Top Stories from 2007
5th Circuit
Addresses Statute of Limitations in Internet Based Libel Case
12/21. The U.S. Court of Appeals (5thCir) issued
its opinion
[15 pages in PDF] in National Bi-Weekly v. Belo Corp., affirming the judgment
of the District Court, which dismissed on statute of limitations grounds. The opinion addresses
the application of a statute of limitations to a complaint alleging that an article published
on the internet is tortious. The Court of Appeals held that for content on a free access web
site, the time limitation begins to run at the time of original publication, and that the
continued availability on the internet does not restart or interrupt the running of the time
period.
DOJ Fines
Microsoft, Google, and Yahoo $31.5 Million for Advertising of Internet Gambling
12/19. The Department of Justice's (DOJ) Office of the U.S. Attorney for the
Eastern District of Missouri released a
settlement agreement [7 pages in PDF] with Microsoft that provides for payments by
Microsoft totaling $21 Million in return for settlement of government claims that Microsoft
violated laws related to internet gambling. The DOJ released a similar
settlement agreement [6 page in PDF] with Google, and another similar
settlement agreement [7 pages in PDF] with Yahoo and related companies.
Verizon Wireless
to Open its Network to Others' Devices, Software and Apps
11/27. Verizon Wireless (VW) announced in a
release that "it will
provide customers the option to use, on its nationwide wireless network, wireless devices,
software and applications not offered by the company ... by the end of 2008".
FCC Commissioners
Withhold Support for Martin's 70/70 Conclusion
11/27. The Federal Communications Commission
(FCC) adopted, but did not release, a 13th annual report to the Congress on the status of
competition in the market for delivery of video programming. The FCC's
release
[5 pages in PDF] states that the report addresses the 70/70 test, which Chairman Martin
had sought to employ as the basis for imposing new regulations upon cable companies. Three of
the five Commissioners (McDowell, Tate, and Adelstein) blocked Martin's initiative.
House Passes Schultz
Internet Crime Bill
11/14. The House passed HR 3845
[LOC |
WW], the
"Providing Resources, Officers, and Technology to Eradicate Cyber Threats to Our Children
Act of 2007" or "PROTECT Our Children Act", without amendment, by a vote of
415-2. See, Roll Call No. 1091. This
is a bill to authorize the appropriation of about a billion dollars over eight years
to support state and federal government efforts to protect children online.
Martin Releases
Media Ownership Proposal
11/13. Federal Communications Commission (FCC) Chairman
Kevin Martin released a
proposal for
revisions to the FCC's obsolete rules regulating ownership of newspapers and broadcast media.
He proposed allowing one entity to own a newspaper and one television station or one radio
station, in the largest markets, subject to criteria and limitations.
Senators Leahy and
Cornyn Introduce Intellectual Property Enforcement Act
11/7. Sen. Patrick Leahy (D-VT) and
Sen. John Cornyn (R-TX) introduced S 2317
[PDF |
[LOC |
WW], the
"Intellectual Property Enforcement Act". This is an enforcement bill, regarding
civil actions by intellectual property rights (IPR) holders, criminal actions by the government,
civil actions by the government, and the activities and operations of the DOJ and its FBI.
House Committee
Grills Yahoo Executives
11/6. The House Foreign Affairs
Committee (HFAC) held a hearing titled "Yahoo! Inc.’s Provision of False Information
to Congress". The witnesses were Jerry Yang (CEO of Yahoo) and Michael Callahan (General
Counsel of Yahoo). Rep. Tom Lantos (D-CA) called
Yahoo a "spineless and irresponsible" company, whose General Counsel, Michael
Callaghan, provided "false information to this Committee" at a hearing in 2006.
Free Press Files
Complaint with FCC Alleging that Comcast Is Violating 2005 Policy Statement
11/1. The Free Press (FP) and
Public Knowledge (PK) filed with the
Federal Communications Commission (FCC) a
document [48
pages in PDF] captioned "Formal Complaint of Free Press and Public Knowledge Against
Comcast Corporation For Secretly Degrading Peer-to-Peer Applications".
CDT Proposes That
FTC Create a Do Not Track List for Consumer Internet Use
10/31. Center for Democracy and Technology (CDT) and
other groups submitted to the Federal Trade Commission's
(FTC) a
comment [7 pages in PDF] titled "Consumer Rights and Protections in the Behavioral
Advertising Sector". The CDT and others argue that online tracking and targeting of
consumers threatens their privacy rights, and that the FTC should "take proactive steps
to adequately protect consumers", including through the creation of "a national Do
Not Track List similar to the national Do Not Call List".
