a trial court judge and as an appeals court judge.

He presided in the trial court in Google books cases brought by publishers and the Authors Guild, in which he rejected the proposed class action settlement.

He also wrote the 2007 opinion of the District Court in Cartoon Network v. CSC Holdings, 478 F. Supp. 2d 607. Although, the Court of Appeals reversed in its 2008 opinion [PDF].

He also wrote the opinion [38 pages in PDF] of the Court of Appeals in WPIX v. ivi, holding that a business that streams copyrighted broadcast TV programming over the internet without consent is not a "cable system" within the meaning of 17 U.S.C. § 111 that is entitled to a compulsory license. In that opinion, released on August 27, 2012, Judge Droney joined in the unanimous opinion. See also, story titled "2nd Circuit Rules Internet Streaming of TV Programming is Not a Cable Service" in TLJ Daily E-Mail Alert No. 2,439, September 3, 2012.

Impending Circuit Split. The just released opinion of the 2nd Circuit is in conflict with a District Court opinion in the 9th Circuit. That other case is on appeal to the 9th Circuit. If the 9th Circuit affirms, then two circuits will be in conflict.

Circuit splits are a key criteria for the Supreme Court in deciding whether or not to grant petitions for writ of certiorari.

The defendant in that other case is different, but it also captured and retransmitting broadcast programming using a multitude of mini antennas. The U.S. District Court (CDCal) rejected its argument that this is not a public performance.

Thus, a District Court in another circuit has reached the opposite conclusion in a case involving the same legal claim and very similar facts. See also, story titled "District Court in California Enjoins Aereokiller" in TLJ Daily E-Mail Alert No. 2,500, December 31, 2012.

That other case is Fox Television Stations, Inc., et al. v. Aereokiller, LLC, et al., U.S. District Court for the Central District of California, D.C. No. 2-12:cv-06921-GW, Judge George Wu presiding. It is one of two very similar actions pending in the same court. The other is D.C. No. 2-12:cv-06950.

Reaction. Dennis Wharton of the National Association of Broadcasters (NAB) stated in a release that the "NAB is disappointed with the Second Circuit's 2-1 decision allowing Aereo to continue its illegal operations while broadcasters' copyright actions are heard. We agree with Judge Chin's vigorous dissent and, along with our members, will be evaluating the opinions and options going forward."

Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "This case was not just about broadcast television; it was a test of the legitimacy of the cloud computing industry. Today, the Second Circuit agreed with us that users should be able to access their own, lawfully-acquired content in the cloud without the fear of being branded pirates". The CCIA and Internet Association (IA) also filed an amicus curiae brief in support of Aereo.

The Public Knowledge (PK) stated in a release that this opinion is a "victory for consumer choice and video innovation". The PK, Electronic Frontier Foundation (EFF), and Consumer Electronics Association (CEA) also filed a amicus curiae brief in support of Aereo.

More Case Information. This opinion was issued in two cases, American Broadcasting Company, Inc., et al. v. Aereo, Inc., and WNET, et al.  v. Aereo, Inc., U.S. Court of Appeals for the 2nd Circuit, App. Ct. Nos. 12-2807 and 12-2786, appeals from the U.S. District Court for the Southern District of New York, D.C. Nos. 1:12-cv-01540-AJN and 1:12-cv-01543-AJN, Judge Alyson Nathan presiding. The District Court has not consolidated the two cases.

Judge Christopher Droney wrote the opinion of the Court of Appeals, in which Judge John Gleeson (USDC/EDNY sitting by designation) joined. Judge Denny Chin wrote a dissenting opinion.

Both Judge Droney and Judge Chin were appointed to the District Court by former President Clinton, and elevated to the Court of Appeals by President Obama. Judge Droney served in the District of Connecticut, while Judge Chin served in the Southern District of New York.

See also, stories titled "Obama Nominates Judge Chin to 2nd Circuit" in TLJ Daily E-Mail Alert No. 1,998, October 7, 2009, and "Obama Nominates Droney for 2nd Circuit" in TLJ Daily E-Mail Alert No. 2,233, May 5, 2011.

