Top Stories from 2012
Senate Approves Bill to Extend FISA Outside the US Warrantless Intercept
12/28. The Senate passed HR 5949 [LOC | WW], the "FISA Amendments Act Reauthorization Act of 2012", by a vote of 73-23. See, Roll Call No 236.
Commentary: Analysis of Senate Votes on the FISA Extension Bill
12/28. The Senate passed HR 5949 [LOC | WW], the "FISA Amendments Act Reauthorization Act of 2012", by a vote of 73-23. See, Roll Call No 236. The Senate first rejected four amendments on roll call votes. Voting on amendments, and for final passage, correlated with party affiliation. Senate Democrats were more likely to vote for the amendments, and against the bill, than Republicans. Voting also correlated with old RBOC boundaries (Verizon/AT&T states v. US West states).
Richard Taranto and the Federal Circuit
12/24. Richard Taranto is one of four Court of Appeals nominees blocked by filibuster. He might have a particular impact upon technology law, if confirmed. This article reviews Taranto's background and experience. It also provides information regarding why the Taranto nomination has not come up for a vote, what things might factor into Senators' voting decisions if he were to come up for a vote, and how he might affect the development of technology related areas of law if confirmed.
Sen. Wyden Introduces Data Caps
12/20. Sen. Ron Wyden (D-OR) introduced S 3703 [LOC | WW | PDF], the "Data Cap Integrity Act of 2012". This bill would provide that internet access service providers must obtain permission from the Federal Communications Commission (FCC) before they can impose a "data cap".
Releases Expanded COPPA Rules
12/19. A divided Federal Trade Commission (FTC) released a notice, to be published in the Federal Register, that announces, describes, recites, and sets the effective date of, its new rules related to the COPPA and the regulation of privacy related online business practices.
House to Take Up Tech
12/14. The House floor schedule for Tuesday, December 18, 2012 includes consideration of three technology related bills, under suspension of the rules: Sen. Patrick Leahy's (D-VT) recently introduced "Theft of Trade Secrets Clarification Act", Rep. Bob Goodlatte's (R-VA) bill to amend the VPPA (without the SJC's ECPA amendments), and Rep. Lamar Smith's (R-TX) recently introduced patent bill (which addresses the post grant dead zone, allocation of user fees, and pre GATT patent applications, among other issues).
Representatives Introduce Revised Version of Customs Information Sharing Bill
12/13. Rep. Ted Poe (R-TX), Rep. Steve Chabot (R-IN), Rep. Zoe Lofgren (D-CA), and Rep. Linda Sanchez (D-CA) introduced HR 6654 [LOC | WW | PDF], the "Foreign Counterfeit Merchandise Prevention Act", a bill to allow the Department of Homeland Security's (DHS) U.S. Customs and Border Protection (CBP) to share certain information with the owners of copyrights and registered marks. This is a revised version of HR 4216 [LOC | WW].
DC Circuit Upholds FCC's
Data Roaming Rules
12/4. The U.S. Court of Appeals (DCCir) issued its opinion [30 pages in PDF] in Cellco Partnership v. FCC, rejecting a challenge to the Federal Communications Commission's (FCC) data roaming rules.
Sanders and Others Urge FCC to Continue Ancient Newspaper Broadcast Cross
12/3. Six Democratic Senators sent a letter [PDF] on November 30 to the Federal Communications Commission (FCC) urging perpetuation of the FCC's ancient regulatory regime for ownership of media. On December 3 the FCC solicited further comments, thus effectively postponing its adoption of new rules.
Pai, the Silicon Prairie, and STEM Visas
11/30. FCC Commissioner Ajit Pai, who is the son of immigrants from India, commented on House passage of HR 6429 [LOC | WW | PDF], the "STEM Jobs Act of 2012", on Friday, November 30, 2012. The bill would enable aliens who obtain advanced degrees in STEM fields from US universities to obtain visas, and therefore remain in the US, and contribute to innovation and economic development.
Judiciary Committee Approves Leahy Bill to Require Warrant for Accessing Cloud
11/29. The Senate Judiciary Committee (SJC) held an executive business meeting at which it amended and approved HR 2471 [LOC | WW | HTML], an untitled bill that would require a warrant for accessing cloud stored e-mail, and that would make it easier for social media users to disclose their video viewing.
Eshoo and Rep. Lofgren Complain to FTC about its Google Antitrust
11/19. Rep. Anna Eshoo (D-CA) and Rep. Zoe Lofgren (D-CA), who both represent Silicon Valley districts, sent a short letter to the five Commissions of the Federal Trade Commission (FTC) regarding its antitrust investigation involving Google. Their complaint has two elements. First, they object to leaks from the FTC regarding the status of the investigation. Second, they complain that the FTC may be on the verge of bringing an action against Google under Section 5 of the FTC Act, rather than under an antitrust statute.
