TLJ News from April 11-15, 2006

Supreme Court Prohibits Prohibitions on Citation of Unpublished Opinions

4/14. The Supreme Court released its amendments [6 pages in PDF] to the Federal Rules of Appellate Procedure (FRAP). These changes add a new Rule 32.1, pertaining to citation of opinions designated as "unpublished".

The new Rule 32.1 provides that "A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been: (i) designated as ``unpublished,´´ ``not for publication,´´ ``non-precedential,´´ ``not precedent,´´ or the like; and (ii) issued on or after January 1, 2007."

See, full story.

Supreme Court Addresses Electronic Filings and Discovery of Electronically Stored Information

4/14. The Supreme Court released its amendments to various rules to allow courts to permit or require papers to be filed, signed, or verified by electronic means. The amendments to the rules of civil procedure also address discovery and subpoenas in the context of "electronically stored information".

See, amendments [73 pages in PDF] to the Federal Rules of Civil Procedure (FRCP), amendments [6 pages in PDF] to the Federal Rules of Appellate Procedure (FRAP), and amendments [7 pages in PDF] to the Federal Rules of Bankruptcy Procedure.

The amendment to Rule 5, FRCP, provides, in part, that "... A court may by local rule permit or require papers to be filed, signed, or verified by electronic means that are consistent with technical standards, if any, that the Judicial Conference of the United States establishes. A local rule may require filing by electronic means only if reasonable exceptions are allowed. A paper filed by electronic means in compliance with a local rule constitutes a written paper for the purpose of applying these rules. The clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or any local rules or practices."

The amendment to Rule 25, FRAP, provides that "A court of appeals may by local rule permit or require papers to be filed, signed, or verified by electronic means that are consistent with technical standards, if any, that the Judicial Conference of the United States establishes. A local rule may require filing by electronic means only if reasonable exceptions are allowed. A paper filed by electronic means in compliance with a local rule constitutes a written paper for the purpose of applying these rules."

The amendment to Rule 5005, FRBP, provides that "A court may by local rule permit or require documents to be filed, signed, or verified by electronic means that are consistent with technical standards, if any, that the Judicial Conference of the United States establishes. A local rule may require filing by electronic means only if reasonable exceptions are allowed. A document filed by electronic means in compliance with a local rule constitutes a written paper for the purpose of applying these rules, the Federal Rules of Civil Procedure made applicable by these rules, and § 107 of the Code."

The amendments to the FRCP also contain numerous changes to the pre-trial discovery rules (26 through 37), including changes pertaining to electronic discovery.

For example, the amendments add references to "electronically stored information" to Rule 34 (regarding production of documents), Rule 33 (interrogatories), and Rule 26 (general provisions).

There is also a new Rule 37(f), which provides that "Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system."

The amendments also address subpoenas (Rule 45) for "electronically stored information", and production of "electronically stored information".

CBS Challenges FCC's Indecency Actions

4/14. CBS filed challenges to certain of the Federal Communications Commission's (FCC) March actions pertaining to broadcasting and indecency. See, story titled "FCC Releases Indecency Orders" in TLJ Daily E-Mail Alert No. 1,332, March 20, 2006.

On March 15, 2006, the FCC released a notice of apparent liability for forfeiture [28 pages in PDF] that finds that CBS Television Network affiliated stations and CBS broadcast an indecent episode of the program titled "Without a Trace". This NAL states that this episode depicted "teenage boys and girls participating in a sexual orgy". The total of these fines is over $3.6 Million. This item is FCC 06-18.

Also on March 15, 2006, the FCC released a forfeiture order [30 pages in PDF] that fines CBS $550,000 in connection with the exposure of the breasts of a singer named Janet Jackson in a broadcast music performance. This order is FCC 06-19.

CBS filed with the FCC an opposition to the NAL and a petition for reconsideration of the forfeiture order.

