TLJ News from October 11-15, 2011

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10/14. The US Department of Justice's (DOJ) Antitrust Division, the US Federal Trade Commission (FTC), and the European Commission (EC) released a document [7 pages in PDF] titled "Best Practices on Cooperation in Merger Investigations". See also, DOJ release.

House Judiciary Committee Passes Bill to Ease User Disclosure of Video Viewings in Social Media

10/13. The House Judiciary Committee (HJC) amended and approved HR 2471 [LOC | WW], an untitled bill to amend the "Video Privacy Protection Act" or VPPA.

The VPPA was enacted by the 100th Congress in 1988 just after the public debates and Senate hearings pertaining to the nomination of Judge Robert Bork to be a Justice of the Supreme Court, which involved disclosure of his video rental records. That bill was Public Law No. 100-68. It is codified at 18 U.S.C. § 2710.

The VPPA provides that "A video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person".

Rep. Lamar Smith (R-TX) stated at the mark up that "A lot has changed in 23 years. Today, VHS videos are obsolete. So too are video rental stores. Customers today can purchase DVDs or Blue-Ray movies from numerous websites and even stream movies from the Internet directly to their TV, laptop, or even their cell phone. In 1988, if a person wanted to tell their friends what movies they like or don't like, they would pick up the phone. Today, they post it on their Facebook page." See, prepared statement.

Greg Barnes of the Digital Media Association praised the HJC's passage of this bill in a release. He said that this bill "will make it easier for consumers and covered services to come to an agreement over the exact terms and circumstances by which an individual’s rental history of prerecorded video cassette tapes or similar audio-visual materials can be shared with friends or acquaintances online".

The VPPA currently provides that "A video tape service provider may disclose personally identifiable information concerning any consumer ... to any person with the informed, written consent of the consumer given at the time the disclosure is sought".

HR 2471, as amended at the markup, would amend the VPPA to provide as follows:

"A video tape service provider may disclose personally identifiable information concerning any consumer ... to any person with the informed, written consent (including through an electronic means using the Internet) in a form distinct and separate from any form setting forth other legal or financial obligations of the consumer given at one or both of the following times--
  (i) The time the disclosure is sought.
  (ii) In advance for a set period of time or until consent is withdrawn by such consumer."

That is, a service provider such as Facebook could operate a web site that discloses users' video rentals and recommendations with a one time opt-in procedure, rather than requiring consent every time the user wants to recommend a video.

See also, amendment offered by Rep. Jerrold Nadler (D-NY), which the Committee approved by voice vote.

Senators and Representatives Introduce Bills to Facilitate Tax Collection on Internet Cigarette Sales

10/13. Rep. Lloyd Doggett (D-TX) and other Representatives introduced HR 3186 [LOC | WW], the "Smuggled Tobacco Prevention Act of 2011", in the House. Sen. Frank Lautenberg (D-NJ), Sen. Richard Durbin (D-IL), and other Senators introduced S 1706 [LOC | WW], the companion bill in the Senate.

Sen. Lautenberg, Sen. Durbin and Rep. Doggett issued a release that states that this bill would "combat criminals and terrorists who profit from the illegal trade of tobacco".

This bill would do nothing to prohibit the sale or consumption of cigarettes or other tobacco products. Rather, it would impose a federal regulatory regime that would enhance the ability of governments to collect taxes on the sale of tobacco products. The bill would not prohibit internet sales. However, internet based distribution is one of the targets of the bill.

Rep. Doggett stated in this release that "Tobacco products are the single largest, illegally trafficked, legal product on the planet. But current federal laws to stop smugglers are outdated and fail to give law enforcement officials the tools they need to enforce the law ... Snuffing out smuggled tobacco, whether sold here or shipped across our borders, can cut crime, raise revenue and boost health."

One of the practices targeted by this bill is the sale of cigarettes, via the internet, from jurisdictions with lower taxes, to persons in jurisdictions with higher taxes, who then resell without paying state and local cigarette taxes.

This bill would impose a regime intended to make it easier for state and local taxing authorities to collect taxes, and prosecute those who do not. It would regulate machinery used to produce, package and label tobacco products. It would require federal licensing of owners of such machinery, and others involved in the tobacco trade. It would also expand regulation of labeling and record keeping.

