TLJ News from June 16-20, 2005

Supreme Court News

6/20. The Supreme Court issued opinions in six cases. However, it has yet to issue its opinions in MGM v. Grokster, a case regarding copyright and peer to peer (P2P) systems, and NCTA v. Brand X, a case regarding regulation of broadband internet services by the Federal Communications Commission (FCC).

The Supreme Court also issued an Order List [13 pages in PDF] that lists cases in which the Supreme Court granted, or denied, petitions for writ of certiorari.

The Supreme Court granted certiorari in Illinois Tool Works v. Independent Ink, a a patent tying antitrust case. See, story in this issue titled "Supreme Court Grants Certiorari in Patent Tying Antitrust Case".

The Supreme Court denied certiorari in Honeywell v. Hamilton Sundstrand, a case regarding whether a patent applicant who has withdrawn an independent patent claim and rewritten a formerly dependent claim as a new independent claim is subject to prosecution history estoppel. See, story in this issue titled "Supreme Court Denies Certiorari in Honeywell v. Hamilton Sundstrand".

The Supreme Court denied certiorari in Chicago Brand Industrial v. Mitutoyo, a patent case.

The Supreme Court denied certiorari in Sprint Communications v. Smith, a case regarding class certification in a class action lawsuit involving claims of wrongful installation of fiber optic cable along railroad rights of way. See, story in this issue titled "Supreme Court Denies Certiorari Railroad Rights of Way Case".

The Supreme Court also has yet to decide on the petition for writ of certiorari in Homan McFarling v. Monsanto Company, No. 04-31. It may decide this at its June 23 conference. Although, one might have expected the Supreme Court to have decided this petition at the same time that it decided the petition in Illinois Tool Works v. Independent Ink.

The Court also announced that it "will take a recess from Monday, June 20, 2005, until Thursday, June 23, 2005."  See, Order List [13 pages in PDF] at page 13.

Supreme Court Grants Certiorari in Patent Tying Antitrust Case

6/20. The Supreme Court granted certiorari in Illinois Tool Works v. Independent Ink, a patent tying antitrust case. See, Order List [13 pages in PDF] at page 3. See, full story.

Supreme Court Denies Certiorari in Honeywell v. Hamilton Sundstrand

6/20. The Supreme Court denied certiorari in Honeywell v. Hamilton Sundstrand, a case regarding whether a patent applicant who has withdrawn an independent patent claim and rewritten a formerly dependent claim as a new independent claim is subject to prosecution history estoppel. See, Order List [13 pages in PDF] at page 3.

The U.S. District Court (Del) entered judgment for the patent holder, Honeywell, based on a jury finding that Sundstrand infringed Honeywell's patents under the doctrine of equivalents.

The U.S. Court of Appeals (FedCir) held in its en banc opinion of June 2, 2004, that the amendments made during prosecution give rise to a presumptive surrender of equivalents. It thus vacated the District Court's judgment of infringement under the doctrine of equivalents and remand to consider whether Honeywell can rebut that presumption under the Festo criteria.

Judge Pauline Newman wrote a lengthy dissent.

The Supreme Court's denial of certiorari lets stand the opinion of the Court of Appeals.

The Office of the Solicitor General argued in its brief that the Supreme Court should deny certiorari. It wrote that "This Court's decision in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722 (2002), recognizes that, if a patent applicant has amended his application to narrow the scope of the claimed subject matter, prosecution history estoppel may prevent him from invoking the doctrine of equivalents to recapture the subject matter that he surrendered. ... The question presented in this case is whether a patent applicant who has withdrawn an independent patent claim and rewritten a formerly dependent claim as a new independent claim is subject to prosecution history estoppel."

It argued that the Court of Appeals correctly applied Festo. It wrote that the Court of Appeals "correctly ruled that the patent applicant's recasting of a formerly dependent claim in independent form, coupled with the withdrawal of the original independent claim, amounted to a "narrowing amendment" under Festo. The applicant's consequent surrender of subject matter triggered a presumption that the patent prosecution history estops the applicant from using the doctrine of equivalents to extend the scope of the patent beyond its literal terms."

It added that "The court of appeals' en banc decision is consistent with its post-Festo decisions and with the United States' position in Festo. The decision, which rests on longstanding patent principles and preserves an opportunity for the patent applicant to overcome the presumption against claiming equivalents, will not upset the reasonable expectations of patent holders or otherwise disrupt the patent system. Further review by this Court is therefore not warranted."