Tamara Lipper, a spokesman for the FCC, stated in a release that "The episode of CBS's Without A Trace that the Commission found to be indecent depicts a teen orgy as well as a teenage girl straddling (and apparently engaging in intercourse) with one boy while two others kissed her breast. Additionally, in its recent order the Commission again rejected CBS's argument that the broadcast of the Super Bowl XXXVIII halftime show was not indecent. That argument runs counter to Commission precedent and common sense. The Commission however, will review any request for reconsideration." (Parentheses in original.)

People and Appointments

4/14. Satish Rishi was named SVP, Finance and Chief Financial Officer at Rambus. See, Rambus release.

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4/14. The Government Accountability Office (GAO) released a report [78 pages in PDF] titled "Small Business Innovation Research: Information on Awards Made by NIH and DoD in Fiscal Years 2001 through 2004".

4/14. The Copyright Office announced in its web site an extension of the deadline for submitting comments to the Library of Congress's (LOC) Section 108 Study Group in response to the LOC's notice in the Federal Register regarding, among other topics, expanding the scope of 17 U.S.C. § 108. The previous deadline, announced in the notice in the Federal Register (February 15, 2006, Vol. 71, No. 31, at Pages 7999-8002), was Monday, April 17, 2006. The new deadline is Friday, April 28, 2006.

4/14. A trial jury of the U.S. District Court (DMass) returned a verdict in Ethos Technologies v. Real Networks. The jury found that Real did not infringe 10 patents at issue, and that 7 of the 10 patents are invalid. See, Real release.

Antitrust Division Sues Qualcomm for Acquisition Gun Jumping

4/13. The Department of Justice's (DOJ) Antitrust Division filed a complaint in U.S. District Court (DC) against Qualcomm and Flarion Technologies alleging violation of premerger notification and waiting period requirements of Section 7A of the Clayton Act, which is codified at 15 U.S.C. § 18a.

The complaint alleges that "throughout the Section 7A waiting period, Flarion ceded to QUALCOMM control of much of its management and operations, including customer proposals, price discounts, licensing strategies, and personnel decisions."

It adds that "QUALCOMM effectively acquired Flarion's business before the expiration of the Section 7A waiting period through the Merger Agreement's requirements that Flarion obtain QUALCOMM's consent before undertaking numerous competitive activities and through the parties' conduct, by which Flarion did not make even routine business decisions unless and until QUALCOMM consented. By obtaining operational control of Flarion's business, QUALCOMM acquired beneficial ownership of Flarion's assets and thus acquired and held those assets within the meaning of Section 7A prior to the expiration of the Section 7A waiting period."

The DOJ and Qualcomm simultaneously filed a Stipulation and proposed Final Judgment, which provide for a civil fine of $1.8 Million. Neither contains an admission or finding or wrongdoing by Qualcomm. Louis Lupin, SVP and General Counsel of Qualcomm, stated in a release that "we decided to put this matter behind us to avoid diverting or distracting the QUALCOMM-Flarion team from the important tasks of integrating the best of both companies' technologies and refining our joint roadmap".

Thomas BarnettThomas Barnett (at right), Assistant Attorney General in charge of the Antitrust Division, stated in a release that "Merging parties must continue to operate independently until the end of the premerger waiting period ... The Antitrust Division will vigorously enforce this requirement against any company that assumes operational control of a business that it is acquiring."

This case is U.S.A. v. Qualcomm, Inc. and Flarion Technologies, Inc., U.S. District Court for the District of Columbia, D.C. No. 1:06CV00672 (PLF), Judge Paul Friedman presiding.

People and Appointments

4/13. Former Rep. Brian Bilbray (R-CA) won the special Republican primary election for the 50th District of California. See, election results. There will be a special election in June to fill the seat vacated by former Rep. Duke Cunningham (R-CA). Bilbray previously represented the district now held by Rep. Susan Davis (D-CA). He was elected in the Republican landslide of 1994 in a Democratic leaning district. He lost this seat to Rep. Davis in 2000. The 50th District leans Republican. The Democratic candidate will be Francine Busby. Bilbray was a member of the House Commerce Committee.

