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., 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.