News from February 16-20, 2002

CARP Recommends Rates and Terms for Webcasting
2/20. The Copyright Arbitration Royalty Panel (CARP) released its report [1 page in PDF] recommending rates, and its report [29 pages in PDF] recommending terms, for the statutory license for eligible nonsubscription services to perform sound recordings publicly by means of digital audio transmissions, also known as webcasting, pursuant to 17 U.S.C. § 114, and to make ephemeral recordings of sound recordings for use of sound recordings under the statutory license set forth in 17 U.S.C. § 112.
The CARP recommended that both webcasters and commercial broadcasters pay a performance fee of 0.07¢ per performance, and 9% of performance fees due, for simultaneous Internet retransmissions of over the air AM or FM radio broadcasts. It recommended that the performance fee be 0.14¢ per performance and 9% of performance fees due for all other Internet transmissions.
It further recommended that non commercial broadcasters pay a performance fee of 0.02¢ per performance for simultaneous Internet retransmissions of over the air AM or FM radio broadcasts, and 0.05¢ for other Internet transmissions, including up to two side channels of programming consistent with the public broadcasting mission of the station.
Hillary Rosen, P/CEO of the Recording Industry Association of America (RIAA), stated in a release that "We would have preferred a higher rate. But in setting a rate that is about 10 times that proposed by the webcasters, the panel clearly concluded that the webcasters' proposal was unreasonably low and not credible. It is apparent to us, as it was to the Panel, that webcasters and broadcasters of every size will be able to afford these rates and build businesses on the Internet".
Jonathan Potter, Executive Director of the Digital Media Association (DiMA), stated in a release that "We are extremely disappointed, however, that the Panel's proposed rate is not significantly lower, as a lower rate would more accurately reflect the marketplace for music performance rights and the business environment of the webcast industry. We believe that the Digital Millennium Copyright Act webcast sound recording statutory license reflected Congress's effort to ensure fair compensation for creators and a reasonable and competitive business environment for webcasters. America deserves an equitable royalty formula so that both creators and consumers can continue to benefit from the advantages of Internet based broadcasting and the innovation that continues to be developed by DiMA companies. ... Webcasters will study the panel's decision further, and provide analysis and recommendations to the Copyright Office for consideration during that Office's statutory review period."
The Copyright Office stated that "The CARP report will be reviewed by the Copyright Office, which will recommend to the Librarian of Congress whether to accept, reject or modify the rates and terms set forth in the report. The Librarian must accept or reject the report no later than May 21, 2002."
California Supreme Court To Review DeCSS Case
2/20. The Supreme Court of the State of California ordered review of the Court of Appeal decision in DVD Copy Control Association v. Bunner, a case regarding California trade secret law, and the publication of the DeCSS program in web sites. The Santa Clara County Superior Court issued a preliminary injunction. On November 1, 2001, the California Court of Appeal (6th) issued its opinion reversing that injunction. See, Conference Results [PDF], February 20, 2002, at page 1.
Plaintiff. DVD is sometimes known as Digital Versatile Disc. CSS is a Content Scrambling System for DVD to protect intellectual property rights by means of encryption. The DVD Copy Control Association (DVDCCA) is a trade association of businesses in the movie industry. It controls the rights to CSS. DVDCCA licenses the CSS decryption technology to manufacturers of hardware and software for playing DVDs.
Defendant. DeCSS is a decryption tool that facilitates infringement. DeCSS consists of computer source code which describes a method for playing an encrypted DVD on a non CSS equipped DVD player or drive. It was written by Jon Johansen, a 15 year old Norwegian. Andrew Bunner published a copy of DeCSS on a web site.
Complaint. The DVDCCA filed a complaint in 1999 in California Superior Court against Andrew Brunner and others alleging violation of the California Uniform Trade Secrets Act in connection with their publishing copies of DeCSS in web sites, or linking to copies of DeCSS.
Preliminary Injunction. The Superior Court issued an order granting a preliminary injunction in January 2000 which enjoined defendants from "[p]osting or otherwise disclosing or distributing, on their web sites or elsewhere, the DeCSS program, the master keys or algorithms of the Content Scrambling system (‘CSS’), or any other information derived from this proprietary information."
The Court of Appeal. The Court of Appeal reversed. It reasoned that the DeCSS source code is speech entitled to First Amendment protection. It also noted that unlike copyright, trade secret protection is not secured by the Constitution. The Court of Appeal further reasoned that the Superior Court order constituted a prior restraint of pure speech.
Supreme Court. On February 20, 2002, the state Supreme Court agreed to hear the case. It did not issue an opinion; it did not set a date for oral argument. This is Supreme Court No. S102588.