4/13. President Bush announced his intent to nominate Daniel Sullivan to be Assistant Secretary of State for Economic and Business Affairs. A White House release states that "Major Sullivan is currently on military leave from the National Security Council where he recently completed service as a Strategic Advisor and Special Assistant to the Commander US Central Command in Tampa, Florida. Prior to being recalled to active duty service, he served as a Director in the International Economics Directorate for the National Security Council and National Economic Council at the White House."

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4/13. The Federal Communications Commission (FCC) released its Memorandum Opinion and Order [11 pages in PDF] in its proceeding titled "In the Matter of Petition by Forest Conservation Council, American Bird Conservancy and Friends of the Earth for National Environmental Policy Act Compliance". This addresses whether the construction of communication towers in the Gulf Coast region violates various environmental statutes. The FCC adopted this item on April 11, 2006. This item is FCC 06-44. FCC Commissioner Jonathan Adelstein wrote in a separate statement [PDF] that "I am willing to vote in favor of our ruling today because of the agreement to my request to consider a Notice of Proposed Rulemaking in the larger proceeding addressing the important issue of the potential effects of communication towers on migratory birds." See also, dissenting statement [PDF] by Commissioner Michael Copps.

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4/13. The People's Republic of China (PRC) announced that its Internet Society of China adopted a statement regarding suppression of free speech on the internet. The PRC wrote in a release that "``We should run our business in a civilized way. We should not produce, disseminate and spread information that harms state security, social stability and information that violates laws and regulations and social morality,´´ says a written proposal issued by the society and its regional branches. It calls for concerted efforts to supervise content, delete ``unhealthy´´ information and oppose acts that undermine ``Internet civilization´´, harm social stability and hamper development of Internet businesses."

FCC Adopts Procedures for AWS Auction

4/12. The Federal Communications Commission (FCC) adopted and released a Public Notice [94 pages in PDF] addressing filing requirements, minimum opening bids, upfront payments and other procedures for Auction No. 66. This is the Advanced Wireless Services (AWS) or Third Generation (3G) auction, scheduled to start on June 29, 2006. This item is FCC 06-47 in AU Docket No. 06-30. See also, FCC release.

The FCC will not make available either bidders' license selections on their short form applications or the identities of bidders who place bids in each round, as well as other information on bidder activity and eligibility, until after the close of the auction.

FCC Chairman Kevin Martin explained in a separate statement [PDF] that "allegations of collusive behavior have been raised in regard to past auctions. Despite various attempts to address these concerns, the Commission’s auction processes continue to provide opportunities for various types of collusion and other anti-competitive bidding behavior. Unfortunately, the ongoing susceptibility of our auctions to these practices is no secret; methods for exploiting our auctions have been described in detail in articles directed specifically at the Commission’s current auction format. In light of this evidence, I believe it is essential that we make an effort to foreclose anti-competitive bidding behavior in this auction."

See also, statement [PDF] by Commissioner Deborah Tate, statement [PDF] by Commissioner Jonathan Adelstein, and statement [PDF] by Commissioner Michael Copps.

FCC Adopts Rules Changes for BRS and EBS

4/12. The Federal Communications Commission (FCC) adopted, but did not release, an order amending its rules governing the 2496-2690 MHz Broadband Radio Service (BRS) and Educational Broadband Service (EBS) band. The FCC issued a brief release [PDF] that describes this order.

FCC Chairman Kevin Martin and Commissioner Deborah Tate wrote in a joint statement [PDF] that "In 2004, the Commission initiated a fundamental restructuring of the 2500-2690 MHz band to give educational and commercial licensees contiguous spectrum in the low power segments of the band, while preserving the high power segment for video uses, such as long-distance learning. Today, we affirm the allocation decisions adopted in the original order, including the reservation of spectrum for educational users."

They added that "Encouraging education and promoting the deployment of commercial broadband services are both important goals of the Commission, and we believe the leasing provisions the Commission adopts today will support them both."

Commissioner Jonathan Adelstein wrote in a statement [PDF] that "With this omnibus item, we move another step closer to the widespread deployment of wireless broadband services in the 2.5 GHz spectrum band. It’s taken a little longer than I hoped, but we are finally clarifying the set of rules that should accommodate future innovative technologies offered by Broadband Radio Service (BRS) and Educational Broadband Service (EBS) operators and facilitate the provision of advanced spectrum offerings. We are establishing a policy regime that will bring these the EBS and BRS services squarely into the 21st century."

