TLJ News from August 11-15, 2008

FCC Revises Schedule for August 22 Event

8/15. The Federal Communications Commission (FCC) released a document [PDF] titled "Commission Meeting Agenda" that relates to an FCC event scheduled for 10:00 AM on Friday, August 22, 2008.

This document lists three items. An FCC document [PDF] released on August 4, 2008, listed seven items. The three items that remain on the agenda pertain to the roaming obligations of CMRS carriers, carriage of digital television broadcast signals, and implementation of the "New and Emerging Technologies (NET) 911 Improvement Act of 2008".

The four items removed from the agenda relate to operation of wireless microphones in the 700 MHz band, the Universal Service Fund, Fireside Media and its participation in Auction No. 37, and a Notice of Apparent Liability for Forfeiture and Order for DTV Tuner Violation.

Roaming. The agenda states that the FCC may adopt a "Memorandum Opinion and Order on Reconsideration addressing petitions for reconsideration of the Report and Order" in WT Docket No. 05-265.

The FCC adopted its roaming order on August 7, 2007, and released the text [73 pages in PDF] on August 16, 2007. It is FCC 07-143 in WT Docket No. 05-265. It provides that CMRS carriers have roaming obligations as to Title II services. See also, story titled "FCC Adopts CMRS Roaming Order and NPRM" in TLJ Daily E-Mail Alert No. 1,623, August 15, 2007.

Various carriers then filed petitions for reconsideration. See, SpectrumCo's October 1, 2007, petition [18 pages in PDF], Sprint Nextel's October 1, 2007, petition [10 pages in PDF], T-Mobile USA's October 1, 2007, petition [9 pages in PDF], MetroPCS's October 1, 2007, petition [27 pages in PDF], and Leap Wireless's September 28, 2007, petition [26 pages in PDF].

See also, AT&T's November 6, 2007, opposition [16 pages in PDF] and SouthernLINC's November 6, 2007, opposition [27 pages in PDF].

For some recent filings with the FCC in this proceeding, see MetroPCS's August 14 notice [9 pages in PDF] of ex parte communication, T-Mobile USA's August 18 notice [5 pages in PDF] of ex parte communication, SprintNextel's August 15 notice [8 pages in PDF] of ex parte communication, and Public Knowledge's (PK) August 13, ex parte comment [10 pages in PDF].

VOIP 911 Regulation. The agenda states that the FCC may adopt a NPRM that requests public comments regarding "implementing the New and Emerging Technologies (NET) 911 Improvement Act of 2008".

On July 23, 2008, President Bush signed into law HR 3403 [LOC | WW], the "New and Emerging Technologies 911 Improvement Act of 2008". See, White House release.

This bill requires interconnected VOIP service providers to provide 911 and E911 services. The FCC had already mandated this by rulemaking in 2005, in a brutal and discriminatory fashion, and without a statute expressly giving the FCC authority. This bill creates a statutory basis. It affirms, revises, and further defines the legal framework begun by the FCC. It also requires the FCC to write further implementing regulations.

The FCC adopted its 911 VOIP order on May 19, 2005, and released the text [90 pages in PDF] on June 3, 2005. See story titled "FCC Releases VOIP E911 Order" in TLJ Daily E-Mail Alert No. 1,148, June 6, 2005. See also, stories titled "FCC Adopts Order Expanding E911 Regulation to Include Some VOIP Service Providers", "Summary of the FCC's 911 VOIP Order", "Opponents of FCC 911 VOIP Order State that the FCC Exceeded Its Statutory Authority", and "More Reaction to the FCC's 911 VOIP Order", in TLJ Daily E-Mail Alert No. 1,139, May 20, 2005.

DTV. The agenda states that the FCC may adopt a Fourth Report & Order that amends Part 76 of the FCC's rules regarding carriage of digital television broadcast signals. See, 47 C.F.R. Part 76. Subpart D pertains to carriage of television broadcast signals.

This event is scheduled for 10:00 AM on Friday, August 22, 2008, in the FCC's Commission Meeting Room, Room TW-C305, 445 12th Street, SW.

The FCC's recent events titled "Open Commission Meeting" have rarely been held at the time announced by the FCC. The FCC does not always take up all of the items on its published agenda. The FCC sometimes adds items to the program without providing the "one week" notice required 5 U.S.C. § 552b.