Senate Approves 7
Year Extension of Internet Tax Ban
10/25. The Senate amended and approved HR 3678
[LOC |
WW],
the "Internet Tax Freedom Act Amendments Act of 2007". This version contains a
seven year extension. The version approved by the House on October 16, 2007
contains a four year extension. The current ban expires on November 1, 2007. See,
amendment
in the nature of a substitute approved by the Senate.
Reps. Dingell and
Markey Introduce Bill to End Deemed Granting of FCC Forbearance Petitions
10/22. Rep. John Dingell (D-MI) and
Rep. Ed Markey (D-MA) introduced HR 3914
[LOC |
WW], the
"Proper Forbearance Procedures Act of 2007", a bill to remove the "deemed granted"
clause from the forbearance petition section of the Communications Act.
House Judiciary
Committee to Hold Hearing on Arbitration Fairness Act
10/19. The House Judiciary Committee (HJC) will
hold a hearing on HR 3010
[LOC |
WW], the
"Arbitration Fairness Act of 2007", on Thursday, October 25, 2007. This bill is a
response to the growing use of arbitration clauses in a wide range of contracts between
businesses and consumers, including many in the information and communications technology
sectors.
House Approves
Boucher-Pence Media Shield Bill
10/16. The House amended and approved HR 2102
[LOC |
WW], the "Free
Flow of Information Act of 2007", which limits the ability of the federal entities to
compel journalists to provide testimony or documents, or disclose sources, related to their
work. The vote on final approval was 398-21. See,
Roll Call No. 973. The House
approved by voice vote an
amendment
[4 pages in PDF] offered by Rep. Rick Boucher
(D-VA), sponsor of the bill.
Reps. Conyers and
Reyes Introduce FISA Reform Bill
10/9. Rep. John Conyers (D-MI) and
Rep. Sylvestre Reyes (D-TX) introduced HR 3773
[PDF
| LOC |
WW], the
"Responsible Electronic Surveillance That is Overseen, Reviewed, and Effective Act of
2007" or RESTORE Act.
3Com Huawei
Transaction to be Reviewed by CFIUS
10/9. 3Com announced on September 27, 2007, that "it
has signed a definitive merger agreement to be acquired by affiliates of Bain Capital Partners,
LLC, a leading global private investment firm, for approximately $2.2 billion in cash".
See, 3Com
release and Huawei release.
This transaction will be reviewed by the
Committee on Foreign
Investment in the United States (CFIUS).
GAO Finds FCC
Gives Some Stakeholders Nonpublic Information
10/3. The Government Accountability Office (GAO)
released a report [43
pages in PDF] titled "Telecommunications: FCC Should Take Steps to Ensure Equal
Access to Rulemaking Information". This report describes the FCC's rule making
process, and focuses on just one aspect of the the FCC's lack of transparency -- that
"some stakeholders had access to nonpublic information that could give them an
advantage in the rulemaking process".
DOJ Applies ADA
Public Accommodations Status to Online Educational Service
9/27. The Department of Justice's (DOJ) Civil Rights
Division (CRD) entered into a
settlement agreement
[PDF] with Sylvan Learning Centers that
imposes obligations upon Sylvan with respect to its online tutoring services, pursuant to the
public accommodations title of the Americans with Disabilities Act (ADA).
Commentary:
Extending ADA Public Accommodations Treatment to Online Activities
9/27. This commentary addresses judicial precedent, the Patrick letter, how the DOJ's
analysis might be extended to other online activities including Google's books
programs and web sites with user posted content, the DOJ's lack of process and
transparency, and potential consequences for free speech, the development of the
internet, and innovation.
Verizon Wireless
and Net Neutrality Advocates Clash Over Text Messaging
9/27. Verizon Wireless (VW) briefly rejected a request from the
National Abortion Rights Action League (NARAL) to allow
the group to send text messages. VW reversed its decision immediately after publication of an
article in the New York Times. VW stated that its refusal resulted from a old policy intended
to protect subscribers from spam messages. Network neutrality advocates argued that this
incident demonstrates the need for network neutrality mandates.
9th Circuit Vacates
in Freecycle Trademark Case
9/26. The U.S. Court of Appeals (9thCir) issued its
opinion [PDF] in Freecycle Network v. Oey, vacating the judgment of the
District Court, and remanding. While this case is a victory for free speech regarding agency
proceedings, and on the internet, the Court of Appeals decided the case solely on statutory
grounds. That is, it held that the Lanham Act does not permit trademark applicants to suppress
speech that constitutes opposition to registration and encourages generic use. The Court of
Appeals also held that there is no claim for "trademark
disparagement" under Section 1125.