Judge Gleason was appointed to the District Court by former President Clinton.

The law firm of Jenner & Block represented the WNET plaintiffs. The law firm of Debevoise & Plimpton represented the ABC plaintiffs. The law firms of Winston & Strawn and Constantine Cannon represented Aereo.

The Court of Appeals received numerous amicus curiae briefs.

Walter Addresses SEC's Failure to Write Crowd Funding Rules

4/1. Elisse Walter of the Securities and Exchange Commission (SEC) gave a speech at the George Washington University in which she addressed online pump and dump schemes, and the SEC's refusal to comply with it statutory mandate to write implementing rules to facilitate crowd funding.

Walter holds one of the Democratic seats on the Commission. President Obama has designated her Chairman, while the Senate considers his nomination of Mary Jo White to be the next Chairman. The previous Chairman was Mary Schapiro.

Crowd Funding and the JOBS Act. Walter mentioned the "JOBS Act",  and acknowledged that the "SEC is charged with implementing" it.

The 112th Congress enacted HR 3606 [LOC | WW], the "Jumpstart Our Business Startups Act" or "JOBS Act". President Obama signed it into law on April 5, 2012.

Its purpose is to incent the creation of new companies, and facilitate their raising of capital, particularly in the technology sector. Title III of the JOBS Act is titled the "Capital Raising Online While Deterring Fraud and Unethical Non-Disclosure Act of 2012" or "CROWDFUND Act".

The CROWDFUND Act requires that the SEC write implementing regulations "Not later than 270 days after the date of enactment of this Act". However, the SEC has failed to comply with this statutory requirement.

Walter said that "Some say it could lead to rampant fraud", and that "investors afraid of financial fraud simply won't contribute the capital entrepreneurs need".

It was a long speech in which she frequently lauded the excellent work for SEC regulators, and barely mentioned the statutes that it is tasked with enforcing and implementing.

Elisse WalterWalter (at right) stopped short of asserting that the SEC is not bound by an Act of Congress.

Online Pump and Dump Schemes. Walter said that "One emerging area of concern ... is the use of social media to support fraudulent schemes -- bringing what are called ``boiler room´´ scams into chat rooms, Facebook pages, Twitter feeds, and your inbox."

She said that phone based pump and dump schemes have moved online. "Today, instead of calling you on the phone, these fraudsters are increasingly likely to send you unsolicited e-mails, lurk in chat rooms talking up favored stocks, or tweet their ``inside information.´´"

"Another new approach is to create an online investor newsletter feigning objectivity but, instead, using its apparent authority to boost the price of selected stocks. These newsletters might even be advertised in legitimate journals."

"But they serve the same purpose as the cold calls and chat room tips: to artificially inflate share prices just long enough for someone to take the profit and walk away."

In This Issue
This issue contains the following items:
 • 2nd Circuit Affirms in Aereo Copyright Cases
 • Walter Addresses SEC's Failure to Write Crowd Funding Rules
 • CEI Sues EPA Under FOIA for Instant Messages
 • People and Appointments
 • More News
Washington Tech Calendar
New items are highlighted in red.
Tuesday, April 2

The House will not meet the week of April 1 through April 5, except for pro forma sessions. The House will return on Tuesday, April 9. See, House calendar for 113th Congress, 1st Session.

The Senate will meet at 10:45 AM in pro forma session only. The Senate will not meet the week of April 1 through April 5, except for pro forma sessions. The Senate will return on Monday, April 8.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Cisco Systems v. Alberta Telecommunications Research Center, App. Ct. No. 2012-1687, an appeal from the U.S. District Court (NDCal) in a patent case involving technology for telecommunications networks. Panel D. Location: Courtroom 402, 717 Madison Place, NW.

12:00 NOON. The Cato Institute will host an panel discussion titled "Travel Surveillance, Travel Intrusion". The speakers will be Edward Hasbrouck (author of the book titled "Practical Nomad"), Ginger McCall (Electronic Privacy Information Center), and Jim Harper (Cato). Lunch will be served after the program. Webcast. See, notice. Location: Cato, Hayek Auditorium, 1000 Massachusetts Ave., NW.

