Top Stories from 2008

Senate Approves Media Ownership Resolution
5/15. The Senate approved, by voice vote, SJRes 28, which provides as follows: "Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That Congress disapproves the rule submitted by the Federal Communications Commission relating to broadcast media ownership (Report and Order FCC 07-216), received by Congress on February 22, 2008, and such rule shall have no force or effect."

SEC Proposes Rules Requiring XBRL Tagged Filings
5/14. The Securities and Exchange Commission (SEC) adopted, but did not release, a notice of proposed rulemaking, that proposes to change the SEC's rules to mandate over time that certain filings with the SEC be in interactive data format. The SEC's interactive data program is currently voluntary. See, SEC release.

House IP Subcommittee Approves Orphan Works Bill
5/7. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet and Intellectual Property (SCIIP) amended and approved HR 5889 [LOC | WW], the "Orphan Works Act of 2008". The Subcommittee approved by unanimous voice vote a managers' amendment [4 pages in PDF] offered by Rep. Howard Berman (D-CA). Rep. Zoe Lofgren (D-CA) offered, but later withdrew, three amendments. See, (1, 2, and 3). Rep. Adam Schiff (D-CA) offered, but later withdrew, two amendments. (See, 1 and 2.) The SCIIP then approved the bill as amended, by voice vote. See also, TLJ mark up of HR 5889, showing changes made by the managers' amendment, and changes that would be made by each of the Lofgren and Schiff amendments.

Rep. Conyers and Rep. Lofgren Introduce Antitrust Based Network Neutrality Bill
5/7. Rep. John Conyers (D-MI) and Rep. Zoe Lofgren (D-CA) introduced HR 5994 [LOC | WW | PDF], the "Internet Freedom and Nondiscrimination Act of 2008" This bill is very similar, but not identical, to a bill introduced in the 109th Congress, HR 5417 [5 pages in PDF], the "Internet Freedom and Nondiscrimination Act of 2006".

House Judiciary Committee Approves PRO IP Act
4/30. The House Judiciary Committee (HJC) amended and approved HR 4279 [LOC | WW], the "Prioritizing Resources and Organization for Intellectual Property Act of 2007" or "PRO IP Act". The HJC revised the language regarding coordination of government enforcement efforts, and regarding forfeiture of property used in intellectual property crimes. The HJC approved a managers' amendment [PDF] by unanimous voice vote. The HJC then approved the bill as amended by voice vote.

AOUSC Releases Report on Title III Wiretaps in 2007
4/30. The Administrative Office of U.S. Courts (AOUSC) released its report titled "2007 Wiretap Report". It contains data on Title III intercepts, but not Foreign Intelligence Surveillance Act (FISA) intercepts. It finds that "A total of 2,208 intercepts authorized by federal and state courts were completed in 2007, an increase of 20 percent compared to the number terminated in 2006."

Court of Appeals Rules in Rambus v. FTC
4/22. The U.S. Court of Appeals (DCCir) issued its opinion [24 pages in PDF] in Rambus v. FTC, a antitrust case regarding Rambus's participation in the JEDEC standards setting process and assertion of patent rights. The Court of Appeals set aside the FTC's order concluding that Rambus violated Section 2 of the Sherman Act and Section 5 of the FTC Act.

Supreme Court Seeks Solicitor General Brief in Case Regarding 11th Amendment and Patents
4/21. The Supreme Court issued an order in Biomedical Patent Management v. California Department of Health Services. requesting the Solicitor General to file an amicus brief. At issue in this case is the ability of states to enforce their own patents and other intellectual property rights, while as the same time evading lawsuits for their infringement of the intellectual property rights of others. The Supreme Court held in a string of bizarre opinions ten years ago that states have sovereign immunity in intellectual property litigation, and that the Congress cannot abrogate that immunity. The cert petition in the present case addresses when that immunity might be waived.

Reps. Lofgren and Cannon Introduce Cell Tax Fairness Act
4/15. Rep. Zoe Lofgren (D-CA), Rep. Chris Cannon (R-UT) and others introduced HR 5793 [LOC | WW], the "Cell Tax Fairness Act". This bill would impose a five year moratorium on new and discriminatory state and local taxes on mobile services.