Nominates Caproni to District Court
11/14. President Obama nominated Valerie Caproni to be a Judge of the U.S. District Court (SDNY). She was General Counsel of the Department of Justice's (DOJ) Federal Bureau of Investigation (FBI) from 2003 through 2011. She presided over the FBI's Office of General Counsel (OGC) while the FBI engaged in the illegal surveillance activities that the DOJ's Office of the Inspector General (OIG) disclosed in three reports released in 2007, 2008 and 2010.
Files Petition for Rulemaking Regarding Trial Replacement of TDM with IP
11/7. AT&T filed a petition for rulemaking [28 pages in PDF] with the Federal Communications Commission (FCC) regarding allowing incumbent local exchange carriers (ILEC) to replace time division multiplexed (TDM) with internet protocol (IP) facilities in select wire centers.
Court Hears Oral Argument on Standing to Challenge Outside the US Surveillance
10/29. The Supreme Court heard oral argument in Clapper v. Amnesty International, Sup. Ct. No. 11-1025. At issue is whether the plaintiffs have standing to challenge the constitutionality of the "outside the United States" surveillance provision of the Foreign Intelligence Surveillance Act (FISA).
Office Issues Notice of Inquiry on Orphan Works
10/22. The Copyright Office (CO) published a notice in the Federal Register (FR) that requests comments regarding "orphan works". The deadline to submit initial comments is 5:00 PM on January 4, 2012. The deadline to submit reply comments is 5:00 PM on February 4, 2013.
Releases Staff Report on Facial Recognition Technologies
10/22. A divided Federal Trade Commission (FTC) released a staff report [30 pages in PDF] titled "Facing Facts: Best Practices for Common Uses of Facial Recognition Technologies". This report recommends that social networks should "provide consumers with (1) an easy to find, meaningful choice not to have their biometric data collected and used for facial recognition; and (2) the ability to turn off the feature at any time and delete any biometric data previously collected from their tagged photos."
Office Requests Comments on Creating a Resale Royalty Right for Visual Artists
10/16. The Copyright Office (CO) published a notice on September 19 in the Federal Register (FR) that requests comments regarding creating a "resale royalty right" for visual artists. It published a second notice on October 16 that provides an extended comment deadline.
to Acquire 70% Stake in Sprint Nextel
10/15. Sprint Nextel Corporation and SoftBank announced that they have entered into agreements that will give SoftBank a 70% stake in Sprint Nextel.
Intelligence Committee Report Finds Huawei and ZTE Could Undermine US National
10/8. Rep. Mike Rogers (R-MI) and Rep. Dutch Ruppersburger (D-MD), the Chairman and ranking Democrat of the House Intelligence Committee (HIC) released a part of a report [60 pages in PDF] titled "Investigative Report on the U.S. National Security Issues Posed by Chinese Telecommunications Companies Huawei and ZTE". The HIC did not release a "classified annex" to the report. This report finds that "the risks associated with Huawei's and ZTE's provision of equipment to U.S. critical infrastructure could undermine core U.S. national-security interests".
Lets Expire Its Per Se Ban on Exclusive Program Distribution Contracts
10/5. The Federal Communications Commission (FCC) adopted and released an item [146 pages in PDF] that, among other things, allows the exclusive contract prohibition section of the FCC's program access rules to expire.
USA and MetroPCS to Merge
10/3. Deutsche Telekom and MetroPCS Communications announced that they have signed a definitive agreement to combine T-Mobile USA and MetroPCS.
Adopts Spectrum Aggregation NPRM
9/28. The Federal Communications Commission (FCC) adopted and released a Notice of Proposed Rulemaking (NPRM) [50 pages in PDF] regarding spectrum aggregation limits and analyzing spectrum holdings. In 2001 the FCC ended its spectrum aggregation limits, or spectrum caps. Since then, the FCC has engaged in case by case analysis of transactions that involve spectrum licenses. This NPRM asks whether the FCC should exhume its spectrum cap regulation. It also proposes new attribution rules.
Library Association Demands E-Books from Publishers
9/24. The American Library Association (ALA) sent an angry letter to book major publishers criticizing them for not letting libraries distribute their e-books. This letter, signed by Maureen Sullivan, head of the ALA, states that "Simon & Schuster, Macmillan, and Penguin have been denying access to their e-books for our nation's 112,000 libraries". She demanded that "Simon & Schuster must sell to libraries".
