TLJ News from April 26-30, 2008

House Judiciary Committee Approves PRO IP Act

4/30. The House Judiciary Committee (HJC) amended and approved HR 4279 [LOC | WW], the "Prioritizing Resources and Organization for Intellectual Property Act of 2007" or "PRO IP Act". The HJC revised the language regarding coordination of government enforcement efforts, and regarding forfeiture of property used in intellectual property crimes.

The HJC approved a managers' amendment [PDF] by unanimous voice vote. The HJC then approved the bill as amended by voice vote. Rep. Zoe Lofgren (D-CA) voted against the bill.

See, full story.

9th Circuit Dismisses Slamming Complaint Against VOIP Provider

4/30. The U.S. Court of Appeals (9thCir) issued its opinion [11 pages in PDF] in Clark v. Time Warner Cable, affirming the District Court's dismissal without prejudice of a class action slamming complaint against a VOIP service provider, pursuant to the primary jurisdiction doctrine, on the assumption that the FCC is actively considering the issue. The Court of Appeals concluded that a few lines in a four year old NPRM preclude the courts from interpreting the relevant statute.

Background. K Clark is an individual. She had two phone lines in her home. She spoke with a representative of Time Warner Cable (TWC) about purchasing voice over internet protocol service. However, she did not order the TWC service, or request that her existing service be terminated. Nevertheless, TWC caused her other services to be terminated.

47 U.S.C. § 258(a), the ban on slamming, provides that "No telecommunications carrier shall submit or execute a change in a subscriber’s selection of a provider of telephone exchange service or telephone toll service except in accordance with such verification procedures as the Commission shall prescribe. Nothing in this section shall preclude any State commission from enforcing such procedures with respect to intrastate services."

Clark filed a complaint in U.S. District Court (CDCal) alleging violation of Section 258, violation of a similar California state statute, violation of the federal Racketeer Influenced and Corrupt Organizations (RICO) statute, fraud, fraudulent concealment, and negligence. She also sought class action status.

This article focuses on those parts of the Court of Appeals' opinion that pertain to the Section 258 claim.

The District Court dismissed the complaint without prejudice. It held, among other things, that Section 258 only applies to a "telecommunications carrier", and referred the case to the Federal Communications Commission (FCC).

Court of Appeals. The Court of Appeals affirmed, pursuant to the doctrine of primary jurisdiction. That is, the Congress has given the FCC authority to write regulations implementing Section 258, and it has done so, but these regulations do not yet address VOIP. Whether Section 258 reaches VOIP service provides is an undecided question that is being actively considered by the FCC in a rule making proceeding. Hence, the courts should dismiss this action to allow the FCC to complete its proceeding.

The Court of Appeals wrote that "The emergence of VoIP technology created new challenges for the FCC, however, as existing regulations did not contemplate the revolutionary changes IP-enabled services entailed. Accordingly, the FCC issued a Notice of Proposed Rulemaking seeking comment on how to define and to regulate all IP-enabled services, including VoIP ..."

The FCC adopted its IP enabled services Notice of Proposed Rulemaking (NPRM) [97 pages in PDF] on February 12, 2004, and released it on March 10, 2004. It is FCC 04-28 in WC Docket 04-36.

The Court of Appeals added that this NPRM "posed two specific questions relevant to Clark's § 258(a) claim against TWC. First, it solicited comment on whether VoIP services should be classified as ``telecommunications services´´ or ``information services´´ under the Act. ... Second, the FCC solicited comment on whether § 258(a)’s anti-slamming provision should apply to VoIP providers regardless of their statutory classification." (Footnotes omitted.)

The Court of Appeals continued that "The primary jurisdiction doctrine allows courts to stay proceedings or to dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency. A court’s invocation of the doctrine does not indicate that it lacks jurisdiction. ... Rather, the doctrine is a ``prudential´´´ one, under which a court determines that an otherwise cognizable claim implicates technical and policy questions that should be addressed in the first instance by the agency with regulatory authority over the relevant industry rather than by the judicial branch."

The Court of Appeals noted that the FCC's 2004 NPRM "demonstrates that the agency is actively considering how it will regulate VoIP services and that the agency’s development of a uniform regulatory framework to confront this emerging technology is important to federal telecommunications policy."

Hence, it held this. "Faced with such question here, we conclude that the primary jurisdiction doctrine provided the district court with the authority to refer Clark’s claim to the FCC."