This case is Honeywell International Inc., et al. v. Hamilton Sundstrand Corporation, Sup. Ct. No. No. 04-293.

Supreme Court Denies Certiorari Railroad Rights of Way Case

6/20. The Supreme Court denied certiorari in Sprint Communications v. Smith, a case regarding class certification in a class action lawsuit involving claims of wrongful installation of fiber optic cable across plaintiffs' lands. See, Order List [13 pages in PDF] at page 4.

The plaintiffs in this federal action are landowners whose property is subject to railroad rights of way, along which defendant telecommunications companies installed fiber optic cables without the landowners' permission. They filed a complaint in the U.S. District Court (NDIll), also seeking nationwide class certification. However, other related actions brought by similarly situated plaintiffs have been brought in state courts in Tennessee and Kansas. State courts have certified those classes. The state plaintiffs, who intervened in this federal action, oppose federal nationwide certification, as it would preclude their separate lawsuits, and hence, decrease their awards.

The District Court certified a nationwide class, for settlement only, and enjoined all competing class actions.

The majority of a three judge panel of the Court of Appeals (7thCir) vacated the District Court's nationwide class certification and injunction, and remanded. The Appeals Court reasoned that the plaintiffs in the state actions are inadequately represented by the nationwide plaintiffs, and hence, the requirements of Rule 23, Federal Rules of Civil Procedure, are not met. The majority further stated that the nationwide certification could result in unfairness to the state plaintiffs.

The Supreme Court's denial of certiorari lets stand the opinion [PDF] of the Court of Appeals.

See also, audio of oral argument before the Court of Appeals, and story titled "7th Circuit Rules on Class Certification in Railroad Rights of Way Case" in TLJ Daily E-Mail Alert No. 1,001, October 21, 2004.

Judge Cudahy had written a strenuous dissent in the Court of Appeals. He argued that the state plaintiffs are adequately represented by the nationwide class. He wrote that "there are no disparate personal injuries. Plaintiffs' and all class members’ claims arise from defendant’s installation and maintenance of fiber-optic cable on railroad rights of way. Any harm rising from that installation has occurred and is capable of being ascertained. All class members also raise the same legal claims. Therefore, the class has sufficient unity for settlement class certification purposes."

Judge Cudahy also considered national communications policy. He wrote that "The development involved here is the laying of a 36,000-mile network of transcontinental fiber-optic cables crossing many states to provide a national telecommunications grid. This installation of fiber-optic cables becomes part of the national communications infrastructure, having an important value for the national economy as well as for national security."

"The state-by-state treatment favored by the majority is likely to produce a nightmare of complexity, the inequitable treatment of landowners in different states and increased charges to telephone users everywhere", wrote Cudahy.

This case is Sprint Communications, et al. v. Wayne Smith, Sup. Ct. No. 0.4-1381.

9th Circuit Holds FCRA Preempts Parts of California Financial Information Privacy Act

6/20. The U.S. Court of Appeals (9thCir) issued its opinion [13 pages in PDF] in American Bankers Association v. Gould, a case regarding the California Financial Information Privacy Act's (CFIPA) requirements regarding the exchange of information among financial institutions and their affiliates. This Act, which was enacted in 2003, is also know as SB1.

The U.S. District Court (EDCal) held that the federal Fair Credit Reporting Act (FCRA), which is codified at 15 U.S.C. § 1681, et seq., does not preempt any part of the CFIPA, which is codified at Cal. Fin. Code §§ 4050-4060. The Court of Appeals reversed and remanded. The FCRA does preempt some parts of the CFIPA.

This case is American Bankers Association, The Financial Services Roundtable, and Consumer Bankers Association v. Howard Gould, et al., Nos. 04-16334 and 04-16560, appeals from the U.S. District Court for the Eastern District of California, D.C. No. CV-04-00778-MCE, Judge Morrison England presiding. Judge William Fletcher wrote the opinion of the Court of Appeals, in which Judges Alex Kozinski and Jay Bybee joined.

People and Appointments

6/20. President Bush announced his intent to appoint Lawrence Scott Charbo to be Chief Information Officer (CIO) at the Department of Homeland Security (DHS). He is currently CIO at the Department of Agriculture. See, White House release.