Bills Introduced to Stop IRS from Taxing Employees for Work Cell Phones and Other Devices
4/14. Several bills have been introduced in the House and Senate that would remove "any cellular telephone (or other similar telecommunications equipment)" from the enumeration of "listed property" under Section 280F of the Internal Revenue Code. At issue is whether the Internal Revenue Service can treat the use of cell phones and other devices paid for by employers as income to employees, as well as record keeping and data retention requirements imposed upon employers and employees.

11th Circuit Rules on Web Page Meta Tags and Trademark Infringement
4/7. The U.S. Court of Appeals (11thCir) issued its opinion [33 pages in PDF] in North American Medical Corporation v. Axiom Worldwide, a trademark infringement case involving the use of meta tags in the source code of web pages.

Federal Circuit Receives Amicus Briefs Re Business Method Patents and Patentable Subject Matter
4/7. Various entities filed amicus curiae briefs with the U.S. Court of Appeals (FedCir) in In re Bernand Bilski and Rand Warsaw, an appeal from the U.S. Patent and Trademark Office's (USPTO) Board of Patent Appeals and Interferences (BPAI), regarding patentable subject matter.

En Banc 9th Circuit Panel Rejects Section 230 Immunity in Case
4/3. An en banc panel of the U.S. Court of Appeals (9thCir) issued its 8-3 opinion [PDF] in FHCSFV v., a Section 230 immunity case. The majority held, as did the three judge panel, that an interactive computer service, such as, can be held liable for the speech of users, despite language to the contrary in Section 230. Moreover, the majority held, the web site's search and e-mail notification functions, have no immunity.

Copyright Office Section 108 Study Group Releases Report
3/31. The Copyright Office's (CO) Section 108 Study Group released a report [252 pages in PDF] titled "The Section 108 Study Group Report". This massive report contains a library sector wish list of exemptions to liability for copyright infringement that it proposed to be added to 17 U.S.C. § 108. However, this list is tempered by the involvement of several well organized copyright sectors -- especially the movie, music, and software industries. Many other copyright interests would be harmed if the proposals in this report were enacted into law.

FCC Order Cites Wikipedia
3/27. The Federal Communications Commission (FCC) released the text [34 pages in PDF] of an order, opinion, and notice of proposed rulemaking that, among other things, orders direct broadcast satellite (DBS) operators to carry each station in a local market on the same terms, including carriage of high definition (HD) signals in HD format, if any broadcaster in the same market is carried in HD. This order, at footnote 30, cites as an authority a web page in the Wikipedia web site. The FCC does not have a history of citing and relying upon Wikipedia articles in rulemakings, adjudications, or other administrative processes. Wikipedia states that "all information read here is without any implied warranty of fitness for any purpose or use whatsoever".

Comcast and BitTorrent Reach Accord on Network Management Practices
3/27. Comcast and BitTorrent announced that "they will undertake a collaborative effort with one another and with the broader Internet and ISP community to more effectively address issues associated with rich media content and network capacity management." See, Comcast release and substantially identical BitTorrent release. Also, the two companies stated that there is no need for government intervention. The FCC is currently considering a request for intervention.

FCC Releases Details of 700 MHz Auction
3/21. The Federal Communications Commission (FCC) released details regarding the winning bidders in Auction 73, which is also known as the 700 MHz auction. Verizon Wireless (VW) and AT&T dominated the winning bids. AT&T's winning bids totaled over $6 Billion. VW's winning bids totaled more than $9 Billion. All bids totaled over $19 Billion. However, T-Mobile and Sprint-Nextel acquired spectrum in Auction 66 in 2006, which is also known as the AWS-1 auction.

8th Circuit Affirms Injunction of State Regulation of Violent Video Games
3/17. The U.S. Court of Appeals (8thCir) issued its opinion [8 pages in PDF] in Entertainment Software Association v. Swanson, affirming the District Court's permanent injunction against enforcement of a statute of the state of Minnesota that prohibits minors from purchasing or renting certain video games.