FCC Administrative Process. This opinion rests in part on a misconception of the administrative process at the FCC. The Court of Appeals wrote that its understanding, based upon the FCC's 2004 NPRM, is that the FCC is "actively considering" the underlying issue of application of slamming rules to VOIP service providers.

This is a huge NPRM that asks many questions that the FCC is not actively considering. The FCC issues numerous NPRMs that pose numerous questions. Many of these NPRMs and questions languish for years without any resolution.

This NPRM states, at paragraph 72, that "Section 258 of the Act prohibits ``slamming´´ by requiring that any “telecommunications carrier” must adhere to authorization and verification procedures prescribed by the Commission when submitting and executing carrier changes. ... We seek comment on whether these billing-related requirements -- or any other consumer protections not discussed here -- should apply to any providers of VoIP or other IP-enabled services." (Footnote omitted.)

This is just part of one paragraph in a 97 page document filled with hundreds of questions across a broad landscape of communications and internet related issues. The FCC fired shotgun volleys of questions in all directions in an attempt to strike all conceivable targets. Most of these questions, and many others in hundreds of other FCC NPRMs, remain unanswered. Nevertheless, the FCC leaves open option of issuing rules on any of these many issues, without complying with any further notice and comment requirements.

The FCC's shotgun approach also provides litigants like TWC the argument that the FCC has preempted the field.

The FCC is not a party to this action. It did not assert that it is "actively considering" this issue.

However, one of TWC's attorneys in this case is Matt Brill. He was a legal advisor to former Commissioner Kathleen Abernathy when the FCC issued the 2004 NPRM.

On another occasion, when the 9th Circuit did not defer to the FCC, the Supreme Court reversed the judgment of the 9th Circuit. See, story titled "Supreme Court Rules in Brand X Case" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005. Although, that case involved Chevron deference, rather than the primary jurisdiction doctrine.

This case is K. Clark v. Time Warner Cable, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 07-55794, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-07-01797-VBF, Judge Valerie Fairbank presiding.

Judge Diarmuid O'Scannlain wrote the opinion of the Court of Appeals, in which Judges Alex Kozinski and William Fletcher joined.

DOJ Seeks En Banc Rehearing in Nacchio Case

4/30. The Department of Justice (DOJ) filed a Petition for Rehearing En Banc [98 pages in PDF] with the U.S. Court of Appeals (10thCir) in U.S. v. Nacchio.

On March 17, 2008, a three judge panel of the Court of Appeals issued its divided opinion [74 pages in PDF], reversing the conviction of Joseph Nacchio, a former CEO of Qwest Communications International, and remanding for a new trial, before a new judge.

The DOJ criminally prosecuted Nacchio on allegations that he traded shares of Qwest while knowing that the company was unlikely to continue to meet its announced earnings. On April 19, 2007, a trial jury of the U.S. District Court (DColo) returned a verdict of guilty on 19 counts of violation of federal securities laws involving insider trading. It acquitted Nacchio on 23 other counts.

On July 27, 2007, the District Court imposed a sentence of 72 months in prison on Nacchio. See, DOJ release.

The Court of Appeals held that "the improper exclusion of his expert witness merits a new trial". However, the Court of Appeals rejected Nacchio's other appeal points -- insufficiency of the evidence, improper jury instructions, and exclusion of classified information.

See, story titled "10th Circuit Reverses Nacchio's Conviction" in TLJ Daily E-Mail Alert No. 1,732, March 18, 2008.

The DOJ argues in its petition that the District Court did not err in excluding expert testimony.

This case is U.S.A. v. Nacchio, U.S. Court of Appeals for the 10th Circuit, App. Ct. No. 07-1311, an appeal from the U.S. District Court for the District of Colorado. Judge McConnell wrote the opinion of the Court of Appeals in which Judge Kelly joined. Judge Holmes dissented in part.

AOUSC Releases Report on Title III Wiretaps in 2007

4/30. The Administrative Office of U.S. Courts (AOUSC) released its report titled "2007 Wiretap Report".

This report covers January 1, 2007, through December 31, 2007. It contains data on Title III intercepts, but not Foreign Intelligence Surveillance Act (FISA) intercepts.

It finds that "A total of 2,208 intercepts authorized by federal and state courts were completed in 2007, an increase of 20 percent compared to the number terminated in 2006."

457 of these were federal, and 1,751 were state. The report also contains data for the previous ten years. In 1997 there were a roughly equal number of state and federal wiretaps -- just over 500 each. However, since then the number of state wiretaps has grown, while the number of federal wiretaps has remained somewhat constant.