6/20. Zachary Kurz was appointed to the press office staff of the House Science Committee (HSC). He previously worked as a full committee staff assistant. He replaces Nathaniel Sillin, who left last month to work for the Base Realignment and Closure Commission. Joe Pouliot remains the head of the Committee's press office. See, HSC release.

6/20. Melé Williams was appointed to the staff of the House Science Committee's (HSC) Subcommittee on Research. She previously worked as Government Relations Director for the League of American Bicyclists. See, HSC release.

More News

6/20. The U.S. Court of Appeals (7thCir) issued its divided en banc opinion [24 pages in PDF] in Hosty v. Carter, a case regarding 42 U.S.C. § 1983 and violation of the First Amendment right to freedom of speech by states. This case involves a state university's use of its funding of a student newspaper to prevent publication of information critical of the university's administration. The majority held that the defendant, Patricia Carter, the administrator who censured the newspaper, is entitled to qualified immunity from liability in damages. The minority wrote that Carter "violated clearly established First Amendment law in censoring the student newspaper".

6/20. Federal Communications Commission (FCC) Commissioner Jonathan Adelstein gave a speech [5 pages in PDF] regarding software defined radio (SDR) and cognitive radio.

6/20. The Federal Communications Commission (FCC) announced in a release [2 pages in PDF] that the U.S. and Canada have "have concluded an amendment to the 1962 United States-Canada Agreement concerning coordination and use of radio frequencies above 30 megacycles per second, to add a new Arrangement that will be administered by the Federal Communications Commission (FCC) and Industry Canada covering use of the Frequency Bands 764-776 MHz (TV channels 63 & 64) and 794-806 MHz (TV channels 68 & 69)."

6/20. The annual US-EU Summit is taking place in Washington DC on Monday, June 21, and Tuesday, June 21. The US and EU issued a joint statement that provides that "United States and the European Union will work together to ... spur innovation and technological development by promoting cooperation in a wide range of areas, including research and development, space, education and exchanges, information and communications technologies, and health and medical technologies ... support effective protection and enforcement of intellectual property rights, at home and abroad, in line with the highest international standards ... explore ways to exchange certain confidential information in international competition cases". The White House press office also issued a release regarding intellectual property rights, counterfeiting and piracy.

GAO Releases Report on USPTO Management

6/17. The Government Accountability Office (GAO) released a report [55 pages in PDF] titled "Intellectual Property: USPTO Has Made Progress in Hiring Examiners, but Challenges to Retention Remain".

The report finds that the U.S. Patent and Trademark Office (USPTO) "has made greater progress in implementing its Strategic Plan’s initiatives to improve the patent organization's capability than it has in implementing initiatives to improve its productivity and agility. Specifically, of the actions planned to have been implemented by December 2004, USPTO has fully or partially implemented all 23 of the initiatives related to its capability theme, which focuses on improving the skills of employees, enhancing quality assurance, and altering the patent system through changes in existing laws or regulations."

However, the report continues, the USPTO "has partially implemented only 1 of the 4 initiatives related to the productivity theme to help reduce pendency, and has fully implemented only 1 and partially implemented 6 of the 11 initiatives related to the agility theme to help improve electronic processing of patent applications."

The GAO evaluates the performance and accountability of various government entities. It examines the use of funds, but does not make recommendations regarding appropriations. However, it states in this report that USPTO officials stated that the reason for not implementing many programs in its Strategic Plan is that the USPTO lacks the funding to implement the programs.

The USPTO is funded solely from user fees. However, the Congress has long diverted user fees to fund other government programs. Efforts to enact legislation to permanently end the practice of fee diversion have failed.

The report further finds that "Since 2000, USPTO has taken steps intended to help attract and retain a qualified patent examination workforce."

It also states that "when there is a downturn in the economy, USPTO’s ability to attract and retain qualified examiners increases because of perceived job security and competitive pay. This correspondence between the economy and USPTO’s hiring and retention success is part of the reason why USPTO has been able to meet its hiring goals for the last several years, but recently has experienced a rise in attrition rates."

The report also finds that the USPTO faces "three long-standing human capital challenges that could also undermine its recent efforts".

One of these is the lack of "ongoing technical education for patent examiners". The report relates that patent examiners and supervisory patent examiners stated that the literature that they review in applications is outdated, particularly in rapidly evolving technologies. Hence, the process of reviewing applications does not keep them abreast of new technologies.