7th Circuit
Addresses Patent Misuse Doctrine and Jurisdiction in Patent Cases
9/18. The U.S. Court of Appeals
(7thCir) issued its opinion in Country Materials v. Allan Block,
a case regarding the doctrine of patent misuse, and the exclusive jurisdiction
of the Federal Circuit over appeals in patent cases.
European Court of
First Instance Rejects Key Parts of Microsoft's Appeal
9/17. The European Court of First Instance (CFI) released its
opinion
[PDF] upholding much of the European Commission's (EC) 2004 decision regarding Microsoft. The
CFI's ruling is a victory of European regulators, a defeat for Microsoft, and
a sign that successful U.S. technology companies may face further fines and
regulation of their business practices by European regulators.
House Judiciary
Committee Seeks Information about Surveillance from Government, Telcos and ISPs
9/11. Rep. John Conyers (D-MI), Chairman of the
House Judiciary Committee (HJC), sent a
letter [PDF]
on September 11, 2007, to Michael McConnell, the National Intelligence Director, and a
letter [8
pages in PDF] to Fred Fielding, the White House Counsel, regarding government surveillance, the
FISA, and companies that are or have been clandestinely collaborating with the government.
FCC Adopts E911
Location Tracking Accuracy Benchmarks
9/11. The Federal Communications Commission (FCC) adopted,
but did not release, a Report and Order regarding E911 Phase II location accuracy requirements
at the Public Safety Answering Point (PSAP) service area level. This is another in a
series of FCC actions related to mandating and increasing the accuracy of
location tracking of wireless devices, including VOIP.
3rd Circuit Rules
that Deception of SDO Can Give Rise to Claims for Violation of Sherman Act
9/4. The U.S. Court of Appeals (3rdCir) issued
its opinion [39 pages in PDF]
in Broadcom v. Qualcomm, a case regarding whether a patent holder's deceptive
conduct before a private standards development organization (SDO) may be condemned under
antitrust laws, and if so, what facts must be pled to survive a Rule 12(b)(6) motion to
dismiss.
9th Circuit Rules
on Application of Antitrust Law to Bundling Discounts
9/4. The U.S. Court of Appeals (9thCir) issued
its
opinion [58 pages in PDF] in McKenzie v. PeaceHealth, vacating the key
parts of the judgment of the District Court, and rejecting its analysis, as well as that
of the 3rd Circuit en banc in LePage's v. 3M. This is an antitrust dispute between
hospitals regarding health care services. However, since the dispute centers around bundling
of services at discount prices, which is also characteristic of large companies with large
market shares in the telecommunications and information technology sectors, this case may be
of interest to telecom and tech sector companies, and the companies and consumers with whom
they do business. The Court of Appeals rejected the approach to bundled discounts taken by
the District Court, and the approach to bundled rebates taken by the 3rd Circuit in its
en banc opinion [PDF] in 2003 in LePage's v. 3M, upon which the District Court
relied. The 9th Circuit adopted a cost based standard for bundling discounts.
DC Court Rules for
HITN and Clearwire in DC Spectrum Case
8/29. The U.S. District Court (DC) issued its
opinion [9
pages in PDF] in Nextel Spectrum Acquisition Corporation v. Hispanic Information and
Telecommunications Network, a contract dispute concerning spectrum usage rights in
unused spectrum in the 2.5 GHz band. The District Court dismissed Nextel's complaint. This
is also a victory for Clearwire.
District Court
Grants Summary Judgment to FCC in Broadband Data FOIA Case
8/27. The U.S. District Court (DC) issued a
Memorandum
Opinion [18 pages in PDF] in Center for Public Integrity v. FCC, a case
regarding whether the contents of Forms 477, submitted to the
Federal Communications Commission (FCC), must be produced by the FCC in response to a
request made pursuant to the Freedom of Information Act (FOIA), which is codified at
5
U.S.C. § 552. The District Court held that most of the information sought by the
Center for Public Integrity (CPI) is exempt.
7th Circuit
Affirms Dismissal of Data Breach Case
8/23. The U.S. Court of Appeals (7thCir)
issued its
opinion [21 pages in PDF] in Pisciotta v. Old National Bancorp, a case
regarding civil liability of companies that suffer data breaches.
European Commission
Pursues Rambus Regarding JEDEC Standards Setting Process
8/23. The European Commission (EC) issued a
release on August 23, 2007, in which it stated that it issued a Statement of Objections
(SO) on July 30, 2007, to Rambus. The SO alleged
violation of European Union competition law in connection with Rambus's participation in a
dynamic random access memory (DRAM) standards setting process in which it deceptively
withheld information that it was patenting technologies that were incorporated into industry
standards.