The Department of Justice's (DOJ) National Security Division (NSD) issued a separate release on April 30, 2008, that states that "From 2001 through 2007, the annual number of FISA applications approved by the Foreign Intelligence Surveillance Court rose from 934 to 2,370."

See, full story.

What Shakespeare Had to Say About XBRL and Interactive Data

4/30. Securities and Exchange Commission (SEC) Chairman Chris Cox gave a speech at the Folger Shakespeare Library in Washington DC. He said, quoting William Shakespeare, that SEC disclosure statements that are designed for internet users, along with XBRL and interactive data, will enable investors to "ascend the brightest heaven of invention".

Cox also said that in the Merchant of Venice Shakespeare cautions against risky borrowing practices, and that in Hamlet, he "approves of the current round of deleveraging".

Cox spoke tagging SEC filings with eXtensible Business Reporting Lanaguage (XBRL) tags, interactive data, and mutual fund prospectuses.

He also said that "In the coming weeks, the Commission will consider a rule that sets out a schedule for data tagging by all public companies. At the same time, I expect the Commission will consider a rule for data tagging by mutual funds." This event had been scheduled for April 21, 2008, but was postponed until May 14, 2008. See, original meeting agenda and notice of postponement. Use of interactive data in SEC filings is currently voluntary.

Cox said that "What's really exciting about the summary prospectus is what investors will be able to do with it online. This is the first SEC disclosure document that has really been engineered for the Internet, with individual investors in mind. To adapt to the online world, the summary prospectus layers the disclosure from summary to granular detail, in a way that lets each investor quickly find the information they're looking for. This ``vertical´´ disclosure would enable investors to reach the level of detail that meets their individual needs."

"Combined with interactive data, the new summary information and vertical search capability will allow investors to instantly get that same information for dozens, hundreds, or even thousands of funds in order to do quick and easy comparisons." He continued that "Interactive data will let them analyze and understand financial information with an economy of effort that's never been possible before."

He also said that "you can already give mutual fund interactive data a test drive using our new" Mutual Fund Reader.

People and Appointments

Alice Fisher4/30. Alice Fisher (at right), Assistant Attorney General in charge of the Department of Justice's (DOJ) Criminal Division, will leave the DOJ on May 23, 2008.

4/30. President Bush nominated Michael Anello to be a Judge of the U.S. District Court for the Southern District of California. See, White House release.

4/30. Paul Rubin has associated himself with the Technology Policy Institute (TPI). His title is "Senior Fellow". He is a professor of economics at Emory University. He is the author of the book [Amazon] titled "Darwinian Politics: The Evolutionary Origin of Freedom". He is a co-author with Tom Lenard of the book [Amazon] titled "Privacy and the Commercial Use of Personal Information". See, TPI release.

More News

4/30. The Federal Communications Commission's (FCC) Consumer and Governmental Affairs Bureau  published a notice in the Federal Register that states that it "clarifies the eligibility requirement for compensation from the TRS Fund (Fund) for providers of Internet Protocol (IP) captioned telephone service (IP CTS). The Bureau also clarifies that an IP CTS provider seeking compensation from the Fund must notify the Interstate TRS Fund administrator 30 days prior to the date the provider submits minutes for payment." See, Federal Register, April 30, 2008, Vol. 73, No. 84, at Pages 23361-23362.

4/30. The Federal Communications Commission (FCC) stated in a release [PDF] that "topics selected for open meeting agendas will now formally be made public and posted on the Commission’s website three weeks prior to the upcoming monthly meeting". The FCC further asserted that this "enhances the openness and transparency of the Commission’s processes and deliberations".

4/30. The Department of Justice's (DOJ) National Security Division (NSD) announced the creation of an Office of Intelligence, with three sections for operations, oversight and litigation. See, DOJ release. The Operations Section will obtain Foreign Intelligence Surveillance Act (FISA) orders from the Foreign Intelligence Surveillance Court (FISC). The creation of the Oversight Section is based upon the premise, which is disputed by many members of Congress, that the executive branch can effectively exercise oversight of itself. The acting Assistant Attorney General (AAG) in charge of the NSD is Patrick Rowan. The previous AAG, Kenneth Wainstein, became an advisor to President Bush in March. See, story titled "Bush Names Wainstein Top Homeland Security and Counterterrorism Advisor" in TLJ Daily E-Mail Alert No. 1,734, March 20, 2008.