Rejects STEM Visas Bill in Suspension Vote
9/20. The House rejected HR 6429 [LOC | WW | PDF], the "STEM Jobs Act of 2012" by a vote of 237-180. Republicans vote 227-5. Democrats voted 30-153. See, Roll Call No. 590. The House considered this bill under suspension of the rules, which meant that a two thirds majority was required for passage.
Grants NCTA Petition for Forbearance to Allow Cable Companies to Acquire
9/17. The Federal Communications Commission (FCC) released an order [26 pages in PDF] that grants the National Cable & Telecommunications Association's (NCTA) petition for forbearance from the statutory ban on cable companies acquiring competitive local exchange carriers (CLECs) in the same markets.
Passes Bill to Extend FISA Outside the US Surveillance Authority
9/12. The House passed HR 5949 [LOC | WW], the "FISA Amendments Act Reauthorization Act of 2012", without amendment, by a vote of 301-118. See, Roll Call No. 569. Republicans voted 227-7. Democrats voted 74-111. President Obama publicly supported this bill. The Senate has not yet passed its version of the bill, S 3276 [LOC | WW]. Sen. Ron Wyden (D-OR), who opposed the bill in the Senate Intelligence Committee (HIC), has placed a hold on the bill.
Brief with DC Circuit in Challenge to BIAS Rules
9/10. The Federal Communications Commission (FCC) filed its brief [121 pages in PDF] with the U.S. Court of Appeals (DCCir) in Verizon v. FCC, the challenge to the FCC's 2010 rules that regulate the business practices of broadband internet access service (BIAS) providers. These rules are also sometimes referred to as open internet rules or network neutrality rules.
Tentative Agenda for September 28 Meeting
9/7. Federal Communications Commission (FCC) released a tentative agenda for its event titled "Open Meeting", scheduled for September 28, 2012. First, the FCC is scheduled to adopt a NPRM related to incentive auctions. Second, the FCC is scheduled to adopt a NPRM regarding "mobile spectrum holdings". Third, the FCC is scheduled to adopt a NPRM regarding its licensing and operating rules for satellite services.
Patent Fees NPRM
9/5. The U.S. Patent and Trademark Office (USPTO) released a notice [213 pages in PDF] to be published in the Federal Register (FR) on September 6, 2012, that announces, describes, and recites proposed rules to adjust patent fees, pursuant to Section 10 of the America Invents Act.
Platform Addresses Tech Related Issues
8/31. The Republican National Committee (RNC) released the 2012 Republican Party platform [62 pages in PDF]. It addresses numerous technology related topics, including trade related intellectual property issues, violation of trade agreements by the People's Republic of China, negotiation of new trade agreements, cyber security, spectrum auctions and inventory, FCC regulation generally, and proposals internet regulation to be considered at the December meeting of the World Conference on International Communications.
2nd Circuit Rules
Internet Streaming of TV Programming is Not a Cable Service
8/27. The U.S. Court of Appeals (2ndCir) issued its opinion [38 pages in PDF] in WPIX v. ivi, holding that a business that streams copyrighted broadcast TV programming over the internet without consent is not a "cable system" within the meaning of 17 U.S.C. § 111 that is entitled to a compulsory license. This is a victory for TV broadcasters.
FCC Adopts Special Access Order
8/23. The Federal Communications Commission (FCC) released a Report and Order [107 pages in PDF] that suspends the FCC's rules, which have been in effect for 13 years, that allow for automatic grants of pricing flexibility for special access services. This pertains to FCC price regulation for connections that provide voice and data for government entities and businesses.
DOJ/FBI Seize Domain
Names by Warrant
8/21. The Department of Justice (DOJ) issued a vaguely worded release on August 21 that announces the seizure of three domain names by warrant, rather than following adjudication. See also, identical Federal Bureau of Investigation (FBI) release. The three domains are applanet.net, appbucket.net, and snappzmarket.com. The DOJ and FBI releases state that "Seizure orders have been executed against three website domain names engaged in the illegal distribution of copies of copyrighted Android cell phone apps".
District Court Issues
Preliminary Denial of Proposed Settlement in One Facebook Class Action
8/17. The U.S. District District Court (NDCal) issued an order [8 pages in PDF] in Fraley v. Facebook that denies preliminary approval of a proposed settlement of a putative class action arising out of Facebook's use of users' names and likenesses in paid advertisements.