9th Circuit Holds
Arbitration Clause in Cell Phone Contract Unenforceable
8/17. The U.S. Court of Appeals (9thCir) issued its
opinion [29 pages in PDF] in Shroyer v. New Cingular Wireless Services
and AT&T, holding that a mandatory arbitration clause in a standard cell
phone service contract is unconscionable, and therefore, unenforceable.
US Requests WTO
Dispute Settlement Panel Re PRC Failure to Protect IPR
8/13. The United States (US) submitted a
request [8 pages in PDF] for
the establishment of a Dispute Settlement Panel (DSP) to the
World Trade Organization (WTO) that alleges that the People's Republic of China (PRC)
has violated its obligations under the WTO Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS) in connection with its failure to protect copyrights and trademarks
in books, music, videos and movies.
District Court
Rules Novell Owns UNIX Copyrights
8/10. The U.S. District Court (DUtah) issued
a Memorandum
Decision and Order in SCO v. Novell, a dispute over intellectual property
rights in the UNIX operating system software. The District Court held that
"Novell is the owner of the UNIX and UnixWare copyrights". The opinion will
likely also have consequences for Linux distributors and users.
DOJ Applies ADA
to Practice of Law
8/9. The Department of Justice's (DOJ)
Civil Rights Division (CRD) and Joseph
David Camacho, an attorney in the state of New Mexico, entered into an
agreement that settles an administrative
complaint that alleges violation of the Americans with Disabilities Act (ADA). The agreement
provides for application of the ADA to the practice of law, and requires attorneys to provide
and pay for the costs of sign language interpreters and transcriptions for deaf persons.
Senate Commerce
Committee Approves Bill to Require FCC to Study Content Blocking Technologies
8/2. The Senate Commerce Committee (SCC) approved an
amended version [PDF] of S 602
[LOC |
WW], the "Child
Safe Viewing Act of 2007" by voice vote. This bill would require the
Federal Communications Commission (FCC) to initiate a
notice of inquiry (NOI) to examine "(1) the existence and availability of advanced
blocking technologies that are compatible with various communications devices or platforms;
and (2) methods of encouraging the development, deployment, and use of such technology by
parents that do not affect the packaging or pricing of a content provider’s offering."
The bill would require the FCC to consider not only cable broadcast television, but
"wired, wireless, and Internet platforms", and not only TV sets, but also "DVD
players, VCRs, cable set top boxes, satellite receivers, and wireless devices".
FCC Adopts 700 MHz
Band Order
7/31. The Federal Communications Commission (FCC)
adopted, but did not release, a Second Report and Order (2ndR&O) regarding
the 700 MHz band. The FCC issued a
release
[5 pages in PDF] that describes this 2nd R&O, and a
band plan chart
[PDF]. The 700 MHz band (698-806 MHz) is television broadcast spectrum that will be made
available for public safety and commercial wireless services as a result of the digital
television (DTV) transition. The FCC will auction 62 MHz for commercial uses early next year.
The 2ndR&O contains open access requirements. In the Upper C Block, the FCC will auction
22 MHz of paired spectrum by 12 Regional Economic Area Groupings (REAGs) with both open
devices and open applications requirements. There will also be a limited build out requirement
(40% of the population within 4 years) for this spectrum. The 2ndR&O also provides for a
"Public/Private Partnership". The commercial licensee would build a nationwide
broadband interoperable network for use by public safety entities. However, it would then
have preemptible secondary access to the spectrum.
European
Commission Initiates Proceeding Against Intel Alleging Anticompetitive Behavior
7/27. The European Commission (EC) announced in a
release that it has "has sent a Statement of Objections (SO) to Intel on
26th July 2007. The SO outlines the Commission's preliminary view that Intel has infringed
the EC Treaty rules on abuse of a dominant position (Article 82) with the aim of excluding
its main rival, AMD, from the x86 Computer Processing Units (CPU) market."
House and Senate
Judiciary Committees Approve Patent Reform Bills
7/19. On July 18, 2007, the House Judiciary
Committee (HJC) amended and approved HR 1908
[LOC |
WW] ,
the "Patent Reform Act of 2007". Also, on July 19, 2007, the
Senate Judiciary Committee (SJC)
amended and approved S 1145
[LOC |
WW],
also titled the "Patent Reform Act of 2007".
Snider Estimates
U.S. Government Has Given Away $480 Billion in Spectrum Usage Rights
7/17. The New America Foundation (NAF) released
a
paper [52 pages in PDF] titled "America's $480 Billion Spectrum Giveaway: How it
Happened, and How to Prevent it from Recurring". The author, NAF's Jim Snider, argues
that while the U.S. has nominally established a spectrum auction system,
with exceptions for certain categories, such as public safety and terrestrial broadcasting,
this system has largely distributed public assets without compensation.