Commissioner Michael Copps wrote in a statement [PDF] that "I worry whether we may be going too far today. I am not so certain that it is really wise for any educational institution to lock up, even partially, use of its valuable EBS license for the next 30 years."

The FCC release offers this summary. "In today's Order, the FCC adopted several modifications and enhancements to its July 2004 BRS/EBS Report and Order which restructured the 2496-2690 MHz band. Specifically, the FCC modified the process for transitioning to the new BRS/EBS band plan by changing the transition planning area from Major Economic Areas to Basic Trading Areas. The FCC also allowed BRS and EBS licensees the option to self transition to the new band plan in markets where a proponent has not come forward or a proponent withdraws an initiation plan. With respect to leases entered into under the FCC’s secondary market rules, the Commission held that EBS licensees are permitted to enter into excess capacity leases for a maximum of 30 years, but leases with terms of 15 years or longer must include a right to review the educational use requirements of the leases every five years starting at year 15. In addition, the FCC established a mechanism for eliminating overlaps between grandfathered EBS E and F channel licensees and co-channel BRS licenses by geographically splitting the overlap area. The FCC also affirmed that BRS and MSS operators can share a segment of this band at 2496-2500 MHz."

This order is titled "Order on Reconsideration and Fifth Memorandum Opinion and Order, and Third Memorandum Opinion and Order and Second Report and Order". It is FCC 06-46 in WT Docket No. 03-66, ET Docket No. 00-258, and IB Docket No. 02-364.

See also, story titled "FCC Announces NPRM To Provide Flexibility To Users of MMDS/ITFS Spectrum" in TLJ Daily E-Mail Alert No. 624, March 17, 2003, and story titled "FCC Adopts RO & NPRM Re ITFS/MDS Band" in TLJ Daily E-Mail Alert No. 916, June 11, 2004.

People and Appointments

4/12. John Giusti will become Deputy Bureau Chief of the Federal Communications Commission's International Bureau. He is currently Commissioner Michael Copps' Acting Legal Advisor for wireless and international issues. In addition, Copps named Scott Deutchman to be his Legal Advisor for competition and universal service issues. Last month Copps announced that he selected Bruce Gottlieb to be his Legal Advisor for wireless and international issues. See, story titled "Copps Announces Staff Changes" in TLJ Daily E-Mail Alert No. 1,332, March 20, 2006. Jessica Rosenworcel is Copps' Senior Legal Advisor, with responsibilities for media issues. See, Copps' release [PDF].

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4/12. The Federal Communications Commission (FCC) adopted, but did not release, a Ninth Report and Order establishing procedures by which new Advanced Wireless Service (AWS) licensees may relocate incumbent Broadband Radio Service (BRS) and Fixed Microwave Service (FS) operations in spectrum that has been allocated for AWS. The FCC issued a short release [PDF] describing this item. See also, separate statement [PDF] of Commissioner Michael Copps and separate statement [PDF] by Commissioner Deborah Tate. This item is FCC 06-45 in ET Docket No. 00-258 and WT Docket No. 02-353.

4/12. Google CEO Eric Schmidt traveled to PR China in connection with Google's search engine located at, which blocks access to web sites with political and social information censored by the Chinese government. See also, PR China release.

4/12. The Securities and Exchange Commission (SEC) released a document titled "Policy Statement of the Securities and Exchange Commission Concerning Subpoenas to Members of the News Media". The SEC reasserts that it has authority to subpoena "a member of the news media" regarding "verification of published information and to surrounding circumstances relating to the accuracy of published information".

4/12. The Federal Communications Commission (FCC) deleted one item from the agenda for its April 12, 2006, event titled "Open Meeting". It deleted consideration of a petition filed by the Forest Conservation Council and other groups. See, notice [PDF].