The FCC's events titled "Commission Meeting" or "Open Meeting" are not accurately described as meetings. The five Commissioners do not hold meetings. Rather, they periodically assemble in the same room to formally vote to adopt, and read prepared statements about, a select number of items that are discussed, debated, drafted, revised, and approved elsewhere, prior to and/or after the public event. The FCC does not release at its events copies of the items that it adopts at its events. This provides the Commissioners the opportunity to characterize their actions, without disclosing what actions they have actually taken, or will take.

FCC Awards Authors of Papers on Media Ownership and Spectrum Licensing

8/15. The Federal Communications Commission (FCC) announced that it gave awards titled "Excellence in Economic Analysis" to six FCC employees: Kenneth Lynch, Mark Bykowsky, William Sharkey, Kiran Duwadi, Scott Roberts, and Andrew Wise. See, FCC release [PDF]

Lynch works in the FCC's Wireline Competition Bureau's (WCB) Industry Analysis and Technology Division (IATD). He is a co-author of a collection of papers [143 pages in PDF] published by the FCC titled "FCC Media Study 4: News Operations".

He wrote Section II, titled "Ownership Structure, Market Characteristics and the Quantity of News and Public Affairs Programming: An Empirical Analysis of Radio Airplay", at pages 42-85, dated July 30, 2007. He is also the author of the follow-up paper [7 pages in PDF] titled "Response to Peer Review of Study 4 Section II ``Ownership Structure, Market Characteristics and the Quantity of News and Public Affairs Programming: An Empirical Analysis of Radio Airplay´´", dated October 23, 2007.

Duwadi works in the FCC's International Bureau (IB). Roberts works in the FCC's Media Bureau (MB). Wise works in the FCC's MB.

They are the co-authors of the paper [23 pages in PDF] published by the FCC titled "Media Ownership Study Two: Ownership Structure and Robustness of Media".

Mark Bykowsky works in the FCC's Office of Strategic Planning and Policy Analysis (OSP). William Sharkey works in the FCC's WCB. They are co-authors with others of three papers published by the FCC in February of 2008 regarding spectrum licensing. See, paper [31 pages in PDF] titled "A Market-Based Approach to Establishing Licensing Rules: Licensed versus Unlicensed Use of Spectrum", paper [35 pages in PDF] titled "Modeling the Efficiency of Spectrum Designated to License Use and Unlicensed Operations", and paper [35 pages in PDF] titled "Enhancing Spectrum's Value via Market-Informed Congestion Etiquettes".

The first two were written by Bykowsky, Sharkey and Marc Olson, a professor at George Mason University (GMU). The third was written by Bykowsky, Sharkey, Olson, and Kenneth Carter, who previously worked at the FCC, and works for wik-Consult GmbH in Germany.

PFF Paper on FCC's Comcast Order Invokes Kafka

8/15. The Progress & Freedom Foundation (PFF) released a paper [15 pages in PDF] titled "``The Law is Whatever the Nobles Do;´´ Undue Process at the FCC".

It is a criticism of the FCC's order [67 pages in PDF] adopted on August 1, 2008, and released on August 20, asserting authority to regulate the network management practices of Comcast and other broadband internet access providers.

The criticism is based not on the technological merits of Comcast's network management practices, but rather on the procedure followed by the FCC. The paper labels it "Kafka-esque".

The author is the PFF's Barbara Esbin.

She quoted from Franz Kafka, who wrote in his short essay titled "The Problem of Our Laws" that "Our laws are not generally known; they are kept secret by the small group of nobles who rule us. We are convinced that these ancient laws are scrupulously administered; nevertheless it is an extremely painful thing to be ruled by laws that one does not know."

She wrote that "The FCC's means of asserting regulatory authority over broadband Internet service providers' network management practices is unprecedented, sweeping in its breadth, and seemingly unconstrained by conventional rules of interpretation and procedures. We should all be concerned, for apparently what we have on our hands is a runaway agency, unconstrained in its vision of its powers."

She argues that what the FCC did was in the nature of rule making by adjudication -- or "adjudi-making".

She elaborated that "Whatever we call this innovative legal form, it appears to have resulted in factual findings that a single industry participant violated rules of behavior articulated for the first time in the very proceeding in which the accused was found guilty as charged."