7th Circuit Applies Section 230 Immunity in Craigslist Case
3/14. The U.S. Court of Appeals (7thCir) issued its opinion [10 pages in PDF] in Chicago Lawyers v. Craigslist, a Section 230 interactive computer service immunity case. The Court of Appeals affirmed the summary judgment of the District Court for Craigslist on Section 230 grounds.

DOJ Inspector General Releases Second Report on FBI Misuse of National Security Letters
3/13. The Department of Justice's (DOJ) Office of the Inspector General (OIG) released a report [187 pages in PDF] titled "A Review of the FBI’s Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006".

Martin Discusses Complaints Against Comcast and Verizon Wireless
3/7. Federal Communications Commission (FCC) Chairman Kevin Martin gave a speech at Stanford University's law school. He discussed open wireless platforms, quantifying broadband deployment, network neutrality, the pending complaint against Comcast, the pending complaint against Verizon Wireless, and VOIP patent litigation. Martin spoke harsh words about Comcast's network management practices, which affect consumers' use of BitTorrent. In contrast, he distinguished the petition against VW regarding blocking of certain text messages on the basis that VW promptly changed its practice.

House Subcommittee Amends PRO-IP Act
3/6. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet and Intellectual Property (SCIIP) amended and approved HR 4279 [LOC | WW | PDF], the "Prioritizing Resources and Organization for Intellectual Property Act of 2007", also known as the PRO IP Act. The Subcommittee approved an managers' amendment [3 pages in PDF], and then the bill as amended.

EC Demands More Money From Microsoft
2/27. The European Commission (EC) demanded more money from Microsoft. This time, it wants 899 Million Euros. The EC again asserted that Microsoft is violating European competition laws.

Bush Nominates Members of New Privacy and Civil Liberties Oversight Board
2/27. President Bush nominated Daniel Sutherland, Ronald Rotunda, and Francis Taylor to be members of the recently reconstituted Privacy and Civil Liberties Oversight Board (PCLOB). See, White House release and release.

Supreme Court Affirms in Rowe v. New Hampshire Motor Transport Association
2/20. The Supreme Court issued its unanimous opinion [17 pages in PDF] in Rowe v. New Hampshire Motor Transport Association affirming the judgment of the Court of Appeals. This opinion will have the effect of limiting state regulation of electronic commerce.

Supreme Court Denies Cert in ACLU v. NSA
2/19. The Supreme Court denied certiorari in ACLU v. NSA, a case regarding warrantless surveillance. See, Orders List [36 pages in PDF] at page 5. This lets stand the July 6, 2007, opinion of the U.S. Court of Appeals (6thCir).

Senate Passes Its FISA Bill, While House Rejects 21 Day Extension Bill
2/13. On February 12, 2008, the Senate passed its Foreign Intelligence Surveillance Act (FISA) reform bill (S 2248). On Wednesday, February 13, 2008, the House rejected a bill (HR 5349) to extend the Protect America Act (PAA) for another 21 days. The PAA is set to expire on Saturday, February 15, 2008. The Senate approved S 2248 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007". The vote was 68-29. All of the votes against S 2248 were cast by Democrats. All of the votes in favor of Sen. Chris Dodd's (D-CT) amendment (Amendment No. 3907) to delete the immunity title, which failed, were cast by Democrats. See, Roll Call No. 20.

Rep. Markey Introduces Network Neutrality Bill
2/13. Rep. Ed Markey (D-MA) and Rep. Chip Pickering (R-MS) introduced HR 5353 [LOC | WW], the "Internet Freedom Preservation Act of 2008", a bill pertaining to network neutrality.

Bush Administration Opposes Senate Version of Patent Reform Act
2/4. Nathaniel Wienecke, of the Department of Commerce, sent a letter [6 pages in PDF] to Sen. Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee (SJC), and the other members of the SJC, announcing and explaining the Bush administration's strong opposition to S 1145 [LOC | WW], the "Patent Reform Act of 2007", in its current form.

FCC Releases Report on Wireless Competition
2/4. The Federal Communications Commission (FCC) released a report [pages in PDF] titled "Twelfth Report". This is the FCC's annual report to the Congress on the state of competition Commercial Mobile Radio Services (CMRS) industry. The report concludes that "there is effective competition in the CMRS market".