4/12. The Department of Justice's (DOJ) Antitrust Division published a notice in the Federal Register that the DVD Copy Control Association (DVDCCA) has filed a notice with DOJ and Federal Trade Commission (FTC), pursuant to the National Cooperative Research and Production Act of 1993, that the DVDCCA has added numerous new members. These new members are listed in the notice. See, Federal Register, April 12, 2006, Vol. 71, No. 70, at Page 18769.

4/12. The Department of Defense's (DOD) Defense Acquisition Regulations System (DARS) published a notice in the Federal Register that describes and sets the comment deadline (June 12, 2006) for its notice of proposed rulemaking (NPRM) regarding amending the Defense Federal Acquisition Regulation Supplement (DFARS) with respect to the exemption from the Buy American Act for the acquisition of commercial information technology. See, Federal Register, April 12, 2006, Vol. 71, No. 70, at Pages 18694-18695.

4/12. The Progress and Freedom Foundation (PFF) published a paper [12 pages in PDF] titled "Parents Have Many Tools to Combat Objectionable Media Content". The author is the PFF's Adam Thierer. The paper asserts that the combination of various "ratings systems, the V-Chip, set-top box parental controls (including gaming consoles), new Internet and mobile media filtering / screening technologies, and other technological tools like personal video recorders, mean that parents now have multiple layers of technological protection at their disposal." It adds that parents can "get rid of their TV sets and other media devices altogether". It concludes that "markets are bringing parents empowering tools to sort and filter content they might find objectionable. This is being done much more quickly, much more closely tailored to the parents’ own desires, and without concerns about censorship such as is associated with traditional government regulatory efforts."

DOJ Official States That IP Rights and Enforcement Lead to Innovation

4/11. Gerald Masoudi, a Deputy Assistant Attorney General in the Department of Justice's (DOJ) Antitrust Division, gave a speech in Sao Paolo, Brazil. He addressed "why some societies seem to have more innovation". His answer is an appropriately structured intellectual property rights regime.

His speech was consistent with many other speeches in which U.S. government officials, while in other countries, have argued that it is in the best interest of those countries to implement strong IPR regimes. However, Masoudi's speech differed in that he offered a more detailed and theoretical explanation as to why strong IPR regimes benefit the countries that possess them.

He began with some definitions. He asserted that "invention and innovation are different things: innovation -- which involves not just the inventive spark, but also the process of turning an invention into a product and bringing it all the way to market -- requires planning, investment, and execution over time".

He continued that these are "things that can be either encouraged or discouraged by a system of laws and policy." Hence, he argued, that "the puzzle of innovation ... must be answered by observing the ways that rational people respond to differences in laws and policy."

Then, he offered his thesis. He wrote that "there is an emerging consensus that four elements help to create a dynamic economy: first, strong, enforceable intellectual property rights; second, IP licensing freedom; third, an understanding that IP rights are not the same as antitrust market power; and fourth, a system of sound competition law priorities." He then elaborated in detail on each of these four elements.

Masoudi may be right that these four elements create either a "dynamic economy", "invention", and/or "innovation". However, there is not a consensus. In the U.S., some are arguing that some of these four elements inhibit innovation. Moreover, some are arguing that other elements lead to innovation, such as education policies, tax policies, government funding of research, and government support for universities.

Proponents of a hard network neutrality mandate argue that their legislative proposal is essential for innovation.

Some have pointed to cultural, religious and geographical differences as key determinants of innovativeness.

President Bush, and others, have articulated theories based upon freedom. For example, Bush has argued that "the prosperity, and social vitality and technological progress of a people are directly determined by extent of their liberty. Freedom honors and unleashes human creativity -- and creativity determines the strength and wealth of nations. Liberty is both the plan of Heaven for humanity, and the best hope for progress here on Earth." (See, November 18, 2003, speech and TLJ story titled "Bush Says Liberty Creates Innovation Which Creates Wealth".)

Most of Masoudi's speech was devoted to a discussion of his four elements. First, he addressed the element of "predictable, enforceable intellectual property rights". He said that for patents, copyrights, trademarks, and trade secrets rights must be "predictable and enforceable".