Esbin added, "More troubling still, the adjudi-making was wholly lacking the protections afforded the subjects of more traditional administrative adjudications, such as the need for sworn testimony, adherence to the rules of evidence, and the other procedural safeguards of a ``restricted´´ adjudication."

"It sure seems Kafka-esque when we either cannot know the law or we can only know the ``law´´ by observing the actions of the nobles", wrote Esbin.

Kafka was a German who lived from 1883 until 1924 and worked in the insurance industry in Prague. He also wrote short stories, novels, and other works that were edited and published after his death. His works are mostly fantastical fiction of a nightmarish nature. His works titled "The Trial" and "The Castle", which Esbin did not quote, present individuals' horrid experiences with unfair judicial and bureaucratic systems.

The FCC's order at issue is FCC 08-183 in Docket No. 07-52.

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8/15. The U.S. District Court (EDVa) sentenced Kifah Maswadi to serve 15 months in prison and pay $415,900 in restitution for criminal copyright infringement. He sold pirated video game systems. See, release of the Department of Justice's (DOJ) Computer Crimes and Intellectual Property Section (CCIPS).

People and Appointments

8/14. Yahoo announced the election of Frank Biondi and John Chapple to its Board of Directors. Also, former Board member Robert Kotick resigned. These changes are part of the agreement between Yahoo and Carl Icahn. See, Yahoo release.

8/14. The Securities and Exchange Commission (SEC) announced that it settled a previously filed complaint [PDF] against Nancy Heinen, former General Counsel of Apple, in which it alleged violation of federal securities laws in connection with the backdating of stock options granted to Apple's top officers. Heinen admitted no wrongdoing, but agreed to pay $2.2 Million. See, SEC release.

Federal Circuit Addresses Open Source Copyright Licenses

8/13. The U.S. Court of Appeals (FedCir) issued its opinion [16 pages in PDF] in Jacobsen v. Katzer, a copyright case involving the ability of a copyright holder to dedicate certain work to free public use and yet enforce an open source copyright license to control the future distribution and modification of that work.

The District Court denied the copyright holder's motion for a preliminary injunction against a copier who did not comply with the terms of an open source license. The Court of Appeals vacated and remanded the judgment of the District Court.

Laurence Lessig, the founder of Creative Commons, which filed an amicus brief [PDF], wrote in his web site that "this is huge".

The Court of Appeals reasoned that the open source license in this case allowed anyone to download and use the copyrighted software, for free, but subject to certain conditions, such as restating the license and providing attribution. The key aspect of this opinion is the Court's conclusion that these are conditions, rather than covenants. That is, by violating these conditions, the copier no longer had a license to copy, and was therefore engaging in copyright infringement. And, with infringement, injunctive relief is available. If the Court had concluded that the terms were covenants, the copier would have still had a license, but violated covenants, for which the cause of action would be breach of contract, and the remedy would be damages, but not injunctive relief.

See, full story.

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8/13. The Federal Communications Commission (FCC) filed is brief [PDF] with the U.S. Court of Appeals (DCCir) in Cablevision Systems Corporation v. FCC, a petition for review of the FCC's order extending the exclusivity prohibition. This case is App. Ct. Nos. 07-1425 and 07-1487.

8/13. The U.S. District Court (DConn) sentenced Michael Dolan to serve 84 months in prison following his plea of guilty to one count of conspiracy to commit fraud in connection with access devices, and one count of aggravated identity theft, in connection with his participation in an internet spamming and phishing operation that involving the sending of fake e-mail messages that purported to attach greeting cards to AOL members. Recipients' attempts to open the card would cause the downloading of a software trojan that would prevent the recipient from accessing AOL without providing names, credit card numbers, bank account numbers, Social Security account numbers, and other personal information, which information went to Dolan rather than AOL. The District Court also sentenced a co-conspirator, Keith Riedel, to time already served. He pled guilty to one count of conspiracy to commit fraud in connection with access devices. Several other co-conspirators have yet to be sentenced. See, release of the Department of Justice's (DOJ) Computer Crimes and Intellectual Property Section (CCIPS).

2nd Circuit Rules on Pseudonymous Plaintiffs

8/12. The U.S. Court of Appeals (2ndCir) issued its opinion [12 pages in PDF] in Sealed Plaintiff v. Sealed Defendants, a case regarding when a plaintiff may file a complaint using a pseudonym.

