The BLT: The Blog of Legal Times

Former Senior FTC Official Joins Wilkinson Barker Knauer

Maureen Ohlhausen, once director of the Federal Trade Commission's Office of Policy Planning, will join Washington-based Wilkinson Barker Knauer as a partner effective Dec. 1, the communications and technology law firm announced today.

Ohlhausen, 47, will head the firm’s FTC practice, representing industry clients in matters relating to the agency. It’s a good time to bring her 11 years of FTC experience to private practice, she said, as the agency is recently reevaluating its privacy guidelines.

“Wilkinson really had a vision of how the FTC practice, compliance issues and consumer protection issues are becoming so intertwined with communications issues,” she said. “With technological convergence, a lot of these issues are cutting across jurisdictional boundaries (of government agencies).”

That’s a lesson Ohlhausen said she learned while heading the FTC Internet Access Task Force, which looked at net neutrality, broadband connectivity and wi-fi access, among other things. She said she will put her net neutrality expertise to immediate use at Wilkinson, giving clients and her colleagues guidance on the issue.

Ohlhausen started at the FTC in 1997 and from 2004 to 2008, she directed the Office of Policy Planning, which develops competition and consumer protection policy initiatives. She left the FTC in 2008 and became technology policy counsel at the Business Software Alliance, a trade group that represents the commercial software industry.

Ohlhausen earned her J.D. from George Mason University School of Law, where she is also an adjunct faculty member.

Livingston Group Opens Cybersecurity Practice

The Livingston Group has announced the creation of a new cybersecurity practice area.

“Cyberspace is increasingly vulnerable,” said Geoff Gleason, a Livingston Group government relations executive who will head the practice. “There’s just so much in the way of policy that will be done in this area.”

A primary focus will be financial services, such as banks, said Gleason, as tighter cybersecurity controls regarding banks are under consideration by the Obama administration. The group declined to name specific clients. 

Gleason also heads Cyber Security Research Consultants, a firm that lobbies for West Jefferson Medical Center, the National Association of Development Organizations and ITT Corp., among other clients, according to the Center for Responsive Politics (CRP).

The Livingson Group already works with defense and high-tech groups, like Raytheon and Defense Solutions Inc. Gleason said he has reached out to universities as potential clients for the new practice as well. The Livingston Group already represents Tulane University and the University of New Orleans, according to the CRP.

Gleason said he hopes to bridge the gap between the private and government sectors in issues of cybersecurity regulation. “Government, on one side, has a primary responsibility for protecting its citizens. Yet the infrastructure is owned by the private sector,” he said. “It’s just a question of finding the proper balance.”

The group will include former Rep. Dennis Hertel, D-MI, who served on the House Armed Services Committee; James Hensler, former staff director of the Senate Intelligence Committee; and Adam Eisgrau, once a chief judiciary counsel to Sen. Dianne Feinstein, D-Calif., on issues such as intellectual property protection, privacy and data security. All three men, plus Gleason, were already with the Livingston Group.

The group also features two recent additions to the lobbying firm from DARPA, the U.S. Department of Defense’s research wing. Anthony Tether, who used to direct the agency, and Arthur Bruckheim, who was a consultant there, join Livingston as strategic advisors. They haven’t registered as lobbyists, but will instead consult with clients about marketing, businesses development and strategic planning, Gleason said. “They’ll be playing a major role and a significant role, reaching out to and talking to leaders in the corporate world on our behalf,” he said.

Broadband Investors Urge FCC to Tread Lightly

If there's one thing broadband investors want from the Federal Communications Commission, it's regulatory consistency. That was the message from panelists today at a FCC hearing on how best to attract private investment to expand availability of broadband.

The agency is due to unveil its broadband plan to Congress in 139 days (yes, they're counting) and has already held 25 workshops and received more than 20,000 written comments.

Today’s panelists focused on, as Phil Bronner of Novack Biddle Venture Partners put it, "How do we pay for the broadband roll-out?"

The FCC has said it may cost as much as $350 billion to bring universal high-speed Internet access to the entire country. The federal government’s stimulus package will cover just $7 billion of the cost. "We need partnership with the private sector," said FCC Chairman Julius Genachowski. "How do we make it attractive to capital … and balance consumer goals like lower prices with investment returns?"

Monish Kundra of Columbia Capital responded, "Consistency of policy is really important when making investments… It’s hard to make an investment if there’s potential for a significant change in policy down the road."