OUSTR Seeks
Comments on GATS Article XXI and Internet Gambling
7/16. The Office of the U.S. Trade Representative
(OUSTR) published a
notice in the Federal Register that requests comments on the negotiations
for compensatory adjustments to U.S. Schedule of Services Commitments under WTO
General Agreement on Trade in Services (GATS) in response to notice of the
United States of intent to modify its schedule under Article XXI of the GATS.
See, Federal Register, July 16, 2007, Vol. 72, No. 135, at Pages 38846-38847.
Bershad Agrees to
Cooperate with Prosecutors
7/9. The U.S. Attorney's Office for the Central
District of California announced in a
release that David Bershad
has agreed to plead guilty in a criminal action arising out of the payment of kickbacks to
named plaintiffs in class action lawsuits filed by law firm of
Milberg Weiss Bershad & Schulman (MWBS).
6th Circuit
Vacates in ACLU v. NSA for Lack of Standing
7/6. The U.S. Court of Appeals (6thCir) issued
its divided opinion
[PDF] in ACLU v. NSA. vacating the District Court's judgment
enjoining the National Security Agency's (NSA)
extrajudicial electronic intercepts where one party is within the U.S. and the
other is outside. The Court of Appeals held that the plaintiffs lacked standing,
and hence, vacated the judgment of the District Court, and remanded with
instructions to dismiss the case for lack of jurisdiction.
GAO Releases Report
on Data Breaches and ID Theft
7/5. The Government Accountability Office (GAO) released
a report [50 pages in PDF] titled
"Personal Information: Data Breaches Are Frequent, but Evidence of Resulting Identity
Theft Is Limited; However, the Full Extent Is Unknown". It finds that data breaches are
common, but that "most breaches have not resulted in detected incidents of
identity theft".
SCUS Holds That
All Vertical Price Restraints Are Subject to Rule of Reason
6/28. The Supreme Court of the U.S. (SCUS)
issued its opinion
[55 pages in PDF] in Leegin Creative Leather Products v. PSKS, an antitrust
case regarding minimum resale price maintenance by manufacturers and intermediate
distributors. The SCUS reversed the judgment of the Court of Appeals, held that all vertical
price restrains are to be judged by the rule of reason, and that the SCUS's 1911
opinion in Dr. Miles Medical Co. v. John D. Park & Sons Co. is overturned.
Supreme Court
Grants Cert in Case Regarding State Regulation of E-Commerce
6/25. The Supreme Court of the U.S. (SCUS)
granted certiorari in Rowe v. New Hampshire Motor Transportation Association,
a case involving whether portions of a statute of the state of Maine that regulate the sale
and delivery of tobacco products purchased via the internet is preempted by the Federal
Aviation Administration Authorization Act of 1994 (FAAAA).
Supreme Court
Rules in Tellabs v. Makor
6/21. The Supreme Court issued its
opinion [33 pages in
PDF] in Tellabs v. Makor, a case regarding the heightened pleading requirements
of the Private Securities Litigation Reform Act (PSLRA). The opinion gives a
meaning to the term "strong inference" that will make it harder for class action
securities complaints to survive motions to dismiss. The Court vacated the
opinion of the Court of Appeals. However, it did not adopt the even higher
standard sought by Justice Scalia and critics of class action securities fraud
litigation. To the extent that many of these suits are brought against tech
companies, this is a modest victory for the tech sector.
6th Circuit Holds
That People Have a Reasonable Expectation of Privacy in E-Mail Stored With, or Sent or Received
Through, an ISP
6/18. The U.S. Court of Appeals (6thCir) issued
its opinion
[20 pages in PDF] in Warshak v. U.S., a case regarding the 4th Amendment, the
Stored Communications Act (SCA), and government access to e-mail held by internet service
providers (ISPs). The Court of Appeals held that "individuals maintain a reasonable
expectation of privacy in e-mails that are stored with, or sent or received through, a
commercial ISP". Hence, the 4th Amendment's requirement that the government must obtain
a warrant based upon probable cause applies to certain stored e-mail. The Court of Appeals
added that alternatively the government can give prior notice to the targeted individual.
The government cannot merely rely upon the statutory procedure set out
in the SCA to seize stored e-mail.
House Approves
Caller ID Spoofing Bill
6/12. The House amended and approved HR 251
[LOC |
WW], the
"Truth in Caller ID Act of 2007", by voice vote. Caller ID spoofing can be used
to facilitate fraud and identity theft. It can be used to defame a person or entity whose
caller ID information is spoofed. It also frustrates certain
business functions, such as credit card verification and automatic call routing.