He elaborated that "In the world of physical property, enforceability means the right to exclude: for example, the ability to evict a person from your land. In the world of intellectual property, the fundamental right is similar: an enforceable IP right means the right to exclude others from using your intellectual property right at all. Since there is no way to build a fence around an IP right, businesses need the next best thing: quick access to the courts and access to preliminary and permanent injunctions against infringement. For example, in the United States, courts have applied a presumption of irreparable harm that makes the issuance of injunctions the norm rather than the exception. We provide multiple damages and attorneys fees for most forms of ``willful infringement,´´ meaning infringement undertaken in bad faith."

Many of these concepts are now under assault in proposals to reform both patent and copyright law in the U.S.

Masoudi next addressed "licensing freedom". He stated that "The best innovators are not necessarily the best manufacturers, marketers, or retailers. A license can promote efficiency by permitting the IP owner to combine with another firm that is more skilled in these areas."

He added that "recently, consensus has also begun to emerge that firms should be free to refuse to license and should be free to set royalties at whatever rate they choose."

He also stated that "The right to refuse to license has been the subject of some controversy", and reviewed recent cases in the U.S. and E.U.

In addition, he said that "Licensing freedom also means the right to charge whatever royalty the IP owner wishes." Finally, he cautioned against compulsory licensing, except as a remedy in narrow circumstances.

Masoudi next addressed presumption of market power from ownership of IP rights. He said that "While intellectual property grants exclusive rights, these rights are not monopolies in the economic sense: they do not necessarily provide a large share of any ``relevant market´´ in antitrust parlance and they do not necessarily lead to the ability to raise prices in any market. A single patent, for example, may have dozens of close substitutes. The mere presence of an intellectual property right does not permit an antitrust enforcer to skip the crucial steps of market definition and determining market effects."

He added that the U.S. antitrust authorities "have long taken the view that IP rights cannot be presumed to create market power".

Masoudi next addressed his fourth element, "sound competition law priorities". He reiterated the Antitrust Division's often stated principles that price fixing cartels should be the highest priority, while single firm conduct should not be a priority. The EU especially does not share this approach. He argued for an "effects-based approach to antitrust analysis". He did not take up the E.U.'s actions against Microsoft in the prepared text of his speech.

Masoudi also discussed "static and dynamic efficiency". He posited that innovation leads to dynamic efficiency, which is "the key engine of economic growth". He elaborated that "Static efficiency describes the tendency of a marketplace to reduce costs by refining existing products and capabilities", and should be protected by competition policy, but that "dynamic efficiency" is the "greater driver of growth".

He continued that "dynamic efficiency and innovation require a large upfront investment -- as new technologies increasingly do -- the same forces that promote static efficiency can deter dynamic efficiency. If rivals quickly adopt a new innovation and drive production costs and prices to their lowest levels, this can impair the chances that any large, fixed, upfront investment can be recouped." He argued that implementation of the four elements are necessary to give innovators the incentive to invest in innovating.

Masoudi spoke at a conference hosted by the Progress and Freedom Foundation (PFF) and Associação Brasileira da Propriedade Intelectual (ABPI) titled "Intellectual Property in the Digital World-The Importance for Brazilian Development".

DC Circuit Rules in Case Regarding Deemed Lawful Tariffs

4/11. The U.S. Court of Appeals (DCCir) issued its opinion [12 pages in PDF] in Virgin Island Telephone v. FCC, a case regarding telephone tariffs, and the "deemed lawful" provisions of the Telecommunications Act of 1996.

Virgin Islands Telephone Corporation (Vitelco), a local phone company, filed a petition for review of a Federal Communications Commission (FCC) order regarding the rates that Vitelco charged AT&T to complete its calls to Vitelco customers. The FCC held that Vitelco's streamlined tariff was not "deemed lawful" under 47 U.S.C. § 204(a)(3), and that Vitelco was therefore liable to AT&T for damages. See also, FCC brief [51 pages in PDF].

The Court of Appeals reviewed the law regarding tariffing, legal and lawful tariffs, the 1996 provisions regarding "deemed lawful", and suspension of tariffs by the FCC. It then granted the petition for review, vacated the order under review, and remanded to the FCC.