DOJ Approves Verizon
8/16. The Department of Justice's (DOJ) Antitrust Division and state of New York filed a complaint [19 pages in PDF] in the U.S. District Court (DC) against Verizon, Verizon Wireless, Comcast, Time Warner Cable, Cox Communications, and Bright House Networks that alleges violation of Section 1 of the Sherman Act in connection with a series of agreements between Verizon and cable companies. Under these agreements, Verizon Wireless agreed to acquire unused Advanced Wireless Services (AWS) spectrum licenses from several cable companies, and Verizon and Verizon Wireless and cable companies agreed to market each other's services. Also, subsequently Verizon Wireless conditionally agreed to sell 700 MHz A and B block licenses to T-Mobile USA. Nominally, the complaint seeks court injunction of the agreements. However, the parties simultaneously announced that they have settled this action. Verizon Wireless will acquire the AWS spectrum. The cross marketing agreements are allowed, but must be amended, and be of limited duration -- four years.
FTC Sues and Settles
With Google for Circumventing Apple Safari Browser's Blocking of Third Party Cookies
8/9. The United States, acting on behalf of the Federal Trade Commission (FTC), filed a complaint [26 pages in PDF] in the U.S. District Court (NDCal) against Google alleging violation of Sections 5(l) and 16 of the FTC Act in connection with Google's circumvention of the Apple Safari browser's default setting for blocking of third party cookies.
10th Circuit Denies
Qwest's Challenge to FCC's Denial of Forbearance
8/6. The U.S. Court of Appeals (10thCir) issued its opinion [43 pages in PDF] in Qwest v. FCC, denying Qwest's petition for review of a Federal Communications Commission (FCC) order denying a request for forbearance under 47 U.S.C. § 160. The order under review is the FCC's Memorandum Opinion and Order (MOO) [67 pages in PDF], adopted on June 15, 2010, and released on June 22, 2010.
Cloture on Sen. Lieberman's Cyber Security Bill
8/2. The Senate rejected a motion to invoke cloture on S 3414 [LOC | WW | PDF], the "Cybersecurity Act of 2012", by a vote of 52-46. A super majority of 60 is required to pass a cloture motion. Later in the day the Senate recessed until September. The two main causes of opposition were the inclusion of Title I of the bill, which imposes a regulatory regime on private sector entities, and the ruthlessly fast and closed process by which Sen. Harry Reid (D-NV) attempted to force this bill upon the Senate.
FTC Releases COPPA
8/1. The Federal Trade Commission (FTC) released a notice [43 pages in PDF], to be published in the Federal Register, that announces, describes, and recites proposed changes to its rules that implement the Children's Online Privacy Protection Act (COPPA). The deadline to submit written comments is September 10, 2012.
Introduces Bill to Tweak Trademark Dilution Statute
7/26. Rep. Lamar Smith (R-TX), Chairman of the House Judiciary Committee (HJC), introduced HR 6215 [LOC | WW | PDF], an untitled bill to amend the Trademark Act regarding remedies for dilution.
FCC Asserts Broad
MVPD Program Carriage Authority
7/24. The Federal Communications Commission (FCC) released a redacted copy [47 pages in PDF] of its Memorandum Opinion and Order (MOO) in the matter of the Tennis Channel's complaint against Comcast. This MOO affirms the conclusion of an administrative law judge (ALJ) that Comcast violated the FCC's program carriage rules, and must provide equal carriage to Tennis Channel (TC). The MOO discloses that the majority of the FCC Commissioners assert that the FCC has broad authority to make decisions for cable companies, and other multichannel video programming distributor (MVPD), regarding what programming to distribute, and at what tier to distribute them.
Committee Approves Outside the US Surveillance Bill
7/19. The Senate Judiciary Committee (SJC) held an executive business meeting at which it amended and approved S 3276 [LOC | WW], a bill to extend the sunset on government authority to conduct surveillance related to persons "outside" the US, without individualized court approval. A 2008 Act created this authority, with a sunset at the end of this year. Surveillance of persons "outside of the United States" is a term of art that also enables surveillance of persons inside of the US who fall within the protection of the 4th Amendment.
Committee to Take Up Access to Federal Information Bill
7/19. The Senate Judiciary Committee (SJC) announced that the agenda for its executive business meeting on July 26 includes consideration of S 225 [LOC | WW], the "Access to Information About Missing Children Act of 2011", a bill that would have greater impact than its title suggests.
US, Japan and EU
Request WTO DSP for REM Complaint Against PRC
7/10. On June 27, 2012, the Office of the U.S. Trade Representative (OUSTR), along with representatives of Japan and the European Union (EU), requested that the World Trade Organization (WTO) establish a dispute settlement panel (DSP) to rule on their complaints against the People's Republic of China (PRC) that allege that the PRC is imposing export restraints, export duties, and export quotas on rare earth materials (REM) in violation of its WTO commitments. The WTO's Dispute Settlement Body (DSB) met on July 10. The WTO announced that "The DSB deferred the establishment of a panel."