US FTC and PRC
SAIC Enter Into Information Exchange Agreement
6/12. The U.S. Federal Trade Commission (FTC) and the
People's Republic of China's (PRC) State Administration
for Industry & Commerce (SAIC) entered into a short and vaguely worded
Memorandum of Understanding on
Consumer Protection Matters [4 pages in PDF]. See also, FTC
release. This MOU states that
the two nations "intend to use their best efforts to exchange information".
House Financial
Services Committee Holds Hearing on Internet Gambling
6/8. The House Financial Services
Committee (HFSC) held a hearing titled "Can Internet Gambling Be Effectively
Regulated to Protect Consumers and the Payments System?" Witnesses disputed whether
or not the age and location of internet gamblers can be verified.
2nd Circuit
Vacates and Remands FCC Profanity Order
6/4. The U.S. Court of Appeals (2ndCir)
issued its divided
opinion [53 pages in PDF] in Fox Television v. FCC, a broadcast profanity
case. The majority wrote that "We find that the FCC’s new policy sanctioning ``fleeting
expletives´´ is arbitrary and capricious under the Administrative Procedure Act for failing
to articulate a reasoned basis for its change in policy. Accordingly, the petition for review
is GRANTED, the order of the FCC is VACATED, and the matter is REMANDED ..." The Court
did not decide any of the Constitutional issues. However, it wrote in extensive
dicta that "we are skeptical that the Commission can provide a reasoned explanation
for its ``fleeting expletive´´ regime that would pass constitutional muster".
FCC Extends E911
Location Tracking Rules to Interconnected VOIP
5/31. The Federal Communications Commission (FCC) adopted,
but did not release, a Notice of Proposed Rulemaking (NPRM), that contains numerous tentative
conclusions. It expands E911 location obligations to interconnected voice over internet
protocol (VOIP) services. It also sets standards for location accuracy. The expanded scope,
and increased accuracy, of location determination capabilities in communications and
information technology devices will also promote location based advertising, location based
social networking, aggregation and incorporation of location data into electronic databases,
and government surveillance.
4th Circuit Rules
Copyright is Not a Constitutional Right
5/24. The U.S. Court of Appeals (4thCir) issued
its opinion [14 pages
in PDF] in Darden v. Peters, a case regarding registration of copyrights. The
gist of the opinion in this case is that while copyright is in the Constitution, and
the Constitution states that it is a "Right", it does not follow that copyright
is a Constitutional right. Therefore, Darden is not entitled to the higher standard.
Supreme Court
Rules in Bell Atlantic v. Twombly
5/21. The Supreme Court of the U.S. issued
its opinion
[56 pages in PDF] in Bell Atlantic v. Twombly, reversing the
judgment of the U.S. Court of Appeals
(2ndCir). This is a victory for Verizon
(successor of Bell Atlantic) and other incumbent local exchange carriers (ILECs).
Copyright Alliance
Announces Its Formation
5/17. The Copyright Alliance
held an event on Capitol Hill to announce its formation, and advocate its
principles. It states that it is "a non-profit, non-partisan educational
organization dedicated to promoting the value of copyright as an agent for
creativity, jobs and growth". Its founder and Executive Director is
Patrick Ross.
Rep. Schiff and
Rep. Chabot Introduce Bill to Expand § 1030
5/14. Rep. Adam Schiff (D-CA),
Rep. Steve Chabot (R-OH) and others introduced
HR 2290, the
"Cyber-Security Enhancement Act of 2007". The bill would make numerous changes to
18 U.S.C. § 1030, which pertains to "Fraud and related activity in connection with
computers". It would further the prosecution of creators and users of botnets. It would
add § 1030 to the list of predicate offenses under the RICO statute. It
would also increase criminal penalties and forfeitures, and authorize the
appropriation of additional funds for investigations and prosecutions of
computer related crimes.
CO and USPTO Hold
Roundtable on Proposed WIPO Broadcast Treaty
5/9. The Copyright
Office (CO) and the U.S. Patent and Trademark
Office (USPTO) jointly held a public roundtable discussion regarding the
World Intellectual Property Organization's (WIPO) Standing
Committee on Copyright and Related Rights (SCCR) negotiations on a proposed Treaty on the
Protection of the Rights of Broadcasting Organizations.
3rd Circuit Holds
Interconnection Actions Must First Be Brought in the State PUC
5/9. The U.S. Court of Appeals (3rdCir) issued
its opinion [29 pages in PDF]
in Core Communications v. Verizon, a case regarding the proper procedure
of adjudicating disputes regarding interconnection agreements between carriers. The Court
of Appeals held that the state public utility commissions that approve these interconnection
agreements "are given the first crack at interpreting and enforcing" these
agreements.