The sponsors of these bills are Democrats. There were similar bills in the 111th Congress, HR 5178 [LOC | WW], and S 3288 [LOC | WW]. Neither bill was passed by either body.

People and Appointments

10/13. The Senate confirmed Katherine Forrest to be a Judge of the U.S. District Court for the Southern District of New York. See, Congressional Record, October 13, 2011, at Page S S6563. See also, story titled "Obama Nominates Time Warner Copyright Lawyer for SDNY" in TLJ Daily E-Mail Alert No. 2,233, May 5, 2011. Most recently, she worked as a Deputy Assistant Attorney General in the Department of Justice's (DOJ) Antitrust Division. Before that, she worked for two decades for the law firm of Cravath Swaine handling intellectual property matters. She represented Time Warner companies, and companies in which they hold an interest, on copyright matters. For example, she worked on the successful litigation against, UMG v., U.S. District Court for the Southern District of New York, D.C. No. 00-CV-0472 (JSR).

10/13. The Senate confirmed Alison Nathan to be a Judge of the U.S. District Court for the Southern District of New York. See, Congressional Record, October 13, 2011, at Page S S6563. Most recently, she has worked for the Office of the Attorney General of the State of New York. Before that she worked in the Special Assistant to President Obama and Associate White House Counsel. She has also worked for the law firm of Wilmer Hale.

10/13. The Senate confirmed Susan Hickey to be a Judge of the U.S. District Court for the Western District of Arkansas. See, Congressional Record, October 13, 2011, at Page S S6563.

10/13. The Senate Judiciary Committee (SJC) approved several judicial nominations by voice votes: Adalberto José Jordán (to be a Judge of the U.S. Court of Appeals for the 11th Circuit), John Gerrard (U.S. District Court for the District of Nebraska), Mary Elizabeth Phillips (USDC/WDMO), Thomas Rice (USDC/EDWA), and David Nuffer (USDC/DUtah). See, Congressional Record, October 13, 2011, at Page S S6505.

House and Senate Pass Bills to Implement Three Free Trade Agreements

10/12. The House and Senate passed bills to implement the long pending free trade agreements (FTAs) between the US and Korea, Columbia, and Panama. President Obama announced in a release that "I look forward to signing these agreements".

The House passed HR 3080 [LOC | WW], a bill to implement the US Korea FTA, on October 12, 2011, by a vote of 278-151. Republicans voted 219-21. Democrats voted 59-130. See, Roll Call No. 783.

The Senate passed the bill on October 12 by a vote of 83-15. See, Roll Call No. 161. The only Senate Republican to vote no was Sen. Olympia Snowe (R-ME).

The House passed HR 3078 [LOC | WW], a bill to implement the US Columbia FTA on October 12 by a vote of 262-167. See, Roll Call No. 178. The Senate passed this bill on October 12 by a vote of 66-33. The only Republicans to vote no were Sen. Snowe and Sen. Susan Collins (R-ME). See, Roll Call No. 163.

The House passed HR 3079 [LOC | WW], a bill to implement the US Panama FTA on October 12 by a vote of 300-129. See, Roll Call No. 782. The Senate passed this bill on October 12 by a vote of 77-22. See, Roll Call No. 162. All of the no votes were cast by Democrats.

Sen. Max Baucus (D-MT), the Chairman of the Senate Finance Committee (SFC), stated in a release that "These free trade agreements will give our economy a much-needed shot in the arm and create tens of thousands of American jobs. The passage of these agreements today is a significant victory for American workers and businesses, and will help create jobs here at home ... Lucrative, fast-growing overseas markets represent an enormous opportunity for our workers, farmers, ranchers and businesses to find new customers for their world-class products."

See also, statement of acting Secretary of Commerce Rebecca Blank, and statement of U.S. Trade Representative Ron Kirk.

While much of the debate has focused on non-technology related issues such as automobiles and beef, these agreements also contain extensive sections dealing with intellectual property, telecommunications, and electronic commerce.

See, the final text of the US Korea FTA, and its sections regarding telecommunications [17 pages in PDF], electronic commerce [4 pages in PDF], and intellectual property rights [35 pages in PDF].