Committee to Consider Extension of Sunset on US SAFE WEB Act
7/3. The US SAFE WEB Act is scheduled to sunset next year. The House Commerce Committee (HCC) announced that its Subcommittee on Commerce, Manufacturing and Trade will hold a hearing on July 12 on a yet to be introduced bill that would extend this sunset. This Act increased the investigatory and information sharing powers of the Federal Trade Commission (FTC). For example, the Act gave the FTC new powers to compel third party service providers to disclose the contents of stored wire and electronic communications, without notice to the owner of the communications, and with a gag order imposed upon the service provider.
Introduces Rump of Data Retention Bill
6/29. Rep. Lamar Smith (R-TX), Rep. Debbie Schultz (D-FL), and others introduced HR 6063 [LOC | WW | PDF], the "Child Protection Act of 2012". This bill is the rump of the data retention bill that Rep. Smith endeavored, but failed, to pass earlier in this Congress. HR 6063 contains some of the provisions that were in HR 1981 [LOC | WW], but not the provisions that would have mandated data retention and storage by service providers, that would have provided immunity to service providers for retaining data, and that would have imposed criminal liability for "financial facilitation" of access to child pornography.
Introduce Bill to Increase Penalties for Economic Espionage
6/27. Rep. Lamar Smith (R-TX), Rep. John Conyers (D-MI), and others introduced HR 6029 [LOC | WW], the "Foreign and Economic Espionage Penalty Enhancement Act of 2012". On March 30, 2011, Sen. Herb Kohl (D-WI) and others introduced S 678 [LOC | WW], the "Economic Espionage Penalty Enhancement Act". The Senate bill would increase the maximum penalty for economic espionage, which is codified at 18 U.S.C. § 1831, from 15 to 20 years. The House bill would do this, and increase the maximum fine from $500,000 to $5,000,000.
Committee Approves FISA Bill
6/19. The House Judiciary Committee (HJC) approved HR 5949 [LOC | WW], the "FISA Amendments Act Reauthorization Act of 2012", by a vote of 23-11. See, Table in this issue titled "HJC Roll Call Votes on HR 5949, June 19, 2012". The HJC rejected four amendments offered by Democrats, including one that would have shortened the extension period. This bill would extend for five years government authority to conduct surveillance related to persons "outside" the US, without individualized court approval. Surveillance of persons "outside of the United States" is a term of art that also enables surveillance of persons inside of the US who fall within the protection of the 4th Amendment.
FTC and DOJ
Release Annual HSR Report
6/13. The Federal Trade Commission (FTC) and the Department of Justice's (DOJ) Antitrust Division released a report [46 pages in PDF] titled "Hart Scott Rodino Annual Report Fiscal Year 2011". The total number of covered transactions rose for the second straight year in FY2011, after declining from a peak in FY2007. There were 1,450 transactions in FY2011, up from 1,166 in FY2010, and 716 in FY2009. The percentage of transactions in which either the DOJ or FTC made a second request has been steady at about 4 percent during the Obama administration. This is higher than during the Bush administration.
SASC Approves Defense
Authorization Bill with Cyber Warfare and ICT Provisions
6/4. Sen. Carl Levin (D-MI), the Chairman of the Senate Armed Services Committee (SASC), introduced S 3254 [LOC | WW], the "National Defense Authorization Act for Fiscal Year 2013" on June 4, 2012. The SASC approved it on June 4. See, Senate Report No. 112-173. It contains numerous provisions that relate to cyber warfare and information and communications technology.
Rate Steady; Tech Employment Up; Communications Employment Down
6/1. The Department of Labor's (DOL) Bureau of Labor Statistics (BLS) released employment data for the U.S. for the month of May, 2012. This latest ICT employment data shows that trends, reported in previous TLJ stories, continue. That is, employment in both telecommunications services and equipment manufacturing is declining. Employment in manufacturing of both computers and peripheral equipment and semiconductors and electrical components is increasing. Also, employment in computer systems design and related services continues to grow. Also, if one examines overall ICT data, employment is increasing. Gains in tech are greater than loses in communications.
FTC/DOJ File Amicus
Brief on Antitrust Standing of Direct Purchasers Who Allege Fraud Upon USPTO
5/22. The Federal Trade Commission (FTC) and the Department of Justice's (DOJ) Antitrust Division filed an amicus curiae brief with the U.S. Court of Appeals (FedCir) in Ritz Camera & Image v. SanDisk, in support of Ritz. At issue is the the circumstances in which Section 4 of the Clayton Act, which is codified at 15 U.S.C. § 15, authorizes direct purchasers to recover overcharge damages resulting from a monopoly obtained and maintained through enforcement of a fraudulently procured patent.
and Schumer Condemn Facebook's Saverin
5/17. Sen. Robert Casey (D-PA) and Sen. Charles Schumer (D-NY) held a news conference at which they announced that they will introduce a bill titled the "Expatriation Prevention by Abolishing Tax-Related Incentives for Offshore Tenancy Act", which comes close to producing the acronym of EXPATRIOT Act. The two Senators discussed the renunciation of US citizenship last September by Eduardo Saverin, one of the founders and owners of Facebook. Under US tax law he would have realized a taxable capital gain at the time of Facebook's initial public offering. Saverin resides in Singapore, which has no capital gains tax.
