TLJ News from February 26-28, 2006

Senate Invokes Cloture on PATRIOT Act Amendments Bill

2/28. The Senate approved a motion to invoke cloture on S 2271, the "USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006", by a vote of 69-30. See, Roll Call No. 23.

This is a procedure to terminate debate, and a filibuster, of a bill. The Senate may vote on final approval of S 2271 as early as Wednesday morning, March 1. The Senate is then scheduled to consider the conference report on the huge conference report [PDF] on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005". HR 3199 would extend the sunsetted provisions of the USA PATRIOT Act.

Sen. Patrick Leahy (D-VT), Sen. Russ Feingold (D-WI), and 28 other Democrats voted against the cloture motion.

Sen. Feingold stated during debate that "We should not end debate on this bill, and we should not pass this bill. Doing so will only help implement the deeply flawed deal that was struck with the White House to reauthorize the PATRIOT Act without enacting the core civil liberties protections for which so many of us have fought."

He added that "In recent weeks, Senators have worked with the White House to produce a compromise. However, the compromise remains far short of what is required to protect Americans' civil liberties. Regrettably, the Senate has backed down from its earlier stand and is poised to pass the inadequate bill."

Sen. John Sununu (R-NH), the lead sponsor of S 2271, stated that his bill "represents a compromise", but also "represents a substantial step forward in terms of better safeguarding our civil liberties from where we were with the current law and, equally important, allows us to lock in, to get enacted into law a number of other improvements that many of us worked very hard on in a bipartisan way."

See also, story titled "Republican Senators Announce Agreement on PATRIOT Act Extension" in TLJ Daily E-Mail Alert No. 1,307, February 10, 2006.

The House is also scheduled to take up S 2271 on March 1 or 2, 2006. It has already approved the conference report on HR 3199. See, story titled "House Approves Conference Report on PATRIOT Act Extension Bill" in TLJ Daily E-Mail Alert No. 1,273, Thursday, December 15, 2005.

PFF Paper Advocates Empowering Authors

2/28. The Progress and Freedom Foundation (PFF) released a paper [9 pages in PDF] titled "Artists and Culture: Empowering the Former to Foster the Latter". Patrick Ross of the PFF is the author.

He writes that the content companies that serve as intermediaries and distributors are represented in Washington DC, as are their ideological opponents from academia and advocacy groups who advocate free culture. Much of the paper is a rebuttal of Lawrence Lessig's book titled "Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity" [Amazon].

Ross argues that in addition to the free culture movement, the end users, and the content companies, there are also the artists who create the works that make up the culture. He argues that "it is critical that the artist be given greater respect".

He concludes that "While there will always be those who appoint themselves guardians and protectors of our culture, we can recognize that they aren't truly needed. That is, they aren't needed as long as artists retain their longstanding role in the culture. Artists, through the flexible exercise of their rights bundles, allow the culture to be enriched. No corporation can lock that culture down, and no p2p pirate can significantly erode that culture, as long as society collectively thanks its artists by respecting property rights."

Ross also stated that "The Internet is changing the way media is produced, packaged and distributed. It likely will become increasingly common to see artists as their own distributors as the Internet removes the need for manufacturing, transportation of media, and retailing shelf space."

Supreme Court Reverses in Texaco v. Dagher

2/28. The Supreme Court issued its opinion [9 pages in PDF] in Texaco v. Dagher, an antitrust case, reversing the judgment of the U.S. Court of Appeals (9thCir). While this is an antitrust case involving joint ventures in the oil industry, the holding impacts many other industry sectors, including communications and information technology, where there are also lawful joint venture agreements.

The Supreme Court held that it is not per se illegal under Section 1 of the Sherman Act for a lawful, economically integrated joint venture to set the prices at which the joint venture sells its products. It reversed the Court of Appeals. See, June 1, 2004, divided opinion [34 pages in PDF], which is also reported at 369 F.3d 1108.

See, full story.

People and Appointments

2/28. The Securities and Exchange Commission (SEC) announced that SEC Chairman Chris Cox has been given a "clean bill of health" by his doctors, following his January 30, 2006, surgery to remove a benign thymic tumor. The SEC added that Cox "returned to work part time two weeks after surgery, and full time this week". See, SEC release.

2/28. Douglas Hoelscher was named Executive Director of the Department of Homeland Security's (DHS) Homeland Security Advisory Committees. See, DHS release.

2/28. Qwest Communications announced in a release that Philip Anschutz and Cannon Harvey will not stand for re-election to Qwest's Board of Directors at the upcoming annual meeting.

More News

2/28. The Federal Communications Commission (FCC) issued a Notice of Apparent Liability for Forfeiture [8 pages in PDF] that finds First Choice Healthcare liable for apparent violations of 47 U.S.C. 227, and the FCC's rules thereunder, for sending unsolicited advertisements to the telephone facsimile machines of consumers. That is, the FCC proposes to fine First Choice $776,500 for sending junk fax messages. This NALF is FCC 06-22.