The US and Korea concluded their original FTA in 2007. See, story titled "US and Korea Announce FTA" in TLJ Daily E-Mail Alert No. 1,559, April 2, 2007. However, Congressional Democrats blocked approval. The US and Korea renegotiated this FTA late last year, making changes affecting automobiles and other matters. See, stories titled "US Korea Free Trade Agreement" in TLJ Daily E-Mail Alert No. 2,150, November 8, 2010; "US and Korea Fail to Reach Agreement on Free Trade" in TLJ Daily E-Mail Alert No. 2,155, November 14, 2010; and "OUSTR Announces Progress on US Korea FTA" in TLJ Daily E-Mail Alert No. 2,171, December 7, 2010.

Robert Holleyman, head of the Business Software Alliance (BSA), stated in a release that "These three free trade agreements are tremendous wins for the software and IT industries ... They will increase sales and exports of US software products and create jobs in the process."

He added that "All three agreements include world-class intellectual property provisions that will help spur technology innovation in the United States and among our trading partners .. They prohibit tampering with technological protection measures, and they include guarantees of statutory damages for intellectual property theft. The agreements also will increase market access for IT products and services, and formalize non-discrimination in e-commerce."

Ed Black, head of the Computer and Communications Industry Association (CCIA), praised Congressional passage of these bills.

He stated in a release that "going forward we also need to see to it that future trade deals include provisions that address 21st Century issues such as stronger protections for the free flow of information over the Internet. As more goods and services are distributed online, we must ensure that the digital world receives the same protection as the physical world. Internet openness is important as a trade issue because US companies make up a disproportionate share of the world’s Internet pioneers and Silicon Valley is a major export driver at a time when the US is struggling to increase its exports."

Michael O'Leary of the Motion Picture Association of America (MPAA) stated in a release that these three FTAs "represent a major step forward in breaking down market access barriers and curtailing the content theft that hinders our industry’s growth abroad."

Neil Turkowitz of the Recording Industry Association of America (RIAA) stated in a release that the record industry strongly supports "the negotiation of trade agreements that protect intellectual property, lower market access barriers to U.S. creative products and services, and promote legitimate electronic commerce".

He added that "America’s music sector has been badly affected by piracy for decades. Today we face a problem of unprecedented scale. While the digital revolution has created new ways for us to reach consumers with compelling products and content, this same technology has also facilitated the work of those who profit from stealing ideas, innovation and creativity. Achieving enhanced global standards of copyright protection and enforcement, ensuring meaningful market access, and developing trade disciplines that keep pace with technological development are all central to our ability to remain competitive and to continue to ensure good jobs for America’s creative community."

See also, Consumer Electronics Association (CEA) release.

Groups Write House Judiciary Committee Regarding Drafting of House Version of Rogue Web Sites Bill

10/12. The Consumer Electronics Association (CEA), Computer & Communications Industry Association (CCIA), and NetCoalition sent a letter to the Chairmen and ranking Democrats on the House Judiciary Committee (HJC) and its Subcommittee on Intellectual Property, Competition, and the Internet regarding S 968 [LOC | WW], the "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011", or "PROTECT IP Act".

The groups want the HJC to "convene stakeholder negotiations to address concerns that have been raised about S. 968’s potential impact on jobs,innovation, technology, security, and freedom of speech".

Sen. Patrick Leahy (D-VT) and others introduced the Senate bill on May 12, 2011. He also introduced a similar bill late in the 111th Congress. While several HJC members, including Rep. Lamar Smith (R-TX), Rep. John Conyers (D-MI), and Rep. Howard Berman (D-CA), have spoken publicly about a forthcoming bill, the House version of S 968 has not yet been introduced.

The three groups also wrote that "we support the legislation's goal of combating online infringement of copyrights and trademarks. Nonetheless, we remain deeply concerned that the bill will constrain economic growth and threaten a vital sector of the U.S. economy and a major source of global competitiveness. Our industries are willing to convene with your offices and other stakeholders as soon as it is convenient for you to work on crafting a legislative proposal, the benefits of which outweigh the collateral damage S. 968 would cause to jobs, innovation, and security."

People and Appointments

10/11. The Senate confirmed Jane Milazzo to be a Judge of the U.S. District Court for the Eastern District of Louisiana. See, Congressional Record, October 11, 2011, at Page S6395.

Go to News from October 6-10, 2011.