1:00 - 2:00 PM. The law firm of Fulbright & Jaworski will host a webcast seminar titled "International Brand Management -- How to Protect Your Company's Most Important Asset Worldwide". The speakers will be Travis Bachman (Carlson Companies), Frances Drummond (Norton Rose Australia), Patrick Gallagher (Fulbright & Jaworski), Paul Mussell (NCS Pearson, Inc.), and Ann Wessberg (Target Corporation).

6:00 - 9:00 PM. The DC Bar Association will host a reception and panel discussion titled "Defending Against Cyber-Intrusions from Both State-Sponsored and Civilian Hackers". The speakers will be Michael Hayden (Chertoff Group), Ronald Lee (Arnold & Porter), Suzanne Spaulding (DHS National Protection and Programs Directorate), and Steven Cash (Deck Prism). The price to attend ranges from free to $20. No CLE credits. The reception will be from 6:00 - 7:00 PM. See, notice. For more information, call 202-626-3463. The DC Bar has a history of barring reporters from its events. Location: Arnold & Porter, 555 12th St., NW.

Wednesday, April 3

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a discussion of the e-book and book titled "The Need for Speed: A New Framework for Telecommunications Policy for the 21st Century". The speakers will be the co-authors, Robert Litan and Hal Singer, and Robert Atkinson (ITIF). See, notice. Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.

10:00 AM. The Center for Democracy & Technology (CDT) will host an on site and teleconferenced news briefing regarding HR 624 [LOC | WW | PDF], the "Cyber Intelligence Sharing and Protection Act" or "CISPA", and potential amendments to the Computer Fraud and Abuse Act (CFAA), which is codified at 18 U.S.C. § 1030. See, story titled "Rep. Rogers and Rep. Ruppersberger Re-Introduce CISPA" in TLJ Daily E-Mail Alert No. 2,525, February 19, 2013. The speakers will be Leslie Harris, Greg Nojeim, and Kevin Bankston. For more information, contact Mark Stanley mark at cdt dot org. Location: CDT, 11th floor, 1634 I St., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Production and Distribution of Video Programming: Basics and Advanced Issues". Prices vary. CLE credits. See, notice. The first panel is titled "Basic Rights and Clearance Issues for Video Programming and Distribution". The speakers will be Ben Golant (USPTO), Mike Beller (PBS), Jennifer Elgin (Wiley Rein), Michael Turner (Discovery Communications), and Ben Ivins (National Association of Broadcasters). The second panel is titled "Advanced Issues in Video Programming and Distribution". The speakers will be Michael Nilsson (Wiltshire Grannis), Bob Garrett (Arnold & Porter), John Hane (Pillsbury Winthrop), Seth Davidson (Edwards Wildman), and Jeff Blum (DISH Network). Location: Drinker Biddle & Reath, 1500 K St., NW.

Thursday, April 4

9:00 AM - 3:00 PM. The U.S. China Economic and Security Review Commission will host a hearing titled "China’s Maritime Disputes in the East and South China Seas". See, notice. Free. Open to the public. Location: Room G-50, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Interdigital Communications v. ITC, App. Ct. No. 2012-1628. LG Electronics is the intervenor. This is an appeal from the U.S. International Trade Commission (USITC) in No. 337-TA-800. Panel H. Location: Courtroom 402, 717 Madison Place, NW.

1:00 PM. The US Telecom will host a webcast seminar titled "Monitoring & Optimizing Real Time IP Networks". Free. See, notice.

1:00 - 5:00 PM. The National Telecommunications and Information Administration (NTIA) will hold another in its series of meetings regarding mobile application transparency. See, notice. This event will also be teleconferenced. Location: American Institute of Architects, 1735 New York Ave., NW.