4/30. Copyright Office (CO) published a notice in the Federal Register that announces, describes, recites, and sets the comment deadline for, its proposed rule changes regarding online group registration. The CO states that "this Notice proposes to amend further the current regulations governing group registration to require any applicant wishing to take advantage of group registration options to file the group claim electronically within the reengineered registration system". The deadline to submit comments is May 30, 2008. See, Federal Register, April 30, 2008, Vol. 73, No. 84, at Pages 23390-23393.

People and Appointments

4/29. President Bush nominated Paul Gardephe to be a Judge of the U.S. District Court for the Southern District of New York. See, White House release.

4/29. President Bush nominated Clark Waddoups to be a Judge of the U.S. District Court for the District of Utah, See, White House release.

More News

4/29. The U.S. District Court (CDCal) unsealed an indictment, that was returned on April 9, 2008, that charges Lawanda Jackson, a former employee of UCLA Medical Center, with federal crimes in connection with her accessing the private medical records of celebrity patients at the UCLA Medical Center and selling personally identifiable information obtained from those files. See, release of the Office of the U.S. Attorney for the Central District of California.

EPIC Argues for Civil Penalties for Companies that Fail to Protect Personal Information on Their Networks

4/28. The Electronic Privacy Information Center (EPIC) filed a comment [PDF] with the Federal Trade Commission (FTC) pertaining to its consent orders affecting Reed Elsevier, Inc. and Seisint, Inc. (LexisNexis) and TJX Companies, Inc. regarding their failures to use reasonable security measures to prevent unauthorized access to personal information. The EPIC urges the FTC to impose civil penalties.

The EPIC wrote that "TJX caused a data breach that led to the compromise of tens of millions of credit/debit card numbers and associated information, as well as the disclosure of information concerning approximately 455,000 consumers. LexisNexis caused a data breach that resulted in the disclosure of approximately 300,000 consumers’ personal information (including social security numbers, addresses, and dates of birth), and resulted in substantial financial fraud. TJX and LexisNexis caused these data breaches by failing to provide reasonable and appropriate security for sensitive consumer information stored in their computer systems." (Parentheses in original.)

See, March 27, 2008, TJX Agreement Containing Consent Order [7 pages in PDF] and March 27, 2008, LexisNexis Agreement Containing Consent Order [8 pages in PDF].

The EPIC argued that "TJX and LexisNexis’s actions warrant the imposition of civil penalties as a purely punitive measure. In addition, civil penalties would provide strong incentives for TJX, LexisNexis, and other companies to better safeguard sensitive consumer data in the future."

District Court Denies John Doe P2P Infringer's Efforts to Quash Subpoena to ISP

4/28. The U.S. District Court (DC) issued a Memorandum Opinion [17 pages in PDF] in Arista Records v. John Does, denying a John Doe defendant's motion to quash a Rule 45 subpoena directed to the George Washington University (GWU), the defendant's internet service provider (ISP), in an action for copyright infringement involving P2P copying of music files.

Arista and other record companies filed a complaint on September 19, 2007, in U.S. District Court (DC) against 19 unnamed John Doe defendants alleging copyright infringement over GWU's network.

The record companies have only the internet protocol numbers of the defendants. GWU is not a party, but in its capacity as an ISP has information that would enable the record companies to identify the John Doe defendants.

Last October the District Court issued a Memorandum Opinion and Order [2 pages in PDF] granting the record companies' request for a subpoena, pursuant to Rule 45 and 47 U.S.C. § 551(c)(2)(B), directing GWU to provide the names, addresses, phone numbers, and e-mail addresses of certain unnamed users of the GWU's computer network. The District Court also ordered GWU to provide notice to the defendants. See, story titled "GWU Must Disclose Identities of Alleged Online Infringers" in TLJ Daily E-Mail Alert No. 1,654, October 15, 2007.

One John Doe defendant, through counsel, filed a motion to quash the subpoena and dismiss the complaint. This defendant argued first that Section 551(c)(2)(B) only applies to cable operators, and GWU is not a cable operator.

Subsection 551(c)(2)(B), which pertains to "personally identifiable information", provides that "A cable operator may disclose such information if the disclosure is subject to subsection (h) of this section, made pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed".

The record companies argued that their request rests upon Rules 26 and 45, FRCP, and that Section 551 is inapplicable.

The John Doe defendant added arguments that the discovery is not authorized by 17 U.S.C. § 512(h), and that the Family Educational Rights and Privacy Act (FERPA), at 20 U.S.C. § 1232g(b)(2), prohibits the disclosure sought by the record companies.