EC Proposes Directive on Patents of Computer Implemented Inventions
2/20. The European Commission released a proposal for a Directive on patents of computer implemented inventions. See, document titled "Patents: Commission proposes rules for inventions using software" and document titled "Proposal for a Directive on the patentability of computer implemented inventions -- frequently asked questions".
The proposal states that inventions "whose operation involves the use of a computer program and which make a ``technical contribution´´ -- in other words which contribute to the ``state of the art´´ in the technical field concerned -- would be eligible for patents. Computer programs as such would not be eligible for a patent under the proposal. Nor would business methods that employ existing technological ideas and apply them to, for example, e-commerce. These would continue where appropriate to be covered by copyright law or the law of confidentiality."
The proposal elaborates that it "takes as its basis the concept of ``technical contribution´´ as an essential requirement of any patentable invention. ... It implies that a computer implemented invention which makes a ``technical contribution´´ to the state of the art, which would not be obvious to a person of normal skill in the field concerned, is more than just a computer program ``as such´´ and can therefore be patented.
The proposal continues that "The requirement for a ``technical contribution´´ is fully consistent with the European Patent Convention and the EU's wider international obligations". It also states that "it would put beyond doubt that creations in which the innovative element is not technical in nature, that is to say which make no technical contribution, cannot be patented. The proposal thus addresses concerns that EU patent law might in future be extended to cover fields of human endeavour which have up to now been excluded, in particular business methods and mathematical entities or logical constructs having no relation to the physical world."
Internal Market Commissioner Frits Bolkestein (Netherlands) stated that "European industry needs a legal environment that encourages innovation without stifling competition. We need certainty over what can, and cannot, be patented".
He added that "The proposed Directive would provide this certainty by making the conditions for patentability of computer implemented inventions clear and uniform. Current law on this question was drafted in the early 1970s when there was no inkling of what was to come in the shape of modern computers and networks, not to mention the emergence of a software industry worth billions of euros. The courts have done their best to develop the law in response to the changing environment, but there is now no alternative to legislation at European level to prevent potentially divergent interpretations by the courts."
Rep. Goodlatte Criticizes Russia on IPR Enforcement
2/20. Rep. Bob Goodlatte (R-VA), who traveled to Moscow with a Congressional delegation, criticized Russia's record on enforcement of intellectual property rights. He stated that "Protecting valuable copyrighted work is vitally important for the growth of the Internet and the global electronic marketplace. ... In the past five years, it is estimated that the copyright industries have lost over $5 billion due to piracy in Russia. The Internet will not reach its full potential until creative people feel that their works will be fully protected when they put them on the Internet."
He continued that "Russia has made progress in adopting laws that would protect copyrighted works, by they can't just talk the talk. They have to walk to walk by enforcing those laws and cracking down on the production and sale of pirated works, both online and offline ... It is in Russia's interest to promote respect for intellectual property rights and strongly prosecute pirates. This is a nation with many creative and talented people in the arts and sciences whose value to their country's economy will grow if their creativity is protected through enforcement of intellectual property laws".
CompTel Opposes FCC NPRM on Classification of Services
2/20. Russell Frisby, President of CompTel, wrote a letter to Sen. Ernest Hollings (D-SC), Chairman of the Senate Commerce Committee, requesting a hearing on the Federal Communications Commission's (FCC)  Notice of Proposed Rulemaking (NPRM) regarding classification of services.
The FCC held a meeting on February 14 at which it announced a NPRM regarding classification of services. It then issued a press release that is associated with this NPRM. This release states that this NPRM "is poised to resolve outstanding issues regarding the classification of telephone based broadband Internet access services and the regulatory implications of that classification". It further states that the "the FCC tentatively concluded the wireline broadband Internet access services -- whether provided over a third party's facilities or self-provisioned facilities -- are information services, with a telecommunications component, rather than telecommunications services. Information services include such services as voice mail and e-mail, which ride over telecommunications facilities." This is CC Docket 02-33.
Frisby wrote that such a finding "will simply serve to benefit the very largest carriers at the expense of competition and consumers." See, CompTel release.
People and Appointments
2/20. The Federal Election Commission (FEC) named Rhonda Vosdingh Associate General Counsel for Enforcement in the FEC's Office of General Counsel (OGC). She has been with the FEC since 1994. See, FEC release.
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2/20. World Trade Organization (WTO) Director General Mike Moore gave a speech titled "Making Globalization Work" to the International Confederation of Free Trade Unions (ICFTU) in Geneva, Switzerland.