Bill to Limit State Taxation of Mobile Workers
5/15. The House passed HR 1864 [LOC | WW], the "Mobile Workforce State Income Tax Simplification Act of 2011", by voice vote. This bill provides that a state may not impose its income tax on non-resident employees unless they earn wages in the taxing state for more than 30 days.
House and Senate
Bills Would Affect Employer Demands for Employees' Personal Passwords
5/9. Sen. Richard Blumenthal (D-CT) and other Senate Democrats introduced S 3074 [LOC | WW], the "Password Protection Act of 2012", a bill that pertains to employers' practice of demanding and using employees' personal passwords. On the same day, Rep. Martin Heinrich (D-NM) and other House Democrats introduced HR 5684 [LOC | WW], the companion bill in the House.
Cybersecurity Enhancement Act
4/27. The House passed HR 2096 [LOC | WW], the "Cybersecurity Enhancement Act of 2012" by a vote of 395-10. See, Roll Call No. 193. The Senate has not passed this bill, or the companion bill in the Senate. Title I of the bill pertains to cyber security research and development, and education. Title II of the bill pertains to federal cyber security standards.
4/26. The House amended and passed HR 3523 [LOC | WW], the "Cyber Intelligence Sharing and Protection Act of 2011" or "CISPA", a bill that would incent cyber threat information sharing, and surveillance. The vote on final passage was 248-168. See, Roll Call No. 192.
Rep. Stearns and
Rep. Matsui Introduce 1755-1780 MHz Band Bill
4/26. Rep. Cliff Stearns (R-FL) and Rep. Doris Matsui (D-CA) introduced HR 4817 [LOC | WW], the "Efficient Use of Government Spectrum Act", a bill that require that the Federal Communications Commission (FCC) to pair the 1755-1780 MHz block and the 2155-2180 MHz block, which is already set for auction, for reallocation and auction for commercial wireless use.
Supreme Court Rules
in Kappos v. Hyatt
4/18. The Supreme Court issued its opinion in Kappos v. Hyatt, regarding procedure in the District Court when a patent applicant whose claims have been denied by the U.S. Patent and Trademark Office's (USPTO) examiner files an action under 35 U.S.C. § 145. The Supreme Court held that the patent applicant may submit evidence to the District Court not submitted to the patent examiner, and that there are no evidentiary restrictions.
Committee Holds Hearing on PCLOB Nominees
4/18. The Senate Judiciary Committee (SJC) held a hearing on the five nominees to the Privacy and Civil Liberties Oversight Board (PCLOB). The five nominees -- James Dempsey, David Medine, Patricia Wald, Elisebeth Cook, Rachel Brand -- appeared as witnesses. Three of the nominees are notable for their lack of experience with information or communications technologies, or in legal fields involving privacy or surveillance.
Grants Certiorari in Case Regarding First Sale Doctrine
4/16. The Supreme Court of the U.S. granted certiorari in Kirtsaeng v. John Wiley & Sons, a case regarding whether the first sale doctrine of the Copyright Act applies to goods made abroad. See, April 16, 2012, Orders List [21 pages in PDF] at page 2.
DOJ Sues Apple and
Book Publishers Alleging E-Book Price Collusion
4/11. The Department of Justice's (DOJ) Antitrust Division filed a complaint [36 pages in PDF] in the U.S. District Court (SDNY) against Apple and five book publishers alleging violation of Section 1 of the Sherman Act in connection their alleged conspiring to increase the prices that consumers pay for e-books.
Allegations of Race
Discrimination at Tech Companies
4/9. The web site titled "Online IT Degree" published a short piece titled "Is Tech Racist" last July. It is a short collection of graphics, with little text. It states that "It's one of the world's most rapidly growing industries, and yet from where it starts in Silicon Valley to where it ends in the hands of consumers, technology presents an irreconcilable flaw: It seems to be racist." This piece states that the Silicon Valley "employment population" is 1.5% black and 4.7% hispanic, while the overall U.S. population is 12.8% black and 15.4% hispanic.