2:00 - 4:15 PM. The Center for Strategic and International Studies (CSIS) will host a panel discussion titled "Chinese Financial Reform". The speakers will be Timothy Adams (Institute of International Finance), Markus Rodlauer (International Monetary Fund), Robert Dohner (Department of the Treasury), John Dearie (Financial Services Forum), Matthew Goodman (CSIS), and John Hamre (CSIS). See, notice. Location: CSIS, B 1 Conference Center, 1800 K St., NW.

Deadline to submit to the Federal Communications Commission (FCC) petitions to deny AT&T's acquisition of Atlantic Tele-Network's U.S. retail wireless operations. See, AT&T release of January 22, 2013, and FCC Public Notice [5 pages in PDF], DA 13-352 in WT Docket No. 13-54.

Friday, April 5

The Senate will meet at 3:00 PM in pro forma session only.

8:30 AM. The Department of Labor's (DOL) Bureau of Labor Statistics (BLS) is scheduled to release its March 2013 unemployment data.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Creative Integrated Systems v. Nintendo, App. Ct. No. 2012-1579, an appeal from the U.S. District Court (CDCal) in a patent case. Panel K. Location: Courtroom 402, 717 Madison Place, NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) newly formed Telemedicine Ad Hoc Committee will host a brown bag lunch on the Federal Communications Commission (FCC) and wireless and wireline health technologies. Location: Wilkinson Barker Knauer, Suite 700, 2300 N St., NW.

Extended deadline to submit comments to the Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) in connection with their joint workshop on December 10, 2012, titled "Patent Assertion Entity Activities". See, notice and agenda.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding small cell operations in the 3550-3650 MHz  band. The FCC adopted and released this NPRM on December 12, 2012. It is FCC 12-148 in GN Docket No. 12-354. See, Public Notice, DA 12-298, released on February 28, 2013, extending the reply comment deadline. See also, notice of extension in the Federal Register, Vol. 78, No. 53, March 19, 2013, at Pages 16827-16828.

Monday, April 8

The House will not meet.

The Senate will return from its Spring recess. It will meet at 2:00 PM.

10:00 - 11:30 AM. The Center for Strategic and International Studies (CSIS) will host a panel discussion titled "China's Defense Budget". The speakers will be Andrew Erickson (Harvard University), James Mulvenon (Defense Group, Inc.), Jack Georgieff (CSIS), and Christopher Johnson (CSIS). See, notice. Location: CSIS, B1 Conference Center, 1800 K St., NW.

EXTENDED TO MAY 22. Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding elevating the allocation status of Earth Stations Aboard Aircraft (ESAA) in the 14.0-14.5 GHz band from secondary to primary and whether giving ESAA licensees primary status in the 14.0-14.5 GHz band would require a change to the technical rules. The FCC adopted this NPRM on December 20, 2012, and released it on December 28, 2012. It is FCC 12-161 in IB Docket No. 12-376. See, original notice in the Federal Register, Vol. 78, No. 46, March 8, 2013, at Pages 14952-14957. See also, second notice in the FR, Vol. 78, No. 61, March 29, 2013, at Page 19172.

Tuesday, April 9

The House will return from its Spring recess.

10:30 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "State of Rural Communications". See, notice. Location: Room 253, Russell Building.

2:30 PM. The Senate Homeland Security and Governmental Affairs Committee (SHSGAC) will hold a hearing on the nomination of Sylvia Burwell to be Director of the Office of Management and Budget (OMB). See, notice. Location: Room 342, Dirksen Building.

CEI Sues EPA Under FOIA for Instant Messages

3/28. The Competitive Enterprise Institute (CEI) and American Tradition Institute (ATI) filed a complaint [21 pages in PDF] in the U.S. District Court (DC) against the Environmental Protection Agency (EPA) that alleges violation of the federal Freedom of Information Act (FOIA) in connection with the EPA's failure to produce copies of instant messages (IM) sent or received by the accounts of three senior EPA officials.

This complaint also states that the EPA created a "false identity email account for its then-Administrator Lisa Jackson".