Scott Angstreich of the law firm of Kellogg Huber represented the U.S. Telecom Association. The USTelecom's Jim Olson stated in a release that "This is a significant victory for all companies that file tariffs at the FCC. The Commission's decision to evade Congressionally-mandated tariff protection by hastily issuing unfounded suspension orders and subsequently reconsidering those decisions put all carriers at risk and subverted the streamlined tariff rules enacted by Congress in 1996. The FCC's approach created substantial uncertainty, which was bad for business, and the Court found that the FCC's actions were so 'arbitrary and capricious' that they violated the spirit and letter of the law. Now that the Court has put an end to the FCC's unlawful practice, carriers can be sure that their federal tariffs will get the legal protections they should receive."

This case is Virgin Islands Telephone Corporation v. FCC and USA, respondents, and AT&T et al., intervenors, U.S. Court of Appeals for the District of Columbia, App. Ct. No. 04-1352, a petition for review of an order of the FCC. Judge Ray Randolph wrote the opinion of the Court, in which Judges Sentelle and Rogers joined.

PR China's Vice Premier Offers Minimal Assurances Regarding IPR Theft

4/11. The U.S. Trade Representative (USTR) Rob Portman, Secretary of Commerce Carlos Gutierrez, and Vice Premier Wu Yi of the People's Republic of China met in Washington DC to discuss China's failure to enforce intellectual property rights (IPR).

The USTR issued a release, PR China issued a release, and the officials held a joint news conference. See, transcript [11 pages in PDF].

The USTR stated in its release that "China committed to addressing ... improving protection of intellectual property rights in China".

See, full story.

US and Peru Sign Trade Agreement

4/11. The Office of the U.S. Trade Representative (USTR) announced that USTR Rob Portman and Peruvian Minister of Foreign Trade and Tourism Alfredo Ferrero Diez Canseco signed a document titled "United States -- Peru Trade Promotion Agreement", or PTPA. See, USTR release.

The USTR released a summary [PDF] of the PTPA, but not the PTPA. The PTPA addresses electronic commerce, copyright, circumvention, patents, trademarks, and telecommunications.

The USTR's summary states that "Peru will join the WTO’s Information Technology Agreement (ITA), which removes tariff and non-tariff barriers to information technology products."

Telecommunications. The summary states that "Users of a telecommunications network are guaranteed reasonable and non-discriminatory access to the network. This prevents local firms from having preferential or ``first right´´ of access to telecommunications networks."

It also states that "U.S. phone companies obtain the right to interconnect with Peruvian dominant suppliers' fixed networks at nondiscriminatory and cost-based rates." And, it states that "U.S. firms will be able to lease elements of Peruvian telecom networks on non-discriminatory terms and to re-sell telecom services of Peruvian suppliers to build a customer base."

E-Commerce. The summary states that "The Parties have committed to non-discriminatory treatment of digital products; agreed not to impose customs duties on such products; and agreed to cooperate in numerous policy areas related to ecommerce."

The summary also includes the following vague statement: "Peru and the United States agreed to provisions on e-commerce that reflect the issue’s importance in global trade and the importance of supplying services by electronic means as a key part of a vibrant ecommerce environment."

Copyright, Circumvention, and Enforcement. The summary states that under this agreement, "Copyright owners maintain rights over temporary copies of their works on computers, which is important in protecting music, videos, software and text from widespread unauthorized sharing via the Internet." It also "Establishes that only authors, composers and other copyright owners have the right to make their work available on-line", and "Ensures extended terms of protection for copyrighted works, including phonograms, consistent with emerging international trends."

The summary states that the PTPA "Establishes strong anti-circumvention provisions to prohibit tampering with technologies (like embedded codes on discs) that are designed to prevent piracy and unauthorized distribution over the Internet."

It "Ensures that governments use only legitimate computer software, thus setting a positive example for private users."

It also "Requires rules to prohibit the unauthorized receipt or distribution of encrypted satellite signals, thus preventing piracy of satellite television programming."

The summary also states that this agreement "Provides rules for the liability of Internet Service Providers (ISPs) for copyright infringement, reflecting the balance struck in the U.S. Millennium Copyright Act between legitimate ISP activity and the infringement of copyrights."