FCC Releases Three NPRMs Regarding Universal Service Subsidies
1/29. The Federal Communications Commission (FCC) announced and released three Notices of Proposed Rulemaking (NPRMs) relating to reforming its subsidy program know as the universal service high cost support program.

10th Circuit Addresses Personal Jurisdiction in Copyright DJ Actions Following DMCA Take Down Notices
1/28. The U.S. Court of Appeals (10thCir) issued its opinion [36 pages in PDF] in Dudnikov v. Chalk & Vermilion Fine Arts, a copyright declaratory judgment action. The Court of Appeals reversed the judgment of the District Court, which had dismissed the complaint for lack of personal jurisdiction.

FTC Seeks Contempt Order Against MySpace Page Jackers
1/23. The Federal Trade Commission (FTC) filed a civil contempt motion [3 pages in PDF] and memorandum in support [30 pages in PDF] in U.S. District Court (DNH) in FTC v. Odysseus Marketing and Walter Rines, alleging violation of a previously issued permanent injunction that bars defendants and others from employing a deceptive online advertising scheme that page jacks MySpace web pages, and then mouse traps internet users who visit page jacked pages.

Supreme Court Requests Solicitor General Brief in Telecom Antitrust Case
1/22. The Supreme Court issued an order asking the Department of Justice's (DOJ) Office of the Solicitor General (OSG) to submit an amicus curiae brief in Pacific Bell v. Linkline. The U.S. Court of Appeals (9thCir) issued its divided opinion [22 pages in PDF] on September 11, 2007.

MySpace and State AGs Sign Document Regarding Online Safety
1/16. MySpace, which is owned by News Corporation, and most state Attorneys General entered into and released a document [12 pages in PDF] on January 14, 2008, titled "Joint Statement on Key Principles of Social Networking Safety".

5th Circuit Rules No Personal Jurisdiction Over Out of State Regulator of Online Commerce
1/14. The U.S. Court of Appeals (5thCir) issued its opinion [19 pages in PDF] in Stroman Realty v. Wercinski, a case regarding state regulation of internet based commerce in timeshares, such as vacation condos. The Court of Appeals did not reach the merits of the commerce clause claim. Rather, it held that the state of Arizona's regulators cannot be sued in federal court in Texas, the location of the targeted company. This case may be of concern to internet based businesses that find themselves regulated or taxed by numerous distant state regulators. This case stands as authority for the proposition that if internet based business's constitutional or federal statutory rights are violated by distant state regulators or tax collectors, then these businesses cannot obtain personal jurisdiction over the distant regulators in their home states. On the other hand, state regulators and taxers of interstate and internet commerce may celebrate this opinion.

New York Announces Investigation of Intel
1/10. The Office of the Attorney General of the state of New York announced in a release that it has "served a wide-ranging subpoena seeking documents and information on Intel Corporation".

USTR Schwab Addresses Trade in Electronics
1/8. Susan Schwab, head of the Office of the U.S. Trade Representative (OUSTR), gave a speech [PDF] in Las Vegas, Nevada, on January 7, 2008, at the annual Consumer Electronics Show (CES) in which she advocated free trade and explained why it is important to the consumer electronics sector.

Supreme Court Grants Certiorari in Case Regarding Private Rights of Action Under Communications Act
1/4. The Supreme Court granted certiorari in Sprint Communications v. APCC Services, a case regarding private rights of action under the Communications Act for violation of FCC rules -- in this case, payphone compensation rules. See, Orders List [4 pages in PDF] at page 2-3.

DOJ Prosecutes Operators of Pump and Dump Securities Scheme Under CAN-SPAM and CFAA
1/3. The U.S. District Court (EDMich) unsealed an indictment that charges Alan M. Ralsky and ten other persons with violation of criminal prohibitions of the federal CAN SPAM Act (18 U.S.C. § 1037), violation of the federal Computer Fraud and Abuse Act (CFAA) (18 U.S.C. § 1030), and other federal crimes, but not any federal securities laws, in connection with the operation of a pump and dump securities fraud operation.