The complaint alleges that the "EPA has never produced an Instant Message in response either to a request under FOIA, or in response to a congressional oversight request, despite numerous requests from both for ``records´´ or ``electronic records´´."

This complaint asserts that IMs are "agency records" within the meaning of the FOIA, which is codified at 5 U.S.C. § 552.

The plaintiffs seek a judgment declaring that the EPA must produce the requested IMs.

The CEI stated in a release that "Based on information we have obtained, it seems we have uncovered another major transparency scandal in that either EPA is destroying instant messages against the law, or it is withholding them in defiance of its legal obligations to produce." The CEI also mocked the Obama administration's "most transparent administration" claims.

The CEI and ATI, however, are exaggerating. Many federal agencies, under both Democratic and Republican administrations, systematically violate the plain language of the FOIA. They are able to do this because the federal courts provide only occasional and limited relief to FOIA plaintiffs, and because these agencies encourage, rather than punish, violations.

This case is CEI and ATI v. EPA, U.S. District Court for the District of Columbia, C.A. No. 13-406.

People and Appointments

4/2. Mary Schapiro, who was the Chairman of the Securities and Exchange Commission (SEC) from 2009 through the end of 2012, joined the Promontory Financial Group (PFG) as a Managing Director. See, PFG release.

4/1. The National Association of Broadcasters (NAB) announced newly elected members of its Board of Directors. See, NAB release.

4/1. President Obama announced his intent to appoint Hyman Bass (University of Michigan), Carlos Chavez (Arizona State University), and Joseph Francisco (Purdue University) to be members of the President’s Committee on the National Medal of Science. See, White House news office release.

More News

4/1. Apple released a letter from CEO Tim Cook to consumers in the People's Republic of China (PRC) apologizing for failing to comply with a PRC law that requires a two year warranty on computer sales. Apple did not release an English language translation. Government controlled web sites in the PRC are touting the matter. See, for example, piece in English version of the People's Daily Online. Also, the PRC's Xinhua English web site wrote in another piece that "The State Administration for Industry and Commerce said it has issued a notice asking local industry and commerce authorities to enhance legal supervision over Apple's imparity clauses in its warranty policies."

4/1. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) published a notice in the Federal Register (FR) that announces the schedule for upcoming meetings regarding mobile application transparency. These meeting will be from 1:00 to 5:00 PM on April 30, May 23, and June 11, 2013, at the American Institute of Architects, 1735 New York Ave., NW. See, FR, Vol. 78, No. 62, April 1, 2013, at Pages 19461-19462.

4/1. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register (FR) that announces, describes, recites, and sets the effective date and comment deadline for, its "interim final" rules of practice regarding patent term adjustment. These changes implement Section 1(h) of HR 6621 [LOC | WW], which was enacted into law in the closing days of the lame duck session of the 112th Congress. These "interim final" rules are effective date on April 1, 3013. The deadline to submit comments is May 31, 2013. See, FR, Vol. 78, No. 62, April 1, 2013, at Pages 19416-19421. See also, stories titled "Obama Signs Patent, Economic Espionage and Intelligence Authorization Bills" in TLJ Daily E-Mail Alert No. 2,508, January 15, 2013, "House Passes Rep. Smith's Patent Bill" in TLJ Daily E-Mail Alert No. 4,494, December 19, 2012, and "Rep. Smith Introduces Patent Bill" in TLJ Daily E-Mail Alert No. 2,487, December 10, 2012.

4/1. The  Federal Communications Commission (FCC) published a notice in the Federal Register (FR) that sets comment deadlines for its March 14, 2013 Public Notice [4 pages in PDF] requesting comments to refresh the record regarding fraudulent 911 calls made from Non-Service Initialized (NSI) devices, blocking NSI devices used to make fraudulent 911 calls, and other possible solutions to the problem of fraudulent 911 calls from NSI devices. The deadline to submit initial comments is May 16, 2013. The deadline to submit reply comments is May 31, 2013. This PN is DA 13-430 in EB Docket No. 08-51. See, FR, Vol 78, No. 62, April 1, 2013, at Pages 19442-19443.

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