Another long term challenge is that patent examiners stated that they "do not have enough time to conduct high-quality reviews of patent applications".

And third, patent examiners stated that "communication with management was poor or nonexistent".

GAO Report Finds Bad Management of Conversion to Electronic Patent System

6/17. The Government Accountability Office (GAO) released a report [39 pages in PDF] titled "Intellectual Property: Key Processes for Managing Patent Automation Strategy Need Strengthening".

The report finds that the U.S. Patent and Trademark Office (USPTO) "has made progress in delivering functionality through information systems that it has implemented, such as electronic filing and patent application classification and search, as well as Internet access for patent applicants and the public, respectively, to view the status of their applications and to search existing published patents."

"Nonetheless," the report continues, "collectively, these automated functions have not provided the fully integrated end-to-end patent processing capability articulated in USPTO’s automation plans. Two of the primary systems that the agency is relying on to enhance its capabilities -- its electronic filing system and a document imaging system that it acquired from the European Patent Office called Image File Wrapper -- have not yielded processing improvements that the agency had deemed essential to operate successfully in an electronic environment. Specifically, patent filers have stated that the electronic filing system is cumbersome, time-consuming, and costly, and does not meet their business and technical needs; thus, fewer than 2 percent of all patent applications are submitted to USPTO electronically."

The report concludes that the "USPTO’s ineffective planning and management of its patent automation projects, in large measure, can be attributed to enterprise-level, systemic weaknesses in the agency’s overall information technology investment management processes."

The report recommends that the USPTO "(1) reassess, and, where necessary, revise its approach for implementing and achieving effective uses of information systems supporting a fully automated patent process; (2) establish disciplined processes for planning and managing the development of patent systems based on well-established business cases; and (3) fully institute and enforce information technology investment management processes and practices to ensure that its automation initiatives support the agency’s mission and are aligned with its enterprise architecture."

This report assigns no blame on the level of funding for the USPTO, or the diversion of user fees to fund other government programs.

The report was prepared for Rep. Frank Wolf (R-VA), Chairman of the House Appropriations Committee's Subcommittee on Science, the Departments of State, Justice, and Commerce, and Related Agencies, and Rep. James Sensenbrenner (R-WI), Chairman of the House Judiciary Committee.

FTC Advises Congress That Mandating Subject Line Labeling Would Not Be Effective Anti-Spam Tool

6/17. The Federal Trade Commission (FTC) prepared a report [PDF] to the Congress titled "Subject Line Labeling As a Weapon Against Spam: A CAN-SPAM Act Report to Congress". It finds that mandating subject line labels would not be an effective way to fight spam.

The report recommends that the Congress not enact legislation requiring subject line labeling for three reasons: "(1) would not be an effective tool for ISPs to block and filter spam because it would not enhance ISPs’ current anti-spam techniques; (2) has technological and practical implementation problems; and (3) would not strengthen anti-spam law enforcement."

The report states that only law abiding marketers would follow such a requirement, while the problem with spam is unlawful marketers who would not follow the law. The report further suggests that more a more effective method for dealing with spam and spammers is authenticated e-mail.

FTC Commissioner Jonathan Liebowitz wrote in a dissenting statement that a "labeling requirement could be a modest tool to empower consumers to filter and sort commercial emails -- to read them later, evaluate them individually, or delete them in bulk if they choose". Commissioner Pamela Harbour wrote in a separate statement that she agreed with Liebowitz, but nevertheless titled her statement "concurring".

The FTC was required to conduct a study and write this report by the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, which is also known as the CAN-SPAM Act. See also, FTC release.

PFF Project Recommends Making FCC More Like the FTC and Antitrust Division

6/17. The Progress and Freedom Foundation's (PFF) Digital Age Communications Act (DACA) project released a paper [46 pages in PDF] on reforming laws affecting telecommunications and information technology.

The paper is titled "A Proposal for a New Regulatory Framework". It recommends a fundamentally different mission for the Federal Communications Commission (FCC). It states that "regulation in the digital age should be based, almost exclusively, on competition law principles drawn from antitrust law and economics. Regulation should respond to instances of abuse of market power, which are more than transitory in nature, and regulation should address such instances of abuse as they occur. The regulator would act principally through adjudication, responding as antitrust authorities do, to correct abuses as they occur, largely eliminating the elaborate web of rules and regulations that has grown up under the existing statute." Although, the DACA proposal would perpetuate certain other functions, including limited rule making authority, licensing authority, and limited license transfer review authority.