The District Court dismissed the pseudonymous complaint. The Court of Appeals vacated the judgment of the District Court, and remanded.

The plaintiff filed a complaint in the U.S. District Court (NDNY) against unnamed municipal and state officials alleging violation of her civil and constitutional rights in connection with alleged physical and sexual assault. However, the holding in this case may affect pseudonymous litigation in other areas of law, including technology related areas of law.

For example, prospective plaintiffs may seek pseudonymity in challenges to search, seizure and surveillance practices of the Department of Justice (DOJ) and other law enforcement and intelligence agencies under Title 18, Title 50, and/or inherent Presidential authority. Prospective plaintiffs may also seek pseudonymity in challenges to the practices of content industries under the DMCA.

The Court of Appeals held that "when determining whether a plaintiff may be allowed to maintain an action under a pseudonym, the plaintiff's interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant."

The Court of Appeals then provided a list of ten "non-exhaustive" factors to be considered by the District Court. The District Court should consider:

1. whether the litigation involves matters that are highly sensitive and of a personal nature.
2. whether identification poses a risk of retaliatory physical or mental harm to the party seeking to proceed anonymously or even more critically, to innocent non-parties.
3. "whether identification presents other harms and the likely severity of those harms".
4. "whether the plaintiff is particularly vulnerable to the possible harms of disclosure".
5. "whether the suit is challenging the actions of the government or that of private parties".
6. "whether the defendant is prejudiced by allowing the plaintiff to press his claims anonymously, whether the nature of that prejudice (if any) differs at any particular stage of the litigation, and whether any prejudice can be mitigated by the district court".
7. "whether the plaintiff's identity has thus far been kept confidential".
8. "whether the public's interest in the litigation is furthered by requiring the plaintiff to disclose his identity".
9. whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants' identities.
10. "whether there are any alternative mechanisms for protecting the confidentiality of the plaintiff".

There is a related issue, not addressed in this opinion, of use of litigation against unnamed defendants, in which the plaintiffs use subpoenas to compel internet service providers to disclose the identities of anonymous users. This tactic may be used for many purposes, some of which are worthy, while others are not.

For example, it may be used to suppress constitutionally protected online anonymous speech, to pursue libel actions against anonymous online defamators, to suppress online anonymous fair use publication involving plaintiffs' copyrighted works, or to pursue copyright or trademark infringement actions against anonymous online infringers and counterfeiters.

Also, in some cases, anonymous filing of complaints is mixed with attempts to pierce the anonymity of online speakers. See, related story in this issue titled "Doe Plaintiffs File Second Amended Complaint in AutoAdmit Case".

The present case is Sealed Plaintiff v. Sealed Defendant #1, et al., U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 06-1590-cv, an appeal from the U.S. District Court for the Northern District of New York, Judge Norman Mordue presiding. Judge Jose Cabranes wrote the opinion of the Court of Appeals, in which Judges Miner and McLaughlin joined.

NAB Adopts Resolution Regarding DTV Transition Quiet Period

8/12. David Rehr, head of the National Association of Broadcasters (NAB), sent a letter [PDF] to Kevin Martin, Chairman of the Federal Communications Commission (FCC), regarding a resolution adopted by the NAB's Television Board of Directors concerning transitioning to digital television.

This resolution states that "... NAB's Television Board of Directors and their member companies hereby commit, on a voluntary basis, to continue to make available to all their distribution partners those broadcast signals being provided as of February 4, 2009; for a period of time beginning on February 4, 2009 through March 4, 2009 -- a full two weeks prior to and after the DTV transition date of February 17, 2009. In addition, the TV board is making every effort to secure the same voluntary commitment from the television broadcast industry, including NAB's television members, the networks and the network affiliate stations."

This resolution also lists which NAB members have endorsed this resolution.

Kyle McSlarrow, head of the National Cable & Telecommunications Association (NCTA) responded in a release that "In recent months, we have discussed with NAB the need to recognize the potential for consumer confusion and disruption involved with retransmission consent disputes that might arise as we approach the broadcasters' digital TV transition on February 17, 2009. We appreciate NAB's acknowledgment that this is a very real concern, and continue to support efforts to minimize potential consumer confusion through the adoption of a quiet period."