2/28. The Department of Commerce (DOC) released preliminary gross domestic product (GDP) data for the fourth quarter of 2005. See, release and tables. The DOC stated that real GDP "increased at an annual rate of 1.6 percent in the fourth quarter of 2005". The DOC also reported that fixed investment in information processing equipment and software, in chained (2000) dollars, seasonally adjusted, at an annual rate, was $615.4 Billion in the 4th quarter. This is up from 600.2 in the 3rd quarter, and 539.7 in the 4th quarter of 2004. The DOC also reported, that in current dollars, fixed investment in information processing equipment and software, seasonally adjusted, at an annual rate, was $502.4 Billion in the 4th quarter of 2005. This is up from 494.5 in the 3rd quarter, and 456.3 in the 4th quarter of 2004. That is, information technology purchases are growing far faster than the economy as a whole. Also, the DOC noted in its release that "Final sales of computers contributed 0.34 percentage point to the fourth-quarter growth in real GDP".

2/28. The Office of the U.S. Trade Representative (USTR) published a notice in the Federal Register announcing that it has "determined to terminate sanctions imposed on certain EC Member States (Austria, Belgium, Denmark, Finland, France, Ireland, Italy, Luxembourg, the Netherlands, Sweden, and the United Kingdom)." (Parentheses in original.) The USTR added that "This determination is based on assurances from the European Communities that EC telecommunications operators are no longer subject to discriminatory requirements, and that purchasing by EC telecommunications operators are now based solely on commercial considerations, not EC procurement rules." See, Federal Register, February 28, 2006, Vol. 71, No. 39, at Page 10093.

2/28. The Recording Industry Association of America (RIAA) announced the filing of yet another round of civil complaints in U.S. District Courts on behalf of large record companies against individuals alleged to have infringed copyrights on peer to peer file sharing systems. See, RIAA release.

Supreme Court News

2/27. The Supreme Court denied certiorari in Theis Research v. Brown & Bain. See, Order List [10 pages in PDF] at page 2. This lets stand the October 20, 2004 opinion [12 pages in PDF] of the U.S. Court of Appeals (9thCir) affirming the District Court's confirmation of an arbitration award. See also, Supreme Court docket, and story titled "Court of Appeals Affirms Zero Arbitration Award in Theis v. Brown & Bain" in TLJ Daily E-Mail Alert No. 1,001, October 21, 2006. This case is Theis Research v. Brown & Bain, Sup. Ct. No. 04-1566, a petition for writ of certiorari to the U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 02-16839. The Court of Appeals heard an appeal from the U.S. District Court for the Northern District of California, D.C. No. CV-99-20645-RMW.

2/27. The Supreme Court denied certiorari in Shymatta v. Microsoft., a pro se action alleging discrimination on the basis of religion in violation of the state of California's Unruh Civil Rights Act, which is codified at Cal. Civ. Code 51 et seq., and violation of California Business and Professions Code 16721 and 17200. The District Court granted summary judgment to Microsoft. It held that Microsoft's denial of permission to copy from its Encarta Encyclopedia for inclusion in a book on religion by Shymatta did not violate the Unruh Act or the Business and Professions Code. The Court of Appeals affirmed. See, Court of Appeals' September 27, 2005 opinion [4 pages in PDF]. See, Order List [10 pages in PDF] at page 9, and Supreme Court docket. This case is David Shymatta v. Microsoft Corporation, Sup. Ct. No. 05-8433, a petition for writ of certiorari to the U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 04-55206. The Court of Appeals heard an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-03-01038-JFW. Chief Justice Roberts took no part in this case.

People and Appointments

2/27. President Bush announced his intent to appoint 14 persons to be members of the President's Council of Advisors on Science and Technology (PCAST). See, White House release.
 • Duane Ackerman (Ch/CEO of BellSouth).
  Paul Anderson.
  Robert Brown (MIT).
  Nance Dicciani (Specialty Materials, a division of Honeywell).
  Richard Herman (University of Illinois, Urbana Champaign).
  Martin Jischke (President of Purdue University).
  Fred Kavli.
  Daniel Reed (University of Illinois, Urbana Champaign).
  Hector de Jesus Ruiz (Ch/CEO of Advanced Micro Devices).
  Stratton Sclavos (P/Ch/CEO of VeriSign).
  John Brooks Slaughter.
  Joseph Tucci (P/Ch/CEO of EMC)
  Robert Witt (President of the University of Alabama).
  Tadataka Yamada (Chairman for Research & Development, Pharmaceuticals, at GlaxoSmithKline, and Executive Director of the Bill and Melinda Gates Foundation's Global Health program).

2/27. On February 23, 2006, President Bush announced his intent to nominate John Emling to be Assistant Secretary of Commerce for Legislative and Intergovernmental Affairs. He is currently Deputy Assistant Secretary for Legislative Affairs at the Department of Treasury. See, White House release. On February 27, Bush formally nominated Emling. See, White House release.

2/27. John Nester was named Director of the Securities and Exchange Commission's (SEC) Office of Public Affairs. See, SEC release.

Go to News from February 21-25, 2006.