The paper proposes to reduce the FCC to something more like the Federal Trade Commission's (FTC) Competition Bureau and the Department of Justice's (DOJ) Antitrust Division, but with sectoral, rather than general, authority. Its sector would be "electronic communications networks and electronic communications services".

However, this would not create a third antitrust authority, because the FCC is already exercising a form of sectoral antitrust merger review authority, albeit, without statutory authority.

The paper also includes proposed language for a bill. The key section provides that "Unfair methods of competition in or affecting electronic communications networks and electronic communications services, and unfair or deceptive practices in or affecting electronic communications networks and electronic communications services, are hereby declared unlawful."

The draft bill further proposes that "unfair methods of competition" includes "practices that present a threat of abuse of significant and non-transitory market power as determined by the Commission consistent with the application of jurisprudential principles grounded in market-oriented competition analysis such as those commonly employed by the Federal Trade Commission and the United States Department of Justice in enforcing the Federal Trade Commission Act and the antitrust laws of the United States".

Also, the draft language provides that "unfair methods of competition" includes "with respect to interconnection, practices that pose a substantial and nontransitory risk to consumer welfare by materially and substantially impeding the interconnection of public communications facilities and services in circumstances in which the Commission determines that marketplace competition is not sufficient adequately to protect consumer welfare, providing that in making any such determination the Commission must consider whether requiring interconnection will affect adversely investment in facilities and innovation in services."

The paper explains that "The new regulatory framework permits the Federal Communications Commission to order the interconnection of communications networks, in situations in which markets are not adequately providing interconnection and in which the denial of interconnection would substantially harm consumer welfare."

The paper elaborates that "although communications markets are increasingly becoming competitive, in some important access markets competition is likely to be among a relatively small number of access providers. This, coupled with the network effects that inhere in communications markets, means that the strategic denial of interconnection may be a rational competitive strategy -- and that private benefits from the denial of interconnection may not align with total social welfare."

The draft bill also provides that the FCC would retain some rule making authority. It would be authorized to "prescribe rules which define with specificity acts or practices which are unfair methods of competition or unfair or deceptive acts or practices". However, the draft bill also includes several checks and limitations on FCC rulemaking authority. All rules would sunset after five years.

Also, any rules would have to be based upon "a showing of clear and convincing evidence presented in the rulemaking proceeding, that marketplace competition is not sufficient adequately to protect consumer welfare and that such act or practice causes or is likely to cause substantial injury to consumers and is not avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition".

The draft language does not perpetuate the current Communications Act's frequent use of the undefined term "public interest". Rather, the underlying purpose would become to promote "consumer welfare", as understood by the economic analysis of free market economists.

The draft language also would give the FCC "authority to hear complaints from any party injured by an act of unfair competition and to award damages for any violation found".

The FCC would continue to issue licenses, and have authority with respect to license transfers. However, the draft language would restrict FCC authority, for example, by setting a hard deadline of 90 days for FCC determinations, restricting the FCC's ability to impose conditions on license transfers, and limiting the FCC criteria to compliance with the statute and rules.

The draft bill also defines the scope of the FCC's sectoral authority. It provides that an "electronic communications network” means "transmission systems and, where applicable, switching or routing equipment and other facilities which permit the conveyance of signals by wire, by radio, by optical or by other electromagnetic means, over satellite, cable, or other facilities, whether fixed or mobile, to the extent that they are used for the purpose of transmitting signals, irrespective of the type of information conveyed."

It further provides that an "electronic communications service” means "a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks."

Early this year, the PFF formed its project titled the "Digital Age Communications Act", or DACA. Its purpose is to review, issue reports on, and make legislative recommendations regarding, the legislative and regulatory framework affecting the communications and information technology sectors. The DACA project has five working groups. The just released report, by the Regulatory Framework Working Group, is the DACA's first report.

See also the PFF's DACA web site. And see, story titled "PFF Announces Digital Age Communications Act Project" in TLJ Daily E-Mail Alert No. 1,068, February 2, 2005.

Also, on Tuesday, June 21, the PFF will host an event that will address this report. The event is titled "Digital Age Communications Act Regulatory Framework Working Group: Public Release and Discussion of a Working Group Draft Document".