However, he continued that "the reality is that many outstanding retransmission consent agreements expire by the end of 2008. Any voluntary quiet period that does not begin before the agreements actually expire -- or which is too brief to preclude potentially confusing messages about broadcast carriage during the time of the actual DTV transition -- represents the illusion of a commitment and does not serve the consumer."

Matthew Polka, head of the American Cable Association (ACA), stated in a release that the ACA "welcomes the actions of some members of the National Association of Broadcasters for a retransmission consent ``quiet period´´ during the 2009 DTV transition. Retransmission consent disputes harm consumers, and ACA appreciates this step. Taking retransmission consent disputes off the table before the DTV transition and for a reasonable time afterward will benefit cable customers and television viewers everywhere and encourage a smoother transition to digital television."

He added that "While we appreciate those NAB members' willingness to embrace a retransmission consent quiet period, a start date of Feb. 4, 2009, is simply too late and will not go far enough to protect consumers, whose signals could be pulled by broadcasters before Feb. 4. ACA believes that a quiet period should begin no later than Jan. 1, 2009, if not earlier, and run through May 31, 2009, to ensure consumers are not confused or lose broadcast signals during this critical transition period, and ACA urges prompt FCC action to require such a quiet period."

He concluded that "FCC action is necessary to implement a quiet period for all broadcasters and cable operators. The pledge announced today by some NAB members, while appreciated, does not cover all broadcasters, many of whom are in markets served by ACA's members."

On April 24, 2008, Cequel Communications, Charter Communications, GCI Cable, Insight Communications, and Mediacom Communications filed a Petition for Expedited Rulemaking [23 pages in PDF] with the FCC requesting FCC to initiate a quiet period rulemaking.

CAP and CDT Urge State AGs to Do More to Fight Online Fraud

8/12. The Center for American Progress (CAP) and the Center for Democracy and Technology (CDT) released a joint report [44 pages in PDF] titled "Online Consumers At Risk and the Role of State Attorneys General". The report urges states to do more to investigate and prosecute online fraud.

It states that "Currently, there is insufficient incentive against committing online fraud and abuse. Internet crime requires almost no expense to execute, carries potentially high financial rewards, and involves relatively little risk of being caught and punished. It is thus unsurprising that online fraud and abuse are at such high levels. What’s needed now is a stronger deterrent. Through committed action and vigorous enforcement, state attorneys general can help provide one."

It argues that the benefits of internet commerce "are being threatened by the rise in Internet fraud and abuse".

The report recommends that states "Devote greater resources to Internet enforcement efforts", "Train investigators and prosecutors on how to identify online fraud and abuse", and "Develop computer forensic capabilities to trace and catch Internet fraudsters", among other things.

The authors are Reece Rushing (CAP), Ari Schwartz and Alissa Cooper (CDT).

9th Circuit Rules in ADA Cases

8/12. The U.S. Court of Appeals (9thCir) issued two opinions in cases involving alleged violations of the Americans with Disabilities Act (ADA).

See, August 12, 2008, opinion [25 pages in PDF] in Janke v. Poop Deck, and August 12, 2008, opinion [20 pages in PDF] in D'Lil v. Best Western.

The facts in these cases do not involve information technologies. However, these case illustrate what web site operators, e-commerce businesses, software makers, and consumer electronics makers can expect if, or when, the courts expand the scope of the Americans with Disabilities Act (ADA) to apply to new information technologies.

These two cases also provide further data in support of the proposition that Democratic appointees side with ADA plaintiffs, while Republican appointees side with ADA defendants.

Janke v. Poop Deck. Les Janke is a serial ADA plaintiff. He filed a complaint in U.S. District Court (CDCal) against the Poop Deck, a beer and wine bar, located in Hermosa Beach, California, alleging violation of the ADA.

The parties settled. Janke then moved for attorneys fees.

The District Court denied the motion. It wrote, "Here plaintiff has failed to provide prelitigation notice and has unreasonably protracted litigation by waiting nearly five months to reply to defendants' proposal remedy of the A.D.A. violation. Mr. Frankovich and his firm's abusive litigation tactics have been well documented. The purpose of the A.D.A. is to ensure accessibility to public accommodations for disabled individuals, not to enrich attorneys."

The Court of Appeals reversed.

This case is Les Janke v. Poop Deck, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 06-55957, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-04-09741-RSWL, Judge Ronald Lew presiding.