2/20. President Bush and South Korean President Kim Dae-Jung held a joint press conference. Kim Dae-Jung stated that "President Bush and I concurred that continued expansion and progress of bilateral, economic and trade relations are in the interest of both our countries. Furthermore, we also agreed to further deepen cooperative relations at the multilateral level, such as the WTO -- development agenda." Bush stated that "It's also vital that we continue to trade together. ... we also discussed ways to make sure our trade was more open and fair to both sides." See, transcript.
2/20. The U.S. Court of Appeals (6thCir) issued its opinion in USA v. Yang, a criminal case involving attempted theft of a trade secret and conspiracy to commit theft of a trade secret in violation of the Economic Espionage Act of 1996 (EEA), 18 U.S.C. § 1832.
2/20. The Federal Trade Commission (FTC) announced that it filed a civil complaint [PDF] in U.S. District Court (SDFl) against Stock Value 1, Inc. and its President, Deborah Jenkins, alleging violation of the Federal Trade Commission Act in connection with the marketing of "products that purportedly block electromagnetic energy emitted from cellular and cordless telephones". The FTC alleges that defendants engaged in deceptive acts or practices in or affecting commerce in violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), and false advertising in violation of Section 12(a) of the FTC Act, 15 U.S.C. § 52(a). The FTC seeks an injunction. The FTC also filed a similar civil complaint [PDF] in U.S. District Court (EDCal) against Comstar Communications, Inc. and Randall Carasco. See also, FTC release.
2/20. The U.S. Patent and Trademark Office (USPTO) published a copy of the February issue of USPTO Today [PDF] in its web site.
2/20. Lincoln Bloomfield, Assistant Secretary of State for Political Military Affairs, gave a speech regarding the State Department's portion of the export control system at an American Institute of Aeronautics and Astronautics (AIAA) conference. He is responsible for the State Department's Office of Defense Trade Controls (DTC). He also discussed the upgrading of the DTC's information technology infrastructure. He stated that "Our plan is to initiate a six month beta test of a fully electronic licensing program in the coming weeks ..."
Supreme Court Grants Cert in Challenge to Copyright Term Extension Act
2/19. The Supreme Court granted certiorari in Eldred v. Ashcroft, a constitutional challenge to the Copyright Term Extension Act, which retroactively extended the maximum duration of copyrights from 75 to 95 years.
Background. The 105th Congress (1997-1998) passed, and President Clinton signed into law, two copyright statutes that the Plaintiffs and their lawyers dislike. The original plaintiff of record is Eric Eldred, the proprietor of the unincorporated Eldritch Press, a web site that republishes the works of others which are not protected by copyright. However, the suit was brought by a group of activist law professors, Charles Nesson, Lawrence Lessig, and Jonathan Zittrain. At the time the lawsuit was filed, all worked at The Berkman Center for Internet & Society at Harvard Law School.
Proceedings Below. Plaintiffs filed a complaint (see, Second Amended Complaint) in U.S. District Court (DC) against former Attorney General Janet Reno seeking injunctive and declaratory relief. They seek a declaration that the Copyright Term Extension Act (CTEA) is unconstitutional; they also seek an injunction against enforcement of the No Electronic Theft Act (NET ACT) against violators of the CTEA. The CTEA retroactively extended the maximum duration of copyrights from 75 to 95 years. The District Court granted summary judgment denying relief to the plaintiffs. The Court wrote a short memorandum explaining its ruling. The U.S. Court of Appeals (DCCir) issued its opinion affirming the District Court on February 16, 2001. Chief Judge Douglas Ginsburg wrote the opinion; Karen Henderson joined; and David Sentelle dissented. The Court of Appeals denied plaintiffs' petition for rehearing en banc on July 13, 2001. Sentelle and David Tatel dissented. See, opinion.
Certiorari. Plaintiffs wrote in their Petition for Writ of Certiorari that the issues are: "Did the D.C. Circuit err in holding that Congress has the power under the Copyright Clause to extend retrospectively the term of existing copyrights? Is a law that extends the term of existing and future copyrights “categorically immune from challenge[] under the First Amendment”? May a circuit court consider arguments raised by amici, different from arguments raised by a party, on a claim properly raised by a party?" See also, brief [PDF] of the government opposing certiorari, and plaintiffs' reply brief. The Supreme Court granted writ of certiorari, without opinion. See, February 19, 2002, Order List [PDF] at page 3.
Constitution, Art. I, Sec. 8. The Constitution provides, in relevant part, that "Congress shall have the Power... To regulate Commerce ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries ... To make all Laws which are necessary and proper for carrying into Execution the foregoing Powers ..."