The speakers will included Sen. John Ensign (R-NV), FCC Commissioner Kathleen Abernathy, Raymond Gifford (PFF), Randolph May (PFF), and James Speta (Northwestern University law school). See, PFF notice.  The event will be held from 10:00 AM to 2:00 PM at the Hyatt Regency Capitol Hill, 400 New Jersey Ave., NW.

al evidence that trade-throughs were a significant problem or that intermarket price protection was the solution."

Groups Oppose Legislation Giving FCC Authority to Write Broadcast Flag Rules

6/17. A group of interest groups, including Public Knowledge (PK) and the American Library Association (ALA), wrote a letter to Representatives and Senators opposing legislation to give the Federal Communications Commission (FCC) authority to promulgate broadcast flag rules.

A broadcast flag is digital code embedded in a digital broadcasting stream. It signals digital television (DTV) reception equipment to limit redistribution. For it to be effective, DTV equipment must give effect to a broadcast flag. Hence, the FCC wrote rules that contains technology mandates for equipment manufacturers.

The FCC did adopt broadcast flag rules. However, on May 6, 2005, the U.S.Court of Appeals (DCCir) issued its opinion [34 pages in PDF] in American Library Association v. FCC, overturning the FCC's broadcast flag rules. It held that the FCC lacked statutory authority. See, story titled "DC Circuit Reverses FCC's Broadcast Flag Rules" in TLJ Daily E-Mail Alert No. 1,131, May 9, 2005.

The groups wrote that "The broadcast flag scheme will hurt consumers. The flag will also hinder educational use of copyrighted content, and will stifle the design, operation, and further development of innovative consumer electronics."

They asserted that the broadcast flag "would give the FCC unprecedented power to determine the design of consumer electronics and computer technology".

They added that "the flag scheme will prevent a teacher from transmitting a DTV clip over the Internet to students as part of a distance learning program."

And furthermore, the groups argued in this letter that "The flag scheme would prevent a member of Congress from emailing a DTV clip of his district appearance on local television to his DC office."

The signers of the letter include representatives of many of the groups that in numerous copyright related issues support a weakening of intellectual property rights and remedies. These signers include Public Knowledge (PK), American Library Association (ALA), American Association of Law Libraries (AALL), Association of Research Libraries (ARL), Medical Library Association (MLA), Computer & Communications Industry Association (CCIA), the Open Source and Industry Alliance (OSLA), Educause, and the Electronic Frontier Foundation (EFF).

The FCC adopted its broadcast flag notice of proposed rulemaking (NPRM) on August 8, 2002. The FCC released the text [12 pages in PDF] of this NPRM on August 9, 2002. See, story titled "FCC Issues NPRM on Broadcast Flag" in TLJ Daily E-Mail Alert No. 489, August 12, 2002. The FCC adopted and released, on November 4, 2003, its rules mandating the broadcast flag in its Report and Order and Further Notice of Proposed Rulemaking [72 pages in PDF]. See, story titled "FCC Releases Broadcast Flag Rule", also published in TLJ Daily E-Mail Alert No. 772, November 5, 2003, and story titled "More Reaction to the FCC Broadcast Flag Item" in TLJ Daily E-Mail Alert No. 773, November 6, 2003.

The FCC, with prodding from members of Congress, and content industry representatives, promulgated its broadcast flag rules as a part of a larger effort by the federal government to plan a transition in the market from analog to digital television (DTV). Unlike analog broadcasts, digital copies of movies and other programming provide would be infringers with perfect copies that can be saved, stored, and retransmitted over the internet. This gives content owners a disincentive to make their works available in digital format. To the extent that content owners do not provide digital content to broadcasters, TV viewers have less incentive to purchase DTV equipment. In order to remove this disincentive for content owners the FCC promulgated broadcast flag rules.

The FCC has statutory authority to license and regulate the use of electromagnetic spectrum, including devices that transmit and receive radio frequency signals. It does not have statutory authority to protect copyrights, or to regulate consumer electronic equipment for the purpose of protecting copyrights. And, the Court of Appeals held that "There is no statutory foundation for the broadcast flag rules".

