Top Stories from 2009
and Clyburn Back Net Neutrality Rules
9/21. Federal Communications Commission (FCC) Chairman Julius Genachowski gave a speech [8 pages in PDF] in which he proposed that the FCC promulgate rules that contain network neutrality mandates.
DOJ Files Pleading
in Google Books Case
9/18. The Department of Justice's (DOJ) Antitrust Division filed a pleading [32 pages in PDF] titled "Statement of Interest of the United States of America Regarding Proposed Class Settlement" in the U.S. District Court (SDNY) in Authors Guild and American Association of Publishers v. Google. It recommends that the "Court should reject the Proposed Settlement in its current form and encourage the parties to continue negotiations to modify it so as to comply with Rule 23 and the copyright and antitrust laws." It adds that this pleading contains only a "preliminary explanation" of the DOJ's antitrust concerns.
9th Circuit Construes
Meaning of Without Authorization in Section 1030
9/15. The U.S. Court of Appeals (9thCir) issued its opinion [19 pages in PDF] in LVRC v. Brekka, a civil case involving Section 1030 and unauthorized access to a protected computer system. The Court of Appeals affirmed the summary judgment of the District Court for a former employee of a company that accused him of unauthorized access both during and after his employment. This opinion addresses in detail the meaning of the statute's phrases "without authorization" and "exceeds authorized access". Notably, this Court declined to follow the shaky reasoning of Judge Posner's 7th Circuit opinion in International Airport Centers v. Citrin.
9th Circuit Considers
9/9. The U.S. Court of Appeals (9thCir) issued its opinion [14 pages in PDF] in Los Angeles v. Kern County, rejecting a commerce clause challenge to a county ordinance.
Rejects Challenge to Internet Gambling Statute
9/1. The U.S. Court of Appeals (3rdCir) issued its opinion [10 pages in PDF] in Interactive Media Entertainment & Gaming Association v. US, a constitutional challenge to the Unlawful Internet Gambling Enforcement Act of 2006 (UIGEA). The Court of Appeals affirmed the District Court's dismissal of the plaintiff's complaint.
Vacates FCC's 30% Cable Subscriber Cap
8/28. The U.S. Court of Appeals (DCCir) issued its opinion [21 pages in PDF] in Comcast v. FCC, a challenge by Comcast and others to the Federal Communications Commission's (FCC) rule that capped at 30% all subscribers the market share any single cable television operator may serve. The Court of Appeals held that the rule is arbitrary and capricious, granted the petition for review, and vacated the rule.
2nd Circuit Rules
Webcasting Service is Not an Interactive Service Under Section 114
8/21. The U.S. Court of Appeals (2ndCir) issued its opinion [42 pages in PDF] in Arista Records v. Launch Media, affirming the judgment of the District Court, and holding that a webcasting service is not an interactive service within the meaning of 17 U.S.C. § 114(j)(7). This is the first Court of Appeals opinion on this issue. (The Library of Congress's Copyright Office declined to rule on the meaning of interactive service back in 2000.) This ruling is a victory for internet radio providers and a defeat for record companies.
Rules There is No Expectation of Privacy in P2P Files
8/14. The U.S. Court of Appeals (8thCir) issued its opinion [35 pages in PDF] in USA v. Stults, affirming a criminal conviction that was based upon an FBI agent's search of LimeWire shared files on the defendant's computer. The Court of Appeals held that there is no reasonable expectation of privacy, in the context of the 4th Amendment, in files shared through the peer to peer, or P2P, program LimeWire.
Offshore Internet Gambling Pleads Guilty to RICO and Wire Act Charges
8/13. Gary Stephen Kaplan pled guilty in U.S. District Court (EDMo) to violation of the RICO Act and Wire Act in connection with his operation of an offshore and unprotected gambling business. It took bets online and via telephone. The Federal Bureau of Investigation's (FBI) John Gillies stated in a Department of Justice (DOJ) release that Kaplan was "one of the pioneers of illegal online gambling". Gillies also boasted about taking down someone who was "making it too easy for people to gamble away their hard earned money". Yet, while Kaplan was targeted for his gambling operation, he was taken down on RICO Act and Wire Act charges. Gambling is legal, protected, and regulated in the U.S.
Senate Commerce Committee Approves Bill to
Allow Cell Phone Jamming by State Prisons
8/5. The Senate Commerce Committee (SCC) amended and approved S 251 [LOC | WW], the "Safe Prisons Communications Act of 2009". Sen. Kay Hutchison (R-TX) is the sponsor. This bill, which originates from the Texas delegation, would enable state prisons to petition the Federal Communications Commission (FCC) for waivers allowing them to operate radio frequency jamming devices at state prisons for the purpose of interfering with prisoners' use of cell phones.