Court of Appeals
Issues Opinion in Viacom v. YouTube
4/5. A two judge panel of the U.S. Court of Appeals (2ndCir) issued its opinion [39 pages in PDF] in Viacom v. YouTube, affirming in part and vacating the judgment of the U.S. District Court (SDNY). The District Court granted summary judgment to Google/YouTube on all claims in 2010. It held that the Section 512(c) safe harbor of the Digital Millennium Copyright Act (DMCA) requires knowledge or awareness of specific infringing activity. The Court of Appeals affirmed this. However, the Court of Appeals also vacated for several reasons, reversed other holdings of the District Court, and remanded to the District Court for further proceedings. This opinion neither provides finality in these proceedings, nor clarity to several legal issues. No party obtained the holding that it had sought.
Coordinator Releases 2011 Report
3/30. The Executive Office of the President's (EOP) Office of the Intellectual Property Enforcement Coordinator (OIPEC) released a report [130 pages in PDF] titled "2011 U S Intellectual Property Enforcement Coordinator Annual Report on Intellectual Property Enforcement".
House Passes FCC
Process Reform Act
3/27. The House passed the HR 3309 [LOC | WW], the "Federal Communications Commission Process Reform Act of 2012". The vote on final passage was 247-174. See, Roll Call No. 138. Republicans voted 235-0. Democrats vote 12-174. HR 3309 is a huge and complex bill that pertains to decision making processes at the Federal Communications Commission (FCC), including for rulemaking proceedings, antitrust merger reviews, and other adjudications. It adds a new Section 13 to the Communications Act of 1934. The bill contains numerous provisions that would increase transparency. However, it leaves untouched many practices that decrease transparency. Also, it would decrease transparency by allowing Commissioners to meet in secret.
FCC CSRIC Makes
Recommendations Regarding ISP Cyber Security
3/22. The Federal Communications Commission (FCC) announced in a release that its Communications Security, Reliability and Interoperability Council (CSRIC) "adopted recommendations for voluntary action by Internet service providers (ISPs) to combat three major cyber security threats, including botnets, attacks on the Domain Name System (DNS), and Internet route hijacking". See also, second release, and speech by FCC Chairman Julius Genachowski.
Supreme Court Rules
in Mayo v. Prometheus Regarding Patentable Subject Matter
3/20. The Supreme Court of the US issued its unanimous opinion [28 pages in PDF] in Mayo v. Prometheus, a patent case regarding whether certain processes used by doctors are patentable subject matter. The Supreme Court held that the claims at issue in the patents in suit cover processes that merely apply laws of nature that are not patentable under Section 101 of the Patent Act.
Amicus Briefs Regarding Warrantless Seizure of Historical Cell Site Location Data
3/16. The American Civil Liberties Union (ACLU), Electronic Frontier Foundation (EFF), Center for Democracy and Technology (CDT), and others filed an amicus curiae brief with the U.S. Court of Appeals (5thCir) in In the Matter of the Application of the United States of America for Historical Cell Site Data.
US, Japan and EU
Take Rare Earths Issue to WTO
3/13. The United States filed a complaint (nominally a request for consultations) with the World Trade Organization (WTO) against the People's Republic of China (PRC) alleging that it is imposing export restraints, export duties, and export quotas on rare earth materials (REM) in violation of its WTO commitments.
Commission Reports that US Is Threatened by PRC Computer Network Operations
3/8. The US China Economic and Security Review Commission released a report [139 pages in PDF] titled "Occupying the Information High Ground: Chinese Capabilities for Computer Network Operations and Cyber Espionage". It finds that "Chinese capabilities in computer network operations have advanced sufficiently to pose genuine risk to U.S. military operations in the event of a conflict." See, also summary.
Committee Approves FCC Reform Bills
3/6. The House Commerce Committee (HCC) amended and approved two bills, HR 3309 [LOC | WW], the "Federal Communications Commission Process Reform Act of 2011", and HR 3310 [LOC | WW], the "Federal Communications Commission Consolidated Reporting Act of 2011".
and Judiciary Committees Face Turnover
2/28. Sen. Olympia Snowe (R-ME) announced that she will not run for re-election in November. She is a senior member of the Senate Commerce Committee (SCC), which has jurisdiction over telecommunications and other technology related issues.
to EC Regarding Google's Abuse of Standard Essential Patents
2/22. Microsoft announced that it filed a complaint with the European Commission (EC) asking it to investigate Motorola Mobility and Google for anticompetitive conduct in connection with its abuse of standard essential patents (SEPs) for video on smartphones and tablets. Apple previously complained.
Discusses Trade and WTO Issues with Russian Officials
2/22. Sen. Max Baucus (D-MT), Chairman of the Senate Finance Committee (SFC), which has jurisdiction over trade issues, traveled to the Russian Federation on February 17-22, 2012, to discuss trade disputes and Russian accession to the World Trade Organization (WTO).