The District Court noted that the record companies did not assert authority under Section 512(h). It also held that the FERPA does not prohibit the disclosure sought by the plaintiffs, because it contains an exception for "directory information" disclosed pursuant to subpoena.

Then, the District Court concluded that Rules 26 and 45 do authorize the discovery sought by the plaintiffs. It added that numerous other courts have so held in similar cases. The District Court also rejected several frivolous arguments, such as that file sharing of copyrighted works is protected speech under the First Amendment.

Hence, the District Court refused to quash the subpoena. It also denied the John Doe defendant's motion to dismiss. The District Court ordered GWU to respond to the subpoena within five days.

This case is Arista Records LLC, et al. v. John Does 1-19, U.S. District Court for the District of Columbia, D.C. No. 07-1649 (CKK), Judge Colleen Kotelly presiding.

Supreme Court Upholds State Statute Requiring Photo ID to Vote

4/28. The Supreme Court issued its opinion [65 pages in PDF] in Crawford v. Marion County Election Board, upholding the constitutionality of a statute of the state of Indiana that requires voters to present a government issued photo identification to vote.

Indiana Democrats challenged the statute under the equal protection clause of the Constitution. The Supreme Court's right to vote cases are based upon this clause in the 14th Amendment.

The Supreme Court concluded that the statute is a nondiscriminatory law and is supported by valid neutral justifications.

The Supreme Court wrote that "There is no question about the legitimacy or importance of the State’s interest in counting only the votes of eligible voters" and "the fact of inflated voter rolls does provide a neutral and nondiscriminatory reason supporting the State’s decision to require photo identification." Moreover, it wrote that it could not conclude that the statute imposes excessively burdensome requirements on any class of voters.

Justice Stevens wrote the opinion of the Court, in which Justices Roberts and Kennedy joined.

Justice Scalia wrote a concurring opinion in which Justices Thomas and Alito joined. He wrote that there is no equal protection issue because the statute creates no classes. He wrote that "To vote in person in Indiana, everyone must have and present a photo identification that can be obtained for free. The State draws no classifications, let alone discriminatory ones, except to establish optional absentee and provisional balloting for certain poor, elderly, and institutionalized voters and for religious objectors. Nor are voters who already have photo identifications exempted from the burden, since those voters must maintain the accuracy of the information displayed on the identifications, renew them before they expire, and replace them if they are lost."

Justice Souter wrote a dissenting opinion, in which Justice Ginsburg joined. He wrote that the statute "threatens to impose nontrivial burdens on the voting right of tens of thousands of the State's citizens ... and a significant percentage of those individuals are likely to be deterred from voting".

He also wrote that the statute does not remedy many forms of fraudulent voting, including voting more than once, buying votes, and miscounting of votes by election officials.

Justice Breyer also wrote a dissenting opinion.

More Supreme Court News

4/28. The Supreme Court denied certiorari in Michael Bender v. Michael Dudas, Sup. Ct. No. 07-847. See, Orders List [10 pages in PDF] at page 2. This lets stand the June 21, 2007, opinion [18 pages in PDF] of the U.S. Court of Appeals (FedCir). See also, Supreme Court docket. The Court of Appeals affirmed the District Court affirmance of the U.S. Patent and Trademark Office's (USPTO) disciplinary action excluding Bender from practicing before the USPTO. The Court of Appeals wrote that individual inventors are unfamiliar with "even the most basic principles of patent law, do not know where to turn for help, and are vulnerable to those who seek to take advantage of their inexperience". Moreover, the Court of Appeals wrote, "mainstream media sources frequently confuse and misunderstand basic intellectual property law precepts". Hence, the USPTO must regulate those who practice before it.

4/28. The Supreme Court denied certiorari in Excel Innovations, Inc. v. Indivos Corporation, Sup. Ct. No. 07-963. See, Orders List [10 pages in PDF] at page 2. This lets stand the September 7, 2007, opinion [22 pages in PDF] of the U.S. Court of Appeals (9thCir), which is also reported at 502 F.3d 1086. See also, Supreme Court docket. This is a bankruptcy case involving when a debtor in bankruptcy can obtain an injunction of an arbitration proceeding involving two non-bankrupt parties on the grounds that it could affect the debtor and the bankruptcy estate. In this case, the debtor and parties in arbitration are technology companies, and the arbitration proceeding involves patent rights.