One question mark for investors is net neutrality, or rules that prohibit Internet service providers from blocking or filtering services or applications. Christopher King of Baltimore-based investment firm Stifel Nicolaus noted that the current debate over net neutrality "injects some amount of uncertainty which will not help the cost of capital until it’s resolved."

King also pointed out that broadband is currently available to roughly 90 percent of U.S. citizens, but has a 60 percent rate of penetration. "This points to some kind of universal service support mechanism in our view," he said.

Hughes Communications Inc. general counsel Dean Manson focused on the FCC’s role in spectrum allocation. Hughes provides broadband via satellite—potentially "available to anyone, anywhere," he said, including rural households not served by cable or DSL lines.

But the company must spend about $400 million upfront to build and launch each satellite. "We need assurances that the radio frequency spectrum will be available for the 15-to-20 year life of the satellite," Manson said. "We urge extreme caution in any reallocation of spectrum."

Thomas Aust, a senior analyst with GE Asset Management, urged the FCC to tread lightly. “Less regulation is better regulation,” he said. "I’m not saying no regulation at all, but regulatory minimalism. Ask yourselves, would government action be nice, or is it necessary? I would say nice is not enough."

Software Company Sues Google For Trademark Infringement

Rosetta Stone, maker of the popular foreign language software, filed a federal trademark suit against Google in Virginia today, alleging that one of the Web giant’s major advertising programs allows companies to confuse consumers.

The suit, filed by Gibson, Dunn & Crutcher partner Terence Ross at the U.S. District Court for the Eastern District of Virginia, is just latest to target Google for its AdWords program, which lets companies buy advertisements that run alongside its search engine results. The ads are triggered by certain keywords, and show up as “sponsored links.”

According to the complaint, since 2004, Google has let companies attach their ads to trademarked keywords they do not own. So a search for Rosetta Stone might bring up the company’s official Web site, as well several paid advertisements for its competitors. Google also allows companies to use those trademarked terms in the headlines of their ads.

Rossetta Stone’s suit accuses Google allowing companies to “free ride” on its brand and of “hijacking” consumers by confusing them into clicking on the wrong sites.

“Google either is misleading or will mislead consumers in innumerable different ways,” the complaint states. “Accordingly, it is impossible for Rosetta Stone to cure this problem merely by pursuing remedies against Google’s advertisers alone.”

Google has been hit with a string of similar lawsuits over its AdWords program. In April, the U.S. Court of Appeals for the 2nd Circuit ruled that one of those suits could go forward after a lower court had dismissed it. The appeals court found that Google was using the trademarks in an act of commerce, giving the trademark owners the right to file a claim.

With that legal issue resolved, Gibson’s Ross said that juries will have to decide whether Google’s practice is likely to confuse consumers.

“There’s not going to be any quick resolution of any of these” suits, he said. “You could get different outcomes from different juries over time.”

Google itself appears to have expected the legal trouble. In its complaint, Rosetta Stone quotes from one the company’s Securities and Exchange Commission filings from 2004, shortly after it adopted its current trademark policy.

“As a result of this change in policy, we may be subject to more trademark infringement lawsuit,” the company stated. “Adverse results in these lawsuits may result in, or even compel, a change in this practice which could result in a loss of revenue for us, which could harm our business.”

According to Ross, however, there seems to be no sign of Google backing down from the practice. He noted that the company started letting trademarked words into headlines, for instance, after the 2nd Circuit’s ruling.

Google did not return a call requesting comment.

Bethesda Company Sues Realtor For Copyright Claim

Ever used a friend’s account to sign on to a Web site instead of paying its subscription fee? Of course you have. After all, who actually ponied up for New York Times Select? Heck, maybe you’re doing it right now.

In the meantime, one real estate agency is facing down a hefty suit in Maryland for allegedly doing something similar, albeit on a much bigger scale.

The suit, filed by Bethesda-based CoStar Realty Information, alleges that managers at New York’s Dumann Realty illegally accessed CoStar's Web site, a subscription to which costs hundreds of dollars a month and provides clients with real estate information such as photos and vacancy databases, by borrowing another customer's user information. According to the complaint, filed yesterday in the U.S. District Court for Maryland, the attempted swindle cost CoStar more than $5,000 in fees.