Subcommittee Marks Up Data Accountability and Trust Act
6/3. The House Commerce Committee's (HCC) Subcommittee on Commerce, Trade, and Consumer Protection amended and approved HR 2221 [LOC | WW], the "Data Accountability and Trust Act". It approved by voice vote an amendment in the nature of a substitute [3 pages in PDF].
Grants Cert in In Re Bilski
6/1. The Supreme Court granted certiorari in In Re Bilski. See, Orders List [8 pages in PDF] at page 1. On October 30, 2008, the U.S. Court of Appeals (FedCir) issued its 9-3 en banc opinion [132 pages in PDF] 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.
Urges SCUS to Deny Cert in RS-DVR Case
5/29. The Department of Justice's (DOJ) Office of the Solicitor General (OSG) filed an amicus curiae brief with the Supreme Court in Cable News Network v. CSC Holdings, urging the Supreme Court not to grant certiorari. This is the copyright infringement case involving Remote Storage Digital Video Recorder (RS-DVR) systems.
5/28. As a District Court Judge Sonia Sotomayor wrote the opinions of the U.S. District Court (SDNY) in Tasini v. New York Times, a landmark copyright case.
Obama Picks Encryption Opponent for ODNI General Counsel
4/17. President Obama announced his intent to nominate Robert Litt to be General Counsel of the Office of the Director of National Intelligence (ODNI). See, White House news office release. He has long been at partner at a large Washington DC law firm. However, over a decade ago, in the late 1990s, he was active in the encryption policy debates. He was one of the leaders of the government's efforts to suppress the use of encryption, and to mandate government back doors.
Holder Advocates Some Constitutional Principles
4/15. Attorney General Eric Holder gave a lengthy speech at the United States Military Academy in West Point, New York in which he discussed the role of law in "our current struggle against international terrorism". It was a plea for adherence to Constitutional principles. However, it was as significant for what he said -- about detention of people in places like Guantanamo Bay -- as for what he did not say -- about interception of communications and seizure of data.
9th Circuit Holds California Video Games Statute Unconstitutional
2/20. The U.S. Court of Appeals (9thCir) issued its opinion [30 pages in PDF] in Video Software Dealers Association v. Schwarzenegger, holding that the state of California's statute that mandates labeling of violent video games violates the First Amendment.
CEA Chief Criticizes Spending Bill, Protectionism, Unionization Mandates,
and Anti-Immigration Policy
2/17. Gary Shapiro, head of the Consumer Electronics Association (CEA), gave a speech in which he condemned in blunt language the just enacted spending bill, HR 1 [LOC | WW], and the news media's failure to report on it. Shapiro said that the bill will create an immense debt to be paid by future generations; he also questioned whether it will stimulate the economy. He said that "The irresponsibility and the lack of discussion are breathtaking."
House Passes DTV Delay Act
2/4. The House passed S 352 [LOC | WW], the "DTV Delay Act", by a vote of 264-158. See, Roll Call No. 52. The Senate passed this version on January 29, 2009. It is now ready for President Obama's signature. He will sign it. Democrats voted 241-10. Republicans voted 23-148.
Conyers Reintroduces Fair Copyright in Research Works Act
2/3. Rep. John Conyers (D-MI) and others introduced HR 801 [LOC | WW], the "Fair Copyright in Research Works Act", a bill to protect the copyright interests and incentives of authors and publishers of research works when the government provides funding for that research.
DC Circuit Rules in Internet Gambling Case
1/27. The U.S. Court of Appeals (DCCir) issued its opinion [19 pages in PDF] in US v. Soulbury Limited, an in rem case regarding seizure by the US government of money of an internet gambling enterprise located outside of the US.
WTO Panel Rules in PRC IPR Case
1/26. The World Trade Organization (WTO) released a panel report [PDF] in its proceeding, initiated by the U.S. against the People's Republic of China (PRC), regarding the PRC's failure to protect intellectual property rights in movies, music, books and other content, and the PRC's access barriers for US content distributors. The report finds that the PRC's copyright law and customs measures are "inconsistent" with the Trade Related Aspects of Intellectual Property (TRIPS) Agreement.
Holds US Can Use Video Obtained From Warrantless Hidden Video Cameras Placed on Owner's
1/8. The U.S. Court of Appeals (4thCir) issued its opinion [10 pages in PDF] in USA v. Vankesteren, a criminal case regarding application of the 4th Amendment to hidden, outdoor, motion activated video cameras, placed on private property owned by the person asserting 4th Amendment rights.
1st Circuit Construes Federal Phone Harassment Statute
1/7. The U.S. Court of Appeals (1stCir) issued another opinion in US v. Tobin, a case regarding application of 47 U.S.C. § 223(a)(1) to political operatives who use telemarketing techniques to tie up the phone lines of the other political party on election day to disrupt a turn out the vote effort. The Court of Appeals affirmed the District Court's judgment of acquittal. Tobin had a purpose to disrupt phone calling, not to harassment people, as required by the statute. Phone call disruption is not a crime under Section 223(a).