House Crime
Subcommittee Approves Spyware Bill
5/1. The House Judiciary Committee's
(HJC) Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on
HR 1525, the
"Internet Spyware (I-SPY) Prevention Act of 2007". The Subcommittee then approved the
bill by unanimous voice vote without amendment. This bill would amend the criminal code by
adding a new section 1030A titled "Illicit indirect use of protected computers".
Senate Judiciary
Committee Holds Hearing on Process Patents
5/1. The Senate Judiciary Committee (SJC)
held a hearing titled "Process Patents". The issue concerns whether the exceptions
contained in § 271(g) should apply to proceedings under § 337.
Rep. Frank
Introduces Bill to Facilitate Licensed Internet Gambling
4/26. Rep. Barney Frank (D-MA) and others
introduced HR 2046,
the "Internet Gambling Regulation and Enforcement Act of 2007". The bill would
provide for the licensing of operators of internet gambling facilities by the Department of
the Treasury's (DOT) Financial Crimes Enforcement Network
(FinCEN). The bill would not repeal the Unlawful Internet Gambling Enforcement Act (UIGEA),
the recently enacted law that targets the financial transactions associated with internet
gambling.
Senate Commerce
Committee Approves Data Breach Notification Bill
4/25. The Senate Commerce Committee (SCC)
approved S 1178, the
"Identity Theft Prevention Act of 2007". See, SCC
release. This is a data breach notification bill. The bill requires covered entities (any
person or entity with certain data that might facilitate identity theft or fraud) to engage
in certain data security practices. It also mandates and regulates the disclosure of security
breaches to the FTC, consumer reporting agencies, and affected individuals. It also empowers
consumers to place freezes with consumer credit reporting agencies (CCRAs), subject to
numerous exceptions. The bill preempts state law, with an exception for certain state laws
that impose security freezes on consumer credit reporting agencies.
Summary of Patent
Reform Act of 2007
4/18. Senators and Representatives introduced HR 1908 and S 1145, identical
bills
[PDF] titled the "Patent Reform Act of 2007", on April 18, 2007.
FTC and DOJ Release
Report on IPR and Antitrust
4/17. The Federal Trade Commission (FTC)
and the Department of Justice (DOJ) released a
report [217 pages in PDF] titled "Antitrust Enforcement and Intellectual
Property Rights: Promoting Innovation and Competition". See also, FTC
release.
Copyright Office
and USPTO to Hold Roundtable on Draft WIPO Broadcast Treaty
4/12. The Copyright Office (CO) and the
U.S. Patent and Trademark Office (USPTO)
announced that they will hold a public roundtable discussion of the
World Intellectual Property Organization's (WIPO)
Standing Committee on Copyright and Related Rights (SCCR) proposed draft Treaty on the
Protection of the Rights of Broadcasting Organizations.
US to Complain
to WTO Regarding PR China's Failure to Protect IPR
4/9. The Office of the U.S. Trade Representative (OUSTR)
announced the the US will initiate two related complaint proceedings before the
World Trade Organization (WTO) regarding the People's
Republic of China and intellectual property rights (IPR). The two requests for consultations,
to be filed with the WTO on Tuesday, April 10, will address China's failure to protect IPR in
movies, music, books and other content, and China's access barriers for US content
distributors.
9th Circuit
Constrains Computer Privacy
4/6. The U.S. Court of Appeals (9thCir) issued its
opinion [13 pages in PDF] in USA v. Heckenkamp, a Section 1030 case in
which the issue is the admissibility of evidence acquired in a warrantless remote search
of a student's hard drive by a university network administrator who was acting in association
with the FBI.
AMC Seeks End to
Duplicative FCC Antitrust Merger Reviews
4/3. The Antitrust Modernization Commission (AMC)
released its report titled "Antitrust Modernization Commission: Report and
Recommendations: April 2007". The report argues that there should not be duplicative
antitrust merger reviews at sectoral regulatory agencies, such as the Federal
Communications Commission. See,
entire report
[540 pages in PDF, 2.1 MB] and AMC
release
[3 pages in PDF].
Federal Circuit
Rules on Case or Controversy Requirement in Patent DJ Actions
3/26. The U.S. Court of Appeals (FedCir) issued its
opinion [26 pages in PDF] in
SanDisk v. STMicroelectronics, a patent infringement case involving flash
memory storage products. The Court of Appeals vacated the judgment of the District Court,
which had dismissed SanDisk's claims relating to declaratory judgment of noninfringement and
invalidity for failure to present an actual controversy. The declaratory judgment claims will
proceed in the District Court.