Judge Susan Graber wrote the opinion of the Court of Appeals, in which Judges Marsha Berzon and Claudia Wilken joined. Wilken is a Judge of the U.S. District Court (NDCal) who sat by designation.

D'Lil v. Best Western. D'Lil, who lives in Sacramento, California, is another serial ADA plaintiff.

She filed a complaint in the U.S. District Court (CDCal) against Best Western alleging that a motel in Santa Barbara, California, that she visited was in violation of the ADA. It had a wheelchair accessible room for her, but she complained of specific features of the motel and room.

Best Western reached a settlement with D'Lil. She then moved for attorneys fees. The District Court held that it lacked jurisdiction because D'Lil did not have standing because she failed to provide evidence of her intent to return to the motel.

The District Court noted that in her previous ADA actions she represented that she possessed an intent to return to the premises, but did not in fact return.

The Court of Appeals reversed.

This case is Hollynn D'Lil v. Best Western Encina Lodge & Suites, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 06-55516, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-02-09506-DSF, Judge Dale Fisher presiding.

Judge Stephen Reinhardt wrote the opinion of the Court of Appeals, in which Judge Betty Fletcher joined. Judge Pamela Rymer wrote a dissent.

Partisan Patterns in ADA Cases. These two cases, as well as earlier cases, demonstrate a clear pattern. Judges appointed by Democratic Presidents are siding with ADA plaintiffs. Judges appointed by Republican Presidents are siding with ADA defendants.

Although, one might speculate that the divide has less to do with the ADA than with the Democratic party's affiliation with the plaintiffs' trial bar.

In the D'Lil and Janke cases, the two District Court Judges who ruled against an award of attorneys fees to counsel for serial litigants, as well as the one Court of Appeals Judges who dissented, are all appointees of Republican Presidents. Judge Lew was appointed by former President Reagan. Judge Fisher was appointed by the current President Bush. Judge Pam Rymer was appointed former President Reagan. She was for a time considered to be a candidate for appointment to the Supreme Court in any Republican administration.

In contrast, all of the Court of Appeals Judges who voted to reverse were appointed by Democratic Presidents. Judge Susan Graber, Judge Marsha Berzon and Judge Claudia Wilkin were appointed by former President Clinton. Judge Stephen Reinhardt and Judge Betty Fletcher were appointed by former President Carter.

Moreover, the presiding judge in National Federation of the Blind v. Target, D.C. No. C 06-01802 MHP, an ADA case regarding Target's web site, is Judge Marilyn Patel, another Carter appointee. See, September 5, 2006, Memorandum and Order [26 pages in PDF] and October 2, 2007, Memorandum and Order [PDF], denying Target's motion to dismiss, and granting class certification. See also, story titled "District Court Issues Ruling in Case Involving Claim That Web Site Violates the ADA" in TLJ Daily E-Mail Alert No. 1,657, October 18, 2007.

Also, Deval Patrick, who is now the Democratic Governor of Massachusetts, was previously a Clinton appointee in the Department of Justice (DOJ). On September 9, 1996, he sent a DOJ letter which concluded that the ADA applies to the internet.

There is also the matter of the 9th Circuit's November 9, 2007, divided opinion [PDF] in Doran v. 7-Eleven, another ADA case. See, story titled "9th Circuit Rules on Standing and Discovery in ADA Cases" in TLJ Daily E-Mail Alert No. 1,678, November 20, 2007.

Judges Jerome Farris (a Carter appointee) and Judge Ronald Gould (a Clinton appointee) wrote the opinion of the court, which held that the injury in fact requirement for standing is not necessary in ADA cases. Judge Kevin Duffy (a Nixon appointee) dissented.

There are exceptions to this partisan pattern. For example, the October 18, 2002, order dismissing the complaint in Access Now v. Southwest Airlines, D.C. No. 02-21734-CIV, an ADA case involving a web site, was written by Judge Patricia Seitz, a Clinton appointee. She ruled that the ADA does not apply to web sites.

Georgia Sues Russia

8/12. The International Court of Justice in the Hague, Netherlands, announced in a release that the Republic of Georgia filed a complaint against Russia alleging violation of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination in connection with war crimes associated with Russia's invasion of Georgia.