House and Senate
Pass Spectrum Bill
2/17. The House and Senate passed the conference report [270 pages in PDF] on HR 3630 [LOC | WW], the "Middle Class Tax Relief and Job Creation Act of 2012". The House passed the bill by a vote of 293 to 132. See, Roll Call No. 72. The Senate passed the bill by a vote of 60 to 36. See, Roll Call No. 22. This bill gives the Federal Communications Commission (FCC) authority to conduct incentive auctions. It also reallocates the D Block for an interoperable public safety broadband network, and provides for the creation, governance, and funding of such a public safety network. It also includes the "Next Generation 9-1-1 Advancement Act" and other provisions.
Users Online by Circumventing Apple Safari Browser's Blocking of Third Party Cookies
2/17. Jonathan Mayer, a graduate student at Stanford University, published a paper on February 17, 2012, that explains how Google and three other companies used surreptitious code to circumvent the block third party cookies feature of Apple's web browser, Safari, thereby enabling these companies to track the web browsing of users of Apple iPhones and iPads, without their permission or knowledge, and contrary to Apple's and users' efforts to protect their privacy.
Addresses Patents and Communications Standards
2/10. Joaquín Almunia, the European Commission's (EC) VP for Competition Policy" gave a speech in Paris on February 10, 2012, titled "Industrial Policy and Competition Policy: Quo vadis Europa?" He addressed, among other topics, communications standards and patents. He said that the EC will use antitrust enforcement to prevent misuse of patent rights.
EPIC Sues FTC to
Compel Enforcement of Google Privacy Order
2/8. The Electronic Privacy Information Center (EPIC) filed a complaint [9 pages in PDF] in the U.S. District Court (DC) against the Federal Trade Commission (FTC) alleging that the FTC has failed to enforce its Decision and Order [7 pages in PDF] dated October 13, 2011, which relates to Google's privacy related practices.
Committee Approves Watford for 9th Circuit
2/2. The Senate Judiciary Committee (SJC) approved the nomination of Paul Watford to be a Judge of the U.S. Court of Appeals (9thCir) by a vote of 10-6-2, in a party line vote. Watford has represented clients in appellate proceedings in many significant technology related cases. For example, he represented Rambus in patent and antitrust litigation, defended Verizon in phone bill cramming litigation, and represented Jeppesen DataPlan in a landmark state secrets privilege case.
Sen. Reid Postpones
Senate Consideration of PROTECT IP Act
1/20. Sen. Harry Reid (D-NV), the Senate Majority Leader, announced in a release that "In light of recent events, I have decided to postpone Tuesday's vote on the PROTECT I.P. Act". In addition, Rep. Lamar Smith (R-TX), sponsor of the Stop Online Piracy Act (SOPA) in the House, announced that the House Judiciary Committee (HJC) "will postpone consideration of the legislation until there is wider agreement on a solution".
Megaupload With Criminal Copyright Infringement
1/19. The U.S. District Court (EDVa) unsealed an indictment that charges several individuals and businesses connected to the Megaupload web site with criminal copyright infringement, money laundering, and related crimes. The business styles itself as a storage locker, but is dedicated to commercially exploiting the uploading and downloading of copyrighted movies, music and other works without authorization.
Addresses Incentive Auctions and Unlicensed Spectrum
1/11. Federal Communications Commission (FCC) Chairman Julius Genachowski gave a speech at the Consumer Electronics Show (CES) in Las Vegas in which he addressed legislation to give the FCC incentive auction authority.
Nonresponsive Answers Regarding Patent Application that Discloses Privacy Invasive
1/10. Facebook sent a letter [6 pages in PDF] dated December 21, 2011, to Rep. Joe Barton (R-TX) and Rep. Ed Markey (D-MA) that responds to a letter sent to it by Rep. Barton and Rep. Markey on November 10, 2011. The two publicly released the Facebook's response on January 10, 2012.
Commerce Release Competes Act Report
1/6. The Department of Commerce (DOC) released a document [160 pages in PDF] titled "The Competitiveness and Innovative Capacity of the United States". The just released document is full of election year praise for the work of the Obama administration, and Obama quotations.
America Invents Act Implementation Rulemaking Proceedings
1/5. The U.S. Patent and Trademark Office (USPTO) published three notices in the Federal Register that propose changes to its rules of practice to implement various provisions of HR 1249 [LOC | WW], the "Leahy-Smith America Invents Act", which was signed into law in September of 2011. These proceedings pertain to post patent reviews, pre patent issuance submissions by third parties, and USPTO disciplinary proceedings.