FreeConference
Alleges Blocking of Calls by AT&T
3/26. Freeconference.com, Inc. filed a
complaint in U.S. District Court (DC) against
AT&T alleging violation of federal antitrust law and
the Communications Act in connection with AT&T's alleged blocking of calls to
FreeConference, and AT&T's alleged termination of access fees from local
exchange carriers (LECs) to which FreeConference is a subscriber.
FCC Adopts NOI
Regarding Broadband Market Practices
3/22. The Federal Communications Commission (FCC) adopted,
but did not release, a Notice of Inquiry (NOI) regarding broadband market practices. The FCC
stated in a
release [PDF] that the FCC "seeks comment on whether the Policy Statement
should incorporate a new principle of nondiscrimination and, if so, how would
``nondiscrimination´´ be defined, and how would such a principle read." The FCC adopted
its
policy statement [3 pages in PDF] on August 5, 2005.
8th Circuit Denies
Petitions for Review of FCC's Vonage VOIP Order
3/21. The U.S. Court of Appeals (8thCir)
issued its opinion [PDF]
in MPUC v. FCC, denying several consolidated petitions for review of the
Federal Communications Commission's (FCC) November 9, 2004,
Memorandum
Opinion and Order [41 pages in PDF] (MO&O) that preempted an
order of the Minnesota Public Utilities
Commission (MPUC) that applied its traditional telephone company regulations
to Vonage Holding Corporation's DigitalVoice service,
which provides voice over internet protocol (VOIP) service. However, the Court of Appeals
also concluded that the issue raised in the petition filed by the Public Service Commission
of the State of New York regarding fixed VOIP service "is not ripe for review".
9th Circuit Holds
That Wireless Zoning Ordinance Violates § 253(a), But This Creates No Private Right Of Action
Under § 1983
3/13. The U.S. Court of Appeals (9thCir) issued its
opinion [33 pages in PDF] in Sprint v. County of San Diego,
affirming the judgment of the District Court that the wireless zoning ordinance
in question is preempted by 47 U.S.C. § 253, but that this violation creates no
private right of action for damages under 18 U.S.C. § 1983.
Viacom Files
Complaint Against Google and YouTube Alleging Violation of Copyright Law
3/12. Viacom and others filed a
complaint
[PDF] in U.S. District Court (SDNY) against
Google and YouTube alleging violation of copyright law in connection with the operation of
a commercial web site that permits users to publish copies of copyrighted works,
without license. The six count complaint alleges direct infringement by public performance,
direct infringement by public display, direct infringement by reproduction,
inducement of copyright infringement, contributory copyright infringement,
vicarious copyright infringement. Google owns YouTube.
House Commerce
Committee Holds Hearing on Bill Related to Pretexting of, and Data Sharing by,
Carriers
3/9. The House Commerce Committee held a
hearing titled "Combating Pretexting: H.R. 936, Prevention of Fraudulent Access to
Phone Records Act". Both Democrats and Republicans stated that there is a need for the
bill, and urged approval. The one major area of disagreement is the provisions of Title II of
the bill that limit data sharing by carriers. Representatives of carriers, and some committee
members, argued that the bill should not interfere with legitimate business practices of
carriers.
Microsoft Counsel
Says Google Systematically Violates Copyright
3/6. Thomas Rubin, Microsoft's
Associate General Counsel for Copyright, Trademark and Trade Secrets, gave a
speech titled "Searching for Principles: Online Services and Intellectual
Property" in which he stated that
Google systematically violates copyright. He focused
primarily on Google's book search program. In contrast,
he said that Microsoft's competing book search program
respects copyright.
DHS Proposes
Rules Implementing REAL ID Act
3/1. The Department of Homeland Security (DHS)
released a notice [162
pages in DF] to be published in the Federal Register, that announces and describes a
notice of proposed rulemaking regarding rules implementing the REAL ID Act, a bill that
federalized state identification systems.
Rep. Boucher
Introduces FAIR USE Act
2/27. Rep. Rick Boucher (D-VA),
Rep. John Doolittle (R-CA), and
Rep. Zoe Lofgren (D-CA) introduced
HR 1201
[PDF], the "Freedom And Innovation Revitalizing U.S. Entrepreneurship Act of 2007"
or "FAIR USE Act".
1st Circuit Rules
in Section 230 Case
2/23. The U.S. Court of Appeals (1stCir) issued
its opinion
in Universal Communication Systems v. Lycos, a case involving Section 230
interactive computer service immunity. The Court of Appeals affirmed the District Court, which
had held that Lycos and others are entitled to immunity under Section 230. The Court of Appeals
rejected attempts by the plaintiffs to get around Section 230 by pleading trademark dilution
(intellectual property claims are an exception to Section 230 immunity), and federal
cyberstalking (which is also an exception), and state securities fraud and cyberstalking
claims.