The CTEA is supported by holders of entertainment industry copyrights, and their trade associations, such as the the Association of American Publishers, Motion Picture Association of America (MPAA), National Music Publishers' Association (NMPA), and Recording Industry Association of America (RIAA). The CTEA is opposed by some law professors, library groups, and the Cato Institute.
Wendy Seltzer, of the Berkman Center, commented in a release on the Supreme Court's decision to hear the case: "From Lawrence Lessig and the Openlaw team: We are extremely pleased to report that the Supreme Court has today granted cert in Eldred v. Ashcroft. After the case was listed on the court's conference calendar 4 weeks in a row, the court decided to hear the full range of issues in the appeal."
The Consumer Electronics Association (CEA) stated in a release that "The Supreme Court's decision to hear arguments in this copyright case affirms the grave threat to innovation and public access that has been evident in seemingly indefinite copyright term extensions by Congress. ... It is highly doubtful the Framers intended the `limited´ term of copyright to be extended on a routine and regular basis."
See also, Berkman Center case summary and TLJ case summary.
DC Circuit Vacates Cable Broadcast Cross Ownership Rule
2/19. The U.S. Court of Appeals (DCCir) issued its opinion in Fox v. FCC, holding that the Federal Communications Commission's (FCC) national TV station ownership rule (NTSO) and its cable broadcast cross ownership rule (CBCO) both violate the Administrative Procedure Act (APA) as arbitrary and capricious. The Court vacated the CBCO rule, but merely remanded the NTSO rule to the FCC.
Congress passed the Telecom Act of 1996. It provides, at Section 202(h), that the FCC "shall review its rules adopted pursuant to this section and all of its ownership rules biennially as part of its regulatory reform review under section 11 of the Communications Act of 1934 and shall determine whether any of such rules are necessary in the public interest as the result of competition. The Commission shall repeal or modify any regulation it determines to be no longer in the public interest."
The FCC maintained its NTSO rule (47 C.F.R. § 73.3555(e)) and its CBCO rule (47 C.F.R. § 76.501(a)) in 1998. Fox Television Stations and various other TV networks and cable companies petitioned the Court of Appeals for review of the FCC's 1998 decision not to repeal or modify these two rules. The petitioners asserted that these rules violate the Administrative Procedure Act (APA), § 202(h) of the Telecom Act of 1996, and the First Amendment of the Constitution.
The Court of Appeals held: "We conclude that the Commission's decision to retain the rules was arbitrary and capricious and contrary to law. We remand the national television station ownership rule to the Commission for further consideration, and we vacate the cable/ broadcast cross ownership rule because we think it unlikely the Commission will be able on remand to justify retaining it."
Chief Judge Douglas Ginsburg, writing for a three judge panel, found that the FCC "has adduced not a single valid reason to believe the NTSO Rule is necessary in the public interest, either to safeguard competition or to enhance diversity. Although we agree with the Commission that protecting diversity is a permissible policy, the Commission did not provide an adequate basis for believing the Rule would in fact further that cause. We conclude, therefore, that the 1998 decision to retain the NTSO Rule was arbitrary and capricious in violation of the APA."
The Court similarly held that the CBCO violates of the APA. It found that the FCC "failed to consider the increased number of television stations now in operation, and it is clear that the Commission failed to reconcile the decision under review with the TV Ownership Order it had issued only shortly before. We conclude, therefore, that the Commission's diversity rationale for retaining the CBCO Rule is woefully inadequate."
Michael Powell, who was a FCC Commissioner in 1998, dissented from the retention of the NTSO and CBCO rules. He is now Chairman of the FCC, and is joined by two other Republican Commissioners, Kevin Martin and Kathleen Abernathy, who are skeptical of ownership rules.
Be Sues Microsoft
2/19. Be Incorporated, maker of the BeOS operating system, filed a complaint [PDF] in U.S. District Court (NDCal) against Microsoft alleging violation of federal antitrust laws and California law.
Count one alleges monopoly maintenance of the Intel compatible PC operating system market in violation of Section 2 of the Sherman Act. Count two alleges exclusive dealing in violation of Section 1 of the Sherman Act and Section 3 of the Clayton Act. Count three alleges violation of the California Cartwright Act, California Business and Professions Code, §§ 16720 et seq. Count four alleges unfair competition under the California Business and Professions Code, §§ 17200 et seq. Count five alleges tortious interference under California state law. Be seeks treble damages, punitive damages, and other relief.