Also, various news media have reported that Russia launched cyber attacks on Georgia. See for example, story in CNET by Tom Espiner titled "Georgia accuses Russia of coordinated cyberattack".

Google issued a release on August 12 in which it rebutted statements regarding removal of maps for Georgia, Azerbaijan, and Armenia. It wrote that "Data for these countries were never on Google Maps in the first place." It also wrote that "we never launched coverage in those countries because we simply weren't satisfied with the map data we had available".

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8/12. The Department of State announced that its Advisory Committee on International Communications and Information Policy (ACICIP) has been re-chartered for an additional two years. See, notice in the Federal Register, August 12, 2008, Vol. 73, No. 156, at Pages 46962-46963.

8/12. The Federal Communications Commission (FCC) filed is brief [PDF] with the U.S. Court of Appeals (DCCir) in M2Z Networks v. FCC, a petition for review of the FCC's rejection of M2Z's request for a free exclusive nationwide license to use spectrum in the 2155-2175 MHz band. M2Z proposed in return to provide wireless internet access to law enforcement, free access to certain consumers, and a higher level of service to paying subscribers, with 5% of revenues going to the federal government. See, stories titled "FCC Accepts for Filing M2Z's Application for Free Spectrum" in TLJ Daily E-Mail Alert No. 1,532, February 5, 2007, "Panel Debates M2Z Proposal" in TLJ Daily E-Mail Alert No. 1,541, February 21, 2007, and "FCC Dismisses M2Z's and NetfreeUS's Requests for 2155-2175 MHz Band Spectrum Licenses" in TLJ Daily E-Mail Alert No. 1,633, September 4, 2007. This case is App. Ct. Nos. 07-1630 and 07-1441.

Tiffany Appeals in Case Regarding eBay Auctions of Counterfeits

8/11. Tiffany announced in a release that it has filed an appeal with the U.S. Court of Appeals (2ndCir) of the judgment of the U.S. District Court (SDNY) in Tiffany v. eBay, a trademark case.

Tiffany, Inc. and Tiffany and Company, jewelry companies, filed their original complaint in the District Court on June 14, 2004, against eBay, which operates an auction web site.

Tiffany does not allege that eBay makes counterfeit Tiffany products. Rather, Tiffany asserts that eBay is liable for the sale of counterfeit Tiffany products by eBay users.

See, full story.

T3 to File Antitrust Complaint Against IBM with EC

8/11. T3 Technologies announced in a release that it "is moving ahead with its plans to file a formal complaint" against IBM with the European Commission's Directorate General for Competition.

T3 added that "it has retained counsel and expert witnesses" and has met with EC officials.

On July 2, 2008, IBM acquired Platform Solutions, Inc. (PSI), a privately held technology company headquartered in Sunnyvale, California. See, IBM release.

T3 did not make public the text of its EC complaint. However, on November 26, 2007, T3 filed a related complaint [46 pages in PDF] in U.S. District Court (SDNY) against IBM alleging violation of Sections 1 and 2 of the Sherman Act, Section 3 of the Clayton Act, and New York and Florida state laws.

T3 alleged in the U.S. complaint that the relevant antitrust markets are the worldwide market for mainframe computers that are compatible with IBM mainframe operating systems, and the worldwide market for IBM compatible mainframe operating systems.

Its complaint further alleged that IBM has illegally tied its mainframes to its operating systems, leveraged its monopoly over mainframe operating systems to maintain its monopoly over IBM compatible mainframes, denied access to an essential facility, and denied access to critical information, among other things.

T3 wrote in its release that its EC complaint "will be based on a history of actions by IBM abusing its monopoly power in the mainframe industry. T3 alleges that IBM has prevented the sales of competing mainframe hardware products by tying the sale of its operating system to its mainframe hardware, withholding patent licenses and certain intellectual property to the detriment of mainframe customers."

Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "T3's announcement today, a month after the PSI buyout by IBM, adds credence to the evidence that competition in this critical market is being stifled and would-be competitors have few other options to seek relief".

Black continued that "Authorities need to look at what is happening and step in before it's too late. The cost to consumers, to the economy and the security risk of having 90 percent of the mainframe market controlled by one company is too high."

Black also asserted that "Unfortunately, US antitrust authorities have been AWOL with regard to many competition and antitrust matters for the last 7 years."

Go to News from August 6-10, 2008.