4/28. The Supreme Court denied certiorari in Cias, Inc. v. Alliance Gaming Corporation, Sup. Ct. No. 07-964. See, Orders List [10 pages in PDF] at page 2. This lets stand the September 27, 2007, opinion [14 pages in PDF] of the U.S. Court of Appeals (FedCir). This is a patent infringement case involving technology for detecting counterfeit currency. See also, Supreme Court docket.

4/28. The Supreme Court denied certiorari in Cliff Thompson v. Virgin Records, Sup. Ct. No. 07-1225. See, Orders List [10 pages in PDF] at page 3. This lets stand the January 4, 2008, opinion [5 pages in PDF] of the U.S. Court of Appeals (5thCir). See, story titled "5th Circuit Denies Attorneys Fees to Prevailing Defendant in P2P Music Case" in TLJ Daily E-Mail Alert No. 1,697, January 8, 2008. See also, Supreme Court docket.

More News

4/28. The U.S. Court of Appeals (4thCir) issued its opinion [10 pages in PDF] in U.S. v. Curry, affirming the District Court's imposition of a sentence of imprisonment of 36 months for mail fraud and wire fraud in connection with fraudulent eBay auctions. Kenneth Curry auctioned on eBay gold coins that he did not have. This case is U.S. v. Kenneth W. Curry, II, U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 07-4152, an appeal from the U.S. District Court for the Eastern District of Virginia, at Norfolk, D.C. No. 2:05-cr-00003-WDK, Judge Walter Kelley presiding.

4/28. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register that announces that it withdraws its prior proposal to amend the Rules of Practice in Trademark Cases to require a request for reconsideration of an examining attorney's final refusal or requirement to be filed through the Trademark Electronic Application System (TEAS) within three months of the mailing date of the final action. The USPTO also proposed instead to require a fee of $50 for filing a request for reconsideration on paper, whereas no fee would be required for a request for reconsideration filed through TEAS. Currently, no fee is required in connection with a request for reconsideration, filed either on paper or through TEAS. See, Federal Register, April 28, 2008, Vol. 73, No. 82, at Pages 22894-22895.

4/28. The U.S. Patent and Trademark Office (USPTO) stated in a release that the USPTO and European Patent Office (EPO) "intend to launch a new trial cooperation initiative called the Patent Prosecution Highway (PPH) in September". The USPTO release states that the Patent Prosecution Highway (PPH) "will leverage fast-track patent examination procedures already available in both offices to allow applicants to obtain corresponding patents faster and more efficiently. It also will permit each office to exploit the work previously done by the other office and reduce duplication. In turn, the initiative will reduce examination workload and improve patent quality." See also, EPO release. And see, USPTO release of September 4, 2007, regarding PPH initiative with the United Kingdom Intellectual Property Office (UKIPO), and USPTO release of May 24, 2006, and release of December 21, 2007, regarding PPH initiative with the Japan Patent Office.

4/28. Thomas Sydnor of the Progress & Freedom Foundation (PFF) wrote a paper [17 pages in PDF] titled "Tragedy and Farce: An Analysis of the Book Free Culture". It is an assault upon the writings of Stanford Law School professor Lawrence Lessig, and especially his 2004 book [Amazon] titled "Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity". Lessig, Sydnor writes, is a "name-calling demagogue" who has "demonized copyright owners". Moreover, he is a "hypocritical demagogue -- one so terrifyingly self-righteous and hopelessly partisan that he could scarcely recite his pious ode to restraint before he resumed using the rhetoric of racism to brand the other side as the devil’s own". Sydnor compares Free Culture to Karl Marx's and Frederick Engel's brief book titled "Manifesto of the Communist Party". He argues that Lessig's book should be consigned to Leon Trotsky's dustbin of history. Lessig responded in his web site that Sydnor's paper is "an interesting read".

4/28. The U.S. District Court (NDCal) sentenced David M. Fish, aged 26, of Woodbury, Connecticut, to serve 30 months in prison following his plea of guilty to conspiracy to commit criminal copyright infringement, distribution of technology primarily designed to circumvent encryption technology protecting a right of a copyright owner and aiding and abetting, circumventing a technological measure that protects a copyright work and aiding and abetting, copyright infringement by electronic means, and aiding and abetting. The Office of the U.S. Attorney (NDCal) stated in a release that Fish was "site operator as well as a scripter, equipment supplier, broker and encoder for warez sites" that distributed "newly-released movies, games, software and music online". The sentence also provides for "forfeiture of computer and other equipment used in committing the copyright offenses".

Go to News from April 21-25, 2008.