It also addresses enforcement. The summary states that the agreement "Criminalizes end-user piracy, providing strong deterrence against piracy and counterfeiting", "Requires the Parties to authorize the seizure, forfeiture, and destruction of counterfeit and pirated goods and the equipment used to produce them", "provides for enforcement against goods-in-transit, to deter violators from using ports or free trade zones to traffic in pirated products", and provides that "Ex officio action may be taken in border and criminal cases".

Finally, the summary states that the agreement "Mandates both statutory and actual damages for copyright infringement and trademark piracy."

Patents and Trade Secrets. The USTR's summary states that the agreement "Provides for the restoration of patent terms to compensate for delays in granting the original patent, consistent with U.S. practice", "Limits the grounds for revoking a patent, thus protecting against arbitrary revocation", "Clarifies that test data and trade secrets submitted to a government for the purpose of product approval will be protected against unfair commercial use for a period of 5 years for pharmaceuticals and 10 years for agricultural chemicals", "Requires a system to prevent the marketing of pharmaceutical products that infringe patents", and "Provides protection for newly developed plant varieties".

Portman added that "We hope to bring Colombia and Ecuador into this agreement as soon as they are ready ..."

See also, U.S. Chamber of Commerce release praising the PTPA.

People and Appointments

4/11. Andrew "Buddy" Donohue was named to be the Securities and Exchange Commission's (SEC) Director of the Division of Investment Management, effective May 15, 2006. He is currently Global General Counsel for Merrill Lynch Investment Managers. See, SEC release.

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4/11. The U.S. Department of Agriculture's (USDA) Rural Utilities Service (RUS) published a notice in the Federal Register that describes, and sets the application deadline (June 12, 2006) for, Distance Learning and Telemedicine (DLT) Program grants. See, Federal Register, April 11, 2006, Vol. 71, No. 69, at Pages 18271-18276.

4/11. The National Telecommunications and Information Administration (NTIA) published in its web site a transcript of its conference on February 28 an March 1, 2006, titled "Improving Spectrum Management through Economic or Other Incentives".

4/11. The Federal Communications Commission (FCC) extended the deadlines for submitting initial and reply comments in response to its notice of proposed rulemaking (NPRM) regarding privacy of consumer phone records. See, notice of extension [PDF]. The request for an extension [PDF] was filed by Laura Parsky, a Deputy Assistant Attorney General in the Department of Justice's (DOJ) Criminal Division, and others. Parsky has also worked on the DOJ's efforts to induce the FCC to expand the scope of the CALEA statute to non-covered entities and services. She also testified at a hearing of the House Judiciary Committee's Subcommittee on Crime regarding government seizure of stored telephone calls. See, story titled "House Crime Subcommittee Holds Hearing on § 209 of PATRIOT Act, Stored Communications and VOIP" in TLJ Daily E-Mail Alert No. 1,125, April 29, 2005. The request for extension, submitted on behalf of the DOJ, DHS, DEA, and FBI, does not identify what interest federal law enforcement agencies have in this proceeding. The FCC extended the deadline to submit initial comments from April 14 to April 28. The FCC extended the deadline to submit reply comments from May 15 to May 19. See, notice in the Federal Register (March 15, 2006, Vol. 71, No. 50, at Pages 13317-13323) setting original deadlines. The FCC adopted this NPRM on February 10, 2006, and released the text [34 pages in PDF] on February 14, 2006. See also, story titled "FCC Adopts NPRM Regarding Privacy of Consumer Phone Records" in TLJ Daily E-Mail Alert No. 1,308, February 13, 2006, and story titled "FCC Rulemaking Proceeding on CPNI May Extend to Internet Protocol Services" in TLJ Daily E-Mail alert No. 1,310, February 15, 2006. This NPRM is FCC 06-10 in CC Docket No. 96-115 and RM-11277. For more information, contact Tim Stelzig at the FCC's Wireline Competition Bureau at 202-418-0942, or Laura Parsky at 202-616-3928.

Go to News from April 6-10, 2006.