Sensenbrenner Defends House Judiciary Committee Hearings on PATRIOT Act

6/17. Rep. James Sensenbrenner (R-WI), the Chairman of the House Judiciary Committee, made a statement in the House regarding the dozen hearings held by the HJC and its Subcommittee on Crime regarding the sixteen expiring provisions of Title II of the PATRIOT Act, as well as criticism from some House Democrats regarding these hearings. Many of these sixteen provisions relate to communications and information technologies

For example, on June 10, the House Minority Leader, Rep. Nancy Pelosi (D-CA), wrote in a release that "The Republicans' abuse of power reached a new low this morning when they tried to silence Democrats at a hearing on the Patriot Act by cutting the microphones. Chairman Sensenbrenner proved again today that he is afraid of ideas, and that Republicans will stop at nothing to silence Democrats." She also leveled accusations of "Republican abuses of power". She asserted that "Republican leaders dictate the party line and ram bills through committees". She decried the "Republicans' shameful behavior" and the "disgraceful conduct by Mr. Sensenbrenner".

Rep. Sensenbrenner responded on June 17 to these "false, misleading, and malicious allegations". He stated that "The record clearly proves that I have worked in a bipartisan manner to ensure that the Committee has received testimony from an array of knowledgeable witnesses of diverging view points, and that Members had ample opportunity to address questions to each of them."

"By scheduling 12 hearings on reauthorization of the PATRIOT Act during this Congress, in addition to the bipartisan record established in previous Congresses, I have proven my commitment to conducting rigorous and comprehensive oversight of the implementation of the PATRIOT Act. Since commencing this latest series of oversight hearings in April of this year, the top two officials at the Justice Department – Attorney General Gonzales and Deputy Attorney General Comey – have testified before the Committee on separate occasions. In each of the additional nine recent hearings held on this subject, the minority was allowed to designate at least one – and sometimes two – of the customary four witnesses at Committee hearings, thus providing a consistent platform for additional and often dissenting viewpoints", said Sensenbrenner.

He asserted that "The record clearly demonstrates that this Committee has engaged in a thorough, comprehensive, and bipartisan review of the PATRIOT Act since its passage. Assertions to the contrary are not only unfounded, they are plainly false, misleading, and malicious."

This significance of this exchange may not lie in who is right and who is wrong. That Democrats and Republicans are exchanging harsh words evidences a lack of a bipartisan effort to impose limitations upon Title II of the PATRIOT, and hence, diminishes the likelihood that the House will develop and enact a bipartisan bill over Bush administration objections. See also, story titled "Commentary: Partisan Theatrics Threaten Bipartisan Efforts to Place Limits in Title II of PATRIOT Act" in TLJ Daily E-Mail Alert No. 1,152, June 13, 2005.

More News

6/17. Scott Parsons, Deputy Assistant Secretary for Critical Infrastructure at the Department of the Treasury, gave a speech in Los Angeles, California, on identity theft and e-commerce. He stated that one "risk of identity theft is the potential ``chilling effect´´ on e-commerce. Surveys suggest that some consumers are wary of buying online because they fear identity theft. When fraud discourages Americans from taking advantage of one of the greatest innovations of our age, we all suffer. Online banking, for example, not only enables efficiency and cost-savings for financial institutions, these electronic transactions increase the consumers' power of choice and enhance competition in the industry. An erosion of trust can threaten the effectiveness of our financial system."

Robert Portman6/17. Robert Portman, the U.S. Trade Representative (USTR), and Peter Mandelson, the EU Commissioner for Trade, held a meeting, and then held a news conference, in which they discussed intellectual property. See, transcript. Portman stated that "The intellectual property issue is one that has gained more and more interest in the US Congress as you probably noticed as it relates to China. But it’s not just about China. It's about a good global effort to be sure that patents and trademarks and copyright are protected that the innovators, entrepreneurs and artists have their work protected. It's about private property and what you will see I think on Monday is a strong statement by the European Union and the United States on that regard." The annual U.S.-EU Summit will take place in Washington DC on Monday, June 20, and Tuesday, June 21. See, White House release.

6/17. The National Institute of Standards and Technology (NIST) released its Draft Special Publication 800-79 [49 pages in PDF], titled "Guidelines for the Certification and Accreditation of PIV Card Issuing Organizations". (PIV is Personal Identify Verification.) Comments are due by Sunday, July 10, 2005.

6/17. The Bureau of Industry and Security (BIS) announced that its "system for accepting paper applications is not working due to technical difficulties. We anticipate that the system will be fully functional by June 21, 2005. In the meantime, exporters should submit applications via our electronic licensing system, SNAP."

Go to News from June 11-15, 2005.