But here’s the wrinkle: CoStar is accusing Dumann, as well as the alleged co-conspirators who lent it the account, of copyright infringement. By accessing its Web site on the sly, CoStar claims, Dumann’s employees did the equivalent of illegally distributing its content. Costar is asking that Dumann pay $150,000 a pop for every photo or database it accessed.

This is the seventh copyright suit CoStar has filed in Maryland since March. The company, represented in this latest suit by Shari Lahlou and William Sauers of Crowell & Moring, decided in late 2007 that it needed to do more to clamp down on illicit use of its site. It realized that copyright claims could ad extra punch to its efforts. Until then, CoStar had settled for filing run-of-the-mill breach-of-contract or computer fraud suits.

"We're using copyright because it gives us access to enhanced damages compared to a straight breach of contract suit," says Chris Winters, CoStar's associate general counsel and director of intellectual property. Winters adds that the company's enforcement effort has gone way beyond just the cases that have shown up on the docket.

"We have copyrights and we'll use them," he says.

Trolling for Dollars

NTP Inc. is at it again.

The company, which settled a patent infringement suit against Blackberry maker Research in Motion Ltd for more than $600 million, has filed similar patent infringement claims against Verizon Wireless, AT&T Inc., Sprint Nextel Corp. and Deutsche Telekom AG's T-Mobile USA, the Wall Street Journal reports.

NTP makes no products but does hold patents on wireless e-mail and other applications. But since it settled its suit with Blackberry last year, court precedent has made it easier for patents to be deemed invalid because they are to “obvious.” And its suit against Palm, which makes the Treo device, has been put on hold after the U.S. Patent and Trademark Office issued a preliminary invalidation of some of its patents. (NTP is appealing that decision).

Fair use finds deep pockets

Google, Microsoft and Internet content distributors are suiting up to challenge professional sporting leagues and and other content producers over fair use rights.

Today, the Wall Street Journal reports, the Computer and Communications Industry Association will file a complaint with the FTC alleging that content producers ranging from the NFL to publishing houses sports are exaggerating their rights to control how content is used, casting a pall on legitimate fair use.

While having major Internet powerhouses behind the complaint certainly raises its stature, this isn’t the first time allegations of copyright creep have been in the news this year.

In February, Law School Professor Wendy Seltzer posted a video clip of the copyright warning from a professional football game on You Tube, drawing multiple challenges from the National Football League.

That familiar warning that Seltzer posted states that the telecast of the game is for private viewing, and that “[a]ny other use of this telecast or of any pictures, descriptions, or accounts of the game without the NFL's consent, is prohibited.”

The statement, on the face of it, seem to suggest that the NFL opposes even verbal narrations of a great play, making Monday night matchups about as secretive as Fight Club.

The CCIA’s complaint asks that copyright holders back off some of the most restrictive language and inform their audiences of basic fair use rights.

Both the NFL and Major League Baseball declined to comment on the soon-to-be filed complaint.

Know when to fold 'em...

Wow. Even in your fantasy life, the odds are against you.

Second Life owners Linden Research are shutting down gambling in their online world, citing differing gambling regulations around the world as part of the rationale for their decision, the Washington Post reports today.

The company posted their decision on a Linden Research blog last week.

The rule is shutting down a popular pasttime for Second Life avatars, and costing casino owners untold Linden dollars. Maybe a virtual Indian tribe can step in?

Your Lawsuit is on YouTube

Wondering whether that class action suit has settled?

Check YouTube.

Public Citizen, a consumer advocacy group that pushed for better settlement terms in a class-action suit over children’s use of the antidepressant Paxil, has posted a video on YouTube. Brian Wolfman of Public Citizen said the group has sent out notices to health groups and press releases, but wanted to reach more people.

The video, posted a week ago, has already been viewed more than 3,500 times. At the end, a “newscaster” tells viewers that if their child has taken Paxil, or if they did, the person who paid for the prescription could be eligible for money from a $48 million fund if they file a claim before Aug. 31, and directs them to www.paxilpayback.org for more information.

“I know of no instance where this has been done” before, Wolfman said.

It can be hard to tell.

A search for “class action” on the site produced results ranging from video of ponies, to a “disco track,” to a 1991 ad about a class-action suit against Milli Vanilli, the fraudulent pop duo.
The message: if you don’t find out about the settlement in time and gotta blame it on something, "blame it on the rain."