This is D.C. No. 02837MEJ, filed in the San Francisco Division. MEJ references Magistrate Judge Maria-Elena James.
Congressional Delegation Travels to Moscow
2/19. A Congressional delegation that includes Reps. Bob Goodlatte (R-VA), Rick Boucher (D-VA), Lamar Smith (R-TX), Dana Rohrabacher (R-CA), Martin Sabo (D-MN), James Walsh (R-NY), and John LaFalce (D-NY), traveled to Moscow, Russia, to discuss e-commerce and cyber security issues with members of the Russian government.
Rep. Goodlatte stated in a release that "The Russian government is divided between those who support the same tired, old proposals, like key escrow, that drain consumer confidence in their security online, and those who support a free and open Internet, where consumers are given the tools to protect their privacy and security. The U.S. has abandoned key escrow as a policy position shared by Britain, France, and the rest of the nations that have entered the Information Age. Russia's economic prosperity depends on the success of those who argue for strong privacy protections and against government monitoring schemes".
This delegation goes next to Brussels, Belgium.
People and Appointments
2/19. Jeffery Goldthorp was named Chief of the Network Technology Division at the Federal Communications Commission's (FCC) Office of Engineering and Technology (OET). Goldthorp will also represent the OET on the FCC’s Homeland Security Policy Council. He will also be the designated federal official for both the Network Reliability and Interoperability Council and the Technology Advisory Council. He was previously General Manager of Network Access Engineering Services at Telcordia Technologies. See, FCC release [PDF].
2/19. The Department of Justice's (DOJ) Office of Legal Policy (OLP) announced several appointments and promotions. Jennifer Newstead was promoted from Deputy Assistant Attorney General (DAAG) to Principal DAAG of the OLP. Before joining the DOJ in 2001 she was an attorney at the law firm of Davis Polk & Wardwell. Michael Carrington joined the OLP as a DAAG. Don Willett also joined the OLP as a DAAG. He was previously Special Assistant to President Bush and Director of Law and Policy for the White House Office of Faith Based and Community Initiatives. Before that, he worked for Governor Bush, and for the Bush Cheney campaign. Grace Mastalli, who was a DAAG at the OLP, left to become Chief of Staff and Deputy Director for Law and Policy for the Joint Foreign Terrorist Tracking Task Force. Viet Dinh remains Assistant Attorney General in charge of the OLP. The OLP is involved in the formulation of legal policy, such as drafting and advocating passage of the USA PATRIOT Act, also known as the anti terrorism bill. See, DOJ release.
2/19. Matthew Lehr and Anthony Klein joined the Palo Alto office of the law firm of Latham & Watkins as partners. Both were previously partners in the Palo Alto office of the law firm of Cooley Godward. Lehr is an intellectual property litigator who focuses on biotechnology, computer architecture, chemical products, plasma physics and electrical devices, computer networking and software, and consumer products. Klein focuses on licensing and technology transactions in the software, telecommunications, Internet, e-commerce, and semiconductor industries. He handles software licensing and distribution deals, manufacturing, supply and OEM relationships, semiconductor design and fabrication agreements, outsourcing arrangements, internet traffic deals and co-marketing alliances, game development deals, settlement agreements, strategic alliances, joint ventures, development agreements, asset transfers and co-branding and marketing arrangements, and other business relationships. See, LW release.
2/19. Beth Brinkmann joined the Washington DC office of the law firm of Morrison & Foerster as Of Counsel in the firm's Appellate Practice Group. She previously worked in the Office of the Solicitor General at the Department of Justice. See, MoFo release.
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2/19. Securities and Exchange Commission (SEC) Chairman Harvey Pitt gave a speech at the Winter Bench and Bar Conference of the Federal Bar Council in Puerto Rico regarding financial reporting.
2/19. The Supreme Court granted certiorari in  Ford Motor Co. v. McCauley, a case regarding federal jurisdiction. See, February 19, 2002, Order List [PDF] at page 3. The U.S. Court of Appeals (9thCir) issued its opinion [PDF] on September 6, 2001.
2/19. The Supreme Court cert denied certiorari in Feltner v. Columbia Pictures. See, February 19, 2002, Order List [PDF] at page 3.
2/19. Sen. Paul Wellstone (D-MN) wrote a letter [PDF] to Senators asking them to co-sign a letter to the Federal Communications Commission (FCC) urging it "to adopt an ``opt-in´´ approach to protecting privacy, ensuring that a consumer must affirmatively consent to the sharing by telephone companies of his or her Customer Proprietary Network Information (CPNI) before such information is shared."

Go to News Briefs from February 11-15, 2002.